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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Berry -v- His Honour Judge Hickson & Ors [2012] IEHC 320 (26 July 2012)
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Cite as: [2012] IEHC 320
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Judgment Title: Berry -v- His Honour Judge Hickson & Ors Neutral Citation: [2012] IEHC 320 High Court Record Number: 2012 593 JR Date of Delivery: 26/07/2012 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
NEUTRAL CITATION NUMBER [2012] IEHC 320 THE HIGH COURT JUDICIAL REVIEW RECORD NO. 593/2012 JR BETWEEN MICHAEL BERRY APPLICANT v.
HIS HONOUR JUDGE BARRY HICKSON, THE DIRECTOR OF PUBLIC PROSECUTIONS THE DEPARTMENT OF JUSTICEAND LAW REFORM IRELAND AND THE ATTORNEY GENERAL RESPONDENTS Judgment of Mr. Justice Hedigan delivered the 26th day of July 2012 I heard this application on the 2nd of July last and refused the relief sought. I stated that I would give my reasons later. Those reasons are as follows; 1. The applicant seeks the following relief:-
(ii) An order of prohibition by way of judicial review to prevent the first named respondent proceeding with the trial of the applicant in respect of bill number WX46/2011 until the applicant has had adequate time to prepare his defence. (iii) An order of prohibition by way of judicial review to prevent the first named respondent proceeding with the trial of the applicant in respect of bill number WX46/2011 until full and proper disclosure has been made by the second named respondent. (iv) An order of prohibition by way of judicial review to prevent the first named respondent proceeding with the trail of the applicant in respect of bill number WX46/20 I 1 until such time as the third named respondent adequately provides for the cost of the applicant's legal advisors of identifying, copying and considering the disclosure in respect of bill number WX46/201. (v) A declaration that the ruling of the first named respondent made on the 27th June 2012 that the trial of the applicant in respect of bill number WX46/2011 should proceed on the 29th June 2012 was unreasonable, disproportionate and amounted to a breach of the applicants right to a trial in due course of law, as guaranteed by 38.1 of the Constitution, and Article 6 of the European Convention on Human Rights. (vi) A declaration that the failure by the third named respondent to adequately provide by way of legal aid for the cost of identifying, copying and considering the disclosure in respect of Bill number WX46/2011 amounts to a breach of the applicants right to trial in due course of law, as guaranteed by 38.1 of the Constitution and Article 6 of the European Convention on Human Rights. (vii) A declaration that the failure by the second named respondent to furnish the applicant with general disclosure amounted to a breach of his right to a trial in due course of law, as guaranteed by 38.1 of the Constitution, and Article 6 of the European Convention of Human Rights. (viii) A declaration that the refusal by the second named respondent to furnish the applicant with relevant disclosure on grounds of privilege and of relevance and incorrect considerations amounts to a breach of his right to a trial in due course of law, as guaranteed by 38.1 of the Constitution, and Article 6 of the European Convention of Human Rights. (ix) A stay on the prosecution of the applicant in respect of Bill number WX46/2011 pending the determination of the proceedings herein. (x) If necessary, an order for the production of the applicant and an order admitting him to bail pending determination of the proceedings herein. 2. 1 It is alleged that the applicant is part of a criminal gang that carried out a series of ATM thefts in the South-East in 2008 and 2009 using diggers and ram-raid techniques. It is also alleged that this gang carried out aggravated burglaries at a filling-station and at a hotel. The applicant was arrested as part of 'operation slope', the investigation into these ram raid and related offences. There were 57 people arrested in relation to the charges which are the subject matter of the indictment. There have been seven people charged with offences arising from the 'operation slope' investigation and the extradition of two more suspects from the UK is now sought. 2.2 The applicant was charged on the 13th July 2011, and returned for trial to Wexford Circuit Criminal Court in September 2011, in respect of a large number of charges which are set out on Indictment Bill no. WX46/11. The applicant was refused bail and is in custody. The applicant was assigned legal aid. Ms Lorraine Stephens was the applicant's first solicitor. Ms Stephens was discharged because she was acting for another person accused in relation to the ram raids. A Book of Evidence was served and the applicant was returned for trial to Wexford Circuit Court in September 2011. The legal firm of Morrison Broderick Solicitors came on record for the applicants in October 2011. On the 3rd of January 2012 the state solicitor was advised that the applicant had discharged the firm of Morrison Broderick and that David Tarrant Solicitor had been retained. The applicant then discharged Mr Tarrant and in April 2012 the firm of Donal Quigley and Co Solicitors came on record. 2.3 On the 28th October 2011, prosecuting Counsel spoke to the applicant's then legal team and advised them of the fact that because there was a very significant amount of documentation in this case, documents could be inspected at Enniscorthy Garda Station by arrangement. From that date onwards it has been open to the defence to examine the material. Morrison Broderick Solicitors made an appointment to attend the Garda Station but failed to attend. An application for bail was made and refused in January 2012. On the 17th April 2012, the applicant's case was listed for hearing, the trial was due to commence on the 18th April 2012, the applicant discharged his legal team that morning. On this basis the case did not proceed but was instead adjourned peremptorily against the applicant to the 19th June 2012. 2.4 On the 1st June 2012 the applicant's current solicitor Mr Quigley made a request for additional disclosure. A reply issued on the 13th June 2012. A second letter was sent by Mr Quigley (incorrectly dated 1st June 2012) and a reply issued from the state solicitor on the 18th June 2012. Later on the 18th of June 2012 the state solicitor was advised by Mr Quigley solicitor that he too had been discharged, however it appears the applicant had a change of heart and Mr Quigley attended Court on the 19th of June 2012. 2.5 On Tuesday the 19th of June 2012 the defence sought an adjournment. The prosecution argued that a jury should be empanelled on the basis that the issue of disclosure is one for the Trial Judge. There was legal argument on the issue of disclosure before Judge Hickson the first named respondent. Judge Hickson adopted a consensual approach and it was agreed by the prosecution that further documentation requested would be handed over or would be the subject matter of an application and ruling by the Judge. The Judge said that he would swear in a jury the following day and would deal with any other disclosure issues at that stage. A jury for the case was empanelled on Wednesday the 20th of June 2012. The jury were requested to return to the Court on Tuesday the 26th June 2012. There was further debate before the court about the issue of disclosure. On Tuesday the 26th June 2012 various issues arose in relation to members of the jury and it had to be discharged. A second jury was empanelled on Tuesday the 26th of June 2012. There was further debate before Judge Hickson about disclosure issues. The jury were advised that their attendance would not be required until Friday the 29th of June. A back up trial ran into Friday June 29th and so on the afternoon of Thursday the 28th of June, Judge Hickson suggested that disclosure issues could be canvassed on Friday the 29th of June but that the jury be put of until the following Tuesday the 3rd of June. On Friday June 29th the applicant's legal team made an ex parte application to this court seeking leave for judicial review. This Court held that the leave application should be heard inter partes and the application was heard on Monday the 2nd of July 2012. Applicant's Submissions. 3.2 Mr Doherty has averred that if the defence had asked for these statements they would have been provided. The applicants submit this is not how disclosure works. Disclosure of evidence should be made without a request if it is relevant. The applicant submits that there has been a clear breach of the DPP's Guidelines for Prosecutors 2007. Chapter nine deals with disclosure, under the section entitled "Obligation by the prosecution to disclose material not intended to be used at the trial". The guidelines state as follows at page 40:-
9.11 In the ordinary course, disclosure of evidence should be made, without a request, if the evidence is relevant. In this regard relevant evidence includes information which may reasonably be regarded as providing a lead to other information that might assist the accused in either attacking the prosecution case or making a positive case of its own ..." 3.3 Part of the evidence against the applicant will be the testimony of an informant and alleged accomplice Dessie Kavanagh. The proposed evidence of Mr Kavanagh is that he was present for some of the crimes and that the applicant informed him that he had committed other crimes. In these circumstances the credibility of Mr Kavanagh will be of crucial importance. The defence were entitled to know that Mr Kavanagh was on the witness protection programme. This information was not disclosed until the defence wrote to the prosecution, again this is a breach of the DPP's Guidelines for Prosecutor's 2007. Under the section entitled "Obligation by the prosecution to disclose material not intended to be used at the trial" the guidelines state as follows at page 40:-
(a)-(f)... (e) Details of any immunity from prosecution provided to a witness with respect to his or her involvement in criminal activities. Where a witness is admitted to a witness protection programme the fact of such an admission should be disclosed; (f) where the witness participated in the criminal activity the subject of the charges against the defendant, whether the witness has been dealt with in respect of his or her own involvement and, if so, whether the sentence imposed on the witness took into account any co-operation with law enforcement authorities in relation to the current matter;" 3.4 Before the applicant's solicitor attended Enniscorthy Garda Station for the purpose of identifying potentially relevant material and then copying and reading same, he contacted the criminal legal aid section in the office of the third named respondent seeking sanction for payment of the cost of attendance with Junior Counsel. He was advised that no payment would be forthcoming under the criminal legal aid scheme. The applicant submits that the failure of the third named respondent to facilitate the applicant's legal team through the provisions of the legal aid scheme has led to an utterly onerous and disproportionate arrangement whereby the defence must spend hundreds of hours considering documentary and real evidence without any payment for same. The third named respondents failure to adequately provide by way of legal aid for the costs of identifying, copying and considering the disclosure in respect of bill number WX 46/2011 amounts to a breach of the applicants right to a trial in due course of law. The applicant submits that the manner in which disclosure has occurred is oppressive on the applicant. It is further submitted that the applicant and his legal advisers are being denied the opportunity to have full and proper consideration of relevant matters so that a proper defence to these charges can be made. Respondents Submissions 4.2 This application was made at the stage when the trial had commenced. The jury had been sworn in and the applicants, without the courtesy of informing the Judge or the DPP went behind their backs and sought judicial review in the High Court. There is a clear line of authority to the effect that judicial review proceedings should not be brought during the currency of a criminal trial. In DPP v Special Criminal Court & Paul Ward [1999] 1 IR 60 Carney J stated at 69-70
4.3 The respondent submits that the method of disclosure in this case has been appropriate. In any complex case disclosure will inevitably be an issue. This is a case with multiple crimes, witnesses and victims involved and naturally the documentation is extremely extensive. It was legitimate for the respondents to indicate that the witness statements were available to view and copy at Enniscorthy Garda Station. This approach is certainly not unique in complex cases and was also used in the Veronica Guerin case where all relevant material was made available at Lucan Garda Station. This method of disclosure is not inconsistent with the DPP's Guidelines for Prosecutors 2007. 4.4 Disclosure was available since November 2011. This is a period of 8 months. This prompts the question of whose fault is it that the applicant has not taken the opportunity to examine the documents. Were the applicant's last three legal teams negligent in not examining the documents? Is this why the applicant discharged them? The reality of course is that the applicant has discharged his legal teams as a tactic to delay his trial. The pressure on the applicant's legal team is due to the applicant. The applicant's problem is self created. 4.5 In Mr O'Doherty affidavit sworn on the 1st of July 2012 he avers as follows at paragraph 53:-
4.6 Finally in relation to the issue of legal aid Terry Lonergan an Assistant Principal Officer in the Courts Policy Division of the Department of Justice and Equality has sworn an affidavit dated the 2nd July 2012 dealing with this issue. At paragraph's 5 to 7 of his affidavit Mr Lonergan outlines how the applicant's solicitor made enquiries by telephone as to whether under the Criminal Legal Aid Scheme fees would be paid for reviewing of disclosure. Mr Quigley was informed that such fees are not normally payable. Mr Lonergan however avers that this is not a strict rule and it depends on the circumstances of a particular case. In any event the Courts Policy Division did not receive any formal written application requesting provision for payment under the Criminal Legal Aid Scheme for review for disclosure from Mr Quigley Decision of the Court 5.2 The applicant herein seeks inter alia an order of prohibition by way of judicial review to prevent the first named respondent proceeding with his trial until full and proper disclosure has been made by the second named respondent. Such an order is exceptional in nature. In D.C. v. D.P.P. [2005] 4 IR 281 at 283 Denham J (as she then was) stated as follows at 283:-
It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial."
5.4 On at least two occasions Judge Hickson said it seemed to him that the State had "bent over backwards" to assist the Defence and he made it clear he would rule on any matters that remained in issue. He also said if there was improper non-disclosure he would stop the trial to prevent an injustice being done to the applicant. In order for this court to intervene in the matter I would have to be satisfied that there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial. In the light of the trial judges's careful consideration of the issue of disclosure to date and his firmly expressed view as to the consequences of improper non disclosure, it seems to me that there is every indication that the applicant will receive a fair trial. 5.5 As this court has repeatedly stated, save for the most exceptional cases, criminal proceedings belong in the criminal courts. Where an accused who is convicted of an offence believes that he has not had a fair trial he can appeal to the Court of Criminal Appeal who will have a transcript of all the evidence and can judge the case for fairness in the light of all the evidence given. The court of judicial review does not have access to all the evidence given and is thus in a weak position to judge the fairness of a trial overall. It is vital for the efficient conduct of criminal matters that criminal trials proceed through the criminal courts and are not dispersed between the court of trial and other courts. In Corporation of Dublin v Flynn [1980] IR 357 at 365, Henchy J. stated:-
5.6 The applicant's legal team complain that the third respondents failure to adequately provide by way of legal aid for the costs of identifying, copying and considering the disclosure amounts to a breach of the applicant's right to a trial in due course of law and is oppressive on him. At paragraph 29 of his affidavit of the 2nd July 2012, the applicant's solicitor Mr Quigley states as follows:- "I say that the Third Named Respondent insists that no payment can be made on legal aid for such burdensome and time consuming disclosure activities as those advocated by the Second Named Respondent. I Say that in the circumstances, the said refusal amounts to a failure to vindicate the applicant's constitutional right to a fair trial and to effective representation." In reply Terry Lonergan an Assistant Principal Officer in the Courts Policy Division of the Department of Justice and Equality has sworn an affidavit dated the 2nd July 2012, dealing with this issue. At paragraph's 5 to 7 of his affidavit Mr Lonergan avers as follows;-
6. However the above is not to say that in a particular case, depending on the circumstances of that particular case that provision would not be made for payment for review of disclosure. In this regard, from time to time, provision has been made for payment for documentary counsel under the legal aid scheme. 7. The Courts Policy Division is not in receipt of any correspondence from Mr Quigley, solicitor in relation to this case. No written application/ representation has been made by him setting out the individual circumstances of this case and requesting provision for payment under the Criminal Legal Aid Scheme for review for disclosure." 5.7 To summarize; in relation to the main issue as to the risk of an unfair trial, I am not satisfied that the applicant has discharged the onus on him to demonstrate that there is a real risk that, by reason of the particular circumstances of the case, he could not obtain a fair trial. It is noteworthy that the applicant himself is responsible for the difficulties his legal team have in preparing for trial in a short space of time. He has dismissed three legal teams in what I think the trial judge might reasonably apprehend is an attempt to prevent his trial taking place. Furthermore the applicant's legal team were aware when they first came to represent the applicant in April 2012 that a trial date had been set peremptorily against the applicant for the 19th of June 2012. I am satisfied that the trial judge has been closely managing the issue of disclosure. There was legal argument and rulings on disclosure on four occasions in the two weeks before this application for leave was taken. The Judge has also said if there was improper non-disclosure he would stop the trial to prevent an injustice being done to the applicant. These are classical grounds for preventing this court intervening. The trial judge is perfectly placed and ready to make all such rulings and direction as may be necessary to ensure a fair trial for the accused. As to the complaint made in relation to the non provision of legal aid for the costs of identifying, copying and considering the disclosure, it has not been sustained by the evidence. No proper application has been lodged and thus no final decision has been made on this issue. It was for all the above mentioned reasons that I refused the relief sought herein.
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