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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Coton -v- The Director of Public Prosecutions [2015] IEHC 361 (12 June 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H361.html
Cite as: [2015] IEHC 361
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Judgment
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Neutral Citation [2015] IEHC 361 THE HIGH COURT JUDICIAL REVIEW [2013 No. 955 JR] BETWEEN PHILOMENA COTON APPLICANT AND
THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENTS JUDGMENT of Kearns P. delivered on the 12th day of June, 2015 This is a case about prosecutorial delay in the context of criminal proceedings, and also about applicant delay where relief is sought by way of prohibition of a criminal trial. A particular issue as to the time from when time begins to run under Order 84 of the Rules of the Superior Courts for the making of a prohibition application has been the subject of an earlier judgment delivered on 21st May, 2015 in these proceedings. The applicant stands charged with unlawfully and maliciously causing grievous bodily harm to her husband, Christopher Payne on the 14th May, 1988 at an address in Crumlin in Dublin with intent to murder him, and also with unlawfully and maliciously causing grievous bodily harm to her husband with intent to cause same. The applicant was charged with these offences on the 11th January, 2013, some 25 years after the event, the applicant having been returned to Ireland as a result of European Arrest Warrant proceedings in Britain where she has resided since 1989. The applicant was born on the 14th May, 1952 and was thus 35 years of age at the time of the incident. She is now 63 years of age. Her husband, Christopher Payne, died on the 28th November, 1988, six months after a brutal attack which was perpetrated upon him in the family home where he was assaulted by a number of men with a hammer and axe and severely injured. The deceased, Christopher Payne, was a man in poor health who suffered from renal failure and required dialysis several times a week. There are unusual features in this case and the Court will for that reason reiterate the facts outlined in its judgment delivered on the 21st May, 2015. That judgment was concerned with the separate issue as to when time should be deemed to run under Order 84 of the Rules of the Superior Courts in respect of an application to prohibit a criminal trial. For the particular reasons elaborated in that judgment, the Court decided to extend the time for bringing the present application, although expressly reserving to the Director the entitlement to still argue at the full hearing that the applicant should be disentitled to relief because of her own delay in bringing the present application.
TIMELINE OF EVENTS IN THE PRESENT CASE The applicant remained in Ireland with her children until the trial of the four men was due to commence in July 1989 and attended at the Four Courts as a potential witness for the prosecution. However, as the perpetrators of the crime pleaded guilty, the applicant was informed that she and her daughter were no longer required as witnesses. Following the sentencing of the four men, the respondent in August, 1989 directed that charges be brought against the applicant and her daughter, Sharon arising out of the incident on the basis that they had originated, planned and facilitated the assault. The applicant was not informed that this decision had been taken. However, in that month the applicant and her two children moved to England. In 1991 she married Gregory Coton in England and had a daughter with him. Thereafter the applicant undertook studies in Coventry University and after achieving her “A levels” went on to complete a nursing diploma. In 1998 she worked with the Premier Employment Agency and was placed in a local hospital. In the years 2000-2001, the applicant was employed in a permanent position as a mental health assistant in Cauldon Centre Mental Health Unit in Coventry. Her daughter Sharon returned to Ireland with her husband in 2004. In 2010, a “Cold Case Review” was conducted on the file and on the 8th February, 2012 an arrest warrant issued in Ireland for the applicant. The respondents then applied for a European Arrest Warrant and the applicant was eventually returned to this jurisdiction on foot of this warrant. On the 11th January, 2013 the applicant was charged with the offences hereinbefore referred to and was brought before Dublin District Court. The applicant was served with a book of evidence and returned for trial on the same date, namely, 20th February, 2013. It is of some relevance to set out the timeline for the sequence of legal proceedings which attended the associated prosecution of the applicant’s daughter, Sharon Payne (now Sharon Cullen). Sharon Payne was fifteen years of age in May 1988 at the time of the alleged offences. She was also charged and brought before the courts for what the prosecution contended was her role in the assault on her father. She commenced judicial review proceedings seeking prohibition of her trial. Her case was successful in the High Court in June 2013 before O’Malley J. and the Supreme Court dismissed an appeal brought by the respondent on the 16th October, 2014. Somewhat different circumstances and considerations applied to Sharon Payne’s case, the principal one being her young age at the time of the offence and the clear requirement for speedy prosecutions in the case of young offenders. Thus at para. 118 of her judgment in Sharon Cullen’s case (Cullen v. the Director of Public Prosecutions [2013] 6 JIC 1701) O’Malley J. stated:-
Having regard to the importance of the special duty in relation to young persons and the breach of that duty which has been established in this case, I consider that the proposed process to be unfair to the point that it should not be permitted to proceed.” A number of important points are not in dispute between the parties in this case. First, while the Garda review of this case was characterised as a “Cold Case Review”, it has been conceded on behalf of the respondent that this characterisation of the case is somewhat misleading. It is not suggested that any new evidence of particular significance became available as a result of a review which prompted the resurrection of these proceedings (in respect of which a decision was made to charge the applicant as far back as 1989). On the contrary, it is conceded by the respondents that the reactivation of the proceedings is entirely due to the fact that the applicant’s whereabouts in Britain became known to the garda team in March, 2010 after they learned through Geoffrey Payne, a relative of the deceased, that the applicant was living with a Mr. Gregory Coton in Coventry in the West Midlands. At that stage the file was updated, further statements were taken, and directions were received by the investigation team in December 2011 from the respondent’s office to proceed with the prosecution as originally directed. The “Cold Case Review Programme” is obviously one of great importance in the prosecution of crime, particularly when new evidence comes to light many years afterwards which tilts the evidential burden decisively in favour of commencing or maintaining a prosecution. The mere elapse of time per se could not, and should not, have the effect of conferring some form of immunity on those who flee justice or put themselves beyond its reach. Any such consequence would mean that some notorious criminals, including, for example, persons guilty of serious war crimes, could over time acquire a de facto immunity from prosecution. However, as the facts of this case make clear, the applicant strongly maintains that far from “fleeing justice”, she was living and working openly for many years in England, making no attempt whatsoever to conceal her identity and her whereabouts, and that fact could readily have been ascertained with minimal effort on the part of the police. Second, the State in this case accept there has been blameworthy prosecutorial delay, such as to bring into operation the legal principles in relation to same as laid down in the cases of P.M. v. Malone [2002] 2 IR 560, P.M. v. Director of Public Prosecutions [2006] 3 I.R. 174 and Devoy v. Director of Public Prosecutions [2008] IESC 13. While blameworthy prosecutorial delay is not sufficient of itself to prohibit a trial, a trial may nonetheless be prohibited if one or more of the interests protected by the right to an expeditious trial have been so interfered with so as to entitle an applicant to relief. The bar of such a test is high, and the court must balance the public interest in prosecuting crime against the interests of the applicant. Where an accused’s ability to defend himself has been impaired and, as a result, a real and substantial risk of an unfair trial arises, then an applicant’s right to a fair trial necessarily outweighs the community’s right to prosecute. However, where the violation of the right does not jeopardise the right to a fair trial, an applicant is, nonetheless, entitled to rely on a number of other matters and, in all cases, the court may look at the nature of the offence, the extent of the delay and the particular circumstances of each case before considering if it should grant the exceptional remedy of prohibition of a trial. In short, it is conceded by the respondents that this is a case which requires that a balancing exercise be undertaken. Third, the respondents assert, and the Court believes they are correct in so asserting, that a mistaken averment in affidavit material furnished by the gardaí in relation to the case of the applicant’s daughter (concerning details on her passport) should not be regarded as “infecting” this case, notwithstanding that the error, compounded by the failure to rectify it, was heavily criticised in the judgment delivered by the Supreme Court in Cullen v. Director of Public Prosecutions [2014] 2 JIC 1803 which upheld the decision of O’Malley J. to prohibit the trial in the case of the applicant’s daughter. This case falls to be determined on its own particular facts.
POSITION OF THE APPLICANT For her part, the applicant deposes that in the aftermath of the trial her family and herself were the subject of intimidation and harassment by associates of some of the men who had been convicted and sentenced to lengthy periods of imprisonment. It is perhaps important to underline that, in the aftermath of the attack on her husband, the applicant stayed at her sister’s house for eleven weeks before returning to the home where the attack had taken place. She deposes that she was warned by neighbours that if she took her daughter Sharon home with her that Sharon “would be hurt”. As a result Sharon did not come home. While the hospital had advised the applicant to have her husband institutionalised because of the severity of his injuries, the applicant nonetheless insisted on his coming home and cared for him in that setting until the 28th November, 1988 when he died. It was at this stage that the applicant removed herself and her family to the United Kingdom. In these particular circumstances, the Court has difficulty in finding, on the balance of probabilities, that the applicant was a “fugitive from justice” as it seems equally likely that she was taking what she regarded as appropriate and necessary steps for her own protection and for that of her daughter Sharon who, in statements contained in the book of evidence, is alleged to have initiated or first suggested the plan which led to the assault on Christopher Payne in May 1988. It is of interest to note that the applicant established herself in England through the assistance and intervention of her late husband’s uncle, Derek Payne who, she says, was very helpful and assisted her in this process. What is not in dispute is that, following her move to England, the applicant was afforded rent allowance, was provided with an RSI number and national insurance number, and that in all of her initial dealings with the United Kingdom authorities she used her correct name of Philomena Payne. After six months she was allocated council housing in the name Philomena Payne at the address in Coventry where she remained for the next 22 years right up until the date of her arrest in respect of the present matter. She deposes, and none of this is contradicted, that in all her interactions with the United Kingdom authorities she used the name of Philomena Payne until she married Gregory Coton, who was her late husband’s cousin, in 1991. Both of her children from her previous marriage, namely, Sharon and Christopher, continued to go by the name of Payne and at the age of 14 years, Christopher was enrolled in secondary school in Barshill in the name of Christopher Payne. Thereafter the applicant obtained work as a care assistant in Stoke Lodge Nursing Home, a public nursing home run by the state. While there, she undertook studies in Coventry University on an access course in 1997/98 and, having achieved her “A levels”, later went on to study a nursing diploma. The applicant has furnished a variety of domestic bills and other records which support these contentions and which render it extremely difficult to understand how any modest level of investigation would not have revealed her whereabouts. In the year 2000 she was offered a permanent position of mental health assistant in the Cauldon Centre Mental Health Unit in Coventry where, as an employee, she was subject to regular police checks. Her employers were at all times aware that she was Irish and that she had lived in Ireland for many years prior to emigrating to the United Kingdom. Similar averments are contained in the affidavit of Mr. Edward Elwin Jones, her solicitor retained in England in connection with the European Arrest Warrant proceedings. He deposes that the applicant was arrested in her home on the 9th May, 2012 and appeared before Westminster Magistrate’s Court on the 10th May, 2012 where she was denied bail on the basis she was “a fugitive from justice”. It appears she did not secure bail until July 2012, having been detained in the interim in Holloway Prison. The applicant has no criminal record in either this jurisdiction or in the United Kingdom. On the contrary, she has lived an exemplary life since 1988. She has travelled back to Ireland from the U.K. on numerous occasions over the years. She attended the funeral of her aunt in 1993 and visited family relations in Loughshinny in Co. Dublin in 1994. She developed breast cancer in 2000 and required a mastectomy and chemotherapy, but again visited her sister Marie Carolan in Ireland in 2002. Her last to trip to Ireland was in November 2011, shortly before her daughter Sharon Cullen (who had moved back to Ireland some six years previously) was arrested pursuant to charges brought in relation to the same incident. As the affidavit of Mr. Jones makes clear, the applicant now has strong community ties in the U.K. in the Coventry area with both children and grandchildren living there. In her affidavit she deposes that she has remained in constant contact with Mr. Derek Payne, and deposes to her belief that had the gardaí bothered to make even cursory contact with him he would immediately have provided her address and telephone number to gardaí. She also deposes that, if her trial were to proceed, she would suffer both general and specific prejudice having regard to the delay. Her sister, Marie Carolan, has had a serious illness akin to a stroke with reduction in brain function, memory loss and loss of eyesight. She is unable to remember the events of 25 years ago when she accompanied the applicant’s daughter Sharon at interviews in Sundrive Road Garda Station in May 1988. Sergeant Brendan Burke, who was the member in charge of the station at the relevant time, has died, although it would appear that any evidence he might have given would be of a peripheral nature only. However, one of the co-accused, Anthony O’Neill, whose evidence might have been of some assistance to the applicant, has also died. The applicant maintains that, insofar as the balancing test is concerned, she has suffered enormous stress and anxiety since her arrest in Coventry on the 9th May, 2012. She underwent the entire extradition procedure and spent a lengthy time in custody while those proceedings were processed. She deposes further that she was willing to assist the prosecution at the original trial, made herself available for that purpose, and was not in any way told, warned or precluded from travelling to the United Kingdom which she did purely for the purpose of escaping from harassment and intimidation by relatives or associates of the men who had been convicted in relation to the attack.
THE RESPONDENT’S POSITION Nothing at all appears to have happened until the “Serious Crime Review Team” undertook a review of the case in November 2009. Between 2009 and July 2011 the Team interviewed and took statements from a number of individuals, including statements from Jennifer and Jessie O’Dwyer (who were already known for the latter’s involvement in the incident), but this information appears to have been directed more to the motive for the assaults on Mr. Payne, senior. Ultimately at the end of December 2009, Detective Sergeant Danny Kelly had a chance encounter with Mr. Geoffrey Payne, a brother of the deceased, from which he became aware that the applicant was living in Britain. Three months later a statement was taken from Geoffrey Payne confirming that the applicant was living with a Mr. Gregory Coton in Birmingham. He later furnished the gardaí with the exact address in Coventry. The team thereupon updated the file and submitted same to the Office of the Director of Public Prosecutions in July 2011. Directions were received from that office in December 2011 to proceed with the prosecution as originally directed. Thereafter the European Arrest Warrant proceedings got under way in February 2012. Detective Superintendent Sutton says that the direction to prosecute the applicant was made on the 25th July, 1989 and was never “rescinded or resiled from”. It is his contention that the applicant left the jurisdiction so as to avoid the possibility of being charged. Certain inquiries made by the gardaí with the Department of Social Welfare outline that in July 1989 the applicant cashed her last widow’s pension cheque. Thereafter in 1991 the Department of Social Welfare cancelled her pension and backdated the cancellation to July 1989. Her pension book had been returned in February 1991 and was handed into the post office who in turn had passed it back to the Department of Social Welfare. He further deposes that if the investigation team had been aware of her visits home, the arrest warrant would have been executed. Based on this material, counsel on behalf of the respondent argued that a decision to prosecute should not lightly be interfered with by the courts. The offences alleged against the applicant were serious and there is a considerable public interest in ensuring that serious crime be prosecuted. There had been a number of admissions made by the applicant during the course of the investigation and that fact should be taken into account by the Court, as has been stressed in a number of cases, including B. v. Director of Public Prosecutions [1997] 3 I.R. 140 at p.202 and S.A. v. Director of Public Prosecutions [2007] IESC 43. It is further argued on behalf of the respondent that the appropriate locus in which to debate these issues is at the trial itself. None of the witnesses who are now unavailable could be said to be critical to the applicant’s defence. Sergeant Burke had only evidence of peripheral importance to offer, and Anthony O’Neill, as a co-accused in the original trial, had not been demonstrated to be a witness whose evidence was likely to be of assistance to the applicant, nor had it been demonstrated that Marie Carolan was likely to be in a position to offer any evidence of assistance to the applicant even if she had not suffered the stroke which had since intervened. In short, the respondent’s position was that no specific prejudice has been demonstrated and that the public interest in seeing serious crime prosecuted should, in such circumstances, tilt the scales in favour of allowing the trial to proceed. Furthermore, the applicant had herself been guilty of such inordinate delay in moving the application for prohibition that the Court, as an exercise of its discretion, should treat that factor as being of very significant importance in this case. Arguably the applicant was aware, as far back as July 2012, that she was being brought back to Ireland to face charges arising out of the assault on her husband and was effectively in as good a position to seek prohibition once she had been returned to Ireland as she was at the date of her return for trial. While the Court ruled that the date of return for trial was the appropriate date from which to compute when time begins to run, it nonetheless was still the case that the applicant delayed for many months thereafter before bringing the present proceedings. They could be seen as proceedings brought on the back of the successful outcome of the proceedings brought by Sharon Cullen, and possibly inspired by the success of that application. However, there had been dramatic differences between the two cases. First, the prosecution of Sharon Cullen was halted because both the High Court and Supreme Court took the view that a young offender must be prosecuted expeditiously and that special obligations lay on the prosecution in those circumstances. Secondly, both courts were considerably vexed that a manifest error as to Sharon Cullen’s passport particulars was alluded to in an affidavit and left uncorrected up to and including the time of the hearing before O’Malley J. in the High Court. Neither of those features, which marked out the case of Sharon Cullen as a special and exceptional case, are applicable in the instant proceedings.
DISCUSSION AND DECISION At the outset the Court would completely reject any such approach, which is logically inconsistent with any balancing exercise where delay is being considered. It is well established in the context of civil law that, in considering whether delay has been inordinate, the Court will have regard to the contribution or responsibility of both parties to the proceedings for any delay which has occurred. Specifically, the Court would wish to emphasise that in Coton (No. 1), the Court was concerned to bring clarity to the issue as to the date from which time should begin to run for a prohibition application. Different views had been expressed by judges in a whole range of cases on this precise point, but in this case the Court sought and received evidence as regards procedures applicable to the trial process which enabled it to express with some degree of confidence its view that the key date is the return for trial. Indifference to time constraints in the area of prohibition by applicants and practitioners has resulted over the years in frequent late or ‘last minute applications’ to prohibit or halt trials for one reason or another. The Supreme Court has increasingly expressed its disapprobation of this tendency. The Court would go even further to say that this approach to the remedy of prohibition is not to be tolerated. Indeed this is a case where an application for leave to extend the time for bringing judicial review proceedings was only made at the hearing itself , as though it was nothing more than a tiresome irritant to be quickly brushed aside by an applicant and the Court itself. It is extremely damaging to the administration of justice if trial dates, which are fixed many months in advance, have to be vacated at the last moment and at a point where considerable expense has been incurred in preparing for the case - expense which may include the retention of counsel, expert witnesses or other witnesses whose time and availability may be limited. Gaps created in court lists in this way are not easily filled. In addition, such delays are a source of aggravation and stress to victims, or their families in cases where fatal offences are in issue, and prolong the period during which vulnerable witnesses or complainants are obliged to wait on in an atmosphere of apprehension and uncertainty about the ordeal of an upcoming trial. From the Court’s own perspective, it cannot seriously be the case that the Court is expected to ignore and effectively undermine Rules of the Superior Courts which were amended with the specific intention of reducing delays and improving efficiencies. Applicant delay therefore is a significant factor to be taken into account in this case, and the Court has accorded that consideration full weight in its deliberations. In the ordinary course of events the Court is quite satisfied that the delay of 10 months from date of return for trial to the making of the leave application would and should be fatal to an application of this nature - unless there are extenuating circumstances as provided for in the revised terms of Order 84 - and the Court has extended the time for bringing the application only because of the reasons outlined in Cotton (No. 1). That significant delay on the part of the applicant must therefore still form part of the balancing exercise when the overall merits of the case now fall to be dealt with by the Court. Delay on the part of the applicant there undoubtedly was in this case. However, that delay can only be characterised as relatively minor when set against the delay on the part of the prosecuting authorities in this case. A decision to charge the applicant was made as far back as July 1989. Thereafter, the applicant left a clear paper trail by means of the electoral register, utility bills, tenancy agreements and employment records which would, and should, have permitted identification of her whereabouts in Britain (where she was suspected of having taken up residence) many years before that discovery was actually made. As O’Malley J. pointed out in the associated case of Sharon Cullen, the gardaí apparently waited in this case until the information “fell into their laps”. They were apparently unaware of the existence of Geoffrey or Derek Payne, but there is no evidence of any inquiries having been made amongst family members of the late Christopher Payne to ascertain if any member of that family might be in a position to assist their inquiries. The gardaí appear also to have taken the position, in relation to family members of the applicant, such as Marie Carolan, and persons living in the locality, that they, rather than the gardaí, would come forward to volunteer information about the applicant’s whereabouts, an attitude which the Court finds somewhat strange and difficult to understand. The applicant is a person with no previous convictions and certainly no convictions subsequent to 1988. The Court is satisfied that she has lived openly in Britain since 1989 and has built a new life for herself and her family in that jurisdiction. She has had more than 25 years to reflect upon the events of the particular night in May 1988 and must be taken as having suffered considerable stress and anxiety, not only whilst incarcerated in Holloway Prison, but throughout the entire extradition process and her subsequent arrest on being returned to this jurisdiction. While reference has been made to certain admissions on the part of the applicant, the overall tenor of those alleged admissions is not unequivocal in the sense that there is a suggestion made in them that the originator of the planned assault on Christopher was not the applicant but her daughter Sharon. The Court is, of course, making no assumption that this was in fact the position and admissions are in law evidence only against the person making them, but, that said, the alleged admissions lack the quality of clarity and certainty which would elevate their existence to a factor of substance in this case. Most importantly however, the Court is left with no real explanation for the years of inactivity in this case by the garda authorities. This may have been down to lack of resources or the demands of other work, but it is not really in dispute that little or no follow-up activity ever occurred after the applicant moved away from this jurisdiction. The Court is driven to conclude, as did O’Malley J., that the gardaí simply waited until some information in relation to the whereabouts of the applicant dropped fortuitously into their laps. There was no search, no inquiry, no real effort of any sort to track down the applicant who was living and working openly in the neighbouring jurisdiction. In all the circumstances, the Court has decided, not without some misgivings, that it should prohibit the further trial of the applicant herein. There would be a clear incongruity in permitting the charges against the applicant to go to trial when the senior appellate court in this jurisdiction has prohibited the trial of her daughter in such trenchant terms. |