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Cite as: [2005] IESC 8

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Judgment Title: Blood -v- DPP Neutral Citation: [2005] IESC 8 Supreme Court Record Number: 233/02 High Court Record Number: 2001 182 JR Date of Delivery: 02/03/2005 Court: Supreme Court Composition of Court: Mc Guinness J., Hardiman J., Fennelly J. Judgment by: Mc Guinness J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Mc Guinness J.	Appeal allowed - set aside High Court Order	Hardiman J., Fennelly J.

Outcome: Allow And Set Aside

- 39 -

McGuinness J.
Hardiman J.
Fennelly J.



BETWEEN



JUDGMENT of Mrs Justice McGuinness delivered the 2nd day of March 2005


INTRODUCTION

This is an appeal against the judgment and order of the High Court (Ó Caoimh J.) made on 28th June 2002 refusing the applicant’s application by way of judicial review for an injunction restraining the respondent from prosecuting the applicant in proceedings entitled Director of Public Prosecutions v Darren Bernard Blood
In those proceedings the applicant stands charged on two counts with offences contrary to section 27A(1) of the Firearms Act 1954, as inserted by section 8 of the Criminal Law (Jurisdiction) Act 1976 and amended by section 14 of the Criminal Justice Act 1984. In those charges it is alleged that on a date unknown between the 1st April 1994 and 30th April 1994 at 27 Dunamore Crescent, Tallaght, the applicant had in his possession a nine millimetre Mauser pistol and six rounds of ammunition in such circumstances as to give rise to a reasonable inference that he had not got it in his possession for a lawful purpose. The applicant was arrested and charged with these offences on 6th July 1999. A Book of Evidence was served on him on the 10th September 1999. He was returned for trial on 31st January 2001.
He obtained the leave of the High Court (Ó Caoimh J.) to issue his judicial review proceedings on 26th March 2001. He seeks to prohibit the continuance of his trial on grounds of prosecutorial delay.
The offences with which the applicant stands charged appear to arise out of the investigation of the unlawful killing of one Stephen Murphy, which occurred at Carnew, Co. Wexford, on the night of 30th April/1st May 1994 during the course of a weekend gathering of motor bicycle riders.
The applicant is a married man with two children and resides in Dublin. His affidavit grounding his application for judicial review, together with the documentation exhibited therewith, sets out the sequence of events since 1994.
The applicant was originally arrested and detained pursuant to section 30 of the Offences against the State Act 1939 in or about the month of July 1994 at Wexford on suspicion of having had possession of firearms at Carnew, Co. Wexford. He was released without charge at that time. Subsequently on 25th September 1996 his house was searched pursuant to a search warrant issued under the provisions of section 29 of the Offences against the State Act 1939. He deposes that during the course of that search he was arrested pursuant to section 30 of the said Act for the possession of firearms. The applicant refers to the Book of Evidence wherein a statement of the evidence to be given by Sergeant Gerard McGrath indicates that the arrest was for the possession of firearms between October 1994 and February 1996. The applicant says that during the course of his detention he was questioned about the receipt of hand guns from Martin McHugh sometime after October 1994. The applicant states that nothing of evidential value to the present case was obtained during the course of the detention. He said that despite the fact that this search, arrest and questioning appear to have had nothing to do with the possession of firearms in or about April 1994, these matters have been included in the Book of Evidence served on him.
The applicant refers to the contents of the Book of Evidence and states that it indicates that the Garda investigation in this case began with the investigation into the unlawful killing of Stephen Murphy referred to above. He notes that the charges against him at present relate to the allegation of possession of firearms/ammunition at Tallaght, Co. Dublin. He expresses the view that the only alleged evidence against him is that contained in the statements attributed to Michael Broughall (who is incorrectly named as Branghall in the Book of Evidence) and Martin McHugh. The applicant points out that Michael Broughall was convicted of possession of firearms and received a five year suspended sentence at Wicklow Circuit Court on 30th March 1995. He also points out that Martin McHugh was convicted of the possession of firearms in the Dublin Circuit Court on the 26th March 1998. He received a four year suspended sentence.
It appears from the affidavit of Claire Loftus, then a Principal Solicitor in the Office of the Chief State Solicitor, grounding the Statement of Opposition of the respondent, and from her subsequent oral evidence in the High Court, that the said Martin McHugh was interviewed by the Gardai in 1996 in the course of the investigation into the murder of Veronica Gurin. In or about August 1996 Martin McHugh indicated to the authorities that he was willing to give evidence against the applicant. It was, however, the view of the Director of Public Prosecutions that Martin McHugh should not or could not be asked to give evidence against the applicant until his own prosecution was completed.
The prosecution of Martin McHugh ended on 26th March 1998 in his conviction and sentence. However, it was not until some five months later, in late August 1998, that the State Solicitor for Wicklow informed the Director of Public Prosecutions of this fact. It appears that at this stage a difficulty arose because the original file on the applicant’s case had been lost in the Director’s office.
On 3rd December 1998 an officer recommended to the Director that firearms charges be brought against the applicant. On 8th December 1998 this recommendation was forwarded to the State Solicitor in Wicklow. On 29th March 1999, nearly four months later, the State Solicitor replied by letter setting out reasons given by members of the Garda Siochana who were responsible for the investigation into the death of Stephen Murphy which, according to the Garda Siochana, would justify the applicant being charged with the murder of Mr Murphy. Two days later on 31st March 1999, the Director replied confirming that firearms charges were to be brought.
Approximately one month later, in late April the Director’s directions concerning the firearms charges were received by the relevant members of the Garda Siochana. Over two months later, on 6th July 1999, the applicant was arrested and charged with the offences set out above. On 10th September 1999, as stated above, a Book of Evidence was served on the applicant. This Book of Evidence, which is exhibited by the applicant in his grounding affidavit, is very extensive and contains a considerable amount of material which might be relevant to a murder charge against the applicant but which has in effect little or no relevance to the actual firearms charges. Between 28th September 1999 and 6th December 1999 there was a correspondence between the solicitors for the applicant and the Chief State Solicitor’s Office concerning disclosure of all material relevant to the case.
On 14th January 2000 the applicant through his solicitor indicated that he required that the evidence of Martin McHugh and Michael Broughall should be taken on deposition. The date for the taking of depositions was fixed as the 14th June 2000. The applicant in his affidavit states that this was due to delays in the District Court system. On the 14th June 2000 the applicant attended court with his solicitor but no representative from the Chief State Solicitor’s office or An Garda Siochana attended nor did the witnesses. Ms Loftus in her affidavit explains that this was due to “an unfortunate oversight in failing to enter a previous remand date in a diary”. In the circumstances the District judge had no option but to adjourn the matter to a further date for depositions. The earliest date available was 29th November 2000 at 2 p.m. On that day there was insufficient time to take both the depositions and a further date was fixed for the taking of the remaining deposition on 3rd January 2001. As has been stated earlier the applicant was returned for trial on 31st January 2001 and obtained leave to issue the present proceedings on 26th March 2001.

THE PROCEEDINGS
In his judicial review proceedings the applicant seeks the following reliefs:
1. An order of prohibition by way of an application for judicial review prohibiting the first named respondent from hearing the trial of the applicant in proceedings entitled Bill No. 106/01, The People of Ireland (At the Suit of the Director of Public Prosecutions) v Darren Bernard Blood.
2. An injunction by way of an application for judicial review restraining the second named respondent from prosecuting the applicant in proceedings entitled: Bill No. 106/01 The People of Ireland (At the Suit of the Director of Public Prosecutions) v Darren Bernard Blood.
The grounds upon which he relies are basically those of prosecutorial delay and are set out as follows:

1. That the delay between the dates of the alleged offences (1st April 1994 to 30th April 1994) and the date of the return for trial of the applicant on the 31st January 2001 amounts to a failure to vindicate the applicant’s constitutional entitlement to fairness of procedures and a breach of his right to constitutional and natural justice.
2. That the delay between the dates of the alleged offences (1st April 1994 to 30th April 1994) and the date of the return for trial of the applicant on the 31st January 2001 amounts to a failure to vindicate the applicant’s constitutional right to an expeditious hearing.

3. The applicant’s rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the prosecution to investigate these matters with reasonable expedition and to prosecute with reasonable expedition.
4. The applicant’s rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of An Garda Siochana to carry out their investigation with all reasonable expedition and the failure of the second named respondent to prosecute diligently in relation to these matters. In particular the applicant will rely upon the following matters:-
(a) the date on which the alleged offences are alleged to have occurred is in the month of April 1994.
(b) The evidence upon which the second named respondent seeks to rely is apparently based upon the evidence of two witnesses i.e. Michael Broughall and Martin McHugh. The evidence of Michael Broughall has been in the possession of the prosecution since in or about May 1994. The evidence of Martin McHugh has been in the possession of the prosecution since August 1996. The applicant was arrested under the provisions of section 30 of the Offences Against the State Act on the 25th September 1996 and during the course of his detention he was questioned in relation to the alleged receipt of firearms from Martin McHugh. The applicant was released without charge. Nothing of evidential value flows from this arrest.
(c) On the 7th day of July 1999 the applicant was charged with the said offences.
5. Further the applicant’s rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the Chief State Solicitor/second named respondent to deal expeditiously with the file and by the delay in charging the applicant at the earliest opportunity. In this regard the applicant would rely upon:
(a) the delay between May 1994 and July 1999 or in the alternative
(b) the delay between August/September 1996 and July 1999.
6. Further and in the alternative the applicant’s rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the second named respondent to prosecute the within proceedings with all appropriate expedition and in particular by the decision of the second named respondent to delay the charging of the applicant until after the trial of Martin McHugh which said trial concluded on the 26th March 1998.
7. Further, if which is denied, the second named respondent was entitled to wait until after the conclusion of the trial of the said Martin McHugh, the second named respondent was guilty of a further delay in breach of the applicant’s constitutional rights to a fair trial, fair procedures and an expeditious hearing in delaying the charge of the applicant for a further sixteen months until July 1999.
8. Furthermore the applicant’s constitutional rights to a fair trial and an expeditious hearing of the said trial has been violated by the delay in securing dates for the taking of depositions in the District Court in this matter. This delay was due to the difficulty in obtaining court dates for the hearing of the said depositions. Despite being charged on the 7th day of July 1999 the applicant was not returned for trial until the the 31st January 2001.
9. The delay itself between the date of the alleged offences and the date of charge of the applicant and/or the date of return for trial of the applicant is of such a magnitude to amount to a breach of his rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing.
10. Further the delay between the date of the alleged offences and the date of the charge of the applicant and/or the date of return for trial of the applicant has greatly prejudiced the applicant in respect of the following the applicant has severed his links with the Motor Cycle Club with which he associated at the time of the alleged offences and wherein many relevant witnesses to the facts alleged might have been found.
11. That the trial of the applicant on these offences at such a remote time from the date of the alleged offences in the circumstances as set out herein amounts to an abuse of the process of the courts.
A statement of opposition was filed by the respondent on the 25th July 2001. The Grounds of Opposition amount in essence to a denial of all the matters set out in the applicant’s statement of grounds. In summary, it is stated (at paragraphs 10 and 11):

“10. The lapse of time between the date of the alleged offences and the date on which the applicant was charged therewith is not of such a magnitude as to amount to a breach of the applicant’s rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing.

11. The applicant has suffered no prejudice as a result of the lapse in time in his being returned for trial on the charges currently pending before the Dublin Circuit Criminal Court, either as alleged at paragraph 10 of the statement grounding these proceedings or at all.”

The statement of Opposition is grounded on the affidavit of Claire Loftus, then a principal solicitor in the Office of the Chief State Solicitor. In her affidavit she refers to a letter sent by the Office of the Chief State Solicitor to the applicant’s solicitor on the 6th December 1999, in which explanation had been given as to the alleged delay in bringing charges against the applicant. Ms Loftus goes on to state (at paragraph 3 of her affidavit):-

“The applicant admits to having been arrested and detained pursuant to section 30 of the Offences Against the State Act 1939 in July 1994 and in September 1996 in relation to firearms offences. I therefore say and believe that the applicant was, at all material times, well aware of the circumstances giving rise to the charges against him.”

Ms Loftus goes on to set out in some detail the sequence of events from 1996 to the applicant’s return for trial in 2001. These events have already been outlined in the introductory part of this judgment.
At the trial before the learned High Court judge Ms Loftus was cross-examined on her affidavit. This court has been provided with an agreed counsel’s note, which has been approved by the learned trial judge, of this cross-examination. The cross-examination dealt with such matters as the reasons why the charging of the applicant was delayed until after the conviction of Martin McHugh, the investigations carried out by the Gardai both in Wicklow and in Dublin, and the general delays which had occurred before the applicant was charged and in the taking of depositions. At a later stage Ms Loftus was recalled for further direct examination and cross-examination. This dealt with correspondence which had recently been brought to Ms Loftus’ attention and with the fact that it had originally been contemplated by the authorities that the applicant would be charged with the murder of Stephen Murphy. This evidence will be referred to at a later stage in this judgment.

THE DECISION OF THE HIGH COURT
In his judgment the learned trial judge surveyed the factual background to the proceedings and outlined the submissions made by counsel. He noted that counsel for the applicant relied in particular on the principles of law enunciated by Finlay C.J. in the case of Director of Public Prosecutions v Byrne [1994] 2 I.R 236, together with the High Court judgment of Geoghegan J. in P.P v The Director of Public Prosecutions [2000] 1 IR 403. Counsel for the Director submitted, by reference to the decisions of this court in Z v D.P.P. [1994] 2 I.R. 476 and D v D.P.P. [1994] 1 I.L.R.M. 435, that the onus of proof lay upon the applicant. To justify a permanent stay of criminal proceedings there had to be a permanent defect which went to the root of the trial and which could not be remedied by the trial judge.
In drawing his conclusions the learned trial judge dealt firstly with the period of delay leading up to the conviction of Martin McHugh in 1998. In this regard he stated (at page 17):-
“In the first place I am satisfied that there was no obligation on the prosecution to charge the applicant at a time when it first had the evidence of Michael Broughall. While his evidence was available since 1994 the issue whether this was considered sufficient appears to be answered by the clear decision which was taken thereafter not to charge the applicant until the evidence of Martin McHugh was available to the prosecution. While it might be said that Martin McHugh might have availed of the right not to incriminate himself, it is self evident that until the charges against him had been determined there was no reality in relying upon his evidence. It appears furthermore that he might have been described at the time as an accomplice and reliance upon his evidence in the absence of corroboration would also have presented a problem for the applicant.

Clearly it is a matter for the Director to decide upon what evidence he will prosecute any particular charge and in the instant case it is clear that he decided not to prosecute the applicant at a time until after the evidence of Martin McHugh was available. I believe that it is not the function of this court to substitute its view for that of the Director who is charged at law with the decision who, when, with what charge and on what evidence to prosecute in any case. I am satisfied that the applicant has failed to show that the decision reached in the instant case was one which was not permissible.”

The learned trial judge went on to consider the subsequent periods of delay and the explanations offered for them on behalf of the Director of Public Prosecutions. He held that the essential issue was whether the delays since March 1998 was such as to abrogate the applicant’s right to a trial with reasonable expedition. He was satisfied that the applicant had failed to establish any actual prejudice arising from the delay complained of. The learned trial judge concluded (at page 19):
“I am satisfied that the instant case is characterised by some prosecutorial delay which is excessive but also by a situation where the applicant has failed to show any particular prejudice to have been suffered by reason of this delay and in these circumstances I am satisfied that it cannot be presumed that the applicant has been prejudiced such that he has been deprived of a trial with reasonable expedition such that a fair trial cannot now be held.”

Accordingly the learned trial judge refused the applicant’s application.

THE NOTICE OF APPEAL
The applicant appealed to this court by notice of appeal dated the 2nd August 2002. The applicant’s grounds of appeal are set out as follows:
1. The learned trial judge erred in law and in fact by failing to find that the delay on the part of the respondent in deciding to prosecute the applicant in 1994, 1995 and in 1996 was inexcusable and inordinate.
2. The learned trial judge erred in law and in fact by failing to hold that the delay on the part of the respondent between 1994 and 1999 in directing the institution of a prosecution against the applicant constituted inordinate and excusable delay and thereby violated the applicant’s right to trial with due expedition in accordance with Article 38.1 of the Constitution of Ireland.
3. The learned trial judge erred in law and in fact in holding that until charges against Martin McHugh had been determined there are (sic) no reality in the respondent relying upon his evidence. This was not a ground relied upon by the respondent in these proceedings as a reason why the applicant was not prosecuted prior to 1996.
4. The learned trial judge erred in law and in fact in finding that the evidence of Michael Broughall had been in the possession of the prosecution since August 1996. In fact the uncontroverted evidence in these proceedings confirmed that the statement of Michael Broughall was in the possession of members of An Garda Siochana and was available to the respondent for his consideration from 1994 onwards.
5. The learned trial judge erred in law and in fact finding the delay between 1994 and 1998 on the part of the respondent in deciding to prosecute the applicant was taken because the respondent had decided not to charge the applicant until the evidence of Martin McHugh was available to the prosecution. The uncontroverted evidence in the proceedings confirmed that no decision was taken by the respondent to prosecute the applicant in 1994, 1995 or for nearly six months of 1996 despite the fact that the respondent was in possession of the statement of Michael Broughall which was relied upon by the respondent in the prosecution which forms the subject matter of these proceedings.
6. The learned trial judge erred in law and in fact in finding that the essential issue in these proceedings was delay on the part of the respondent between March 1998 and the date of the institution of proceedings in 1999. The learned trial judge erred in failing to pay due or adequate regard to the applicant’s claim that the respondent was guilty of excessive and/or inordinate culpable delay between 1994 and 1998.
7. The learned trial judge erred in law and in fact in holding that the applicant was not prejudiced by delay on the part of the respondent.
8. The learned trial judge erred in law and in fact in holding that despite excessive and unexcused prosecutorial delay that the applicant was still required to show particular prejudice before his trial could be prohibitive (sic).
9. The learned trial judge erred in law and in fact by finding to hold (sic) that the applicant’s right to a trial with reasonable expedition had not been violated by excessive prosecutorial delay.

SUBMISSIONS OF COUNSEL
Senior Counsel for the applicant submitted that the State’s decision not to bring charges against the applicant until after the conclusion of the prosecution of Martin McHugh was inappropriate and wrong. Counsel submitted that the prosecution could have charged the applicant with the offences in question in 1995 when they already had the evidence of Mr Broughall, or at least after they obtained the evidence of Martin McHugh in 1996. A Book of Evidence could then have been served and, if necessary, the proceedings against the applicant adjourned. The applicant would then have been fully aware of the nature of the charges against him and of the evidence upon which they were based. This would have enabled him to take proper steps to prepare his defence. Counsel referred to the statement of evidence of Sergeant Gerard McGrath, at page 77 of the Book of Evidence served on the applicant, which clearly showed, he said, that the prosecution were in possession of full evidence relating to the alleged possession of firearms by September 1996 when they searched the house of the applicant at 27 Dunamore Crescent, Tallaght, arrested the applicant and interviewed him.
Mr Hartnett drew attention to the wide ranging nature of the Book of Evidence which had now been served on the applicant. Much of the evidence contained in it, he said, had little relevance to a charge of possession of firearms in Tallaght and appeared to be more nearly directed to a murder charge in connection with an unlawful killing which had taken place in Wexford. Had the prosecution deliberately delayed charging the applicant, Mr Hartnett asked, in the hope that they might yet gather enough evidence to charge him with murder? In this connection he referred to the oral evidence given by Ms Loftus during the course of the High Court trial.
Even if it were to be accepted that the prosecution acted properly in awaiting the completion of the prosecution of Martin McHugh, all further delay should have been avoided at least after March 1998. Instead of this there had been a series of unnecessary delays which had culminated in the fact that seven years had elapsed between the date of the alleged offences and the date of the applicant’s return for trial.
Counsel for the applicant referred to the identification of the right to an expeditious trial in a series of cases. In particular he referred to the State (O’Connell) v Fawsitt [1986] I.R. 262 at page 362 where the court held:
“The Constitution guarantees to every citizen that the trial of a person charged with a criminal offence will not be delayed excessively; or, to express the same proposition in positive terms, that the trial will be heard ‘with reasonable expedition’. If the phrase ‘culpable delay’ was intended to convey that the accused was entitled to be protected from and only from that type of delay which is caused by an intentional abuse of the rights of the accused, or neglect to make use of available facilities to prosecute the charge – and I doubt very much that that is what the then President of the High Court had in mind – I would respectfully reject that as an accurate description of the right of the accused in this connection…at the end of the day the test will be whether in all the relevant circumstances reasonable expedition was achieved.”

In Director of Public Prosecutions v Barry Byrne [1994] 2 I.R. 236 Finlay C.J. stated:
“In many instances delay or lapse of time between the date of an alleged offence and the date of a proposed trial may have the consequence of creating a real or probable risk that the accused will be subjected to an unfair trial. This can arise in either of two ways. A court whose jurisdiction is invoked to prevent such an invasion of constitutional rights might be satisfied, from an excessive length of time itself, to raise an inference that the risk of an unfair trial had been established as a reality. More frequently (as arose in the State (O’Connell) v Fawsitt [1986] I.R. 362) the accused will be in a position to establish on facts the real risk of a particular prejudice which would render the trial unfair.

Whilst such cases are, I am satisfied, instances of one of the more serious consequences of a delay in the trial of a person on a criminal charge, they are not the only potential consequences…Having reached that conclusion I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined.”

With regard to the delays which occurred subsequent to March 1998, Mr Hartnett relied on the judgment of Finlay C.J. in Cahalane v Judge Murphy [1994] 2 I.R., 262 at page 284, where the learned Chief Justice stated:-
“I find myself, however, in complete agreement, with Carney J. who failed to discover any reasonable explanation of such delays as occurred for example, between the conclusion of the last District Court process in1989 and the direction of the Director of Public Prosecutions ten or eleven months later and equally significantly the delay between the direction of the Director of Public Prosecutions and the actual charging of the accused which was almost a year. Furthermore, the manner in which the problems arising from the taking of depositions at the request of the State was dealt with would appear to indicate a complete failure to give to the applicant’s undoubted right to an expeditious trial and the priority which it deserved. To take depositions in the District Court which are explained in the affidavit of the State Solicitor for the purpose of conveniencing the situation with regard to judges of the District Court and with regard to the availability of court accommodation at intervals of three, four and six months in a case which the accused had been charged almost four years after the last date on which he was alleged to have committed an offence is, it seems to me, utterly inconsistent with a clear recognition and vindication as any State authority would be obliged to give to the right of the applicant to an expeditious trial.”

Mr Hartnett submitted that the sequence of events in the case of the present applicant was closely comparable to the situation which had arisen in Cahalane v Judge Murphy.
Senior counsel for the Director, Mr Collins, referred to the matters contained in the Book of Evidence concerning the death of Stephen Murphy, which had occurred at a “biker’s rally” at Carnew in Co. Wexford. The applicant apparently was a member of a biker’s club known as “The Family”. The evidence of Mr Broughall was that the applicant had told him he had a gun “for the weekend”. Mr Broughall had been asked to check the gun because he had formerly been in the Army.
Mr Collins pointed out that the evidence of Martin McHugh had come to light only during the investigation into the murder of Veronica Guerin. Until the prosecution of Mr McHugh was completed he could not have been compelled to give evidence at any proposed trial of the applicant as this would have involved self-incrimination. Counsel submitted that, as far as delay was concerned, time began to run only from March 1998, the date of the conviction and sentence of Mr McHugh.
Mr Collins submitted that the right to an expeditious trial did not exist in a vacuum but existed to protect certain rights of the accused person. The rights of the applicant must be balanced against the right of the community to prosecute; the community’s right was stronger where a serious charge, such as possession of firearms was in question.
Senior counsel for the director accepted that the right to a trial with reasonable expedition had long been recognised in the Anglo-American system of justice. This had been noted by Keane C.J. in his judgment in P.C. v Director of Public Prosecutions [1999] 2 IR 25. Mr Collins submitted that in this jurisdiction the first explicit recognition of the right to trial with reasonable expedition appeared to be the judgment of Gannon J. in the State (Healy) v Donoghue [ 1976] I.R. 325, 336. Gannon J. again considered the question in O’Flynn v Clifford [1988] I.R. 740 where the learned judge observed (at page 744):
“It is not the fact of delay but rather the effect of delay which is a primary factor, the test being whether or not the accused would have a fair trial.”

Mr Collins went on to refer to the judgment of the United States Supreme Court in United States v Marion (1971) 404 U.S. 307 and Barker v Wingo (1972) 407 U.S. 514. In both these cases the United States Supreme Court had held that the Sixth Amendment (of the United States Constitution) guarantee of a speedy trial applied only when a criminal prosecution had begun and “extends only to those persons who have been ‘accused’ in the course of that prosecution”.

Counsel for the Director conceded that, although no limitation period applied to prosecutions on indictment, the applicant became entitled to assert his right to an expeditious trial in March 1998. He was therefore entitled to call for an explanation for the lapse of time between that date and the date of his return for trial in January 2001. The respondent had fully explained and excused the relevant lapse of time in the affidavit filed on behalf of the respondent by Ms Loftus and in her additional oral evidence.
Mr Collins argued that the applicant must do more than simply debunk the explanation given for the lapse of time in prosecuting charges laid against him. Having identified an unexplained or unexcused lapse of time for which the respondent was responsible, a person seeking to rely upon the right to a trial with reasonable expedition must proceed to demonstrate that one of what was described in Barker v Wingo as “…the interests of defendants which the speedy trial right was designed to protect” had been interfered with. These interests included liberty of the person, fairness of the trial process and the anxiety and concern of an accused person resulting from delay. In the present case the applicant had demonstrated no clear interference with any of these rights. He made only a vague statement that he was no longer in touch with his former friends in the biking community. Mr Collins went on to refer to the decision of the High Court (later upheld by this court) in McKenna v The Presiding Judge of the Dublin District Court (High Court unreported 14th January 2000) and the decision of this court in McNamara v McGruairc (unreported 5th July 2001). In both these cases delay on the part of the prosecution had been characterised as excessive, yet the delay was held not to be prejudicial to the applicant and the relief of prohibition was refused. Mr Collins submitted that in the present case even if the court held that the delay in the prosecution had not been properly explained or excused there was no reason to suppose that the applicant could not have a fair trial.

CONCLUSIONS
There have been a considerable number of cases both in the High Court and in this court where applicants have sought to prohibit their trials on grounds of delay. Many of them have been opened to the court in the present case both by way of written legal submissions and in the course of oral argument. A majority of these cases, however, deal with lengthy delays in the making of a complaint in cases involving allegations of sexual assault or sexual abuse, often said to have taken place when the complainant was a child or a very young person. In these cases, with one or two exceptions, there are no allegations of serious delay on the part of the prosecuting authorities. Thus, while helpful general principles regarding delay and the constitutional right to an expeditious trial are to be found in the judgments in those cases, those principles are stated against a very different factual background.
In the present case the sole complaint is a prosecutorial delay. In this way the applicant’s case is more nearly comparable to, for example, Director of Public Prosecutions v Byrne [1994] 2 I.R. 237, to Cahalane v Murphy [1994] 2 I.R. 262, to McKenna v The Presiding Judge of the Dublin Circuit Criminal Court (unreported Kelly J. 14th January 2000) or to McNamara v MacGruairc (unreported, Supreme Court 5th July 2001). Counsel for the applicant has relied on the important principles set out in the judgments of this court in Director of Public Prosecutions v Byrne. That case, however, was decided in the context of a summary prosecution in the District Court where the delay complained of was ten months. The delay in Cahalane v Murphy was some four years, in the McKenna case, which was very complex, it was in or about seven years and in McNamara v MacGruairc something over two years. It will be seen, therefore, that the delay of nearly seven years between the date of the alleged offences and the return for trial in the present case is among the more serious cases of purely prosecutorial delay.
In his judgment in Director of Public Prosecutions v Byrne [1994] 2 I.R. 237 Blayney J. spoke of the correct approach to such cases. At page 253 of the report Blayney J. stated:-
“Where, however, the delay is excessive, a prosecution may be dismissed. In such case prejudice may be inferred. In R v Telford JJ., ex parte Badhan [1991] 2 Q.B. 78, to which I have already referred, Mann L.J. said in his judgment at page 91:-

‘Where the period of delay is long, then it can be legitimate for the court to infer prejudice without proof of specific prejudice…’

And the position is the same where there has been no delay but there has been a long lapse of time for which the prosecution is not to blame. To quote again from the judgment of Mann L.J. at page 91:-
‘As in cases of delay, we also think that where the elapse of time is a long one, it may be inferred that a fair trial is no longer possible. Whether it is legitimate to draw the inference will depend on the circumstances of the case. Thus it may not be readily drawn where the prosecution is wholly dependant on available documents.’

I would respectfully adopt and follow these statements of the law. But there still remains the difficult question of determining when a delay or lapse of time is excessive. It seems to me that no clear rule can be laid down in regard to this. It will depend on the particular circumstances of each case. Matters to be taken into account would include the nature of the offence, the cause of the delay and the possibility that the defence will be impaired (see Bell v Director of Public Prosecutions [1985] AC 937).”

In the same case Denham, J., dealt with the relevant approach thus (at page 260):-
“Whereas there is no specific constitutional right to a speedy trial there is an implied right to reasonable expedition, under the due process clause. An accused is entitled to have a trial free of abuse of process.

I am satisfied that this right falls to be analysed on an ad hoc basis in determining whether that right has been infringed. The four factors identified by the Supreme Court in the United States of America in considering their speedy trial right in Barker v Wingo [1972] 407 U.S. 514 on matters, inter alia, to be considered. Powell J. stated (at page 530):-

‘A balancing test necessarily compels the courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for delay, the defendant’s assertion of his right, and prejudice to the defendant. ‘

In regard to prejudice the court identified three of the interests of the defendant to be protected as:

(I) to prevent pre-trial incarceration;
(II) to minimise anxiety and concern of the accused; and
(III) to let limit the possibility that the defence will be impaired.’

The court said:-

‘Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die, or disappear during a delay, the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.’”

It appears to me that such an approach, which takes into account the actual circumstances of the case, is clearly correct.
In the present case the delay complained of by the applicant can be divided into two periods, the first being from the alleged offence in April 1994 until the completion of the prosecution of Martin McHugh in March 1998, and the second being the period from March 1998 until the return for trial at the end of January 2001.
During the first period the investigating authorities were continuing their work of investigation. The respondent explains this period by referring to this investigation and to the information acquired through the investigation of the murder of Veronica Guerin. The decision was then taken that it would be neither proper nor practical to attempt to use the evidence of Martin McHugh in the prosecution of the applicant until the prosecution of Martin McHugh himself was completed. The applicant casts doubts on this reasoning and suggests that the prosecution was deliberately delaying matters in the hope of being able to prosecute for murder. On the evidence before this court it might indeed be inferred that it was originally intended to charge the applicant with murder. The wide ranging matters contained in the Book of Evidence which was eventually served on him tend to indicate this. More strikingly, Ms Loftus in her oral evidence stated (at page 9 of the transcript):-

“It is clear from the directions that the only charge Mr Blood was being considered for was a murder charge. It is clear the D.P.P. was awaiting Mr McHugh’s conviction and also waiting to see if he was amenable to being a witness but that was in contemplation of a murder charge. The firearms charges were a mere detail.”

All of this, however, forms part of the functions of both the Garda Siochana in the investigation of offences and of the Director of Public Prosecutions in initiating prosecutions.
In O’Flynn v Clifford [1988] I.R. 740 Gannon J. in the High Court made the following observations with regard to the commencement of the right to an expeditious trial: (at page 744):-

“There is I think an important distinction between the stage before charge, when a matter of a suspected crime has been investigated, and the stage after an accused person has been charged and so is subjected to the directions of a court. Before any charge of a criminal offence is preferred against a person there is a presumption of innocence, and the constitutional protection of his liberty and his good name…But from the time a criminal charge is made against a person resort to court procedure is obligatory and must be prompt. The presumption of innocence is not simply a mere legal formality; it is a necessary corollary of the constitutional rights in Article 40 of the Constitution and of those basic human rights which are anterior to the Constitution…But the supposed existence of unexpressed suspicion of criminality in the mind of another in relation to a person cannot in law or in reason confer any rights cognisable by the courts upon the person to whom the suspicions relate. A person who is a mere suspect (and therefore presumed innocent) has no legal right to have a charge made against him nor to have some legal process diligently or expeditiously pursued, by arrest or by summons, to bring him before a court. The public interest and good sense require that every crime be properly investigated and that the offender be expeditiously brought to justice. But the public interest also requires diligence and conscientious care in the investigation of crime, and the assembly and presentation of cogent evidence in support of a prosecution. It is no part of the function of the courts to participate either in the investigation of criminal offences or the supervisory direction of those engaged in that work. The courts must remain detached and independent in relation to all the matters antecedent to the laying of a charge against a person of a criminal offence.”

On appeal in this court Walsh J., speaking for the court, fully agreed with the reasoning of Gannon J. At page 528 of the report Wash J. stated:

“It seems proper to infer that when the applicants were released from the arrest effected under section 30 it was because there was no sufficient evidence which would warrant bringing charges against him. Quite clearly charges ought not to be brought against persons if there is no evidence to justify them. Wherever a crime has been committed or is thought to have been committed it is the function of the Garda Siochana first of all to ascertain that a crime has been committed, and, secondly, to see what evidence they can gather in relation to the commission of the offence which would point towards the justification for charging of some particular person or persons with the offence. Depending on the complexity of the case and on other such features some considerable time could elapse before the Garda authorities or the prosecuting authorities feel that there is sufficient evidence to justify the bringing of a charge. It is quite clear that once a charge has been brought then the matter must be prosecuted without undue delay as otherwise that might prejudice a fair trial. However with regard to the interval between the forming of a suspicion and a decision to charge everything depends upon the circumstances of the case. In my view, once a decision to charge a person has been taken then it should be effected without delay and the person brought to trial… In the present case there is no evidence as to when the authorities felt they had sufficient evidence to warrant the bringing of charges and when they decided to bring charges.”

In my view the Director of Public Prosecutions has demonstrated tenable and justifiable reasons why the charging of the applicant with these offences was delayed until after the completion of the prosecution of Mr McHugh.
In the passage from his judgment quoted above the learned trial judge in this case held that it was a matter for the Director to decide upon what evidence he would prosecute any particular charge, and that it was not the function of the court to substitute its view for that of the Director who was charged at law with the decision who, when, with what charge and on what evidence to prosecute in any case. In my view the learned trial judge was correct in so holding; the applicant may not rely on the period of time up to March 1998 in seeking to prevent his trial.
While the lapse of time from the alleged commission of the offences up to March 1998 was justifiable it was, however, a very considerable period. Thereafter it was undoubtedly the duty of all concerned to proceed with all reasonable speed. As Walsh J. stated in O’Flynn v Clifford (at page 528):

“Once a decision to charge a person has been taken then it should be effected without undue delay.”

In reality the decision to charge Mr Blood had been reached as soon as it was known that Mr McHugh’s evidence was available following his prosecution; it only remained to decide the nature of the offence with which Mr Blood was to be charged. There is no proper explanation for a number of the periods of delay which occurred during this latter period. It is impossible to understand why it took five months for the news of Mr McHugh’s conviction to travel from the Circuit Court to the Office of the Director of Public Prosecutions. Further time was lost in endeavouring to find the lost file in the Director’s office. Another delay was due to what was basically a refusal by the local Gardai (and possibly the local State Solicitor) to accept the first instruction of the Director of Public Prosecutions that the applicant was to be charged with firearms offences. There was also a delay of two and a half months between the time the Gardai received the confirmatory instructions of the Director and the time of the applicant’s actual arrest and charge. No allegation is made that the applicant was ever avoiding arrest or could not be found. All these delays were in one way or another blameworthy. They were to some extent explained but were not properly excused.
The matter of the depositions is somewhat different. In his written submissions counsel for the respondent submits that at least part of this delay arose as a consequence of the applicant exercising his right to have depositions taken. It is undoubted that the applicant had a right to take this course. He also had a right to have the matter dealt with expeditiously. In this case the delays which are said to have occurred as a result of difficulties in the District Court diary were exacerbated by the failure of the prosecution to appear at all on the 14th June 2000. The matter of delay in hearing depositions due to District Court listing difficulties was dealt wth by Finlay C.J. in this court in Cahalane v Murphy [1994] 2 I.R. 262 at page 284 as quoted earlier in this judgment.

“… the manner in which the problems arising from the taking of depositions at the request of the State was dealt with would appear to indicate a complete failure to give the applicant’s undoubted right to an expeditious trial the priority which it deserved. To take depositions in the District Court which are explained in the affidavit of the State Solicitor for the purpose of conveniencing the situation with regard to judges of the District Court and with regard to the availability of court accommodation at intervals of three, four and six months in a case which the accused had been charged almost four years after the last date on which he was alleged to have committed an offence is, it seems to me, utterly inconsistent with a clear recognition and vindication as any State Authority would be obliged to give to the right of the applicant to an expeditious trial.”

It seems to me, therefore, that the cumulative delay occurring between March 1998 and January 2001 was inordinate or excessive and that the respondent has failed properly to excuse this delay. It remains to be decided whether this delay either in itself or in conjunction with other matters is sufficient to require the prohibition of the further prosecution of the applicant.
Counsel for the respondent has argued that the applicant has shown no cogent evidence that delay will in any way prejudice his defence. Counsel for the applicant, on the other hand, has referred to the court to a number of dicta in favour of the principle that a presumption of an unfair trial may be inferred from delay in itself.
In Director of Public Prosecutions v Byrne (quoted above) Finlay C.J. considered the origin and meaning of the right to an expeditious trial as follows (at page 245):

“The right to reasonable expedition in the trial of a criminal charge would appear clearly to precede, as a natural right, not only the Constitution of Ireland, but the Constitution of the United States as well, and from a historical point of view would appear to derive directly from the Magna Carta and to be a part of the common law. The reason for it has been succinctly identified by the judgments of the Supreme Court of the United States in Barker v Wingo (1972) 407 U.S. 514 where Powell J. at page 532 stated as follows:-
‘Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect.
This court has identified three such interests:

(I) To prevent oppressive pre-trial incarceration;
(II) To minimise anxiety and concern of the accused; and
(III) To limit the possibilities that the defence will be impaired’…

I am satisfied that it represents an accurate if extremely brief identification of some of the constitutional rights which in our jurisdiction are protected by the provisions of Article 38, s.1 of the Constitution which includes protection for what has been described by Gannon J. in the State (Healy) v Donoghue [1976] I.R. 325 as the right to reasonable expedition.

Having reached that conclusion I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive pre-trial detention, or that it created a risk or probability that the accused’s capacity to defend himself would be impaired. This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined.”

In the leading case of P.C. v the Director of Public Prosecutions [1999] 2 IR 25, Keane J. (as he then was) stated in this court (at page 68):-

“Manifestly, in cases where the court is asked to prohibit the continuance of a prosecution on the ground of unreasonable delay, the paramount concern of the court will be whether it has been established that there is a real and serious risk of an unfair trial: that, after all, is what is meant by the guarantee of a trial ‘in due course of law’. The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even though it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired.”

In Barker v Wingo the U.S. Supreme Court identified three of the interests of the defendants to be protected as:
(I) to prevent oppressive pre-trial incarceration;
(II) to minimise anxiety and concern of the accused; and
(III) to limit the possibility that the defence will be impaired.
The court said (at page 530):-
“Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay the prejudice is obvious. There is also prejudice if defence witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown.” (My emphasis)

The effect of the passage of time on the memory of third party witnesses was discussed by Hardiman J. in J. v Director of Public Prosecutions (Supreme Court, unreported 19 December 2003), which case, indeed, was mentioned by Mr Justice Hardiman in the course of oral argument in the present case. In J v Director of Public Prosecutions the witness in question was a retired detective sergeant of An Garda Siochana. There was no question whatever about his honesty and integrity. He was asked to give evidence about a vital conversation which he had with the applicant in that case some ten or eleven years before he gave evidence in the High Court. Asked whether he was absolutely certain in his recollection and the detail of his recollection he said “absolutely no doubt about it”. He denied the possibility of mistake. Almost immediately afterwards, confronted with some documents, he acknowledged that he was in fact radically mistaken: he seems to have confused one case with another. Commenting on this Hardiman J. in his judgment said:-
“Even more chilling is the fact that the true position emerged only out of skilful cross-examination. The basis of this cross-examination, however, was the fortuitous survival of a written statement in a discontinued case and of ten year old private letters. But for this there is every reason to believe that the detective sergeant’s subjectively honest but radically mistaken evidence would have been accepted at face value. Indeed, the prosecution

were in possession of the written statement but apparently failed to notice that it was inconsistent with the sergeant’s affidavit. These facts, in my view, graphically illustrate the acute dangers to the prospects of a trial in due course of law which are posed even by relatively moderate lapses of time. In my view the lessons of such cases – that lapse of time can distort in a radical manner the memory even of trained and experienced people – must be appreciated. So must the chilling fact that this process can occur without leaving any trace so that the mistaken witness confidently and honestly asserts what is false, quite apart from forgetting what is true.”

The particular need to avoid further delay in a prosecution where there has been a prior unavoidable delay was dealt with by Geoghegan J. in his judgment in the High Court in P.P. v The Director of Public Prosecutions [2000] 1 IR 403. In that case there had been a lengthy delay on the part of the complainant and also further delay in the course of the prosecution. At page 409 of the report Geoghegan J. stated:-
“Counsel for the applicant argues that there was such (prosecutorial) delay in this case. I think that counsel for the applicant is clearly correct. It is not acceptable, and in my view, is a breach of a defendant’s rights under article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities.”

That was, of course, a case involving sexual offences, but the principle that it is entirely wrong that unnecessary and avoidable delay should be permitted to follow a period of necessary or unavoidable delay applies equally, it seems to me, in other cases.
In that case Geoghegan J. granted relief by way of judicial review in the form of an injunction preventing the Director of Public Prosecutions from further proceeding with the charges which had been laid against the applicant.
Further prosecution was also prohibited in the case of Fitzpatrick v Shields [1989] I.L.R.M. 243. In that case the applicant was arrested on 7th May 1986 in relation to larceny offences alleged to have been committed on 14th February 1983. A Book of Evidence was served on him on 25th June 1986 but this was not complete. On 20th November 1986 the prosecution attempted to take depositions from witnesses who had been omitted from the Book of Evidence but an issue arose as to the validity of an order under the Bankers Books Evidence Acts. As a result the matter was adjourned from time to time and for various reasons until 20th June 1987 on which date counsel for the applicant applied to have the case struck out on the basis of delay. Subsequently an order of prohibition was sought in the High Court. In granting the relief sought by the applicant Carroll J. surveyed the various periods of delay which had occurred and stated (at page 244):-
“The State cannot just walk away from this period on the ground that the detective who was initially investigating the matter was transferred from the Garda Fraud Squad and that consequently the investigation had to be handed over to another detective… The cumulative effect of all these delays is that a long delay at an early stage of the proceedings means that a short delay at a later stage which might have been objectionable is no longer tolerable. The delay in the preparation of the Book of Evidence is not tolerable and taking all the circumstances of this case into account I hold that the order of prohibition sought by the applicant should be granted.”

I would accept that the applicant in the present has not provided very strong evidence of specific prejudice resulting from the delay which has occurred in prosecuting the offences with which he has been charged. However, it seems from the material contained in the Book of Evidence which was served on the applicant that all the events connected both with the death of Stephen Murphy and with the offences alleged against the applicant occurred in the context of what the applicant described as “motor bicycle fraternity”. In those circumstances his evidence that he has ceased to associate with any of that fraternity and has lost contact with any potential witnesses is of at least of some importance. He appears also to have suffered stress arising from the impending proceedings which has contributed the breakdown of his marriage. A further consideration to be taken into account when assessing prosecutorial delay in the circumstances of this case is the fact that the applicant, who in 1994 and 1996 was being investigated in connection with the charge of murder, is now charged with a significantly less serious offence.
In D v Director of Public Prosecutions [1994] 2 I.R. 465 Denham J. in her judgment at page 474 discussed the balance between the community’s right to prosecute crime and the right to a fair trial:

“The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.

A court must give some consideration to a community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.

If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.”

The right to an expeditious trial is implied in the right to a fair trial. There is a danger that a lengthy delay in itself will, through its effect on the memory of potential witnesses and of the accused person himself, render a trial unfair. (see J v D.P.P. quoted above). In the case of the applicant his loss of contact with his motor cycling associates, together with his anxiety and concern at the impending proceedings against him and the fact that he has now charged with a less serious offence, must be added factors.
As has already been pointed out, cases involving delay in prosecution, or the denial of the right to an expeditious trial, must be decided on an ad hoc basis, in the particular circumstances of the case. In the particular circumstances of this case, taken as a whole, it seems to me that the delays in the latter period of the prosecution of the applicant amount to a denial of his right to an expeditious trial. There is also a real danger that this may lead to an unfair trial. I would allow the appeal and grant the relief sought by the applicant.






Darren Blood v DPP