Judgment Title: PM -v- DPP
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Kearns J.
Judgment by: Kearns J.
Status of Judgment: Approved
Notes on Memo: Dismiss Appeal and Cross Appeal
THE SUPREME COURTMurray C.J.
[S.C. No. 265 of 2004]
THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT of Mr. Justice Kearns delivered the 5th day of April, 2006
The issue to be decided in this appeal is whether, in cases where a considerable period of time has elapsed between the dates of alleged offences and the making of an initial complaint by the victim and where, in addition, there has been blameworthy delay thereafter by the prosecution, the trial should be prohibited by reason of that blameworthy delay alone, or whether the accused person should also be required to demonstrate that some interest protected by the right to an expeditious trial has been so interfered with as to entitle him to the relief sought.
The applicant was born on the 9th September, 1941. On the 21st September, 2001, the applicant was sent forward for trial on three counts of gross indecency alleged to have been committed with G.L. on various dates between the 1st August, 1982, and the 31st December, 1985. G.L. is the applicant’s nephew, the complainant, who was born on the 3rd May, 1969. He was aged between 13 and 16 years at the time when the alleged offences were committed. The applicant was aged between 41 and 44 years at that time. The complainant lived with his family in a house next door to the applicant’s family home. The offences are alleged to have been committed in G.L.’s family home.
G.L. made statements of complaint to Garda Brendan Kelly at Tallaght Garda Station in February, 1998. He was further interviewed by Garda Kelly on the 4th April, 1998, in relation to the dates and times of the alleged offences. On the 20th July, 1999, the applicant was arrested and questioned in relation to the alleged offences. A decision to prosecute was made by the respondent on the 7th November, 2000. As a result the applicant was arrested, charged and cautioned on the 11th December, 2000.
In seeking to have his trial prohibited, the applicant relied both on the lapse of time between the dates of the alleged offences and the making of a formal complaint and also on the lapse of time between the making of that complaint and the date of being charged. Having considered the evidence of both G.L. and a clinical psychologist, Dr. Melissa Darmody, who was cross-examined by counsel for the respondent, O’Caoimh J. in the High Court concluded that the lapse of time between the alleged offences and G.L.’s complaint was referable to the accused’s own actions. The learned High Court judge further declared in a judgment delivered on the 7th May, 2004, that he was not satisfied that the degree to which the applicant’s ability to defend himself had been impaired was such that the trial should not be allowed to proceed on that particular account.
O’Caoimh J. however, concluded that a period of approximately 34 months which had elapsed between the making of the initial complaint and the charging of the applicant was inadequately explained. The court concluded that there had been “blameworthy delay” for which the respondent was responsible during that 34 month period.
The issue that then arose was whether it was necessary in the circumstances of any such case for an applicant to identify any particular circumstances other than blameworthy delay on the part of the prosecution before securing the relief sought. In determining this issue, O’Caoimh J. considered the leading authorities opened to him on the point, namely, P.P. v. D.P.P.  1 IR 403, a decision of the High Court, per Geoghegan J., B.F. v. D.P.P.  1 IR 656, a decision of the Supreme Court, per Geoghegan J., McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court & D.P.P. (Unreported, High Court, Kelly J., 14th January, 2000), McNamara v. MacGruairc (Unreported, Supreme Court, 5th July, 2001) and P.M. v. Malone  2 IR 560.
The learned High Court judge observed that these authorities disclosed two different approaches towards delay attributable to the prosecuting authorities. The first, as expressed in P.P. v. D.P.P. and B.F. v. D.P.P., is to the effect that where there has been a long lapse of time in the making of a complaint, it is particularly important that there should be no blameworthy delay on the part of the Gardaí or the Director of Public Prosecutions. Where there is such delay the prosecution should be stayed even in the absence of proof of any prejudice to the applicant. However, on the other hand, the decisions in McKenna v. The Presiding Judge of the Dublin Circuit Criminal Court & D.P.P., McNamara v. MacGruairc and P.M. v. Malone support the proposition that, even where such blameworthy delay is found to exist, the applicant must go on and satisfy the court that he has suffered or is in a real danger of suffering some form of prejudice as a consequence of this delay in order to obtain the relief sought. In the instant case, counsel for the appellant argued that the learned High Court judge effectively decided to apply P.P. v. D.P.P. to hold that no prejudice need be established where prosecutorial delay was established and in consequence made an order restraining further prosecution of the respondent.
The appeal is accordingly brought to determine whether the finding of the High Court judge in this respect is correct in law. The appellant does not contend, however, that unexplained delays for which the prosecution bears responsibility are to be disregarded when determining whether an applicant is entitled to a stay by reason of the lapse of time between the commission of the alleged offences and the trial. Moreover, the appellant accepts the premise that where there has been a long delay between the commission of the alleged offences and their coming to the attention of the prosecution authorities, the latter are under a special obligation to expedite any subsequent investigation and prosecution. What the appellant contests, however, is the notion that an applicant is entitled to a stay upon criminal charges solely by reason of delay for which the prosecution authorities are deemed to be responsible. In written submissions lodged in advance of this appeal, the appellant invited this Court to determine that the principles enunciated in P.M. v. Malone differed from and were to be preferred to those indicated in P.P. v. D.P.P.
In a nutshell, therefore, the appellant’s sole point on the appeal is to invite this Court to determine whether, in a case of blameworthy prosecutorial delay, there is nonetheless an obligation on an applicant to establish in addition some degree of prejudice referable to the breach of his right to an expeditious trial which would entitle him to a prohibition order.
The respondent in turn brought a cross-appeal from the finding of the learned High Court judge that the delay on the part of the complainant in making a complaint in this particular instance was referable to the actions of the applicant. In particular, the learned High Court judge is alleged to have erred in relying on the evidence of Dr. Darmody and in finding that it was evidence which was, in conjunction with the complainant’s own evidence, sufficiently explanatory of the reason for delay in making a complaint and that such delay was attributable to the circumstances arising from the abuse.
In particular, complaints were made that Dr. Darmody did not consult with any of the psychiatrists who had treated G.L. during much of the period of the delay, and, in particular, a Dr. McGrath to whom G.L. had, in 1987, disclosed the sexual offences alleged. It was further alleged that, by reason of the fact that Dr. Darmody is a psychologist and not a psychiatrist, she was inadequately qualified to comment upon the complainant’s past psychiatric history. It was also alleged that Dr. Darmody did not adequately enquire into or explore that history with G.L.
The Right to Trial with a Reasonable Expedition
It is common case that every person charged with a criminal offence is entitled under the Constitution to a trial with reasonable expedition. This is reflected in the leading decisions of In re Singer  97 I.L.T.R 130, State (Healy) v. Donoghue  I.R. 325 and State (O’Connell) v. Fawsitt  I.R. 362. In P.C. v. D.P.P.  2 IR 25, Keane J. observed that the right to a trial with reasonable expedition had to be recognised “as an essential feature of the Anglo-American system of criminal justice for many centuries”.
In Barker v. Wingo 407 U.S. 514, (1972) a unanimous United States Supreme Court observed that the right to a speedy trial is “generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” The decision in that case clarified that, in addition to ensuring fair procedures for accused persons, there was a societal interest in providing a speedy trial separate from and sometimes opposed to, the interests of accused persons. It was pointed out that deprivation of the right to a speedy trial may even work to the advantage of an accused person and that delay was not an uncommon defence tactic, since it had the effect of weakening the prosecution case, upon which the burden of proof ultimately lay at the criminal trial. It follows therefore that the deprivation of the right to a speedy trial does not per se prejudice an accused person’s ability to defend himself.
The United States Supreme
Court went on to state that the right to a speedy trial was
other procedural rights in that it was impossible to determine with
precision the circumstances in which it had been denied. As a
consequence, it adopted a balancing test, the operation of which
compelled courts to approach speedy trial cases on an
basis. It identified
at least four factors to be taken into account: the length of the
delay, the reason for the delay, the accused’s assertion of his
right and prejudice. Under the last of these headings, Powell J.
identified three interests protected by the right to a trial with
Absence of evidence of prejudice, in the sense described in the previous paragraph, has in some instances led the High Court and this Court to decline to stay trials even in the face of gross and culpable prosecution delay. Thus in McKenna v. The Presiding Judge of the Circuit Criminal Court, the High Court (Kelly J.,) found that there was “inordinate and inexcusable delay” of five and a half years for which the Director of Public Prosecutions was responsible. However, in that case the Court refused to prohibit the applicant’s trial because he had failed to demonstrate how that delay interfered with any interest protected by the expeditious trial right.
A similar approach was adopted in McNamara v. MacGruairc (Unreported, Supreme Court, 5th July, 2001) where the applicant was accused of having committed an assault occasioning actual bodily harm in August, 1992. Although the greater part of the garda investigation was completed by the end of that month, the applicant was not arrested and charged until the 14th November, 1994, and the book of evidence was not served until a month later. This Court found that the delay was excessive, but went on to categorise the issue in the case as to whether delay, such as it was, was prejudicial to the applicant, having regard to the circumstances of the case. A plea of general prejudice was rejected. There was no evidence that a particular line of defence had been undermined. There was no suggestion that the applicant had been led to believe that he would not be prosecuted or that he had established the existence of any particular anxiety or concern as a result of the delay. In those circumstances, it was held that it would be unjust and unnecessary to grant the relief sought.
However, in P.P. v. D.P.P.  1 IR 403, the consequences of post complaint delay were found to be of particular significance. At p.409 of the report, Geoghegan J. stated as follows:-
However, the interference with the right to a speedy trial was treated somewhat differently in P.M. v. Malone  2 IR 560, in which Keane C.J. analysed the consequences for an accused of “significant and culpable delay” to which he has not contributed. At p.572 he stated;-
In this case, the greater part of the delay of which the applicant complains occurred before he was charged with any offence. Undoubtedly, there is a distinction between the anxiety and concern of an accused person after he has been charged and before he has been charged. If the accused’s right to a reasonably expeditious trial is violated by culpable delay which is so significant as, objectively considered, to cause him anxiety and concern, it would follow that there would be a ground for prohibiting his further trial where the delay occurred after he had been charged.”
Further reliance was placed by counsel for the appellant upon the decision of this Court in Blood v. D.P.P. (Unreported, Supreme Court, 2nd March, 2005) a case in which there had been considerable prosecutorial delay. However, instead of finding in favour of the applicant by reason of the inordinate delay that had arisen in the prosecution of the charges, McGuinness J. examined the impact of that delay upon his circumstances. Mr. Collins, senior counsel for the appellant, submitted that that exercise would have been entirely unnecessary if the existence of blameworthy prosecutorial delay was of itself sufficient to justify staying criminal proceedings. McGuinness J concluded her judgment by stating:-
As part of the balancing exercise it should also be borne in mind that an order of prohibition may not be the only remedy available in such circumstances. A court may have the ability to direct that a particular trial be brought on speedily and be given priority, although precisely how this would be policed or operated in practice may be problematic.
I am unimpressed by Mr. Collins’ submission that blameworthy prosecutorial delay should resonate as a mitigating factor at the sentencing stage in the event that the trial proceeds and the applicant is convicted. The difficulty in this concept as advanced by Mr. Collins is that it makes no distinction between an applicant subsequently found to be innocent and one found to be guilty. The person found to be innocent obtains no benefit whatsoever from such an approach, and indeed is the very person who, on that account, is much more likely to have suffered far greater stress and anxiety prior to trial and acquittal. That is not to say that, this context apart, a sentencing judge may not have regard to a lengthy interval of time between the time the offender was first confronted with the offence and the eventual conviction and sentence.
In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests protected by the right to expeditious trial must also be shown to have been so interfered with such as would entitle the applicant to relief.
Applying that test to the facts of the instant case, I am quite satisfied that O’Caoimh J. correctly determined the case in relation to prosecutorial delay having found significant blameworthy prosecutorial delay and having regard to the evidence of significantly increased anxiety on the part of the applicant arising from such delay.
“The preferring of the charges initially laid against me and the preferring of the Statement of Charges has had a profoundly adverse effect on me. My anxiety and worry in respect of the matters alleged have been significantly exacerbated by my apprehension and fear that the lapse of time outlined above has rendered me unable to adduce evidence of an exculpatory nature that, if these offences had been prosecuted with expedition, could have been put before the court of trial.”
Those being the circumstances, the outcome of the balancing exercise which must be undertaken in relation to this issue must, it seems to me, be resolved in favour of the applicant.
Equally, in relation to the cross-appeal, I see no basis whatsoever for interfering with the findings of the learned High Court judge.
This was not a case where a skimpy consultation provided the basis for the views expressed by Dr. Darmody.
As her report dated the 22nd May, 2002, makes clear, she met with G.L. on three occasions for approximately one and a half hours on each occasion. In addition she reviewed the Book of Evidence prepared for the case which included medical and psychological reports from Dr. Patrick McGrath, Martin O’Sullivan, Blathnia Rafftery and Catherine Sheehan. She also consulted Catherine Sheehan, a counsellor, who saw G.L. at the Eastern Health Board’s counselling service for 21 sessions between 1997 and 1998.
She also had the benefit when giving evidence of the voluminous psychological report prepared in relation to the complainant by psychologists Davina Walshe and Patrick Randall.
In addition, Dr. Darmody had impressive qualifications in psychology from both the United States and Britain, had published various articles on counselling and psychotherapy and had twelve years clinical experience.
There was thus, in my opinion, ample material upon which Dr. Darmody could base her professional view that the complainant’s delay in bringing forward his complaint was attributable to the actions of the accused.
It was her professional belief that the complainant’s delay in reporting was justified from 1983 until 1989 by the age and power differential between himself and his uncle. From the time of 1989 until 1997, G.L. did not seem to be in a fit mental or physical state due to his diagnosed medical condition to undertake the distressing and demanding task of making a formal complaint to An Garda Síochána. Dr. Darmody’s reports also refer to the family dynamic which made it extremely difficult for the complainant to come forward at an earlier stage. The fact that the delay is explained in multi-factoral terms does not detract from her view that the complainant, as a vulnerable individual, was unable to come forward at an earlier stage as a result of the actions of the applicant.
I would therefore uphold the
findings of the learned High Court judge in this respect also and
would dismiss both the appeal and cross-appeal.
JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of April 2006
I have had the advantage of reading in draft the judgment about to be delivered by Kearns J. who has expressed the view that the appeal should be dismissed having regard to the evidence before the High Court and in reliance on the following passage from the judgment of Keane C.J. in P.M. v. Malone  2 IR 560 at 572 analysing the consequences of prosecutorial delay.
“The first major consequence may be the loss of his liberty while the trial is pending … The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial …The third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision in Barker v. Wingo  407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne  2 I.R. 236, having previously been endorsed the by the Judicial Committee of the Privy Council in Bell v. D.P.P.  AC 937 and by Murphy J. in The State (O’Connell) v. Fawsitt  I.R. 362.
In this case the greater part of the delay of which the applicant complains occurred before he was charged with any offence. Undoubtedly, there is a distinction between the anxiety and concern of an accused person after he has been charged and before he has been charged. If the accused’s right to a reasonably expeditious trial is violated by culpable delay which is so significant as, objectively considered, to cause him anxiety and concern, it would follow that that would be a ground for prohibiting his further trial where the delay occurred after he had been charged.”
Kearns J. has then further relied on a passage at p. 581 of the judgment:
“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there was a real and substantial risk of an unfair trial, then as pointed out by Denham J. in D v. DPP  2 I.R. 465, the applicant’s right to a fair trial would necessarily outweigh the community’s right to prosecute. Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.”
One of the reasons why I feel constrained to write a short judgment of my own is because the learned High Court judge’s decision appears to have been based to a large extent on a decision of mine in the High Court in PP v. The DPP  1 IR 403. Notwithstanding the words I may have used in that judgment, I entirely accept that blameworthy prosecutorial delay does not automatically give rise to a right to an injunction. What I intended to convey was that in a case where there was very serious blameworthy delay on the part of the gardaí, prosecuting authorities should not necessarily be allowed to say that the extra delay caused no provable actual prejudice. The courts have a role in ensuring that the entire criminal process is fair but more importantly, the right to an expeditious trial which is a constitutional right is seriously infringed if there is substantial blameworthy delay on the part of the gardaí or the Director of Public Prosecutions and that is a factor which the court should take into account. I entirely agree that this may have to be balanced by the nature of the offence or some other factors in the particular case. The PP case was never appealed by the Director of Public Prosecutions and it has been regularly referred to in argument by counsel ever since. Hopefully, this is because, in practice, it has not been interpreted in the literal way adopted by the learned High Court judge in this case. I fully acknowledge, however, that it was my choice of wording which led him to that position.
The learned trial judge referred to unreported judgments in which trials were not stopped despite some blameworthy delay. Neither of the two cases i.e. McKenna v. The Presiding Judge of the Dublin Circuit Court or MacNamara v. Judge Uinsin MacGruairc were sex delay cases. Experience has shown that they must be regarded in a special category for obvious reasons. The McKenna case was a judgment given in the High Court by Kelly J. and he in fact referred with approval to the PP case but demonstrated that the facts and circumstances were totally different in McKenna. The MacNamara case was a decision of the Supreme Court in a judgment delivered by Murphy J. Quite apart from it being a non-sexual case it really bore no relationship to the circumstances dealt with in the PP case.
In my view, the position became clarified in BF v. The Director of Public Prosecutions  1 IR 656. That was a decision of this court in which I happened to give the judgment but it was agreed with by Keane C.J. and Murphy J. Although the PP case was referred to in the judgment, it is perfectly clear that the decision in BF took into account all the surrounding circumstances and the nature of the offence and not merely the prosecutorial delay. I do not think that there is any real conflict between BF v. DPP on the one hand and P.M. v. Malone cited above on the other. It is not without significance that Keane C.J. sat on both courts.
In summary, therefore, I entirely agree that a balancing exercise must be carried out but if there is serious blameworthy prosecutorial delay that is one factor in itself and of itself that must be put into the melting pot when the balancing exercise is being considered.
PM v. DPP