JUDGMENT delivered on the 27th day of July 2007 by Murray C.J.
In this matter I agree with the judgment of Denham J. who recites the history, facts and circumstances of this case. I wish to add some brief observations.
The particular facts of this case require to be considered in order to determine whether the Court, in the exercise of its discretion, should in the special circumstances of the case prohibit the prosecution continuing.
The discretion to be exercised by the Court is analogous to that exercised by this Court in Dawson –v- Hamill (No. 2) 1991 1 I.R. 293, although it concerned a minor offence before the District Court, where Finlay C.J., speaking for the Court, refused to remit a criminal prosecution for retrial or continuance before the District Court after an order of certiorari by way of judicial review had been granted in respect of the initial conviction. The High Court having made such an order had remitted the matter for retrial before the District Court. In allowing the appeal and reversing that order Finlay C.J. stated “The main grounds on which this part of the appeal is brought are that the remittal was unfair and onerous to the plaintiff by reason of the delay in proceeding with the case in a proper manner; that it is a long time since the happening of the event and, on the particular facts, the matter falls to be dealt with too long after the alleged occurrence.” These and other factors were taken into account by the Court in that instance and Finlay C.J. in taking into account “…all these considerations and … the interests of justice” was satisfied that the Court, in the exercise of its discretion, should set aside the order of the High Court for a retrial or a continuance of the prosecution before the District Court.
There is of course a public interest in seeing that prosecutions are brought to trial and in this context the gravity of the offence is a relevant consideration. It is a question of proportionality. The offences in this instance, having regard to the particular facts, are far from the higher end of the scale in the calendar of offences. That is an important consideration in conjunction with all the other factors in this case especially the gross and extraordinary delay in a case of this particular nature.
Having regard to all the factors arising from the history and gross delay in this case, as outlined in the judgments of Denham J. and Hardiman J. I am satisfied that in the special circumstances of this case that the Court should exercise its discretion and grant the relief sought by the appellant.
Judgment delivered the 27th day of July, 2007 by Denham J.
1. Issue
At issue in this case is whether the criminal trial of the applicant (pending before the Dublin Circuit Criminal Court) should be prohibited. Veronica Noonan (also known as Veronica Hoban), the applicant/appellant, (and hereinafter referred to as 'the applicant') is being prosecuted on sixteen charges for offences contrary to s. 32(2)(a) of the Larceny Act, 1916, as amended by s.9 of the Larceny Act, 1990. The applicant has sought, by way of judicial review, an order prohibiting the Director of Public Prosecutions, hereinafter referred to as "the respondent", from taking further steps in the prosecution of this case. The High Court (Ó Caoimh J.), in a judgment delivered on the 9th July, 2004, refused her application. The applicant has appealed against that refusal.
2. Basic Facts
The offences are alleged to have taken place between the 1st January, 1990, and the 7th May, 1992. It has been indicated that the applicant will be pleading not guilty. The charges relate to the applicant's activities as a bookkeeper in the Cabra Credit Union. The Irish League of Credit Unions prepared an interim report on the applicant's alleged conduct on the 8th July, 1992. A complaint was made to An Garda Síochána on the 4th September, 1992. The applicant was arrested and detained for questioning on the 21st February, 1995, charged on 23rd December, 1997, and returned for trial to the Dublin Circuit Criminal Court on the 4th July, 2002. Leave to apply for judicial review was granted on the 22nd November, 2002, by the High Court
(Abbot J.)
3. High Court order granting leave to apply for judicial review
The High Court made an order granting leave to seek the following reliefs:-(i) An order prohibiting the respondent from taking any further steps in the criminal prosecution entitled D.P.P. v. Veronica Hoban.
(ii) An order in the nature of an injunction (including an interim and/or interlocutory order pending the determination of these proceedings) restraining the respondent from taking any further steps in the criminal prosecution entitled D.P.P. v. Veronica Hoban.
(iii) A declaration that the delay in the institution of criminal proceedings charging the applicant with offences alleged to have occurred on dates unknown between 1st January, 1990, and 7th May, 1992, has irreparably prejudiced the prospect of the applicant obtaining a fair trial in accordance with law.
(iv) A declaration that the delay in the institution of criminal proceedings is a breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
(v) A declaration that the failure on the part of the respondent to institute criminal proceedings earlier than the 23rd December, 1997, in circumstances where the respondent had been on notice of the alleged offences concerning the applicant since the 4th September, 1992, is in breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
(vi) A declaration that the delay between the charging of the applicant on the 23rd December, 1997, and the order sending the applicant for trial on the 4th day of July, 2002, was in breach of the applicant's right to a trial with due expedition and to a fair trial in accordance with law.
The grounds upon which the High Court ordered the review were as follows: (i) The respondent has violated the applicant's right to a trial in due course of law pursuant to Article 38.1 of the Constitution of Ireland.
(ii) The respondent has violated the applicant's right to a trial on serious charges with reasonable expedition.
(iii) The respondent has prejudiced the applicant in the defence of the proceedings brought by the respondent and/or has created a real risk that the applicant would be denied a fair trial or be subjected to an unfair trial.
4. High Court decision
The High Court (Ó Caoimh J.) refused the application on the 9th July, 2004. The learned High Court judge stated that essentially two periods of time had to be considered, (a) the period prior to the charging of the applicant on the 23rd December, 1997; and (b) the lengthy period of time that the case took in the District Court before an order was made returning the applicant for trial.
As to the first, the learned High Court judge stated that he was guided by the evidence of Detective Sergeant Finan in relation to the complexity of the case as it involved a serious fraud on a credit union. He held:- "It is clear that the absence of documentation hampered the gardaí in their investigation and ultimately resulted in a situation where careful judgment had to be exercised by the Director of Public Prosecutions in the consideration of what charges might be preferred against the applicant. I do not believe that it is appropriate to judge the case simply by reference to the number of prosecution witnesses in a book of evidence. What is not in dispute is that the documentation or records of the Credit Union were in some state of chaos which presented difficulties for those involved in investigating the affairs of the Credit Union. It is unnecessary to ascribe blame for this state of affairs but the essential fact is not seriously disputed. That being the situation it must have presented a difficulty to the gardaí in their investigations. While it is clear that some of the period in question, in relation to the decision making and the preparation of charges, has not been adequately explained, I am satisfied that in regard to the overall period that no gross or inordinate delay has been identified such as to warrant granting the applicant the relief which she seeks."
The learned High Court judge then considered the length of time the case was before the District Court, which was agreed to be approximately four and a half years. He found that there was no prosecutorial delay and that at all stages the prosecution sought to advance the case in the District Court. The learned High Court judge was equally satisfied that no blame attached to the applicant. He held that the solicitor for the applicant was entitled to raise the issues which he did and that there was no suggestion of there being a deliberate attempt to delay the case on the part of the applicant. The High Court then stated:- "There is, however, the situation whereby a number of delays occurred by reason of factors for which neither party was to blame, namely the non-availability of members of the District Court and lengthy adjournments for matters to be addressed. This is what has been referred to as systemic delay in the District Court and is a matter which must be of some concern. What is of further concern is the fact that one year after she died an application was made on behalf of the applicant to have May Walters deposed. What is apparent is that there was ignorance on the part of the prosecution of her death and certainly on the part of the applicant's legal advisors, if not the applicant herself. However, this gave rise to a further period of unnecessary delay which is unfortunate in the circumstances. But this was delay for which I am satisfied the Director of Public Prosecutions was not responsible and nor was the District Court or its system."
The learned High Court judge held that the delay had been explained. He held that the overall situation was one where the essential delay related to necessary events in the District Court, and to periods of time which were unnecessary and caused by the absence of the judge handling the case. The learned High Court judge held that it did not appear that any great effort was made by either side to press the matter on at a faster pace in the District Court.
As to the recollection of witnesses, he held:- "I believe that the nature of the prosecution in question is one that essentially turns on documentary evidence but must of course be supplemented by oral testimony. I believe that in this light the case is not one which would be greatly hampered in the context of recollections by reason of the passage of time."
The learned High Court judge noted that there has been no pre-trial incarcerations and no particular anxiety or concern indicated in the case. He concluded:- "I am satisfied that notwithstanding the period of delay that the delay in question is not one that has been demonstrated to have impaired the defence of the applicant. There is one witness who has died, namely May Walters, who has been identified but again it is a matter of some controversy as to the relevance of this witness in the context of the prosecution of the applicant. It is clear that she was included as a prosecution witness and in those circumstances I believe that it is in all probability a situation where her death will have a more detrimental effect on the prosecution case than on the defence case in the trial in question.
I believe that the circumstances of this case can therefore be contrasted with those in the case of Hogan v. President of the Circuit Court [1994] 2 I.R. 513 which coincidentally also involved a fraud on a body of a similar nature to the Credit Union, being the Tontine Society in that case. However, the particular factors of prejudice identified in that case have not been demonstrated to exist in the instant case. In all of the circumstances therefore, while I am satisfied that there has been a period of delay, some of which has been inordinate, it is not a situation which in all the circumstances of the case I am satisfied that the community's right to have the offences prosecuted should not prevail especially in light of the fact that I do not conclude that the applicant has established to the satisfaction of this court that a fair trial is not possible in the circumstances. In light of this fact, I refuse to the applicant the relief which she seeks."
5. Appeal
Against that decision of the High Court the applicant has appealed. The applicant submitted that the order perpetrated an injustice on the applicant. It was submitted that the High Court erred:-
(i) in holding that the prosecution against the applicant was of such complexity that the members of An Garda Síochána were presented with such difficulties in their investigations as would justify the conclusion that there was no gross or inordinate delay in the prosecution of the applicant and that she was not entitled to relief;(ii) in holding that the delay in the prosecution of the case concerning the applicant in the District Court was not wholly or partly attributable to prosecutorial delay;
(iii) in holding that the systemic delay in the prosecution of the case concerning the applicant in the District Court was not something for which the respondent, the District Court or its systems, were responsible; or that it was adequately explained; or that the delay related to the necessary course of events in the District Court;
(iv) in holding that the case against the applicant essentially turns on documentary evidence to be supplemented by oral testimony and was of such a nature that it would not be greatly hampered in the context of recollections by reason of the passage of time;
(v) in holding that the applicant had failed to demonstrate impairment of her defence of the criminal charges against her and was therefore not entitled to relief. Further, that the learned High Court judge erred in law in holding that while some of the delay was inordinate the community’s right to have the offences prosecuted should prevail and further erred in concluding that the applicant had not established that a fair trial was not possible and/or erred in concluding that the applicant had to establish such a fact in judicial review proceedings.
(vi) in holding that the death of a witness listed as a prosecution witness would in all probability have a more detrimental effect on the prosecution case than on the defence case and that the applicant was therefore not entitled to relief;
(vii) in dividing the time period applicable in the case failed to have any or any adequate regard to the effect of the entire period of delay on the case of the applicant.
6. Submissions
It was submitted, inter alia, by Mr. Michael O’Higgins, S.C., counsel for the applicant, that this case involves a period of almost 10 years from the notification to An Garda Síochána of a criminal complaint to the order returning the applicant for trial to the Dublin Circuit Criminal Court. It was submitted that the length of time involved and the consequences arising from that period impact upon the applicant’s right to an expeditious trial and her right to a fair trial. Counsel submitted that there was a lack of diligence in the investigation of the complaint from its receipt in September, 1992, to the time when the applicant was detained for questioning on the 21st February, 1995, and a lack of diligence on behalf of the investigating authorities between February, 1995, and the charging of the applicant on the 23rd December, 1997. Counsel referred to the circumstances whereby it took four and a half years for the matter to proceed through the District Court before the applicant was returned for trial and submitted that the delays arose for lack of diligence and expedition by the respondent. It was submitted that there was prejudice to the applicant arising from the delays, that there was prejudice to the applicant from the death of a witness, May Walters. Further, it was submitted that there was prejudice to the applicant arising from the interval between the alleged offences and the possible trial.
7. Law
Constitution
The legal foundations for the issues before the Court are to be found in the Constitution and case law. Article 38.1 of the constitution states: "No person shall be tried on any criminal charge save in due course of law"
Article 40.3.1° of the Constitution provides: "The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."
And Article 40.3.2° states:
"The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen."
No article of the Constitution explicitly states that a person has a right to an expeditious trial. However, it is part of our jurisprudence that a person has such a right.
At issue in this case is the delay between the making of the complaint and the return for trial. The delay relates to the investigation of the case, and the process before the District Court.
The issue of process delay has similarities to the concept of 'speedy trial' in the United States of America. In Barker v Wingo (1972) 407 U.S. 514, Powell J. delivered the judgment for a unanimous court. He held that a defendant’s constitutional right to a speedy trial cannot be established by any inflexible rule but can be determined only on an ad hoc balancing basis in which the conduct of the prosecution and the defendant are weighed. He pointed out that the court should assess such factors as the length of and the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. This concept of an ad hoc balancing approach was adopted in Ireland: see D.P.P. v. Byrne [1994] 2 I.R. 236.
However, there is also a broader concept, that of reasonable expedition. The right to reasonable expedition was referred to by Gannon J. in State (Healy) v. O’Donoghue [1976] I.R. 325 and subsequently endorsed by the Supreme Court. This is a principle which is wider than prosecutorial or trial process delay.
At the core of all the jurisprudence is the concept of justice. Justice for the individual and a just system for the common good. The balancing of the various rights, some conflicting, is a matter for the courts to resolve.
In each case the facts have to be considered in light of all the circumstances of the case. Thus, for example, a summary trial is required to proceed more quickly, to provide summary justice. It is accepted that a trial on indictment may take longer to process. This application relates to a trial on indictment.
Also relevant is the nature of the crime in issue. A relatively simple crime, for example, of theft, may involve clear facts and is to be contrasted with a complex case. This is a case of fraud, albeit not a very complex fraud.
8. Decision
I shall consider the case in the order taken by the learned High Court judge. He found that there were two essential periods of time to be considered, (1) the time prior to the charging of the applicant, and (2) the time the case was processed in the District Court. In addition, (3), I shall consider the discretion inherent in the Court in applications for judicial review.
8.1 The time prior to the charging of the applicant
In relation to the period prior to the charging of the applicant, a time from the complaint being made to An Garda Síochána on 4th September, 1992, to the charging of the applicant on 23rd December, 1997, the learned High Court judge stated that he was guided by the evidence of Detective Sergeant Finan in relation to the complexity of the case. The evidence of Detective Sergeant Finan was contained in an affidavit deposed on the 30th June, 2003. He is the prosecuting officer in the case. The facts were stated by the learned trial judge in his judgment and it is not necessary to recite them again in this judgment other than to note the key facts. On the 27th August, 1992, Mr. Pat Fay, then Chief Operations Manager of the Irish League of Credit Unions communicated a discrepancy of £184,497.68 to the Board of Cabra Credit Union. 75.29% of the members' passbooks were audited and disclosed the discrepancy, but the field officer of the Irish League of Credit Unions indicated that it was not possible to establish when and in what amounts cash had been misappropriated. Reference was made to statements of Mr. Paul Thornton, Mr. Tony Burke and Mr. Ciaran Bishop, all of whom were attached to the Irish League of Credit Unions. Their reports identified clearly a discrepancy in the accounts of Cabra Credit Union and the unavailability of certain control documents such as pay-in-slips, cash collection sheets, cash summary sheets, journal cash records, members' ledger cards, promissory notes and nominal ledger postings. He deposed: "The only specifics that these reports deal with are the 'Hoban Family Accounts' and account numbers 534 and 535. These specifics do not form any part of the present charges as Garda investigations concluded that there was insufficient documentary evidence available. Thus, although the Irish League of Credit Unions prepared an interim report dated the 8th July, 1992, there was nothing in it which would enable the Gardaí to establish any specific criminal act."
Detective Sergeant Finan deposed that the statement of Mr. Goggins, Chairman of the Cabra Credit Union of the 4th September, 1992, made broad allegations of irregularities in relation to discrepancies in the books of the Credit Union. He said that the garda investigation began at the time of the making of the complaint on the 4th September, 1992, but that the complaint had not identified any specific criminal act. He deposed:
"To identify these specifics required a re-examination of the available Credit Union records specifically in relation to all share withdrawals, loan applications and other payments made by Credit Union members. Although we did identify numerous transactions that were highly suspicious, no potential suspect could be identified as there was insufficient documentary evidence available. It was eventually decided to concentrate on Credit Union loans to members which was an area where most, if not all, the control documents were available. This was a lengthy and laborious process. Some of the documents being relied on in this prosecution were not handed over until the 14th June, 1994."
He deposed that the investigation took a considerable time and effort due to the complexity of the matter, the number of witnesses, and the fact that the applicant had run the Credit Union in such a way as to leave its books in a chaotic state.
The learned trial judge stated that he was guided by the evidence of Detective Sergeant Finan. There is no evident reason why he would not be entitled to be guided by that evidence. On that evidence it is axiomatic that the learned High Court judge would find as he did. I am satisfied that there is no error by the High Court in such a conclusion. Therefore, in relation to the decision as to this period of time, from the making of the complaint on 4th September, 1992, to the charging of the applicant on the 23rd December, 1997, I would not interfere with the decision of the High Court.
Prosecutorial delay
In addition, I would uphold the determination of the High Court that there was no blameworthy prosecutorial delay. However, even if there was blameworthy prosecutorial delay, which I do not so find, the test to be applied by a court in such circumstances requires a further finding before a trial may be prohibited.
This Court has addressed recently the test to be applied in cases where prosecutorial delay is in issue: P.M. v. Director of Public Prosecutions [2006] 3 IR 172. Kearns J., in a judgment with which Murray C.J., Denham J., Hardiman J., and Geoghegan J. agreed, stated:
"I believe that the balancing exercise referred to by Keane C.J. in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pretrial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.
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."
Kearns J. defined the applicable test as:
"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 shown to have been so interfered with such as would entitle the applicant to relief."
Applying that test to this aspect of the case, the applicant's appeal fails. First, no blameworthy prosecutorial delay was established. Secondly, even if it were established, which it was not, it was not established that a further aspect of the applicant's interest were so interfered with as to entitle the applicant to relief.
8.2 The time in the District Court
The next period of time considered by the High Court was the four and a half years in which this case was before the District Court. Such a length of time is concerning. The facts are relevant in any review of the passage of time. In this case the facts were set out in detail, especially in the affidavit of Aonghus Dwane, Senior Prosecution Solicitor of the Chief State Solicitor, deposed to on the 1st July, 2003, and in the affidavit of Michael O'Sullivan, Solicitor. There is described a history of the charges, their amendment, the Book of Evidence, additional material, the decision of the respondent to consider depositions, the decision of the respondent to depose two witnesses, Niamh Beechinor and Sean Carroll, neither of whom had made statements which were contained in the Book of Evidence, the adjournment for depositions, issues arising on the Bankers Book Evidence Act, 1879, as amended, a District Court ruling on the Bankers Book Act issue, the depositions not proceeding on 13th July, 1999 as a specific District Judge was not available, adjournments, extensive legal argument before the District Judge on 16th December, 1999 about the depositions, the ruling of the District Judge on 21st December, 1999, the adjournment to the 17th May, 2000, at 2.00 p.m. for depositions. It appears that the relevant District Court Judge was unavailable on 17th May, 2000. There was an adjournment to 4th October, 2000, for continuing depositions. Further adjournments occurred as the District Judge was not available. On the 17th October, 2000, a date for depositions was fixed for 23rd February, 2001. A full day was reserved for the case 'in light of the history of the case'. On the 23rd February, 2001, Niamh Beechinor and Sean Carroll were deposed. The applicant sought a deposition from May Walters. On 19th July, 2001 the Director of Public Prosecutions informed the District Court that May Walters was deceased. The case was adjourned to a date in September for submissions on the Book of Evidence. On 28th September, 2001, submissions were made to a Judge of the District Court and the matter remanded to the 3rd December, 2001. On 3rd December, 2001 the solicitor for the State submitted to the District Court Judge that the relevant District Judge should have seisin as she had heard depositions and legal argument previously. The case was adjourned to the 10th December, 2001, to the 20th December, 2001 and then to the 3rd January, 2002, for submissions. On the 3rd January, 2002 the applicant's solicitor was unable to attend court because of a family bereavement and a District Judge adjourned the case peremptorily against all parties for submissions on the 28th June, 2002, and the District Judge indicated that she was not retaining seisin of the case. On the 28th June, 2002, submissions were made on behalf of the applicant on delay and the evidence of the prosecution and the case was adjourned for a decision. On the 4th July, 2002, the return for trial was made. At this time the applicant instructed a new firm of solicitors. Then application was made on behalf of the applicant for judicial review in November, 2002.
The learned High Court judge determined that there was no blame to be attached to the applicant or the respondent. He referred to the lengthy adjournments which occurred in the District Court and found that the systemic delay in the District Court was a matter for concern. He also raised a concern about the lack of knowledge of the death of May Walters, which gave rise to, what he termed, unnecessary delay. He concluded that neither the applicant nor the respondent were responsible for the delay. He held that the delay had not impaired the defence of the applicant. Thus, while he considered some of the delay to be inordinate, in all the circumstances he held that on this ground the application should be refused.
I do not consider that the learned trial judge fell into any error in his analysis. I would uphold the High Court in its finding that the respondent could not be held responsible for the delays, nor the applicant for seeking the orders she did. It is clear, that neither side pressed the District Court for early dates. A laissez faire attitude was maintained. The lengthy time spent in the District Court arose because of systemic delay in the District Court.
The systemic delay in the District Court is a matter of great concern. It is entirely inappropriate to adjourn matters for many months, unless there are exceptional circumstances. Even thought the District Court was not dealing with a summary offence, its process should proceed with summary speed.
As to the issue of prejudice, in this case there exists the specific fact of the death of May Walters. However, I would uphold the analysis of the learned High Court judge, and am satisfied, that this factor is not of itself such a specific prejudice as, in all the circumstances of the case, would warrant prohibition of the trial. In all the circumstances, I would not intervene with the decision of the High Court as to this aspect of the delay.
8.3 Discretion
I am satisfied that individually the specific grounds raised are not such as to entitle the applicant to succeed. However, that is not the end of the matter. The cumulative situation should not be ignored. In relation to this overall situation the discretionary nature of judicial review also requires to be considered.
The applicant has sought relief by way of judicial review. Judicial review is not an appeal. Rather, it is a review of the decision making process. It is well established that the Court retains a discretion in the granting or refusing of relief by way of judicial review.
An order of judicial review is ultimately a matter of discretion for the Court. This is so because of the fundamental nature of such a process - it is a supervisory role of lower courts and administrative bodies. The rules as to an application for judicial review are to be found in Order 84 of the Rules of the Superior Courts. However, it is a procedure grown from common law and by which parties may obtain orders to protect due process. Referring to the great remedy of certiorari, O'Higgins C.J. in State (Abenglen) v. Dublin Corporation [1984] I.R. 381 at p. 392 described its purpose as to supervise the exercise of jurisdiction by bodies or tribunals having legal authority to affect rights and having a duty to act judicially. This encapsulates the general purpose of the old prerogative writs which have been replaced by the Order 84 procedures. This supervisory role of the decision-making process continues to be at the kernel of the judicial review process. Thus, in each case, the Court is bound to take into account all the relevant circumstances, and ultimately the grant or refusal of an application is a question of due process.
The circumstances of this appeal have been stated already in this judgment. The relevant events commenced approximately 17 years ago. The rudimentary facts are as follows:
(i) The alleged offences took place between 1st January, 1990, and 7th May, 1992.(ii) The Irish League of Credit Unions prepared an interim report, on the applicant's alleged conduct, on the 8th July, 1992.
(iii) A complaint was made to An Garda Síochána on the 4th September, 1992. (iv) The applicant was arrested and detained for questioning on the 21st February, 1995.
(v) The applicant was charged on 23rd December, 1997.
(vi) The applicant was returned for trial to the Dublin Circuit Criminal Court on the 4th July, 2002.
(vii) Leave to apply for judicial review was granted by the High Court on 22nd November, 2002.
These facts indicate that there has been delay in bringing the case to trial. In any such analysis the nature of the offence alleged is important. In some cases there may be specific relevant factors. So, for example, in allegations of child sexual abuse there has developed a specific jurisprudence. The Court has judicial knowledge of the type of circumstances which may delay proceedings: H. v. Director of Public Prosecutions [2006] IESC 55. In this case the nature of the offence is clear - it is an offence of fraud, and not a very complex fraud. The H. v. Director of Public Prosecutions jurisprudence does not apply.
All the factors of the case require to be considered. I would not intervene in the specific findings of the learned trial judge in the two time spans specifically analysed and determined by him. However, in all the circumstances of the case, where the alleged offence took place approximately 17 years ago, where the procedures from complaint to return for trial have taken ten years, a general overview of the process requires to be taken. In this supervisory review the kernel issue is justice.
The systemic delay in the District Court is a matter for grave concern. In light of the exceptional circumstances of the case, which include the initial delays, the systemic delays, the death of a witness, all in the context of a prosecution for a relatively simple fraud, the cumulative situation renders this an exceptional case. I would exercise discretion in favour of the applicant. In the particular circumstances of the case it would be unjust and oppressive for the prosecution to proceed.
I also agree with the judgment of Murray C.J..
Conclusion
Accordingly, I would allow the appeal.
JUDGMENT of Mr. Justice Hardiman delivered the 27th day of July, 2007.
The applicant was for a considerable time a bookkeeper employed by a credit union based in Cabra, Dublin. She and a superior financial official, the Treasurer, were apparently employed full time and there were also various part time employees. In early 1992 some anonymous phone calls were received by the Irish League of Credit Unions as a result of which it was decided to have an inspection by way of unannounced visit at the premises of the credit union in May, 1992. As a result of this in turn, Ms. Noonan was suspended and an interim report was prepared by the League on the 8th July, 1992. The following month a decision was made to make a complaint to An Garda Síochána and this was done on the 4th September, 1992.
Two and a half years later, on the 21st February, 1995, the applicant was arrested and detained for questioning pursuant to s.4 of the Criminal Justice Act, 1994. Two years and ten months after that, on the 23rd December, 1997, the applicant was brought before the District Court and charged with a single offence. Some months later she was charged with fifteen further offences. All of these charges allege offences contrary to s.32(2)(a) of the Larceny Act, 1916 as amended and all relate to the period between the 1st January, 1990, and the 7th May, 1992. The following is a specimen of the charges originally preferred against the applicant:“For that you the said accused on a date unknown between the 1st January, 1990, and the 25th February, 1991, at the offices of Cabra Credit Union 87a Cabra Road, Dublin 7, in the Dublin Metropolitan District, did fraudulently cause one Christine Marshall and May Walters to execute a valuable security by signing a blank Bank of Ireland cheque No. 010540 drawn on the account of Cabra Credit Union A/C No. 14383858 by falsely pretending that the same was required for payment of a sum properly due and owing by Cabra Credit Union.
Contrary to s.32(2)(a) of the Larceny Act, 1916, as amended by s.9 of the Larceny Act, 1990”.
The two ladies mentioned were board members of the credit union. From the foregoing it appears that some five years and three months elapsed between the making of a complaint and the eventual charging of the applicant. This period is divided into a period of approximately two years and five months between the complaint and the arrest of the applicant and her detention pursuant to s.4, and a further period of two years and ten months between that arrest and her subsequent charging on the 23rd December, 1997. Only one charge was then preferred, the balance following about three months later.
The proceedings in the District Court.
A further period of some four years and six months elapsed between the applicant’s first appearance before the District Court and her eventual sending forward for trial on the 4th July, 2002. This date was exactly nine years and ten months after the original complaint. No less than two years and eight months of this period of four and a half years which the case spent in the District Court was occupied with attempts to take prosecution depositions. The prosecution first stated that they required to examine two witnesses on deposition and applied to do so on the 28th July, 1998. But these depositions were not taken until the 23rd February, 2001.
In the course of the District Court proceedings the charges against the applicant were amended by the deletion of the name “May Walters” from the charge sheet. An application was made to do this on the 15th June, 1998. This is a striking amendment because the signatures of both Ms. Walters and Ms. Marshall appear on all the relevant cheques. Ms. Walters was witness no. 23 in the Book of Evidence. When the State’s depositions were eventually taken, the applicant applied to have Ms. Walters examined on deposition. It transpired that she had died in January, 2000.
The present proceedings.
Shortly after being returned for trial the applicant instituted judicial review proceedings directed at the prevention of her trial on the grounds of delay and prejudice.
The matter came on for hearing in the High Court (O Caoimh J.) and the applicant was refused relief in a judgment delivered on the 9th day of July, 2004.
The High Court judgment.
A number of features of the High Court judgment are of significance for the disposition of the appeal. Relief was refused on the basis that:“Notwithstanding the period of delay, that the delay in question is not one that has been demonstrated to have impaired the defence of the applicant”.
Dealing with the period of pre-charge delay the learned High Court judge held, at p.31 of his judgment:“While it is clear that some of the period in question, in relation to the decision making and the preparation of charges, have not been adequately explained, I am satisfied that in regard to the overall period, that no gross or inordinate delay has been identified such as to warrant the granting to the applicant of the relief which she seeks”.
The learned trial judge was also impressed by the absence of documents in the Credit Union. He found that “It is unnecessary to ascribe the blame for this state of affairs but the essential fact is not seriously disputed”. He also considered that it was “self evident” that the charge was a complex one “involving as it does a serious fraud on a credit union”.
Turning to the post-charge delay, at p.32 of the judgment the learned trial judge held that:“… the delay in this case, while significant, has been explained in the affidavits put before the Court. There is of course some dispute in relation to some of the dates and whether, for example, cases were adjourned due to the non-attendance of a solicitor, either for the applicant in the District Court or for the prosecution. However, I do not believe that the areas of dispute are of any significance in this regard. The overall situation is one where the essential delay related to the necessary course of events in the District Court, but further by reason of periods which were unnecessary due to the absence of the judge handling the case in the District Court”.
In relation to the overall period of delay in the District Court, the learned trial judge held:“I am not satisfied that the period in question is one attributable to what is described as prosecutorial delay and it appears that at all stages the prosecution sought to advance the case through the District Court. Equally, insofar as issues were raised on behalf of the applicant of the District Court by her legal advisers no blame attaches to same. The solicitor in question was entitled to raise issues notwithstanding the fact that some of these may have been ruled upon against his client and no suggestion is made that there was any deliberate attempt on the part of the applicant to delay the proceedings in the District Court. There is, however, the situation whereby a number of delays occurred by reason of factors for which neither party was to blame; namely the non-availability of members of the District Court and lengthy adjournments for matters to be addressed. This is what has been referred to as systemic delay in the District Court and is a matter which must be of some concern”.
In relation to the circumstances in which, after the State depositions were taken, the applicant required the deposition of May Walters, a witness who transpired to have died in the early part of the year 2000, the prosecution had submitted that it was very likely that the accused had known of this unfortunate event at the time she requested the witness’s deposition. But the learned trial judge made no findings to this effect, though he found that the prosecution and the defendant’s legal advisers were unaware of it. But certain of the averments on affidavit by the Director’s deponent on this issue will be considered further below.
The applicant’s submissions on appeal.
On the hearing of this appeal, the applicant challenged the learned trial judge’s findings in relation to both aspects of the delay. She relies on the fact that portions of the delay were described by the learned trial judge as “unnecessary” and “inordinate” (p.34). The applicant attacks the proposition that a delay in getting papers from the credit union accounts for any significant part of the overall time elapsed before the charge and says that according to the affidavit of Detective Sergeant Finan, the State had all the documentation they required on the 14th June, 1994. She points to the fact that it took nine months to take sixteen statements (from October 1995 to June 1996), another ten months or so to deal with unspecified requirements of the Director of Public Prosecutions and fully six months for the latter to consider the file before issuing his directions.
In relation to the post-charge period, I do not understand either party on the hearing of this appeal to take issue with the learned trial judge’s findings that, insofar as there were contradictions as between the affidavits lodged on behalf of the respective parties, those contradictions were not really significant for the purpose of the present case. But the applicant challenges the central proposition on this topic in the High Court judgment: that “systemic delay” in the District Court accounts for long periods of time which cannot be regarded as availing the applicant because they are not periods of delay caused directly by the prosecutor. In this regard, she relies heavily on the decision of Mr. Justice O’Neill in D.P.P. v. Arthurs [2000] 2 ILRM 363, and in particular the following passage at p.376 of the report:“If it is the case that an accused person has a right under the Constitution to a speedy or expeditious trial, a necessary corollary of that right is that there rests upon the State a duty to ensure that all reasonable steps are taken to ensure that such a speedy trial is provided. This must necessarily mean conducting the investigation and prosecution in such a manner which, insofar as it is reasonably practicable, eliminates unnecessary delay, and must additionally mean that such resources as are necessary for the orderly and expeditious processing of criminal cases through the Courts are provided”.
The applicant also challenges the learned trial judge’s finding as to the absence of real prejudice, a topic which I will return to below. But in any event, she relies if necessary on what was said by Geoghegan J. in B.F. v. D.P.P. [2001] 1 IR 656, at 665:“… where there is culpable delay on the part of the State Authorities, then having regard to all the circumstances of the case, the delay itself may entitle the accused to an order preventing the trial, irrespective of whether there is actual or presumed prejudice”.
The applicant also relied on several decided cases where relief had been granted in respect of delay no longer than that disclosed in the present case. Some of these will be discussed below. Reliance was also placed on certain decisions of the European Court of Human Rights.
The Director’s case.
The Director says that the affidavit of Detective Sergeant Finan has adequately explained delay having regard to the complexity of the case. He complains that the Detective Sergeant was not cross-examined “and thus never had the opportunity to answer the suggestions now made in the applicant’s written submissions before this Court that certain periods of time have not been adequately explained.
He relies on Hogan v. President of the Circuit Court [1994] 2 IR 513:“Obviously, in any case where the prosecuting authorities on the information available to them have not got proper grounds for charging any person with an offence their failure to do so and elapse of time before they are in a position to do so cannot give an accused the right to prohibit a trial on the basis of the defeat of his constitutional rights to an expeditious trial”.
On the very striking level of delay in the District Court, the Director of Public Prosecutions makes a number of points. He draws attention to certain of the numerous adjournments in the District Court as being either for the benefit of the defence or for the benefit of both parties. He says that the applicant rarely or never objected to an adjournment. More significantly, he relies on a dictum of Kelly J. to the effect that “fraud cases by their nature are complicated… McKenna v. The presiding Judge of the Dublin Circuit Criminal Court, (High Court, unreported, 14th January, 2000).
The Director submitted that the case of State (Brennan) v. Connellan (High Court, unreported, 17th June, 1986) correctly summed up the proper approach to a case such as this and is particularly significant because it, too, was a fraud case. He relied on the following passage from the judgment as expressing the core question on an application such as this:“… whether the delay in this case is such as, in all the circumstances, to be of such a degree as to amount to an infringement of the prosecutor’s constitutional right to have his trial heard with reasonable expedition…”.
It may be of interest to note that the delay complained of in that case was a period of twelve months in preparing the Book of Evidence and securing a return for trial (by comparison with four years and eight months in the present case); a period of six and a half months between the return for trial and the date of arraignment in the Circuit Criminal Court; a period of six months in dealing with proceedings to have a defective return for trial quashed in the High Court and a period of a further six months in preparing and serving a notice of intention to proceed.
The judge in that case said:“I am satisfied that there was no reasonable justification for the delay in preparing and serving the notice of intention to proceed on the prosecutor, that such delay constituted an infringement of the prosecutor’s right to have his trial heard with reasonable expedition and that the reason given therefore, namely pressure of work, does not provide a justification for such delay and the consequent infringement of constitutional rights”.
It is fair to say that the Director’s greatest reliance was on an unreported decision of Mr. Justice Kelly, McKenna v. The presiding Judge of the Dublin Circuit Criminal Court (High Court, unreported, 14th January, 2000). This was a slightly double edged case: the complaint was made in December, 1992, but no charge was brought until September, 1998, a period of over six years. The applicant was however returned for trial in early 1999. Nevertheless, Kelly J. held that there had been inordinate delay in respect of the pre-charge period. However, he refused relief on the grounds that no prejudice had been demonstrated. This was one of the learned trial judge’s fundamental findings in the present case.
The Director also mentioned the Strasbourg jurisprudence in his submissions. In particular he urged that the European Court of Human Rights decision in Barry v. Ireland (15th December, 2005) is not decisive of this case because the applicant there was in his eighties and had to bear the weight of the charges for a period of ten years during which he was debarred from carrying on his profession as a medical practitioner. It was these factors, not present in this case, which led to the finding that the delay of ten years had been in violation of Article 6 of the Convention. He urged that the Irish Courts decision in the same case was of much greater relevance.
Decision.
I do not consider it a legitimate criticism of the applicant that she relies on certain statements and omissions in the affidavit of Sergeant Finan without having cross-examined him. Where evidence is given viva voce, an opposing party is perfectly entitled to accept the witness’s statements at face value and make such submissions as he thinks fit on the basis of them. He is not obliged to cross-examine if he does not think it necessary or tactically wise to do so. The same position, in my view, applies to evidence on affidavit. In this case, for example, there are a number of periods of delay which do not appear to be explained at all in the Sergeant’s affidavit: I cannot see any obligation on an opposing party positively to draw them to his attention and ask him has he any explanation for them. I am thinking, for instance of the periods June 1994 - October 1995 and March - September 1997.The same rule, of course, will apply to the affidavit verifying the facts stated in the Statement of Grounds.
I consider that, although the present case is undoubtedly a fraud case, it is not unduly complicated. In fact, the central allegation is blindingly simple: it was first alleged that the defendant, the applicant here, fraudulently obtained money from the credit union by getting two ladies, Ms. Walters and Ms. Marshall, to sign blank cheques. Each of these ladies signatures appeared on each of the cheques allegedly procured by fraud. Six months after the first charge was preferred, and three months after the other fifteen were preferred against the applicant, the name of May Walters was deleted from the charge without any explanation to the defendant or to the Court. In other words, she was first charged with fraudulently causing both ladies to sign blank cheques: it is now alleged only that she caused one of these ladies to sign the blank cheques and no allegation is being made about the other, even though each lady signed every cheque. It must be noted that the withdrawal of Ms. Walter’s name occurred well before that lady’s unfortunate death.
While it is certainly true that the investigation of the offence involved more than simply speaking to Ms. Marshall and Ms. Walters it appears to me that the rest of the work was of a relatively mechanical kind: chasing up the cheques to see what happened to them after they were drawn. This may have been tedious at times but was neither complex nor intellectually difficult. I would reject any suggestion that all fraud cases are by definition complex. This one was more bicycle mechanics than rocket science.
It appears to me that many of the difficulties involved in the case related not to any inherent complexity but to the inability of the gardaí, and later the State Solicitor, to give the case exclusive attention over a shorter period rather than episodic attention over a period that was, in the end, immensely long. This, combined with the alarmingly long periods for which the case required to be adjourned to get proper attention in the District Court, appears to me to account for a good deal of the delay.
Neither sort of delay in my opinion is inherent in the nature of a fraud case. Like every other sort of case, fraud cases range from the very simple to the very complex: it is their factual details, and not their general nature, which cause such a case to be simple or complicated.
In another fraud case almost twenty years ago, Fitzpatrick v. Shields and the D.P.P. [1989] ILRM 243, the defendant also complained of delay. A complaint in the nature of fraud had been made against Ms. Fitzpatrick in 1983, relating to a fraud allegedly committed in February of that year. The investigation took from late 1983 until late 1985. The defendant was arrested in May, 1986, and the Book of Evidence served in June of that year. The prosecution then announced their intention to take depositions and the case was further delayed in December, 1986, where it transpired that orders under the Bankers Books Evidence Acts were defective. This led to a further adjournment until June, 1987, for the purpose of taking depositions. The applicant then moved for judicial review.
Miss. Justice Carroll in the High Court, in a judgment delivered in November, 1987, held that:“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 not 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 the case into account I hold that the Order of Prohibition sought by the applicant should be granted”.
From the report of Fitzpatrick it appears that the delay between complaint and the High Court application was about three and a half years. The delay between complaint and arrest was about two and a half years. The Book of Evidence was served within a month of arrest but a little over two and a half years from complaint. I cannot see that the case was any more complicated than this one and one can only express alarm about the much longer periods of time involved in dealing with the latter.
Also of relevance is the case of Cahalane v. Judge Murphy 2 IR 262. In that case there had been a two year investigation of revenue offences between 1987 and 1989. The D.P.P. directed charges in 1990 and in the following year the defendant was in fact charged. In 1992 a Book of Evidence was served and in 1993, after a considerable delay about depositions in the District Court, he was returned for trial. Charges were brought four years after the last date on which an offence was said to have been committed. In the course of this time a defence witness had died and the applicant had suffered hardship. The case was described by Finlay C.J. as one of “some complexity” but prohibition was granted. Finlay C.J. said that he had:
“… failed to discover any reasonable explanation for such delays as occurred for example, between the conclusion of the last District Court process in 1989 and the direction of the D.P.P. ten or eleven months later and equally significantly the delay between the direction of the D.P.P. 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 the priority which it deserved. To take depositions of 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 where 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”.
This case appears to me to be directly in point. In my view we have over the last decade or so become unfortunately accustomed to very long periods of delay. Many of these arise in child sexual abuse cases, which are the subject of a separate jurisprudence. In other cases, it must be borne in mind that a period such as elapsed in this case of two months short of a decade between complaint and sending forward for trial is a period of very remarkable length, requiring detailed explanation. In the case of State (O’Connell) v. Fawsitt [1986] IR 362 a period of between three and four years was described, correctly in my view, as “extreme”. It is necessary to adopt a much more rigorous attitude to delay than has been seen in recent times, if the prosecution of these cases is to meet domestic and international standards. I cannot accept the finding of the learned trial judge that delays which are described as “systemic” in the District Court are to be excluded from the category of delay which can assist an applicant. It is wholly unacceptable that the arrangement of a date for the taking of two short depositions from banking witnesses occupied a period of two years and eight months. In large measure this is because, at least until recently, such depositions took inordinate periods of time to record, because the recording had to be done by handwriting. Accordingly even short depositions needed long hearings. It is outrageous that this system has endured into the 21st century. Furthermore, it is clear from the number of adjournments necessary to facilitate the hearing of a brief legal argument, that it was a major difficulty for the District Court to provide time for argument on a legal point of moderate complexity. In the present case, two such points seems to have arisen. The first arose when the prosecution decided to delete the name of May Walters from the charges after the Book of Evidence had been served: an issue arose as to whether this was legally possible. Secondly, when the depositions were sought, an argument arose as to the scope of the evidence that was open to the relevant witnesses to give. This argument, when eventually time became available to hear it, led to a restriction on the evidence of one of the witnesses.
As it happens, about the time this case was heard on appeal, the trial concluded of two executives of the notorious Enron Corporation. It is revealing to see how much more rapidly this hugely complicated case was processed through the American criminal system than our system could deal with a very much simpler case. In Enron, the investigation began in January of 2002; the auditors, Arthur Anderson, were convicted of certain offences in June of that year; high executives pleaded guilty to various charges in August, 2002; a major Enron trader pleaded guilty to wire fraud in October; a middle ranking executive to under declaring of tax in November. There were further pleas by significant players in February, 2003, September, 2003, and October, 2003. The first of the top managers pleaded guilty in January, 2004, two years after the investigation commenced. The corporation’s secretary pleaded guilty to insider trading in May, 2004. Kenneth Lay, the former C.E.O. of the company, was indicted in July, 2004. His trial began January, 2006, and ended in conviction in May, 2006. Confronted with the enormous disparity between the speed in which this uniquely huge and complicated case was dealt with in America and the snail’s space at which the Irish system processed the present case, counsel for the Director attributed the difference to the enormous media publicity which the Enron case attracted. I cannot see this as a satisfactory explanation.
The comments of O’Neill J. in Arthurs, cited above, have already been approved by this Court in Maguire v. D.P.P. [2004] 3 IR 241. I would again express my agreement with him in this case. It is no consolation to a person whose trial has been inordinately delayed that this delay, or some discrete part of it, is due to “systemic delays” due to under sourcing of the District Court, rather than to foot dragging by the prosecutor himself. The result is the same. It is the State which has an obligation to provide a trial with reasonable expedition and I would not hold an applicant disentitled to relief because the failure to afford her this right arises from the activity or inactivity of one part of the State rather than the other.
In my view, our State is in some danger of becoming acculturated to delays which are, on our domestic jurisprudence and by international standards, immensely long. Something quite extraordinary would be required to justify a case where virtually a whole decade had elapsed between complaint and return for trial. There is nothing of that sort here.
In reaching that conclusion, I have not found it necessary to discuss the cases from the European Court of Human Rights. But it is manifestly necessary for the State authorities to consider those cases carefully and to take necessary steps to ensure that Ireland is in a position to meet the standards of a Convention which we have recently decided to incorporate into our law. I hope that the brevity of this reference will not lead to an understatement of the urgency of official attention being directed to this matter.
A relevant precedent.
If relief is not granted in this case, the Court would in my view be indicating that it will now apply a less demanding standard to applications of this sort than was applied well over a decade ago by Finlay C.J. in Cahalane v. Judge Murphy [1994] 2 IR 262. The similarities between the two cases are striking. In each case there was an element of unexplained delay: in this case portions of the delay were described by the learned High Court judge as “unnecessary” and “inordinate”. In each case, moreover, a considerable amount of the delay in the District Court was caused by difficulty in getting time and personnel to take depositions. This case was four years and eight months in the District Court: Cahalane was one year and four months. Still more significantly as a matter of principle, the Supreme Court in Cahalane flatly declined to treat the availability or otherwise of judges or of accommodation in the District Court as a factor excusing the much shorter delay which occurred in that case. I could not agree that, twelve years later, we should now be more tolerant of delay based on that reason. Moreover, the overall period of delay from alleged offence to sending forward for trial was eleven years and seven months, by comparison with about seven years in Cahalane. I would not be prepared to apply a less stringent standard than that applied by Finlay J. a considerable time ago.
But concern about systemic delay was expressed by Finlay C.J. over a decade ago, and led at that time to the prohibition of further proceedings. The history of this case shows, unfortunately, that mere condemnation however justified and however elegantly expressed, will have no practical consequence in the vindication of the citizen’s right to a speedy trial.
Prejudice.
The foregoing part of this judgment relates to the applicant’s right to a speedy trial, which I believe to have been seriously breached in this case. That does not in itself call for the demonstration of prejudice. But I have to say that I do not agree with the finding of the learned trial judge that there was no prejudice in this case. As appears from the summary of the facts set out above, the applicant was originally charged with fraudulently procuring two ladies to sign blank cheques. Later, for reasons unexplained, one of these ladies was deleted from the charge sheet. It is this lady who has since unfortunately died. There seems to be reason to believe that this lady would have been a favourable witness from the defendant’s point of view, quite apart from any speculation as to the reason why the prosecution removed her from the charge sheet. In his affidavit of the 30th June, 2003, Detective Sergeant Finan says that the deceased lady “would have considered herself to have been a close friend of the applicant and any hesitation she may have had in identifying some handwriting was from a misplaced loyalty to the applicant”.
This, of course, is the prosecution view of the deceased lady. It reflects the fact that she “may have been hesitant in identifying certain handwriting” and seeks to attribute this to a loyalty, which the Detective regarded as misplaced, to the applicant. But this implies that the witness was “hesitant” in identifying handwriting attributed to the applicant and was loyal to the applicant despite the allegations which the prosecution had made against her. In view of the fact that these observations are made about a person who was originally said to have been one of only two people allegedly caused by the applicant to sign the cheques in question, and who was later deleted from the charge sheet without explanation, it appears to me that the applicant is disadvantaged, and the State advantaged, by her unfortunate death. This might not have been so significant a matter had she died within a reasonable time of the complaint being made, but in fact she died some seven and a half years later. I can see absolutely no reason why this case could not have been disposed of well within that time.
Issues raised.
I cannot regard the time which has elapsed in this case as consistent with the applicant’s “implied right to reasonable expedition, under the due process clause”, as Denham J. put it in D.P.P v. Byrne [1994] 2 IR 237.
In my opinion, a case exhibiting this level of delay confronts the Superior Courts with some very pointed questions. Is one prepared to accept that all fraud cases are by definition presumptively so complex as to justify a remarkable length of time necessary to investigate relatively simple facts such as those we see here? Is one prepared to say that delay, to be reckonable for the purpose of an application like this must be that of the prosecutor and not “systemic” delay which is to be laid at the door of the State more generally? In my view, these questions amount to asking whether the Superior Courts are to be part of the problem or part of the solution. This case was before the District Court on thirty-one separate occasions over a period of four and a half years: this seems to me to be five or six times what is appropriate. The legal issues which arose were undoubtedly important to the prosecutor and to the defendant and required proper professional attention from the lawyers involved in the case, but they were not issues at the cutting edge of the law. It is hard to believe that they could not have been resolved in a half day’s legal argument, if only there had been a half day, and the appropriate judge, available at the same time. The position was not helped by the fact that numerous different solicitors appeared for the prosecution at different times some of whom, it is fair to conclude, may have been more familiar with the case than others. To read the list of appearances in the District Court and the reasons (no matter whose reasons one prefers) for the multiple adjournments is to realise that there was a large element of sheer chance in determining when the case could be processed. Perhaps there was a series of missed chances in the huge number of adjournments: one hopes so, and that other similar cases may be dealt with somewhat more quickly. But however that may be the overall delay is such as, in my opinion, no Court could approve. No defendant, whether innocent or guilty, should normally be asked to endure fourteen years pendancy of a charge. The period of time occupied by the investigation here is hugely beyond the expectations of anyone familiar with commercial forensic accounting enquiries. One realises of course that a forensic accountant’s report does not translate automatically into statements of evidence for a criminal trial. But the League of Credit Unions had prepared an interim report at least at the time the complaint was made here, and there is nothing to justify the enormous lapse of time it took to develop sufficient evidence to prosecute the applicant.
This Court has not enough information before it to say (even if it were relevant to do so) why precisely the unacceptable delays with which this case has been plagued actually occurred. I am far from making findings of fact as to why this may have been, other than to say I am satisfied that none of them can be the responsibility of the applicant. Insofar, however, as the delays in the Court system are concerned I would make a few observations. The number of judge in Ireland is, by European standards, very low indeed. According to “European Judicial Systems”, a 2006 publication of the European Commission for the efficiency of Justice, the Irish ratio of professional judges to each 100,000 of the population is lower, at 3.2, than the ratio applying in any other part of the European Community, apart from England and Wales. In that jurisdiction, however, the 1,305 full time professional judges are supplemented by no fewer than 28,029 lay magistrates and 1,396 part-time professional judges. If these office holders, unknown in Ireland, are counted, Ireland has by far the lowest ratio of judges per 100,000 of population in Europe.
It must be said immediately that those countries in continental Europe who follow a classic civil law system have judiciaries hugely larger than any common law system would simply because that system counts as members of the judiciary persons whose functions are not judicial as we understand the term. It may, for example, include prosecutors. But the point is that even by common law standards our number of judges (which varies, depending on vacancies, between 120 and 130) is very low and there is some evidence to believe that the brunt of the difficulties caused by this are felt in the District Court.
Conclusion.
I would allow the appeal and grant an order of prohibition against the further prosecution of the applicant.
