Supreme Court of Ireland Decisions

Judgment Title: Cormack -v- DPP & ors & Farrell -v- DPP

Neutral Citation: [2008] IESC 63

Supreme Court Record Number: 340/06 & 68/08

High Court Record Number: 2005 835 JR & 2007 702 JR

Date of Delivery: 02 December 2008

Court: Supreme Court

“From the foregoing, a number of matters would appear clear. If the applicant had not absented himself in February, 2003 on the two occasions when his cases were listed, those cases in all probability would have been disposed of within a short number of months.
Secondly, during the following year, February, 2003 to February, 2004, the applicant did nothing to remedy his non-attendance. The fact that he was legally represented on one occasion of his non-attendance should have insured that no matter how forgetful due to alcohol consumption he might have been he would nonetheless been aware of a missed court date.
Thirdly, the gardai were entirely inactive in endeavouring to enforce the warrants for over a one year period.
Fourthly, when a real effort was made (i.e. to enforce the warrants) the applicant was amenable to attend the garda station within a matter of weeks and thus demonstrated that any true effort to enforce the warrants would have been likely to have succeeded.
Fifthly, the gardai allowed a further year in April, 2004 to April, 2005 to pass by without any attempt to execute the warrants. The period of delay in executing the warrants under scrutiny in this case is some two years and for the bulk of that period and certainly for the final year the delay was either entirely caused or greatly contributed to by the inaction of the gardai.
Finally, a sixth matter to take into account is that the extent of the prejudice relied upon by the applicant is limited to a general averment contained in paragraph 16 of his grounding affidavit to the effect, and I quote:-
“The delay has been such as to prejudice me in my defence as I have a very dim memory of the dates in question.”
There is no attempt to provide any specific incidents of prejudice, nor is it explained as to whether the applicant’s memory was ever other than a dim one of the dates in question.”

“Stress and anxiety are not always prejudicial phenomena. Everybody experiences some stress and anxiety in their lives. This is part of the human experience. Indeed, a modicum of stress can be a good thing, serving to motivate the individual to achieve a goal or objective. Stress and anxiety can also be bad for one. They can precipitate, or potentially precipitate, serious illnesses such as stroke or heart attack, or cause a mental breakdown. Moreover they can be oppressive on an individual to such an extent as to impair his/her performance of mental tasks or skilled work, or his/her general enjoyment of life. I believe that for stress and anxiety to be taken into the balance in the manner referred to by Kearns J. (i.e. in PM v. DPP [2006]3 I.R. 172) they must be pathological, with entirely negative effects, and seriously prejudicial. In my view these phenomena must exist at the level where they are impinging on a person’s right to bodily integrity, in the sense of causing illness, physical or mental (or at least predisposing the person to development of such illness), or of causing significant depression. In my view the evidence in this case does not remotely approach what is required.”

“A warrant of apprehension is a command issued to the gardai by a court established under the Constitution to bring a named person before that court to be dealt with according to law. It is not a document which merely vests a discretion in the guards to apprehend the person named in it; it is a command to arrest that person immediately and bring him or her before the court which issued it. That it is a command rather than merely an authority or permission to arrest can clearly be seen from the terms of the warrant in the instant case.”

“It is implicit that a warrant should be issued there and then when the sentence is to be imposed, and where the sentence is imposed on appeal, as soon as reasonably possible. Likewise, once it has issued, it must be executed as soon as is reasonably possible. If not, then a defendant sentenced to a term of imprisonment may find himself or herself serving such sentence at a future date merely through a failure of administrative processes.”

“As far as the efforts of the gardai to execute the warrant are concerned they were in my view minimal and perhaps short of what the court should regard as reasonable. It is true that efforts were made on a few occasions in the immediate aftermath of the issue of the warrant, but thereafter nothing was done. I am always acutely conscious of the limited resources available to the gardai and it goes without saying that, as stated by Carney J., there can be no question that reasonable effort would extend to a “national manhunt”, but I believe that even if further enquiries proved unfruitful the fact that they were made would show intent and would indicate that the gardai did not simply file the warrant away and forget about it when their initial efforts bore no fruit. If such a situation were to be the extent of the effort made to apprehend persons on foot of warrants issued by the courts of this country, the task of evasion so often undertaken by persons hoping to avoid the criminal process would be an easy one indeed, and the rule of law would be in some considerable jeopardy as a result.
There must be a middle ground short of a national manhunt, but in excess of a few unsuccessful knocks on the door. Each case would have to be considered on its own facts.”

“the applicant cannot assert a right to an expeditious trial in circumstances where his own conduct has actually frustrated that right. Any prejudice asserted, even if accepted on foot of the evidence, is too general to constitute specific prejudice … I consider that this is an application which in the first instance should be refused on discretionary grounds by reason of the applicant’s own conduct in absconding from custody and leaving the jurisdiction. On the state of the evidence it is not possible to conclude that culpable delay has been made out either on credibility or on the balance of probability”.

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for enquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to a speedy trial, the length of delay that will provoke such an enquiry is necessarily dependant upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.”

“There must be evidence of something more than normal, something extra caused by the alleged prosecutorial delay”

“I do not think that the courts should normally concern themselves with the degree of anxiety in a quantitative sense requiring proof thereof…the size of the anxiety will be determined by the length of time rather than on any qualitative basis”