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You are here: BAILII >> Databases >> Crown Court for Northern Ireland Decisions >> Fegan & Ors, R v [2001] NICC 12 (26 June 2001)
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Cite as: [2001] NICC 12
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Ref: CAMF3461
Delivered: 26/6/2001
Neutral Citation: [2001] NICC 12
Judgment: approved by the Court for handing down
(subject to editorial corrections)
CAMPBELL LJ
On 16 January 2001 the defendants were returned for trial to the Crown Court sitting in Newry. The preliminary investigation, which began before the Resident Magistrate on 24 May 2000, lasted for a period of almost eight months during which time various applications were made on behalf of the defendants. At a hearing on 20 December 2000 an application was made to the Resident Magistrate to stay the proceedings as an abuse of process of the court by reason of delay on the part of the prosecution. This application was dismissed.
The defendants now renew their application before this court. They do so both at common law and under Article 6 (1) of the Convention, the relevant part of which provides:
"In the determination of ….any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time….."
In the indictment it is alleged that at various dates between 18 August 1991 and 21 December 1996 the accused defrauded the Ministry of Defence, playing various roles in making false claims for compensation for injuries said to have been caused to animals by low flying helicopters.
The first and second defendants Seamus Michael Fegan and Edward Rooney are veterinary surgeons. In the bill of indictment Michael Fegan is named in 44 counts of conspiracy to defraud at common law and 18 counts of false accounting contrary to section 17(1)(a) of the Theft Act (Northern Ireland) 1969. Edward Rooney is named in 18 counts of conspiracy to defraud and 8 of false accounting.
Liam Anthony Francis McCullough is named in 5 counts of conspiracy to defraud and 1 of furnishing false information contrary to section 17(1)(b) of the Theft Act (Northern Ireland) 1969 and his wife Patricia Anne McCullough is named in 32 counts of conspiracy to defraud, 2 of false accounting and 32 of forgery contrary to section 1 of the Forgery and Counterfeiting Act 1981.
The convention right to a hearing within a reasonable time (Article 6(1)).
The principles to be applied, as derived from the judgments of the European Court of Human Rights and of national courts, are
1. The purpose of Article 6 is to avoid a person charged remaining too long in a state of uncertainty about his fate. (Stogumuller v Austria (1969)1 EHRR 155 para.5);
2. A person is charged when his situation has been 'substantially affected' by the proceedings taken against him. It may also be defined as "the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence."
(Deweer v Belgium (1980) 2 EHRR 439 para 46 and Eckle v Federal Republic of Germany (1982) 5 EHRR 1);
3. This will usually be the date of arrest (Ewing v United Kingdom (1988) 10 EHRR 141) or the date of charging (Flowers v The Queen [2000] 1 WLR 2396). In some instances it may take the form of other measures, which carry the implication of an allegation of a criminal offence, which likewise substantially affect the situation of the suspect. (Foti v Italy (1983) 5 EHRR 313);
4. The reasonableness of the length of the proceedings has to be assessed in each instance according to the particular circumstances. The court has regard to, amongst other things, the complexity of the case the conduct of the applicant or applicants, the progress of any investigations and the conduct of the judicial authorities. (Eckle v Federal German Republic supra. Para 80); There is no universally applicable norm against which the period in a particular case can be compared. (Caroline McNab v HM Advocate 2 September 1999).
5. It is not necessary for a defendant to show that prejudice has been, or is likely to be caused, by the delay. (Crummock (Scotland) Ltd v Her Majesty's Advocate (2000 JC 408);
6. If the passage of time is likely to be prejudicial to a defendant this will weigh heavily in favour of giving the case priority over others where such prejudice is not regarded as likely. In this respect absence of prejudice is very relevant to the issue of reasonableness. (Gibson v HM Advocate 2001 JC 125 at 129 F);
7. The period governed by Article 6(1) covers the whole of the proceedings in issue, including appeal proceedings. (Eckle v Federal Republic of Germany supra. Para. 76);
8. Blame does not attach to a defendant for using all the remedies available under the law, even though in doing so he prolongs the proceedings. (Reinhardt and Slimane-Kaid v France (21/1997);
9. If the defendant is detained in custody this is a factor to be taken into account in assessing reasonableness.(Abdoella v Netherlands (1992) 20 EHRR 585);
On 18 January 1996 the offices of the veterinary practice of the defendants Fegan and Rooney, in Bridge Street in Newry and in Duke Street in Warrenpoint were searched and a number of documents and computer records were removed. On the same day the homes of Mr Fegan and Mr Rooney were also searched. A number of diaries and a Barclay's cash slip were removed from Mr Fegan's house and a number of personal financial records were taken from Mr Rooney's house. These searches were all carried out under the authority of warrants issued on 16 January 1996 by a County Court Judge under the special procedure in the first schedule to the Police and Criminal Evidence (NI) Order 1989. On the face of these warrants it is stated that the documents were sought in connection with the offence of obtaining property by deception contrary to section 15 of the Theft Act (Northern Ireland) 1969.
Mr Fegan and Mr Rooney were both arrested on 11 June 1997 and following their arrest they were each interviewed at Banbridge RUC station.
These proceedings are one of a number of prosecutions brought against those alleged to have been involved in making false claims against the Ministry of Defence for damage to livestock due to low flying helicopters. They result from an investigation known as 'Operation Saddle', which began in late September 1995.
In February 1997 during an application in other criminal proceedings, arising as a result of 'Operation Saddle', counsel for the Crown informed the judge that a number of other people were under investigation and he handed into court a list of names, which included that of Liam McCullough. Mr McCullough was arrested at his home in Camlough on 10 June 1997 and taken to Banbridge where he was questioned. He was released and re -arrested on 23 March 1999 and taken to Armagh where he was again questioned. His wife was also arrested on 23 March 1999 and she too was taken to Armagh for questioning.
The dates of 'charging'.
The defendants Fegan and Rooney invite the court to hold that they were 'charged' when their homes and business premises were searched, on the authority of warrants, on 18 January 1996. They say that from this moment they were substantially affected and began to be uncertain about their fate.
Where a serious arrestable offence has been committed a search warrant may be issued to obtain material that is likely to be of substantial value to the investigation and to be relevant evidence. At this stage the police officers carrying out a search may not know if the occupier of the premises is to be charged. The purpose of the search may be to discover if there is material which together with any other evidence provides a basis for charging the occupier with an offence.
The Crown say that the earliest date on which the defendants Fagan and Rooney were 'charged' was when they were arrested on 11 June 1997.
A search of business premises and the home of a defendant may be regarded as the date of 'charging'. (See e.g. Frank Doherty v HMA 14 January 2000). It must depend upon the particular circumstances of the case.
The searches of the two offices of the veterinary practices and the homes of each of the defendants and the removal of a large number of records from the offices and of personal papers from their homes carried the implication of an allegation that they had committed a criminal offence and substantially affected their situation. I hold that the commencement of the period to be taken into account is 18 January 1996.
Liam McCullough knew from February 1997, when Crown counsel so informed a judge, that he was being investigated. I treat this as the date on which he was charged in the context of Article 6(1) and not the date of his first arrest on 10 June 1997 as the Crown has suggested.
Patricia McCullough was arrested on 23 March 1999 however it is submitted on her behalf that she was 'charged' when her husband was first arrested in June 1997. In support of this contention Mr Kearney, (who appears for Mrs McCullough, with Mr Lyttle QC) relies on a passage in Eckle where the court said, at paragraph 74:
"In this connection, the court does not deem it necessary, as the Government at one point seemed to have in mind, to draw any distinction between the two applicants, for although the investigation does not appear to have been directed against Mrs Eckle from the outset, she must have felt the repercussions to the same extent as her husband."
The facts in that case show that Mrs Eckle worked with her husband in the business from it began. She was closely involved in it with her husband and it was the level of pricing by the company that was under investigation.
When the police interviewed Mr McCullough in June 1997 it was not suggested to him that his wife had any part in the fraud that was being investigated. It was in March 1999 that this was first suggested at interview and at that time Mrs McCullough was herself in custody and being interviewed about the authorship of some of the documents. The information in February 1997 that her husband was being investigated and his subsequent arrest in June 1997 did not carry with it any implication, on the part of the prosecution, of an allegation of a criminal offence having been committed by her. The date of 'charging' in her case is therefore the date of her arrest, as contended for by the Crown, which is 23 March 1999.
Is the overall period of delay prima facie unreasonable requiring an explanation from the prosecution?
The approach of the Crown is that the periods in question in each of these cases are such that they do not call for any detailed explanation. The Crown has reserved the right to produce an explanation if it becomes necessary.
It is now 5 years and 5 months from the date on which Mr Fegan and Mr Rooney were 'charged'. Between 24 May 2000 and 16 January 2001 when they were returned for trial they made a number of applications before the Resident Magistrate, which they were entitled to make, but inevitably this protracted those proceedings. This accounts for 8 months of the total period and during this period the Crown is not responsible for delay. In effect the period for which the Crown is answerable is 4 years and 9 months.
Since 'Operation Saddle" commenced in September 1995 there have been a number of trials involving a defendant called Sands and a trial involving two defendants, Cunningham and Fitzpatrick. The trial of Sands began on 14 May 1996 and following a disagreement the retrial began on 1 October 1997. The jury was discharged and the trial recommenced on 9 February 1998. Mr Sands was convicted on 20 February 1998 and sentenced on 24 June 1998.
The trial of Cunningham and others was venued from Newry to the Crown Court sitting in Belfast. The defendants pleaded guilty and were sentenced in Downpatrick on a date after the 16 March 1998.
The Director of Public Prosecutions received the file in the case of Mr Fegan and Mr Rooney (compiled following their arrest and interview in June 1997) together with files relating to 23 others on 6 February 1998. An interim direction was given on 26 May 1998 instructing further inquiries.
The homes of a William McCullough and of Liam and Patricia McCullough were searched at some stage and the arrest of Mr Liam McCullough and his wife followed on 23 March 1999.
The inquiries were completed in time for the committal hearing to begin on 24 May 2000. I do not regard the period from March 1999 to May 2000 to be by any means excessive for inquiries in relation to the McCulloughs to be completed and the directions to be issued.
It is apparent that the cases are interconnected as there are counts in the indictment in which Mr Fegan and Mrs McCullough are jointly charged, others where Mr Rooney and Mrs McCullough are jointly charged and another in which Mr Fegan and Mr and Mrs McCullough are all jointly charged. It is preferable that those who are jointly charged should be tried together. This is a factor that has to be taken into account and balanced against the period of time that has elapsed since Mr Fegan and Mr Rooney were 'charged'.
Mr Gallagher QC (who appears with Mr Kevin Magill for Mr Fegan) told the court that the Crown case consists of 153 witness statements and that 93 of these were recorded before the end of 1997 and that 8 were taken in 1998 and 33 in 1999 and a further 19 in the year 2000. It is suggested that those taken from 1998 on were "largely continuity statements" and many were taken in relation to Mr and Mrs McCullough.
I am required to have regard to a number of factors including the complexity of the case. It was urged upon me that this is not a complicated case and that all the information was readily available in computer records. This would seem to be an underestimation of the task facing the prosecution.
I was informed that between March 1994 and March 1995 in Northern Ireland there were 3,374 claims that damage had been caused by military helicopters and that over £6m was paid out of public funds. An analysis revealed that 94.6% of these claims were from South Armagh and of these, 56% were verified by certificates from the veterinary practice of Mr Fegan and Mr Rooney.
The inquiry, which focussed on this period, has generated around 20,000 documents.
In these circumstances, including the fact that it was not under the imperative that either Mr Fegan or Mr Rooney was in custody, it is submitted by the Crown that a period of 4 years and 9 months is not unreasonable without any further explanation.
While counsel for Mr Fegan and Mr Rooney do not accept that any substantial part of the entire period can be regarded as reasonable they have drawn attention to the time that elapsed between the interim directions being issued on 26 May 1998 and the arrest of Mr and Mrs McCullough on 29 March 1999.
One of the many factors to be taken into account is the progress of the investigation. This period of almost a year, while not necessarily making the entire period excessive, does in my view call for an explanation.
Before I make any decision as to the reasonableness of the length of the proceedings against Mr Fegan and Mr Rooney I shall give the Crown an opportunity to provide such further information as may be advised on the progress of the investigation.
The effective period of time that has passed since Mr McCullough was 'charged' is 3 years and 8 months (disregarding the 8 months of the preliminary inquiry). At no time was he in custody. While I do not regard this as prima facie excessive as the period between 26 May 1998 and 29 March 1999, to which my attention has been drawn, falls after the date of his 'charging' I shall defer any decision in his case until the Crown has had an opportunity to provide any further information.
Mrs McCullough has been subject to a 'charge' since 23 March 1999 and if 8 months are deducted, to allow for the preliminary inquiry, the period is 1 year and 7months. This does not call for any explanation from the Crown especially as she has not spent any time in custody.
The exercise of the jurisdiction of the court to stay proceedings at common law.
The Lord Chief Justice in delivering the judgment of a Divisional Court in Re DPP's application [1999] NI 106 said at page 117:
"The jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons."
The threshold is effectively higher than for an application under Article 6(1). As counsel frankly admitted it is introduced to provide an opportunity to put before the court the question of prejudice due to delay.
In Re DPP's application (supra) the Lord Chief Justice said that the element of prejudice may depend on the nature of the issues and the evidence against the defendant.
The prejudice suggested so far as witnesses are concerned is that Mr William McCullough, who was also being investigated, died on 13 November 1999. Mr Fegan's former secretary Martina Morgan emigrated to the United States in 1997 and he has lost contact with her. A Mr Henry Murphy has also died and he was a farmer in South Armagh who was also under investigation.
With regard to documents and photographs, during the preliminary inquiry a Mr W G Shaw was asked about Polaroid photographs that were taken of dead or injured animals. He said that these were given to the Ministry of Defence at the time of settlement of claims. To date the Crown has only produced a very small number of these and the rest may have been lost.
The Newry Office of the Department of Agriculture was destroyed in 1997 and records stored there of TB inspections by veterinary surgeons in the area were lost. It is also said that the topography of many farms will have changed due to drainage and farm improvement schemes.
Assuming that all these matters are correct I am not persuaded that any of them, on the information placed before me, individually or collectively could provide a compelling reason for staying these prosecutions.
The application of Mr Fegan, Mr Rooney and Mr McCullough is adjourned to allow the Crown to produce further information on the Article 6(1) application. The application of Mrs McCullough under Article 6(1 is dismissed.
The applications made by each of the defendants at common law are all dismissed.