Supreme Court allows appeal on prosecutorial delay, requiring balancing of prejudice against public interest.

THE SUPREME COURT

265/2004

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Kearns J.

BETWEEN/

PM

Applicant/Respondent on the appeal

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Appellant

JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of April 2006

1. I have had the advantage of reading in draft the judgment about to be delivered by Kearns J. who has expressed the view that the

appeal should be dismissed having regard to the evidence before the High Court and in reliance on the following passage from the

judgment of Keane C.J. in P.M. v. Malone [2002] 2 I.R. 560 at 572 analysing the consequences of prosecutorial delay.

“The first major consequence may be the loss of his liberty while the trial is pending … The second major consequence is the

anxiety and concern of the accused resulting from a significant delay in his being brought to trial …The third being the

possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme

Court decision in Barker v. Wingo [1972] 407 U.S. 514 in a passage which was approved of in this court in Director of Public

Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed the by the Judicial Committee of the Privy Council in

Bell v. D.P.P. [1985] A.C. 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.

In this case the greater part of the delay of which the applicant complains occurred before he was charged with any offence.

Undoubtedly, there is a distinction between the anxiety and concern of an accused person after he has been charged and

before he has been charged. If the accused’s right to a reasonably expeditious trial is violated by culpable delay which is so

significant as, objectively considered, to cause him anxiety and concern, it would follow that that would be a ground for

prohibiting his further trial where the delay occurred after he had been charged.”

2. Kearns J. has then further relied on a passage at p. 581 of the judgment:

“The essential issue for resolution is, accordingly, as to whether the stress and anxiety caused to the applicant as a result of

the violation of his constitutional right to a reasonably expeditious trial justifies the prohibition of the trial proceeding at this

stage. If this were a case in which it could be said that his ability to defend himself had been impaired and, as a result, there

was a real and substantial risk of an unfair trial, then as pointed out by Denham J. in D v. DPP [1994] 2 I.R. 465, the applicant’s

right to a fair trial would necessarily outweigh the community’s right to prosecute. Where, as here, the violation of the right

has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must

engage in a balancing process. On one side of the scales there is the right of the accused to be protected from stress and

anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and

conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the

offence and the extent of the delay.”

3. I am in complete agreement with the reliance placed by Kearns J. on those passages and I agree with his conclusion that the

appeal should be dismissed. It is important to note that in the judgment of Keane C.J. with which McGuinness and Hardiman JJ.

agreed, the distinction between pre-complaint delay and post-complaint delay is clearly acknowledged. In so far as pre-complaint

delay alone is relied upon to obtain injunctive relief, the risk of an unfair trial is the only issue. Where post-complaint delay is involved

however the discrete right to an expeditious trial comes into play. As has often been adverted to, the two rights may in some

respects often overlap. Where the issue however is one of a fair trial the courts will normally not injunct the trial in the absence of

evidence of probable actual prejudice in the defence. Where however there is a serious issue of blameworthy prosecutorial delay and

the issue is the right to an expeditious trial it would not always be essential to prove actual prejudice in order to obtain injunctive

relief. The court is entitled to consider the anxiety caused by the delay. That anxiety however great may not necessarily constitute

prejudice in the defence. Nevertheless, it is clear that it is a crucial factor in the balancing exercise indicated by Keane C.J., at least

where the offences are sex offences, I do not think that the courts should normally concern themselves with the degree of anxiety in

a quantitive sense requiring proof thereof. It is perfectly obvious that a person who was told that he is on suspicion of having

committed a sexual offence and who is innocent of the offence (and applying the presumption of innocence, this must be assumed by

the court) will suffer a high degree of anxiety. The size of the anxiety will be determined by the length of time rather than on any

qualitative basis. Pre-complaint delay is quite different. It is true of course that in some cases there may be rumour mongering that

reaches the ears of an applicant but if he is an innocent person he may well never have heard any suggestion of his involvement in

sexual offences until he is confronted by the gardaí. Anxiety, therefore, may not come into it at the pre-complaint stage.

4. One of the reasons why I feel constrained to write a short judgment of my own is because the learned High Court judge’s decision

appears to have been based to a large extent on a decision of mine in the High Court in PP v. The DPP [2000] 1 I.R. 403.

Notwithstanding the words I may have used in that judgment, I entirely accept that blameworthy prosecutorial delay does not

automatically give rise to a right to an injunction. What I intended to convey was that in a case where there was very serious

blameworthy delay on the part of the gardaí, prosecuting authorities should not necessarily be allowed to say that the extra delay

caused no provable actual prejudice. The courts have a role in ensuring that the entire criminal process is fair but more importantly,

the right to an expeditious trial which is a constitutional right is seriously infringed if there is substantial blameworthy delay on the

part of the gardaí or the Director of Public Prosecutions and that is a factor which the court should take into account. I entirely agree

that this may have to be balanced by the nature of the offence or some other factors in the particular case. The PP case was never

appealed by the Director of Public Prosecutions and it has been regularly referred to in argument by counsel ever since. Hopefully, this

is because, in practice, it has not been interpreted in the literal way adopted by the learned High Court judge in this case. I fully

acknowledge, however, that it was my choice of wording which led him to that position.

5. The learned trial judge referred to unreported judgments in which trials were not stopped despite some blameworthy delay. Neither

of the two cases i.e. McKenna v. The Presiding Judge of the Dublin Circuit Court or MacNamara v. Judge Uinsin MacGruairc were sex

delay cases. Experience has shown that they must be regarded in a special category for obvious reasons. The McKenna case was a

judgment given in the High Court by Kelly J. and he in fact referred with approval to the PP case but demonstrated that the facts and

circumstances were totally different in McKenna. The MacNamara case was a decision of the Supreme Court in a judgment delivered

by Murphy J. Quite apart from it being a non-sexual case it really bore no relationship to the circumstances dealt with in the PP case.

6. In my view, the position became clarified in BF v. The Director of Public Prosecutions [2001] 1 I.R. 656. That was a decision of this

court in which I happened to give the judgment but it was agreed with by Keane C.J. and Murphy J. Although the PP case was

referred to in the judgment, it is perfectly clear that the decision in BF took into account all the surrounding circumstances and the

nature of the offence and not merely the prosecutorial delay. I do not think that there is any real conflict between BF v. DPP on the

one hand and P.M. v. Malone cited above on the other. It is not without significance that Keane C.J. sat on both courts.

7. In summary, therefore, I entirely agree that a balancing exercise must be carried out but if there is serious blameworthy

prosecutorial delay that is one factor in itself and of itself that must be put into the melting pot when the balancing exercise is being

considered.