Supreme Court allows appeal, dismissing judicial review and discharging injunction due to unmeritorious delay by applicant.

THE SUPREME COURT

No. 207 & 208/04

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Macken J.

between

T.H.

Applicant/Respondent

v

THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE PETER SMITHWICK

Respondents/Appellants

JUDGMENT of MR JUSTICE FENNELLY delivered on the 25th day of July, 2006.

1. The applicant commenced judicial review proceedings in 1997. He wished to prohibit his trial on a charge of sexual assault. His

central claim was that the Director of Public Prosecutions, the appellant, had applied improper pressure on him to plead guilty in the

District Court. McKechnie J, in a comprehensive judgment delivered in March 2004, rejected the argument based on that ground. He

prohibited the trial, nonetheless. He held that there had been delay on the part of the appellant as a result of the seven years it had

taken to dispose of the case, that the applicant’s right to an expeditious trial had been breached and there could not now be a fair

trial. The appellant has appealed. He says that the delay was caused by the unmeritorious proceedings taken by the applicant and

the way in which he conducted them. The applicant has filed a Notice to Vary in which he seeks to uphold the judgment of the High

Court on the ground originally advanced in support of his application for judicial review but which was dismissed by the learned trial

judge. It should be noted that the second-named respondent, His Honour Judge Peter Smithwick has taken no part in the

proceedings. The appellant is the Director of Public Prosecutions.

2. This Court is not unfamiliar with applications to prohibit criminal trials where there has been lengthy delay. According to a well-

developed jurisprudence, applied in many cases in recent years, the Court has jurisdiction to prevent the further prosecution, on the

ground of delay, of offences alleged to have been committed many years previously. It is, however, unusual, to say the least, and

unique in my experience, for an accused person to profit from delay which is the result of unmeritorious proceedings which he has

himself prosecuted.

3. The Notice to Vary challenges the judgment of the learned trial judge on nineteen grounds. Whether the order of prohibition

ultimately made by the learned trial judge was warranted can best be understood against the background and history of the judicial

review proceedings and their outcome. It is not possible to separate consideration of the issue of delay from the question of the

merits of the judicial review application.

4. The learned trial judge has given a thoroughly comprehensive account both of the facts and the arguments. It is sufficient for me

to give a brief summary and to indicate my opinion on the High Court judgment.

5. In a summons issued on 26th September 1996, the applicant was charged with the offence of sexual assault on a male person

contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. Over a number of hearings in the District Court, the

applicant through his counsel sought to show that the case should be disposed of summarily. His solicitor wrote on 20th November

1996 to Inspector Delaney of an Garda Síochána seeking an explanation as to the basis on which the trial was to proceed on

indictment when, in the solicitor’s view, the matters alleged were of such a nature that they ordinarily should be disposed of by way

of summary trial. But his client did not wish to plead guilty. The applicant originally made a number of complaints regarding the

conduct of the appellant and of the several judges of the District Court who dealt with the matter. He was refused leave to apply for

judicial review in respect of these matters. Leave was also refused in respect of alleged delay between the date of the alleged

offence and the commencement of the prosecution. These matters are of no relevance, although they demonstrate from the outset

the applicant’s case was conducted in a tendentious way. A flavour of these events can be gathered from the judgment of Hardiman

J, delivered on 30th January 2001 in Hannigan v Director of Public Prosecutions [2001] 1 I.R. 378. He referred to these hearings in the

following passage (see page 379):

“The applicant makes numerous complaints about the manner in which this allegation was investigated, about the

circumstances in which the summons was served on his mother, and about events which occurred when the complaint came

before the District Court, in particular on the question of whether the charge was to be dealt with on indictment or

summarily. He ventilated these complaints at great length at the hearing before the learned second respondent, and when the

results of this hearing were unsatisfactory to him he sought relief by way of judicial review.”

6. Morris J, as he then was, on 14th February 1997 gave leave to apply for judicial review on two grounds, only one of which is now

relevant. The other was that there “had been a pattern of abuse of process and unfairness amounting to oppression and a denial of

the right to constitutional justice…” This ground was rejected by McKechnie J in his judgment after a full hearing and there is no

cross-appeal or notice to vary in respect of it. The order of 14th February 1997, granting leave, also restrained the appellant from

further prosecuting the applicant in respect of the said offence. That order is still in force.

7. The first ground on which leave was granted may be summarised as follows. The offence with which the applicant was charged is

“indecent assault upon any male person” contrary to section 2 of Criminal Law (Rape) (Amendment) Act, 1990. The section says that

the offence is to “be known as sexual assault.” Section 2(2) of that Act provides:

“A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5

years.”

8. Although, therefore, this is an indictable offence, it may, in certain circumstances, be dealt with summarily. Two relevant provisions

have been debated in the present case. Section 12 of the Criminal Law (Rape) Act, 1981, as amended by section 16 of the Act of

1990, provides:

"12.—(1) A justice of the District Court shall have jurisdiction to try summarily a sexual assault or an offence to which section

11 relates if—

(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a

minor offence fit to be tried summarily,

(ii) the Director of Public Prosecutions consents, and

(iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,

and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £500 or, at the discretion

of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.

(2) Section 13 of the Criminal Procedure Act, 1967 (which provides for the procedure where a person pleads guilty in the

District Court to an indictable offence) shall apply in relation to an offence mentioned in subsection (1)… [there follows a

provision regarding penalty which is not relevant]"

9. Section 13(2) of the Criminal Procedure Act, 1967 is the section to which section 12(2) of the 1981 Act applies. The latter part of

section 12(2) deals with penalties and does not arise in the present case. Section 13(2) of the 1967 Act provides:

"(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to

plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may—

(a) with the consent of the Attorney General, deal with the offence summarily, in which case the accused shall be liable

to the penalties provided for by subsection (3), or

(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if he had

pleaded not guilty, he could lawfully have been sent forward for trial."

10. In short, section 12(1) of the 1981 Act provides that there may be a summary trial of the indictable offence of sexual assault.

Section 12(2) provides that there may be a plea of guilty in the District Court. On such a plea and with the consent of the Director of

Public Prosecutions (who must be substituted for the reference to the Attorney General), the person charged may be sentenced in

the District Court.

11. I do not intend to repeat the facts which are very fully set out in the judgment of the learned trial judge. Undoubtedly, some

confusion was created by the fact that it was proposed at one stage to put the applicant “to his election.” This appeared in a letter

dated 13th December 1996 from the responsible Chief Superintendent and was described by the learned trial judge as “unfortunate.”

It also appears that the solicitor appearing for the appellant argued, in the first instance, that the appellant (the Director) would

consent to summary trial pursuant to section 12(1) but only on condition that the applicant indicated that he would plead guilty.

McKechnie J rightly held that section 12(1) did not admit of such a procedure. The Director might consent to summary trial, but he

had no right to impose conditions on the accused. It seems to me that it was this incorrect statement of the Director’s position that

gave rise to all or almost all of the arguments of the applicant regarding pressure and oppression.

12. However, the solicitor appearing for the appellant clarified the appellant’s position in a passage reproduced in a transcript of the

District Court hearing. He said:

“What I meant to convey was that it is clear to me and I am instructed that s. 12(1) does not apply in the present

circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have

the matter dealt with summarily on a plea of guilty. Now I didn’t make that clear I think.”

13. The learned trial judge expressed his conclusion on this issue as follows:

36. “It therefore seems to me, from a reading of the entire of this part of the state solicitor's submission that whatever

confusion of language may have existed at the beginning, Mr. O'Hanlon's position was fully and totally clarified as he continued

into these exchanges with the President. In my view, this is abundantly clear from the passages above quoted. If the position

was otherwise, as is being suggested by the applicant, namely that s. 12(1) was to apply, but only on a plea of guilty, then

there was no necessity to refer to s. 12(2) and certainly the quoting of s. 13 of the 1967 Act and the comments thereon,

were entirely inappropriate and valueless. I could not under any circumstances agree that the exchanges meant, or were

intended to mean, that the D.P.P. was attempting to impose an additional statutory requirement before he would give his

consent to having the case disposed of under s. 12(1) of the 1981 Act. In the circumstances, I have no doubt whatsoever but

that Mr. O'Hanlon,[who appeared for the Director in the District Court] ultimately conveyed, to the clear and definite

understanding of the President, what the D.P.P.'s position was. On a plea of guilty he would consent to the case being disposed

of in the District Court, but not otherwise. This, necessarily, must have meant that the only relevant statutory provision was

s. 12(2) of the 1981 Act, as that subsection applied s. 13 of the Criminal Procedure Act, 1967.

This view is entirely consistent with the transcript of the relevant submissions and also is entirely in accordance with the only

instructions which the state solicitor had from the D.P.P. I therefore believe that the premise upon which the applicant mounts

this argument is incorrect and that factually there are no grounds in existence which could possibly establish the basic

framework, which would be necessary in order to justify the acceptance of the legal submissions made thereon.

37. In addition, of course, and of fundamental importance is the fact that the accused person was never asked how he

proposed to plead, he never pleaded and was never in any other way, or by any other means "put on his election". He at all

times had a full legal team advising and representing him. So even if the intention of the D.P.P. was as is argued for on behalf

of the applicant, nevertheless no act, or event resulted therefrom and no detriment was causally or otherwise linked thereto.”

14. I fully agree with the foregoing analysis. By the conclusion of the hearing in the District Court, there remained no room for doubt

that the prosecution were no longer proposing, pursuant to section 12(1) of the 1981 Act, that the case would be dealt with

summarily, provided that the applicant indicated in advance that he would plead guilty. The prosecution was indicating only, pursuant

to section 12(2) read with section 13(2) of the 1967 Act, that, in the event that the applicant pleaded guilty, the Director would

consent to the matter of sentence being dealt with summarily.

15. The Notice to Vary and the extremely lengthy submissions made in the High Court and in this Court complain, however, that there

it is a deeply offensive and improper procedure for the Director to indicate in advance that he is prepared to consent to summary

jurisdiction for the purposes of sentencing, where the accused pleads guilty. The applicant also rehearses once more the entire

matter of the alleged “putting to election” and the application of section 12(1). As the learned trial judge said:

“There was, it should be said, no attempt to put the applicant “on his election” and at no time while this matter remained in

the District Court was he ever so put.”

16. As regards section 12(2), the applicant submits that it is not open to the appellant to have the applicant asked in the District

Court how he pleads to an indictable offence. He repeatedly and wrongly describes this procedure as an “arraignment”. He says that

the effect is an inducement, coupled with a threat, to plead guilty which is unlawful. He submits that only the accused may initiate

the plea procedure pursuant to section 13 of the 1967 Act. The Director may not indicate his attitude in advance and the District

Court Judge may not inquire of the accused whether he wishes to plead guilty.

17. In my view the application was unmeritorious for all the reasons so comprehensively set out in the judgment of the learned trial

judge. I can see no objection whatever to the District Court ascertaining whether an accused person wishes to plead guilty, though a

judge must be very careful not to appear to put any pressure on him or her to do so. I would add that, in the actual circumstances of

this case, the applicant’s complaint was especially lacking in the slightest merit. The applicant was well represented by solicitor and

counsel. It is patent from the entire history of the matter over several lengthy hearings in the District Court that he had the benefit

of their advice. There was, therefore, no question whatever of his being oppressed or induced by the appellant to plead guilty if he

did not want to do so. Therefore, I would approve of the judgment of the learned trial judge in rejecting the application for judicial

review on the first ground in respect of which Morris P granted leave.

18. It is necessary then to turn to the immediate matter which brings the case before this Court. By order of the High Court dated

9th December, 2002, the applicant was granted liberty to amend the statement grounding his application for judicial review by the

addition of the following ground:

" … there has been delay which would make the further prosecution of the alleged offence otherwise than in accordance with

law and contrary to Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human

Rights".

19. In support of the additional ground, the applicant provided a detailed chronology of the judicial review litigation covering the

period from 7th October 1995 (when the applicant was first detained) to 20th November 2002. At no point does that chronology refer

to the evidence that may be given at a future criminal trial or suggest that such a trial might be unfair. The applicant then relied on

the following:

“8. I say that the period of time during which I have been kept in the criminal process has been especially oppressive for me

because of the nature of the alleged offence. I say that for more than seven years my whole life has been dominated by the

ongoing proceedings and the pending prosecution. There is no point in trying to advance myself because everything would be

destroyed just by the publicity surrounding even a successful defence of the charge. In the community in which I live, any

publicity or association of me in relation to such a charge would in reality be the same as a conviction and I would be tarred

with a brush which would destroy both myself and my family. I say that every single day I have had feelings of despair about

this situation and that I have been psychologically traumatised by the past seven years."

20. It should be noted that nothing either in the extended ground permitted by the order of 9th November 2002 or in the affidavit in

support suggested that the applicant was likely to be subjected to the risk of an unfair trial.

21. The approach of the learned trial judge to the question of delay was as follows. He cited a number of authorities for the

proposition that the applicant had the right to a speedy or expeditious trial. He referred, in particular to the judgment of Finlay C.J. in

Hogan v President of the Circuit Court [1994] 2 I.R. 513, at page 521, stating that the state authorities “in the bringing forward of

this prosecution have disregarded what I am satisfied is their obligation to provide for and protect the right of an accused person to

an expeditious trial as a positive constitutional right.”

22. He quoted from the affidavit of the applicant to the effect that the criminal process had been oppressive for him, that he had

feelings of despair and was psychologically traumatised. He said that this was uncontradicted.

23. He conducted a detailed analysis, on a year by year basis, of the history of the judicial review proceedings and identified three

periods in respect of which he attributed blameworthy delay to the appellant. Firstly, there was a period of five months taken for filing

the first affidavit of discovery. Secondly, there was a period of from 27th January 1998 to 28th July 1998 concerned with resolving

complaints concerning defects in the affidavit of discovery. Thirdly, there was a period from 30th January 2001 to 20th November

2002 during which the appellant failed to produce for inspection a particular single document which an order of this Court had directed

should be produced. Significantly, the learned trial judge did not attach any blame or responsibility to the applicant for any of the time

taken by his judicial proceedings. He rejected the appellant’s submissions that the applicant had been predominantly responsible for

the delay and that the entire appeal process, in respect of discovery, had been unwarranted and unnecessary.

24. He concluded as follows:

“Taking these three periods only and without having recourse to any other time span it appears to me that, in the

circumstances of this case the same amount to an unreasonable and inordinate delay, for which the D.P.P. must bear full

responsibility. The total time span is about two years and nine months. The applicant cannot be held to be blameworthy for

any portion of this time.”

25. He concluded that he should apply a balancing test, measuring, on the one hand, the rights of the accused person to trial with

reasonable expedition, and on the other, the interest, in the public good, of continuing the prosecution.

26. He concluded his judgment with a number of detailed comments on the quality of the evidence in the case. He commented as

follows:

"Finally I would like to make some observations on the question of a fair trial. As is common case there is a single charge of

sexual assault against the applicant. This is alleged to have occurred on 23rd June, 1995. Though an identification parade took

place on 7th October, 1996 that matter is not in my view in anyway conclusive on the question of guilt or innocence. There

remains a considerable body of further evidence which will have to be explored. Some of these matters are as follows:-

(a) In the initial statement of complaint to the Gardaí the complainant refers to several acts of sexual abuse allegedly

committed by A.B. and in the process refers to a third party, whom he identified by a particular name but who otherwise was

unknown to him. The victim also says in that statement that he had two litres of cider that night,

(b) In a statement made to the Gardaí by the complainant's sister, she recalls that the said complainant was very drunk on

the night in question, that he could not stand up and was getting repeatedly sick. She claims that he informed her he got drink

and thereafter got hash,

(c) In a statement by the complainant's mother to the Gardaí she states that on the day following she asked her son about

the previous night but in response he said he couldn't recall anything,

(d) In an interview with the Area Medical Officer on 1st August, 1995 the victim repeated the allegation against the third

party, then identified by a particular name, but did so in terms different from other occasions upon which the allegation was

also repeated."

27. He added that these are but instances of where further exploration of the evidence will be necessary, stating: “There remains a

considerable body of further evidence which will have to be explored.” He then said:

“I have a real concern given the circumstances surrounding this alleged sexual assault and the lapse of several years since its

alleged occurrence that in any trial the memory of the most critical witnesses will be distorted forcing them to fall back on

and refer to statements. This would be most unsatisfactory. I therefore also therefore believe that if this trial should proceed

there is a real risk of the accused person not obtaining a trial in due course of law.”

28. As I have already said, there was nothing in the order giving leave to extend the grounds for judicial review to suggest that there

was a risk that the applicant would not have a fair trial. Since the matter was effectively frozen in the District Court, no book of

evidence had been served. However, pursuant to an order of the District Court, the prosecution under cover of a letter from

Superintendent P. J. Brennan had furnished a “copy of file as requested,” which contained the equivalent of a book of evidence. This

had been exhibited in an affidavit sworn by the applicant’s solicitor on 13th February 1997. This seems to have been the basis upon

which the learned trial judge embarked on an examination of the quality of the evidence likely to be proffered at a criminal trial.

29. I turn then to the submissions of the appellant. He submits that the applicant chose to bring judicial review proceedings which

were completely misconceived, based on a complaint that he had been “put to his election” in the District Court, which was found to

be completely without foundation. The learned trial judge failed to give sufficient weight to the fact that it was the applicant who had

started these proceedings and had carriage of them. It was not appropriate to apply principles derived from the responsibility of the

Director of Public Prosecutions for delays in terms of the investigation of crime and the pursuit of a case through the District Court to

the distinct circumstance of a judicial review proceeding in the High Court. Those are civil proceedings; each party is represented on

an equal footing and each may bring a motion before the court to complain of any delay. At an extreme, the implication of the High

Court judgment is to reduce the incentive for an applicant to expedite the proceedings. Any decision by a judge, in the exercise of

judicial discretion, to adjourn a case may, without the need to appeal it, be used as part of the delay argument.

30. The applicant, on the other hand, fully supports the conclusions of the learned trial judge for all the reasons given by him. He

argued that there had been blameworthy delay by the appellant, which had amounted to a breach of his right to an expeditious trial.

31. There are two distinct aspects of the ruling of McKechnie J. Firstly, he held that the applicant had been deprived, by reason of

blameworthy delay on the part of the appellant of his right to a speedy or expeditious trial. Secondly, and finally, he expressed

concern about the possibility of a fair trial and concluded that there was a real risk that the applicant would not have a fair trial.

32. It is surprising that the learned trial judge embarked on the latter question. It formed no part of the ground on which the applicant

was permitted to extend his grounds for judicial review in November 2002. There is no suggestion in the affidavit of the applicant

sworn at that time that his trial will be unfair. As counsel for the appellant state in their written submissions, “one searches in vain for

any reference to any prejudice beyond the applicant’s general complaint that his life had become dominated by the proceedings.” It

appears that counsel for the applicant made a number of submissions based on the book of evidence supplied with the letter from the

Superintendent and that the learned trial judge has taken these on board in his judgment. However, I believe that the applicant

should not be permitted to succeed on a ground in respect of which he never obtained (or, indeed, even sought, judicial review). It is

clear that the applicant raised the issue of prejudicial delay in 1997, but he was refused leave on that ground at that time. He

certainly made no case based on prejudice to the fairness of his trial when he sought to extend the grounds in 2002. It is, of course,

an essential precondition to being permitted to argue a ground for judicial review that leave shall have first been obtained. This was

not done in respect of the allegation of a real risk of an unfair trial. I would, therefore, allow that appeal insofar as the ruling is based

on this second aspect of the ruling of the learned trial judge.

33. I turn then to the first and principal ground. I regret to say that I consider that the learned trial judge, having impeccably,

thoroughly and correctly considered and rejected the applicant’s case based on the original leave, fell into error in considering the

issue of delay.

34. It is necessary to make a very important preliminary point concerning the relevance of decisions of the European Court of Human

Rights, especially the decision of that court dated 15th December 2005 in Barry v Ireland (Application no. 18273/04), which have

been cited on behalf of the applicant. McKechnie J considered that “prior to the coming into force of the European Convention on

Human Rights Act 2003, the Articles of the Convention did not have the force of law in this jurisdiction.” Moreover, he also did not

consider it necessary to consider Article 6 of the Convention. The issue before this Court is whether it should uphold the decision of

McKechnie J to grant an injunction restraining the continued prosecution of the applicant. The reasoning of the Court of Human Rights

may provide useful guidance on that matter. However, as I will explain at a later point, that Court was not considering and did not

decide that Dr Barry, the applicant in that case, had a right to have his trial discontinued.

35. It is of prime importance, at the outset, that the applicant was the initiator of the entire judicial review process and that his

application was without merit. It is true that it survived the low threshold for leave to apply for judicial review. However, it must

always have been obvious to the applicant and his advisers that the applicant was not, in fact, put under any pressure to plead or

not to plead. Whatever may be said about the initial mistaken approach of the Director, the applicant himself, with the benefit of the

legal advice which he had at his disposal, knew his rights. More importantly, it was, as the learned trial judge said in his judgment, “of

fundamental importance …… that the accused person was never asked how he proposed to plead, he never pleaded and was never

in any other way, or by any other means "put on his election.” This fundamental fact was known to the applicant when he initiated

his judicial review application and, in my view, it has a very significant bearing on the court’s consideration of the entire matter.

Moreover, from the moment of commencement of the judicial review proceedings, the Director has been restrained, at the behest of

the applicant, by injunction from continuing with the criminal prosecution.

36. This is not to say that the Court will not, in an appropriate case, consider that there has been such extreme and reprehensible

delay on the part of the state authorities in handling judicial review proceedings that restraint on further prosecution would be

justified.

37. I believe that the learned trial judge was mistaken in applying to this situation the case-law relating to prosecutorial delay. The

first and principal authority he cited was to the effect of the delay by the “state authorities in the bringing forward of this

prosecution…” (Hogan v. President of the Circuit Court, cited above). He cited numerous authorities including D.P.P. v. Byrne [1994]

2 I.R. 236; State (O'Connell) v. Fawsitt [1986] I.R. 362; P.C. v. Director of Public Prosecutions [1999] 2 IR 25; P.P. v. Director of

Public Prosecutions [2000] 1 IR 403; B.F. v. Director of Public Prosecutions, [2001] 1 IR 656; P.M. v. Malone [2002] 2 IR 560; J O'C v.

D.P.P. [2000] 3 I.R. 478. He also referred to the decisions of the Supreme Court of the United States in United States v. Marion 404

US 307 [1971] and Barker v. Wingo 407 US 514 [1972]

38. The learned trial judge seems to have been influenced by the statement in the affidavit of the applicant, quoted above, that his

whole life had become dominated by the pending prosecution. He describes this as uncontradicted. However, as is submitted on

behalf of the appellant, this is not a feature to which much weight can realistically be attached. The allegations made are personal

and subjective. They are virtually incapable of objective analysis. Geoghegan J commented on the correct approach to allegations of

anxiety in his concurring judgment in PM v Director of Public Prosecutions (Supreme Court, unreported 5th April 2006) as follows:

"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.”

39. In any event, it seems to me that the central complaint made by the applicant in this case is truly unrelated to delay. He says, in

particular:

“There is no point in trying to advance myself because everything would be destroyed just by the publicity surrounding even a

successful defence of the charge. In the community in which I live, any publicity or association of me in relation to such a

charge would in reality be the same as a conviction and I would be tarred with a brush which would destroy both myself and

my family.”

40. His real concern is that he should be tried at all and relates to the associated embarrassing publicity. Furthermore, to the extent

that the applicant suffered additional distress or worry, this was particularly caused by the fact that he took judicial review

proceedings together with the length of time those proceedings took.

41. In a more general way, however, I think the approach adopted by the learned trial judge was mistaken. He has reviewed the

conduct of the litigation with a view to attributing fault for delay. Furthermore, he implicitly attributes blame especially to the

appellant whenever an adverse decision is made. It is undoubtedly the case that the appellant strongly contested the application of

judicial review. He sought adjournments and extensions of time. He failed in some motions and succeeded in others. At times, there is

no doubt that there was unnecessary delay on the part of the appellant. On the other hand and equally clearly, large periods of delay

were the responsibility of the applicant. All in all, the conduct of the proceedings by the appellant was not unusual. The application

was hard fought, but that was the right of the appellant. In this case, it was his duty to oppose an unjustified claim. I do not think it

is right to scrutinise the various steps taken in the litigation with a view to assigning blame when a party unsuccessfully but bona fide

takes or opposes a step in the procedure. I will, however, remark on some particular aspects of the judgment.

42. The learned trial judge ruled that the period of five months it took the appellant to file his affidavit of discovery (from 7th July

1997 to 4th December 1997) was “excessive and unreasonable.” His ruling on this period was as follows:

“Though the investigation involved two persons and the resulting file was a combined one, from an investigate point of view

one could not describe the underlying circumstances as extremely difficult or extraordinary complex. It must be remembered

that the Garda documentation was completed not later than 28th November, 1995, when the co-ordinating Sergeant

transferred the same to Superintendent Brennan. Apart, therefore, from the D.P.P.'s instructions given in May ,1996 and the

application for, and the obtaining of, the summons, nothing further required to be done to complete the file. I therefore fail to

see why it took five months to make discovery, when the entire documentation was long since in existence and was readily

available. I therefore believe that this period was excessive and unreasonable.”

43. Although it should not have taken five months to file the affidavit, I think the learned trial judge understated the difficulties in

preparation of an affidavit of discovery. He might have noted that Superintendent P. J. Brennan, in an affidavit sworn on 17th July

1998, explained that the documentation the subject-matter of his affidavit of discovery “was in the office of the Director of Public

Prosecutions, the office of the Acting State Solicitor for Cork City, Mr Edward J. P. Hanlon, and in the custody of the Gardaí at

McCurtain Street in Cork.” He further explained that there had been considerable communication between these offices and that the

schedules had been prepared by a solicitor in the Chief State Solicitor’s Office on the advice of counsel and following consultation. It

is notable that the discovery order fixed the exceptionally short period of seven days for compliance. In my view, some of this period,

perhaps two to three months, was due to undue delay by the appellant, but by no means all of it.

44. The learned trial judge then proceeds to consider the period from December 1997, when the affidavit of discovery was filed, to

July 1998 during which time the applicant was making complaints that the affidavit of discovery was defective. I do not think it is

fruitful to go into the minutiae of these disputes. At the end, Geoghegan J made orders requiring a corrective affidavit to be filed in

certain respects and he ordered the production of one document. Otherwise, however, he rejected the applicant’s complaints, which

principally concerned the appellant’s claim to privilege in respect of a number of documents. In response to the submission of the

appellant that the applicant had secured at most some technical advantage and nothing of substance, the learned trial judge stated

that he had “considerable sympathy for the D.P.P. in these arguments.” Nonetheless, he concluded the applicant had been justified

and concluded: “this time span, certainly up to the 17th July, must, I feel, be declared the D.P.P.'s responsibility.” This conclusion

makes no allowance at all for the normal and legitimate cut and thrust of litigation or for the fact that some of the delay was simply

due to the fact that the case was not reached in the court list. The learned trial judge seems to have assumed that the applicant

had some sort of total victory in his discovery disputes with the appellant. This was very far from the case. The applicant’s

unhappiness with the orders of Geoghegan J is most clearly demonstrated by the fact that he filed lengthy notices of appeal against

both orders. They alleged that Geoghegan J had been in error in a large number of respects, including, for example, in rulings he had

made on issues of the issue of privilege attaching to certain documents. The learned trial judge was, in my view, mistaken in

concluding that “this time span, certainly up to 17th July, must ……be declared to be the DPP’s responsibility.”

45. The next very significant period then followed the orders of Geoghegan J of July 1998 and goes up to December 2000. I do not by

any means say that the learned trial judge should necessarily have attached particular blame to the applicant for this period of delay.

But it is part of the general delay flowing from the applicant’s choice to embark on the proceedings and then to bring contentious

appeals. The learned trial judge seems to have been concerned to reach a conclusion that the appeals were not frivolous and to

apply that as a test. That was not the correct approach. The applicant brought two appeals against the judgments of Geoghegan J.

It took almost two and a half years to have them heard. That is a very significant part of the total period of delay of which the

applicant complains. Ultimately, as stated by Hardiman J in a further part of his judgment, already cited:

“In the course of the hearing, the scope of the relief sought was dramatically narrowed. Counsel on behalf of the applicant

confined his application, in the end, to one additional document only.”

46. In the event, the result of the appeal was that the applicant secured the right to have produced on discovery one single letter.

That letter related to the instructions of the Director as to the trial of the applicant. It really added nothing to the sum total of the

applicant’s case.

47. The strongest point made by the applicant is that there was a delay from January 2001 to December 2002 by the appellant in

producing that single document. The appellant refused to produce that letter in unredacted form. He offered and sent an edited

version. His concern was that a third party was referred to. Correspondence ensued over several months. The applicant refused to

accept the edited version of the letter by a letter of 11th July 2001, but took no further action at that time. On 14th February 2002,

the appellant applied to have the judicial review proceedings placed in the list to fix dates. The applicant opposed this on the basis of

the failure to produce the letter. The matter was adjourned to enable the appellant to apply to have the order amended. The

appellant’s application to this Court to have the order amended was rejected on 21st October 2002. Clearly, the appellant was to

blame in failing to produce the document. This resulted in significant delay. However, the matter must be considered in an overall

context. As the appellant points out, the letter was, in the event, insignificant. If the appellant was at fault in filing to produce the

letter, the applicant could have moved the court to compel him to do so. It is hard to avoid the impression that the applicant did not

try particularly hard to get the judicial review proceedings on following the decision of the Supreme Court in January 2001.

48. The overwhelming impression left by a consideration of this history is that, while there was significant delay on the part of the

appellant, the principal if not the only reason for the failure to get the prosecution on was that the applicant had brought unfounded

judicial review proceedings. In the course of those proceedings, he conducted a sort of war of attrition with the appellant in respect

of discovery, from which he secured minimal benefit. Almost all of the delay was due to the discovery process.

49. In these circumstances the question arises as to the test to be applied where an application is made to stay a criminal trial. In

this respect, in spite of my expressed reservations, I approach the case as if the test in cases of prosecutorial delay applied. This

matter has been clarified quite recently in the judgments of this Court in PM v Director of Public Prosecutions (Unreported 6th April

2006). Obviously, this decision was not available to McKechnie J. Kearns J in a judgment with which the other members of the Court

agreed discussed the test to be applied in cases of prosecutorial delay. He referred to PM v Malone [2002] 2 I.R. 560, citing the

following passage from the judgment of Keane C.J in that case, at page 581:

“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.”

50. Kearns J continued:

“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, pre-trial 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.”

51. At a later point, he said:

“In conclusion, however, on this issue, I am satisfied that where blameworthy prosecutorial delay of significance has been

established by the applicant, then that is not sufficient per se to prohibit the trial, but that one or more of the interests

protected by the right to expeditious trial must also be shown to have been so interfered with such as would entitle the

applicant to relief.”

52. I am satisfied that the application of that test could not possibly lead to the criminal prosecution of the applicant being

prevented. Firstly, he is overwhelmingly the party responsible for the delay. Secondly, for reasons already given, the applicant is

unable to point to any real risk of an unfair trial. Thirdly, the applicant is able, at most, to refer to some prolongation of the natural

stress and anxiety necessarily associated with a pending criminal trial. Fourthly, this is insufficient to displace the public interest in his

being prosecuted.

53. I must, however, refer to the decision of the Court of Human Rights in Barry v Ireland. There are some similarities between that

case and the present. The applicant had commenced judicial review proceedings which had ultimately failed, in which he sought to

prevent his further prosecution for a large number of sexual offences. The Court of Human Rights examined the progress of those

proceedings in detail. The Court restated its general approach in such cases, where a breach of Article 6 of the Convention was

alleged at paragraph 36 (citations omitted):

“The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances

of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the

relevant authorities ……. On the latter point, what is at stake for the applicant in the litigation has to be taken into

account……"

54. On an analysis of the history of the judicial review proceedings, it concluded that there had been “several periods of excessive

delay which are partially or completely attributable to the authorities.” The Court reviewed the consequences for the applicant of

the delay in the proceedings. It noted, in particular that the applicant had had to bear the weight of pending criminal charges of a

serious nature for a period of ten years. It could not “consider the time taken in the present case to have been “reasonable”.” It held

that this amounted to a breach of Article 6, section 1 of the Convention. (see paragraph 47). It also found a breach of Article 13 due

to the lack of a remedy for the applicant in domestic law. It is clear that, in this context, the Court was considering a remedy in

damages.

55. It followed, as the Court then pointed out that, pursuant to Article 41 of the Convention, it should “afford just satisfaction to the

injured party.” Thus, it made an award in the sum of €8,000 in respect of non-pecuniary damage. Its ruling in this respect is

important. The Court explained the award as follows, at paragraph 61(citations omitted):

“The Court considers that the applicants must have suffered some distress and frustration resulting from the delays

attributable to the authorities in the proceedings, which cannot sufficiently be compensated by the finding of a violation …).

The Court has had regard to all the circumstances of the case and, in particular, to those factors which must have

exacerbated the impact on the applicant of the breaches of the Convention (including his advanced age associated physical

limitations together with the serious nature of the outstanding charges). Ruling on an equitable basis, the Court awards award

him EUR 8,000 in respect of non-pecuniary damage.”

56. It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court

does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that

Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the

automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some

consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court

that it does recognise the public interest in prosecuting crime (see Kostovski v Netherlands [1989] 12 EHRR; Doorsen v Netherlands

22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.

57. In brief, the decision in Barry v Ireland adds nothing to the applicant’s claim to have his trial stopped. The applicant has not, at

any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal

objective has been to seek to prevent his trial from proceeding.

Conclusion

58. I am satisfied that the learned trial judge was correct in dismissing the applicant’s application for judicial review but mistaken in

granting an order prohibiting his further prosecution. Therefore, I would allow the appeal. I would set aside the order made in the High

Court and would substitute an order dismissing the application for judicial review and discharging the injunction granted in the order of

14th February 1997.