Supreme Court allows DPP appeal, permitting trial to proceed despite prosecution delay and applicant's admissions.

THE SUPREME COURT

[Appeal No: 150/2006 ]

Denham J.

Kearns J.

Macken J.

Between/

John Devoy

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

Judgment delivered the 7th day of April, 2008 by Denham J.

1. This appeal raises issues of delay in prosecuting criminal offences. It is one of a number of cases which were decided in the High Court at a time when

the jurisprudence was being clarified by this Court.

2. This is an appeal by the respondent/appellant, the Director of Public Prosecutions, hereinafter referred to as 'the D.P.P.', from the order and judgment of

the High Court (O'Donovan J.) given on the 21st March, 2006, which granted an injunction restraining the further prosecution of John Devoy, hereinafter

referred to as 'the applicant', on the charges referred to in this appeal.

3. On the 4th July, 2005 the High Court (McKechnie J.) gave the applicant leave to apply for judicial review on stated grounds.

4. On the 28th March, 2006 the High Court ordered that the D.P.P. be restrained from taking any further steps in the criminal proceedings being the subject

matter of this application and bearing Bill Number 353/05 The People at the suit of the Director of Public Prosecutions and John Devoy.

5. The applicant was originally charged on the 19th October 2001 with four offences alleged to have been committed on the 17th October 2001. These

charges were:

"1. For that you the said accused, on the 17th day of October 2001 at 16 Balbutcher Drive, Ballymun, Dublin in the Dublin Metropolitan

District, did without lawful excuse damage property to wit: one sitting room window, to the amount of £200, the property of John Cray,

intending to damage such property or being reckless as to whether such property would be damaged.

Contrary to Section 2 Criminal Damage Act, 1991

2. For that you the said accused on the 17th day of October, 2001 at 16 Balbutcher Drive, Ballymun, Dublin in said Dublin District Area of

Dublin Metropolitan District, did discharge a firearm being reckless as to whether any person was injured or not.

Contrary to section 8 Firearms and Offensive Weapons Act, 1990.

3. For that you the said accused on the 17th day of October, 2001 at 16 Balbutcher Drive, Ballymun, Dublin in said Dublin District Area of

Dublin Metropolitan District, did have in your possession a firearm, to wit a shotgun in such circumstances as to give rise to a reasonable

inference that you had not got it in your possession for a lawful purpose.

Contrary to section 27A(1) of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law (Jurisdiction) Act, 1976 and amended by

section 14 Criminal Justice Act, 1984, and as amended by section 15 of the Offences Against the State (Amendment) Act, 1998.

4. That you the said accused on the 17th day of October 2001 at 16 Balbutcher Drive Ballymun, Dublin in said District Court Area of Dublin

Metropolitan District, did have in your possession, ammunition, to wit:- shotgun cartridges in such circumstances as to give rise to a

reasonable inference that you had not got it in your possession for a lawful purpose.

Contrary to section 27A(1) of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law (Jurisdiction) Act, 1976 and amended by

section 14 Criminal Justice Act, 1984, and as amended by section 15 of the Offences Against the State (Amendment) Act, 1998."

6. The applicant was arrested on the day following the alleged offence, being the 18th October, 2001, was charged on the following day, and appeared in

the District Court on 20th October, 2001, when he was remanded in custody, with consent to bail. The same day he was admitted to bail and released from

custody. He was remanded from time to time pending the service of the book of evidence. On the 17th September, 2002, the District Court, having

remanded him on six occasions, struck out the charges on the basis of the failure to serve the book of evidence. The applicant heard nothing more until

12th June, 2003 when the charges were re-entered in the District Court and a book of evidence served on the applicant. By order of the District Court on the

19th June, 2003 the applicant was sent forward for trial to the Dublin Circuit Criminal Court. At a hearing before the Circuit Court on the 17th July, 2003 the

applicant's trial was fixed for 24th March, 2004. However, some days before the trial date the applicant and the court were advised by the D.P.P. that the

order of the District Court dated the 19th day of June, 2003, returning the applicant for trial, was defective and that accordingly the trial listed for the 23rd

March, 2004 could not proceed.

On the 7th September, 2004, papers were lodged in the High Court on behalf of the D.P.P. seeking an order of certiorari by way of judicial review to quash

the order of the District Court dated the 19th June, 2003.

On the 15th November, 2004 the High Court quashed the order of the 19th June, 2003. On the 13th June, 2005, by order of the Circuit Court the applicant's

trial was fixed for the 6th February, 2006.

The applicant then sought an order prohibiting the further prosecution of the charges before the Circuit Criminal Court on the grounds that there had been

inexcusable, unwarranted and unconscionable delay by the D.P.P. in processing the charges through the District Court and Circuit Court.

7. The High Court found that there had been an inordinate and inexcusable delay by the D.P.P. in processing the charges. The learned High Court judge

held:-

"I think it unnecessary for the purposes of this judgment that I review in detail all the explanations advanced on behalf of the [D.P.P.] in

justification of the delay because it seems to me that the affidavits to which I have referred speak for themselves. However, whatever

justification there may have been for the delay in preparing a book of evidence for service on the applicant (notwithstanding that it seems to

me that the preparation of the case against the applicant was a relatively simple matter and not at all as complex as was suggested on behalf

of the respondent and, accordingly, I have some reservations about the explanation offered in justification of that delay, I am prepared, for the

purposes of this judgment, to accept that there was justification for it) the explanation offered for the delay of almost eight months in

identifying the defect in the order of the 19th July, 2003 returning the applicant for trial, coupled with the delay of five and a half months

between identifying that defect and applying to the High Court by way of judicial review to have that order quashed and aggravated by a further

delay of two and a half months between the quashing of that order of the 19th July, 2003 and the re-entry of the matter before the District

Court is, in my view, totally unacceptable. Since the passing of the Offences Against the State Act, 1939, the offences involving firearms with

which the applicant was charged were required to be tried by the Special Criminal Court unless the Director of Public Prosecutions directed

otherwise. Accordingly, in the absence of an indication on the order of the 19th day of July, 2003 returning the applicant for trial, that the

Director of Public Prosecutions had directed that the applicant be not sent forward for trial by the Special Criminal Court, it is clear that that

order is defective on its face. How this was not noted for a period of almost eight months between the 19th July, 2003 and the 12th day of

March, 2004, despite the fact that the case was mentioned in court on three occasions in the interim, is beyond my comprehension and I can

see no reasonable excuse for it. Then to compound matters, although it must have been immediately clear to anyone associated with the

case that, in the event that the order returning the applicant for trial of the 19th July, 2003, was defective and in the event that the prosecution

of the applicant was to continue, it was essential that that order be quashed and the only way to achieve that was by way of judicial review

and yet, another five and a half months passed before an application is made to the court for an order of certiorari to quash that order. In my

view, no reasonable explanation has been offered to justify that delay and, to be quite frank, I cannot think of any reasonable justification for it.

Then, when on the 15th November, 2004, Ms. Justice Macken of the High Court made an order quashing the said order of the 19th July, 2003

and directed that the matter be remitted back to the District Court, it took another two and a half months to do so. Again, it is my view that no

reasonable explanation has been offered for that delay.

In the foregoing circumstances, I am satisfied that there has been inordinate and inexcusable delay on the part of the prosecution in

prosecuting this applicant and that, therefore, his right to a speedy trial has been infringed."

The learned High Court judge having held that there was an inordinate and inexcusable delay, accepted that it did not necessarily follow that he was entitled

to the relief sought. Reference was made to D.C. v. Director of Public Prosecutions [2006] 1 ILRM 348 and the determination that given the independent

role of the D.P.P., the court will only intervene to prohibit a trial in exceptional circumstances. The learned trial judge referred to the words of Finlay C.J. in

D.P.P. v. Byrne [1994] 2 I.R. 236 where he stated:-

"Having reached that conclusion, I am driven to the further conclusion that, of necessity, instances may occur in which a delay between the

date of the alleged commission of an offence and the date of a proposed trial identified as unreasonable could give rise to the necessity for a

court to protect the constitutional right of the accused by preventing a trial, even where it could not be established either that the delay

involved an oppressive pre-trial detention, or that it created a risk or probability that the accused' capacity to defend himself would be

impaired. This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable delay, or lapse of

time, failure to establish actual or presumptive prejudice may not conclude the issues which have to be determined."

The learned trial judge then held:-

"In those circumstances, given that this applicant does not complain of specific prejudice arising from the delay in prosecuting him or, indeed,

that his right to obtain a fair trial has being impaired by that delay, it seems to me that, in determining whether or not he is entitled to an order

prohibiting the continuance of the prosecution against him, I have to balance the entitlement of the community at large to have him

prosecuted for the offences of which he is suspected, against his entitlement to have his right to an expeditious trial vindicated. In that regard,

it seems to me that, to use a colloquialism, the authorities are not entitled to play “ducks and drakes” with an accused person and that, to

my mind, is what has happened in this case. As I have indicated, I think it incredible that it took eight months to recognise the defect in the

order returning the applicant for trial of the 19th July, 2003 and, then, another five and a half months before any step was taken to rectify that

defect. Moreover, I think that the excuses offered by the respondent are totally unacceptable. Accordingly, I will make an order restraining the

respondent from taking any further steps in the criminal proceedings the subject matter of this application."

8. The D.P.P. has brought this appeal from the above judgment. Fourteen grounds of appeal were filed:-

i) The learned trial judge erred in granting an injunction restraining the further prosecution of the applicant herein.

ii) The learned trial judge erred in finding that the D.P.P. had failed to offer any reasonable explanation for the delay in the case.

iii) The learned trial judge erred in finding that there had been inordinate and inexcusable delay on the part of the prosecution in prosecuting

the applicant and that therefore his right to a speedy trial had been infringed.

iv) The learned trial judge erred in failing to balance the entitlement of the community to have the applicant prosecuted for the offences of

which he is suspected, against his entitlement to have his right to an expeditious trial vindicated.

v) The learned trial judge erred in failing to carry out the aforesaid balancing exercise, and in particular in failing to have regard to the

seriousness of the offences charged, the overall extent of the delay involved in context and the weakness of the applicant's case concerning

pre-trial stress and anxiety.

vi) The learned trial judge erred in finding that there was culpable prosecutorial delay such as to entitle the applicant to the injunctive relief

being sought.

vii) The learned trial judge erred in failing to pay any regard to the fact that the applicant had made admissions in the case.

viii) The learned trial judge erred in granting injunctive relief as against the D.P.P., notwithstanding the absence of any claim of actual

prejudice and the paucity of evidence concerning the interference with those rights which the speedy trial right is designed to protect.

ix) The learned trial judge erred in concluding that the appropriate remedy in a case of prosecutorial delay alone was an order injuncting the

applicant's trial.

x) The learned trial judge erred in taking into account elements of prosecutorial delay which had occurred pre charge.

xi) The learned trial judge erred in effectively concluding that an applicant does not have to show that the complaint of delay had any effect.

xii) The learned trial judge erred in finding that the D.P.P. had indicated in the course of the hearing that the D.P.P. was not relying on the

question of the applicant's delay and non compliance with Order 84 Rule 21 of the Rules of the Superior Courts.

xiii) The learned trial judge erred in summarising the D.P.P.'s opposition to the applications as being based solely on the proposition that the

court should only in very exceptional circumstances prohibit a prosecution on the grounds of prosecutorial delay simpliciter.

xiv) The learned trial judge erred in failing to have due regard and/or attach sufficient importance to the applicant's own delay in instituting

these proceedings.

9. Law

Since the hearing of this case in the High Court the law as to prosecutorial delay has been restated by this Court. In P.M. v. Malone [2002] 2 IR 560 Keane

C.J. referred to the balancing exercise required of the court in situations where prosecutorial delay is alleged. He stated:-

"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 reasonable 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. D.P.P. [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."

The test to be applied in cases where there has been prosecutorial delay was restated in P.M. v The Director of Public Prosecutions, [2006] 3 IR 174,

where Kearns J., with whom the other members of the Court agreed, held:-

"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."

In O'H v. D.P.P. [2007] IESC 12 the principles relating to prosecutorial delay were described by Fennelly J. as follows:-

" The essence of the principles established in these cases is that culpable or blameworthy delay on the part of the prosecution does not, in

itself, automatically give rise to an order preventing further prosecution. The Court should engage in a balancing operation. It should balance

the public interest in prosecuting crime against the interests of the applicant. Where it is not established that there is a real risk that, due to

delay, loss of evidence or the like, the applicant will not have a fair trial, the applicant is, nonetheless, entitled to rely on a number of matters

outlined and considered in the case-law. One of these is any additional distress that the applicant has suffered as a result of the delay.

… In addition, it will be necessary to consider whether an applicant, such as the Applicant in the present case, is required to place before the

court evidence of any additional distress upon which he seeks to rely."

The particular circumstances of a case required to be put in the balance. In analysing the circumstances of a case this court has over the last decade on

several occasions found the judgment of Powell J., with whom the other members of the U.S. Supreme Court agreed, in Barker v. Wingo 407 US 514

[1972], relating to the right to speedy trial under America's jurisprudence, helpful in analysing our jurisprudence. I continue to find it a persuasive precedent.

10. Decision

The learned trial judge was correct in determining that the High Court should interfere only with the right of the D.P.P. to prosecute in exceptional

circumstances. However, he then fell into error in the test to be applied.

10.1 This case was determined by the High Court at a time of transition in the jurisprudence, when the law was being clarified by this Court. In these

circumstances the High Court did not apply the correct test, which was restated in P.M. v. The Director of Public Prosecutions [2006] 3 IR 174. This test

requires that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the Court, this step was not

taken by the High Court. To prohibit a trial, in addition to the finding of blameworthy prosecutorial delay one or more of the interests protected by the right to

an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief. The bar of the test is high because this is a very

significant relief - an order prohibiting the public prosecutor from prosecuting an accused.

In this case the second step required by the test was not taken. Indeed the learned trial judge stated that the applicant did not complain of any specific

prejudice, and that he did not complain that his right to a fair trial had been impaired by the delay.

10.2 Counsel on behalf of the D.P.P. pointed to four features in this case as indicating that an order of prohibition should not be granted: (a) there is no

prejudice to the applicant; (b) there is no case made out in the affidavits that the applicant has suffered stress and anxiety; (c) there is no claim by the

applicant that he asserted his right to an expeditious trial before seeking judicial review, and (d) the alleged admissions.

(a) The issue of prejudice is at the core of the jurisprudence upon which a court would prohibit a trial. It is a seam of law to protect an accused and the

integrity of the legal system. The applicant does not complain of specific prejudice in this case. Thus the general jurisprudence requires to be considered

and I will address this later in the judgment.

(b) This is not a case where grounds of stress and/or anxiety were advanced by the applicant in tandem with the delay so as to require relief.

(c) Nor was there any assertion by the applicant that he sought an expeditious trial prior to launching the application for judicial review. This concept is

distinct from that of delay in seeking judicial review - which, in all the circumstances of the case, I consider irrelevant at this time. In such a situation the

conduct of the applicant is not determinative, but is a factor to be weighed in the balance.

There are alleged admissions made by the applicant, which appear in the book of evidence. These admissions have yet to be proved. It is open to the

applicant to contest the admissibility of any admissions at his trial. However, this Court, in an application to prohibit a trial, is entitled to have regard to this

factor. In B. v Director of Public Prosecutions [1997] 3 I.R. 140 at p.202 I stated that:-

"If there has been an admission by the accused of all or any of the alleged crimes this will be a factor for consideration. If the admission is

contested that is also a matter for consideration by the court on an application to prohibit the trial on the ground of delay."

Thus in this case the fact of an admission, and the attitude of the applicant, are relevant factors in all the circumstances of the case.

10.3 The delay in this case was inordinate and blameworthy.

10.4 However blameworthy delay by the prosecution, while it should be regretted and is not best practice, does not per se give rise to an order prohibiting a

trial. An additional factor is required, see P.M. v. The Director of Public Prosecutions [2006] 3 IR 174, the Court will interfere to prohibit a trial only in

exceptional circumstances.

In Director of Public Prosecutions v. Byrne [1994] 2 I.R. 235 at p.245 Finlay C.J. stated that instances may occur between the date of the alleged

commission of an offence and the date of a proposed trial identified as unreasonable could give rise of necessity for a court to protect the constitutional

right of an accused by preventing the trial. In an application to prohibit a trial on the basis of unreasonable delay, failure to establish actual or presumptive

prejudice may not conclude the issues which have to be determined.

However, each case should be considered on its own circumstances. The factors of a case will determine whether the court will grant the exceptional

remedy of prohibition of a trial.

In this case the applicant is charged with serious offences, there are apparent admissions, prior to bringing the application for judicial review the applicant

took no steps seeking an expeditious trial, and there is no evidence of stress and anxiety such as to require the prohibition of a trial. The circumstances of

this case include that there is no real or serious risk of an unfair trial and the applicant has not made out a case of infringement of a personal interest. In

light of the factual matrix it would not be proportionate to prohibit the trial of the applicant. Applying the appropriate test as stated in P.M. v. The Director of

Public Prosecutions [2006] 3 IR 174, the applicant is not entitled to an order prohibiting his trial.

11. Conclusion

For the reasons given I would allow the appeal, and reverse the decision of the High Court. Thus the trial of the applicant may proceed.