Criminal Process I
Cases
DPP v. Kilbride
[1999] 1 I.L.R.M. 452
Judgment of Mr. Justice Quirke delivered on the 22nd day of February, 1999
1. This is a Case Stated by Judge Timothy Crowley, a Judge of the District Court, assigned to the Dublin Metropolitan District pursuant to Section 52(1) of the Courts (Supplemental Provisions) Act, 1961.
2. The Accused person, Mr. Liam Kilbride was charged with the offence of having, on the 29th day of January, 1997, on the public highway within the jurisdiction of the Dublin Metropolitan District an excessive concentration of alcohol in his urine contrary to the provisions of Section 50(3) and (6)(a) of the Road Traffic Act, 1961, as amended.
3. The complaint in respect of the alleged offence was properly made on the 4th day of March, 1997 and a summons was issued in the manner prescribed by law on the same date returnable for the 5th day of May, 1997. When the matter was called for hearing before the learned District Judge on that date the said summons was not before the Court.
4. On the 25th day of September, 1997 the said summons was reissued returnable for the 11th day of December, 1997 and when it came before the Court on that date the learned District Judge adjourned the hearing to the 4th day of February, 1998 because there was insufficient time available to him to deal with all the matters which came before the Court on the 11th day of December, 1997.
5. When the matter came on for hearing before the learned District Judge on the 4th day of February, 1998 it was submitted on behalf of the accused person, Mr. Kilbride, that the charge preferred against him should be dismissed since a period of more than 12 months had elapsed since the date of commission of the alleged offence and such a delay was unconscionable and unreasonable and had caused Mr. Kilbride unnecessary anxiety and distress of such magnitude as to warrant the dismissal of the charge against him.
6. Judge Crowley has asked, by way of consultative Case Stated, whether the delay complained of warrants the dismissal of the charge.
THE LAW
In B. -v- D.P.P. [1997] 2 I.L.R.M. 118, the Supreme Court (Denham J.) clearly and unambiguously set out the following legal principles:-
“….The Constitution places relevant parameters on a criminal trial in cases of unreasonable delay.
REASONABLE EXPEDITION
The Constitution does not state expressly that there is a right to a speedy trial. Article 38.1 provides that no person shall be tried on any criminal charge save in due course of law. In addition, Article 40.3 imposes duties on the State and thus on the Courts as the judicial arm of government which include the protection of such rights as fair procedures.
The right to reasonable expedition was cited by Gannon J. in The State (Healy) -v- Donoghue [1976] I.R. 325 at 336 and in The State (O’Connell) -v- Fawsitt [1986] I.R. 362, Finlay C.J. stated that:-
‘A person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition’.
7. The right to reasonable expedition must be assessed in each case in the light of the particular circumstances of that case. If the Accused’s defence has been explicitly prejudiced by the State’s delay, for example, by the non-availability of a material witness, then he is entitled, on the delay being unreasonable and prejudicial, to an order prohibiting the trial.
8. Irish case law has already referred to Barker -v- Wingo (1972) 407 U.S. 514 which analysed the right in the Constitution of the United States of America to a speedy trial. Powell J. delivering the opinion of the Court identified four of the factors the Court should assess in considering if an applicant has been deprived of his right. These factors were length of delay, reason for delay, the defendant’s assertion of his right and the prejudice to the defendant by the delay. He went on to state how prejudice should be assessed:-
‘Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This court has identified three such interests:-
(1) To prevent oppressive pre-trial incarceration;
(2) To minimise anxiety and concern of the accused; and
(3) To limit the possibility that the defence will be impaired.’
….The court must look at the circumstances in each case, the issues and the constitutional interests of the parties, to determine the matter. There is no definitive time limit. There is no exhaustive or exclusive list of factors. There are interests which must be protected in the constitutional scheme of things.
FACTORS
9. The factors to be analysed and the issues which have to be determined include the following:-
(1) The delay in the case;
(2) The reason or reasons for delay;
(3) The accused’s actions in relation to the events in issue;
(4) The accused’s assertion of his constitutional rights;
(5) Actual prejudice to the accused;
(6) Pre-trial incarceration of the accused;
(7) Length of time of pre-trial anxiety and concern of the accused;
(8) Limitations or impairment of defence;
(9) Circumstances which may render the case into a special category;
(10) The Community’s right to have offences prosecuted.”
10. In the instant case there were two periods of delay, that is to say, a period of 4½ months between the date when Mr. Kilbride was first due to be tried in the District Court on the 5th day of May, 1997 (when the summons was not before the Court) and the 25th day of September, 1997 (when the summons was reissued).
11. Subsequently, there was a delay of just less than 2 months between the 11th day of December, 1997 (when the proceedings were adjourned because there was insufficient time to deal with all the matters which became before the Court on that day) and the 4th day of February, 1998 (when the matter finally came on for hearing before the learned District Judge).
12. The reason for the 4½ months delay between May of 1997 and September of 1997 has not been explained in evidence whilst the delay of just less than 2 months between December of 1997 and February of 1998 was caused by reason of additional pressure of work in the District Court.
13. It has been argued on behalf of Mr. Kilbride that since a period of more than 12 months elapsed between the date of the commission of the alleged offence and the date when he ultimately came for hearing he has been put through unnecessary periods of pre-trial anxiety and concern and that this amounted to an infringement of his constitutional right to trial with reasonable expedition.
In D.P.P. -v- Byrne [1994] 2 I.R. 236 the Supreme Court considered circumstances very similar to the instant case. It was held by the Court (O’Flaherty J., Blayney J. and Denham J. with Finlay C.J. and Egan J. dissenting) that there is no onus on the Director of Public Prosecutions to show that a prosecution such as this has been brought within a reasonable time. Furthermore, it was held that where an accused person seeks to have a valid summons dismissed on the grounds of delay the onus is upon such a person to satisfy the Court that there are grounds for so doing.
In the Byrne case (which involved a delay of some 10 months from the alleged offence to the trial of the action) it was held by the Court (Denham J.) that such a delay “….where there is no evidence of specific prejudice, is not such a delay as to infringe any constitutional right of the Accused in the circumstances of this case”. It seems to me that similar considerations apply to the instant case.
14. The Community is entitled to have criminal offences prosecuted and, whilst there is a need to balance that right with the (greater) right of an accused person to receive a fair trial, what is required is balance. What is required is that the accused person should receive a fair trial and that this trial should be conducted with a degree of expedition which is reasonable in the circumstances.
In the Byrne case (supra.) it was confirmed that where there was a delay between the commission of the alleged offence and the date of the trial which was approximately 10 months there was no unreasonable delay in the prosecution of the charge against the respondent such as would entitle a Judge of the District Court to dismiss the charge by reason of prejudice to the accused person.
15. In the instant case, the only prejudice which has been identified on behalf of Mr. Kilbride is the fact that he has suffered from anxiety and concern whilst awaiting trial but there is little doubt that every person against whom a criminal charge of this nature is preferred suffers from anxiety and concern. What is actually alleged is that the duration of Mr. Kilbride’s anxiety and concern has been lengthened by some 4½ months (or some 6½ months if the Director of Public Prosecutions is to be held responsible for the large volume of work within the District Court in Dublin in February of 1998).
16. No evidence has been adduced which would indicate that the degree of anxiety and distress and concern sustained by Mr. Kilbride has been such as to hinder his health or impair his memory or somehow reduce his capacity to defend himself.
17. Furthermore, it is of some significance that the distress and concern undergone by Mr. Kilbride was not sufficient to cause him (through the medium of his legal advisors) to seek relief by way of Judicial Review to prohibit the trial of the offences preferred against him on grounds of delay.
18. In the light of the foregoing I am satisfied that the facts which have been proved, admitted and agreed as found by the learned District Judge do not disclose a delay of the kind which would amount to an infringement of any constitutional right of the Accused in the circumstances of this case.
19. It is regrettable and undesirable that a delay of 4½ months (or 6½ months) should have occurred and that this should have lengthened the anxiety and concern of Mr. Kilbride, having regard to the serious offence with which he has been charged, but that increased duration of anxiety and distress did not of itself amount to specific prejudice of the type contemplated in Barker -v- Wingo (supra.) and B. -v- D.P.P. (supra.).
20. It follows from the foregoing that the question posed by the learned District Judge should be answered as follows:-
“The circumstances set out in the Case Stated herein do not disclose the existence of such an unreasonable delay in the prosecution of the offence alleged against the Accused as would itself warrant the dismissal of the charge.”
Kennedy v DPP [2012] IESC 34
Judgment delivered on the 7th day of June, 2012 by Denham C.J.
1. This appeal is brought seeking an injunction prohibiting or restraining a criminal trial. The decision to prosecute has been made by the Director of Public Prosecutions, the respondent, referred to as “the DPP”, which is an independent statutory office. The Court will intervene in a decision to prosecute, and will prohibit a trial, only in exceptional circumstances. Thus, the issue on this appeal is whether there are exceptional circumstances such that the Court should intervene, in the decision of the DPP to prosecute, and prohibit a criminal trial proceeding.
2. James Kennedy, the applicant/appellant, referred to as “the appellant”, was sent forward for trial on sixteen charges in the Dublin Circuit Criminal Court. The charges allege instances of corruptly giving sums of money to named members of Dublin County Council, or to office holders or directors of Dún Laoghaire Rathdown County Council.
Issues
3. On this appeal counsel stressed several specific issues, as follows:-
(a) A disclosure matter;
(b) The right to an expeditious trial; and
(c) The European Convention on Human Rights.
Before considering each of these issues in detail, I will set out background facts to this appeal.
Charges
4. The appellant was brought before the Dublin District Criminal Court on the 22nd October, 2010, and charged with sixteen offences, as follows:-
“(i) Charge Sheet No. 10882572
For that you the said accused did, on the 11th day of June 1992 at the offices of Frank Dunlop and Associates Limited, 25 Upper Mount Street, Dublin 2 in the County of the City of Dublin, corruptly give a sum of money as a gift to Sean Gilbride, for the benefit of the said Sean Gilbride, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Sean Gilbride, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(ii) Charge Sheet No. 10882637
For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at Conway’s Public House, Parnell Street, Dublin 1 in the County of the City of Dublin, corruptly give a sum of money as a gift to Jack Larkin, for the benefit of the said Jack Larkin, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Jack Larkin, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(iii) Charge Sheet No. 10882686
For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Cyril Gallagher, for the benefit of the said Cyril Gallagher, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Cyril Gallagher, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(iv) Charge Sheet No. 10882718
For that you the said accused did, on the 4th day of May 1992 at the reception area of Dublin County Council, in the County of the City of Dublin, corruptly give a sum of money as a gift to Tom Hand, for the benefit of the said Tom Hand, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tom Hand, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(v) Charge Sheet No. 10882759
For that you the said accused did, on the 4th day of May 1992 at St. John of Gods, within the County of the City of Dublin, corruptly give a sum of money as a gift to Don Lydon, for the benefit of the said Don Lydon, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Don Lydon, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(vi) Charge Sheet No. 10882694
For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(vii) Charge Sheet No. 10882904
For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, at the offices of Colm McGrath, Clondalkin, in the County of the City of Dublin, corruptly give a sum of money as a gift to Colm McGrath, for the benefit of the said Colm McGrath, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Colm McGrath, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(viii) Charge Sheet No. 10883025
For that you the said accused did, on a date unknown between the 12th day of June 1992 and the 29th day of June 1992, both dates inclusive, within the State corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.
(ix) Charge Sheet No. 10883082
For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(x) Charge Sheet No. 10883171
For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xi) Charge Sheet No. 10882889
For that you the said accused did, on the 23rd day of December 1997 at the Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xii) Charge Sheet No. 10882864
For that you the said accused did, on the 23rd day of December 1997 at Buswells Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam Cosgrave, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xiii) Charge Sheet No. 10883017
For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xiv) Charge Sheet No. 10883203
For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xv) Charge Sheet No. 10883244
For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.
(xvi) Charge Sheet No. 10883269
For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997, both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, voting in favour of a motion that Dun Laoghaire/Rathdown County Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.
Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption act, 1916 and Section 38 of the Ethics in Public Office Act 1995.”
Facts
5. A significant person in this case is Frank Dunlop. On the 13th July, 2008, the DPP directed that Frank Dunlop be charged with 16 offences of corruption. On the 21st November, 2008, Frank Dunlop was arrested and charged with the offences. On the 16th January, 2009, Frank Dunlop pleaded guilty to five charges on the Bill of Indictment. On the 29th May, 2009, Frank Dunlop was convicted and sentenced in the Dublin Circuit Criminal Court.
6. On the 24th June, 2010, the DPP directed that six persons, including the appellant, be brought before the courts on charges of corruption.
7. On the 19th October, 2010, separate Criminal Asset Bureau proceedings commenced and were at hearing all day. After leaving the Four Courts building the appellant was arrested on Inns Quay at 4.15 p.m. In the early hours of the 20th October, 2010 the appellant was hospitalised and received cardiac care; on the 22nd October, 2010, two days later, he was discharged from hospital. At 3 p.m. on the 22nd October, 2010, the appellant attended at Donnybrook Garda Station, by arrangement, for the purpose of arrest. The appellant was then brought before the Dublin District Court, charged with the offences in issue, and bail was set. Bail conditions were met and he was released from prison.
8. On the 28th October, 2010, the Book of Evidence was served.
9. The date for trial was set for the 5th October, 2011.
Judicial Review
10. However, the appellant applied to the High Court for leave to apply for judicial review, which was granted by the High Court (Peart J.) on the 7th March, 2011.
11. In the statement of grounds the appellant sought: inter alia, an injunction prohibiting the DPP from proceeding with the trial of the appellant on the said sixteen charges; if necessary an order extending the time for the bringing of the application; and damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003.
12. The grounds upon which the relief was sought included the right to an expeditious trial. It was also pleaded that pursuant to s. 3 of the European Convention on Human Rights Act, 2003, the DPP and the Garda Síochána are obliged to perform their functions in a manner compatible with the State’s obligations under the European Convention on Human Rights, which obligations include the duty to comply with Article 6.
High Court Judgment
13. On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment on the application. The learned High Court judge accepted that there had been delay in bringing the prosecution, but held that that of itself was not a basis to prohibit the trial. The learned trial judge held that the delay was excusable: (a) he accepted that the appellant could not be contacted so as to progress the matter; (b) he accepted that Frank Dunlop was not available as a witness until the proceedings of the Tribunal of Inquiry into Certain Planning Matters and Payments, referred to as “the Tribunal”, and the criminal proceedings involving Frank Dunlop had been concluded.
14. While the High Court’s decision on delay disposed of the matter, the learned High Court judge also stated as follows:-
“While the above finding is dispositive of this case, I feel that I should express my view that even if the delay was not excusable, I would find that the balance of justice lies very much in favour of the community’s right to have these alleged criminal charges prosecuted. In B v DPP [1997] 3 I.R. 140 Denham J. stated at 195 that:-
‘It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offence with the community’s right to have a criminal offence prosecuted.’
The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The state has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of state officials is an attack on the integrity of the state itself and the whole apparatus of state governance. As such it is a crime of great gravity. Taking the entire history of this case into account including the difficulty in ascertaining where the [appellant] resided at any given time as exemplified by the contradictions contained on the affidavits and considering also the unavailability until recently of Frank Dunlop as a witness, I am satisfied that the delay herein is excusable. Even were this not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place. Finally in relation to any prejudice the [appellant] may encounter, there is ample judicial authority for the proposition that such prejudice may be overcome or countered by means of appropriate directions or warnings from the trial judge. In these circumstances I must refuse the relief sought.”
15. As to the claim made on the European Convention on Human Rights, the High Court held:-
“The [appellant] has argued that as a result of the delay which has occurred in this case the State is in violation of its obligations under Article 6 of the Convention which provides, inter alia, as follows:
‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’
It is possible that the State could be found to have acted in contravention of Article 6 due to the duration of the Tribunal and the consequent unavailability of the main witness. However, violation of Article 6 does not ipso facto result in a prohibition of the trial in question. In TH v DPP [2006] 3 IR 520 the applicant sought to prohibit his trial on a charge of sexual assault by relying on the finding of the Court of Human Rights in Barry v Ireland. Fennelly J. speaking for a unanimous Supreme Court addressed this in the following passage:-
‘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. .. the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.’
I am satisfied that while there has been an inordinate delay in these criminal proceedings, that delay is excusable by virtue of the difficulty in locating the [appellant] and the unavailability of the key witness.”
16. The learned High Court judge also refused to prohibit the trial on grounds of stress and anxiety to the appellant, stating that the appellant had failed to support such a claim with medical evidence.
Notice of Appeal
17. Twenty four specific grounds of appeal were filed on behalf of the appellant, as follows:-
(i) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant.
(ii) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant, notwithstanding the real and serious risk that justice would not be seen to be done when the finding by the learned trial judge in refusing the appellant inspection of them was that the documents considered were seriously prejudicial to the appellant.
(iii) The learned trial judge erred in law and/or fact in dismissing the appellant’s application for judicial review.
(iv) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to relief prohibiting and/or staying the DPP from proceeding with the trial of the appellant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28th October 2010 in proceedings entitled “The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox.”
(v) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to damages pursuant to section 3 of the European Convention on Human Rights Act 2003.
(vi) The learned trial judge erred in law and/or fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not of itself sufficient to jeopardise the appellant’s right to a trial in due course of law and/or his right to a fair trial and/or his right to a trial with reasonable expedition.
(vii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute prosecutorial delay.
(viii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not deliberate on the part of the DPP.
(ix) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute blameworthy prosecutorial delay.
(x) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was attributable, in whole or in part, to the appellant’s conduct.
(xi) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file.
(xii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the DPP directed that the appellant be charged without any contact having been made with the appellant.
(xiii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the evidence did not disclose any attempt by the DPP or the investigating authorities to locate or contact the appellant with regard to the allegations the subject matter of the instant proceedings.
(xiv) The learned trial judge erred in law and/or in fact in holding that alleged difficulty in contacting the appellant excused the inordinate delay in his prosecution, when the evidence disclosed that the investigating authorities were in possession of contact information for the appellant through which no efforts were made to locate or contact the appellant.
(xv) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work.
(xvi) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work when (a) Liam Cosgrave and Frank Dunlop have been so prosecuted and/or (b) when the said Tribunal has yet to conclude its work.
(xvii) The learned trial judge erred in law and/or in fact in holding that Frank Dunlop was not available as a witness in the prosecution of the appellant until the proceedings of the Tribunal and/or the prosecution of Frank Dunlop were concluded.
(xviii) The learned trial judge erred in law and/or in fact in holding that the DPP had discharged the onus of excusing the inordinate delay in the prosecution of the appellant.
(xix) The learned trial judge erred in law and/or in fact in failing to hold that the death of material witnesses was such as to severely prejudice the appellant’s ability to properly defend the charges against him.
(xx) The learned trial judge erred in law and/or in fact in holding that the unavailability of material documents was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.
(xxi) The learned trial judge erred in law and/or in fact in holding that the diminished recollection of witnesses including the appellant attributable to the efflux of time was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.
(xxii) The learned trial judge erred in law and/or in fact in holding that the long period that has elapsed from the date of commission of the alleged offences did not give rise to presumptive prejudice to the appellant.
(xxiii) The learned trial judge erred in law and/or in fact in holding that the delay in the prosecution of the offences alleged against the appellant has not caused excessive stress and anxiety to him.
(xxiv) The learned trial judge erred in law and/or in fact in holding that the balance of justice lay in favour of the prosecution of the appellant.
Submissions
18. Oral and written submissions were made, on behalf of the appellant and of the DPP, to the Court. In oral submissions counsel for the appellant indicated that the core issue on the appeal was the delay by the DPP in advancing the prosecution, under the Constitution of Ireland and under the European Convention on Human Rights. However, before addressing those matters, counsel advanced a submission on a matter of disclosure.
19. I shall address the three core issues in the following order:-
(a) Disclosure;
(b) The right to an expeditious trial; and
(c) The European Convention on Human Rights.
(a) Disclosure
20. The matter of disclosure was the first specific issue raised by counsel for the appellant on the appeal.
21. The issue arose because after the papers were filed in the judicial review proceedings in the High Court, including affidavits by members of An Garda Síochána, an application for discovery was made by the appellant seeking documents, including correspondence referred to but not exhibited in the affidavits of Detective Garda Martin Harrington and Detective Sergeant Michael V. Byrne.
22. The application for discovery was heard by Hedigan J., who gave judgment on the 12th July, 2011. Most of the discovery sought was refused, but the learned High Court judge ordered the DPP to make discovery of the correspondence referred to but not exhibited in paragraph 92 of the affidavit of Detective Garda Martin Harrington of the 2nd June, 2011, and paragraph 15 of the affidavit of Detective Sergeant Michael V. Byrne of the 1st June, 2011.
23. Privilege over this correspondence was claimed by the DPP, on the basis of legal professional privilege and/or public interest privilege. The appellant obtained leave to issue a motion seeking inspection of the documents, and this motion was considered and ruled upon by Hedigan J. before the commencement of the application for judicial review.
24. When the judicial review came before the High Court on the 21st July, 2011, counsel for the appellant said:-
“Just to let the Court know the running order. There is an issue on disclosure which we request the Court perhaps to deal with first and then our judicial review application itself to proceed, because part of our issues is in that context compliance with the order and that question of disclosure.”
The learned High Court judge acceded to this request.
25. During the hearing of the motion on privilege, counsel for the DPP suggested that the learned High Court judge view the documents so that he could decide whether they should be produced for inspection. The appellant objected to the procedure. However, the learned High Court judge viewed the documents.
26. The learned High Court judge then ruled on the application. He refused the application on the basis that the public interest in maintaining the confidentiality of the documents outweighed the interest of the appellant.
27. It was submitted on behalf of the appellant that the procedure adopted by the learned High Court judge was unfair to the appellant. It was submitted that the practice generally adopted, when a claim of privilege is challenged, is that the documents are examined by a judge other than the judge hearing the substantive proceedings. It was submitted that justice should not only be done but be seen to be done and that in this case the learned trial judge had examined the documents, which he held to be inadmissible. Also, during the case the learned trial judge had referred to some of the documents stating that they were “highly prejudicial” to the appellant.
28. On the issue of disclosure two aspects arose:-
(a) a question of law, arising on the submissions of counsel for the appellant on the decision in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24, referred to as “The Edwards Case”; and
(b) a question of objective bias, raised by counsel for the appellant.
(a) The Edwards Case
29. It was submitted by counsel for the appellant that the procedure adopted by the High Court was unfair to the appellant, and reliance was placed on the Edwards case.
30. Counsel for the appellant stated, on the 21st July, 2011, at pp. 76 to 77 of the transcript, on the application for privilege on the documents discovered:-
“MR. O’BRAONÁIN: There is an issue as to whether or not the Court should inspect the documents at this stage, and the issue is this: Certainly in the case – Mr. Hayden very helpfully drew my attention to it – in the case of Edwards and Lewis in the United Kingdom, which is a decision of the European Court of Human Rights. It is reported at 2005 40 EHRR page 24. I am referring to Mr. Hollander’s text on documentary evidence. The Court held that the procedure that had been adopted in that case was inadequate to protect the Defendants. And, in my respectful submission, the procedure that is being suggested here suffers from the same inadequacy, and it is this: There the “Defendants complained that they had been entrapped into committing the offence by undercover police officers or informers and asked the trial judge to consider whether certain prosecution evidence should be excluded for that reason.
”The Defendants were denied access to the undisclosed evidence. The judge, who rejected the Defence submissions, had himself seen the undisclosed Prosecution evidence and ruled it irrelevant. The Court was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the Defence were not permitted to see. The European Court of Human Rights held that the procedure deployed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”
And the Court could see that in the ordinary course of things —
MR. JUSTICE HEDIGAN: But the rationale of that would, in effect, bar me from being the Trial Judge in the criminal case.
MR. O’BRAONÁIN: No, the rationale from that would bar you from being the Trial Judge in the judicial review proceedings.”
31. On the 22nd July, 2011, the High Court ruled on the application for privilege, which is to be found on the transcript at pp. 1 to 3:-
“MR. JUSTICE HEDIGAN: In these proceedings on the 12th of July, 2011, I made an Order of Discovery pursuant to Order 31 of the Rules of the Superior Courts in respect of the correspondence referred to in paragraph 92 of Garda Martin Harrington’s affidavit and paragraph 15 of Garda Michael Byrne’s affidavit.
Owing to the shortness of time, I stated in that decision that any claim to privilege over this documentation might be decided when the case came on for hearing.
Privilege is claimed over the correspondence on the basis of either legal professional privilege or public interest privilege.
I have inspected the documentation, as I believe that a judge hearing such an application as this ought to satisfy himself that there is nothing contained therein which privilege duly considered ought in the interests of justice be inspected by the [appellant], even on certain terms, as to preserving confidentiality.
On the basis of this inspection, it is clear the correspondence referred to by Garda Harrington involves letters between the DPP and investigating Gardaí as to the ongoing investigation and details of a confidential nature of interviews with Frank Dunlop. I can find nothing in these letters which advances or diminishes the case of either side. They are exactly as described in paragraph 92. There is an important public interest in the confidentiality of correspondence of this nature. A frank assessment of the strength of a case and of the credibility of the proposed witnesses is contained therein inevitably. That is so in this case. This public interest might well be outweighed by the [appellant’s] right to a fair trial of the issue before the Court. However, I could find nothing in my inspection of this correspondence that could outweigh the public interest in their confidentiality. I refuse inspection of this category of documentation.
As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is very tangential to the charges faced by the [appellant] and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the [appellant]. Their production, in my opinion, could only damage the [appellant’s] case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries. It must be an important aspect of the international fight against crime of all nature, including corruption. As there is no interest of the [appellant] that I can find to balance against the public interest, I will refuse inspection of this category also.
Needless to say, as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.
That is the decision.”
32. The facts in the Edwards case included the following. Mr. Edwards was arrested following a surveillance and undercover operation. He was in a van with an undercover police officer and a briefcase containing heroin. He was convicted of possessing a Class A drug with intent to supply and sentenced to nine years’ imprisonment. He unsuccessfully appealed this decision in the United Kingdom.
Mr. Lewis was arrested in a separate incident by uniformed police officers in a pub car park after he had shown two undercover police officers some counterfeit bank notes. More counterfeit notes were found in his house. He pleaded guilty to three charges of possession of counterfeit notes with the intention of delivering them to another. He was sentenced to four and a half years’ imprisonment.
In both cases an application by the prosecution to withhold material evidence had been granted on the ground that it would not assist the defence and that there were genuine public interest reasons for not disclosing it. The judge also refused a request to exclude the evidence of the undercover officers.
In its Chamber judgment of the 22nd July, 2003, the European Court of Human Rights, referred to as “the ECtHR”, held unanimously that there had been a violation of Article 6.1 and that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damages sustained. In finding this violation, the Court stated that this did not entail that the applicants were wrongly convicted.
33. Thus in the Edwards case the ECtHR held that the procedure adopted in that case was inadequate to protect the defendants. The facts of that case included that it was a criminal trial and that the defendants had claimed that they had been entrapped into committing the offences by undercover police officers. An issue arose as to whether certain documents should be disclosed. The trial judge saw the documents and denied the defendants access to the documents on the grounds that they were irrelevant, would not assist the defence, and that there were genuine public interest reasons for not disclosing the material.
34. As was pointed out in Hollander, Documentary Evidence [10th Ed., Sweet & Maxwell, Thompson Reuters, 2009] para 18-11, p. 395:-
“The ECtHR was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the defence were not permitted to see. The ECtHR held that the procedure employed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”
It is also an interesting factor, as pointed out by Hollander, at p. 395, that:-
“Whilst granting a declaration of violation of Art. 6 rights, the ECtHR expressly found that the violation of Art. 6 rights did not entail that the defendants were wrongly convicted.”
35. The procedure of inspection of documents by a court of trial is a very useful one and is often very much in the interest of the party challenging the privilege claimed. The Edwards case relied on by the appellants, refers to a criminal trial. The case before this Court is a civil process, arising on an application for judicial review. The Court was referred to no authority, either in a legal text or in a case of the ECtHR, which has applied the Edwards case outside the criminal law. It would be pure speculation to consider whether the Edwards case would apply to a civil case, such as is before the Court. The High Court did not apply the Edwards case and, in all the circumstances, I would not intervene in the determination of the learned High Court judge on this issue.
(b) Objective bias
36. The second aspect of the submission on behalf of the appellant in relation to the issue of disclosure was a claim of objective bias. Counsel for the appellant submitted, in essence, that the learned trial judge should not have proceeded to hear the application for judicial review on the grounds of objective bias, that he should have recused himself.
37. Counsel argued that the application made by counsel in relation to the Edwards case covered this aspect of the law also, covered an application in relation to objective bias, and that the learned trial judge ought to have recused himself.
38. There are a number of factors to be considered.
39. The learned High Court judge’s ruling, in relation to the request for the documents relating to the Isle of Man authorities, stated that it was “very tangential” to the charges faced by the appellant. Obviously documents that are very tangential are of at least questionable relevance.
40. The learned trial judge continued and stated:-
“Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the applicant. Their production, in my opinion, could only damage the applicant’s case herein.”
This passage was drawn to the attention of this Court by counsel for the appellant. However, this was an ex tempore ruling of the learned High Court judge and must be considered as such and while he states that the documents seem “highly prejudicial” to the appellant, he stated also that they “could only damage the [appellant’s] case herein”. Such reference appears to be to the appellant’s application for judicial review, and to it being damaged.
41. The learned trial judge then stated:-
“I will not take any of its content into account in my consideration of this application.”
In those circumstances I am satisfied that it is entirely appropriate to rely on the High Court’s ruling that the content would not be taken into consideration on the hearing of the application
42. As the application before the High Court on the issue of disclosure drew to a close, there were exchanges on the issue of costs, and the High Court ordered “no order as to costs” in these circumstances on that application. Counsel for the State indicated that he was obliged.
43. The High Court judge said at page 4 of the transcript for the 22nd July, 2011:-
“Very good. Then we will continue.”
Counsel for the appellant then stated:
“Judge, I’m dealing with the substantive application, and I mean, the Court has between the Discovery and, obviously, the associated case and the application relating to Discovery a fair idea and background as to what is at issue. And subject to the Court, I will go through the affidavits in general form, but unless the Court wishes and My Friend …”
And so the application by way of Judicial Review for an injunction of the criminal trial commenced, and there was no request to the learned trial judge to recuse himself on the grounds of objective bias.
Law on objective bias
No law as to objective bias was opened to the High Court. There was no reference to cases such as Dublin Wellwoman Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408; Bula Ltd. v. Tara Mines Ltd (No. 6.) 4 I.R. 412, and Kenny v. Trinity College Dublin [2008] 2 l.R. 40. Neither the general principles nor the case-law were opened to the High Court.
Circumstances
45. The circumstances of this case include the following:-
(i) the issue of objective bias did not, and could not, arise until after the learned trial judge had given his ruling on the issue of the Edwards case;
(ii) the law on objective bias was not opened to the High Court;
(iii) there was no application to the learned trial judge to recuse himself on the basis of objective bias;
(iv) there was no decision on the issue of objective bias in the High Court;
(v) an issue not raised or determined in a trial court may not be an issue in a subsequent appellate court.
Thus the issue of objective bias may not be raised in this Court.
46. Even if the issue of objective bias had been raised and determined in the High Court, which it was not, I am satisfied that, applying the test as set down in our case-law, there was no objective bias in this case.
47. Consequently, I am satisfied that the appellant has not established a basis upon which his appeal could succeed on the first issue, i.e. the issue of disclosure, and I would dismiss this aspect of the appeal.
Right to an expeditious trial
48. I shall now consider the second issue on this appeal. Under this rubric the appellant has raised: (i) the right to an expeditious trial; (ii) prosecutorial delay; (iii) stress and anxiety.
49. Counsel for the appellant raised the issue of delay in prosecuting the appellant and referred to several articles of the Constitution. The Constitution does not expressly state that there is a right to an expeditious trial, but counsel referred the Court to Article 38.1 of the Constitution which provides:-
“No person shall be tried on any criminal charge save in due course of law”.
Reference was made also to Article 40.3.1° of the Constitution which states:-
“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
It was submitted that the appellant has a personal right to an expeditious trial.
50. A personal right to a trial with reasonable expedition has been recognised by this Court. In State (O’Connell) v. Fawsitt [1986] I.R. 362, Finlay C.J. at p. 378, with whom Walsh J.,Henchy J., Griffin J., and McCarthy J. agreed, stated that:
“…a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with reasonable expedition”.
At p. 379 he stated further:-
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition.
[…]
A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury.”
51. This right was considered recently in P.M. v. Malone [2002] 2 IR 560 where Keane C.J. held, at pp. 572 to 573:-
“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.
The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.
There are thus three interests of defendants which the right to a speedy trial is intended to protect, 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 of 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 by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”
52. The three interests protected were set out in Barker v. Wingo (1972) 407 U.S. 514 at p. 532 as:-
(i) to prevent oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired.
53. Thus, while the right to an expeditious trial is not expressly stated in the Constitution, it has been recognised as a personal right of an accused. The question then arises as to whether the appellant’s right has been impaired. Therefore, the circumstances of a case require to be analysed to enable a determination as to whether the personal right of an accused has been breached.
Pre-trial incarceration
54. As the appellant has been on bail there is no pre-trial incarceration issue in this case. Thus, this aspect of an infringement of the right does not arise.
Stress and anxiety
55. The appellant did raise the issue of stress and anxiety. However, no evidence was before the Court to establish this ground. As has been stated previously, it is necessary to provide an evidential basis to establish this ground so as to prohibit the trial.
56. There is well established jurisprudence that such a claim may not succeed where an appellant is suffering from normal stress and anxiety from a pending prosecution. Evidence is required to ground any exercise of discretion by the Court in favour of an applicant: P.M. v. Malone [2002] 2 IR 560. In this case the appellant has laid no such foundation, and hence may not succeed on this submission.
57. Further, even if evidence was before the Court as to specific stress and anxiety, the Court is then required to engage in a balancing process between an accused’s right to be protected from such stress and anxiety and the public’s interest in the prosecution and conviction of those guilty of criminal offences.
58. Thus, this aspect of an infringement of the right does not arise.
Delay – impairment of trial?
59. Counsel for the appellant submitted that there had been delay in the prosecution of the appellant such that the prosecution should be prohibited.
Prosecutorial Delay
60. There has been delay in bringing these prosecutions. However, that is not the test, as this is a criminal trial, the issue is that of prosecutorial delay. Thus, it is necessary to analyse the prosecutorial delay and all the circumstances of the case.
61. The chronology of the investigation is set out in the affidavits of Detective Garda Harrington sworn on the 2nd June, 2011, and the 19th July, 2011, and the affidavit of Detective Sergeant Michael V. Byrne sworn on the 1st June, 2011. It was an extensive investigation. Many people had to be interviewed regarding the serious allegations which had been made.
62. While there was some evidence of difficulty in contacting the appellant, who seeks to maintain a residence outside the State, and the learned High Court judge gave some weight to that factor, the core reason for the delay in the prosecution of the appellant appears to have been the decision of the DPP in relation to Frank Dunlop. It is apparent that the DPP decided not to prosecute the appellant until a key witness in any trial of the appellant, Frank Dunlop, had been prosecuted and decision of conviction or acquittal obtained.
63. I am satisfied that it was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop on corruption charges before prosecuting the appellant. It was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop before calling him as a witness in a prosecution against the appellant. For, amongst other factors, if Frank Dunlop had been called as a prosecution witness, in circumstances where he had not already been convicted and sentenced, there could be a perception that he was simply giving evidence to secure some benefit for himself and his status as a witness could have been undermined.
64. I reach the same conclusions as in Cosgrave v. Director of Public Prosecutions [2012] IESC 24, where I stated in paragraph 59:-
“There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.
However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.”
I adapt and apply the same reasoning in this case.
65. I am satisfied that while there was delay, the reasons given by the DPP for the delay, including the unavailability of the key witness, Frank Dunlop, to give evidence, are reasonable.
66. Consequently, I do not find that there is blameworthy prosecutorial delay in this case. Therefore, there is no need to take any further step to analyse and balance conflicting interests on this aspect of the case as blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with: P.T. v. Director of Public Prosecutions [2007] 1 I.R. 701; D. v. Director of Public Prosecutions [1994] 2 I.R. 465; P.M. v. Malone [2002] 2 IR 560; P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172.
67. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP, a further analysis would be required to determine if there had been consequential prejudice to the appellant. While it is not necessary to take this further step, in the circumstances, I do address the matter.
Prejudice
68. Counsel on behalf of the appellant submitted that as a consequence of the delay in the prosecution the trial of the appellant would be prejudiced.
69. Counsel on behalf of the appellant has submitted that his trial would be prejudiced by the deaths of a number of potential witnesses, being (i) Councillor Sean Gilbride on the 1st January, 2011, who was also charged with the appellant; (ii) Councillor Frank Smyth on the 24th May, 2003, (iii) Philip Monahan on the 3rd August, 2003; (iv) Dr. Brian Meehan on the 13th June, 2004 and (v) Liam Lawlor on the 22nd October, 2005. Other potential witnesses had died prior to Frank Dunlop’s evidence to the Tribunal and the beginning of the criminal investigation arising as a result; these were Councillor Tom Hand who died in 1996; Fintan Gunne on the 9th October, 1997; Councillor Jack Larkin in May 1998 and Councillor Cyril Gallagher in March, 2000.
70. In written submissions the appellant referred to nine potential witnesses who have died and who might have corroborated his version of events surrounding the charges against him. However, during the Supreme Court hearing, questions from the Court to counsel for the appellant highlighted that four of these witnesses had died before the allegations of Mr. Dunlop were aired in the Tribunal and the Garda investigation into offences of corruption began. Also, O’Donnell J. pointed out the inconsistency between the appellant’s written submissions and his affidavit regarding the death of Mr. Fintan Gunne, who died on the 9th October, 1997, as opposed to 2007, which was the date referred to in the written submissions. Thus, it was open to the appellant to say that five witnesses have died since the Garda investigation began.
71. However, having heard the submissions on this issue, I am not satisfied that the prejudice alleged is such as to prohibit a trial, as the deaths of witnesses referred to relates to evidence, the essence of which can be obtained from other sources. In fact, when this matter was addressed during the hearing it became clear that there was insufficient engagement with the facts so as to show that there was a real risk of an unfair trial. Indeed the argument fell apart and the prejudice was not established.
72. This case is unlike a situation where many years after an event, without prior notice, an accused is charged with an offence from many years ago. The matters raised in this trial have been known to the appellant throughout the intervening years as they have been raised in other fora. Therefore, it is not a case where issues may have lain dormant for many years and then unexpectedly been raised out of the blue.
European Convention on Human Rights
73. The appellant, in his Notice of Motion applying for judicial review, claimed the following relief:-
“Damages pursuant to section 3 of the European Convention on Human Rights Act 2003”.
This was repeated in the statement of grounds grounding the application for judicial review.
74. However, such damages were not sought in the High Court.
75. Counsel for the appellant informed this Court that he had not made and did not make a claim for damages. He stated that no order for damages was sought in the High Court nor was it advanced in this Court.
76. Therefore, the issue of damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003, was not, and could not be, an issue before this Court. Clearly, a decision was taken by and on behalf of the appellant not to pursue this remedy. In other words, the claim for damages was abandoned. Therefore no such issue falls to be determined in this Court
In written submissions on behalf of the appellant reference was made to Article 6(1) of the European Convention on Human Rights, which provides, inter alia,:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
78. Reference was made also to s. 3 of the European Convention on Human Rights Act, 2003, which provides:-
“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.
(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”
79. However, as the appellant did not advance his claim for damages, it was not an issue determined in the High Court and was not an issue advanced in this Court.
80. The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under Irish jurisprudence. I have had no case open to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited. Consequently, as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not apparently under the ECHR, consequently this claim has been determined on Irish law.
81. The fundamental facts in this case are that the appellant was charged with 16 charges on the 22nd October, 2010, the Book of Evidence was served on the 28th October, 2010, and the trial date was set for the 5th October, 2011. However, that trial date had to be vacated as the appellant brought these proceedings by way of judicial review, which he initiated on the 7th March, 2011. His application was dismissed by the High Court on the 28th July, 2011, and he exercised his right of appeal to this Court.
82. On his appeal to this Court he sought to prohibit his trial as set out earlier in the judgment.
83. For the reasons given, I would dismiss the appeal and affirm the order of the High Court. Thus, the trial of the appellant may proceed.
JUDGMENT of Mr. Justice Fennelly delivered the 7th day of June 2012.
1. I agree that this appeal should be dismissed. I agree with the judgment which has been delivered by the Chief Justice on the issue of delay. The Chief Justice has given an outline of the facts and history of the case which I gratefully adopt. I write separately only on the issue of objective bias.
2. Counsel for the appellant submitted at the hearing that the learned High Court judge should not have heard the case. The reason was that the judge had seen evidence, not disclosed to the parties, which he described as being “highly prejudicial to the applicant.” Consequently, it is argued, he should have recused himself.
3. The procedural background is as follows. The respondent claimed to be entitled to refuse to produce certain documents whose existence was disclosed in the affidavit of discovery sworn on his behalf, based on legal professional privilege and/or public interest privilege. The appellant issued a motion seeking inspection of the documents over which privilege was claimed, to be heard at the commencement of the hearing of the application for judicial review.
4. Counsel for the appellant objected to the proposal made by counsel for the respondent that the learned judge should himself view the documents to enable him to decide whether they should be produced for inspection. The objection was that this would be an unfair procedure because, if the judge were to rule that the appellant was not entitled to see the documents, the judge would himself have seen them and that there was a risk that he could be influenced by his inspection of the documents. The objection was overruled and the learned judge proceeded to view the documents. As the Chief Justice has explained in her judgment the objection was based on the decision of the European Court of Human Rights in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24.
5. In the course of making his objection, counsel for the appellant submitted that the rationale of that decision was, not that it would bar the judge from subsequently being the trial judge in ensuing criminal proceedings, but, as counsel specifically objected, it would bar him from being the judge in these very judicial review proceedings. He submitted that, although a judge might inspect documents in private for the purpose of determining a disputed issue of privilege, a different judge should then hear the substantive proceedings.
6. The learned judge decided that he would inspect the documents. He did so and then made the ruling which is the gravamen of the allegation of objective bias. He ruled that the public interest in not disclosing the documents outweighed any interest of the appellant. Indeed he could find nothing in the latter respect which could outweigh that public interest. He then proceeded to make the remarks to which objection has been taken:
“As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is a very tangential to the charges faced by the Applicant and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the Applicant. Their production, in my opinion, could only damage the Applicant’s case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries….”
The learned judge added: “as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.”
7. Counsel for the appellant then proceeded, without any break in the hearing, to present the application for judicial review. No objection was taken to the above remarks, although it is now contended that they exhibit objective bias on the part of the trial judge. Specifically, it is said that the judge acknowledged having seen documentation which was “highly prejudicial” to the appellant and that it was such that it, in his opinion, “could only damage the Applicant’s case herein.”
8. In response to the appellant’s argument that the learned judge was obliged to recuse himself so as to permit a different judge to hear the application for judicial review, the respondent lays particular emphasis on the absence of any objection to that effect. Counsel relied on the decisions of this Court in State (Byrne) v. Frawley [1978] IR 326; Corrigan v. Irish Land Commission [1977] IR 317). The effect of those decisions is that, by virtue of estoppel or waiver, a person may be precluded from relying on a ground of objection which was not made at the appropriate time.
9. Before considering any authority, I propose to examine the remarks of the trial judge to which objection was taken. It must be remembered that these remarks were made ex tempore and cannot be expected to have the coherence and logic of a written text. The first point to note is that the learned judge found it difficult to see any relevance in the documentation. It was, he said, “tangential” both to the criminal charges the appellant was facing and to the case he was making in the very judicial review application itself. Taken on its own, therefore, the judge’s remark that the documents were “highly prejudicial” cannot, in logic, give rise to any prejudice related to the issues in the present case. It is only the ensuing remark that the documentation, if produced, “could only damage the Applicant’s case herein,” which is problematic. It is inconsistent with what went before and a great deal of meaning has to be placed on the single word “herein.”
10. I am prepared to accept, however, that, read literally, this part of the judge’s remarks could be read as indicating that what he had seen documentation which would be prejudicial to the appellant. Whether the words meet the standard of the reasonable objective bystander seems, however, to be doubtful. The test has been restated many times in recent years and is usefully encapsulated in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines (No. 6) [2000] I.R. 412 at page 441:
“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.
11. Keane C. J. expressed the matter in very similar terms Orange Communications Ltd. v Director of Telecoms (No. 2) [2000] 4 IR 159 at 186 as follows:
“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two [Irish] authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.”
12. It is not unfair to test the matter in this case by reference to the reaction of counsel for the appellant, who might be expected to be astute to raise an objection of bias, having regard to the submissions they had made to the learned judge before he gave his ruling. The fact that no objection was made must lead to the inference that it did not appear to counsel listening to the judge’s ruling that he was exhibiting signs of objective bias. The situation is analogous to that which not infrequently presents itself to the Court of Criminal Appeal, where counsel advances an objection which was not made at trial. The court is sceptical as to the merits of any objection of which it did not occur to counsel to make at the time and, in particular, discourages the practice of “trawling” through the transcripts in search of possible grounds of complaint.
13. Corrigan v. Irish Land Commission concerned an objection made by way of appeal on a point of law to the Appeal Tribunal of the Land Commission and thence to this Court to the fact that the two land commissioners who had certified that the land proposed to be acquired was necessary for the relief of congestion also sat as the Lay Commissioners to determine the landowner’s objection. No objection was made to the lay commissioners themselves when they sat to hear the objection. Henchy J considered that two experienced counsel who appeared for the objector had consciously and knowingly accepted the composition of the tribunal. Writing for the majority of this Court (Kenny J dissenting) said, at page 324, that he considered “it to be settled law that………………if [a party] expressly or by implication acquiesces at the time in that member taking part in the hearing and in the decision, he will be held to have waived the objection on the ground of disqualification which he might otherwise have had.” In the particular case, Henchy J held that any objection to the participation of a particular commissioner had been “knowingly waived by counsel for the appellant when they elected to accept the tribunal as they found it composed o the day of the hearing.”
14. Griffin J, who agreed with Henchy J, cited authority to the effect that a waiver must be intentional and emphasised the need for knowledge of what was being waived. For my part, I would be slow to hold that counsel had knowingly waived a ground of objection available to his or her client in the course of a hearing and without the opportunity for consultation. In Corrigan Henchy J went to great lengths to infer from the status of counsel and their advance knowledge of the composition and procedures of the Land Commission that they had knowingly and deliberately waived any objection by their acquiescence.
15. The present case is, I think different. There can be no suggestion, nor has one been made, that counsel made the sort of calculated decision which arose in Corrigan. On the other hand, I do not think the words used by the learned High Court judge, when considered in context, are capable of being interpreted as exhibiting bias on his part. He said, in effect, that he had seen material which was highly prejudicial to the appellant, but it was tangential to any issue in the judicial review proceedings and he had difficulty in seeing its relevance. The fact that counsel did not object is itself strongly indicative of the fact that no “reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue.”
16. It would be possible to rule against the objection simply on the ground that there is no ground of appeal related to it. The first two grounds of appeal repeat the objection made in the High Court to the judge inspecting documents, despite the objection of the appellant, over which the respondent had asserted privilege. There is no ground expressly covering the distinct complaint that the learned judge had, in the course of his ruling on the first issue, shown bias by saying that he had seen material which was “highly prejudicial” to the appellant. Like Clarke J, I would be slow to rule against the appellant on that ground alone. However, it seems to me that the absence of any such ground of appeal provides further confirmation of the fact that it did not appear to the parties at the time that there was any ground for asserting objective bias.
17. I have had the opportunity of reading in draft the judgment which Clarke J is about to deliver. I full agree with his treatment of the procedural issue of examination of documents by a trial judge of documents over which privilege is claimed. I also agree with his treatment of the issue of delay considered in the context of the European Convention of Human Rights. I would prefer to reserve for another occasion consideration of the correct burden to be imposed on an application for prohibition of a criminal trial on the ground of delay generally. For the present case, the test of a real risk of an unfair trial suffices.
Judgment of Mr. Justice Clarke delivered the 7th June, 2012.
1. Introduction
1.1 I agree with the Chief Justice that this appeal should be dismissed and the order of the High Court affirmed. However, my reasons for coming to that conclusion differ in some respects from those of the Chief Justice and those reasons might be thought, at least to some extent, to suggest a possible evolution of the jurisprudence in this area.
1.2 Therefore I set out in this judgment some observations on the legal principles behind some of the issues which arise in this case. However, given that, on the facts of this case, the evolution in the jurisprudence which those observations might suggest may not be decisive, my suggestions should be regarded as tentative. The one point of substance on the facts of this case on which I respectfully disagree with the Chief Justice arises equally if the existing jurisprudence is applied unchanged.
1.3 In addition it is, in my view, important to keep clear the distinction between the different rights asserted as being applicable in this case and also to keep clear the implications and consequences which arise from possible breaches of, on the one hand, the Constitution and, on the other hand, rights guaranteed under the European Convention on Human Rights (“ECHR”). I also include, therefore, some observation on the relevance of those distinctions to this case.
1.4 Those distinctions are of particular importance when a challenge is brought on a wide range of grounds invoking different rights or different aspects of rights deriving from both the Constitution and the ECHR. I do not think it would be unfair to characterise the challenge initiated on behalf of the applicant/appellant (“Mr. Kennedy”) as involving something of a scattergun approach. While it is, of course, the right of any litigant to place before the Court argument based on any proposition where the raising of the issue concerned does not amount to an abuse of process, it nonetheless remains the case that a court, when faced with a scattergun approach, has to exercise significant care in identifying with some precision the issues that fall for determination and the precise rights invoked which are relevant to each specific issue. Against that background I now turn to the facts and issues of the case.
2. Facts and issues
2.1 The background facts are fully set out in the judgment of the Chief Justice and it is unnecessary to repeat them here. In addition the three issues raised by counsel for Mr. Kennedy in this appeal are also identified in that judgment.
2.2 However, at this stage I should also record that there was, it seemed to me, a tendency on the part of counsel for Mr. Kennedy to conflate the issues which arose under the ECHR with those which arise under the delay jurisprudence of the Irish courts. Therefore before going on to consider those issues it does seem to me to be important to set out in clear terms the respective applications of both the Constitution and the ECHR to the issues which arise in this case. However, before turning to those questions I propose to add some observations on the disclosure issue noted in the judgment of the Chief Justice.
3. The Disclosure Issue
3.1 As appears from the facts set out in the judgment of the Chief Justice the central underlying issue under this heading is as to whether it was appropriate for the trial judge to look at the documents in respect of which public interest or executive privilege was asserted while at the same time retaining seisin over the substantive judicial review proceedings. In addition to that underlying issue there is a second question as to what precise issues remain properly before this Court by virtue of the events which occurred at the trial in the High Court and the issues raised on the notice of appeal. However, before addressing that latter question it seems to me to be important to analyse the situation which arises when public interest privilege is asserted.
3.2 The overall legal principles are now well settled. As is clear from Ambiorix Ltd & Ors v. Minister for Environment (No. 1) [1992] I.R. 277 and Murphy v. Dublin Corporation of Dublin [1972] I.R. 215 the Court must conduct a balancing exercise between the asserted public interest in the non-disclosure of the materials concerned on the basis of confidentiality attaching to the exercise of the executive power of the State, on the one hand, as against the public interest in the relevant materials being adduced in evidence before the Court at trial so as to assist in the administration of justice and so as to contribute to the fairness of the trial process, on the other. It is also well established that, in an appropriate case, in seeking to exercise that balance, a judge may review the documents or materials concerned so as to form an opinion as to the weight to be attached to the confidentiality asserted on behalf of the executive and to balance that weight against the importance of the relevant materials to the issues which are likely to arise at the trial.
3.3 It is against that background that, as a matter of Irish constitutional jurisprudence, a determination has to be made as to which judge should review the documents in question for the purposes of engaging in such a balancing exercise. The argument in favour of the trial judge reviewing the documents stems from the fact that the trial judge will have a much better understanding of the issues which are likely to arise in the case and thus may be able to assess, with much greater precision, the importance of the documents to the case. As that is an important part of the balancing exercise which must be engaged in, it clearly is a factor to which appropriate weight should be attached in deciding which judge should examine the documents in question. On the other hand the argument in favour of a judge different from the trial judge reviewing the documents or materials stems from the possibility that the trial judge will, in reviewing the materials, become aware of matters which have not been established in evidence and which will not, in the event that disclosure is not directed, be available to one side of the litigation.
3.4 It seems to me that the decision as to whether it is appropriate that the exercise of scrutinising documents in respect of which public interest privilege has been claimed is to be conducted by the trial judge or by another judge is one which must be conducted on a case by case basis. As pointed out it may well be to the advantage of the party in opposition to the State (obviously in the criminal context the accused) to have that exercise carried out by the trial judge rather than a judge who will, necessarily, have a more limited understanding of the potential importance of any documents to the case which the accused might wish to make. It must be remembered that, precisely because the party in opposition to the State does not get to see the documents and does not, save in the most general way, get to address the importance which the documents might have to his case, the judge is left to form an assessment of the importance of the relevant documents to that party’s case largely on the basis of the judge’s own understanding of the issues. In that context there can be little doubt but that an accused might be disadvantaged by having a judge who is not fully familiar with the issues carry out that assessment.
3.5 It seems to me that there is nothing, therefore, in principle wrong with the trial judge looking at documents for the purposes of determining whether public interest privilege should be upheld. It may be that there will be cases where, having reviewed those documents, the trial judge unfortunately realises that a potential and significant prejudice has occurred which would warrant the trial judge declining to hear the case further. It is for that reason that it is to be strongly recommended that issues of this type are decided in advance of the hearing date so that, in the event that the trial judge does have to recuse, another judge can take over the trial without any difficulty. However, for understandable reasons, such a course of action did not prove possible in this case.
3.6 So far as the analysis of Edwards and Lewis v. United Kingdom [2005] 40 EHRR 24 is concerned and its application (or rather non application) to the facts of this case is concerned, I agree fully with the judgment of the Chief Justice.
3.7 So far as the claim of objective bias is concerned I have come to the view that that issue does arise under the notice of appeal in this case even if not very clearly expressed. Ground of Appeal (ii), as cited in the judgment of the Chief Justice, does seem to me to amount, in substance, to a contention that, in the light of the comments made by the trial judge when he had reviewed the documents (and in particular his reference to same being highly prejudicial) objective bias arises. I would not be prepared to shut Mr. Kennedy out from making the objective bias argument because the ground of appeal concerned may be ambiguous.
3.8 However it seems to me that there is a difficulty with Mr. Kennedy raising that ground at this stage. Without the comment made by the trial judge concerning the documents being highly prejudicial to Mr. Kennedy’s case it is difficult to see how there would be any case in objective bias. Shorn of those comments all that would have occurred is that the trial judge would have looked at documents and found them to be only tangentially relevant. The trial judge would also have declared that he would not take the documents in question into account. If that was all that happened it is difficult to see how there would be any case for objective bias. For the reasons already set out it seems to me that there is nothing wrong in principle with the trial judge viewing documents for the purposes of assessing whether a claim to public interest privilege should be maintained. If, having reviewed such documents, the judge indicates that some are of only marginal relevance to the case and that he will not take them into account, it is hard to see how the notional objective and informed bystander could have any legitimate concerns. The only possible problem that emerges in this case stems, therefore, from the comment of the trial judge to the effect that the documents were highly prejudicial. It was only when that comment was made that, in my view, a stateable case for recusal could be have been raised on behalf of Mr. Kennedy. The problem is that no such case was made on the occasion in question. It would have been open to counsel to argue that, at that stage, and in the light of the fact that the trial judge considered the documents to be highly prejudicial, the trial judge should no longer continue to hear the case. No such submission was made and in those circumstances I agree with the judgment of the Chief Justice to the effect that no such case can now be made.
3.9 I appreciate that in coming to that conclusion I differ to some extent from the views expressed by Fennelly J. in his concurring judgment in this case (a copy of which I have had the opportunity to read in advance). Fennelly J., in that judgment, comes to the conclusion that, properly construed and taken in context, the words of the trial judge could not reasonably be taken by the notional impartial and informed observer to have a meaning sufficient to support the view that the trial judge’s ruling exhibited objective bias. I agree with that analysis of Fennelly J. In those circumstances, even if I had not been satisfied, contrary to the views expressed in the judgment of Fennelly J., that Mr. Kennedy was precluded from raising an argument based on objective bias at this stage, I would nonetheless have held, for the same reasons as are set out in the judgment of Fennelly J., that no objective bias arises. As indicated earlier I propose, before turning to the precise delay issues which arise in this case, to make some observations on the interaction of both the Constitution and the ECHR with the issues which arise in this case.
4. The Constitution and the ECHR
4.1 The ECHR provides an express entitlement to a trial within a reasonable time (Article 6(1)). It does, of course, need to be noted in that context that the relevant obligation in International Law to which Ireland subscribed by ratifying the Convention, is one which rests on the State as a whole so that the State may be found to be in breach of the obligations in question by virtue of actions or inaction on the part of the Executive, the Legislature, the Courts and any other relevant agencies of the state including all persons employed in the process. From the perspective of the European Court of Human Rights (“ECtHR”) it is not particularly relevant to identify or apportion blame between various State actors. Obviously significant contribution to delay by the complainant can be material. However from the perspective of the ECtHR it does not matter whether the delay was caused by prosecuting authorities or by the courts and if by the courts whether the cause or blame for that delay might rest on individual judges, on systemic failures, on the government for failing to resource the system or introduce appropriate legislative or quasi legislative measures to improve efficiency or any of the many other possible causes on which the delay in an individual case might be blamed. The judgments of the ECtHR need to be seen in that light. If, making all allowance for the complexity of the case and any other factors which could legitimately lengthen the time within which the case might expect to be concluded, and paying appropriate regard to any material contribution by the complainant to the lapse of time concerned, the case is nonetheless not finished in a timely fashion then a breach of the Convention will be established and the complainant will be entitled to an appropriate award of damages.
4.2 However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial, whether for the purposes of the ECHR or under the Constitution (to the extent that there might be any difference in the relevant jurisprudence). Counsel for Mr. Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to award damages in the event that a breach was established was the only reason why the ECtHR confined itself, in many of the cases, to making a finding of a breach of the right to a reasonably expeditious trial coupled with an award of damages.
4.3 However it seems to me that the distinction between the right to a reasonably expeditious trial and the right to a fair trial, under the jurisprudence of the ECtHR, is much wider than conceded by counsel. The fact that, in either case, the ECtHR is confined to awarding damages, cannot be doubted. However it does not follow that every case in which the ECtHR finds a breach of the right to a reasonably expeditious trial also involves a finding by that court to the effect that the trial was unfair. It further does not follow that it would, necessarily, be a breach of the right to a fair trial under the ECHR to allow a trial to go ahead after a lapse of time which amounts to a breach of the right to a reasonably expeditious trial. The appropriate response to a finding of a breach of the right to a reasonably expeditious trial does not necessarily require that there can be no trial but rather can involve a range of measures including, if appropriate under the law of the relevant contracting State, the award of damages, amelioration of the sentence imposed on conviction in criminal proceedings, or any other measure which the ECtHR might consider to be a proper proportionate and appropriate response to the breach established. It does not, therefore, follow that the ECHR requires, for the avoidance of a breach of its provisions, that a trial be prohibited in every case where there has been a breach of the right to a reasonably expeditious trial.
4.4 As pointed out by the Chief Justice in her judgment, while there was a claim for damages under the provisions of the European Convention on Human Rights Act, 2003 originally made in these proceedings, that claim was not pursued in the High Court and must be now taken to have been abandoned. Therefore the question of whether there has being a breach of the right to a reasonably expeditious trial per se (as recognised by the ECHR) does not arise. Further even if there is such a breach it does not follow that the trial must be prohibited. The only relief sought by Mr. Kennedy is to prevent his trial going ahead. The question of whether there is a breach of his right to a trial with reasonable expedition is not, therefore, of itself, relevant to that question. In that context it seems to me that the trial judge was correct when he cited the judgment of Fennelly J. (speaking for this court) in TH v. D.P.P. [2006] 3 IR 520 where the following is stated:-
“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 … the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.”
4.5 It is, therefore, fundamentally mistaken to view the jurisprudence of the ECtHR on the right to a reasonably expeditious trial as implying that any case in which a failure to provide for such a trial is established necessarily gives rise to an entitlement on the part of the accused to avoid a trial on the merits. I would leave to a case in which a claim for damages for breach of a right to an expeditious trial was pursued, a decision as to whether Irish constitutional law or the ECHR, insofar as it is applicable in Irish domestic law, can give rise to such a claim. I would not rule out such a possibility. There are, however, difficulties which would need to be addressed not least the extent to which such a claim could be maintained where the breach of a right to a reasonably expeditious trial was wholly or substantially attributable to problems encountered in the courts. As pointed out, however, the claim for damages in this case was not pursued and it is not, therefore, appropriate to express any definitive views on that issue.
5. The Irish Delay Jurisprudence
5.1 Turning to the Irish constitutional jurisprudence on delay I am mindful of the fact that this court, and indeed the High Court, has had to deal with a very large number of cases in recent times in which accused persons have sought to prevent a trial on the merits by placing reliance on the lapse of time between the alleged criminal conduct and the trial. I am also mindful of the fact that, in particular in relation to offences involving sexual abuse of minors, the relevant jurisprudence may be said to have undergone a significant evolution. The existing jurisprudence is analysed in the judgment of the Chief Justice. However it seems to me that some analysis of the current state of the jurisprudence is warranted. Given that I agree with the overall conclusion of the Chief Justice it may be that it is unnecessary to express a concluded view on some of these questions. However I do feel that some tentative comment is appropriate.
5.2 First it is important to recall that there is a difference between the right to a fair trial (and the factors which may render a trial unfair) on the one hand and the right to a trial with reasonable expedition on the other hand. There is, of course, a connection. Lapse of time (to use a neutral term) can have an obvious effect on the ability of parties to present their case. But it does need to be noted that the factors which can affect the ability of a party to present its case are not necessarily time dependent. While it is much more likely that witnesses will be missing, documentary evidence be unavailable or forensic investigation and evidence gathering impaired or impossible, where there is a significant lapse of time between the relevant events and a trial, it nonetheless remains the case that any or all of such problems can occur over a short time scale as well. Where a trial comes on for hearing with expedition it may, nonetheless, be the case that witnesses have unfortunately died or become unavailable, that documentary evidence has been misplaced or destroyed or that forensic investigation that might have been useful may have become impossible by, for example, the destruction or alteration of buildings or equipment. While all of these things are much more likely to occur where there is a significant lapse of time it is important to have regard to the fact that such adverse occurrences are not necessarily time dependent.
5.3 Second it also needs to be noted that the fact that there has been some impairment (again to use a neutral term) in the ability, in criminal matters, of an accused to present his defence, does not of itself render a trial unfair. If it were otherwise then there would be very few fair trials for it will always be possible to point to some aspect of the case that an accused wishes or might wish to present which has been impaired even if there is no significant lapse of time. Some impairment in the conduct of litigation is almost inevitable. That impairment may, as a general rule, be expected to increase as time passes. However the fact that there is some impairment could not, in my view, render a trial unfair as such. There may, however, be a threshold where the degree of impairment is such that it can have a decisive effect on the fairness of the trial process.
5.4 I have used the neutral terms “lapse of time” and “impairment” so as to avoid any possible confusion with the terms “delay” and “prejudice” which have come to have a fairly precise meaning in the jurisprudence. That being said I would wish to make clear that I fully agree with the jurisprudence relating to prejudice which requires any allegation of specific prejudice to engage with the facts of the case so as to demonstrate that there is a real impairment, by virtue of the problem relied on, in the ability to present a defence rather than a theoretical possibility which might loosely be summed up under the phrase “you never know what might have turned up”. Likewise I fully agree with the jurisprudence that places reliance on the fact that any impairment in the ability of an accused to present a defence may be reduced, or even completely cured, by other appropriate measures such as directions from the trial judge. It seems to me that the degree of impairment must be assessed by reference to such considerations. Finally, I agree that there are many cases where the best place to identify impairment and to weigh it with any competing factors will often be before the trial judge who will have a much clearer view of the real issues likely to be material. There is, in my view, an excessive tendency to seek to prohibit trials in advance rather than allow the trial judge to decide on impairment or fairness issues.
5.5 In the light of those observations it seems to me that any case made by an accused in which an order is sought preventing a trial going ahead based on an allegation of delay or prejudice needs to take into account two separate types of question although there may, in many cases, be at least some connection between the two. First there is the question of whether the accused can have a fair trial at all. It seems to me that that question is not necessarily dependant on there being any significant lapse of time although, for the reasons already analysed, it is much more likely that the sort of factors which can give rise to a situation where a fair trial is not possible will be present after a significant lapse of time. If, however, the absence of evidence of a particular type is so extreme so as to make a fair trial impossible then that situation exists whether or not the reason for the absence of the evidence concerned is lapse of time, deliberate action by the prosecuting authorities or just bad luck. It seems to me, therefore, that there is an argument for the proposition that an assessment as to whether a fair trial is possible is not dependent either on lapse of time or on culpable prosecutorial delay but rather requires an assessment as to whether, in the light of the evidence that is no longer available and its materiality, a fair trial has become impossible. In passing I should note that this case is not concerned with a situation where material evidence is said to be unavailable, and thus the ability of the accused to defend impaired, by reason of culpable prosecutorial action or inaction separate from delay. In considering, on the facts of any individual case, whether a situation can be said to exist where a fair trial has become impossible the court might, of course, have to assess the extent to which any evidence no longer available might be truly material by reference to the sort of engagement with the facts noted in the jurisprudence and also by reference to other factors identified in the jurisprudence such as the extent to which the absence of the evidence or materials concerned can be partially or wholly cured by measures such as an appropriate direction by the judge to the jury.
5.6 However it seems to me that, in balancing the public interest in stateable criminal prosecutions being tried on the merits with the entitlement of the accused to due process, it is at least arguable that a trial should only be prohibited on the basis of what I might call “no fault impossibility of fair trial” if it is clear to the court which is invited to prohibit the trial that a fair trial is not possible. My reason for suggesting that high threshold is that, in a case where the problems which the accused faces do not derive from any culpable prosecutorial delay, the public interest requires that there be a trial unless the level of impairment of the accused’s ability to mount a defence is so great that the court is satisfied that a fair trial is not possible. It seems to me that it is only at that threshold that prohibition, in the absence of culpable prosecutorial delay, is a proportionate response to the difficulties of the accused.
5.7 Where the degree of impairment falls short of that standard then it seems to me that the court may have to engage in a proportionate balancing exercise of the public interest in prosecution and the rights of the accused. If that be so it seems to me that the first issue which must be addressed is to determine whether there has been culpable prosecutorial delay for in the absence of such blameworthy activity it seems to me that a trial cannot be prohibited unless it meets the high threshold earlier described. Where impairment falls below that threshold then a trial should not be prohibited in the absence of culpable prosecutorial delay. Where, however, such culpable action or inaction is established, it seems to me that the court must take into account all relevant factors in assessing where the balance of justice lies. The Court must fashion a proportionate response to each of the rights involved. The extent of the culpable prosecutorial delay and the effect of any such delay on the impairment of the ability of the accused to mount his defence seems to me to be an important factor. The extent to which culpable prosecutorial delay may have caused or contributed to the other factors identified in the jurisprudence (by reference to Barker v. Wingo [1972] 407 U.S. 514) must also be assessed. Clearly the extent, if any, to which the accused may himself have contributed to the delay needs also to be weighed in the balance. Where the ability of the accused to mount his defence has been impaired by lapse of time not caused by prosecutorial delay then that too should be taken into account but it seems to me that the weight to be attributable to any such impairment must be significantly less than the weight to be attributable to an impairment in the accused’s ability to mount his defence which can be attributable to prosecutorial delay. Finally, and for reasons which I hope will become apparent, of particular relevance to this case it seems to me that culpable prosecutorial delay itself must be weighted in the light of any explanation or excuse given.
5.8 There will be cases where the reason given for the time taken will, in the court’s view, render any lapse of time excusable and thus bring the case outside the scope of those where it can be said that there was culpable prosecutorial delay at all. There may, at the other end of the spectrum, be cases where there is no real explanation at all or none which the court regards as acceptable. However in between those extremes there may be cases (and for reasons which I hope to set out this is one), where it is appropriate to regard the explanation given as going someway towards providing an excuse but not an excuse which is sufficient to provide a complete explanation. In such cases it seems to me that the court should weigh in the balance the extent, if any, to which any prosecutorial delay may be excused. It may well be that such an approach, if ultimately finding favour, would, at least in many cases, not lead to any different result to that which would occur under the existing jurisprudence.
5.9 It seems to me, therefore, that it is arguable that the first question which a court should ask in a delay case is as to whether a fair trial is possible. In other words has the impairment of the accused’s ability to defend himself been so significant that it can no longer be said that the accused can have a fair trial. If the answer to that question is yes then the trial cannot go ahead. It seems to me, at the level of principle, that it is arguable that that question can arise even if there is no culpable or indeed any delay at all for if there cannot be a fair trial then it is hard to see how the court, in vindicating the constitutional right of the accused concerned, can allow the trial to go ahead even if it is no one’s fault. However in order for the threshold necessary to establish that the accused cannot have a fair trial to be met it seems to me that the court would have to be satisfied that the impairment caused by the absence of an ability to present evidence or materials to the court which might otherwise have been available must be so significant that there is, in truth, no real ability to present a defence at all rather than an inability to present as good a defence as might otherwise have been available. I would reiterate that such an assessment is one which is more easily reached by a trial judge rather than a court addressing a prohibition application. It is, however, the possibility that impairment can arise without either fault or delay that leads me to tentatively suggest that a high threshold must be met where it is sought to prohibit a trial without culpable prosecutorial delay.
5.10 Where, however, the degree of impairment is not such as renders a fair trial impossible but where there has been culpable prosecutorial delay such as has significantly impaired the ability of the accused to present his case or caused any of the other adverse consequences identified in Barker v. Wingo then the court must determine where the balance of justice lies. In carrying out that exercise a proportionate response is required. It may well be that such an exercise will be the same, or at least very similar, to that mandated by the existing jurisprudence.
5.11 It seems to me, therefore, that it may well be that the three questions which a court must ask itself in a case such as this are:- (a) is a fair trial possible; (b) if so has there been culpable prosecutorial delay; and (c) if so where does the balance of justice lie. In the light of those observations I next propose to consider the application of those principles to the facts of this case.
6. Is A Fair Trial Possible?
6.1 It is true that some of the persons who might have been able to give evidence which, on one view, might be favourable to Mr. Kennedy, are deceased. However it remains the case that there are other witnesses who can, if their account be helpful to Mr. Kennedy, be called to give evidence directed to at least many of the possible bases on which Mr. Kennedy might seek to defend. As pointed out by the Chief Justice the prosecution case against Mr. Kennedy is very significantly dependent on the evidence of Frank Dunlop.
6.2 Doubtless the credibility of Mr. Dunlop as a witness will be a significant feature at the trial. It is possible to say that Mr. Kennedy may have somewhat less ammunition with which to challenge the credibility of Mr. Dunlop than might have been the case had there been a trial soon after the events alleged to constitute the offences with which Mr. Kennedy is charged. However it seems to me that any impairment which Mr. Kennedy may suffer from in the presentation of his defence falls a long way short of the standard which would allow a court to conclude that it was not possible for him to get a fair trial. In those circumstances it seems to me that the court must next turn to the question of whether there has been culpable prosecutorial delay.
7. Has There Being Prosecutorial Delay?
7.1 The facts relevant to this issue are again fully set out in the judgment of the Chief Justice. I agree with the views expressed in that judgment to the effect that it was reasonable for the D.P.P. to delay prosecuting Mr. Kennedy until such time as Mr. Dunlop had been convicted. It was accepted that there was no rule of law which would have precluded Mr. Dunlop being called as a prosecution witness against Mr. Kennedy. However it does have to be noted that Mr. Dunlop’s evidence, for it to be useful to the prosecution, would necessarily have involved an admission of serious wrongdoing on Mr. Dunlop’s own part. Mr. Dunlop would have been entitled, in those circumstances, to decline to give incriminating evidence. While it might be said that the evidence suggests that Mr. Dunlop was being cooperative at all material times, nonetheless the difficulty in successfully mounting of a prosecution against Mr. Kennedy at a time when Mr. Dunlop would not, in practice, have been a compellable witness (at least so far as much of the evidence sought to be relied on by the prosecution against Mr. Kennedy was concerned), is, in my view, a factor which any reasonable prosecuting authority is entitled to take into account. I am, therefore, satisfied that a decision to defer prosecuting Mr. Kennedy until after Mr. Dunlop had been convicted was not unreasonable.
7.2 However I respectfully disagree with the view of the Chief Justice that that state of affairs provides a full explanation for the lapse of time in this case. A file was sent to the D.P.P. seeking directions in relation to alleged corruption offences relating to Mr. Dunlop, Mr. Kennedy, and certain other persons on 22nd October 2004. While it may be that some additional investigations could have been necessary to ensure that the case against or all of those accused was in a position to be brought to trial, no specific evidence was tendered on behalf of the D.P.P. in that regard. In the absence of any specific difficulty being established in evidence it would, in my view, in the ordinary way have been reasonable to suggest that a prosecution might be brought, even in a complex case, within a number of months of the file being forwarded to the D.P.P. The direction by the D.P.P. that six persons including Mr. Kennedy be charged did not occur until 24th June 2010. There is, in substance, therefore, a lapse of time of the order of five years which needs to be explained. In passing, in that context, I should note that I am not satisfied that there is any culpable prosecutorial delay established for the period after the decision to prosecute was taken up to the arrest and charge of Mr. Kennedy. There was some debate both in the High Court and before this court as to whether efforts could have been made to effect the arrest of Mr. Kennedy on foot of a European Arrest Warrant. However given the difficulties that might well have been encountered with any such process and the fact that delay might well have occurred in attempting to pursue such a course of action in any event, it seems to me that the actions of the prosecuting authorities after a decision was made to prosecute Mr. Kennedy were reasonable.
7.3 The question of culpable prosecutorial delay turns, therefore, on whether there is an adequate explanation for the period of approximately five years which elapsed from the time when it might have been reasonable to expect a prosecution to be brought and when it was actually brought. The question really turns on whether the decision to await the conviction of Mr. Dunlop (which, as I have already indicated, was in itself a not unreasonable position to adopt) amounts to a sufficient explanation for that five year period.
7.4 Where the reason relied on by a prosecuting authority for delaying the commencement of criminal proceedings is the necessity to complete some other process prior to the commencement of those proceedings and where that other process is within the hands of the prosecuting authority itself, it seems to me that the court must assess whether that other process was conducted expeditiously. If it were not so then a prosecuting authority could unfairly delay a criminal prosecution by reference to a factor which, although legitimate in itself, would not justify the lapse of time concerned. I am not satisfied that any adequate explanation has been placed before the court as to why it took so long to actually bring the prosecution against Mr. Dunlop to conclusion. If there be such an explanation it was not one which the court was given an opportunity to analyse. On the face of it the position is that Mr. Dunlop made inculpatory statements at an early stage in the process and would appear, on all the evidence, to have been co-operative with the prosecuting authorities. There is nothing in the evidence to suggest that there was a good reason for waiting until 21st November 2008 to arrest and charge Mr. Dunlop. While I accept, therefore, that the need to improve the position of the prosecution by ensuring that Mr. Dunlop had been convicted before mounting a prosecution against Mr. Kennedy provides, at the level of principle, a legitimate explanation, I am not satisfied that that explanation goes far enough to excuse the lapse of time of five years which I have already identified.
7.5 On that basis I am satisfied that there is a partial but not complete explanation for the lapse of time in bringing the prosecution against Mr. Kennedy in this case. In passing I should note that there is sometimes a tendency to conflate the terminology adopted in the jurisprudence in relation to delay in civil proceedings with the terminology used in relation to criminal proceedings. The term culpable prosecutorial delay is the one most commonly used in the criminal delay jurisprudence. The test in civil delay cases remain that identified in Rainsfort v. Limerick Corporation [1995] 2 ILRM 561 which requires the court, before going on to consider the balance of justice, to determine as to whether there has been “inordinate and inexcusable” delay. However it does not seem to me that there is, in reality, any difference between the two concepts. Inordinate delay implies that the case has taken longer to come to trial than might reasonably be expected for a case of its complexity and having regard to any other legitimate factors that might influence how long it might reasonably take a case of that type to be able to come to trial. “Inexcusable” implies that no adequate excuse has been tendered for any inordinate delay that has been established. Thus the test in civil proceedings involves analysing whether the length of time it has taken for the case to come to trial is too long in all the circumstances and, if so, subject to the extent to which blame may attach to the defendant, whether the plaintiff has put forward a sufficient excuse.
7.6 In truth culpable prosecutorial delay seems to me to raise exactly the same questions. Has the case taken too long to come to trial? If so, can the accused be blamed for any of that lapse of time? To the extent that the accused cannot be blamed has the prosecuting authority put forward an adequate explanation or excuse. If there is too great a lapse of time which cannot be attributed to the accused and for which an adequate explanation or excuse cannot be given then it seems to me that such a situation can properly be described as one where there has been culpable prosecutorial delay.
7.7 As was, in my view quite properly, conceded by counsel for the D.P.P. in this case there is a lapse of time which requires explanation. In the ordinary way it would not be acceptable for a period of over 5 years to elapse from the time when Garda investigations were complete to the time when a trial might take place. I take that view while acknowledging, as pointed out earlier, that in certain types of cases it is likely that the investigations leading to the file being submitted to the D.P.P., no matter how competently conducted by An Garda Síochána, may not be the end of the evidence gathering route from the prosecution’s point of view. It may well be that, when the ubiquitous “Garda file” is sent to the D.P.P. and reviewed by officials in the D.P.P.’s office, An Garda Síochána will be directed to carry out further enquiries for the purposes of supplementing the evidence that might be required in order to present the prosecution case to its best advantage. Some lapse of time for such further enquires might well be reasonable although, in the absence of any specific explanation or evidence, it is hard to see how factors such as that could explain anything other than a relatively brief part of the lapse of time in this case. Taking that factor into account together with what I might call the Dunlop factor provides, in my view, a partial explanation. It seems to me that there has, therefore, being culpable prosecutorial delay but that the degree of that culpability must be assessed by reference to the fact that a partial legitimate explanation has been given for at least a material portion of the lapse of time concerned. Against that background it is necessary to turn to the balancing exercise which must then be conducted.
8. The Balancing Exercise
8.1 I fully agree with the views expressed by the Chief Justice as to the absence of significant specific prejudice caused by culpable prosecutorial delay in this case. As pointed out by the Chief Justice a careful analysis of the witnesses said to be relevant but no longer available makes clear that no potentially important witness would have been available even if a prosecution had been mounted immediately after the Garda file was submitted to the D.P.P.
8.2 The extent to which Mr. Kennedy has been able to demonstrate any significant impairment resulting from prosecutorial delay is, therefore, slight in the extreme. There is a somewhat greater amount of impairment which arises from lapse of time, independent of prosecutorial delay, but for the reasons already analysed in Section 6 of this judgment, that impairment is not at a very high level and in any event, for the reasons already analysed, it is not, in my view, appropriate to place the same weight on any impairment which cannot be attributed to culpable prosecutorial delay. The overall assessment of the impairment to Mr. Kennedy must therefore be towards the lower end of the scale having regard to the virtual non existence of specific impairment attributable to prosecutorial delay, the limited nature of any general impairment caused by lapse of time and, indeed, the fact that any general impairment is significantly reduced by the fact that the issues which are likely to be at the heart of the criminal trial have been a matter of controversy, to Mr. Kennedy’s knowledge, for much of the period between those events and today. This is not the sort of case where a knock comes to the door many years after an event leading the accused (and indeed any other relevant witnesses) with the difficult task of having to recollect events, which occurred a very long time ago, for the first time in many years. It would be surprising in the extreme if any of the participants in the events likely to be of any relevance to this trial have not had ample opportunity to turn their minds to those events regularly over the last number of years.
8.3 Turning to the question of stress and anxiety it seems to me that no real evidence was presented to suggest a significant level of additional stress and anxiety attributable to delay in criminal prosecution in this case. There was, of course, no significant pre-trial incarceration.
8.4 On the other hand there is a very significant public interest in ensuring that a trial of the serious issues concerning public life which are at the heart of the allegations in this case is conducted on the merits. When taken in conjunction with the fact that the prosecutorial delay in this case is partly explained, although remaining culpable to some extent, it seems to me that the balance of justice clearly favours the trial going ahead.
8.5 It follows that, whether applying the existing jurisprudence noted by the Chief Justice or the possible slight refinement of it tentatively suggested in this judgment, the result is the same. Even on the basis of the existing jurisprudence my view that there was some culpable prosecutorial delay would not alter the result.
9. Conclusion
9.1 For those reasons, I would, although not fully agreeing with the judgment of the Chief Justice, agree with the order which she proposes.
JUDGMENT of Mr. Justice Hardiman delivered the 7th day of June, 2012,
The nature of this appeal and the issues arising on it are so fully set out in the judgment of the Chief Justice that it is unnecessary for me to rehearse them further. But I am unable to agree with the learned Chief Justice on a significant aspect of the case, that related to delay on the part of the prosecution, so that it is appropriate that I should briefly explain the grounds of my dissent. I also wish to comment on certain dicta of the learned Trial judge.
The facts of this case demonstrate beyond doubt that there has been very considerable delay on the part of the prosecution in prosecuting the charges against the applicant. These charges relate to periods as early as May, 1992 (now twenty years ago) and as lately as December, 1997, (now almost fifteen years ago). Delay of this order is, as the learned trial judge found, “clearly inordinate”. But the prosecution claims to be entitled to proceed with the charges notwithstanding this clearly inordinate delay on the ground that the period of time involved, though inordinate, is nevertheless “excusable”.
This case overlaps in certain of its facts the case of DPP v. Liam Cosgrave, in which this Court gave judgment on the 26th day of April, 2012.
As in that case, the underlying prosecution in this case depends on the testimony of a single witness, described by the learned trial judge as “the key witness”, Frank Dunlop. Mr. Dunlop’s background and relevant activities are summarised in my judgment in Cosgrave and it is unnecessary to repeat that material here. Without him, there would be no case at all.
Mr. Dunlop, under some pressure, notoriously and very publicly claimed to the Flood Tribunal as long ago as October, 2000, that he made corrupt payments to councillors, which are the payments in relation to which the appellant here is charged. Notwithstanding that these allegations were made almost twelve years ago, and made in a public forum, the applicant was not charged until October, 2010, a decade later.
The nature of the case against Mr. Kennedy clearly emerges from the affidavit of a Detective Garda Martin Harrington, sworn on behalf of the respondent in these proceedings. At para. 12 he says that the charges against Mr. Kennedy arise “out of the allegation that he corruptly gave sums of money to certain County councillors as an inducement or a reward for voting in favour of motions to rezone certain lands at Carrickmines, Co. Dublin in 1992 and 1997”.
In the following paragraph he says:
“It is alleged that the money was given by James Kennedy to Frank Dunlop who made the corrupt payments to the named councillors as set out in the charge sheets”.
Excusable delay?
As the learned Chief Justice has held, the “key reason why there was such delay was because the D.P.P. had decided not to prosecute the appellant until Frank Dunlop had been himself prosecuted”. This occurred in May, 2009. The direction to charge the appellant was given in June, 2009.
For the reasons set out in my judgment in Cosgrave, I do not consider that it was legally necessary for the Director of Public Prosecutions to wait until after the prosecution of Mr. Dunlop had been concluded before commencing proceedings against the appellant. Equally, for the reasons separately out in that judgment, I do not believe that the alleged necessity to wait until Mr. Dunlop had been tried was the real or actual reason for the D.P.P.’s delay in charging Mr. Cosgrave, or Mr. Kennedy either. On the contrary, I believe, for the reasons set out in my earlier judgment that the decision to defer the bringing of charges until Mr. Dunlop had been charged and convicted was a ploy to gain tactical advantage, and nothing more.
The nature of this tactical decision can be tersely described. The D.P.P. did not wish to present the witness Frank Dunlop as an unconvicted accomplice, because that might tend to undermine his credibility, on which the whole case against Mr. Kennedy depends. But neither was he in a position to proceed to prosecute Mr. Dunlop earlier than 2009, because the State wanted his cooperation in other matters, including other prosecutions. This is why, I believe, a period of ten years elapsed between these allegations first being made in a public forum and charges being brought against the applicant in respect of them.
If this reason, which I believe to be the actual reason for the delay, had been advanced as the factor rendering the admittedly inordinate delay “excusable”, the Court would have had to form a view on that issue. But it was not advanced as the factor rendering the delay excusable but rather a quite different reason was relied on.
It is therefore incumbent on me, consistent with the reasoning of the judgment which I delivered in Cosgrave to find that the “key” reason for delay was not accurately stated and that the reason which was advanced is inadequate to explain or excuse the delay which the learned trial judge rightly found to be “clearly inordinate”.
Second hand evidence.
The affidavit of Detective Garda Harrington, referred to above, did not contain, and could not have contained, first hand evidence of the reason for the delay in prosecuting Mr. Kennedy because the decision that gave rise to that inordinate delay was not taken by Garda Harrington. He can only therefore speak of it at second hand which he does at para. 92 of his affidavit:
“Directions were not received to charge Frank Dunlop until 31st July, 2008. The DPP made it clear to the investigating members that it [sic] would only consider prosecuting James Kennedy and the councillors if Frank Dunlop was convicted of the related charges and then only upon receipt of confirmation that Frank Dunlop would be prepared to give evidence in the criminal court in any prosecution that the DPP might consider bringing against James Kennedy and the councillors. Following the conviction of Frank Dunlop enquiries were carried out by the investigating members with him through his solicitors LK Shields and it was confirmed again that Frank Dunlop was prepared to give evidence in any proceedings arising out of the statements he had made to CAB”.
In my judgment in the Cosgrave case, I have made clear my very strong view of the unfairness that arises out of the decision to put centrally important material before the Court in this second hand fashion. Material put before the Court by way of affidavit can only be challenged or further explored by a cross examination of the deponent. In this case, there is no point in cross examining Mr. Harrington because, while he knows that “directions were not received to charge Frank Dunlop until the 31st July, 2008”, he does not know why that was so or why it did not take place years earlier. Equally, while he may (it is not clear) know of his own knowledge what the DPP said to the investigating members, he does not know the reasons for the attitude allegedly communicated to them.
The interposition of Garda Harrington between the Court and those who actually made the prosecutorial decisions in this case has in my view worked a grave unfairness to the applicant. But it has assisted the prosecution by shielding the real decision makers from scrutiny in cross-examination.
The balance of justice.
In his decision in this matter the learned trial judge,
Hedigan J, whose judgment is also very fully exerted in the judgment of the learned Chief Justice, held that the delay in this case, though “clearly inordinate” is excusable. He went on to say:
“Even if this were not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take place”.
This is apparently because:
“The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in permitting allegations of this nature to proceed to trial before a jury. The State has invested significant resources in terms of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of State officials is an attack on the integrity of the State itself and the whole apparatus of State governance. As such it is a crime of great gravity”.
No-one could doubt that the corruption of County Councillors, if it occurred as alleged, is a grave matter and one requiring to be pursued by all lawful means. The same could be said of any allegation of crime. I do not agree with any suggestion, if one can be found in the passages I have quoted, that because the allegations arise out of a hugely expensive and almost incredibly prolonged Tribunal, there can be a specially lenient attitude towards delay in prosecuting them.
A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of allowing a non-binding opinion to be expressed on “definite matters of urgent public importance”. See the judgment of this Court in Goodman International v. Hamilton (No. 1) [1992] 2 I.R. 542.
From time to time, certain offences arise which attract a particular opprobrium in the public mind. In our time these offences have included offences of terrorist mass murder, sexual offences against children, and financial offences, especially those involving corruption.
It is, as the learned trial judge said, important that these and other crimes should be pursued by all means within the limits of the law. It is also important to bear in mind that there is a particular risk of miscarriages of justice in precisely those cases where it is very strongly felt that there is a great public interest in the conviction of malefactors.
The mass murder which took place at the hands of those who bombed the city of Birmingham in 1974 was a classic example of an offence where there was “an overwhelming public interest” in convicting those responsible. Unfortunately this entirely natural and legitimate public interest, and an investigation and trial insufficiently constrained by the laws of the time, led to the conviction of six innocent people and their incarceration for more than two decades. This occurred due to an excess of an anger undoubtedly righteous in itself.
Most of the defendants in this case and in the earlier case to which I have referred are elected public officials, or people connected with such officials. It would be very wrong if people in this class were treated with special favouritism by the law. But it would equally be very wrong if they were treated less favourably than another person who could make the same points. If the rights of defendants are more coarsely vindicated because, in a particular case, they belong to a particular class of person or are charged with offences regarded as particularly outrageous, it will not be long before the coarsening of the vindication of the rights of the defendants will affect all citizens. Experience shows that when civil rights are trenched upon in relation to one category of the person, or one category of crime, a similar diminution in the rights of citizens generally tends very soon to follow. Levelling, in such cases, tends to be levelling down rather than levelling up.
This trend is precisely illustrated in delay cases. There was a fairly recent time, characterised in cases like The State (O’Connell) v. Fawsitt and the D.P.P. [1986] 1 I.R. 362 and Joan Fitzpatrick v. District Justice Daniel Shields and the D.P.P. [1989] I.L.R.M. 243 not to mention civil cases such as Ó’Dómhnaill v. Merrick [1984] 1 I.R. 151, when delays of a much shorter order than the delay in question in this case, would have led to the prohibition of a trial. This changed, at first only in the restricted category of cases of alleged child sexual abuse where prosecutions were permitted, ultimately, after astonishingly long periods. I am concerned that this present case illustrates a spreading of this permissive attitude to delay from child sexual abuse cases, which were arguably in a special category, to cases of a quite different sort, such as this. To my mind, a prosecution for a twenty year old offence might be permitted, exceptionally, if the delay were genuinely excusable and the Court was sure that a fair trial could be had. But in the present case, as it appears, I do not consider the delay excusable and do not consider even that the true reason for delay has been accurately stated.
I wish to add that a long delayed trial is gravely unfair to a defendant and carries a greatly enhanced risk of a miscarriage of justice. This is so for the reasons extensively discussed in my judgment in
JO’C v. D.P.P. [2000] 3 I.R. 478. I wish to record my alarm at the tendency, which this case illustrates, to permit a trial of a twenty year old allegation, after prosecutorial delay expressly found to be “inordinate”, and to emphasise my view of the grave risk of miscarriage of justice which this poses. The gravity of that risk will vary with the extent to which the case depends on bare assertion by a prosecution witness.
Conclusion.
I would allow the appeal and grant the appellant the relief sought.
Nash v DPP
[2015] IESC 32
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of January, 2015.
1. On the 8th of December, 2014, the Court heard this appeal. The Court stated that it would give its decision shortly but reserve the reasons till a later date.
On the 10th December the Court later dismissed the appeal, thereby allowing Mr. Nash’s trial to proceed. I now set out the reasons for my concurrence in that decision.
Factual background.
2. On the 6th March 1997, Sylvia Sheils and Mary Callinan were unlawfully killed in sheltered accommodation, “Orchard View”, at Grangegorman Psychiatric Hospital, Dublin. They were brutally slain, Post mortem examination showed that they had each received multiple stab wounds and, additionally, their bodies had been gratuitously mutilated.
3. Thirteen and a half years later, on the 10th October, 2009, the present appellant, Mark Nash was charged with the murder of these ladies by direction of the respondent, the D.P.P.
4. Mark Nash claims that by reason of delay, death or unavailability of witnesses, and certain other matters, there is now a real risk of an unfair trial if the present case against him proceeds. This claim was resolved against him in the High Court (Moriarty J.) and he now appeals.
Another person charged.
5. This case is a most unusual one. Most of its peculiarities arise from a single factor. Seventeen years ago, on the 27th July, 1997, an entirely different person, Dean Lyons, was charged with the murder of Mary Callinan. Subsequently, directions were given to charge him with the murder of Sylvia Sheils as well. He was so charged largely on the basis of his own confession to killing the two ladies. This confession was volunteered by him to the gardaí and subsequently repeated to numerous other persons. His first confession to the gardaí was video taped but two subsequent confessions, which were more detailed, were not video taped but were recorded in handwriting by gardaí. I do not at all understand why the second and third confessions of Mr. Lyons were not video taped.
6. Dean Lyons was twenty-four years of age in 1997. He had a history of taking heroin for some years and at the time he confessed to the murders of Ms. Sheils and Ms. Callinan, he was sleeping rough.
7. On the 26th July, 1997, Mr. Lyons had voluntarily attended the Bridewell Garda Station in Dublin. While there he was interviewed for a total of six hours and thirty-five minutes over four interviews conducted by three different teams of gardaí, each team comprising two members. While Mr. Lyons was present in the garda station he was arrested pursuant to s.4 of the Criminal Justice Act of 1984. During the first, video recorded interview, Mr. Lyons freely admitted his involvement in the two murders. He engaged, apparently quite openly, with his interviewers and did not display signs of drug withdrawal or physical pain or discomfort. In a second interview he confessed to these murders in somewhat greater detail. In a third interview conducted between 10.10pm and midnight on the 26th July he signed a statement of admission which contained a great deal of detail relating to the nature of the wounds inflicted, the number and type of weapons used and the progress of the murderer through the house.
8. Dean Lyons was charged on the day after these interviews by direction of the Director of Public Prosecutions. This direction was given after a conversation between Detective Superintendent Cormac Gordon and an official of the Director of Public Prosecutions.
Mr. Nash becomes a suspect.
9. Within a few weeks, on the 16th August, 1997, a second and entirely new suspect for the Grangegorman murders, the present applicant, emerged. He had been arrested in relation to separate serious offences in the West of Ireland and he volunteered a confession to the Grangegorman murders.
10. The gardaí who had been involved in the earlier investigation of these murders (that based in the Bridewell, Dublin) were convinced of the correctness of their evidence and were therefore very sceptical of the significance of the new, alternative suspect. A report was therefore submitted to Garda Headquarters which emphasised the strengths of the case against Mr. Lyons and which identified matters of detail in his admissions which corresponded to the known facts. The facts were known only to the killer and the authorities.
On the 27th August, 1997, the Commissioner of An Garda Síochána appointed a very senior officer, an Assistant Commissioner, to conduct an analysis of the various conflicting admissions and seek to establish where the truth lay. This officer, and the team assembled to assist him, conducted a detailed analysis of the strengths and weaknesses of the various admissions. It is notable that this analysis of the admissions made by Mr. Lyons took place only after the second suspect, Mark Nash, had emerged as such.
11. On the 10th October, 1997, the garda file in relation to the Grangegorman murders was submitted by the Bridewell investigation team to the office of the Chief State Solicitor. It is the normal procedure that such a file is submitted either before or after directions had been given by the Director of Public Prosecutions in a serious case.
This report concluded with the recommendation that the existing charge of murder should proceed against Dean Lyons and that an additional charge be laid against Lyons in respect of Sylvia Sheils.
Change of front.
12. About three months later, in January 1998 the Assistant Commissioner’s team submitted a further report making it clear that the authors believed now that, quite contrary to their previous position, Dean Lyons had had no involvement in the Grangegorman murders at all.
This in turn led to the withdrawal of the allegation of murder against Dean Lyons.
Other admissions by Dean Lyons.
13. It transpires that, over and above the formal admissions to the investigating gardaí, Mr. Lyons confessed to the Grangegorman murders to various people, including a uniformed Sergeant engaged in routine duties in the Bridewell Garda Station, to each of his parents separately and to others. He persisted in these admissions even when challenged by his parents. In all, he continued to claim responsibility for the murders for several weeks to family members, fellow prisoners, prison officers, medical personnel and his own legal team.
Reservations.
14. The second and third interviews, which featured confessions by Dean Lyons, were conducted by a Detective Sergeant Robert McNulty and a Detective Garda Robert Cox. The latter, who was the junior interviewer at the interviews which were not video recorded, had misgivings about the degree to which reliance could be placed on what Dean Lyons was saying. He referred to Lyons as a “Walter Mitty”. His colleague, the senior interviewer, did not share these reservations. Detective Garda Cox, however, expressed his reservations twice on the 26th January to other members of the investigation team. They were not recognised or acted upon by those present including the officers leading the inquiry.
15. In 2006, nine years after the Grangegorman murders, Mr. George Birmingham S.C. (now a Judge of the Court of Appeal) was appointed as the sole member of a Committee of Investigation into the Dean Lyons case. He found that “the decision to consult the D.P.P. and recommend a charge was extremely unfortunate”, but that (despite this) “it was at the time a proper and conscientious one”. He also found that the recommendation of the review team under the Assistant Commissioner that the charge against Mr. Lyons should proceed “is extremely difficult to understand and even harder to justify”. He raised the possibility that interviewing gardaí had accidentally or unintentionally supplied the impressive detail in Dean Lyon’s confessions, and corrected factual errors made by Mr. Lyons. I do not know if the gardaí admit this or not.
I express no views whatever on these topics but this judgment proceeds on the basis that all necessary and proper disclosure about these events and the various contradictions in them will be made to Mr. Nash’s advisors, if requested.
16. On the 12th September, 2000, Dean Lyons died in England having been released from Strangeways Prison on the previous day. This, of course, was a tragedy for Mr. Lyons and his family. It was also a serious setback for the prospects of a prosecution for the Grangegorman murders.
17. On the 7th September, 2000, five days before his death, members of the gardaí visited Mr. Lyons in Strangeways Prison. This was to enlist his support in the prosecution that was then contemplated against the alternative suspect, Mr. Nash He appears to have agreed that he would indeed cooperate with a murder prosecution against Mr. Nash and that he would give evidence against him, presumably disavowing his own confession, and explaining how the matters of detail mentioned above came to be in it.
18. On the 1st September, 1999, the then Director of Public Prosecutions, Mr. Eamon Barnes, had directed that Mr. Nash be charged with the Grangegorman murders. But on the 28th October, 1999, this direction was withdrawn by his successor, Mr. James Hamilton. It appears from the terms of the revocation that its purpose was to facilitate the invocation of s.42 of the Criminal Justice Act 1999, which permits that a person in custody for one offence may be arrested and questioned for another offence. No prosecution then proceeded.
Mr. Nash eventually charged.
19. As mentioned above, on the 10th October, 2009, on the direction of the Director of Public Prosecutions, Mr. Nash was charged with the two murders at Grangegorman. The Book of Evidence was served in that December.
20. Mr. Nash had been in custody ever since his original arrest for the West of Ireland offences of August 1997. This charge follows thirteen years after that. The substantial reason, it is said, for the bringing of the charge at that time was that the case had never been let die. There were, it seems, pretty constant cold case reviews. In particular, new areas of DNA comparison were continuously explored. In July 2009 buttons and thread from the jacket of Mr. Nash apparently revealed material with a DNA profile matching one of the victims, Ms. Sheils. The jacket itself was re-examined and the seam of the right sleeve was opened. A DNA profile matching the other victim, Mr. Callinan, is said to have emerged from material found there on the 24th September, 2009.
Applicable law.
21. In this case, as in every criminal case, the public has a right to have any sustainable case which exists against a suspect pursued to trial. The suspect, equally, has a right to have a fair trial in accordance with law. Quite frequently it is alleged that, for one reason or another, the case has so developed that a fair trial is not possible. This happens, in particular, because for upwards of a decade now, the Courts have permitted trials, in sexual cases involving children, to proceed after periods of time since the alleged offence which would previously have been regarded as grossly unfair. In various cases, I have expressed great concern about this development, especially in cases where the evidence consists of bald uncorroborated assertion so that the defence can only be bare denial.
22. Thus, for example, in PO’C v. D.P.P. [2000] 3 I.R. 87, at p.110, I said:
“There has now been a considerable number of cases in which the High Court and this Court have dealt with attempts to restrain the continuance of prosecutions, in cases related to the alleged sexual abuse of children, on the ground of lapse of time. Cases up to the date of the High Court judgment in this matter are admirably surveyed by the learned trial judge in her judgment. To these must now be added JO’C v. D.P.P. [2000] 3 I.R. 480 a judgment which, coincidentally, was delivered the day after the hearing of this appeal.
In my judgment in the latter case I survey the authorities and express certain views of my own on them, and in relation to cases of this kind generally. I do not propose to repeat what I said there in this judgment, in particular about the approach to these applications mandated specifically in P.C. v. D.P.P. [1999] 2 IR 25.
In my judgment in JO’C v. D.P.P., cited above, I have set out in some detail the precise nature of the risks as I see them, which gross lapse of time causes in cases in such as this. In particular, I believe that the risks of a miscarriage of justice increase with the degree to which the trial approaches a situation of bare assertion countered by mere denial. If a defendant is put in a position in which there is little or no context of indisputable fact which can be used as a specific check on credibility, in my view, justice is ‘put to the hazard’ to use the phrase of Lord Diplock, approved by Ó Dálaigh C.J. in Dowd v. Kerry County Council [1970] I.R. 27. A person in that position has been ‘deprived of a true opportunity of meeting the case’, in the words of the Supreme Court in O’Keeffe v. Commissioners of Public Works (unreported, Supreme Court, 24th March, 1980, and the case itself is ‘beyond the reach of fair litigation’ (Sheehan v. Amond) [1982] I.R. 235.”
Elsewhere, in JO’C v. D.P.P. [2000] 3 I.R. 478 I said:
“The applicant’s substantial complaint is a common one in cases of this nature. It is that (even leaving aside factors peculiar to this applicant) lapse of time between the alleged offences and the date of trial renders it very difficult to make any defence other than bare denial. He complains that this, together with the specific factors mentioned, creates a real risk of an unfair trial which would not be a trial in due course of law, as required by the Constitution.”
This is, perhaps, expanded at p.504 of the Report:
“Apart from the effect of lapse of time on the memories of those principally involved, an interval of twenty or more years makes it difficult if not impossible to clarify surrounding circumstances and to introduce any element at all of undoubted fact with which the statements of the parties can be correlated and tested. The element of hazard or chance which this state of affairs introduces into a trial has been recognised for centuries. The more nearly a serious trial consists of mere assertion countered by bare denial, the less it resembles a forensic inquiry at all.”
I wish to make it quite clear that I adhere to these statements and continue to be deeply concerned about the justice of trials after long periods of time, in cases which turn on “bald assertion versus bare denial”.
But this case of Mr. Nash is not of that sort. On the contrary, if the prosecution version of events is accepted by the jury, this case has been brought forward many years after the event simply because new evidence of the appellant’s guilt has come to light. I repeat, however, that the prosecution’s case generally, and the circumstances of the new evidence coming to light, and its significance, are wholly a matter for the eventual jury if a trial is permitted to proceed, and I make no comment whatever about the weakness or strength of that case.
23. It has long been established that a defendant’s right to a fair trial in due course of law is a superior right and it will prevail if the defendant can establish a real risk of an unfair trial. This means an inescapably unfair trial viz. a trial in which the unfairness cannot be avoided by appropriate rulings and directions on the part of the trial judge.
24. Where a trial is delayed for years or even decades, it is quite predictable that witnesses or potential witnesses, or persons of whose existence the prosecution would be obliged to make the defence aware, will have died or become unavailable. Surprisingly frequently, too, physical evidence will have become lost, degraded, or unavailable. It is peculiarity of this case that, on the contrary, vital evidence became available (allegedly for the first time) twelve or thirteen years after the crime. This, of course, is the DNA evidence of which is said to make a connection between the appellant and the deceased ladies, which is briefly discussed above.
The Test.
25. In B. v. Director of Public Prosecutions [1997] 3 I.R. 140, Denham J., as she then was, said at p.195:
“The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s right would prevail.”
I believe this pithy but complete statement correctly represents the test to be applied in deciding cases of this kind. I would add only that what the applicant must demonstrate is a “real risk” and not an absolute certainty, that he would not receive a fair trial. Equally, however, the “real risk” must be a risk which could not be avoided by an appropriate charge to the jury by the trial judge or other step that might be taken within the power of the Courts, such as a long adjournment to allow the effect of a prejudicial publication to fade, if the Court is satisfied that that would in fact take place.
As to the procedure whereby the defendant’s right to a fair trial in due course of law is to be asserted, I consider that this question has been settled by the decision of Chief Justice Finlay (Walsh, Henchy, Griffin and McCarthy JJ concurring) in The State (O’Connell) v. Fawsitt [1986] I.R. 362, at 379. Finlay C.J. said:
“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition. It may well be that an equal remedy or alternative remedy in summary cases is an application to the justice concerned to dismiss because of the delay. In the case of a trial on an indictable charge, however, I am not satisfied that it is correct to leave to the trial judge a discretion as to whether, as it were, to prohibit himself from letting the indictment go forward or whether to let the indictment go forward. A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before the jury.”
26. This entrenchment of the right to seek prohibition by judicial review does not of course detract from the power and duty of the trial judge to stay the proceedings in the exercise of his or her inherent jurisdiction if convinced in the course of the trial that it cannot proceed without a real risk of unfairness.
Some conclusions.
27. The events leading to the charges in this case against Mr. Nash have been summarised above. The chronology leads one to believe:
(a) Four months after the Grangegorman murders, Dean Lyons confessed to them in a manner which was apparently convincing to the gardaí institutionally, a view confirmed again after a review by an Assistant Commissioner.
(b) Certain gardaí, however, were never quite convinced by the confessions and expressed reservations which were not however passed on to the prosecution service.
(c) Five months after the Grangegorman murders another, quite unconnected, man (the present appellant) also confessed to the Grangegorman murders. It was this led to the Assistant Commissioner’s review, mentioned above.
(d) Each of these men maintained their confessions for some time but each subsequently withdrew his individual confession. A very short time before the death of Mr. Lyons after release from prison in England, it had been decided by the Director of Public Prosecutions to charge Mr. Nash with the Grangegorman murders. To that end, Mr. Lyons was interviewed by gardaí in Strangeways Prison. He apparently agreed to cooperate and to give evidence in the case against Mr. Nash. But he died a few days later.
(e) The decision to charge Mr. Nash was revoked by a new Director of Public Prosecutions a short time after it had been given. I am not clear as to whether the revocation was to allow Mr. Nash to be questioned under statutory power, or whether it related to the death and consequent unavailability of Mr. Lyons. Certainly, it would have been hoping for a great deal to think that Mr. Nash could have been prosecuted with much prospect of success before a jury who would know of Mr. Lyons’s confession and would have no corroborating evidence against Mr. Nash.
The recent development.
28. What has now taken place is that new evidence against Mr. Nash of an allegedly dramatic sort has become available, in the form of the DNA connection. If this is reliable, and credible as to when and where it was found, then of course it transforms the case against Mr. Nash. I do not consider that this is unfair in itself, any more than it would be unfair that a vital witness had at last been discovered after a long interval.
29. I am quite aware that this evidence has become available after a long period of time during which the actions of the gardaí and the prosecution have been somewhat contradictory. Issues such as why Mr. Lyons confession was regarded by them as reliable; why it continued to be regarded as reliable after the Assistant Commissioner’s review; what the former D.P.P. was told when he directed the charges against Mr. Lyons; how compelling material, not generally known, came to be mentioned in Mr. Lyons confession; why the charges against him were originally directed and subsequently withdrawn, and other issues manifestly arise and will no doubt be the subject of requests for disclosure if those defending think this helpful. It is hard to see how the case against Mr. Nash can be proved beyond reasonable doubt without thoroughly discrediting of the case against Mr. Lyons, given that it has never been alleged that they were jointly involved. Equally, the narrative as to the eventual discovery of the DNA connection must be fleshed out and the actual significance of the traces found on the jacket, and the material with which they were compared, thoroughly explored, with all necessary assistance from disclosure.
30. The first decision to charge Mr. Nash with the Grangegorman murders, more than fifteen years ago, was quickly revoked by a new Director of Public Prosecutions. He was not charged with these crimes until the emergence of the new DNA evidence in late 2009 and when this evidence did emerge, he was charged very promptly. From this it might be inferred that, in the view of the D.P.P., there was no sufficient case against Mr. Nash until the DNA evidence now relied upon emerged in 2009.
Unavailable evidence.
31. Where there has been a long delay in a prosecution, for good reason or bad, it is unsurprising that there will be missing witnesses. In this case Vera Brady, Detective Garda Patrick Lynagh, Dr. John Harbison, former State Pathologist, Tom Toomey, Dr. Angela Mohan and Ann Mernagh are now dead or (in the case of Dr. Harbison) unavailable.
32. I concur in the reasoning of my colleague Mr. Justice Charleton in thinking that none of these absences give rise to any specific ground for thinking that the trial will be unfair.
33. I am of the same view about the absence of Mr. Lyons. Mr. Lyons confessed to these murders and that confession satisfied those in charge of the investigation (though not, it seems, all of those involved in it) and stood up to precisely focussed and critical scrutiny on a review conducted by the Assistant Commissioner who knew that Nash had already confessed. This is an inescapable problem for the prosecution. It appears to me, based on the Birmingham report, that the factual components of the Lyons confession will not be disputed and neither will the fact that the confession passed muster with the garda authorities be controverted. Equally, it is beyond dispute that charges were directed against Mr. Lyons, based on his confession. The video tape of the first confession will be available to be played, if thought desirable by either party and the notes of the subsequent confessions, together with the later reports emphasising the significance of certain details in those confessions.
34. I am assuming that the defence at the trial of Mr. Nash, if permitted to proceed, will have available to it all requested disclosure about the Lyons confession and the official adoption of it, followed by its rejection. This is important for many reasons, not only the fairness of the trial of Mr. Nash but the reliability of the finding and analysis of DNA material and evidence which is of considerable general significance.
35. If this disclosure is available it does not seem to me that Mr. Nash has been shown to be disadvantaged by the death of Mr. Lyons. In saying this I am assuming that no technical objection, on the grounds of hearsay or otherwise, is taken to Mr. Lyons confession or any of them. In the circumstances of this case it would be very prejudicial to public confidence in the administration of justice if it were not open to Mr. Nash’s representatives fully to explore the existence and reliability of the several separate confessions by Mr. Lyons which were at one stage regarded as convincing by the prosecuting authorities.
36. If Mr. Lyons were still alive, an important decision for those defending Mr. Nash would be whether or not to seek to require that he be called by the prosecution, or whether to call him themselves. No doubt they would thoroughly explore insofar as they could, the question of Mr. Lyons current attitudes and dispositions before addressing that decision. Since Mr. Lyons is dead anything that one says on this question would be mere speculation and I shall say nothing about it. But it is not manifest that, as a matter of probability, Mr. Nash’s defence is prejudiced. For the purpose of the present application it is not necessary to go further.
37. I am not, therefore, satisfied on the facts that the trial of Mr. Nash will necessarily be unfair by reason of the unavailability of the evidence mentioned. Another major consideration, and perhaps a dominant one, is the DNA evidence. I make no comment whatever on the substance of this evidence or on whether it could have been obtained earlier, or on any question of contamination or inherent unreliability because these may be features at the trial. But it appears to me, from the chronology given above, that this is in fact the principal engine of the case against Mr. Nash. I do not consider it has been significantly engaged with by the applicant in the present case. I am not critical of this: it may well have been thought best or even necessary to keep this issue for the trial, if trial there is to be.
38. The grounds on which I would refuse relief in the present case are entirely factual in nature. I do not believe that the law can be changed in this case from what is expressed in the extracts given above, notably from B. v. D.P.P. [1997] 3 I.R. 140 and The State (O’Connell) v. Fawsitt [1986] I.R. 362. Nor am I to be taken as agreeing with any statement that applications of this sort by way of judicial review are now rare or exceptional. As the law stands, such applications will be as rare or exceptional as circumstances giving rise to a real risk of an unfair trial are rare or exceptional: neither more or less.
Nor do I entirely agree with the citation, in one of my colleague’s judgments, of the judgment of Henchy J. in Ó Domhnaill v. Merrick [1984] IR 151 “to the effect that justice delayed does not always mean justice denied but can often mean justice diminished”.
This matter is to some extent a question of nuance and emphasis. But I think it important to put the relevant reference in its whole context. At p.158 of the Report in Ó Domhnaill Mr. Justice Henchy said:
“While justice delayed may not always be justice denied, it usually means justice diminished. In a case such as this, it puts justice to the hazard to such an extent that there would be an abrogation of basic fairness to allow the case to proceed to trial”.
For reasons which are entirely factual in nature, primarily the availability (subject to whatever may be said about it by the defence at the trial) of the DNA evidence, I do not consider that it would be an abrogation of basic fairness to allow this case to proceed to trial.
39. I would dismiss the appeal.
JUDGMENT of Mr. Justice Clarke delivered on the 29th day of January 2015
1. Introduction
1.1 Cases which come to trial a long time after the events with which the proceedings are concerned can raise many problems. The courts have, over recent years, had to deal with many such issues both in the context of civil claims and criminal charges. A very significant body of case law has grown up and, at least in some respects, it would be fair to say that the jurisprudence has evolved.
1.2 There are some types of cases which have featured quite frequently in the case law both in the civil and criminal contexts. However, that case law also throws up, from time to time, unusual circumstances. It could hardly be denied that this case can be characterised as unusual to a high degree. The facts of the case are set out fully in other judgments and I do not propose to repeat them save to note some of the principal features which, in my view, are of particular importance to the way in which this case should be resolved.
1.3 The applicant/appellant (“Mr. Nash”) currently stands charged with what became the very high profile murders of two women living in sheltered accommodation called Orchard View at Grangegorman Psychiatric Hospital in Dublin. The circumstances of those murders were more than sufficient to bring them to the forefront of public attention. However, it was what happened subsequently which placed these cases into the “quite extraordinary” category. In circumstances set out in detail by Hardiman J. and Charleton J., both Mr. Nash and a Dean Lyons (since deceased) confessed to the murders and subsequently each purported to retract their respective confessions. Nothing in either confession suggested that there was any possibility that both Mr. Nash and Mr. Lyons acted in any way together so that both confessions were, necessarily, contradictory. In circumstances elaborated on by Charleton J. in his judgment, it would appear that the prosecuting authorities, having initially charged Mr. Lyons but having then dropped those charges, felt that, as things then stood, it would have been impossible to sustain a conviction against either Mr. Nash or Mr. Lyons given the doubts that would have been raised in each of their cases by the confession of the other. Mr. Lyons subsequently died but forensic evidence later emerged which, the prosecution contends, now leads to there being a sufficient case to bring Mr. Nash to trial. Mr. Nash sought to prohibit his trial principally on the grounds of prejudice arising from the lapse of time between the murders and his likely trial date (if same was not prohibited) in the early part of this year. The High Court (Moriarty J.) refused the relief (Nash v. D.P.P. [2012] IEHC 359). Mr. Nash appealed to this Court. When the appeal came on for hearing before this Court there was an urgency in the Court giving its decision having regard to the fact that Mr. Nash’s trial, if it were to go ahead, had been fixed for hearing in early course. In those circumstances the Court indicated that it would give a decision in a short number of days but that it was likely that it would give the reasons for its decision at a later stage. That is, in fact, what transpired. The Court indicated that it would dismiss the appeal, thus allowing Mr. Nash’s trial to go ahead, and would give reasons later. The purpose of this judgment is to set out the reasons why I supported the Court’s determination to dismiss the appeal. For completeness it should be noted that, in addition to the delay issue, a question concerning whether Mr. Nash’s trial has been irreparably prejudiced by inappropriate pre-trial publicity was also raised before the High Court, dismissed by that court and was the subject of an appeal to this Court.
1.4 One of the difficulties which courts frequently encounter, not least where there is a large volume of case law in an area, is in attempting to apply that case law consistently most especially when the case under consideration has, as here, many extraordinary and unusual features. In such circumstances it may often be useful to attempt to take a step back and identify the fundamental principles which lie behind the case law for such a process can often be a valuable tool in seeking to apply the jurisprudence in unusual cases. As some of the case law is concerned with blameworthy delay, but other aspects concerned simply with the consequences of a significant lapse in time between events and a trial concerning those events, I propose to refer to the jurisprudence governing all of these areas as the lapse of time jurisprudence, to which I now turn.
2. The Lapse of Time Jurisprudence
2.1 Much of the jurisprudence in respect of lapse of time both in relation to criminal trials and civil proceedings focuses on the risk to a fair trial. I do not at all disagree with the proposition that fundamental constitutional concepts of fairness in the legal process are, quite properly, at the heart of this jurisprudence. At least since State (Healy) v. Donoghue [1976] I.R. 325, it has been recognised that the guarantee provided by the Constitution of a criminal trial in due course of law brings with it an obligation that the trial is conducted not only in accordance with the technical requirements of the criminal law for the time being in force but also in accordance with fundamental principles of fairness. It also seems to me that like considerations apply in respect of civil proceedings even though the precise requirements which the Constitution may demand may not necessarily be the same in the context of such cases. Indeed, even within the criminal category itself, it is clear that the practical requirements of constitutional fairness may differ from one case to the next. State (Healy) v. Donoghue was specifically concerned with the entitlement of an impecunious accused to have legal aid provided by the State. However, that case made it clear that the entitlement only arose in criminal proceedings where the potential consequences for the accused were sufficiently serious. Thus, the constitutional requirement of fairness requires legal aid in serious criminal cases but not in relation to minor ones.
2.2 It is, therefore, important, when attempting to address the fundamental underlying principles, to make clear that the way in which those principles may impact in practise may differ significantly from case to case. There will undoubtedly be differences in the practical impact on civil cases, on the one hand, and criminal proceedings, on the other. There will also, potentially, be differences in impact between one type of case within either category and another. But it does not seem to me that the acknowledgement of that undoubted fact should necessarily distract from the important task of seeking to identify the fundamental underlying principles. As noted earlier, resort to those principles can often be of particular assistance in attempting to resolve unusual or difficult cases.
2.3 In that context it is important to identify the fundamental rights and obligations with which any court must be concerned. On one side of the equation there is the undoubted constitutional importance of ensuring that asserted legal rights and obligations are definitively determined after a full examination of all relevant and admissible evidence and the application of proper legal principles to the facts which emerge from that analysis. There is a high constitutional value in proceedings, whether criminal or civil, being determined after a trial on the merits. In the criminal context, Denham J., in B. v. DPP [1997] 3 I.R. 140, spoke of the community’s right to have offences prosecuted. As she pointed out that right is not absolute. However, in my view, a significant countervailing constitutional right is required to justify proceedings from being terminated before they have progressed to a decision following a trial on the merits. The general principle encompasses the entitlement of society as a whole to ensure that those against whom there is sufficient evidence to warrant the bringing of a criminal charge are tried and a proper verdict determined in accordance with the evidence and the law. It is also important to emphasise, as Hardiman J. noted in Whelan v. Lawn [2014] IESC 75, that there has been an increasing recognition, in the context of the criminal process, of the rights of victims. The entitlement of a victim of crime to at least have the evidence which suggests that a particular accused may be guilty analysed at a trial and a proper verdict delivered should not be underestimated.
2.4 In passing it should, however, in that context, also be noted that the criminal process itself envisages that there may be cases where the evidence is insufficient to allow a trial on the merits to proceed to a verdict of the jury (or a judge or judges where a trial without a jury is permitted). First, an accused is entitled to apply under s.4E of the Criminal Procedure Act, 1967 (as inserted by s.9 of the Criminal Justice Act, 1999) for what has sometimes been called a “summary dismissal” (see for example Cruise v. Judge Frank O’Donnell [2008] 3 IR 230 and D.P.P. v. Jagutis [2013] IECCA 4). This procedure replaced the former preliminary inquiry before the District Court. Under s.4E(4) the court must dismiss the case if “there is not a sufficient case to put the accused on trial”. Likewise, an accused can apply during the trial (most typically at the close of the prosecution case) for a direction based on a submission that a jury properly directed could not convict. The D.P.P. must be entitled to consider whether a prosecution could survive such applications in deciding whether to prosecute.
2.5 Likewise, in the civil context, persons who claim disputed rights or obligations or who allege wrongdoing in respect of which the law allows redress are, in principle, entitled to have their day in court. That means that there is a strong constitutional value in a court ultimately determining the rights and wrongs of the competing positions of the parties on the basis of a proper analysis of all relevant and admissible evidence and the application of the law to the facts thereby emerging.
2.6 All of those factors suggest that there is a significant constitutional weight to be placed on the side of credible cases, whether criminal or civil, going to trial and being determined on the merits in accordance with the law and the evidence. However, there may be competing considerations. It seems to me that, at least of the level of broad and high principle, there are three such considerations.
2.7 First, it must be acknowledged that persons who may be the subject of adverse findings as a result of a court process (criminal convictions or adverse orders in civil claims) have a general constitutional entitlement (similar to the rights established under the European Convention on Human Rights) to have those rights, obligations or liabilities (including criminal liabilities) determined in a timely fashion (see further, I.I. v. J.J. [2012] IEHC 327). That is an entitlement which is, in my view, independent of the entitlement to a fair trial.
2.8 For example, in the criminal delay context, this Court and the High Court have frequently cited the jurisprudence of the United States Supreme Court including, in particular, Barker v. Wingo [1972] 407 U.S. 514 (see for example D.P.P. v. Byrne [1994] 2 I.R. 236). It is clear from that jurisprudence that a significant aspect of the rights which must be taken into account involves a consideration that a criminal charge should not be left hanging over the head of an accused for an excessive period. This encompasses the second criteria noted in Barker v. Wingo being the anxiety and concern of the accused caused by a significant delay in a criminal case coming to trial. It can also, in some cases, include the first criteria where the accused is imprisoned pending trial. Those criteria are separate from the third which focuses on the risk to a fair trial. Precisely how the right to expedition may apply in practise may, of course, raise many difficult questions of implementation. It is also true that there may well, at least in many cases, be a significant interaction between lapse of time per se and prejudice to a fair trial for it is the universal experience that the more time which elapses, the greater the risk there will be to the possibility of there being a fair trial. Nonetheless, I am satisfied that there is a constitutional value involved in this area of jurisprudence which requires weight to be placed on the entitlement of parties not to have potential litigation hanging over them for a period which, in all the circumstances, amounts to a significant breach of their rights. Importantly, it must also be acknowledged that the remedy for a breach of the right to an early or expeditious trial will not necessarily be that the trial must be prohibited.
2.9 Similar principles have been identified, as a stand-alone element of the jurisprudence, in the civil context. In Toal v. Duignan (No. 2) [1991] I.L.R.M. 140, Finlay C.J. stated that the Court has an inherent jurisdiction in the interests of justice to dismiss a claim where the length of time which has elapsed between the events out of which it arises and the time when it comes on for hearing is, in all the circumstances, so great that it would be unjust to call on the defendant to defend himself against the claim made. It seems clear that this inherent jurisdiction to dismiss a claim exists even in the absence of culpable delay on the part of a plaintiff. (See for example Manning v. Benson and Hedges Limited [2004] 3 IR 556 at 567).
2.10 It follows that, in both the criminal and the civil jurisprudence, there is a strand which recognises that there is a constitutional entitlement to a timely trial of proceedings and that, in extreme cases, it may be that a particularly serious breach of that entitlement will, of itself, override the constitutional imperative that there should be a trial on the merits and, thus, require that the case not progress to trial. It should, however, be emphasised that the fact of a breach of the constitutional right to a timely trial does not, in and of itself, necessarily mean that there should be no trial on the merits. There will be many cases where the breach will not be sufficiently serious to warrant interfering with the presumption in favour of a trial on the merits. There may also well be many cases where some form of remedy, other than preventing a trial on the merits, will be sufficient.
2.11 I now turn to the second consideration. In many (probably most) cases the key consideration which will require to be balanced against the undoubted desirability of there being a trial on the merits is the risk that that very trial will, by virtue of lapse of time, in itself, be unfair. But what, in that context, is meant by an unfair trial?
2.12 The starting point has to be to acknowledge that there will very rarely be a perfect trial where all evidence which either side might theoretically wish to have available is before the Court. As has often been pointed out, even where a case comes on for trial with commendable expedition, evidence may just no longer be available because of the untimely death of witnesses or, indeed, their unavailability. Documentary or forensic evidence may not have been preserved or even gathered in the first place in circumstances which may be wholly understandable and where no blame may attach to anyone. The person charged with a criminal offence arising out of public disorder on a street may find that there were CCTV cameras which either were not working on the night in question or did not point in the right direction to catch the important parts of the relevant incident. A witness to a car crash which is the subject of a civil claim may not have left their name with anyone who remained at the scene of the accident and may just not be capable of being found. Literally hundreds of other examples could be given. So the starting point has to be to acknowledge that very few trials will be close to perfect in the sense of the judge having available all materials which either side might, in an ideal world, have wished to have been in a position to present. But such lack of perfection does not mean that the trial will be unfair for to require such perfection as a necessary ingredient of a fair trial would automatically lead to the vast majority of cases being incapable of being tried and, thus, to the whole scale denial of the rights and obligations of those parties who had an interest in a proper trial and a proper determination of whatever rights, obligations or liabilities the evidence and the law required. In that context it is apposite to note the telling comment of Henchy J., in O’Domhnaill v. Merrick [1984] I.R. 151, to the effect that justice delayed does not always mean justice denied but can often mean justice diminished. Henchy J. went on to say that, in some cases, delay can “put justice to the hazard to such an extent that it would be an abrogation of basic fairness to allow the case to proceed to trial”.
2.13 What then leads to a trial, whether criminal or civil, being regarded as constitutionally unfair given that trials will almost inevitably fall somewhat short of perfection? When does justice become so diminished or “put to the hazard” to lead to a degree of unfairness sufficient to hold that justice is denied and thus to warrant departing from the imperative of a trial on the merits? In my view, a proper analysis of the jurisprudence in both the criminal and civil contexts leads to the conclusion that there are two ways in which such unfairness may be established. First, the lapse of time may be so great and the divergence from any semblance of a real trial on the merits so substantial, that it can be appropriate to come to the view that the conduct of a trial would be nothing more than that in name. Obviously the extent to which such a situation can properly be said to exist may be very dependent on the type of case under consideration. Some types of case, of their nature, will, no matter how perfect the trial may be, involve the Court in only having available limited materials to assess the facts. Also certain types of materials are likely to be less cogent or effective as evidence over time. For example, while the context in which a contract was drawn up will always be of some relevance to the proper interpretation of its terms, legal rights and obligations which are more or less completely determined by a document are likely to be just as capable of being properly assessed even after a lengthy period of time. However, even in cases where all of the witnesses who might have been available, had there been a very early trial, are still in a position to give evidence, lapse of time can make it a lot more difficult for a court to carry out any proper assessment of where the truth may lie particularly where the facts are contested. At a certain point the absence of evidence which might otherwise have been available coupled with the effect of lapse of time on the ability of the Court to assess other evidence, may lead to a stage being reached where, in the words used in some of the civil jurisprudence and most recently reiterated by Hardiman J. in Whelan v. Lawn, the case has gone beyond the reach of fair litigation.
2.14 In such cases, whether criminal or civil, the finding of the Court is simply that, not necessarily through anyone’s fault, time and events have passed to such an extent that the establishment of facts, determined by an analysis of evidence which can properly be tested, which process is at the heart of a court system, is just no longer possible. In such circumstances it will not be possible to have a fair trial.
2.15 There are, however, other cases where the consequence of lapse of time and events is not so severe so that it is possible to say that a meaningful trial could not be conducted at all. As noted earlier, few trials will be perfect. But the effect of lapse of time may well, again to a greater or lesser degree depending on the type of case involved, mean that the extent to which any trial might fall short of perfection has increased. To adopt the phrase of Henchy J. in O’Domhnaill, lapse of time will diminish but not deny justice. Should that, necessarily and of itself, lead to a conclusion that any trial would be unfair? I do not think so. However, where it is possible for the Court to identify that a party was culpable in respect of the lapse of time (i.e. that a party was guilty of delay) then a different analysis seems to me to arise.
2.16 A party (the accused in a criminal trial or a defendant in civil proceedings for example) may not always be able to have the perfect trial. For the reasons already analysed some cases may be so far removed from that theoretical standard of perfection that it can fairly be said that there can not really be anything that is a trial in any proper sense of that term at all. In such circumstances the trial would necessarily be unfair.
2.17 However, there may be other cases where a trial is still possible but where, due to the fault of one side (the prosecuting authorities in a criminal case or, typically, a plaintiff in civil proceedings), there has been a significant increase in the extent to which the trial falls short of perfection from the perspective of the other side. In such cases, therefore, justice is diminished through fault. In those circumstances the party on the receiving end (the accused or the defendant) can, in my view, properly suggest that the constitutional unfairness with which they are faced is not so much that they cannot have a fair trial at all but rather that it is unfair that they should have a significantly impaired or diminished trial where that impairment is as a result of culpable delay on the part of their opponent. It might well, of course, have been the case that, due to happenstance, a less perfect trial might be all that could have been achieved notwithstanding the absence of any culpable delay on the part of the relevant opponent. In those circumstances, it might be said that there is no constitutional unfairness. A trial which is still fundamentally fair could be conducted. Insofar as it might fall short of perfection no-one will be to blame. However, where there is culpable delay it may become unfair to subject a defendant or accused to a significantly less than perfect trial where the degree of impairment has been materially contributed to by culpable delay on the other side. Such cases will, necessarily, involve a balance in which the undoubted desirability of rights, obligations and liabilities being properly determined at a full trial, on the basis of a consideration of all relevant and admissible evidence and the application of the law to the facts thus established, must be given significant weight.
2.18 There is a third lapse of time issue which I should mention but which does not arise in this case. In order that there be adherence to the obligation of the State to afford all litigants, criminal or civil, a timely trial, the courts have significant power to impose adverse consequences in respect of serious procedural failure including cases where such failure leads to delay. There can be cases where the termination of proceedings may be a proportionate response to such failure, although, of course, such a cause of action will normally be justified only in cases of very significant failure and frequently, although not necessarily, where such failure leads to prejudice.
2.19 Thus, it seems to me, in summary, the fundamental principles can be expressed in the following way:-
(a) There is a significant constitutional imperative in favour of all issues of rights, liabilities or obligation, whether criminal or civil, being determined on the merits as a result of a trial at which all admissible and relevant evidence is analysed and the law properly applied to the facts which thereby emerge;
(b) In order that such a trial on the merits not proceed it is necessary that there be a sufficiently weighty countervailing factor involving important constitutional rights which, in the circumstances of the case, outweigh the constitutional imperative for a trial on the merits;
(c) In the context of lapse of time the countervailing factor may, if sufficiently weighty in the circumstances of the case, be one of:-
i. culpable delay which is such that it would, having regard to the period of time over which the proceedings or potential proceedings have been left hanging over the relevant party, be a sufficient breach of constitutional fairness so as to make it proportionate to prevent the proceedings from going ahead;
ii. a lapse of time which, irrespective of whether blame can be attached to any person, has rendered it impossible that a true trial on the merits can be conducted and has, therefore, placed whatever controversy might have been the subject of the trial beyond the reach of fair litigation or;
iii. culpable delay where a trial on the merits is, nonetheless, still possible but where, in the context of the issues in the case and the evidence which could or might be or have been available, the trial which could ultimately be conducted is, by reason of lapse of time caused by culpable delay, significantly further from the ideal of a perfect trial than would have been the case had no such culpable delay occurred. Where, therefore, justice is diminished through fault. A clear balancing exercise arises in such cases. It will only be appropriate to prevent a final decision on the merits where it is proportionate so to do as a response to any culpable delay established.
2.20 It is important to emphasise that those underlying principles apply equally in the context of criminal and civil proceedings. They inform the jurisprudence which has developed as a means of giving practical implementation to those principles but do so, because of the obvious difference in the nature of the relevant proceedings, in a different way in the civil and the criminal context.
2.21 Before leaving the general principles applicable there are two further points which I would wish to make. First, there has been a growing tendency for the courts, when asked to prohibit or otherwise prevent a trial from going ahead (by means of prohibition in the criminal context or by stay or dismissal for inordinate and inexcusable delay in the civil context) to consider whether it might be more appropriate to leave the final decision to the trial judge. Where it is clear that no true trial on the merits is capable of being conducted then such a course of action may well not be appropriate. Likewise, there may be circumstances where delay per se leads to it becoming constitutionally unfair to allow a trial to proceed in circumstances where nothing which would be likely to emerge at the trial would alter the proper assessment of where the balance of justice lies in the case in question. However, in many cases, and most particularly those cases where it is suggested that the fundamental constitutional unfairness stems from an accused or defendant being required to be subjected to a trial which has been rendered significantly more distant from the ideal of a perfect trial by reason of culpable delay, it may well be that an assessment of the extent of any such difficulties will much more easily be made by a trial judge. Such a judge will be able to assess, in the light of the evidence which is actually tendered and in the light of having a much better ability to assess the kind of evidence which might have been tendered were it not for the delay (and the relevance and importance of such evidence in practice), whether the extent of departure from the ideal of perfect trial is sufficiently significant to warrant interfering with the constitutional imperative that proceedings should be tried on their merits. Likewise, a trial judge will almost invariably be in a better position to determine whether the ability to assess the credibility or cogency of evidence has been impaired by lapse of time.
2.22 In those circumstances, I am of the view that it is preferable, except in clear cases, that the issue be left to the trial judge whether in civil or criminal proceedings. That position should only be departed from where, in advance of trial, the result of the outcome of any analysis of the competing interests is sufficiently clear to warrant the case not even going to trial. It must again be emphasised that, even where the case goes to trial, it remains one of the most important duties of the trial judge to assess, if the issue is raised, whether any of the lapse of time issues which emerge render it appropriate to reach a determination other than on the merits in all the circumstances of the case.
2.23 Finally, it is important to touch on what has become known in the recent jurisprudence of the courts as the lost evidence cases. I do this not least because that jurisprudence is referred to by Charleton J. in his judgment.
2.24 First, it seems to me to be necessary to note that there is a distinction between the strand of jurisprudence involving lapse of time cases, on the one hand, and lost evidence cases, on the other, although the consequences of lapse of time and lost evidence may often be the same. Prejudice arising from lapse of time may be asserted to take the form of evidence no longer available.
2.25 Therefore, the lost evidence jurisprudence fits into the broad principles which I have sought to identify as applicable in respect of lapse of time. Where, owing to culpability on the part of the prosecuting authorities, an accused is faced with a trial which is, because of the loss of evidence, much further from the ideal of a perfect trial than should otherwise be the case, it may ultimately be in breach of constitutional principles of fairness to allow a trial on the merits to proceed. However, as in all other aspects of these areas of jurisprudence, significant weight needs to be placed on the important constitutional imperative that there should be a trial on the merits. Likewise, save in a clear case, it will be preferable to leave the ultimate question to the trial judge who will be in a much better position to be able to tell the real or likely effect which the lost evidence might have had on the trial.
2.26 In the light of those general principles I now turn to the facts of this case.
3 Application to this Case
3.1 I was not convinced that it is proper to characterise this case as being essentially a lost evidence case. It is, fundamentally, a lapse of time case even though, as pointed out earlier, there may be similarities between the two.
3.2 First it should be said that this case did not seem to me to fit into that category of case where it can be said that there can be no reality to there being a true trial on the merits as a result of the lapse of time between the events the subject of the charge and the likely trial date. The central plank of the prosecution case will, doubtless, be forensic evidence connected with the blood samples found on Mr. Nash’s clothing which were, ultimately and in the circumstances set out in some detail in the judgment of Charleton J., analysed in a way which suggests that they are blood from the two victims. This court is not presently aware as to the way in which the defence will seek to address that evidence. Will it be suggested that there is some flaw in the forensic evidence? Will some explanation be put forward as to how the blood might have been on Mr. Nash’s clothing in innocent circumstances? The precise approach which the defence adopts to that forensic evidence is a matter of which the trial judge will be aware and this Court is not. That alone places the trial judge in a much better position to assess the overall issues which arise from lapse of time in this case. It also not at all clear at this stage that any questions which the defence might wish to raise in respect of that forensic evidence will be more difficult to raise now than would have been the case had there been a much earlier trial. Thus, one of the central issues in the case, being the extent to which the relevant forensic evidence may be considered probative, seems likely to be capable of being fully explored at the trial. It follows that this could not, by any manner of means, be said to be a trial which is beyond the reach of fair litigation.
3.3 The central complaint which is made on behalf of Mr. Nash concerns what are said to be the significant additional difficulties which he would now face in being able to, as it were, question the cogency of the case against him by reference to the confession previously made by Mr. Lyons. Such a defence is sometimes referred to as an “empty chair” defence whereby the focus, or at least a focus, of the defence case is to suggest the possibility that another individual is the true culprit and thus argue that the case against the accused has not been established beyond reasonable doubt. There is no doubt but that it is open to Mr. Nash to seek, within the rules of procedure and the law of evidence, to raise an empty chair defence, in this case directed at Mr. Lyons, or indeed, any other potential perpetrator. But there must be considerable uncertainty at this stage as to the extent to which, in practise, it might be said that he is impaired in so doing.
3.4 That Mr. Lyons initially confessed to the same murders cannot be doubted. That those facts can form a legitimate part of the defence seems clear. It will, at least initially, be a matter for the trial judge to rule on the admissibility of any particular items of evidence which the defence may seek to introduce as part of an “empty chair” defence. All that can be said at this stage is that neither counsel for Mr. Nash nor prosecuting counsel were, quite understandably, prepared at the hearing before this Court to suggest any definitive answer to some of the evidential issues which might well arise in that context at the trial. For that reason again, the trial judge will be in a much better position to form a judgment as to whether, and if so to what extent, Mr. Nash has truly been impaired by lapse of time in running any empty chair defence which he might wish. Like considerations apply in relation to any defence which might be based on the position of another individual who appeared to have been a so called “person of interest” in the context of the inquiries made by An Garda Síochána in this case.
3.5 Insofar as it may be possible for Mr. Nash to seek to argue that, by reason of lapse of time, he will now have an impaired opportunity to present his defence, the extent of any such impairment – the extent to which justice may be diminished – is far from clear and is highly likely to be much clearer to the trial judge. But, of course, in the light of the general principles which I have sought to analyse earlier in this judgment, a case where a trial might involve some diminishment (but not denial) of justice should only be prohibited if the reason for such diminution is culpable delay and where prohibiting the trial is a proportionate response to the relevant culpable delay considered in the light of the extent of the impairment in question.
3.6 There was, in my view, a real question of whether there is, truly, any real culpability on the part of the prosecuting authorities at all. It is important to emphasise that prosecuting authorities should only properly bring criminal proceedings where there is a prospect of success. As noted earlier, there are procedures available to the defence to halt the trial process where there is insufficient evidence to arguably support a sustainable conviction. But even beyond that, prosecuting authorities are, like all other agencies, subject to the limitation of finite resources. Decisions have to be made as to how those resources are best to be deployed. Allocating resources in the prosecution of one case may mean that there are less resources available in another area. Leaving aside altogether, therefore, cases where it would be wrong to prosecute because of insufficient evidence, a wide margin of appreciation must be left to prosecuting authorities as to how to allocate their resources with particular reference to concentrating on cases where there is the greatest likelihood of securing a conviction. The criminal process is not, ultimately, about conducting inquiries. It is about determining guilt or innocence of criminal offences and, in the case of guilt, imposing an appropriate penalty.
3.7 Without the forensic DNA evidence now available, it is difficult to disagree with the case made on behalf of the prosecuting authorities that it was reasonable not to prosecute Mr. Nash. It may well be that, prior to that evidence becoming available, different members of An Garda Síochána who had some involvement in the case had different views as to whether it was more likely that Mr. Nash, on the one hand, or Mr. Lyons, on the other, or, indeed, any other person, might be guilty. But those differences of opinion are beside the point. The forensic evidence, at least so far as providing a sufficient case to justify seeking to bring the matter to trial, was a game changer.
3.8 It is true that it would appear that the enhanced techniques which were ultimately deployed to provide the evidence, which is now sought to be relied on at Mr. Nash’s trial, were available for some period prior to their actual use in this case. Whether, and if so to what extent, the prosecuting authorities were culpable in not seeking to use those techniques at an earlier stage and whether, importantly, their use at a somewhat earlier stage (thus leading to a somewhat earlier trial) might have made any great difference to the likely evidence which could have been led, is a matter which, in my view, is far from clear on the evidence currently available. It will be a matter on which the trial judge will be in a much better position to form a proper judgment.
3.9 As indicated earlier, a trial should only be prohibited in a clear case. In other cases the assessment of whether there is a sufficient level of unfairness to prevent the trial from ultimately coming to a conclusion on the merits is a matter for the trial judge. Insofar as there may be cases where it is appropriate to prevent a trial reaching a conclusion on the merits because of an impairment in the ability of the defence to make its case, a judgment must be reached as to whether, in the light of the imperative which favours a trial on the merits, the degree of culpability on the part of the prosecuting authorities and the extent of any diminishment in the ability of the accused to present a defence has led to a point being reached where it is constitutionally unfair to allow the trial to reach a conclusion on the merits. In this case I was satisfied that it was by no means clear that there had been any significant culpable delay on the part of the prosecuting authorities, although I would leave a final judgment on that issue to the trial judge. Likewise, I was satisfied that it was by no means clear as to the extent to which Mr. Nash would truly be impaired in the presentation of his defence by reason of any additional lapse of time which could be attributable to such culpable delay as might be established. I would, again, leave an assessment of such impairment or diminishment to the trial judge. This was, therefore, far from the sort of clear case where the courts should intervene to prohibit a trial in advance.
4. Conclusions
4.1 For those reasons, I was satisfied that the conclusion reached by the Court, being to uphold the decision of the High Court and dismiss the appeal, is correct. Any unconstitutional unfairness which might arise in this case stems from that category identified earlier in this judgment where it might be said to be unfair to require an accused to be tried on the merits in circumstances where, due to culpable delay on the part of the prosecuting authorities, the trial will be much more distant from the ideal of a perfect trial than might have otherwise been the case in the absence of such culpable delay.
4.2 In order for it to be constitutionally required that the imperative, which favours all issues of justiciable controversy being determined by a trial on the merits, should be departed from, it is necessary that the real extent of any such additional departure from the ideal of a perfect trial be sufficiently significant and the culpability of the prosecuting authorities so serious that their combined effect is sufficient to disturb the important constitutional value in the guilt or innocence of persons accused of crime being determined by a full trial on the merits.
4.3 A trial should only be prohibited from going ahead where it is clear that such balance lies against a full trial on the merits being permitted. I was not satisfied that it was at all clear that such is the case here. It will remain, of course, a matter for the trial judge to form a judgment (which judgment the trial judge will be in a much better position to exercise) whether that balance tips against allowing a final determination of Mr. Nash’s guilt or innocence to be determined by a decision on the merits. In particular the trial judge will be in a much better position than this Court to assess the state of the evidence in that regard not least because there are many issues of admissibility which may have a significant impact on the extent to which Mr. Nash may be able to place before the Court any defence which he wishes (concerning the involvement of Mr. Lyons).
4.4 Finally, I am in full agreement with the judgment of Charleton J. insofar as it relates to the pre-trial publicity issue and I have nothing to add on that point.
Judgment of Mr Justice Charleton delivered on the 29th day of January 2015
1. The applicant/appellant Mark Nash seeks to prohibit his trial on a charge of the murder of Sylvia Shiels and Mary Callinan on or about the 6th March, 1997. In what follows, this judgment can only reference evidence that may be adduced at that criminal trial. The Court is making no findings of fact. The appeal of Mark Nash is from the judgment of Moriarty J in the High Court in Mark Nash v Director of Public Prosecutions [2012] IEHC 359 refusing prohibition.
2. At the time of their death, both of the murder victims were living in sheltered accommodation called Orchard View near Grangegorman psychiatric hospital in Dublin. The remains of the victims showed that they had been repeatedly stabbed and that their bodies had also been mutilated. Another lady, Ann Mernagh, since deceased, shared the accommodation with the two victims. She, however, was in a separate bedroom. She, apparently, fell asleep while listening to her personal stereo on headphones and consequently heard nothing. She was unmolested by the intruder. She discovered the bodies, however, and was bound to have been very troubled by that.
3. On the discovery of the crimes, a murder enquiry was instigated. The particular fact most pertinent to this appeal is that apparent confession statements were made by two different and unconnected individuals who made no claim to have been acting with each other. Mark Nash, this appellant, is one of them. He is said to have confessed while being questioned by gardaí on another matter. The other is a man, deceased since 12th September 2000, called Dean Lyons. He confessed in a Garda station, perhaps in consequence of it being hinted to him while being questioned by gardaí that his fingerprints may have been found at the scene. They were not. With the passage of time, other witnesses to the murders have either died or become unavailable. Mark Nash seeks to cross examine the unavailable witnesses at his trial. He claims irremediable prejudice in consequence of their non-availability resulting from the delay in bringing this case to trial and argues that he has established that there is a real risk that should his trial take place it would be unfair. That trial is listed for hearing in the Central Criminal Court in the first term of 2015. In addition to those already mentioned, a lady called Vera Brady is also deceased. She may have given holy pictures related to a particular Christian sect to some of the inhabitants in Orchard View: images emanating from that sect, with warnings on the reverse of imminent cosmic catastrophe, were found on Dean Lyons when he was arrested. Some of the investigating gardaí in relation to both alleged confessions may also no longer be available. Detective Garda Patrick Lynagh is dead at this juncture. He is the officer who apparently obtained the consent of Mark Nash for the forensic examination of the jacket he was wearing upon his arrest. Professor John Frederick Austen Harbison, the distinguished forensic pathologist who examined the bodies of the victims, has, due to illness, been unavailable for some years to give evidence in murder cases. Apart from that, the circumstances leading to the death of these two victims were the subject of intense public interest. One of the main points of media discussion was how two unconnected people could confess to the same crime? Unlike in the ordinary reporting of vicious crimes, interest in what have been called the Grangegorman murders has continued because of the inconsistent double confessions and because of the public investigation and report into what some have regarded as the Garda mishandling of Dean Lyons’ alleged confession. In the light of that publicity, and because of the overall treatment of him in the press, the appellant Mark Nash also claims that he will be unable to obtain a fair trial.
4. As between what might be regarded as the competing confessions of this appellant Mark Nash and the late Dean Lyons, the prosecution have finally sorted out the case which they wish to make. With the development of DNA profiling and its sensitivity in recent years to even very small samples and following on a cold case review by the gardaí and the Forensic Science Laboratory, the inside seam of a cuff and a button or button thread of the previously-mentioned jacket of this appellant Mark Nash apparently yielded a DNA samples which the prosecution wish to ascribe by evidence to Sylvia Shiels and another sample to Mary Callinan. The Director of Public Prosecutions argues that this piece of evidence makes the prosecution of Mark Nash a matter of compelling public interest. Unlike other cases, where upon being judicially reviewed trials have been prohibited, this case is not merely, the prosecution argue, the word of one person against another or of a confession uncorroborated by any other evidence but one where the burden of proof is capable of being discharged to the satisfaction of a jury notwithstanding the infirmities that have arisen in the decade and a half that has since elapsed. Mark Nash, on the other hand, contends that delay, public prejudice to him in the media, and the consequent impact of delay on the availability of evidence makes a fair trial impossible.
5. The arguments advanced are best seen within the context of a brief chronology. In turning to that, it is appropriate to recall that there are limitations to the extent to which a court hearing a judicial review application should engage with facts that are unnecessary to its decision. On an application is to prohibit a trial where, if it takes place, disputed facts will be decided by a jury, a court should only decide such procedural matters as are essential to its decision and avoid any expression of view on matter touching on the strength or likelihood of the building blocks of either the prosecution or the defence cases.
Chronology
6. As indicated, the murders for which the Director of the Prosecutions seeks to try Mark Nash were discovered on the 7th March, 1997. On 26th July of that year Dean Lyons was invited to the Bridewell Garda station and while under interview he ostensibly confessed to these murders. He was immediately arrested and he was charged the next day. In August, as a result of other offences of murder in Roscommon, this appellant Mark Nash was arrested. While being questioned about those offences he made a statement about that double murder and he also, it is claimed, confessed to committing the Grangegorman murders. There was later a 5 day trial of the Roscommon murder cases and a conviction resulted. In consequence, he has been in custody ever since. As an Englishman, however, he has been making applications to serve out his sentence under transfer of prisoners legislation in Great Britain. During the investigation Mark Nash’s jacket was taken from him by gardaí and brought to the Forensic Science Laboratory in Dublin. Apparently, the jacket had been dry-cleaned before his arrest and no results were then forthcoming. On the commission of any murder, the procedure is that the investigating team will write a report recommending action after the investigation is substantially complete and submit their file to the Director of the Prosecutions. This file prepared in relation to the Grangegorman murders appears to have concluded that Dean Lyons, and not Mark Nash, was the culprit. In September 1997, this appellant Mark Nash wrote a lengthy letter retracting his admissions. The following month, Dean Lyons also denied the murders. Then in November, in the course of an undated suicide note, it is claimed that Mark Nash further denied his involvement in the murders but claimed that he was innocently at the scene in consequence of seeing a man running from the house at 3am, prompting him to check out what had happened.
7. Moving into 1998, the murder charge against Dean Lyons was dropped by the prosecution. Later that year, in the Forensic Science Laboratory, a very small stain was found on the jacket of Mark Nash but it may then have represented too small a sample to test successfully. Testing also destroyed some samples. Some threads and buttons were forwarded for specialist DNA examination to a forensic science institute in the United Kingdom, but with no result. In October of that year, Mark Nash was tried with the other Roscommon murders and he was convicted, as indicated. This resulted in a lengthy sentence, nominally one of life imprisonment. It may be inescapable in the trial of this matter that mention is made of what is normally not revealed to a jury, namely that the accused has been convicted on another offence, but that will, no doubt, be accompanied by an appropriate warning that conviction on a prior offence is not evidence tending to show the guilt of Mark Nash or from which that guilt might in any way be inferred.
8. In February 1999, Mark Nash applied to be transferred to serve out his life sentences for the Roscommon murders in England. In July of that year, Dean Lyons signed a formal statement denying any involvement in the Grangegorman murders. That September, the Director of Public Prosecutions decided that Mark Nash should be charged with the Grangegorman murders but that this should not happen until a book of evidence had been completed. That decision was revoked the following month. That December, Mark Nash was interviewed under a special procedure allowing for questions to be asked of serving prisoners.
9. Moving into the year 2000, Dean Lyons was visited by an officer of An Garda Síochána prominent in the investigation of the Grangegorman murders. Apparently as a result he was now willing to become a witness for the prosecution; presumably to rule out any credibility attaching to his apparent confession. Only a few weeks later, on 12th September, Dean Lyons died, apparently in consequence of his ongoing troubles with addiction. With developments in DNA profiling, a new extraction technique called low copy number (“LCN”) profiling became available. When Mark Nash’s first application for transfer to a prison in Britain had been refused, he initiated an unsuccessful judicial review application seeking to overturn that decision in July 2001. In May 2003 one of the buttons from the jacket mentioned earlier was tested as being a hopeful source of LCN profiling but, it seems, with negative or insufficient results. In March 2004 there was a cold case review involving An Garda Síochána and the Forensic Science Laboratory. Inherent in all of this was the view that Mark Nash could not be tried for these offences unless something was uncovered that would make a case weakened by what was considered by some gardaí to be the wrongful confession of Dean Lyons much stronger. In November 2004, a High Court judgment on the judicial review application refused to overturn the administrative decision by the prison authorities not to transfer Mark Nash to England. That judgment also noted that the excuse for not doing so, being that the cold case review was ongoing and that there was hope of a development, could not continue indefinitely. That same month, Mark Nash again applied for a transfer to serve out the remainder of his sentence across the Irish Sea.
10. From some time in 2005 an extraction technique that could yield better DNA profiling notwithstanding a very small sample was available for the first time in the Forensic Science Laboratory in Garda Headquarters. In January, February and April of that year, the cold case team met on a number of occasions. Mark Nash’s jacket was resubmitted on the 19th of May for further testing. The jacket was returned, however, without any further test having been carried out. Meanwhile, a commission of investigation had been appointed following a report by a senior counsel, George Birmingham, as to how it happened that Dean Lyons had confessed to the Grangegorman murders. His report was published in September 2006. That month also saw a fresh application by Mark Nash to transfer to a prison in Britain. Perhaps in consequence, the cold case review team met on a number of occasions, the ostensible purpose of which was to see whether any potential further forensic testing might take place. A further kind of test, called short tandem repeat on the Y-chromosome (“YSTR”) was suggested by one of the forensic scientists in relation to the samples. Nothing resulted, however; if this test was carried out at all.
11. In July 2007, the latest prisoner transfer application by Mark Nash was refused. Ann Mernagh, the patient who discovered the bodies of the two victims, also died that month. Then in August a further application was made by Mark Nash to transfer to a British jail. Again, it may emerge in the trial that multiple applications for transfer were made. No inference can be drawn from this and the trial judge may tell the jury that such applications are common from foreign prisoners, as indeed they are; or otherwise it will be dealt with appropriately at the trial. In February 2009, a meeting between gardaí and forensic scientists came to the view that all the forensic tests that were available in Ireland had been completed but that it might be possible to pursue the most up-to-date DNA comparison techniques in another jurisdiction. In March of that year, the Department of Justice in the course of correspondence, apparently over the prisoner transfer issue, stated that the investigation was continuing and that this new area of DNA comparison had been “identified and is being pursued.” Mark Nash then initiated a further judicial review in relation to the refusal of his prison transfer application. Then in June a number of exhibits were brought back to the Forensic Science Laboratory for further investigation. That July, on the 16th, buttons and thread from the jacket of Mark Nash apparently developed a DNA profile matching the victim Sylvia Shiels. The jacket itself was re-examined and the seam of the right sleeve was opened. A DNA profile matching the victim Mary Callinan apparently emerged on the 24th of September. Matters moved swiftly on the receipt of the relevant scientific reports. That October members of the investigating team met. On the 10th October, on the direction of the Director of Public Prosecutions, Mark Nash was charged with the double murder at Grangegorman. The book of evidence was served that December. In the prisoner transfer application, opposition by the State was based upon the new developments.
12. Moving into 2010, on 26th March, the High Court granted leave to initiate these judicial review proceedings. This judicial review by Mark Nash has proceeded for the last 4 years and 9 months. Meanwhile, the prosecution was preparing for trial. The jobs books in this extensive investigation were all typed up and made available to the defence. With the charging of Mark Nash, lurid reports resulted in some newspapers. The Director of Public Prosecutions took criminal contempt proceedings against a number of media groups. They ultimately gave an undertaking not to publish material that might interfere with the trial process. In consequence of interactions between the prosecution and defence, on the 17th October, 2011, the prosecution indicated that they had made all the discovery which they felt was available to them and invited the defence to make any further applications to the trial judge. As 2011 turned into 2012, two of the detectives involved in the investigation died. This judicial review application was then heard in the High Court by Moriarty J over five days in March 2012. A further contempt motion was issued by the Director of Public Prosecutions against another newspaper while the court was considering its judgment. Moriarty J refused the reliefs sought by judgment dated 10th August, 2012; [2012] IEHC 359. Further ancillary reliefs were sought by Mark Nash and the judgment on that was issued on these by Moriarty J on 17th December of that year; [2012] IEHC 598, which was principally concerned as to costs and has not yet been arguer before this Court. This appeal from those judgments was then brought by Mark Nash and a cross appeal was also brought by the Director of Public Prosecutions on the issue of the award of a small proportion of Mark Nash’s costs contrary to the issue. The murder trial had been listed for 28th January, 2013 by Carney J, but this trial date was vacated due to the appeal to this Court.
Role of the courts
13. Where there is a real and substantial risk of an unfair trial due to either delay in prosecution or adverse publicity or the absence of witnesses or the loss of evidence, which defect or defects could not be made cured appropriate rulings and directions of the trial judge and by other actions to make the trial process fair, the trial should be prohibited; Rattigan v DPP [2008] 4 IR 639 and see the judgment of Finlay CJ in Director of Public Prosecutions v Z [1994] 2 IR 476 and CD v Director of Public Prosecutions [2009] IESC 70, particularly the judgment of Fennelly. In the Z case, the matter was properly qualified at page 507 thus:
…where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.
14. In an application for judicial review that seeks an order to prohibit a judicial authority, or to injunct a non-judicial authority, from proceeding with a criminal trial, the burden of proof is on the applicant. For such an application to succeed, the applicant must demonstrate by appropriate proof that there is a real risk that there cannot be a fair trial. That burden of proof does not require the applicant to demonstrate certainty, or even probability, that an unfair trial will be the inevitable result from what is complained of. The test is met once a real risk of an unfair trial is established; Scully v DPP [2005] 1 IR 242 at paragraph 22 and McFarlane v DPP [2007] 1 IR 134 at paragraph 23. In this context, however, the stated test of a real risk of an unfair trial does not encompass any danger which is merely remote, fanciful or theoretical. The burden of proof on the applicant requires him or her to engage with the evidence in order to demonstrate how the circumstances complained of amount to a real risk of an unfair trial. Whether the issue is one of delay, missing evidence or allegedly prejudicial pre-trial publicity the test remains the same. Demonstrating merely a risk in a theoretical sense is not enough. This is because it is not only the rights of the accused that are being considered in prohibition of criminal trial applications. Victims have an entitlement in any ordered democratic society that is subject to the rule of law to a fair investigation of the wrong done to them. In addition, the community have a serious vested interest in the detection and prosecution of crime. Every crime is an attack on the social order of the community. Any ruling that a trial be prohibited is a matter of where the balance is found to be on judicial inquiry as to whether whatever defects are found to have occurred in the criminal process necessitate the extreme step of halting what otherwise would be a fair trial. In B. v. DPP [1997] 3 I.R. 140 Denham again emphasised the multiplicity of rights involved and at page 196 stated that:
The community’s right to have offences prosecuted is not absolute but is to be exercised constitutionally, with due process. If there is a real risk that the applicant would not receive a fair trial then, on the balance of these constitutional rights, the applicant’s rights would prevail.
15. A real risk of an unfair trial must be established by an applicant for prohibition within a context where the unfairness alleged cannot be avoided by appropriate rulings and directions on the part of the trial judge: in other words, that real risk must be demonstrated as unavoidable; Z. v. DPP [1994] 2 I.R. 476 at 506-507. The duty to prohibit such a trial attendant with the real and substantial risk of unfairness arises from the scrutiny which the High Court is obliged to exercise under Article 38.1 of the Constitution to ensure fairness of procedures for, as that Article states, no “person shall be tried on any criminal charge save in due course of law.” Prohibition of a criminal trial nonetheless remains an exceptional remedy; Devoy v DPP [2008] 4 IR 235, Z v DPP cited above, D v DPP [1994] 2 IR 465. The duty of fairness in conducting a criminal trial is primarily cast on the trial judge. In the case of Byrne v DPP [2011] 1 IR 346, a missing closed circuit video case, O’Donnell J, on a review of the previous cases, summed up where the law stood at page 356:
In my view, having considered the decided cases, the position has now been reached where it can be said that, other than perhaps the very straight forward type of case as in Braddish v. Director of Public Prosecutions [2001] 3 IR 127, it would now require something exceptional to persuade a court to prohibit a trial. This, in my view, is in accordance with principle. The point was made in McFarlane v. Director of Public Prosecutions [2006] IESC 11, [2007] 1 IR 134 that the fact that an applicant was unsuccessful in judicial review proceedings did not detract from the power and duty of a court of trial to assess the case as it developed at the trial. At p. 147 of his judgment Hardiman J., (with Murray CJ, Geoghegan and Fennelly JJ concurring) stated that the court of trial “[34] … will be able to assess whether there is indeed a prima facie case at the appropriate stage. More than that it will be able to assess, on the evidence as it actually develops, whether there is any unfairness to the applicant, incapable of remedy by the trial court, for which the prosecution is responsible. Its powers in this regard are wholly unaffected by the result of the present application.”
This, in my view, is an important observation. The constitutional right, the infringement of which is alleged to ground an applicant’s entitlement to prohibit a trial, is the right to fair trial on a criminal charge guaranteed by Articles 38 and 34 of the Constitution. The manner in which the Constitution contemplates that a fair trial is normally guaranteed is through the trial and, if necessary, appeal processes of the courts established under the Constitution. The primary onus of ensuring that that right is vindicated lies on the court of trial, which will itself be a court established under the Constitution and obliged to administer justice pursuant to Article 34. It is, in my view, therefore, entirely consistent with the constitutional order to observe that it will only be in exceptional cases that superior courts should intervene and prohibit a trial, particularly on the basis that evidence is sought to be adduced (in the case of video stills) or is not available (in the case of CCTV evidence itself).
16. As the text of the Article 38.1 of the Constitution indicates, the duty of ensuring substantial fairness is not limited to the High Court in exercising its judicial review mandate, or to appeals from any decision made at that level, but extends to an imperative directed at all of the courts established under the Constitution. Hence, the primary guarantor of a trial which has procedures and rulings designed to establish a result according to the burden of proof as a reflection of the true factual position is the court of trial. That position has been continually emphasised by this Court; as can be seen in the Byrne v DPP case and in the synthesis of the case law provided by Fennelly J in Savage v Director of Public Prosecutions [2009] 1 IR 185. Most recently in a missing evidence case James Wall v The DPP [2013] IESC 56, the primary role of the trial judge in ensuring fairness in criminal cases was reiterated. At paragraph 7 of the judgment of O’Donnell J, the following occurs:
Scrutiny by way of judicial review in anticipation of a trial has obvious practical and unhelpful consequences both in terms of the delay of any trial, and the consequential increase in burden upon the Superior Courts. It thus requires to be justified. However, even assuming a perfectly resourced system both in trial and appellate courts – and that is an ideal unlikely ever to be achieved in practice – there are other significant problems with the system of judicial review when used to determine issues relating to missing or lost evidence. Judicial review is a system designed, or at least intended, to provide a speedy determination of issues relating to the jurisdiction of inferior courts. It is well adapted to determine precise issues of law. It is poorly adapted for the resolution of factual matters, particularly when those issues are to be determined in advance of a trial and through the imperfect lens of affidavits necessarily drafted by professional advisers and which, perhaps understandably, seek to maximise that party’s case while exercising caution about revealing testimony capable of being deployed against the party in the event that a trial might ensue. Looked at from the vantage point of function and efficiency, it might be thought that the examination of facts and the impact of the presence or absence of such facts upon the fairness of a trial should take place in the trial court with the possibility of review on appeal. However, currently, such claims are addressed by judicial review. If the Constitution or more general principles of fairness demands that this be so, then it must indeed be so. But it is a process which, at a minimum, requires justification.
17. MacMenamin J at paragraph 20 made a similar point as to the leading role of the trial judge in the guarantee of a trial in due course of law and the objective nature of the enquiry that must be engaged in during judicial review before the exceptional remedy of prohibition can be engaged:
At risk of dealing with matters that are obvious, I would wish to re-emphasise the distinction between the function of a court in judicial review, on the one hand, and that in criminal trial, on the other. This relates both to the onus and standard of proof. In judicial review proceedings, the focus will be on an objective assessment as to whether, as a matter of reality, the prejudice alleged is so truly exceptional as to warrant intervention by reason of the real likelihood of an unfair trial. This test is not subjective, based on the appellant’s concerns, nor can it be based on mere bald assertion regarding the degree of prejudice allegedly suffered. I do not suggest that is the position here. But no criminal trial proceeds on the basis that the investigation beforehand has been such that every conceivable hypothesis can be explored at trial in the light of an infinite range of evidence gathered to meet every possible contingency or potential line of defence. Judicial review applications exist only to deal with exceptional cases; where the evidence of prejudice, that is the failure to obtain identifiably relevant evidence, is so plain as to warrant prohibition. The duty of this Court is to adjudicate on the basis of the now well established jurisprudence under which it is claimed the appellant’s constitutional right to a fair trial is placed at real risk. No form of relief, other than prohibition, is sought.
18. However a case is characterised, whether as one of delay or prejudice due to the loss of or unavailability of witnesses, the ultimate test remains whether the accused can obtain a trial in accordance with fundamental constitutional guarantees. Of most concern on this appeal has been the death of witnesses or what are said to be potential witnesses. As to whether a trial in due course of law may be achieved is a matter of adjudicating on the impact of what has ostensibly been lost and the elements of case as it remains in the sense of whether a fair trial remains possible. Unlike many other cases, such as those mentioned in the judgment of Hardiman J, this does not appear to be a trial of opposing perceptions or one where the case essentially amounts to a contest between one prosecution witness and the denial of the accused; in other words assertion and denial that are otherwise essentially unsupported. The stark contrasting reality presented in this case is one that is all too real with advancements in science; a reality that may reoccur in other cold case reviews. Consequent upon the analysis of DNA samples retained from the clothes of deceased victims, or from the seal of envelopes left in motorcars, or from the clothing of alleged perpetrators, or otherwise, it has happened in recent years that suspects emerge for the first time in cases otherwise thought of as unsolved and unsolvable. It can also happen with these developments that those perhaps thought guilty may be exonerated while others may be identified by this circumstantial evidence as having such a close connection with a crime that, seen against the background of the salient facts of the case and perhaps other testimony, it can emerge that such evidence becomes consistent with inculpating an individual and, as the text for circumstantial evidence circumscribes it, inconsistent with any other rational hypothesis based on the same facts. Whether it is or not will inevitably be a matter for the court of trial. On the brief facts considered here no indication, much less finding, of any kind can be made.
19. In prior cases, this Court has prohibited trials from proceeding. A brief examination of some of the leading cases, and of those discussed in the judgment of Hardiman J on this appeal, will show that the balance there struck was essentially fact-dependent. There is no overall principle that the application of the fairness test results in a particular result in all cases.
20. In D.P.P. v. Quilligan and O’Reilly (No.3) [1993] 2 IR 305 the appellants had been convicted on charges of burglary in the Central Criminal Court. This Court held on appeal that the conviction of the appellant Quilligan for burglary should be reversed. He contended that he had been prejudiced over the several hearings of this matter before the Central Criminal Court by the death of a witness who had testified at the much earlier murder trial and who had since died. The quasi-alibi witness in question was a neighbour of Quilligan, who placed Quilligan at his apartment on the night of the burglary and murder at a time when it would have made it difficult for him to return by that hour from the scene of the murder and burglary at the home of the Willis brothers in County Cork. Counsel for Quilligan argued that if the evidence of the neighbour was accepted by a jury as being true, then it could persuasively be argued that it would not have been possible for him to have taken part in the vicious raid on the elderly deceased’s house at the time it occurred, due to the distance between his house and the house of the victim. The only evidence of significance against the accused was the evidence of admissions alleged to have been made by him whilst in Garda custody. Finlay C.J. held that in the interests of justice the 1989 trial of Quilligan should have been prohibited upon, first, the principles outlined in In re Paul Singer (No. 2) (1960) 98 ILTR 112 and The State (O’Connell) v. Fawsitt [1986] IR 362 with regard to the general right of an accused person to a trial with reasonable expedition, and, secondly, having regard to the prejudice that potentially existed from the non-availability of the potential alibi witness. McCarthy and Egan JJ dissented, having regard to the fact that the evidence of the alibi witness given at the previous trial of the appellant in 1985 had been recorded and could have been admitted in evidence at the trial in 1989. In their view, the circumstances were “not such as to warrant declining to order a new trial”. In Dunne v DPP [2002] 2 IR 305, the applicant was charged with the robbery a petrol station. The owner of the petrol station gave evidence that video camera surveillance was in operation at the filling station at the time and that the tapes had been acquired by the gardaí in relation to other investigations. He was unsure, however, whether the gardaí requested or obtained the tapes relevant to the charges against the applicant. The officer in charge of the investigation stated that no video tape of the events that occurred was given to or obtained by any member of the investigating team. No affidavit was sworn by the garda or gardaí who actually attended at the scene of the robbery. In those circumstances, there appeared to be no question of a failure to preserve that evidence. Rather, the prosecution was prohibited on the ground that the Garda Síochána failed in their duty, arising from their investigative role, to “seek out” evidence which had, employing the language used in Braddish v. Director of Public Prosecutions [2001] 3 IR 127, “a bearing or potential bearing on the issue of guilt or innocence”. Identification of the accused as the assailant, a matter where a mistake could easily be made, was at the heart of that case and the missing evidence would have been crucial in that regard. In Bowes and McGrath v DPP [2003] 2 IR 25, the Supreme Court allowed the appeal in respect of the second applicant and made an order of prohibition in respect of her trial. The second applicant was charged with dangerous driving causing death following a road traffic accident in which a motorcyclist had received fatal injuries. A summons had been issued to the second applicant a month after the motorcycle had been released to a motorcycle dealer for parts at the request of the deceased’s family. Following receipt of the summons, the second applicant consulted her solicitor, who was advised by counsel to seek details of forensic reports and to have both vehicles examined by a professional. The solicitor contacted the gardaí in order to retrieve documents relating to the case, including a “motor forensic report”. The solicitor was advised that the book of evidence was being prepared and that it would contain all the requested information. The information was not forthcoming and the solicitor made several requests over a number of months in an effort to have a forensic engineer examine the motorcycle. Eventually, the investigating gardaí faxed the solicitor, saying that the bike had been broken up for parts. Hardiman J at page 41 held that the applicant in the second appeal had “suffered the loss of a reasonable prospect of obtaining evidence to rebut the case made against her by reason of the gardaí having parted with the motorcycle”. He did not consider that she had disentitled herself to relief by delay or other reason. In McHugh v. DPP [2009] IESC 15, the applicant had been charged with the theft of a jacket from a supermarket. The store manager and the security guard, and later the gardaí, observed the digital CCTV recording which showed the alleged theft taking place. Having watched the video, the gardaí requested that the recording be copied from the hard drive onto a disk. Five still photographs taken from the video were put on a compact disk, rather than the actual moving video image, and this was given to the gardaí. The respondent was charged with theft. The book of evidence contained statements referring to the copying of the CCTV footage for the gardaí. The respondent’s solicitor requested disclosure of materials, specifically a copy of CCTV footage of the alleged incident. The State Solicitor notified the respondent’s solicitor that the footage had been destroyed. The respondent contended that in the absence of any possibility of access to the original CCTV footage, there was a real risk that he would not have a fair trial. The Supreme Court, through Fennelly J, agreed that “the essence of the case against the Respondent [was] his identification on the CCTV footage” by the witnesses and that any other evidence available was “minor or peripheral and of no consequence” compared to the CCTV evidence. At paragraph 16, Fennelly J stated that the Court could:
… only say whether there is a real risk to the fairness of the trial in circumstances where the original footage is not made available on an equal basis to prosecution and defence. It seems to me that there is such a risk in the very particular circumstances of this case. The defence is simply unable to test the identification evidence of the state witnesses. This does not mean that still photographs taken from a missing video are generally inadmissible. All depends on the particular facts.
21. Ludlow v. Director of Public Prosecutions [2009] 1 IR 640 was a case where the applicant had been charged with a number of road traffic offences, including the offence of dangerous driving causing death, using his employer’s vehicle. There was an allegation that the applicant had been driving with excessively worn tyres. These were examined by the gardaí and returned to the applicant’s employer, who disposed of the tyres. After the charges were brought against the applicant, they could not be inspected for the defence by a consultant forensic engineer. The applicant sought judicial review to restrain the respondent from prosecuting him. The High Court granted the prohibition. The Director of Public Prosecutions appealed to the Supreme Court which upheld the decision of the trial judge.
22. Denham J set out the following principles at page 649 of the report:
…(i) each case requires to be determined on its own particular circumstances; (ii) it is the duty of the court to protect due process; (iii) it is the duty of An Garda Síochána to preserve and disclose material evidence having a potential bearing on the issue of guilt or innocence, as far as is necessary and practicable; (iv) the duty to preserve and disclose, as qualified by Lynch J. in Murphy v. Director of Public Prosecutions [1989] I.L.R.M. 71, cannot be defined precisely as it is dependent on all the circumstances of the case; (v) the duty does not require An Garda Síochána to engage in disproportionate commitment of manpower and resources and must be interpreted in a fair and reasonable manner on the facts of the particular case; (vi) in the alternative to keeping large physical objects as evidence, such as motor vehicles, it may be reasonable in certain circumstances for the garda to have a forensic report on the object; (vii) however, an accused should, in general, be given an opportunity to examine or have examined such evidence; (viii) if the evidence no longer exists, the reason for its destruction is part of the matrix of the facts, but it is not a determinative factor in the test to be applied by the court; (ix) these principles are subject to the fundamental test to be applied by the court, that being whether there is a real risk of an unavoidable unfair trial, as described by Finlay CJ in Z. v. Director of Public Prosecutions [1994] 2 I.R. 476 at p. 506:-
“This Court in the recent case of D. v. The Director of Public Prosecutions [1994] 2 IR 465 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances … he could not obtain a fair trial.”
Applications to the court of trial
23. It will be noticed that the law has moved on since those decisions. The trial judge now has the primary role in decisions of this kind and judicial review is rarely appropriate. An application to the trial judge is an alternative to judicial review. As Clarke J states in his judgment on this appeal, if the case is one that there has been a diminishment in the availability of a trial that would be otherwise complete in every respect due to the factors complained of, then this judgment would concur that since the appropriate balance may best be seen by the trial judge in the context of a complete analysis of the facts of the case, it is preferable that an application to halt the trial be made to that forum. Where however, as Clarke J states, the case is one of a clear denial of justice resultant upon the factors found to be culpably wanting, prohibition by the High Court should be granted. An application to stop a trial before the trial judge may best be decided upon a consideration of all of the evidence and how the alleged defect, be it delay or missing evidence or unavailable witnesses, impacts on the overall case. Whether the real risk of an unfair trial that cannot otherwise be avoided then exists is, in such cases of an argument that justice has been diminished, often best seen in the context of such live evidence as has been presented and not through the contest on affidavit that characterises these cases on judicial review seeking prohibition in the High Court or on appeal. As a matter of factual analysis, however, the nature of the prosecution case and the effect of the missing evidence in the selection of cases previously outlined is demonstrated as central to the issue of the safety of the trials prohibited. Of importance, also, in prior cases has been the fact that an accused is alleged to have made an admission. In this case, the admission may be weighed with the alleged admissions of Dean Lyons. But this case seems to have moved on considerably from that point. Whether admissible in evidence or not and whether it proves convincing to a jury or not, we are dealing here with a very definite form of scientific proof that ostensibly exists in relation to both deceased victims and their apparent connection to Mark Nash. There may be other countervailing factors, such as innocent involvement. It is impossible now to make a definitive judgment. The public interest in the reception and testing of such evidence has not been proven to have been displaced by the concerns raised on behalf of Mark Nash to the level that there must invariably be a denial of justice.
The apparent factors in this case
24. Here it is appropriate, without finding any facts, to briefly list the factors primarily complained of, noting the thousands of pages with which the Court has been engaged, and ask as to the risk of each, both individually and cumulatively, to the fairness of the proposed trial. Essentially, delay is claimed to have caused irremediable prejudice and with delay has come the passing from the scope of scrutiny of testimony asserted to be essential to the defence. It should, firstly, be commented that the delay on this investigation is not demonstrated on behalf of Mark Nash to have been inexcusable. The prosecution moved quickly to charge him once the enhanced testing DNA evidence apparently emerged. That was right. A particular duty of moving swiftly came about through the circumstances of delay that have been detailed. This judicial review has also taken time, almost 5 years, initiated as it was by Mark Nash. In substance, it has been prejudice to the right to fairly test the prosecution case or to present an alternative defence on the instructions of the accused that has been central to the arguments on behalf of Mark Nash.
25. Firstly, it is said that the death of Dean Lyons represents an insurmountable obstacle for the defence. That is not demonstrated on this appeal. The fact that someone confessed to a crime, a person who is now dead, is not invariably an insurmountable obstacle in the defence of Mark Nash. As the brief recitation of facts indicates, it is unlikely that Dean Lyons would have come to court at any stage and accepted that his confession was the voluntary emanation of a rational mind; much less that he had any part in the Grangegorman murders. He is presumed to be innocent, as is the accused and any other person who may be pointed to by circumstances rationally or on the express instructions of the accused as possibly committing these crimes. The reality is inescapable, however, that it is a fact that Dean Lyons confessed to these murders. What he says, in that regard, is not evidence of the facts therein stated; but his written statements and the video recording of his confession are facts which must weigh in the balance as are the directly relevant attendant circumstances and the fact of withdrawal from culpability by Dean Lyons. What is original evidence, evidence which is a fact in itself, may be admitted in testimony under the rules of evidence. It is said that there are some convincing aspects of the confession of Dean Lyons, including that he found €25 in a secret hiding place at the murder scene. That may or may not be an over-statement. As it turns out, what was described as a secret hiding place may be no more than a tear in a carpet and as for the €25, there may have been no independent confirmation either that Dean Lyons was in or near Grangegorman on the night of the murder or that he ever had €25 from that source. Again, the fact of the tear in the carpet, which is not a secret hiding place, and the relevant text in the supposed confessional statement of Dean Lyons are matters which can be explored as original evidence should the defence wish to pursue them as facts by questioning relevant investigating officers. These decisions, however, are matters for the trial judge.
26. Yet another argument emerged. Martin Stafford is, apparently, a prisoner serving a sentence in England. On the night of the murder, he went on what was described in submissions before this Court as a rampage and hijacked a car from the man called Tom Twomey, who is by this stage deceased. The defence say that they wished to ask Tom Twomey as to what Martin Stafford’s state of mind was, as presented in his demeanour, when he hijacked the car. There appears to be more than ample evidence as to what his state of mind was. That evening, and whether coincidentally or not is a matter for the jury, Martin Stafford drove in that car to a place very close to Grangegorman where he apparently picked up a sex worker and is said to have assaulted her in a place that is close to Orchard View. But what is there to link Martin Stafford to this crime? It is apparently a fact that Detective Inspector Fitzpatrick in May 1997, a member of the Garda investigating team, sought to bring Martin Stafford back from England, where he was then serving a sentence, in order to interview him concerning the murders. This application did not get off the ground. These are facts, not mere hearsay. Early on in the investigation, the gardaí came to the view that the killer was not a connected person, such as a husband or partner or brother, who committed the murders. They then proposed that they should draw up a list of persons of interest. Whether they were right or wrong in this cannot now be said. Apparently 267 of these suspects were identified on the basis of some kind of profiling. That is a lot of suspects. The commission of past crimes and proximity to the scene made Martin Stafford one. Dean Lyons, however, had no known connection with Martin Stafford. Apparently, when Dean Lyons was in prison and was being berated about the crime to which he had ostensibly confessed by a family member, he is said to have indicated that he did not act alone. As an accomplice, however, he named another person, perhaps a made-up name, and not Martin Stafford.
27. Then there is another person who is also presumed to be innocent of crime but who is dead. This is Ann Mernagh, the lady sleeping with headphones on in another room in Orchard View, who discovered the remains of the victims. Is very hard to see how she could be regarded as a suspect but that, apparently, is included in the defence plan as presented to this Court. The only circumstances which might point to her include her proximity to the crime scene, the fact that she herself was not murdered or molested, and the nature of the psychiatric illness from which she suffered. This included self-harming. Perhaps there is a similarity in the nature of that self-harming to the harm done to the victims and that is the case, apparently, which the defence would wish to make by calling her in evidence. Absent that they claim that they would wish to call her psychiatrist, Dr Angela Mohan, who is now also deceased. That psychiatrist took a strong view, possibly wisely, that patients should not be interviewed by members of the gardaí unless members of the staff of the hospital were also present. They were, after all, very ill and this was, to put it mildly, very upsetting. It is argued on behalf of Mark Nash that the late Ann Mernagh may have said something about the murders to Dr Angela Mohan. There is nothing to indicate, however, that this is in any way probative. The fact that either of these deceased persons said or did something, or whatever particular inquiry was made of them and that they made particular answers, may be a fact in itself; again, original evidence.
28. Of the substance of the many points argued, the last matter of claimed prejudice relates to the death of certain members of the gardaí who either interviewed Dean Lyons or who were involved in the investigation in relation to Mark Nash. It appears that the prejudice substantially argued for here relates to the death of Detective Garda Patrick Lynagh who took the jacket which Mark Nash was wearing when he was arrested, apparently the prosecution wish to say with his consent. Whether, as a matter of law, that consent is needed or not is a matter for the trial judge. The prosecution propose to supplant the absence of this officer by that of the officer who accompanied him, namely Detective Garda Dillon. Whether this is possible or not is a matter for the judge at trial.
29. There is also the absence of Professor Harbison. This was not pressed on this appeal, and rightly so. His unfortunate illness after decades of brilliant work on behalf of Ireland has nonetheless left a rich legacy. Many remember his honesty, good sense and scientific reasoning as a model for expert evidence. His reports on this case are detailed but perhaps can be supplanted by the evidence of another forensic pathologist. It is actually also hard to know the precise relevance of anything in terms of forensic pathology beyond the fact of the death of these murdered victims and the condition of their remains. That is obvious from Professor Harbison’s report.
30. In the High Court, Moriarty J dealt in concise form with these series of arguments that irremediable prejudice had been caused to the defence at paragraphs 35 and 36 of his judgment:
35. I turn then to the instances of actual prejudice contended to have been occasioned to the applicant by reason of delay, and take first the matter of lost or missing witnesses. As already mentioned, those persons most relied upon by the applicant in this regard are Prof. James Harbison, the former State Pathologist, Mr. Dean Lyons and Ms. Ann Mernagh. With regard to Prof. Harbison, it is agreed that there is no realistic possibility of his condition of health enabling him to testify, and apart from his report in relation to the Grangegorman victims, he was involved in devising a suspect profile, and was also involved in his said capacity in the investigation of the Roscommon murders. Whilst the absence so eminent and highly regarded a practitioner is undoubtedly a loss to both sides in a trial, it appears to me that statutory provision now exists enabling his statements to be utilised, and his successor as State Pathologist, Dr. Cassidy has sought to fill the breach, a state of things that I understand from Mr. Grehan, S.C., for the applicant, occurred in the Rattigan case referred to earlier. The applicant also contends for irreparable prejudice arising from the premature death of Mr. Dean Lyons, contending that he would greatly wish to cross-examine him, anticipating he would revert to his admissions of guilt, and thereby contrive to blow the prosecution case substantially out of the water. To this the respondent counters by saying that he would greatly wish to be able to call Mr. Lyons, to confirm that his admissions were untrue. One must naturally be wary of speculation but, having regard to the views of his family and the two psychiatrists who dealt with Mr. Lyons, the dealings had by Detective Inspector Byrne in England with Mr. Lyons and his solicitor, and even, although after his death, the nature and terms of the public apology extended to his family, it might on the face of matters seem somewhat implausible that he would, if alive, take the witness box to reiterate his disowned admissions. However, what he would have said will never be known for certain and while I appreciate how the applicant’s advisers would have wanted his testimony, I am not disposed to view his absence as grounds to prohibit the trial, a view I am similarly disposed to in regard to Dr. Harbison. As with the views of involved garda members as to which suspect was the more probable murderer, such speculation seems somewhat remote from concepts of best evidence. Matters of admissibility and latitude on these aspects will of course be utterly to be determined by the trial judge, but it may well be that he or she will take a view that there may be a limit to the number of conjectural sub-plots that may properly be canvassed at the trial. The third witness upon whose absence emphasis was placed on behalf of the applicant was Ms. Ann [Mernagh]. She, like Mr. Lyons, was at one stage a suspect in respect of the Grangegorman murders, was in the house on the night in question, and claimed to have awoken to discover the murder of Sylvia Sheils before seeking assistance. She had a history of some violence, and an apparent tendency towards self-harm. Other matters in relation to her are alluded to in the course of submissions, but I find it difficult to see how her death will significantly inhibit the presentation of the defence’s case. It is to be remembered that, subject to all rulings made by the trial judge, the prosecution will in all reasonable probability stand or fall on the two issues of the applicant’s alleged admissions, and the DNA identification evidence intended to be tendered. None of the witnesses referred to in argument, or indeed the few others whose roles were lightly touched upon purported to provide an alibi for the applicant on the night of the murders, an aspect viewed as important in the Rattigan decision in the Supreme Court, although it could be argued that, had Mr. Lyons testified in relation to being the sole assailant, it could be tantamount to an alibi.
36. On the forensic DNA evidence aspect, delay is again relied upon by the applicant, and this is expressed in the context that, either the applicant’s jacket was not examined with proper or appropriate professional care at the outset in the Forensic Science Laboratory, or that during its long period of possession by the gardaí it was stored in an inefficient manner that gave rise to possibilities of cross-contamination or other evidential infirmity. It is to be remembered, and this is no small factor in influencing my overall view of the case, that it has never been contended that the forensic evidence was “planted” or dishonestly concocted or that the applicant’s many verbal admissions were fabricated, or influenced by improper inducements or threats; no affidavit in this or any other regard has been sworn by the applicant in person. I can understand the frustration of the applicant and his advisers that the important discoveries in question came to light to belatedly but I nonetheless am firmly of the view that matters of admissibility should rightly fall to be determined by the Trial Judge, subject to which matters of weight or inferences to be drawn will be the preserve of the jury.
31. This judgment of Moriarty J constitutes a full and reasoned consideration of all the relevant factors following upon a five-day hearing in the High Court. There is nothing to indicate that Moriarty J erred in any way in his overall analysis.
Disclosure and sedevacantists
32. It has also been argued that the trial of Mark Nash should be stopped because of a failure of disclosure by the prosecuting authorities. The matter of alleged lack of disclosure has been argued extensively on this appeal. The judge now designated to hear the trial, Hunt J, has already made particular rulings in relation to disclosure. From what has been heard in relation to his approach it seems eminently sensible in attempting to ensure that what is truly relevant to any potential defence of Mark Nash is available to him while not imposing absurd burdens on the prosecution. The more this case is analysed, furthermore, the more it seems to draw down into the consideration of whether the new DNA evidence, if admitted, coupled with the confession statement of Mark Nash, constitute a sufficient discharge of the burden of proof by the prosecution and, thus, as to whether a jury could be satisfied beyond reasonable doubt of his guilt in relation to the murders by reason of the competing alleged confession of Dean Lyons and the argued-for existence of other reasonably possible scenarios. This, however, is no more than a bird’s eye view on the facts as presented to this Court. The judge presiding over the criminal trial will have the opportunity for a better and more extensive review as, no doubt, will the jury.
33. There was argued to be dramatic new evidence that would link what the defence claim is the alternative suspect Dean Lyons to the commission of these murders at Grangegorman. It will be, again, a matter for the jury to take a view on the evidence before them. Shortly stated, however, it may appear that a lady called Vera Brady, now deceased, who also lived in Orchard View, and who was a patient at St Brendan’s Mental Hospital, and was either associated with or simply knew, or perhaps just met, a group of religious people of a particular disposition. Those people believe that Pope Francis was not validly elected to the Holy See in Rome. Instead, these religious believers look to a place in Spain where they considered, at the relevant time, that Pope Gregory XVII presided over what they consider to be the one true church. Apparently the presiding hierarch died in 2005 and has been replaced by Pope Peter II. Article 44.2.1º of the Constitution provides:
Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
34. The point here, however, is not so much conscience. It is that the followers of Pope Gregory XVII produced distinctive religious imagery. This, apparently, they distributed, perhaps widely. The late Vera Brady made a number of statements to gardaí but was not found, apparently because of her mental illness, to be in a position to make a formal statement. Dean Lyons, however, had some pictures that were associated with this faith group. While talking to a member of the gardaí, the late Vera Brady said that it was possible that she gave similar pictures to other patients at Orchard View. Asked to look at the pictures found in the possession of Dean Lyons she thought that these included the Catholic saint Padre Pio of Pietrelcina, which they did not, and that they were “exactly the same type of pictures I have and get from the Palmarian Church”. The reverse of one of these cards reads:
The Eternal Father: “My children, in the terrible days that will befall mankind, the Sacred Face of My Divine Son will be truly a clause of tears, because my true sons will hide behind It. The Holy Face will be a true offering to mitigate the punishments that I will send mankind. In the houses where it is found, there will be light to free oneself from the power of darkness. I will give orders to My angels to mark the family home is where the Sacred Face of My Son is, so that My children may be preserved from the evils that will befall ungrateful humanity. My children, make yourselves all true apostles of the Holy Face and spread It everywhere. The more extended Is is, less will be the catastrophe.”
35. Perhaps something can be responsibly made of this that is consistent with the instructions of the accused. Perhaps it is no more to it than that this kind of belief appeals to those who are especially troubled. There is, however, perhaps nothing beyond the bare possibility that the victims of the Grangegorman murders may have had cards similar to these ones and it is an even more remote possibility that Dean Lyons, the person now apparently alleged on the instructions of Mark Nash to be responsible, may have taken the pictures found on him from that source, as opposed to any other source, and that the cards he is speculated to have taken were not stained at this especially bloody scene. This is, again, if it is a point at all, a point to be made to the jury.
Emerging unfairness
36. Whether as to the factors complained of, or on the basis of difficulties that may or may not emerge in the trial process, the duty cast on the trial judge remains the ensuring of a trial that accords with the constitutional norm guaranteed in Article 38.1, one “in due course of law.” Should insuperable difficulties emerge whereby there cannot be a reasonable exploration of any rational line of defence enquiry into facts that may be relevant in a practical sense to what may reasonably be regarded as a potential reasonable doubt on behalf of the accused, there may come a time when the trial judge should declare that a fair trial is impossible. In making such an adjudication, a trial judge ought to take into account the rights of the community and the entitlement of victims to have the wrong done to them appropriately scrutinised in the context of a criminal trial. But if the risk of unfairness which emerges is real and is not merely a series of conjured-up hypotheses and is such that no direction or appropriate ruling may overcome it, the judicial duty may exceptionally emerge to stop the trial. That will be a matter for the trial judge.
Publicity and the risk to criminal cases
37. Public scrutiny of the functioning of the branches of government and of their organs is in large part conducted by newspaper, radio and television on behalf of the public as a whole. There is an entitlement in the media to enquire into and to comment on matters of public moment. Many journalists would see this as their professional duty. Whether a murder occurs, or whether a public representative is found to be apparently askance of proper ethical standards, there is an entitlement to communicate known facts. In court proceedings, the public is, in large part, represented under Article 34.1 of the Constitution through the presence of media representatives who are enjoined on behalf of the community as a whole, and by their own ethical standards, to provide a fair and balanced account of the proceedings. In any consideration as to the nature of publicity and as to whether it interferes with the trial process, this central function of the media in a democratic country is an important factor. Outside the courtroom, the media are entitled to report matters of public moment, be they criminal, party political, administrative, judicial or of human interest more generally. The wrong done to the victims of murders may be both reported upon and commented upon. There is a serious public interest in the fact of the commission of crimes such as these.
38. It is best not to repeat the lurid headlines and comments in relation to the controversy surrounding the charging of Mark Nash, or the public controversy over the confession statement of Dean Lyons or the presentation of the horrifying facts of these murders. As the brief description of events above will convey, on more than one occasion the Director of Public Prosecutions has seen fit to initiate proceedings against media companies and to extract appropriate undertakings from them. It is an entitlement of the accused to have a fair trial. There is, as well, an expectation vested in the people of Ireland that the solemn procedures whereby the contention of the prosecution that the accused is guilty of a crime will not be sullied or derailed by intrusion by the media or anyone else. In Rattigan v. DPP [2008] 4 IR 639 at page 648 Hardiman J stated:
The basis upon which such material is not permitted to be published is that it interferes with the right of every citizen to a fair trial before a jury unaffected by loud unreasoned assertions of the defendant’s guilt. The applicant, and every citizen, is entitled to have the evidence against him, if any, presented in court in his presence and that of his representatives so that no improper evidence is admitted against him and he is able to make an immediate answer to any proper evidence adduced against him. Publishing one sided statements to the effect that the applicant is guilty of the crime in question, or that the defendant is an associate, or a leader, of other persons who are guilty of the crime, or of similar crimes, destroys the citizen’s right to a fair trial. Since Ireland is committed, both by its Constitution and by the European Convention on Human Rights which it has incorporated into its law, to provide a fair trial, it must of necessity inhibit publications which are inconsistent with such a fair trial. There are, in particular, two types of publications that tend to prejudice the right to a fair trial. The first is a publication of a sort which will make it difficult for the jury or other tribunal of fact to approach the case with an open mind for example because it suggests information which is not proven in evidence or strongly proclaims the guilt (or the innocence) of a defendant. The second and quite different type of contempt which interferes with the constitutional right to a fair trial is published material of a sort which, by repetition or otherwise, so affects the person about whom it is written as to hamper his ability properly to conduct his defence.
39. Hardiman J, while not in the majority on the ultimate issue, was not dissented from in relation to these remarks. Indeed, Geoghegan J, at page 666 of the report, stated:
It follows that a newspaper may be guilty of a flagrant contempt of court on the basis of potentially prejudicing a fair trial and yet it may be inappropriate at the end of the day to stop the trial for any one of a number of reasons but especially if a considerable lapse of time has ensued in the meantime. The law is quite simple and newspapers and other organs of the media should not have all that much difficulty in ensuring compliance with it. If a person has been charged with a crime, that has an immediate effect on the manner in which the crime can be reported. It must not be reported or discussed in a way in which it could potentially prejudice jurors in a trial. While the fade factor may be relevant and indeed is relevant in considering whether a trial should be injuncted altogether, it is not a relevant matter which a newspaper or other organ of the media is entitled to take into account in its reporting of the crime. It simply must adopt the long established rules of protection of the person charged with the crime to which I have referred. These rules are quite different from those applicable in, say the United States of America.
40. The fundamental factor at issue on pre-trial publications of media speculation or apparent fact was stated by Denham J in D v DPP [1994] 2 IR 465 at 473 thus:
Fair procedures incorporate the requirement of a trial by jury unprejudiced by pre-trial publicity. The applicant is entitled to a jury capable of concluding a fair determination of facts on the facts as presented at the trial.
41. To paraphrase Denham J later in the judgment, at 475, what the applicant in this case Mark Nash needs to show here to prohibit his trial is that there is a juror, or are jurors, who read the relevant articles that are claimed to be adverse to him, will remember the articles, will connect them to him, will be prejudiced in consequence, will not comply with their oath as jurors and will not comply with the direction of the trial judge to try the case only on the evidence heard in court. In the result of Z v DPP [1994] 2 IR 476 even media saturation may not be enough to deflect a jury from the duty to bring an impartial mind to the issues that have to be decided before them and to confine themselves in the consideration of their verdict to only the material produced in evidence. Sometimes, it may be necessary to allow for an adjournment of the trial to the following term but that has not been shown to be necessary here, as in other cases; Re Zoe developments (Unreported, High Court, Geoghegan J, March 3rd, 1999) and DPP v Haugh (No 2) [2001] 1 IR 162, which was the only case where there was an indefinite adjournment of a criminal trial. These adjournments should not add unnecessarily to delay in the trial process.
42. There is a further factor, however. There is nothing to indicate that jurors do not take seriously their oath to try the case and give a “true verdict in accordance with the evidence.” The trial of criminal cases by citizens is a judicial function. The seriousness of approach brought to that task by jurors is not to be diverted simply because a juror is aware of what is going on in the country, or has seen television reports or read newspaper reports. Many judges find themselves in the same position as jurors who already may have read something about a case. It happens often. A matter of public controversy arises and then, having read media commentary and taken in reports of what radio, newspaper or television sources say are the facts, a bundle of papers arrives in relation to precisely that issue or a trial commences involving those same parties or those same issues. The first reaction of any judge is the same as that of any reasonable person. It is to wonder: what really are the facts here? The reaction of jurors is not likely to be different. Absent extreme circumstances, it is difficult to know why the kind of allegation of deep-rooted prejudice arising from media reports argued for in this case is likely to remain or in any way to influence jury or judicial deliberations. As people know, paper does not refuse ink. People realise the limitations on what journalists can do and they also recognise the sense of the ancestral adage: Scéal a théann ó bhéal go cluas téann sé ó Samhain go Bealtaine. Facts, in other words, are different to gossip or comment. Facts can be relied on; chit-chat just cannot. A forensic examination is by nature careful and logical. Consequently, no reasonable person confuses prior knowledge of a case with mere acquaintance with whatever matters the media are in a position to report as if they are facts. Furthermore, any juror who finds himself or herself unable to try the case because they already have a fixed view on the matter and which they do not feel can be overcome by hearing the actual evidence can reveal that fact to the judge swearing the jury and should thereby be excused from service. As to the appropriate form of warning before the jury sworn in, this will be a matter for the good sense of the trial judge. As to avoiding the internet or doing any research outside court into a case, it will be a matter for the good sense of the trial judge as to what if any direction she or he gives to the jury.
Result
43. In the result, there is no basis upon which it can be argued that Mark Nash will not obtain a fair trial. Any reference to evidence in this judgment is not a finding of fact but merely an indication of the limited issues that have been referenced by affidavit and in argument. Questions of the admissibility of evidence, the overall fairness of the trial, the adequacy of disclosure, the proper selection of jurors and what warnings may need to be given to the jury are now matters for the trial judge.
The People (Attorney General) v. O’Callaghan
[1966] IR 501
The facts of the present case have been so adequately set out by the Chief Justice in the judgment which he has just delivered that it is unnecessary for the purpose of my judgment to repeat any of them. The learned Judge in the High Court felt it was necessary to enunciate the principles upon which he says he has acted in the hearing of bail motions. These I propose to deal with at a later point in this judgment but I feel that in view of some of the observations of the learned Judge and because of the importance of this type of application it is necessary to re-state not only the jurisdiction of the High Court in these motions but also the fundamental principles which govern this branch of the law.
While there is a distinction between applications for bail in the cases of prisoners who are on remand and those who have already been committed for trial and in the cases of persons who have already been convicted and in respect of which an appeal is pending, there are certain underlying principles common to all three forms of bail motion. The jurisdiction of the High Court to grant bail is an original jurisdiction and is in no sense a form of appeal from the District Court or from any other Court which may have dealt with the question of the bail of the applicant. The jurisdiction of the Courts to grant bail to accused persons has existed from the earliest times and has been stated to be”as old as the law of England itself” (see Stephen’s History of the Criminal Law, vol. 1, at page 233). In Regina v. Spilsbury (1) the Chief Justice, Lord Russell of Killowen, in dealing with the question, at p. 620, cited with approval the following passage from 1 Chitty’s Criminal Law, 2nd ed., at p. 97:”The Court of King’s Bench, or any judge thereof in vacation . . . . . . in the plenitude of that power which they enjoy at common law, may, in their discretion, admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere, and the only exception to their discretionary authority is, where the commitment is for a contempt, or in execution. Thus they may bail for high treason, murder, manslaughter, forgery, rapes, horse-stealing, libels, and for all felonies and offences whatever.” That the High Court has this jurisdiction in full cannot be doubted. Not only has it had transferred to it the jurisdiction which at the commencement of the State was vested in or capable of being exercised by the then High Court of the Supreme Court of Judicature in Ireland or any division or judge thereof but is, by the very words of the Constitution itself in Article 34, invested with full original jurisdiction in all matters whether of law or fact, civil or criminal.
The jurisdiction of the District Court to grant bail in cases of remand or of the committal for trial of persons is at present governed by the provisions of s. 16 of the Petty Sessions Act, 1851 (and in Dublin by s. 23 of the Indictable Offences (Ireland) Act, 1849). Bail cannot be granted by the District Court in treason but may, at the discretion of the Court and subject to those statutory provisions, be granted in all felonies or any attempt to commit a felony and there is also a discretion in the case of certain misdemeanours which are listed in the section. It is provided that in the case of all other indictable misdemeanours the person charged shall be admitted to bail as of right. The only power in the District Court in these latter cases is with regard to the sufficiency of the bail offered and the suitability of the sureties.
See also the District Court Rules, Nos. 60, 72, 79 and 80. The granting of bail in the High Court is, with one curious exception, always discretionary. The exception appears to be in misdemeanour cases falling within s. 2 of the Irish Habeas Corpus Act, 1781 (21 and 22 Geo. 3, c. 11), where apparently the Court has no discretion and is bound to admit to bail, the only questions being with reference to the sufficiency of the bail: see In the Matter of Annie Frost(1).This decision refers to s. 3 of the English Habeas Corpus Act of 1679 which is identical in terms with s. 2 of the Irish Act already referred to. The section is also referred to by Hanna J. in Attorney General v. Duffy (2).
It had been at one time doubted whether the jurisdiction in the High Court extended to the grant of bail to persons under remand but it was clear long before 1924 that there was no such limitation: see Short and Mellor’s Crown Practice (2nd ed., 1908), at pp. 280 to 281, and Hawkins’ Pleas of the Crown (7th ed., vol. 3), at p. 204, sect. 47. In recent years there have been several reported decisions of the exercise of this jurisdiction in the case of persons on remand: see Attorney General v. Duffy (3). In Duffy’s Case (4) the applicant had been remanded in custody having elected for a summary trial in the District Court in respect of alleged misdemeanours under an Emergency Powers Order. In The People (Attorney General) v. McCabe (5) the applicant who was granted bail was on remand charged with a serious felony. In The People v. Cadden and O’Grady (6), the accused who had been remanded in custody for fourteen days were allowed bail because the Court held it was unlawful to remand in custody for more than eight days. In Attorney General v.Ball (7) bail was refused to an applicant who was remanded in custody by the District Justice on the grounds of the probability of interfering with certain items of evidence required by the prosecution and that evidence had not yet been offered. The Court in that case held that it was only in exceptional circumstances that bail would be granted in such a case when the District Justice had refused it because of the fact that at that stage of the case the District Justice was in a better position to judge the matters arising.
The question of the jurisdiction of the High Court to grant bail to convicted persons pending their appeal is one which has not yet been litigated, although in Attorney General v.
Cashell (1) the Court of Criminal Appeal in dealing with an application for bail pending leave to appeal expressly left open the question as to whether there was any other method of obtaining bail besides applying to the Court of Criminal Appeal. Undoubtedly if a convicted person applies for and obtains an order of habeas corpus in the High Court, the High Court has power to grant bail on such an application. Apart, however, from any question of bail arising on a habeas corpus application the High Court has a jurisdiction to grant bail to a person who has been convicted as the jurisdiction of the High Court in bail matters as in other matters is considerably wider than that of the Court of Criminal Appeal. In the latter Court bail is only allowed to a convicted person after leave to appeal has been granted. It is, however, unnecessary to deal with the circumstances under which the High Court might think it proper to allow bail in such a case.
In bail applications generally it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by a reasonable amount of bail. The object of bail is neither punitive nor preventative. From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and it is as true now as it was in ancient times that it is desirable to release on bail as large a number of accused persons as possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases”necessity” is the operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial. In the modern complex society in which we live the effect of imprisonment upon the private life of the accused and of his family may be disastrous in its severe economic consequences to him and his family dependent upon his earnings from day to day or even hour to hour. It must also be recognised that imprisonment before trial will usually have an adverse effect upon the prisoner’s prospects of acquittal because of the difficulty, if not the impossibility in many cases, of adequately investigating the case and preparing the defence.
As recently as 1965 in The People v. Crosbie and Others (2)this Court reiterated that the fundamental test in deciding whether to allow bail or not is the probability of the applicant evading justice. It follows, therefore, that the object of fixing terms of bail is to make it reasonably assured that the applicant will surrender at his trial. So far as the District Court is concerned all offences can be treated as being in a spectrum at one end of which there is no bail and at the other end of which bail is as of right and there is a whole range of offences in between. For the purpose of the jurisdiction of the High Court, while there is no case in which bail may not be granted and (subject to the exception under the Irish Habeas Corpus Act already referred to) no case in which bail is available as of right, the guides to a decision on the fundamental test are the same in all cases whether in the High Court, District Court, or any Court of trial, though the emphasis may vary depending upon the seriousness of the offence and other matters. These guides have existed from the earliest times. According to Bracton regard was to be had to (1) the importance of the charge, (2) the character (meaning the condition) of the person and (3) the gravity of the evidence against him. In Hawkins’ Pleas of the Crown (7th ed., vol. 3, ch. 15, s. 4), the guides are stated to be (1) the ability to give bail, (2) the quality of the prisoner and (3) the nature of the offence. Over the course of the years and as a result of many judicial decisions the guides have remained fundamentally the same though they have been elaborated. There has been one addition, which at first sight might appear to be an exception, that is, the likelihood of interference by the accused with the witnesses, or with the jurors, or the likelihood of the destruction of evidence by the accused. These, however, are all but different aspects of the evasion of justice and may be treated as being within the fundamental test already referred to.
When the present case was before the High Court the learned High Court Judge, while accepting the fundamental test, that is to say, the likelihood of the prisoner attempting to evade justice, enumerated certain matters which he considered should be taken into account where appropriate in considering whether or not the prisoner was likely to attempt to evade justice. In the judgment of the learned Judge they appear as follows:”1, The nature of the accusation or in other words the seriousness of the charge. It stands to reason that the more serious the charge the greater is the likelihood that the prisoner would not appear to answer it. 2, The nature of the evidence in support of the charge. The more cogent the evidence the greater the likelihood of conviction and consequently the greater the likelihood of the prisoner attempting to evade justice. 3, The likely sentence to be imposed on conviction. The greater the sentence is likely to be, the greater the likelihood of the prisoner trying to avoid it. The prisoner’s previous record has a bearing on the probable sentence and consequently must be before this Court. 4, The likelihood of the commission of further offences while on bail. In this connection a prisoner facing a heavy sentence has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and in an effort to get money to support his family he may commit further offences. 5, The possibility of the disposal of the illegally acquired property. Stolen property may be stored or cached away. 6, The possibility of interference with prospective witnesses and jurors. 7, The prisoner’s failure to answer to bail on a previous occasion. 8, The fact that the prisoner was caught red-handed. 9, The objection of the Attorney General or of the police authorities. 10, The substance and reliability of the bailsmen offered. (This is primarily a matter for the District Justice). 11, The possibility of a speedy trial.”
The learned Judge goes on to add that in certain cases the likelihood of personal danger to the prisonerfrom the hands of persons injured or incensed by the crime, may in itself be a ground for refusing bail. This proposition is quite unsustainable. If an accused wants protective custody he need not ask for bail or accept it. A bail motion cannot be used as a vehicle to import into the law the concept of protective custody for an unwilling recipient. An accused person on bail is entitled to as much protection from the law as may be required.
Of the matters enumerated by the Judge numbers 1, 2, 3, 7 and 8 are all matters relevant to the fundamental test in that they are guides to a decision on the probability of the accused evading justice in that they may all, save number 7, constitute to some degree an inducement to the accused to flee justice. Number 7 may be indicative of a propensity on the part of the accused to evade justice as evidenced by past conduct. With regard to number 3, if a previous record of the prisoner is put in evidence it would be only just that there should also be put in the balance if it be the fact that on previous occasions the prisoner appeared for his trial. The question of the previous record of the prisoner generally is a delicate one in that it is highly undesirable if it can be avoided that the previous record of any prisoner awaiting trial should be referred to or referred to in a way which may prejudice the pending trial. It is none the less a relevant consideration in my opinion and it may be proper to introduce the evidence in some cases because undoubtedly a prisoner with a bad previous record is likely to attract a greater sentence in the event of conviction again and to that extent the existence of a previous record of such a type may act as an inducement to flee justice and avoid the likelihood of a severe sentence. If such evidence is to be admitted on bail applications then I think it would be most undesirable that the tribunal which hears such evidence should be the tribunal of trial. If the question of bail arises during the trial itself the interests of justice, on balance, require that such evidence ought not to be adduced. I am furthermore of opinion that such evidence should only be adduced in respect of such previous convictions as would probably cause the trial judge to add substantially to the penalty he might otherwise have imposed in the event of conviction and that such previous record, properly proved, should be open to the same examination and comment on the part of the accused as it would have been if produced after conviction. None of these factors, however serious in the circumstances of any particular case, should be permitted to obscure the fact that bail ought to be allowed unless it appears probable that the accused will not surrender at his trial. Number 5 is relevant to the extent that it may embrace the destruction of evidence or the concealment of evidence upon which the case may depend and is a ground which in the ordinary course of events is more likely to be relevant before committal for trial than afterwards. On this basis, like ground number 6, it falls under the general heading of the evasion of justice, and these in themselves are only to be used as grounds for refusing bail where it is reasonably probable that these events will occur if bail is granted.
Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. It is true that in recent years a number of decisions in England on the question of bail appear to have admitted this concept of preventative justice being applied by the refusal of bail. It has also been stated in English cases that a professional criminal, knowing that he is guilty and the probability of conviction, may be tempted to commit some more offences before imprisonment in the belief that it will probably make little difference to his ultimate sentence having regard to his record and the meanwhile may offer some present profit.
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances
he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.
The accepted method of preventing the commission of future offences is the threat of conviction and punishment. Apart from any of the fundamental considerations already referred to, even if one were to assume that the accused is guilty of the offence charged that fact does not in any way establish the likelihood of the commission of another offence in the relatively short interval before his trial. In the vast majority of cases, even of persons with known criminal records, an attempt to predict who is likely to commit an offence while awaiting trial on bail can never be more than speculation.
It would also be an attempt to impose a system of preventative justice to take into account the fact that the accused person committed offences while on bail on previous occasions and such a course is open to all the objections which I have already referred to in relation to taking into account the possibility of the commission of offences while on bail.
Apart from the question of prevention being the object of a refusal of bail one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted of it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
With regard to number 9, naturally a Court must pay attention to the objections of the Attorney General, or other prosecuting authority, or the police authorities, when considering an application for bail. The fact that any of these authorities objects is not of itself a ground for refusing bail and indeed to do so for that reason only would be, as Mr. Justice Hanna pointed out in The State v. Purcell (1), to violate the constitutional guarantees of personal liberty. Where, however, there are objections they must be related to the grounds upon which bail may validly be refused. Furthermore they cannot be simply made in vacuo but when made must be supported by sufficient evidence to enable the Court to arrive at a conclusion of probability and the objections made must be open to questioning on the part of the accused or his counsel. It is not sufficient for the objecting authority or witness to have a belief nor can the Court act simply upon the belief of someone else. It must itself be satisfied that the objection made is sufficient to enable the Court to arrive at the necessary conclusion of probability.
The possibility of a speedy trial is relevant to the extent that if there is no prospect of a speedy trial a Court may very well allow bail where it might not otherwise have allowed it. It cannot be too strongly emphasised, however, that the prospect of a speedy trial is not a ground for refusing bail where it ought otherwise be granted.
The substance and reliability of the bailsman offered is primarily a matter for the Court which is accepting the bailsman as is also the question of whether he is an independent bailsman. In this context it is necessary to draw attention to the fact that there is no requirement in law that the bailsmen should be householders or own their own houses. In this country, where more and more persons dwell in houses rented to them by local authorities, particularly in urban areas, such an attitude would rule out as prospective bailsmen a large proportion of the population. The question of whether a prospective bailsman does or does not own his own house is of course a relevant factor in considering his financial ability to meet the demands of the bail.
As all students of constitutional history know, the question of the amount of bail has always been a matter of vital concern. The Bill of Rights, 1688, which provided that excessive bail should not be required did not apply to Ireland and there was no Irish statute corresponding to it, but the enactment was itself declaratory of the common law which did apply to Ireland. Bail must not be fixed at a figure so large as would in effect amount to a denial of bail and in consequence lead to inevitable imprisonment. As I indicated earlier in this judgment, both Bracton and Hawkins testify that at common law the Court in fixing the amount of the bail is to be guided by the ability to give bail and the condition or quality of the prisoner, in addition, of course, to the other factors, such as the nature of the offence and the gravity of the evidence. If persons come from a humble walk in life or are of little means it is most likely that their friends or those of them who are prepared to go as surety for them are of the same condition and the amount of bail required must be just and reasonable in all the circumstances having regard to the condition and ability of the accused, bearing in mind all the time the overriding test of the probability of the accused failing to appear for trial. Needless to say, any bail which a party can in fact procure cannot be considered excessive.
From the facts of the present case there is no evidence upon which a Court could hold that the applicant would probably fail to appear at his trial. Indeed, counsel for the Attorney General did not claim there was. The ground relied upon was that the applicant would endeavour to evade justice by interfering with the witnesses. While I quite accept that the Superintendent in giving evidence in the High Court was expressing his true belief when he put forward this objection, the fact is that there was no evidence upon which a Court could arrive at the same conclusion as the probability of the case. In this the case contrasts very sharply with the facts in The Attorney General v. Ball (1)(a case dealing with bail during remand only), which indicated the existence of cogent evidence to support the conclusion that evidence would be destroyed or removed. In conclusion I wish to state that I completely reject for being without foundation in law, history or reason the submission made to this Court that bail is a privilege only.
In my view the bail of £200 with one independent surety of £200 or two independent sureties of £100 each is a reasonable bail in all the circumstances.
BUDD J. :
I agree with both the judgments just delivered, save that, on the matter of the admissibility of evidence as to previous convictions on applications for bail, I concur with the views expressed by Mr. Justice Walsh.
Director of Public Prosecutions v. Fagan
[1994] 3 IR 265
Finlay C.J.
22nd June 1994
I have read the judgments which are about to be delivered by O’Flaherty J. and Blayney J. in this case and I agree with the conclusions which are reached in those judgments and with the grounds on which those conclusions are based.
I would consider it necessary only to add certain observations on the issues which have arisen in this appeal and which are set out in those judgments.
It was conceded by counsel on behalf of the defendant, and in my view correctly conceded, that a member of the Garda Siochana had a common law as distinct from any statutory right to stop a vehicle in any of the following circumstances, that is to say:
(1) When from observation he suspects that it is being used for a criminal purpose or that the driving of it constitutes a criminal offence, e.g.
(a) unsteady driving giving ground to a suspicion that the driver was affected by alcohol;
(b) a youth driving a particular type of car which having regard to his appearance and the type of car concerned gives grounds for suspicions that he might have stolen it; or
(c) that it coincided with a make or type of car reported as having been used as a getaway car after the commission of a crime;
(2) that a serious crime having been committed it was probable that amongst traffic on a particular route for a particular time there could be the car carrying the perpetrators of the crime in which instance it would at common law be lawful for a Garda Siochana to stop each car for the purpose of ascertaining whether it carried such people.
I do not see any logical difference in principle between these clearly accepted examples of a common law right on the part of the Garda Siochana to stop a car or cars travelling on a particular route or at a particular place and the right which is claimed on behalf of the Garda Siochana in this case to stop cars travelling at a particular time and on a particular route in the belief that it is probable that one or more of them is being driven in a manner which constitutes an offence, namely, being driven by a person who has in their body an excess of alcohol.
To set up a road check in the vicinity of a licensed premises at a time of night when the premises are being closed for the purpose of attempting to identify persons who may be committing the very serious offence of driving while drunk seems to me a proper exercise of the common law duties of the Garda Siochana in their policing activities.
I have carefully considered whether the fact that, in more recent times, in many instances, certain powers of stopping vehicles have been specifically granted by statutes, examples of which are referred to in the judgment about to be delivered by Denham J., is inconsistent with the existence of the common law right which appears to me to exist to create a road check under the circumstances on which it was done on this occasion. I am satisfied that there is not such an inconsistency, and that in all the instances which are referred to there are a series of powers such as powers of arrest and search which go together, as it were, as a package, and flow from the stopping of the vehicle.
Apart from that consideration, the fact that the legislature may decide at any time to set out in a very particular and specific manner a power for such a body as the Garda Siochana is not in my view to be taken as a reason for concluding that the common law right of the same type did not already exist if there are other grounds for so deciding.
I would add my emphasis to the emphasis contained in the judgments with which I am agreeing that of course if this power were to be exercised by a member of the Garda Siochana in a capricious or arbitrary or improper method it would be wholly illegal and for that reason it is clearly open to a member of the public if stopped to ask the Garda Siochana concerned as to why he is stopping the vehicle and if subsequently charged with any offence to raise the question of the propriety of the stopping in that context.
The case stated in this case recites that the garda stated that he was operating a road check and no question was asked of him, and therefore, in my view, no further evidence was necessary as to the circumstances under which it had been decided that that was his duty at that time.
I would therefore disallow this appeal.
O’Flaherty J.
This is an appeal brought by the defendant from the findings of the High Court (Carney J.) of the 12th February, 1993, on a consultative case stated by District Court Judge Maura Roche of the 12th December, 1992, whereby he answered certain questions submitted to him in favour of the Director of Public Prosecutions.
The pertinent facts as set out in the case stated were as follows. On the 14th May, 1992, the defendant appeared before District Court Judge Roche to answer the complaint of the Director of Public Prosecutions (at the suit of Garda Stratford) that on the 14th November, 1991, at Cathal Brugha Street, Dublin, he drove a motor vehicle in a public place while there was present in his body a quantity of alcohol in excess of the permitted limit. Garda Stratford gave evidence that on the morning of the 14th November, 1991, at about 12.30 a.m., he was on checkpoint duty at Cathal Brugha Street. He saw a car being driven along that street in the direction of O’Connell Street. He signalled the driver to stop, which he did. He approached the driver and spoke to him. Garda Stratford said that he got a smell of intoxicating liquor from his breath and that his speech was slurred. He formed the opinion that the driver had consumed intoxicating liquor and informed him of his opinion. He asked for the driver’s name and address which he got. He asked him to step out of the car which he did and he noticed that he was very unsteady. Garda Stratford then said that he formed the opinion that the defendant was under the influence of intoxicating liquor to such an extent as to render him incapable of proper control of a mechanically propelled vehicle in a public place. He told the defendant that he was arresting him under s. 49, sub-s. 6 of the Road Traffic Acts, 1961 to 1984, for drunken driving. He brought the defendant to Store Street Garda Station and, thereafter, the usual procedures for the taking of, as in this case, a urine sample were put in place. Nothing arises on this aspect of the case except to note that the ultimate finding was that the concentration of alcohol to urine in the sample provided exceeded the permitted limit.
At the conclusion of the prosecution case, it was submitted on behalf of the defendant that Garda Stratford had no power to stop the defendant’s car since he had not given any evidence that prior to stopping the vehicle he suspected that the defendant had committed any criminal offence and without any such suspicion, it was submitted, there was no power to stop a vehicle in a public place. It was further submitted on his behalf that, having stopped the vehicle, the garda then proceeded to speak to the driver and even if the court held that the garda had power to stop the vehicle he had no power to question the driver of the vehicle who was, thus, being detained by the garda and being prevented from continuing his journey.
The questions of law submitted for the determination of the High Court were:
1. Is a garda, who has no suspicion in relation to any offence, entitled to stop the defendant?
2. If the answer to the above is in the affirmative, is the evidence obtained admissible at a subsequent trial?
Carney J. answered both questions in the affirmative. He based his judgment in the first instance on s. 109, sub-s. 1 of the Road Traffic Act, 1961, as amended by the schedule to the Road Traffic Act, 1968, which provides:
“A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the Garda Siochana and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties.”
He was of the view that this provision authorises a member of the Garda Siochana to stop a vehicle to ascertain whether there was a contravention of s. 49 of the Road Traffic Act, 1961.
In the second place he found, relying on the judgment of Griffiths L.J. in Steel v. Goacher [1983] R.T.R. 98 at p. 102, that a member of the Garda Siochana has a common law power to operate random road traffic checks, including checks in relation to drunken driving, which involved the stopping of vehicles even though there might be no immediate suspicion that an offence had been committed.
In his submissions to this Court, counsel for the complainant relied on the statutory provision already quoted. Next he contended for a wide, general common law power in the Gardai to entitle them to stop motor vehicles; finally, as a fall back position, he said that it should be inferred that when a garda at night, after public houses are closed, operates a checkpoint in a city centre area where there is much movement of people, it should be accepted that what he is about, prima facie at least, is to detect drunken drivers and he should be entitled to stop and check on vehicles based on a general suspicion that breaches of the drink driving laws are being committed by drivers in such circumstances without the necessity to form a specific suspicion about a particular driver.
I would accept this latter submission, without any hesitation, as being correct, providing the power is exercised bona fide.
I would go further, however, and afford the Gardai a wider scope in regard to their entitlement to stop motor vehicles.
It was conceded by counsel for the defendant that the Gardai are entitled to have checkpoints so as to try to apprehend criminals after a crime – a kidnapping or bank robbery were instanced – has been committed. I cannot draw a distinction between their entitlement to do that in a specific instance and a situation where day in and day out, perhaps by the hour, throughout the country, motor vehicles are used as instruments in some form of crime or other: murder, sexual offences, kidnapping, robbery, theft, the transporting of illegal substances or stolen goods, and so forth. Vehicles are often stolen only with the object of destroying them. Drivers are subjected to frequent attacks and briefcases, handbags and other personal belongings are stolen when the window of the vehicle is shattered by an assailant. Needless to say this is a terrifying experience for drivers. I give these as instances aside altogether from the menance of drunken or dangerous driving.
The Gardai clearly, in my view, have an obligation to mount as good a surveillance as their resources permit on the use and movement of motor vehicles. Those lawfully going about their businesses or recreations have nothing to fear from such spot checks. Indeed, such law abiding persons are likely to feel more secure because of the interest of the Gardai in this regard.
At a time when crime involving motor vehicles is so rampant, it would be anomalous to suggest that while the Gardai have wide powers to stop for mundane road traffic matters (and I am of opinion that the statutory provision quoted pertains to these matters essentially) they do
S.C.
not have the wider power to check all motor vehicles in the performance of their duty to detect or prevent crime.
I would declare that they have this wider power. The power to stop must be exercised (like all powers) not in a capricious manner but in a constant fashion and with due civility and courtesy.
I would dismiss the appeal.
Egan J.
I agree with the judgments of Finlay C.J. and O’Flaherty and Blayney JJ.
Blayney J.
The facts giving rise to this consultative case stated have been fully set out in the judgment of O’Flaherty J. and it is not necessary for me to repeat them. The two questions of law submitted for the determination of the High Court, both of which were answered in the affirmative by Carney J., were:
1. Is a garda, who has no suspicion in relation to any offence, entitled to stop the defendant?
2. If the answer to the above is in the affirmative, is the evidence obtained admissible at a subsequent trial?
It is clear from the facts of the case that the issue to which the first question gives rise is whether a garda is entitled to require a motorist to stop his vehicle even though at the time the garda does not suspect that any offence is being committed by the motorist. In other words, the issue is whether the Gardai are entitled to operate random checks on motorists.
It seems to me that the answer to this question is to be found by considering what are the duties of the Gardai at common law. What these duties are were described as follows by Viscount Cave L.C. in his speech in Glasbrook Bros. Ltd. v. Glamorgan County Council [1925] A.C. 270 at 277:
“No doubt there is an absolute and unconditional obligation binding the police authorities to take all steps which appear to them to be necessary for keeping the peace, for preventing crime, or for protecting property from criminal injury . . .”
And in Rice v. Connolly [1966] 2 Q.B. 414, Lord Parker C.J. said in his judgment at page 419:
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
It is clear from these statements in regard to the duties of the police at common law that part of the duties of the Gardai are to detect and prevent crime. It follows in my opinion that if, in order adequately to detect and prevent crime, they find it necessary to require motorists to stop, the common law gives them full power to do so.
In Chief Constable of Gwent v. Dash [1986] R.T.R. 41 a Divisional Court of the Queen’s Bench Division held that by reason of the duty of the police to detect and prevent crime they had the power to make random checks with a view to seeing whether motorists were driving with an excess of alcohol in their blood. Macpherson J. said in his judgment at p. 47, referring to random checks:
“Some will, of course, say that checks of this kind are invasions of liberty; but driving with too much alcohol in the blood is also a gross invasion of the rights of others. And, for my part, I see no reason why such checks are unlawful or can themselves be termed oppressive or capricious as such, or within the term ‘malpractice’ used by the courts in the cases cited.”
And Lloyd L.J. said in his judgment at page 48:
“The word ‘malpractice’, as it has come to be used in this field, seems to me to cover cases where the police have acted from some indirect or improper motive or where the conduct on the part of the police could be described as capricious. The random stopping of cars under s. 159 of the Road Traffic Act, 1972, for the purpose of detecting crime, or for inquiring whether the driver has had too much to drink, cannot be so described. Nor can it be said that the police were acting from some indirect or improper motive. However much the public may dislike the random stopping of cars, I cannot agree that random stopping by itself involves malpractice, and if Donaldson L.J. said otherwise in Such v. Ball [1982] R.T.R. 140 to which Macpherson J. has referred, then, I would very respectfully disagree.”
Drunk driving is a crime which can have horrific consequences for the public. It can be the cause of death or serious injury. The Gardai have
a clear duty to do everything in their power to detect and prevent it. The strategy which they have adopted of having widespread random checks seems to me to be an excellent means of combating the crime and it would appear that it has already been extremely successful in doing so. I am satisfied that the operation of such random checks comes well within the common law power of the Gardai to detect and prevent crime.
It was submitted in the course of the hearing that the Gardai also had a power to stop motorists under s. 109, sub-s. 1 of the Road Traffic Act, 1961, as amended by the schedule to the Road Traffic Act, 1968. That section, as amended, is as follows:
“A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the Garda Siochana and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties.”
In my opinion this section does not give any power to the Garda Siochana to require a motorist to stop. What it does is to impose an obligation on the driver of a vehicle to stop when required to do so by a member of the Garda SÃochána, but it says nothing about the circumstances in which such member may require the driver to stop. I would agree with the passage from the judgment of Griffiths L.J. in Steel v. Goacher [1983] R.T.R. 98 at p. 103 which is cited in the judgment of Webster J. in Lodwick v. Sanders [1985] 1 All E.R. 577 at 583:
“That section [s. 159 of the English Road Traffic Act, 1972, which is almost identical with s. 109, sub-s. 1 of the Road Traffic Act, 1961] imposes a duty on a motorist to stop when required to do so by a constable in uniform. It does not follow that a constable in uniform must be deemed to have acted lawfully when, for whatever reason, he requires a motorist to stop. For purely practical reasons, there must be a rule that motorists stop when called upon to do so by a constable in uniform. The motorist must assume for the purpose of stopping that he is being lawfully required to stop, otherwise a dangerous and chaotic state of affairs would result. But once the motorist has stopped he can, thereafter, challenge the constable’s right to stop him, for nothing in the wording of the section gives any power to the constable to stop the motorist. It is a section designed to ensure safety and good order rather than to confer any specific power on a police constable.”
In the present case Garda Stratford was on duty at a checkpoint when he stopped the defendant. I am satisfied that he was fully entitled to do so having regard to the right of the Gardai to operate random
checks. Accordingly I would also answer in the affirmative both of the questions in the consultative case stated and dismiss this appeal.
Denham J.
This is an appeal by the defendant from a judgment of Carney J. delivered on the 12th February, 1993, wherein the learned trial judge answered two questions, on a consultative case stated from District Court Judge Maura Roche, in the affirmative.
Facts
The questions of law arise on facts as set out in the consultative case stated relating to the stopping of the defendant by Garda Stratford while he was on “check point duty”. The relevant facts proved were:
“(a) Garda John Stratford, a member of an Garda Siochana stationed at Store Street garda station, gave evidence that on the morning of 14th November, 1991, at about 12.30 a.m. he was on check point duty on Cathal Brugha Street. He observed a silver coloured Mitsubishi Galant registration number 88 WW 1154 driving along Cathal Brugha Street in the direction of O’Connell Street. He signalled the driver to stop which he did. He approached the driver and spoke to the driver.
(b) As the driver was speaking to Garda Stratford, Garda Stratford got a smell of intoxicating liquor from his breath and his speech was slurred when he spoke. Garda Stratford formed the opinion that the driver had consumed intoxicating liquor and informed him of his opinion. He then demanded of the driver his name and address which he gave as Patrick Fagan of 7, Friary Grove, Smithfield, Dublin 7. He asked him to step out of the car which he did and he noticed that he was very unsteady when standing up. He then formed the opinion that he was under the influence of intoxicating liquor to such an extent as to render him incapable of proper control of a mechanically propelled vehicle in a public place.
(c) He told Mr. Fagan that he was arresting him under s. 49, sub-s. 6 of the Road Traffic Act, 1961, for drunken driving.”
Questions
The questions of law raised by the District Court Judge were:
1. Is a garda who has no suspicion in relation to any offence entitled to stop the defendant?
2. If the answer to the above is in the affirmative, is the evidence obtained admissible at a subsequent trial?
High Court
In the High Court, Carney J. held, (after referring to the decision of Griffiths L.J. in Steel v. Goacher [1983] R.T.R. 98) that:
“I accept the reasoning of Griffiths L.J. and find that in addition to an implied statutory power An Garda Siochana has a common law power to operate random road traffic checks including checks in relation to drunken driving which involve the stopping of vehicles even though there be no immediate suspicion that an offence has been committed.”[See [1993] 2 I.R. 95 at page 101.]
Appeal
The defendant appeals to this Court from the decision of the High Court on two grounds:
1. The learned judge erred in law in finding that s. 109, sub-s. 1 of the Road Traffic Act, 1961, as amended by the Road Traffic Act, 1968, by implication authorises a member of the Garda Siochana to stop a motor vehicle to ascertain whether the vehicle is being driven in contravention of s. 49 of the Road Traffic Act, 1961, without having previously formed a suspicion that the vehicle was being so driven.
2. The learned judge erred in law in finding that members of An Garda Siochana have a common law power to stop motor vehicles even though there be no prior suspicion that an offence has been committed.
I Explicit statutory authority
There is no explicit power given in the Road Traffic Act, 1961, as amended, to a garda to stop a vehicle to ascertain whether the vehicle is being driven in contravention of s. 49 of the Road Traffic Act, 1961, as amended without the garda having previously formed a suspicion that the vehicle is being so driven.
In other Acts the legislature has given explicit power to the Gardai to stop persons in certain circumstances. Thus, under s. 30, sub-s. 1 of the Offences Against the State Act, 1939:
“A member of the Garda Siochana (if he is not in uniform on production of his identification card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom hesuspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act . . .”
And sub-s. 2 states that:
“Any member of the Garda Siochana . . . may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant.”
In s. 2, sub-s. 1 of the Emergency Powers Act, 1976, the words “with reasonable cause” were added, the section thus reading:
“(1) A member of the Garda Siochana . . . may without warrantstop, search, question and arrest any person, or do any one or more of those things in respect of any person, if he suspects with reasonable cause that that person has committed, is committing or is about to commit an offence under the Offences Against the State Act, 1939 . . .
(2) A member of the Garda Siochana . . . may, for the purpose of the exercise of any of the powers conferred by sub-section (1) of this section, stop and search any vehicle or vessel which hesuspects with reasonable cause to contain a person whom he is empowered by that sub-section to arrest without warrant.”
Section 8 of the Criminal Law Act, 1976, (which applies, inter alia,to scheduled offences under the Offences Against the State Act, 1939, murder, manslaughter, offences under s. 18 of the Offences Against the Person Act, 1861, certain offences under the Larceny Act, 1916, certain offences of malicious damage, an offence under the Firearms Acts, 1925 to 1971, and escape from lawful custody) states:
“(2) Where a member of the Garda Siochana who with reasonable cause suspects that an offence to which this section applies has been, is being, or is about to be committed requires a person to stop a vehicle with a view to ascertaining whether –
(a) any person in or accompanying the vehicle has committed, is committing or is about to commit the offence, or
(b) evidence relating to the commission or intended commission of the offence by any person is in or on the vehicle or on any person in or accompanying it,
he may search the vehicle, and if (whether before or after the commencement of the search) he suspects with reasonable cause that any of the facts mentioned in paragraph (a) or (b) above exists, he may search any person in or accompanying the vehicle.
(3) A member of the Garda Siochana may use reasonable force in order to compel a person to comply with a requirement to stop a vehicle, and such force may include the placing of a barrier or other device in the path of vehicles.”
Members of the Garda Siochana and authorised persons are given power to stop persons in specific circumstances under the Wildlife Act, 1976. Section 72, sub-s. 2 states:
“A member of the Garda Siochana or an authorised person may, if he has reasonable grounds for suspecting that a person has committed an offence under Part II or under sections 45, 47, 51, 52 or 53 of this Act, at all reasonable times stop any person who is suspected by him of being in any way concerned in the offence and require the person to give his name and address . . .”
Section 29 of the Dublin Police Act, 1842, states:
“. . . every such Constable may also stop, search, and detain any Vessel, Boat, Cart, or Carriage in or upon which there shall bereason to suspect that any thing stolen or unlawfully obtained may be found, . . .”
Members of the Garda Siochana and officers of customs and excise are given specific power to stop and search vehicles suspected of being used in connection with intoxicating liquor. Thus, s. 22, sub-s. 3 of the Intoxicating Liquor Act, 1960, states:
“A member of the Garda Siochana or an officer of customs and excise
(a) if he has reasonable grounds for suspecting that a vehicle is being used in connection with the commission of any offence under section 25 (which relates to the movement of stills and spirits) of the Act of 1831, may require the driver thereof to halt the vehicle and may search the vehicle . . .” The Garda Siochana were given specific powers under s. 23 of the Misuse of Drugs Act, 1977, as amended by s. 12 of the Misuse of Drugs Act, 1984, which includes a right to stop a vehicle. It states:
“(1) A member of the Garda Siochana who with reasonable cause suspects that a person is in possession in contravention of this Act of a controlled drug, may without warrant –
(a) search the person and, if he considers it necessary for that purpose, detain the person for such time as is reasonably necessary for making the search,
(b) search any vehicle, vessel or aircraft in which he suspects that such drug may be found and any substance, article or other thing on or in the vehicle, vessel or aircraft and for the purpose of carrying out the search may, if he thinks fit,require the person who for the time being is in control of such vehicle, vessel or aircraft to bring it to a stop and when stopped to refrain from moving it, or in case such vehicle, vessel or aircraft is already stationary, to refrain from moving . . .
(1A) Where a member of the Garda Siochana decides to search a person under this section, he may require the person to accompany him to a garda station for the purpose of being so searched at that station.”
(The emphasis in the above recited texts is mine.)
Section 23, sub-ss. 1 (a) and (1A) of the Misuse of Drugs Act, 1977, as amended, were the subject of a recent action seeking a declaration that the powers of search and detention were invalid having regard to the provisions of to the Constitution and in particular the provisions of Article 40, s. 3 and Article 40, s. 4, sub-s. 1, which action was dismissed: see O’Callaghan v. Ireland [1994] 1 I.R. 555. In its decision the Court applied the test laid down by Kenny J. in Ryan v. The Attorney General [1965] I.R. 294 where he had stated at p. 312 of that report:
“. . . the Oireachtas has to reconcile the exercise of personal rights with the claims of the common good, and its decision on the reconciliation should prevail unless it was oppressive to all or some of the citizens, or unless there is no reasonable proportion between the benefit which the legislation will confer on the citizens or a substantial body of them and the interference with the personal rights of the citizen.”
Finlay C.J. in giving the decision of the Court in O’Callaghan v. Ireland [1994] 1 I.R. 553 stated at p. 562 of the report:
“The Court is satisfied that this is the correct test to apply and that it was correctly applied by the learned judge. It confirms his conclusion that the potential damage to society from the use and distribution and, therefore, from the possession of controlled drugs, is so great and constitutes such a pernicious evil that the legislature was clearly acting within a reasonable and proper discretion in making lawful such extension of the power of arrest as might be found in the power to search contained in this section.”
It is to be noted that even in regard to the pernicious evil of drugs, the garda’s powers under the Act are grounded on reasonable suspicion. In the above case the Court was considering an extension of the power of arrest. The power to stop is an initial step on the path to arrest.
Despite these multiple examples of the Oireachtas giving the power to stop to Gardai, there is no explicit power in the Road Traffic Acts given to the Gardai, in the absence of suspicion, to stop a vehicle to investigate whether there has been an infringement of s. 49 of the Road Traffic Act, 1961, in the circumstances of this case.
It is clear that the power to stop has been given very carefully by the Oireachtas elsewhere. Thus, with the exception of the Offences Against the State Act, 1939, cited above, the other statutory sections give the official the power to stop where the official has reasonable suspicion, or reasonable grounds. However, even in relation to s. 30 of the Offences Against the State Act, 1939, the suspicion must be genuine – see The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550 – and in The People (Director of Public Prosecutions) v. Quilligan [1986] I.R. 495 at p. 507 Walsh J. stated that the suspicion under s. 30 must bebona fide held and not unreasonable.
II Implied statutory authority
There being no explicit statutory power given by the legislature to the Gardai to make an investigative stop, to operate random road traffic checks, in the circumstances of this case, it was submitted that such a power is implied in s. 109 of the Road Traffic Act, 1961, as amended. That section, as amended, states:
“(1) A person driving a vehicle in a public place shall stop the vehicle on being so required by a member of the Garda Siochana and shall keep it stationary for such period as is reasonably necessary in order to enable such member to discharge his duties.
(2) A person who contravenes sub-section (1) of this section shall be guilty of an offence.”
Section 111 should be read with s. 109 as it requires a member of the Garda SÃochána, when exercising a power or performing a duty under the Road Traffic Acts and making a request, requirement or demand or giving an instruction in a public place, to be in uniform or on request to produce identification.
Section 109 of the Act of 1961 is plainly directed to the person driving a vehicle. It requires that person to stop on being required by a member of the Gardai – he is also required to remain stationary as long as is reasonably necessary for the garda to discharge his duties. To fail to stop or so remain stationary is an offence.
The section imposes a clear obligation on the driver to stop. But does the section give an implied authority to the garda to stop a driver of whom he has no suspicion? I am satisfied that such an important and fundamental matter cannot be implied into such a section. On the one hand it is clear, from the examples previously set out, that the legislature when it creates a legal right to stop, does so in clear and precise terms. Further, subject to the exception cited of the Offences Against the State Act, 1939 (which itself has now been interpreted by case-law as set out previously) the other examples cited require the Gardai to have a reasonable suspicion of some specified type. In general, even when the legislature creates a legal right to stop, it has not created a right to make an investigative stop but rather to make a stop on foot of a reasonable suspicion.
Thus to imply both of these factors (the right to stop in the absence of any suspicion) into a section of a statute, that on the clear meaning of the words is directed toward the driver and not the garda, is inconsistent with the plain meaning of the words. Section 109 obliges a driver to stop, but for the legal authority giving the garda the power to make the requirement, one must look elsewhere. This interpretation of the statute is different to that taken of a similar section in the United Kingdom.
United Kingdom
In the United Kingdom s. 159 of the Road Traffic Act, 1972, provided:
“A person driving a motor vehicle on a road . . . shall stop the same on being so required by a constable in uniform, and if he fails to do so he shall be guilty of an offence.”
This has been superceded by a similar section, being s. 163 of the Road Traffic Act, 1988. That law is thus similar to the Road Traffic Act, 1961.
Mr. Hardiman, for the Director of Public Prosecutions, referred to Lodwick v. Sanders [1985] 1 W.L.R. 382, and submitted that this Court should follow it and infer a similar power to stop in s. 109 of the Road Traffic Act, 1961.
A number of English cases on the issue were opened to the Court. In Steel v. Goacher [1983] R.T.R. 98 the defendant was stopped at a random crime check. The car, with two male occupants, was being driven in a good class residential area shortly after midnight, and bore a registration mark which was not local to the area. There was nothing wrong with the manner in which the car was being driven. It was submitted that the police officers were not entitled to stop the defendant for a random crime check. The appeal against conviction was dismissed. Griffiths L.J. stated at page 103:
“In this case the action of the police has been referred to as a ‘random crime check’. That is perhaps a somewhat emotive phrase, but I take it in the context of this case to mean no more than the wish of the police to stop and inquire of the occupants of the car what they were doing so that the police could satisfy themselves that they were not engaged upon any criminal activity.
This was, in my view, a reasonable enquiry in all the circumstances. It was an inquiry that could only be made if the defendant was called upon to stop and it was reasonable to require him to do so. It therefore follows that the police officer was acting in the execution of his duty at the time he smelt the defendant’s breath and thus had reasonable cause to suspect the defendant of having alcohol in his body.
It should, however, be stated that the police officer was acting within the execution of his duty by virtue of his power at common law and not by virtue of any power contained in section 159 of the Road Traffic Act 1972 . . . That section imposes a duty on a motorist to stop when required to do so by a constable in uniform. It does not follow that a constable in uniform must be deemed to have acted lawfully when, for whatever reason, he requires a motorist to stop. For purely practical reasons, there must be a rule that motorists stop when called upon to do so by a constable in uniform. The motorist must assume for the purpose of stopping that he is being lawfully required to stop, otherwise a dangerous and chaotic state of affairs would result. But once the motorist has stopped he can, thereafter, challenge the constable’s right to stop him, for nothing in the wording of the section gives any power to the constable to stop the motorist. It is a section designed to ensure safety and good order rather than to confer any specific power on a police constable.”
In considering the obligations and duties of the police constable at common law English cases have referred to Parker L.J.’s statement in Rice v. Connolly [1966] 2 Q.B. 414 where he stated at page 419:
“It is also in my judgment clear that it is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal injury. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
In Lodwick v. Sanders [1985] 1 W.L.R. 382 Watkins L.J., after referring to the above statement of Lord Parker C.J. in Rice v. Connolly [1966] 2 Q.B. 414 and to Ashworth J. in R. v. Waterfield [1963] 3 All E.R. 661, said that s. 159 of the English Road Traffic Act, 1972, is to be construed as conferring a power on a constable to require a vehicle to stop.
Webster J., the other member of the bench in Lodwick v. Sanders [1985] 1 W.L.R. 382, on referring to Steel v. Goacher [1983] R.T.R. 98 and the judgment of Griffiths L.J. relating to s. 159 of the English Road Traffic Act, 1972, stated (at page 392):
“I respectfully agree with Griffiths L.J.’s opinion that the section confers no power on a constable to stop the driver of a motor vehicle, as distinct from requiring him to stop; but I do not, with respect, read the judgment of Ashworth J. [in R. v. Waterfield [1964] 1 Q.B. 164] as expressing the view that a constable has a power to stop the driver of a motor vehicle, as distinct from requiring him to stop. In my view, with respect to Eveleigh L.J. and Griffiths L.J., a constable has power to require a driver to stop his vehicle. But in any event, considering those authorities as a whole, although none of them is more than persuasive in this court, they all of them seem to me to be quite inconsistent with the proposition that the section confers upon a constable a power physically to detain a motor vehicle once it has stopped.”
I am satisfied that Lodwick v. Sanders [1985] 1 W.L.R. 382 is not a persuasive authority in this instance. First, on its facts it was a very different situation. There the police officers saw a lorry not displaying a vehicle excise licence, the trailer seemed to have neither index plate nor brake lights, and they caused the defendant to stop the lorry. In the case before this Court there was nothing untoward evident in the defendant’s car or his driving. Secondly, while Lodwick v. Sanders [1985] 1 W.L.R. 382 addressed the question of the power to stop the lorry, the kernel of the case was the question of the right of the police officers to detain the lorry once stopped. Thirdly, there has not been a consistent interpretation of the law in England. Fourthly, the premise behind Lodwick v. Sanders [1985] 1 W.L.R. 382 goes to the root of the relationship between the citizen and the police and for reasons stated later I do not consider it applicable in this jurisdiction.
III Common law power
The next question for consideration is whether a member of the Garda Siochana has a power at common law to make an investigative stop in the circumstances of this case, as opposed to a stop based on reasonable suspicion.
If such a power exists at common law then it is surprising that the legislature spelled out the right to stop in so many statutes, but limited it to situations where the nominated person had a reasonable suspicion as in the examples of legislation set out previously.
I can find no examples in case law of such a power at common law. Consequently, I am driven to the conclusion that no such power exists at common law.
The Director of Public Prosecutions v. Cowman [1993] 1 I.R. 335 recognises the right of a member of the Garda Siochana to approach members of the public for the purpose of speaking to them and having communication with them on an informal basis. It is neither a right, nor a power, to make an investigative stop of a person much less a person in a vehicle. Thus The Director of Public Prosecutions v. Cowman [1993] 1 I.R. 335 is distinguishable from the situation in this case.
IV Common law duty
Counsel for the Director of Public Prosecutions submitted that a member of the Garda Siochana has the right to stop a person in a vehicle without any specific suspicion if the member is acting in the course of his duty. He pointed out that Garda Stratford was “on duty”, the case stated having referred to him as being “on check point duty”. The fact that he was “on duty” was not challenged in cross-examination.
The term “duty”, it was argued, includes every matter that is the business of the Gardai and includes the Road Traffic Acts. Mr. Hardiman referred to Parker L.J.’s definition in Rice v. Connolly [1966] 2 Q.B. 414 of the obligations and duties of a constable as set out previously in this judgment. He submitted that if a garda acts in accordance with those obligations, while on duty, and stops a person, he is entitled so to do.
If the very broad sweep of Parker L.J.’s definition were used to empower a member of the Gardai to stop a person, then logically they could also be the foundation for other impingements on fundamental rights of persons, for example search, detention, arrest. Yet these infringements of liberty are carefully set out in statute, and common law, and founded on the concept of a reasonable suspicion, for we do not have an inquisitorial system of law.
Broadly, the garda is given powers, such as a right to stop, arrest, search, which are activated by the member’s reasonable suspicion. That is the foundation of the constitutional protection of individual’s rights and the rule of law.
If there is to be an invasion of a person’s fundamental rights, for good social reasons, for the benefit of the community, then it should be set out in a clear and certain fashion in law. The formula submitted by counsel to ground the right to stop here would lead to a very uncertain foundation on which a garda would base his right while “on duty”. It would lead to uncertainty on all sides. It is as much in the interest of the Garda Siochana as the public that the authority of the garda to stop a person in a vehicle or to restrict liberty in any way, should be clear and certain.
The approach proposed by the Director of Public Prosecutions would be a major alteration in principle in the relationship between the Gardai and the public. It proposes that, rather than have Gardai act in accordance with the ordinary power of citizens together with a specific authority, the Gardai could simply call in aid the fact that they are “on duty”. When “on duty” in the terms of the definition of Parker L.J. in Rice v. Connolly [1966] 2 Q.B. 414, any consequential act would, following the logic of the complainant’s submission, be lawful. Thus, rather than seeking an authority for an action of a garda, the simple issue would become as to whether he was “on duty”. Garda duties and obligations are wide. Thus, the reach of garda power if it depended only on him acting in the course of the obligations and duties of a garda as set out in Rice v. Connolly , would be very broad and unclear, and have further detrimental consequences.
I am satisfied that the submission of the Director of Public Prosecutions is incorrect, and consider that the fundamental approach in law and under the Constitution is to seek to find the precise authority for the power of the Gardai to stop a person in the circumstances of this case. It is a matter of balance between an individual’s rights and an ordered community. That balance has to be established with certainty and clarity. To hold that the general duty of a garda under common law gives an entitlement to stop vehicles without suspicion is contrary to long established principles of giving to the garda authority specific rights to stop a person, in a precise statutory form, or in common law, where the member has a reasonable suspicion.
It is for the Oireachtas to determine if a law should be passed, as it has in other areas, providing for the right to stop persons in vehicles and in what circumstances. That is a matter for the legislature, not this Court.
Constitution
The freedom of movement within the State is a fundamental right of persons. Such right is not absolute but can be limited by law.
In legislating for the limitation of a right the legislature has to reconcile the common good with personal rights, and its decision should prevail unless it is oppressive or unless there is no reasonable proportion between the benefit the legislation will confer on the community and the interference with the personal rights of the citizen.
Drunken driving is a dangerous and destructive activity. The Road Traffic Act, 1961, has been amended many times in the past and no doubt will be in the future. Legislation which is clear and certain in aid of preventing drunken driving is of benefit to the citizens of the State and has been so accepted for many years. However, legislation is a matter for the Oireachtas.
Rule of law
A cornerstone of the rule of law is that persons in authority must be able to justify their actions, if called upon to do so, by reference to a specific rule in statute or common law. Thus it is appropriate to look for positive law authorising the action in question. I have found no such law in statute or common law to warrant the action of the garda in this case.
Conclusion
I find no explicit or implicit statutory power or duty in s. 109 of the Road Traffic Act, 1961, as amended, giving to a member of the Garda Siochana a right to make an investigative stop, nor is there a common law power, nor does a garda “on duty” have a power to make an investigative stop of a person in a vehicle of whom he has no suspicion, in the circumstances of this case.
It would be contrary to the fundamental principles of personal rights under the Constitution, the rule of law, and the initiation of a concept with far reaching consequences, to justify the action of the garda on the basis that he was “on duty”. The logical sequel would be that all actions performed “on duty” would be legal and permitted. It would establish an authority, based on a broad concept of duty, which is unclear and uncertain. Ultimately this is of benefit neither to the Gardai nor citizens.
I can find no legal basis for the power exercised by Garda Stratford. Consequently I would answer the first question on the case stated in the negative. That being so the second question does not arise for consideration.
Ryan v. Director of Public Prosecutions
[1989] IR 399
Finlay C.J.
18th November 1988
These are two appeals brought by the respondent against decisions of the High Court granting bail to the applicant pending trial on two separate sets of charges. The same point of law arises in each appeal.
The first order appealed against is one made by the learned President of the High Court and dated the 11th March, 1988, in which he granted bail pending trial to the applicant who had been refused bail in the District Court. The second order appealed against is one made by Barron J. on the 22nd April, 1988, upon the hearing by him of an application by the applicant for reduction in the amount of bail fixed by the District Court which granted to him bail pending trial on another set of charges.
The point of law said to arise in each case is as to whether it is within the jurisdiction of the High Court to refuse an application for bail pending trial if it is satisfied that the applicant, if released on bail, would be likely to commit criminal offences before his trial.
Counsel for the respondent has conceded that in the application heard by Barron J. a doubt must exist as to whether the High Court would have had jurisdiction to make an order refusing bail on any grounds, having regard to the fact that the only application before it was for the reduction of bail. Prima facie that application was made by way of appeal pursuant to the provisions of s. 28, sub-s. 3 of the Criminal Procedure Act, 1967, and neither that section nor any other statutory provision provides for an appeal by the respondent against a decision of the District Court granting bail. Counsel did not seek to argue for the contention that Barron J. would have been entitled to make any order other than one reducing or refusing to reduce the bail fixed in the District Court. In these circumstances I am satisfied that the appeal against that order of the 22nd April, 1988, should be dismissed.
With regard to the order made by him on the 11th March, 1988, the learned President of the High Court stated his reasons in a short judgment delivered on the 16th March, 1988. That judgment indicates that the sole ground of opposition to the granting of bail made before him was that if it were granted the applicant would “continue to engage in criminal activities”. The learned President held that on the authority of the decision of this Court in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 he was not entitled to have regard to that ground of objection. As, however, it was indicated to him on the hearing that the respondent would be anxious to appeal his decision so as to enable him to seek from this Court a decision departing from the principle laid down in O’Callaghan’s case , the learned President permitted evidence to be adduced which it was alleged would substantiate such a ground of opposition. He reached no decision on that evidence which was contested, ruling, in my view correctly, that it would not be proper for him so to do unless the Supreme Court decides that such evidence was relevant.
The sole issue which therefore arises on this appeal is whether this Court was correct in deciding in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 that the probability that a person awaiting trial would if released on bail commit crime could never be a ground for refusing bail. O’Callaghan’s case was decided by a Court of three judges who were unanimous in their decision on this issue. O’Dalaigh C.J. and Walsh J. gave separate judgments and Budd J. agreed with each of them, apart from one issue which is not relevant.
The position was stated by O’Dalaigh C.J. in the course of his judgment at p. 508, as follows:
“Counsel for the Attorney General, however, went on to support the view that the applicant, whom he concedes is likely to stand his trial, should nevertheless be refused bail because the offences in respect of which he was seeking bail were alleged to have been committed while he was on bail in respect of earlier charges. I understood him to submit that the applicant should be held as a preventive measure. This I take to mean that he should be detained in custody because, if granted bail, it is feared he may commit other offences.
The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say ‘punish,’ for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand trial when called upon.
It is necessary to repeat what was said in the judgment of this Court in The People v. Crosbie and Others [1966] I.R. 426. Leaving aside such matters as the likelihood of an accused interfering with witnesses or attempting to destroy evidence if granted bail, it must be borne in mind that the single question in all bail applications is: Is the applicant likely to stand his trial? If yes, then he should be granted bail and set at liberty. The several tests indicated in Purcell’s Case [1926] I.R. 207 are not separate and additional tests. They are merely matters to which regard may be had in endeavouring to answer the single fundamental question. This Court has granted bail to applicants charged with non-capital murder when it was likely that they would stand their trial. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until tried and duly found guilty.”
Walsh J. stated the same principle in the course of his judgment at p. 516 in the following terms:
“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. It is true that in recent years a number of decisions in England on the question of bail appear to have admitted this concept of preventative justice being applied by the refusal of bail. It has also been stated in English cases that a professional criminal, knowing that he is guilty and the probability of conviction, may be tempted to commit some more offences before imprisonment in the belief that it will probably make little difference to his ultimate sentence having regard to his record and the meanwhile may offer some present profit.
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”
The respondent seeks to challenge the principle thus laid down on two alternative grounds.
1. He asserts that a discretion to refuse bail on this ground is to be found in the common law jurisdiction affecting the granting of bail.
2. In the alternative, he submits that even if it is not there to be found, since there are constitutionally protected rights to life, bodily integrity and property which would be affected by the commission of crime the Court has a right and a duty to avail of the discretion which is vested in it upon the making to it of an application for bail pending trial in appropriate cases to prevent the apprehended commission of crime.
Mr. Fennelly on behalf of the respondent has referred the Court to a very comprehensive series of decisions concerning the granting of bail. Prior to 1922 there does not appear to have been any decision in any English or Irish Court which lays down that a likelihood to commit crime whilst on bail is a permissible ground for refusing bail. Reliance was placed on behalf of the respondent on the decision of the Court of Criminal Appeal in England in R. v. Phillips [1947] W.N. 129. That decision as reported is extremely unsatisfactory, being clearly obiter as part of a judgment of the Court of Criminal Appeal in an appeal against severity of sentence, and in a case in which apparently counsel did not appear, and it lays down no principle of any description. That decision was followed by Haugh J. in the High Court in Attorney General v. McCann [1955] I.R. 163, but his decision, which was referred to in the course of the argument in The People (Attorney General) v. O’Callaghan [1966] I.R. 501, must be taken by that case to have been overruled. That case must also be taken to have overruled the decision of Budd J. in Attorney General v. McEvoy (1959) 25 Ir. Jur. Rep. 44 in which he followed the decision in Attorney General v. McCann.
I am satisfied that the existence of the claimed reason for refusal of bail in the common law is not supported by the decisions to which we were referred, and is indeed negatived by them.
What is, however, clear from these decisions is, as has been emphasised in both of the judgments in The People (Attorney General) v. O’Callaghan [1966] I.R. 501, that the established reasons for the refusal of bail all come within the broad category of preventing the evasion of justice, either by the accused absconding; by the accused interfering with witnesses; or by the accused destroying, concealing or otherwise interfering with physical evidence. Quite apart from the constitutional objection to any form of preventive detention and to an invasion of the presumption of innocence which is set out in the judgments in O’Callaghanwhich I have quoted and with which I fully agree, if the discretion vested in the courts in relation to granting bail were to be exercised in an attempt to prevent the apprehended commission of a crime, it would, in my view, constitute an abuse of a power, namely, the exercise of it for a purpose which was outside its scope.
It was urged upon the Court that there might be before it in an application for bail very convincing evidence of the likelihood that if released the applicant would commit very serious assault or homicide and that the Court, it is stated, would then have to choose the protection of life rather than the protection of the applicant’s liberty. Apart from the fact that this hypothetical case bears no conceivable resemblance to the facts of the present case it raises some extremely difficult problems.
An intention to commit a crime, even of the most serious type, is not in our criminal law a crime itself unless it is furthered by overt acts of preparation or converted by an agreement with another into a conspiracy. The courts cannot create offences or crimes, though the Oireachtas may. Are they, however, to be permitted to detain a person because he is suspected of an intention, which even if proved in a full criminal trial, could not lead to his punishment? If such a power did exist in the courts, why should its exercise be confined to cases where the suspect is an applicant for bail? Why should the courts’ prevention of the apprehended harm cease in the event of the determination without a sentence of imprisonment of the original charge, which charge may in its character and seriousness bear no resemblance at all to the feared offence? How can such an intention be proved, and by what standard of proof must it be established? Could there be any grounds on which an accused person suspected of such an intention would be afforded less comprehensive notice of the evidence to be offered against him of the grounds for such suspicion and less opportunity to prepare and be represented to contest such allegations than he is afforded in relation to the presenting of a criminal charge against him? Would every application for bail accordingly, in which this ground was advanced as the substantial ground of opposition, take on the nature and necessary requisites of a criminal trial? These queries not only indicate practical problems but more importantly highlight the nature of the jurisdiction which it is sought to invoke without legislation.
The criminalising of mere intention has been usually a badge of an oppressive or unjust legal system. The proper methods of preventing crime are the long-established combination of police surveillance, speedy trial and deterrent sentences.
Section 11 of the Criminal Justice Act, 1984, which provides mandatory consecutive sentences for offences committed while on bail constitutes a good example of such a deterrent. The fact that the Oireachtas so relatively recently has availed of this particular method of seeking to curb what must have appeared to it to be the mischief of crimes committed by persons on bail with which we are here concerned, confirms my view that it would not be appropriate for the Court to assume the jurisdiction which it is being submitted it should assume.
References have been made in the course of the arguments to the legal position with regard to the granting and refusing of bail in other jurisdictions. Since the fundamental objections to the jurisdiction contended for in this case derive from the Constitution, examples of other legal systems are of little value.
Particular reliance was, however, placed on the decision of the U.S. Supreme Court in U.S. v. Salerno 107 S.C. 2095 (1987). That is a decision dealing with the facial constitutionality of a Bail Reform Act which according to the report contained extensive safeguards and particularly required proof that the accused presented identifiable and articulable threats to individuals or to the community. The decision, which is a majority decision and to which strongly dissenting judgment were delivered, would be of assistance if this Court were ever called upon to decide upon the constitutional validity of legislation which dealt with the sort of extraordinary circumstances mentioned in that portion of the judgment of Walsh J. in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 which I have already quoted. It cannot, however, in my view, support the discretion contended for in this case.
I would, therefore, dismiss this appeal.
Walsh J.
I agree with the judgments of the Chief Justice and McCarthy J.
Griffin J.
I agree with the judgment of the Chief Justice.
Hederman J.
I agree with the judgment of the Chief Justice.
McCarthy J.
The introduction of the written submission by the respondent states that the purpose of the respondent in bringing this appeal is to invite the Court to reconsider its decision in The People (Attorney General) v. O’Callaghan [1966] I.R. 501, arguing that the right to bail is not a constitutional right and citing the judgment of the Court in the reference of The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129 at page 154. True, a right to bail is not a specified constitutional right; a right to liberty is such a right qualified only in so far as the detention which is the infringement of the right is in accordance with law, for example, “if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas, subject always to the qualification that such provisions are not repugnant to the Constitution or any provision thereof” (opinion of the Supreme Court of Justice delivered by Sullivan C.J. in The Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470 at p. 482).
The remand of an accused person is governed by the provisions of Part III of the Criminal Procedure Act, 1967. Section 22 identifies “bail” as a conditional release under para. (b) of sub-s. 1 which enables the court, either on simple remand or in sending an accused person forward for trial or sentence, to “release him conditionally on his entering into a recognisance, with or without sureties.”No criteria are prescribed in the Act of 1967 which leaves the granting of bail in the discretion of the District Court subject to a later provision (s. 33) where an accused person who has been admitted to bail may be arrested on the application of the surety or of a member of the Garda SÃochána if he is about to abscond for the purpose of evading justice. It may be of significance that this “purpose of evading justice” is the only reason stated in the Act of 1967 that justifies detention during remand or pending trial, and is an echo of the phrase used by Murnaghan J., and Walsh J., in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 at pp. 503 and 513. The phrase is used again in the judgment of Walsh J., in The People (Attorney General) v. Kervick (Unreported, Supreme Court, 29th July, 1971) where it is stated that the term means that the accused “would probably destroy evidence, interfere with witnesses or fail to appear for his trial.”No such ground is advanced in the instant appeal and, were it not for the importance of the issues involved, I would be content to express my agreement with the conclusion of the Chief Justice.
The respondent founds his argument on two bases:
(1) That in 1922 and in 1937 there existed at common law an established principle that bail might properly be refused where the court was satisfied that the accused if granted bail was likely to commit an offence or offences similar to that with which he was charged.
(2) That the constitutional obligation on the State identified in Article 40, s. 3, “to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”, including, in particular, the life, person and property rights of every citizen, obliges the State, through the judicial organ of government, to supplement the recognised ground for refusing bail by adding a ground to encompass the protection and vindication of these rights.
1. The common law
In my view, the cases cited by Mr. Fennelly in support of the proposition, up to and including Mackintosh v. McGlinchey (1921) S.C. 75 fall far short of establishing the existence of any such common law principle. In later cases it has been demonstrated that the Court of Appeal in England appears to be satisfied that such ought to be the law. The legislature in that country, however, appeared doubtful, at least, as to whether or not it was the law and, consequently, enacted the Bail Act, 1976, which makes express provision in the terms such as the respondent seeks to have this Court declare as part of the common law. Whatever support there may be found for a court in England holding that it formed part of the English common law, I find no persuasive authority to suggest that it was part of the common law in 1922. It offends against a fundamental principle of the common law the presumption of innocence.
2. The constitutional argument
It does not appear that any argument of this kind was advanced in The People (Attorney General) v. O’Callaghan [1966] I.R. 501. The argument, as I understand it, pushed to extremes, points to certain horrific possibilities. It postulates a series of “Jack the Ripper” crimes or cases of child sexual molestation by a parent, where there is a very real possibility, indeed, probability, that the person charged, although not convicted, having confessed to the alleged crime and, perhaps, professed an intention to do it again, must still be admitted to bail, thereby gravely endangering the person, the lives and the family of citizens, quite apart from any speculation in respect of similar circumstances affecting property. There have been instances of multiple crime of a similar kind, ranging from sexually motivated murder to crimes against property such as arson. Here, it is said, the citizen calls upon this organ of government for protection, and vindication of these fundamental rights, in accordance with the guarantee set out in Article 40 of the Constitution. No court can validly direct the Oireachtas to enact any particular legislation, no more than the Oireachtas may validly direct any court as to the resolution of a justiciable issue. So, it is said, the Court must balance the right to liberty of the accused as against the right to safety of the citizen in general.
Section 10 of the Prevention of Crime Act, 1908, provides that in certain circumstances, including it being “expedient for the protection of the public” that a person convicted on indictment of a crime might be sentenced to a further period of preventive detention. This required the setting apart of a special prison for this purpose. Suffice it to say that, at present, there is no appropriate place for the detention of such persons. By definition it would not be appropriate in a case such as the present, before trial. As pointed out by O’Dalaigh C.J., in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 at p. 509 there is provision in the Offences Against the State (Amendment) Act, 1940, that allows for preventive detention. So also, in a different context is there provision for detention under the Mental Treatment Acts. Even in the Act of 1940 the detention may be ordered only when the relevant Minister is of opinion that the person concerned”is engaged” in activities etc., not that such a person, if not detained “will engage”in such activities. Express reference to the Constitution was made in O’Callaghan’s case by O’Dalaigh C.J., at p. 509 and by Walsh J., at p. 516, both passages pointing to the Constitution as prohibiting deprivation of liberty upon only the belief that the person held will commit offences if left at liberty.
A person accused in our courts, if detained, may apply to the High Court or any judge thereof alleging that his detention is unlawful; it may be that his gaoler may call impressive evidence that, if released, such person may cause grievous harm; the accused may protest his innocence and enjoys a presumption to that effect but is he to be denied his liberty because of such well founded suspicion? There is no logical reason why any other citizen, not so charged, might not be detained upon a similar contention supported by similarly impressive evidence. The pointing finger of accusation, not of crime done, but of crime feared, would become the test. Such appears to me to be far from a balancing of constitutional rights; it is a recalibration of the scales of justice.
Whilst the circumstances of an individual case of the horrific kind that I have identified may well cause alarm, such cases are few; much more frequent are cases such as the present where this fear of future crime of a kind akin to that charged is no doubt present to the mind of those concerned with the prosecution generally offences against property identified in large part by the provisions of the Larceny Act, 1916, as amended. The charge arising out of which the application for bail was made to the learned President, relates to an alleged break into a co-operative premises at Bunratty on the 29th February, 1988; the applicant was brought to the District Court on the same date and was remanded in custody apparently on the ground that he would commit further offences, a ground which was not open to the district justice to use for the purpose of a remand in custody. He applied to the President on the 11th March, 1988, and was granted bail: the President recognising that he was not entitled to have regard to this ground of objection. This appeal was heard in this Court on the 18th October, 1988, some seven months after the decision of the learned President and, in the course of the hearing, we were informed that the book of evidence, to be served in accordance with the provisions of the Criminal Procedure Act, 1967, had not yet been completed this in a case of commonplace crime. Whatever the cause of delays of this kind, it is clear that some of the fears about crimes committed whilst on bail would be met by ensuring speedy trials and a consequent limitation in the period of bail.
I would dismiss the appeals.
Gregory v. Judge Windle
O’Hanlon J. [1994] 3 IR 613
H.C.
….
In the case of John Cooney, (but not in the case of the other two plaintiffs) the affidavit sworn in support of his application for leave to apply for judicial review includes the following averment as to his inability, on financial and other grounds, to comply with the District Court order:
“I say that I cannot possibly procure my liberty by entering into such recognizance in compliance with the aforesaid conditions as imposed by the learned respondent [District Court Judge] as my circumstances are such that I do not have, nor does any person on my behalf have access to any person of sufficient means to come forward as a solvent surety in the sum of £1,000 in order to secure my release from the custody of the first respondent herein.”
The law
The jurisdiction of justices to bind parties over to keep the peace and be of good behaviour and to require sureties of the peace or good behaviour has an ancient history. The topic is dealt with very fully in O’Connor, “The Irish Justice of the Peace” (2nd ed.) (1915) Vol. 1, pp. 29 to 46. The origin of the jurisdiction is traced back to common law and to the Statute of Edward III (34 Edw. 3, c. 1) (1360), and the justices’ commission. (See judgment of Fitzgerald J. in The Queen v. Justices of Queen’s Co. (1882) 10 L.R. Ir. 294 at page 301).
The Statute of Edward III provides: “. . . that in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy in the county, with some learned in the law, and they shall have power . . . to take of all them that be of not of good fame, where they shall be found, sufficient surety and mainprise of their good behaviour towards the King and his people, and the other duly to punish . . .”
This Act was applied to Ireland by virtue of Poynings Act, (10. Hen. 7. (Ir.), c. 22) (1495).
Fitzgerald J. (later Lord Fitzgerald) said in The Queen v. Justices of Queens Co. (1882) 10 L.R. Ir. 294 (at p. 301):
“The jurisdiction . . . may be described as a branch of preventive justice, in the exercise of which magistrates are invested with large judicial discretionary powers, for the maintenance of order and the preservation of the public peace. Whether it existed at common law, or flows from the commission, or has been conferred by statute, it rests on the maxim or principle, salus populi suprema lex, in pursuance of which it sometimes happens that individual liberty may be sacrificed or abridged for the public good.”
And at page 303:
“. . . where it shall be made reasonable to appear to a Justice of the Peace that a person has incited others by acts or language to a violation of law and of right, and that there is reasonable ground to believe that the delinquent is likely to persevere in that course, such Justice has authority by law, in the execution of preventive justice, to provide for the public security by requiring the individual to give sureties for good behaviour, and in default commit him to prison.”
In the case of Ex parte Tanner, M.P. (Unreported, Exchequer Division, Palles C.B., 8th August, 1889; vide “Judgments of the Superior Courts in Ireland” (H.M.S.O., Dublin, 1903) page 343) it was held that the court may be judicially satisfied that there is a danger of a future breach of the peace and may “hold a party to good behaviour or the peace, as the case may be, although there has been no act which amounted, in legal parlance, to misbehaviour or breach of the peace, if the circumstances are of such a character as to lead to the reasonable probability of the party doing such an act which would amount to such misbehaviour or breach of the peace.”
Palles C.B. pointed out (at p. 354) that “the jurisdiction [to bind to the peace] has been applied . . . to cases in which the defendant was acquitted . . . to cases in which the party had no opportunity of saying a word to object to it . . . in cases where there was no information that a repetition of the offence was likely or was apprehended . . . in cases of statutable misdemeanour, over and above the maximum penalty imposed by the statute – all showing that it is something ordered by way of prevention, and not as punishment.”
And in The King (Boylan) v. Justices of Londonderry [1912] 2 I.R. 374, at p. 380, Palles C.B. concluded that where there has been a conviction for a breach of the peace, or a threat of future violence or an attempt or an intention to commit an assault or other breach of the peace, or there have been facts rendering it reasonably probable that the party will be guilty of a breach of the peace, these are circumstances warranting an order to bind to the peace.
These decisions and many others referred to in O’Connor’s “The Irish Justice of the Peace” provide prima facie support for the validity of the orders made by the District Court Judge in the cases now under consideration. It is necessary to consider, however, whether the jurisdiction to make such orders has survived the enactment of the Constitution, and if it has, whether the supervisory jurisdiction of the High Court can be invoked successfully for the purpose of challenging the validity of the orders made having regard to the circumstances of the particular cases under consideration.
Mr. Vaughan Buckley S.C., for the plaintiffs, contended that the whole concept of preventive justice was inconsistent with the provisions of the Constitution and that it was unconstitutional to impose a prison sentence on the plaintiffs over and above the maximum penalty provided by statute for the offence with which they were charged (a fine not exceeding 40 shillings) being the penalty referred to in s. 14, sub-s. 13 of the Dublin Police Act, 1842, if they were unable or unwilling to enter into the necessary bond and give surety for their good behaviour in the future.
Considerable reliance was placed upon statements of the law as found in the judgments delivered in the Supreme Court in The People (Attorney General) v. O’Callaghan [1966] I.R. 501, where the Court had to consider the matters which it was permissible to take into account in granting or refusing bail in the case of an accused or convicted person awaiting trial or the hearing of an appeal.
O’Dalaigh C.J. said at p. 508 of the report:
“[I take the submission for the Attorney General to mean] that he should be detained in custody because, if granted bail, it is feared he may commit other offences.
The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say ‘punish’, for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.”
A similar view was expressed by Walsh J. at p. 516 of the report:
“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”
The question that has to be resolved in the present case is whether these statements of principle, expressed as they were in general terms, are to be taken as applying also in a situation where a person faces the prospect of being detained in custody for failure to enter into a recognizance to keep the peace and be of good behaviour, or to provide surety that he will fulfil such recognizance.
Notwithstanding the constitutional guarantees respecting liberty of the person, a number of situations have always been recognised as existing where a person who has not been sentenced to imprisonment as a punishment upon being convicted of a criminal offence, may nonetheless suffer deprivation of liberty for some period of time without the Constitution being set at naught in the process.
Under the provisions of Part XIV of the Mental Treatment Act, 1945, where it is apprehended that a person is suffering from a mental disorder of such a degree that he should, for the public safety or the safety of the person himself be placed forthwith under care and control, that person may be taken into custody and removed to a Garda Siochana station (subject to the conditions referred to in s. 165 of the Act).
Other provisions of the Act provide for the removal of persons to mental hospitals and their detention there, if the procedures laid down by the Act have first been complied with. The validity of the powers vested in the gardai under the Act was challenged unsuccessfully in In re Philip Clarke [1950] I.R. 235.
A person charged with a criminal offence can be, and usually is, allowed out on bail, with sureties being taken to ensure the appearance of the accused person at a specified time and place to answer the charge against him. However, if the accused person declines to acknowledge himself bound by the terms of a bail bond or is unable or unwilling to provide independent sureties as required by the order admitting him to bail, his only alternative is to remain in custody while awaiting trial, notwithstanding the presumption of innocence which exists in his favour until conviction.
Even if bailsmen are available, bail may be refused and the accused may be left in custody awaiting trial – sometimes for months on end – if the court to which application for bail is made is satisfied that there are substantial grounds for believing that, if admitted to bail, the accused man is likely to abscond and not to stand his trial, or may interfere with prospective witnesses. ( The People (Attorney General) v. O’Callaghan [1966] I.R. 501).
Other examples of detention and deprivation of liberty otherwise than when convicted of a criminal offence arise in connection with the detention of persons who may be a probable source of infection (s. 38, sub-s. 1 of the Health Act, 1947); imprisonment for debt under the provisions of the Enforcement of Court Orders Acts, 1926 and 1940, where a wilful refusal (as distinct from inability) to pay a debt in respect of which an instalment order has been made by the court, may be inferred. It may be noted that in the case of “civil disobedience” of this kind, the debtor can secure his release at any time by payment of the amount due. Similarly, a person imprisoned for contempt of court involved in disobedience to an order of the court can secure his freedom if the order is complied with or is waived by the party for whose benefit it is made. ( O’Dalaigh C.J., Keegan v. De Burca [1973] I.R. 223; Finlay P., The State (Commins) v. McRann [1977] I.R. 78).
I share the view expressed by Chief Baron Palles in In re Tanner M.P. (Unreported, Exchequer Division, 8th August, 1889, vide “Judgments of the Superior Courts in Ireland” (H.M.S.O., Dublin, 1903) p. 343) that the power vested in the courts to bind a person to keep the peace and/or be of good behaviour for a fixed period of time, with the requirement that he enter into a bond and provide sureties to ensure his compliance with the undertaking, is a beneficial and necessary jurisdiction, which, if exercised prudently and with discretion, does not give rise to any conflict with the constitutional guarantee of personal liberty.
A person who is the victim of abusive or intimidating or violent language or behaviour on the part of another person should be able to invoke the protection of the legal process without waiting for an actual assault to take place, and without having to embark on costly legal proceedings in search of an injunction. It seems to be reasonable and proper that a person who has been guilty of some form of outrageous behaviour or language should be asked to give guarantees in appropriate form that it will not be repeated in the future, and this has, in fact, been the course adopted by the courts for so many centuries that the origin of the jurisdiction is buried in the mists of the common law.
The liberty of the subject is, in my opinion, sufficiently safeguarded by the supervisory role exercised by the superior courts in respect of the orders made by courts of limited and local jurisdiction. Fitzgerald J. said in The Queen v. Justices of Queen’s Co. (1882) 10 L.R. Ir. 294 (at p. 303) that no appeal lay (at that time) to quarter sessions from any order requiring sureties “but as the jurisdiction is capable of being abused, it will be jealously watched over by the superior courts”.
In In re Tregarthen (1833) 5 B. & Ad. 678, and Reynolds v. Justices of Co. Cork (1882) 10 L.R. Ir. 1, and R. v. Little, ex parte Wise (1910) 26 T.L.R. 8, it was held that the court would not interfere with the discretion of the justices on application for certiorari or habeas corpus unless a clear case of misuse of the magisterial authority were established.
In Prickett v. Gratrex (1846) 8 Q.B.D. 1020 it was held by Williams J. that the amount of the security required should bear a relation to the quality and quantity of the offence, and Smith B. said in Re Willock (1829) 2 Law Rec. 422 that “the security required ought to be reasonable, with reference to the situation and circumstances of the party”.
A similar approach has always been adopted by the courts in relation to fixing bail pending trial, ever since the Bill of Rights provided in 1688 that “excessive bail ought not to be required” and a similar provision was incorporated into the U.S. Constitution by the 8th Amendment, ratified in 1798.
Accordingly, it appears to me that it is perfectly permissible, within the confines of our own Constitution, to continue in force the jurisdiction of the courts to bind persons to the peace and to be of good behaviour and to provide sureties for such undertaking, under penalty of committal to prison for a fixed and limited period if default is made in complying with the order of the court, and on the basis that the person concerned is to be released from detention upon complying with the order of the court at any time before the fixed period of detention has expired.
The making of any such order may be challenged by seeking leave to apply for relief by way of habeas corpus or certiorari, and may be quashed if the conditions of the order are found to be unnecessarily harsh or onerous or “unreasonable with reference to the situation and circumstances of the party” or appear to represent “a clear case of misuse of the magisterial authority”.
Applying these principles to the facts of the three cases now before the court, I find in the cases of Messrs. Gregory and Burke, each of whom is a prominent person in public life, a calculated decision was made to challenge the entire legal basis for the making of the order, and to disobey it on the assumption that there was no jurisdiction to make any such order. In neither case is the plea put forward that the recognizances fixed were of such an amount that it put it beyond the capacity of the plaintiffs to comply with the orders made, nor was it suggested that the term of imprisonment fixed in default of compliance was unusually harsh or oppressive.
In the case of John Cooney, he does put forward such a claim, i.e.,that requiring him to provide an independent surety in the sum of £1,000 was beyond his capacity and made it impossible for him to comply with the order. On this basis, having regard to the fact that this claim made on his behalf has not been controverted or challenged by the defendants, I think the High Court would in all probability have looked sympathetically on his application had it been proceeded with in the immediate aftermath of the making of the District Court order on the 10th January, 1989, and might well have quashed the order at that stage in exercise of its general discretion to intervene in the circumstances already referred to in the course of the present judgment.
In relation to all three applications, while the legal issues have been decided in favour of the defendants in the cases of Messrs. Gregory and Burke, and John Cooney has also failed in his constitutional challenge to the jurisdiction exercised by the District Justice, I have regard to the fact that many years have now elapsed since the orders were made in the District Court, and I have no information suggesting that the plaintiffs have not continued to keep the peace or be of good behaviour in the intervening period. The purpose of the District Court orders now appears to me to be spent, having regard to the fact that they were designed to control the conduct and behaviour of the plaintiffs for a limited period following upon the making of the orders, and in all the circumstances it seems to me that the correct course to take is to quash the said orders now, in all three cases by reason of the lapse of time since they were made, and in Mr. Cooney’s case by reason also of the finding made that in his case only the amount required of the surety could be regarded as excessive.
I therefore propose to grant an order of certiorari as sought in all three cases, for the said purpose.
Lavery v. Member in Charge, Carrickmacross Garda Station
, Supreme Court, February 23, 1999
Judgment delivered on the 23rd day of February, 1999, by O’Flaherty J. [Hamilton CJ, Barrington, Keane and Murphy JJ concurring]
1. On the 15th August, 1998, a bomb planted in a car exploded in the town of Omagh, Co. Tyrone, killing upwards of 29 people and injuring as many as 400.
2. Consequent on this terrorist outrage, the Oireachtas enacted the Offences Against the State (Amendment) Act, 1998. These proceedings are concerned to a degree with the operation and scope of s. 2 and s. 5 of the Act, in particular.
3. Section 2 provides:-
“(1) Where in any proceedings against a person for an offence under section 21 of [the Offences Against the State Act,] 1939, evidence is given that the accused at any time before he or she was charged with the offence, on being questioned by a member of the Garda Síochána in relation to the
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offence, failed to answer any question material to the investigation of the offence, then the court in determining whether to send forward the accused for trial or whether there is a case to answer and the court (or subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence may draw such inferences from the failure as appear proper; and the failure may, on the basis of such inferences, be treated as, or as capable of amounting to, corroboration of any evidence in relation to the offence, but a person shall not be convicted of the offence solely on an inference drawn from such a failure.
(2) Subsection (1) shall not have effect unless the accused was told in ordinary language when being questioned what the effect of such a failure might be.
(3) Nothing in this section shall, in any proceedings –
(a) prejudice the admissibility in evidence of the silence or other reaction of the accused in the face of anything said in his or her presence relating to the conduct in respect of which he or she is charged, in so far as evidence thereof would be admissible apart from this section, or
(b) be taken to preclude the drawing of any inference from the silence or other reaction of the accused which could be properly drawn apart from this section.
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(4) In this section –
(a) references to any question material to the investigation include references to any question requesting the accused to give a frill account of his or her movements, actions, activities or associations during any specified period,
(b) references to a failure to answer include references to the giving of an answer that is false or misleading and references to the silence or other reaction of the accused shall be construed accordingly.
(5) This section shall not apply in relation to failure to answer a question if the failure occurred before the passing of this Act.”
4. Section 5 is to similar effect except that it applies to a wider range of offences, viz, all offences under the Offences Against the State Acts, scheduled offences under the legislation and “an offence arising out of the same set of facts as these two types of offence.”
5. On the morning of 30th September, 1998, at 7.00 am Deaglan Lavery, the respondent, was arrested at his home by members of the Garda Síochána under s. 30 of the Offences Against the State Act, 1939, on suspicion of being a
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member of an unlawful organisation. He was brought to Carrickmacross Garda Station, Co. Monaghan.
6. His solicitor, Mr. James MacGuill, was contacted by the gardaí sometime prior to 8.00 am. He had a telephone conversation with the respondent and took his instructions and he deposed that he gave him general advices: in particular advices as to the new obligations which arise under the provisions of the 1998 Act. He wrote to the Superintendent of the Garda Síochána at Carrickmacross by fax requesting particulars of the allegations against the respondent and indicating that he would be prepared to have his interviews audio-visually recorded. Mr. MacGuill requested that if this was not possible that complete notes of any interview held with his client be taken and be made available to the respondent and himself prior to the end of Mr. Lavery’s detention.
7. Mr. MacGuill attended at Carrickmacross Garda Station at 3.15 pm that afternoon. There he met Superintendent Noel White who was in charge of the investigation. Mr. MacGuill deposed that prior to advising the respondent he wished to know whether or not he had received his fax of that morning and if there was a reply to it. Superintendent White said he had received the fax but that there was no reply to it. Mr. MacGuill pointed out the difficulty that he would now have in advising the respondent without knowing whether or not it
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was stated that any question considered material to the investigation of the offence had been put to the respondent and that he had failed to answer or had answered in a false or misleading way. The Superintendent indicated that at that point in time no such question had been put to the respondent. Mr. MacGuill enquired as to whether there was any evidence in existence which might require an explanation as is envisaged in s. 5 of the 1998 Act. The Superintendent said that there was no such evidence “at that stage”. Mr. MacGuill requested from Superintendent White the copies of any interview notes which had been taken. He refused to make them available. Mr. MacGuill said that his client was most anxious that any interview being held with him would be fully and completely recorded and that his preference would be that it should be audio-visually recorded. The Superintendent said that this would involve Mr. Lavery being transferred to another station which had those facilities; Mr. MacGuill indicated that Mr. Lavery would be prepared to consent to such a transfer.
8. Mr. MacGuill deposed that he then met with his client who told him that he had been interviewed throughout that day by detective gardaí, but that no notes whatever had been taken of the interviews. The interviews consisted of allegations being put to him, principally that he had stolen a vehicle which was subsequently used to plant the bomb in Omagh. He had consistently denied the
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allegations but this had not been recorded in any fashion – so the respondent asserted.
9. The respondent’s detention was extended at 11.40 pm on the 30th September for a further period of 24 hours commencing at 7.00 am on 1st October by certificate of Superintendent White.
10. The following day, 1st October, Mr. MacGuill again attended on Mr. Lavery at Carrickmacross Garda Station. He deposed that the respondent had said that notes were being taken of interviews but that these notes did not record all the questions and answers that had been given in the course of the interviews. Other matters being said during the interviews were not being recorded either. Mr. MacGuill said that Mr. Lavery had questioned the relevant detectives as to why this should be so and he was informed that there was no obligation on them to record everything that was said or all questions put and answered in the memo of interview. The respondent was requested and did sign these memos of interview.
11. At 9.30 pm on 1st October at a sitting of the Carrickmacross District Court (Judge Flan Brennan presiding) an application was made to extend the period of the detention of the respondent for a further period of 24 hours, pursuant to s. 30 (4) and (4)(A) of the Offences Against the State Act, 1939, as inserted by s. 10 of the 1998 Act.
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12. At the hearing in the District Court, Mr. MacGuill renewed his request to see the notes of the interviews. The Superintendent refused to hand them over and he claimed privilege in relation to them. The District Judge held with the State and made the order sought. To dispose of this point of a claim of privilege, privilege could not be claimed for these notes. Clearly either the Superintendent is entitled to withhold the notes until the end of the investigation or he is not. But this has nothing to do with privilege.
13. It should be said, too, that the Superintendent indicated during the hearing in the High Court that he was willing that the accused should see the notes and then would be free to consult once more with Mr. MacGuill, but the State took the stance that they should not be required to hand over the notes to the solicitor.
14. The point at issue in these proceedings is a net one. It is not in doubt that s. 30 permits the arrest and detention of suspected persons, where a member of the Garda Síochána suspects that a person has committed or is about to commit, or is or has been concerned in the commission of an offence under any section or sub-section of the Act of 1939 (including amending Acts) or an offence which, for the time being, is a scheduled offence for the purposes of Part V of the 1939 Act, or whom he suspects of carrying a document in relation to the commission or the intended commission of any such offence, or whom he
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suspects of being in possession of information in relation to the commission or intended commission of any such offence as aforesaid. Section 52 of the Act of 1939 permits a person who has been lawfully arrested under s. 30 to be questioned in respect of the matters specified in that section and makes it an offence to refuse to give the information sought, or to give information which is false or misleading. It is beyond debate that a person thus detained has a constitutional right to access to a legal advisor: see the Court’s judgments in Re Emergency Powers Bill , 1976 [1977] IR 159; The People .v. Shaw [1982] IR 1 and The People (D.P.P.) .v. Pringle 2 Frewen 57 . However, the right of access is one of reasonable access. As stated in the judgment of the Court of Criminal Appeal in the Pringle case, at p. 96:-
“This Court is satisfied that the Garda Síochána have a right to interrogate a person in lawful custody provided that such interrogation is carried out in a fair and reasonable manner. The Court is also satisfied, as has been clearly established, that a person in lawful custody is entitled to reasonable (EMPHASIS ADDED) access to his lawyer or solicitor. These two rights must, to some extent, be balanced and there are no grounds for holding that either right can or should be exercised to the unreasonable exclusion of the other.”
15. While there is no suggestion that Mr. MacGuill was not given reasonable access in the understood sense of that term, the complaint before the High
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16. Court, brought pursuant to Article 40, s. 4 of the Constitution, was that the new legislation required that the solicitor should be given access to the documents that he required and, once he was refused, the respondent’s detention became unlawful and he should be set free.
17. When the matter came for hearing before the High Court (McGuinness J.) on the evening of 2nd October, 1998, she held with the submissions advanced on behalf of Mr. Lavery and ordered his release. It should be noted, in passing, that while a complaint had been made at the garda station that no notes had been taken of the earlier interviews, this suggestion was not put to Superintendent White in the course of his evidence before the learned High Court judge.
18. The State appeals to this Court. The question for resolution is this: Does such deprivation, as the solicitor for the detained man suffered in this case mean that the detention of the respondent was rendered unlawful? Without any doubt, if a person in custody is denied blanket access to legal advice, or if he is subjected to ill treatment by way of assaults, for example, then that would render his detention unlawful.
19. However, the gardaí must be allowed to exercise their powers of interrogation as they think right, provided they act reasonably. Counsel for the State submitted to the High Court judge that in effect what Mr. MacGuill was
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seeking was that the gardaí should give him regular updates and running accounts of the progress of their investigations and that this was going too far. I agree. The solicitor is not entitled to be present at the interviews. Neither was it open to the respondent, or his solicitor, to prescribe the manner by which the interviews might be conducted, or where. The point of whether there were adequate notes taken of any interview might, or might not, be of significance if there was a subsequent trial.
20. I think all the members of the Court were struck by the apparent inconsistency in the State’s attitude: that although the detained man could see the notes of the interviews, his solicitor could not. While this may have been a somewhat incongruous course of conduct, is does not render the detention unlawful. It should be noted, too, that of course if a charge had followed on the detention both the accused and his legal advisors would have been entitled to all relevant documentation. This matter was explored comprehensively in the recent decision of this court in Ward . v. Special Criminal Court [1998] 2 ILRM 493.
21. I hold that the respondent’s detention was in accordance with law and that he should not have been released under Article 40 of the Constitution. I would, accordingly, reverse the order made by the learned High Court judge. It will be clear, as occurred in Re Zwann [1981] ILRM 333 , that the result of this
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appeal will not have any practical effect as far as the relevant investigation was concerned. As laid down in Zwann, while it is true that this Court will not entertain questions which are purely hypothetical or academic and will not hear complaints made by persons who lack a real interest or locus standi in the question raised, the matter raised on appeal is of real concern to the State and to those charged with the duty of applying the Offences Against the State Acts.
Minister for Justice, Equality and Law Reform v Ollsen
[2008] I.E.H.C. 37, Peart J.
Judgment Title: MJELR -v- Ollsen
Neutral Citation: [2008] IEHC 37
High Court Record Number: 2006 166 EXT
Date of Delivery: 20 February 2008
Court: High Court
Composition of Court: Peart J.
Judgment by: Peart J.
Status of Judgment: Approved
Judgment of Mr Justice Michael Peart delivered on the 20th day of February 2008:
The surrender of the respondent is sought by the Kingdom of Sweden pursuant to a European arrest warrant issued there on the 5th August 2006. This warrant was endorsed for execution by order of the High Court on the 19th December 2006, and the respondent was duly arrested here on foot of it on the 5th July 2007. As required by s. 13 of the European Arrest Warrant Act, 2003, as amended, he was brought before the Court following his arrest and was remanded from time to time pending the hearing of this application for an order of surrender under the provisions of s. 16 of the Act.
His surrender is sought, according to the applicant, so that he can be prosecuted in Sweden in respect of four offences. In respect of these offences, the issuing judicial authority has in paragraph (e) of the warrant ticked two categories of offences, namely ‘arson’ and ‘organised or armed robbery’ in order to indicate that the offences for which his surrender is sought are offences within the categories of offences referred to in Article 2.2 of the Framework Decision, and therefore offences in respect of which double criminality or correspondence does not need to be verified. Even if these boxes had not been ticked to so indicate, there is no doubt that the alleged acts of the respondent which are said to give rise to these four offences would, if done in this jurisdiction, have given rise to offences here. No issue has been raised in relation to double criminality/correspondence in the Points of Opposition filed and delivered on behalf of the respondent.
No issue has been raised in relation to the identity of the respondent, and the Court is in any event satisfied, as it must be, that the person who was arrested and brought before the Court following arrest on the 5th July 2007 is the person in respect of whom this European arrest warrant has been issued.
The respondent has raised a number of objections to the making of an order for his surrender, but subject to reaching conclusions on these objections, I am satisfied that there is no reason to refuse surrender under sections 21A, 22, 23 or 24 of the Act, and I am satisfied also that his surrender is not prohibited by the provisions of Part III of the Act, or the Framework decision.
Points of Objection:
1. The Attorney General Scheme:
Under this heading of objection the respondent submits that this State is in breach of one of its obligations under the Framework Decision, namely to provide the respondent with an adequate and fair means to pay the reasonable legal and other costs incurred in meeting the application for his surrender, and in this regard it is submitted that the provision or availability of the Attorney General Scheme (“the Scheme”) as a means of discharging his legal costs is inadequate to meet that obligation. Accordingly it is submitted that this Court should not entertain the application for his surrender to the requesting state, because by virtue of the provisions of s. 10 of the Act a person may be surrendered only where the provisions of the Act are met, and where the State’s obligations under the Framework Decision are complied with.
Derek Kenneally SC submits on behalf of the respondent that it is accepted by the applicant that the respondent is not a person of sufficient means to discharge his own legal costs, and that the applicant accordingly is obliged to provide him with legal representation which is adequate and fair; and that a breach of the ‘equality of arms’ principle arises where the respondent can have his legal costs discharged only under the Scheme, given its nature, namely an ex gratia scheme. Indeed the applicant has not sought to dispute that the applicant’s means are insufficient to enable him to provide his own representation on this application.
It is submitted that the Scheme takes no account of the actual costs and other fees incurred by the respondent in his opposition to the order sought, since the level of fees discharged under the Scheme is based on the fees paid to the applicant’s Counsel, and that it is in the nature of an ex gratia payment provided on the basis of expediency and at the absolute discretion of the Attorney General.
In this regard the respondent has stated that for the purpose of resisting this application for his surrender he has been required to obtain legal opinion and an affidavit from a Swedish lawyer in relation to Swedish law, without any guarantee that the cost of so doing will be met under the Scheme, and in circumstances where, by contrast, the applicant can obtain such opinions either at no cost at all or at a cost which will be met out of public funds. This is said to create an unfairness which breaches the principle of equality of arms, particularly in circumstances where the respondent’s solicitor has sought an undertaking that his reasonable costs will be discharged and where the applicant has refused to provide such an undertaking. The respondent submits that he is unfairly disadvantaged as a result.
The respondent submits that this State is in breach of its obligations under Article 11.2 of the Framework Decision, as well as Article 6 of the European Convention on Human Rights (“the Convention”), and Articles 40.4.1 and 40.3.1-2 of Bunreacht na h-Eireann (“the Constitution”).
Article 11.2 of the Framework Decision provides:
“11.2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State.” (my emphasis)
Section 13 (4) of the Act provides:
(4) A person arrested under a European arrest warrant shall, upon his or her arrest, be informed of his or her right to—
consent to his or her being surrendered to the issuing state under section 15,
obtain, or be provided with, professional legal advice and representation, and
where appropriate, obtain, or be provided with, the services of an interpreter. (my emphasis)
Mr Kenneally has referred also to the provisions of Article 6.3 of the Convention which, inter alia, provides that “everybody charged with a criminal offence has the … minimum right … to have adequate time and facilities for the preparation of his defence [and] to defend himself in person or through legal Counsel of his or her choosing or, if he has not sufficient means to pay for legal assistance to be given it free when the interests of justice so require …” (my emphasis)
The Scheme itself has been produced to the Court, and it is relevant to set out some of the contents of the document:
“6. The costs payable to the solicitor, and the fees payable to counsel are at most those which would be payable in a case governed by the Criminal Justice (Legal Aid) Regulations current for the time being, applied mutatis mutandis”
It provides also that where the Court makes a recommendation for payment of costs and fees under the Scheme, “the Attorney General is not bound by the recommendation of the Court”.
Mr Kenneally submits that such a discretionary basis of payment cannot be an adequate discharge by the State of its obligations pursuant to the Framework Decision, especially where a respondent has no remedy available to him/her if the Attorney General was to exercise his absolute discretion to refuse to make a payment even though the Court had made a recommendation in that regard.
He has referred to the judgment of Gannon J. in the High Court and that of O’Higgins CJ in the Supreme Court in State (Healy) v. Donoghue [1976] IR 325, and to the judgment of the European Court of Human Rights in Airey v. Ireland, 9th October 1979 regarding the State’s obligation to provide legal aid in particular circumstances, and it is submitted the Scheme is not such a system of legal aid given its ex gratia and non-statutory nature.
It is submitted that payment under the Scheme is made only in respect of actual court time and takes no or no adequate account of time spent by Counsel and solicitor in the preparation of the case, and in this way a respondent is disadvantaged in a way which does not hamper the lawyers acting for the applicant, who has all the resources of the State at his disposal. It is submitted that the rate of such payments as are made falls far short of the economic cost that work. James MacGuill, the respondent’s solicitor, has stated in an affidavit that it is his experience over many years of practice as a solicitor that the level of payment made under the Scheme falls far short of what would be assessed by the Taxing Master for the same work. He states at paragraph 9 of that affidavit:
“… It is a particularly pernicious aspect of the Attorney General’s Scheme in that lawyers are forced into a position of either only carrying out work for which they will be paid, to the obvious detriment of their client, or discharging their professional obligations fully to their own economic cost.”
In support of these submissions the respondent has also filed an affidavit sworn by a Legal Costs Accountant, Cormac Breathnach. He avers to the fact that in another case (Aamond No.2) where the respondent successfully resisted an application for his surrender, costs were taxed pursuant to the order of the High Court, the respondent’s solicitor’s costs being taxed in the sum of €20,428.55 plus VAT, Senior Counsel’s fees in the sum of €12,000 plus VAT, and Junior Counsel’s fees in the sum of €10,333.33 plus VAT.
Mr Breathnach states that if senior counsel’s fees were discharged under the Scheme, they would have been in the sum of just €4000, with the same sum being paid to the solicitor, and two thirds of that sum to junior counsel, thereby creating a considerable shortfall between what is paid under the Scheme and what was achieved under taxation. He considers the shortfall in such cases to be in the region of about 75%.
The solicitors acting for the respondent have corresponded with the Chief State Solicitor’s office in relation to these concerns. The Chief State Solicitor has noted in that correspondence that the respondent has not sought to have his costs discharged under the Scheme, and has on a couple of occasions invited the respondent to do so, and has made the point that neither the Scheme nor the statutory Legal Aid Scheme are intended to provide taxed costs, but that payments under the Scheme can in certain cases include the cost of expert witnesses, though the point is made also that this has not arisen before in the context of a European arrest warrant.
The point is made in a letter dated 21st September 2007 that the recoverability of expert witness expenses will depend on the nature of the evidence and legal argument presented, and it is denied that payment under the Scheme is confined to court time only. It is stated in that letter also that the Scheme, if applied for, fulfils the State’s obligations under the framework Decision and that it is adequate to afford the respondent the opportunity to contest the application for his surrender.
In the event that this Court considers this State not to be in breach of its obligations, then the respondent seeks a declaration that the Framework Decision and the Act are unconstitutional and in breach of the Convention.
Because the constitutionality of the Act and the Framework decision is raised by the respondent on this application, the Attorney General was put on notice of the application. In fact, Plenary proceedings are issued in order to address the constitutionality issue.
David Barniville SC has appeared on behalf of the Attorney General and it is convenient to deal with his submissions on this point before dealing with the other points of objection raised by the respondent. Shane Murphy SC for the applicant makes essentially the same submissions in relation to this point of objection.
Mr Barniville submits that the right of the respondent to a European arrest warrant to be provided with professional legal advice and representation arises only from the provisions of s. 13(4) of the Act by which the State has given effect to the right in that regard specified in Article 11.2 of the Framework Decision already referred to, and not from the Constitution. It is not a right, it is submitted, which is guaranteed under the Constitution or the Convention since a respondent is not engaged in the defence against a criminal charge, but simply meeting an application for his surrender from this State to another State. As such, the situation of a respondent is to be distinguished from an accused person facing charges.
In so far as the respondent has relied upon the judgments in State (Healy) v. Donoghue [supra] Mr Barniville submits that the principles derived therefrom are not simply transferable to a respondent under a European arrest warrant. However, he submits also that were the two situations to be considered analogous, it is nevertheless the situation that the right to legal aid is not to be seen as an open-ended right for any representation which the respondent might choose to have, and that it is accepted, even in relation to legal aid, that an accused may be assigned a solicitor from the ‘legal aid panel’, being solicitors who have thereby indicated that they are prepared to take on such cases, and be remunerated under the provisions of that scheme. In this regard, Mr Barniville has referred to the judgment of Barr J. in The State (Freeman) v. Connellan [1986] IR. 433.
The Court was also referred to the judgment of Laffoy J. in Carmody v. Minister for Justice [2005] 2 ILRM 1 in which the learned judge found that there was no breach of constitutional rights where only a solicitor was assigned, rather than solicitor and counsel. During the course of her judgment, Laffoy J. stated also that the fact that there may in terms of lawyers be a numerical imbalance or divergence of legal qualification between the prosecution team and the defence team, does not disadvantage the accused person to the extent that his constitutional guarantee to a fair trial is imperilled, unless it can be shown that the lawyer defending him cannot do so effectively.
Accordingly it is submitted that in the present case there ahs been no breach of any constitutional right.
In so far as the respondent objects to his surrender on the basis that certain rights under the Convention will be infringed, the applicant and the Attorney General submit in relation to this particular point of objection (i.e. the Attorney General Scheme) that it is clear that as far as Articles 3, 5 and 8 of the Convention are concerned, none is engaged in relation to provision of legal advice and representation. In so far as these Articles may be relevantly argued in relation to other points of objection, they are dealt with later in relation to same. In my view, it is unnecessary to dwell on those particular articles at the moment. They are not relevant to this issue under consideration.
But in relation to Article 6 of the Convention, Mr Barniville has submitted that the surrender procedure under a European arrest warrant does not equate to a trial for an offence, and that as such, Article 6 is not engaged. But, he submits, even if it were to be found to be so engaged, the minimum rights guarantee is met by the provision of legal assistance under the Scheme, and the right guaranteed is not to have provided to the respondent the same level of representation as the applicant, and that there are no mandatory levels of such assistance. He has referred to a number of judgments of the European Court of Human Rights in support of this submission. He refers also to the judgment of Murray CJ in Attorney General v. Parke, unreported, Supreme Court, 6th December 2004 wherein he stated that the inquiry by the Court in an extradition application is not adversarial in nature, but rather is ‘sui generis’, and not in the nature of a criminal trial.
In any event, Mr Barniville submits that the Scheme by reference to its own terms is a method of payment of reasonable legal fees for persons who cannot be considered able to pay for their own advice and representation, and that it is a reasonable payment in applications on foot a European arrest warrant, and the use of the Scheme in such applications cannot be seen to constitute a breach of minimum rights under Article 6 of the Convention, even if that Article is engaged in such applications at all. He submits that it is simply inappropriate and wrong to compare the level of fees gained upon taxation of costs with payment under the Scheme. I agree that such a comparison is irrelevant, even though I accept as a fact that in most if not all cases, the costs achieved on taxation will most likely exceed by a considerable margin those paid under the Scheme.
Mr Barniville points to the fact in any event that in the present case the respondent has declined to have his fees met under the Scheme, even though the applicant has considered that he meets the criteria for its application, and has invited the applicant to apply for a recommendation in that regard. He points also to the fact that the respondent has nonetheless had available to him the expert services of an experienced solicitor and both senior and junior counsel, and clearly has suffered no disadvantage. He submits that in such circumstances the respondent lacks ‘locus standi’ to raise the issue on this application.
I prefer not to reach conclusions on this point merely on the locus standi point.
However, it seems to me that there may well be merit in that point, and that a respondent to an application to surrender would have to show not simply that he had no means of obtaining and paying for his own legal costs, but also establish that he had been unable to obtain the services of a solicitor who was prepared to take the case on the basis of being remunerated under the Scheme. Such a respondent would necessarily stand before the Court with no lawyer to represent him, and the Court might in such circumstances be obliged to delay the hearing of the application for his surrender until such time as that legal advice and representation was provided. But that is entirely different from saying that the State is in breach of its obligations because the lawyers who have been engaged, on whatever basis, are unhappy with the level of their remuneration under the Scheme.
I am fully cognizant of what is probably the reality in the present case, and that a deliberate decision was taken at the outset by the present solicitor and counsel not to seek to have their fees discharged under the Scheme, lest by so doing the respondent would indeed be found to lack locus standi, or at least that their arguments and submissions might be considered to be weaker.
I am presuming, and I suggest safely so, that by not seeking a recommendation for the Scheme in circumstances where if they done so it would certainly have been granted, the respondent’s lawyers are preferring to run the risk that they will not recover any costs in relation to this case should none of the points of objection succeed, and so that this point can be the more easily argued.
The Court cannot blind itself to the fact that for many years now lawyers have found the Scheme unsatisfactory both in terms of the level of remuneration thereunder, its discretionary and non-statutory nature, and the speed, or perhaps more correctly the lack of it, by which payment is actually received. But while there may be disquiet in relation to the way the Scheme operates, the fact is that every day of the week lawyers appear before the High Court on applications such as Habeas Corpus, Bail, EAW applications, and judicial review, and those Counsel are always instructed by solicitors. In other words there appears to be no shortage of lawyers in both branches of the profession who are prepared to act for clients on the basis of remuneration under the Scheme, in spite of what they perceive as its shortcomings. Until that situation ceases it appears to me that the Scheme works in the sense that it ensures that persons who have an entitlement to legal representation before a Court, whether in a criminal matter or otherwise, and a matter such as the present case, are professionally represented. Indeed in the very large number, perhaps over a hundred, of EAW cases which I have dealt with since 1st January 2004, when the Act first came into effect, I have not known a case in which at the very earliest stage following arrest a respondent has been unable to obtain, or even had difficulty obtaining the services of a solicitor with experience in this area of work, and on all occasions also Counsel have been retained. I can think of no such case.
It seems to me that if lawyers wish to have the Scheme improved or even replaced, there are channels available within which that objective can be argued for, and possibly advanced, but this Court is not the appropriate forum in which to advance that cause on the basis that a respondent’s constitutional and Convention rights are infringed by the level of fees payable under the Scheme, and by attempting to establish that the State is in breach of its Framework Decision obligations, or its constitutional and Convention obligations.
However, having said that much I will retu8rn to some of the issues raised.
In my view, a respondent has no absolute right under either the Constitution or the Convention to the services of the solicitor and counsel of his choice, or simply of a solicitor of his choice. As it happens in this case, the respondent has the lawyers of his choice. He has been at no disadvantage whatsoever in having his objections raised and argued fully. In my view the basis of that retainer is of no relevance.
The State’s obligation under the Framework Decision, as reflected in and given effect to by s. 13(4) is to ensure that on the hearing of the application for surrender the respondent has either had the opportunity to obtain professional legal advice, or where he cannot afford so to do, be provided with such advice and representation. The applicant and the Attorney General are in my view correct when they submit that the right of the respondent in this regard derives not from the Constitution or the Convention, but from the State’s obligations under the Framework Decision. Even if this was not the case, and the right arises under the Constitution, I am satisfied that the availability of the Scheme is a sufficient of any such obligation, since it can be seen to provide successfully a means by which relevant impecunious litigants can have representation before the Court. Different considerations would arise if for whatever reason the Scheme did not secure that representation. Lawyers from both branches of the profession are free to choose not to take a case on the basis of that form and level of remuneration. But there is no evidence that such a choice is made by so many that it has become ineffective as a means of achieving legal representation in cases to which the Scheme applies for those entitled to it.
As far as Article 6 of the Convention is alleged to be breached by the State by the application of the Scheme, I should for the sake of completeness refer to the judgment of the European Court of Human Rights in Mamatkulov v. Turkey, ECHR, 4th February 2005 which was referred to in argument before me. In that case, the extradition of the applicant was sought from Turkey to Uzbekistan, and it was argued, inter alia, on behalf of Mr Mamatkulov that the extradition application heard in Turkey was an unfair hearing and in violation of the applicant’s rights under Article 6 of the Convention. The facts of the case are of course completely different to the present case, but it is important to note that in its judgment, the Grand Chamber, in finding no such violation, stated at paras 82-83:
“The Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6.1 of the Convention ……… Consequently, Article 6.1 of the Convention is not applicable in the instant case.”
This Court is obliged to have regard to the jurisprudence of that Court, and I am satisfied therefore, even though I have reached conclusions in any event on the merits of the issue raised, that the respondent is not entitled to rely upon the rights guaranteed in Article 6 for the purpose of raising objection to an order for his surrender.
2. Warrant has been issued for the purpose of continuing an investigation in Sweden, and not for the purpose of prosecuting the respondent for the offences in question:
Before addressing the applicant’s submissions under this point of objection, I should refer to the fact that in the opening paragraph of the warrant the prescribed text for the warrant has been followed exactly by stating that the surrender of the respondent is requested “for the purpose of conducting a criminal prosecution….”
Relevant also are the provisions of s. 21A of the Act, as amended, namely:
21A.-(1) Where a European arrest warrant is issued in the issuing state in respect of a person who has not been convicted of an offence specified therein, the High Court shall refuse to surrender the person if it is satisfied that a decision has not been made to charge the person with, and try him or her for, that offence in the issuing state. (my emphasis)
(2) Where a European arrest warrant is issued in respect of a person who has not been convicted of an offence specified therein, it shall be presumed that a decision has been made to charge the person with, and try him or her for, that offence in the issuing state, unless the contrary is proved.” (my emphasis)
It is this presumption which the applicant seeks to rebut by reference to an affidavit as to Swedish law sworn by a Swedish lawyer, Hans Ostberg. He is the respondent’s lawyer in Sweden who has been appointed by the Swedish court to represent him in relation to these alleged charges.
The thrust of this affidavit is that the prosecutor in Sweden has not as yet made any decision to prosecute the respondent, and that his surrender is sought in reality so that a process of investigation and interrogation of the respondent can continue in order to reach a point when it can then be decided whether or not a decision to prosecute him should be made.
Mr Ostberg states that in September 2007 he had a telephone conversation with the prosecutor responsible for preparing the prosecution case against the respondent, namely Ann-Christine Maderud, and that as a result of that conversation the situation is that the status of the respondent at the moment is that “the respondent is on probable cause suspected of committing serious crimes and the court has decided that the respondent should be taken into custody”. He goes on to state that he is satisfied that the respondent’s surrender is not being sought for the purpose of standing trial, and that no decision has yet been made that he should stand trial. Rather, he states, the surrender is sought “only for the purpose of a continuing investigation and not for the purpose of the respondent being charged with or standing trial in respect of any offence…”.
Ms. Maderud has sworn a replying affidavit in relation to what Mr Ostberg has stated. She states that under Swedish law a pre-trial investigation is initiated to find out who is reasonably suspected of the crime and if there is sufficient evidence to prosecute him. That pre-trial investigation is initiated by the police, and as soon as a person is “reasonably suspected of the crime” the prosecutor takes over the case where a serious crime is involved, as in this case. She goes on to explain that “it is the prosecutor’s duty to prosecute everyone who is suspected of having committed a crime, on the prosecutor’s judgment that there is enough evidence to allow the court to find the suspect guilty”.
She then states that on the 2nd August 2006 the District court found the respondent to be suspected “on probable cause” of the offences in question, and ordered his arrest since he was not in court on that date, although he was legally represented at the court by a colleague of Mr Ostberg who on the previous day had been assigned as the respondent’s public defender free of charge. She states that on 29th August 2006 Mr Ostberg, who is in the same law firm as that colleague, was assigned to replace him, and Mr Ostberg has since continued to represent him.
At paragraph 5 of her affidavit she explains further the procedure under Swedish law as follows:
“The next step in the procedure requires the presence of the accused. Under Swedish law the investigation process can only be formally concluded when the accused is present. The accused must be presented with the information obtained in the investigation and given an opportunity to reply to same. However no formal charges can be laid until the conclusion of the investigation as the prosecutor is legally incapable of arriving at a final decision to prosecute until they meet the accused and hear his objections and perhaps obtain additional evidence. This is an essential part of the process and is designed to protect the accused’s rights. While there is an intention to prosecute on the basis of the available evidence, the requested person has at all material times been abroad and has not been available to be interviewed and the procedure cannot be finalised in his absence. The respondent’s surrender is therefore sought for the purpose of conducting a criminal prosecution in respect of the above serious offences, although by Swedish law a final decision to prosecute can only be taken if the above procedure is followed and the respondent’s rights protected ………”. (my emphasis)
At a later stage she states that the Kingdom of Sweden only issues European arrest warrants for the purpose of either conducting a criminal prosecution or executing a custodial sentence or detention order, and that the European arrest warrant (i.e. in the present case) is issued for the former purpose.
It is on these facts that Mr Kenneally submits that the position is clear, namely that as of the present time the decision has not been made, in the words of s. 21A of the Act, as amended, “to charge the person with, and try him or her for, that offence in the issuing state”, and that the presumption contained in s. 21A (2) has been rebutted.
Mr Kenneally has also referred to a letter dated 21st September 2007 from the Chief State Solicitor’s office, received by the respondent’s solicitors, wherein it is stated that in relation to these concerns raised by the respondent as to the purpose of the warrant clarification has been sought, but had not been received as of the date of that letter. That letter confirmed that “if the request is not one for a trial that you and the Court will be informed that the application will not be proceeded with.”
In Mr Kenneally’s submission the affidavit of Ms. Maderud has confirmed the position in the respondent’s favour. He points to the fact that no further confirmation was received from the Chief State Solicitor’s office in the form of the letter promised, and that this fact also confirms that the position is as submitted by the respondent in spite of the contents of Ms. Maderud’s affidavit, namely that his surrender is sought only so that he can be further questioned.
Shane Murphy SC for the applicant has submitted that the affidavit of Ms Maderud makes it clear that the Swedish prosecutor intends to prosecute the respondent if he is surrendered, and that the only reason why the final decision has not been made in that regard is that Swedish law prevents that decision until such time as the respondent is physically present before the Court there. He points to the fact that Ms. Maderud has stated that it is intended that he shall be prosecuted, and in that regard he refers to the provisions of s. 10 of the Act which provides:
10.—Where a judicial authority in an issuing state duly issues a European arrest warrant in respect of a person—
(a) against whom that state intends to bring proceedings for an offence to which the European arrest warrant relates, or
(b) …
(c) …
(d) …
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing state. “ (my emphasis)
He submits that in the light of Ms. Maderud’s affidavit the presumption in s. 21A(2) of the Act has not been rebutted, and urges the Court that in line with the well known Pupino decision of the European Court of Justice requiring a conforming interpretation to be given to the provisions of the Act, this Court should be satisfied that the position of the respondent under the law of Sweden is that the prosecutor there intends to prosecute the respondent, and that he will face a trial if surrendered.
In my view the opening paragraph of the warrant makes it clear first of all that the surrender is sought for the purpose of conducting a prosecution. It says so directly, and the fact that this paragraph is part of a prescribed text for the warrant cannot be regarded as being simply formulaic. This Court is entitled to presume, based on the mutual trust and confidence which underpins the arrangements for the European arrest warrant under the Framework Decision, that the issuing judicial authority in Sweden would not issue such a warrant in bad faith and for reasons other than the reasons provided for in the Framework Decision. The presumption contained in s. 21A (2) of the Act must be seen as based on that mutual trust and confidence, and in my view has not been rebutted simply be means of the averments made by Mr Ostberg in his affidavit.
It is also the fact that it is inevitable, in fact it is one of the very reasons for the introduction of a uniform system of surrender between Member States in order to simplify the process and remove the previous complexities which existed in relation to extradition, that the criminal procedures of various Member States will be different in many respects. It is unnecessary that this Court should examine in minute detail the criminal procedures in the Kingdom of Sweden. The system there is very different to that which pertains here. But Ms. Maderud has in my view made it clear that under the laws of Sweden the respondent is a person in respect of whom that state intends to commence a prosecution for the offences in question. That clarification or explanation was not necessary, given the opening paragraph of the warrant to which I have already referred but I can understand why the applicant sought additional information in order to put the matter beyond the doubt raised in the respondent’s mind. It has made it clear that the respondent while in Sweden before his departure to this jurisdiction was a person who had been found to be a suspect with probable cause. Here we might describe that person as being one against whom the prosecution was of the view that there was a prima facie case. The fact that under the law of Sweden the charge cannot be actually laid in a formal sense until he is returned to be present at the Court cannot under the Framework Decision be interpreted as meaning that a decision to prosecute and try him for the offences has not been made. It is not open at this stage for the respondent to say that he is only sought so that he can be questioned as part of the investigation. It is clear that the process has advanced well beyond that point, and to the point that he will, subject to being afforded his rights to object when again before the District court, be prosecuted and tried for these offences. To find otherwise would be to ignore the reality which has been made clear in that affidavit.
In my view, even ignoring the presumption in s. 21A(2), the position has been established so that the Court can be satisfied that a decision to prosecute the respondent and to try him has been made by the issuing authority. There remains only the formality of giving effect to that decision after the respondent has been surrendered and brought back before the District Court in Sweden so that the decision can be put into effect in accordance with the criminal procedure rules applicable there. It would run counter to the intention and purpose of the Framework Decision, as given effect to her by the Act, if this Court was to refuse to order his surrender.
3. The vagueness of the warrant in relation to its purpose is a bar to surrender:
This point of objection raises no issue which I have not dealt with in the preceding point of objection, and I need add nothing further in relation to it.
4. No possibility of bail under the laws of Sweden should the respondent be surrendered:
The respondent submits that given the fact that the law of Sweden contains no provision for what is known in this jurisdiction as ‘bail’ there are reasonable grounds for believing that his constitutional right to liberty will be breached if surrendered to Sweden, and that accordingly his surrender is prohibited by the provisions of s. 37 of the Act.
The factual basis for this point of objection is contained in the said affidavit of Mr Ostberg already referred to. In that affidavit, he states that he has acted for numerous defendants who have been held in custody for substantial periods of time without ever being charged or put on trial in Sweden. He says also that the law in Sweden does not permit the admission of a person suspected of or charged with criminal offences to bail, and that bail as it is known here does not exist in that country.
He states that in Sweden it is permissible that a person be held in custody for a period of unlimited duration. Later in that affidavit he states that there will be a court hearing every two weeks in relation to the detention of the detainee, and that on each occasion the prosecutor must present facts to the court as to why an investigation has not yet concluded. He states however that it is his experience as a lawyer that where a person is accused of serious crimes the prosecutor is routinely given the right to continue the investigation and interrogation of the detainee, and that it is not unusual for such investigations can take between two and four months.
Ms. Maderud responds to these averments in her affidavit to which I have already referred in another context. Ms. Maderud refers to the fact that Sweden is a party to the European Convention on Human Rights and Fundamental Freedoms, and that the Swedish court’s consideration as to whether a person’s continued detention is justified will consider whether that detention is proportional. She quotes a relevant provision of the Criminal Code of Procedure which stipulates that detention may occur only “if the reason for detention outweighs the intrusion or other detriment to the suspect or some other opposing interest”.
She accepts that there no “bail system” as known in this jurisdiction, but that the Swedish system of release subject to travel restrictions and the obligation on the accused person to report to the police, is a similar system to ‘bail’, except that there are no financial conditions attached.
She states that this system conforms to the requirements of the Convention, and that there have been no decisions of the European Court of Human rights which have criticised this system. She states also that the system of release in Sweden is that the person concerned is released “merely on his promise to comply with conditions”, and that no bail monies are required. It would appear also that the criteria used by the court in determining whether the accused should be released are whether there is a risk of flight, a risk that evidence might be destroyed, or that the accused might commit further crimes.
On behalf of the applicant, Mr Murphy has submitted that Mr Kenneally has looked only at the worst possible scenario for the respondent as far as the likelihood of detention is concerned, and that as Ms. Maderud has stated, there is the possibility that the respondent could be released under the law which she has explained, if the court considers that relevant criteria are met. He submits that the system for pre-trial release can be equated to ‘bail’ here except that no financial conditions are imposed as they are here.
I am completely satisfied that there is no basis for the respondent’s contention that if surrendered he will not be entitled at least to apply for pre-trial release, and that his surrender therefore ought to be refused under s. 37 of the Act. It will be necessarily for the court in Sweden to determine his entitlement to such release and any conditions which may be appropriately applied. It is clear that under Swedish law there is the possibility for pre-trial release subject to appropriate conditions. In fact in as much as there is no possibility for the court there to impose financial conditions to that release, the regime there can be seen as being less stringent than the bail regime with which we are familiar here, and under which persons may still remain in custody in circumstances where, although considered suitable for bail release, the financial aspect of those conditions cannot be met.
The Court has been referred to no case against Sweden at the European Court of Human Rights in which the regime in Sweden has been subjected to criticism, much less an adverse finding. In any event, it is a fact that Sweden has been designated for the purpose of s. 3 of the Act as being a country with which this State will operate the surrender arrangements under the European arrest warrant. That implies that this State recognises that the relevant criminal justice procedures conform to, at the very least, the minimum standards required by the Convention.
This ground of objection must therefore fail.
5. If surrendered the respondent will be held in custody and incommunicado for an indefinite period of time:
This ground of objection must also fail. It was suggested by reference to Mr Ostberg’s affidavit that if held in custody pending his trial in Sweden the respondent may under the law of Sweden be held incommunicado while the investigation process continues for an indefinite period, and that accordingly he could be denied contact with family members and friends. It is submitted that such conditions constitute a breach of Article 8 of the Convention which guarantees that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
What is put forward by Mr Ostberg is a mere possibility in the sense that there appears to be a law which permits the court to direct that a person be held incommunicado. Ms. Maderud states in reply that the Court will decide whether the prosecutor is permitted to limit the accused’s possibilities to communicate with other persons, and instances that he may be restricted as to what newspapers he can read, whether he may watch television, communicate by letter or use the telephone. But she goes on to state that prosecutors frequently allow accused persons to meet with family members and friends in the presence of police, but with a condition that he does not discuss the alleged crime, but that there is strict court control in relation to the accused’s rights.
The respondent has not satisfied the Court that there is reason to believe that his constitutional or Convention rights will be breached in this regard if he is surrendered. While pre-trial procedures in Sweden are clearly different to what exists here, there is no evidence to establish in any way that minimum standards of rights’ protection are not met. He has put forward an exaggerated spectre, divorced from reality, of someone who will be held in custody indefinitely for interrogation and incommunicado without even the possibility of bail, while an open-ended investigation continues. There is no basis for such an extreme suggestion on the evidence before this court.
His surrender is not prohibited by anything submitted on this point of objection.
I am satisfied that the Court is required to make the order sought and I will so order.
Carmody v Minister for Justice, Equality and Law Reform
[2009] IESC 71
JUDGMENT of the Court delivered by Murray C.J. on the 23rd day of October 2009
In these proceedings the appellant claims to have been denied a constitutional right to legal aid in criminal prosecutions before the District Court because there is no statutory or other means by which he can seek to have free legal representation which includes counsel as well as solicitor even though the circumstances pertaining to the prosecution brought against him are such that representation by solicitor and counsel may be essential in the interests of justice.
Two remedies have been sought by the plaintiff and appellant (hereafter the appellant) namely (a) a declaration that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is invalid as being repugnant to the Constitution and (b) a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Criminal Justice (Legal Aid) Act 1962 is incompatible with the obligations of the State under the provisions of the Convention.
Section 2
Section 2 of the Act of 1962 provides as follows:
(1) “If it appears to the District Court –
(a) that the means of a person charged before it with an offence are insufficient to enable him to obtain legal aid, and
(b) that by reason of the gravity of the charge or of exceptional circumstances it is essential in the interests of justice that he should have legal aid in the preparation and conduct of his defence before it, the Court shall, on application being made to it in that behalf, grant in respect of him a certificate for free legal aid (in this Act referred to as a legal aid (District Court) certificate) and thereupon he shall be entitled to such aid and to have a solicitor and (where he is charged with murder and the Court thinks fit) counsel assigned to him for that purpose in such manner as may be prescribed by regulations under section 10 of this Act.
(2) A decision of the District Court in relation to an application under this section shall be final and shall not be appealable.
At this point it is convenient to refer to the general scope and ambit of that section.
It confers jurisdiction on the District Court to grant a person of insufficient means legal aid “in the preparation and conduct of his defence”.
That legal aid can only be granted if it appears to the District Court “that by reason of the gravity of the charge or of exceptional circumstances, it is essential in the interests of justice” that the legal aid should be granted.
With one exception, the legal aid granted is confined to legal representation by a solicitor only for the preparation and conduct of the defendant’s defence.
The only exception specified in the section is that where the accused is charged with murder, and the Court thinks fit, counsel may be assigned in addition to a solicitor.
The exception is effectively redundant as a result of the abolition of the then existing preliminary examination procedure in the District Court for persons charged with all indictable offences, as a consequence of the Criminal Justice Act 1999.
Otherwise, whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require the District Court has no power or discretion to consider whether legal aid should be granted for the purpose of assigning counsel to prepare or conduct a defendant’s defence. The reference to counsel in this judgment is a reference to a practising barrister.
Background Facts
The appellant was charged with 42 offences before the District Court all of which related either to the alleged wrongful movement of cattle, failure to keep a register of certain cattle or failure to deliver an identity card in relation to cattle. In general terms the offences are alleged to be contrary to various regulations intended to protect cattle from the disease of brucellosis or prevent the spread of the disease.
When he appeared before the District Court on foot of the summonses served on him the appellant was allowed legal aid and he engaged as his solicitor Mr. Mannix.
Thus it has been decided by the District Court that the appellant does not have the means to pay for legal representation and that it is essential in the interests of justice that he be granted criminal legal aid for that purpose, namely a solicitor. These rulings by the District Court are not put in issue by the State.
Mr. Mannix is a solicitor of 26 years experience particularly in the field of criminal law having been on the legal aid panel for the representation of persons in the District Court and other courts for some 25 years. He practised on his own until 1999 when he engaged an assistant solicitor and since June 2002 he has been in partnership with two other solicitors. His practice is based in Tralee.
Particulars concerning the offences for which the appellant was summoned were summarised in the submissions filed on behalf of the appellant in the following terms:
“Of the forty-two offences with which the Plaintiff is charged, thirty-nine allege that between the 15th October, 1998 and the 17th September, 1999, the Plaintiff moved an eligible animal into a holding while such holding was restricted. Each of the thirty-nine summonses relate to a different animal, identifying the animal by ear tag number, and allege the movement was contrary to:
“Section 48(1)(a), (d) and (e) of the Diseases of Animals Acts 1966 as amended by the Bovine Diseases (Levies) Act 1979 and the Bovine Diseases (Levies) (Amendment) Act 1996 as introduced by the Minister pursuant to the powers conferred upon him by Sections 3, 12, 13, 19, 20, 27 and 48 of the said Act of 1966 and introduced by Article 7.3(a) and 7.3(b) of the Brucellosis in Cattle (General Provisions) Order, 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General 114 of 1991) as amended by the Brucellosis (sic.) in Cattle (General Provisions) (Amendment) Order 1996 (S.1. No. 86 of 1996) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order, 1998 (S.1. No. 39 of 1998).”
The three remaining summonses allege that the Plaintiff committed the following offences:
(1) “[the Plaintiff] did between the 15th October, 1998 and the 17th September, 1999, fail to keep a register of the particulars of each animal present in [his] herd and failed to keep a register of the number of animals present in [his] herd, contrary to the European Communities (Registration of Bovine Animals) Regulations 1996 and in particular Article 4(1) and 8(1) thereof’
(2) “[The Plaintiff] being a person who was notified in accordance with paragraph (1) of Article 7 of the Brucellosis in Cattle (General Provisions) Order 1991, S.1. No. 114 of 1991, on the 15th September, 1998 that [his] holding at Gortalea, Tralee in the County of Kerry and elsewhere was declared restricted under Article 7 of the above-mentioned Order, that [he] failed to deliver forthwith to a veterinary inspector or to an authorised officer every identity card issued in respect of any eligible animal or female animal aged less than twelve months on the holding, such identity cards not already having been issued pursuant to Article 5(3)(b) of the above-mentioned Order, contrary to Section 7(2) of the Brucellosis in Cattle (General Provisions) Order 1991 (S.1. No. 114 of 1991) as amended by the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998 (S.1. No. 39 of 1998)”
(3) “[The Plaintiff] did on a date unknown between the 15th day of April, 1998 and the 18th day of May, 1998 at Gortlea, Tralee in the County of Kerry in the Court Area and District aforesaid move an eligible animal into your holding without the said animal having passed a blood test within a period of thirty days prior to the day on which the animal was so moved Contrary to Section 18 of the Brucellosis in Cattle (General Provisions) Order of 1991 as amended by Section 2 of the Brucellosis in Cattle (General Provisions) (Amendment) Order 1998.”
The penalty on a conviction under s. 48 of the 1966 Act is a fine of the euro equivalent of £1,500 and/or six months imprisonment. The penalty on conviction under the Bovine Regulations is a fine of the euro equivalent of £1,000 and/or 12 months imprisonment. The District Court has jurisdiction to impose consecutive sentences in respect of a defendant who has been convicted of multiple offences, up to a maximum of two years in total.
The Plaintiff himself is a farmer who resides in Co. Kerry and the prosecutions against him were brought by the Minister for Agriculture, Food and Rural Development. When he appeared before the District Court on 9th October 2000 the Court granted a legal aid certificate in accordance with s. 2 of the Act of1962.
Mr. Mannix had given prior notice to the State Solicitor that he would be seeking legal aid on behalf of the plaintiff, to include the assignment of junior counsel, and that if the plaintiff did not receive the assistance of representation by counsel, these proceedings would be commenced.
The Evidence before the High Court and its Findings of Fact
The evidence, including the findings of the learned High Court Judge were summarised in the following passage in her judgment:
“The evidence is that the Minister has a panel of barristers from which counsel is assigned to prosecute offences of the type with which the plaintiff is charged. There are ten barristers on the panel, both senior and junior counsel. The policy is to assign junior counsel to prosecute in the District Court and senior counsel to prosecute in the Circuit Court. The barristers on the panel are experienced prosecutors. Prosecuting counsel is instructed by the State Solicitor for the locality in which the offences are being prosecuted. A survey carried out by the Minister’s department indicates that between September, 2000 and March, 2004 123 prosecutions were initiated for this type of offence. Counsel was retained on the prosecution team in most of the cases. In 18 of the cases, which were interlinked and had not been concluded, the defendant was represented by counsel. Of the remaining 105 prosecutions, the defendant was represented by counsel in 26 cases. Counsel has already been briefed for the prosecution of the plaintiff in the District Court.
The plaintiff’s solicitor, Mr. Mannix, practises in Tralee. He is an experienced solicitor who has been on the criminal legal aid panel for over twenty years. His normal practice is to represent his clients in the District Court himself. Only in exceptional cases does he brief counsel for the District Court. He considers that the prosecutions pending against the plaintiff are unusual and exceptional in comparison to the generality of prosecutions in the District Court. They could have serious consequences for the plaintiff. They are complex and, in Mr. Mannix’ view, more difficult to defend than a trial on indictment. In his opinion the plaintiff would not receive a proper level of representation on the charges if he was not represented by counsel on legal aid. When asked, in cross-examination, whether he had considered that a change of solicitor would be appropriate, Mr. Mannix testified that he had not. Moreover, he stated that, if the State Solicitor was prosecuting himself without the aid of counsel, he would still advise that the plaintiff be represented by counsel, on the basis that the State Solicitor is a very experienced prosecutor.
Mr. Robert Pierse, who has over 40 years experience as a practising solicitor in County Kerry, gave evidence on behalf of the plaintiff. In his view, solicitors should themselves represent their clients in the District Court and counsel should only be used in very exceptional cases. This, in fact, is what happens. However, in relation to the charges which are pending against the plaintiff, Mr. Pierse pointed out that, while technically they are all minor offences, because of the volume of offences alleged, the matter has serious consequences. The summonses raise a considerable number of points on which a reasonable solicitor would need counsel’s advice. He himself had instructed counsel to represent a client who faced similar charges. His opinion was that the plaintiff should be represented by counsel because of the risk of imprisonment and the possible detriment to his reputation. He also expressed the view that it is important that the client’s and the public’s perception of representation on both sides on such charges should be of parity. He expressed the view that counsel is more expert than a solicitor in criminal law matters. The court was invited to infer from the fact that experienced prosecuting counsel are briefed in most of the cases of the type at issue here establishes the complicated nature of the cases. No other reason was advanced by the defendants for the use of a solicitor and barrister on the prosecution team in these cases, although counsel for the defendants did suggest that the presentation of the prosecution may be more difficult than defending such charges. Counsel for the defendants dismissed as being misplaced the analogy drawn by counsel for the plaintiff of a specialist in the case of prosecuting counsel and a general practitioner in the case of a solicitor. I think it is reasonable to infer from the evidence that prosecutions involving charges of the type with which the plaintiff is charged are more complex than the generality of prosecutions with which the District Court deals. I so find. A lawyer, whether a barrister or a solicitor, who is involved in the prosecution or defence of such charges is going to have the time consuming task of familiarising himself or herself with a body of regulation the source of which is both domestic law and European law, which has been the subject of considerable amendment and revision over the years. It is a body of law to which the lawyer may rarely have to have recourse. … Further, I consider that the court is entitled to assume that a solicitor on the legal aid panel will represent his client according to the standard of conduct expected of his profession. In any event, aside from those assumptions, in my view, a finding that a qualified solicitor exercising ordinary professional skill and care could not effectively and adequately defend an accused person on such charges in the District Court is not open on the evidence.”
Two points highlighted in the evidence of the appellant’s solicitor, Mr. Mannix are illustrated in the two following extracts from the transcript of his evidence:
(a) “…I knew that at a glance at the summonses that the level of regulations, the level of legal provisions which had been charged on each of the offences contrary to which had been charged against him, that that was an extremely arduous exercise in research in establishing the precise legal provisions which it is alleged against him … so I realised the first day I received instructions from Mr. Carmody that this was a mammoth exercise, that this was going to be a very significant prosecution and that considerable work would need to be undertaken by both he and I.”
(b) “It was not one that I thought I could properly and adequately deal with on his own behalf on my own. I was aware of the fact that counsel was retained by the Minister … and because of the complexity of the case and the complexity of the law in the case it was wholly appropriate that Mr. Carmody be assigned counsel to enable him to properly meet the case against him and defend himself.”
The Issues and Submissions in this Appeal
The High Court dismissed the appellant’s claim that s. 2 of the Act of 1962 is unconstitutional. It also refused his application for a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2 is incompatible with the State’s obligations under the Convention. The appellant has appealed against these findings.
In deciding on the appellant’s claim the High Court determined that the issue raised by the appellant’s claim for a declaration of incompatibility pursuant to s. 5 of the Act of 2003 should be determined first and before the determination of the constitutional issue raised particularly as regards the claim that s. 2 of the Act of 1962 is unconstitutional. One of the questions which arises for this Court to decide in this appeal is whether in principle, a claim that an Act of the Oireachtas is repugnant to the Constitution should be determined prior to the consideration of any claim for a declaration that the Act is incompatible with the provisions of the European Convention on Human Rights as provided for by s. 5 of the Act of 2003.
The Appellant
Although the appellant supported the approach taken by the learned trial Judge in deciding to first determine the issue of the compatibility of the Act of 1962 with the European Convention on Human Rights, pursuant to s. 5 of the Act of 2003, it was also acknowledged that there were reasons for considering that the constitutional issue should be considered first and that the appellant would defer to the Court’s decision on that point.
The claim that the appellant is denied his constitutional right to legal aid by virtue of s. 2 of the Act of 1962 has been advanced on two grounds.
Firstly the appellant contends that a defendant on a criminal charge before the District Court, who does not have the means to pay for his own legal representation, has a right under the Constitution to apply for legal aid so that he may be legally represented by both a solicitor and counsel where such representation is essential in the interests of justice. This, it is contended, is a constitutional requirement in order that the trial of a defendant before the District Court is conducted in accordance with the due process of law. Section 2(1) of the Act of 1962 he claims is repugnant to the Constitution because it prevents the District Court considering whether, in the particular circumstances of a given case, it is in the essential interests of justice that a defendant be represented not only by a solicitor but also by a barrister or counsel.
The appellant emphasised the complex nature and sources of the law underlying the charges which had been brought against him and the seriousness of the consequences which would flow from a conviction. The appellant also relied on the fact that the Department of Agriculture, Food and Rural Development, for the purpose of prosecuting offences of this nature, engaged and relied upon a specialist panel of barristers, including senior counsel, in addition to a solicitor, the State Solicitor, for the purpose of prosecuting such offences. This was evidence of the especially complex nature of the legal issues to which such prosecutions give rise. Although the appellant did not seek parity of representation as such the circumstances demonstrated that in order to ensure that the appellant could be fairly represented and thus receive a fair trial he was entitled to representation by counsel in addition to that of solicitor. It was also submitted that the exclusion of a right to counsel in all and every criminal prosecution being dealt with by the District Court was inflexible, irrational and arbitrary and constituted a denial of constitutional right to a fair trial. The test that should be adopted is whether in any particular case there was a real risk of an unfair trial if a defendant was denied the opportunity of being represented by counsel in addition to a solicitor. Where a prosecution before the District Court was of sufficient complexity and seriousness a defendant who could not afford to pay for legal representation should be granted legal aid for the purpose of being represented by counsel as well as solicitor in order to ensure that he or she had a fair trial in accordance with the Constitution. In this respect the appellant relied principally on the decision of this Court in The State (Healy) v. O’ Donoghue [1976] I.R. 325.
In the foregoing circumstances it was submitted that s. 2(1), in arbitrarily failing to provide for the grant of legal aid to include counsel in any appropriate cases, s. 2(1) of the Act of 1962 should be declared repugnant to the Constitution.
In the second ground or aspect of his claim the appellant claims that the particular facts and circumstances of his case, that is to say, the alleged seriousness of the offences and the exceptional complexity of the law under which the offences are prosecuted, are such that he is entitled to an order declaring that in the interests of justice, he is entitled to legal aid providing for his representation by counsel and solicitor in this case. Accordingly, since by virtue of the application of s. 2(1) by the District Court he was denied legal representation, to include counsel, in this case he has been denied his constitutional rights.
For essentially the same underlying reasons the appellant has also claimed a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 that s. 2(1) of the Act of 1962 is incompatible with the obligations of the State under the provisions of the Convention.
In this regard particular reference was made to a denial of his rights under Article 6 of the Convention. Article 6.3.c provides that:
“Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
Since the Court has not considered it necessary to consider the claim for a declaration of incompatibility with the European Convention on Human Rights sought by the appellant pursuant to s. 5 of the Act of 2003 it is not necessary to refer further to the submissions on that question.
The Human Rights Commission
The Human Rights Commission, were granted leave by the Court pursuant to s. 8(h) of the Human Rights Commission Act 2000 to intervene as an amicus curiae. Its submissions may be summarised as follows:
As regards the order for determination of on the one hand, the constitutional issue, and on the other, the application for a declaration of incompatability pursuant to s. 5 of the Act of 2003 it was submitted that the constitutional issue should be determined first. It was submitted that a declaration of incompatibility pursuant to s. 5 of the Act of 2003 could not determine and dispose of the dispute between the parties. Accordingly, having regard to the terms of s. 5 of that Act, the constitutional issue should be determined first.
As regards the substantive constitutional issue it was submitted that the test to be applied is whether there was a “real risk” of the defendant receiving an unfair trial if he was denied representation by counsel as well as solicitor. Applying that test the appellant, in the circumstances of the case, was entitled to be provided with legal aid for that purpose. It was also submitted that the overall “interests of justice”, which included considerations broader than those included by the High Court, require that such legal aid be provided where the interests of justice so require and the Commission relied on The State (Healy) v. O’Donoghue [1976] I.R. 325 in support of this proposition. It also submitted that the notion of ‘equality of arms’ meaning ‘reasonable equality’ as previously applied by this Court and as referred to in the jurisprudence of the European Court of Human Rights would require that the defendant be provided with legal aid to include counsel as well as solicitor in this case. It was also submitted that standards of fairness in criminal proceedings must, as Kenny J. indicated in The State (Healy) v. O’Donoghue be kept under review so that a defendant can be afforded his or her constitutional rights according to contemporary circumstances.
The Respondents
The respondents submitted that the constitutional issue raised by the appellant should be determined prior to any question concerning the compatibility of the Act of 1962 with the European Convention on Human Rights because the Constitution takes precedence over the Convention and s. 5 of the Act of 2003 may only be invoked where, as the section provides, “no other legal remedy is adequate and available”. A declaration of incompatibility is, therefore, a remedy of last resort.
On the constitutional issue the respondents submitted that the learned High Court Judge was correct in her findings of fact and in particular in her determination of the law and the constitutional rights of the appellant. In particular it was submitted that the constitutional rights of the appellant are fully vindicated by his entitlement to nominate a solicitor of his choice from the legal aid panel in the District Court. The right to ‘equality of arms’ was met once a defendant was provided with legal aid for legal representation which was sufficient to ensure a fair trial. Representation by a solicitor in prosecutions before the District Court met that requirement.
Order in which the Issues should be Addressed
Before addressing the issues raised by the appellant the question of the order in which the constitutional issue and the declaration claimed pursuant to s. 5 of the Act of 2005 should be decided must be considered.
The question arose before the learned trial Judge as to whether, in addressing the issues raised in the proceedings she should first of all decide the issue concerning the declaration sought pursuant to s. 5 of the Act of 2003 having regard to the principle reflected in the statement of Henchy J., in The State (Woods) v. The Attorney General “…that a court should not enter upon the question of constitutionality unless it is necessary for the determination of the case before it.”
The principle has been reiterated in a number of cases including by Finlay C.J. in Murphy v. Roche [1987] I.R. 106 at 110 where he stated:
“Where the issues between the parties can be determined and finally disposed of by resolution of an issue of law other than constitutional law, the Court should proceed to determine that other issue first, and, if it determines the case, should refrain from expressing any view on the constitutional issue that may have been raised.”
In deciding to first decide the issue raised by a claim for a declaration of incompatibility, rather than the constitutional issue, the learned High Court Judge stated
“Of course, by virtue of subsection 2 of s. 5, if a declaration of incompatibility is made, it will not affect the validity, continuing in operation or enforcement of s. 2 of the Act of 1962. The consequences of the making of such a declaration would be that the Taoiseach would be required to lay a copy of the order of the court before each House of the Oireachtas within the next 21 days on which that House has sat after the making of the order. Further, if the plaintiff claimed compensation in respect of an injury or loss or damage suffered as a result of the incompatibility, the Government would have a discretion to make an ex gratia payment by way of compensation to the plaintiff. The plaintiff has chosen to pursue the remedy of a declaration of incompatibility in the knowledge, as submissions made on his behalf indicate, of the practical effect of such a declaration. Whether obtaining such a declaration would resolve the issues between the parties to the extent that the court should refrain from expressing any view on the constitutionality of s. 2 in accordance with the self-restraint principle as formulated in Murphy v. Roche was not debated. That issue only arises in the instant case in the event that there is a finding of incompatibility. If there is not, it is a matter for another case and another day.”
As can be seen from the foregoing the nature of the remedy, such as it is, provided by s. 5 of the Act of 2003 is both limited and sui generis. It does not accord to a plaintiff any direct or enforceable judicial remedy. There are extra-judicial consequences whereby the Taoiseach is obliged to lay a copy of the order containing a declaration before each House of the Oireachtas within 21 days. That is the only step which is required to be taken under national law in relation to the provisions concerned. Otherwise it rests with the plaintiff who obtained the declaration to initiate an application for compensation in writing to the Attorney General for any alleged injury or loss or damage suffered by him or her as a result of the incompatibility and then it is a matter for the discretion of the Government as to whether or not they should pay any such compensation on an ex gratia basis.
It would have been more desirable if the parties did debate in the High Court whether the obtaining of such a declaration would resolve the issue between them. This would have more readily enabled the learned trial Judge to examine this question in the context of the case as a whole which could have led to a different order of priority being accorded to the issue of constitutionality on the one hand and that arising from the claim for a declaration of incompatibility on the other.
In any event, the order in which issues in proceedings should be determined, where one of them involves the constitutionality of an Act, is ultimately and finally a matter for the Court rather than the parties while taking into account any views or submissions tendered on their behalf.
As the case-law referred to in this context makes clear, and indeed as the learned trial Judge pointed out, the question involving any validity of a statute or a section thereof should be postponed until consideration has been given to any other question of law the resolution of which could determine the issues between the parties. If a decision on such questions of law does determine such issues then, in principle, it is not necessary for the Court to address the constitutional question.
The essence of the issue raised by the appellant in these proceedings is that the State respondents, by virtue of the terms of s. 2 of the Act of 1962, wrongfully denied him the possibility of applying to the District Court for the grant of legal aid to include counsel and, or alternatively, the refusal to actually grant such legal aid in the circumstances of his particular case to the appellant.
In these circumstances the Court is satisfied that a declaration of incompatibility pursuant to s.5 of the Act of 2003 cannot be said to be a remedy which would resolve the issue between the parties. Any such declaration in this case would leave the appellant in the same position with regard to his claimed constitutional right to legal representation in the prosecution pending against him in the District Court as he was prior to the commencement of proceedings.
That in itself is sufficient ground, in the Court’s view, for considering that an issue as to the constitutionality of a statute should first of all be addressed by the Court when the only other issue is a claim for a declaration pursuant to s. 5 of the Act of 2003.
In addition, it must be noted, that s. 5(1) in conferring on the High Court, or this Court on appeal, jurisdiction to make a declaration concerning a statutory provision or rule of law only arises “where no other legal remedy is adequate and available”.
Where a citizen’s constitutional rights are violated, statute law or some other rule of law may provide a remedy which vindicates such rights. Where a statute or a rule of law does not provide a remedy for the violation of such a right the citizen is entitled to rely on the provisions of the Constitution for a remedy in vindication of the right. That is what the appellant has done in this case in relying on the provisions of the Constitution, and the principles which flow from it, as affording him a remedy for the alleged breach of his rights. It hardly needs to be said that the provisions of the Act of 2003 cannot compromise in any way the interpretation or application of the Constitution, a principle which is acknowledged in the long title to the Act which states that the effect of the Act is “subject to the Constitution”.
Accordingly the Court is satisfied that when a party makes a claim that an Act or any of its provisions is invalid for being repugnant to the Constitution and at the same time makes an application for a declaration of incompatibility of such Act or some of its provisions with the State’s obligations under the Convention, the issue of constitutionality must first be decided.
If a Court concludes that the statutory provisions in issue are incompatible with the Constitution and such a finding will resolve the issues between the parties as regards all the statutory provisions impugned, then that is the remedy which the Constitution envisages the party should have. Any such declaration means that the provisions in question are invalid and do not have the force of law. The question of a declaration pursuant to s. 5 concerning such provisions cannot then arise. If, in such a case, a Court decides that the statutory provisions impugned are not inconsistent with the Constitution then it is open to the Court to consider the application for a declaration pursuant to s. 5 if the provisions of the section including the absence of any other legal remedy, are otherwise met.
Decision on the Constitutional Issue
The first basis on which the constitutionality of s. 2 is challenged is that it breaches the constitutional right to a trial according to the due process of law because it arbitrarily excludes the District Court from even considering the possibility of providing, by means of legal aid, the assistance of counsel in cases being tried by the District Court even if it could be established that the interests of justice require that the defendant be provided with such counsel because of the gravity, complexity or exceptional circumstances of the case.
It is submitted that s. 2 could only withstand challenge if it could be assumed that the interests of justice never requires representation by counsel in criminal cases before the District Court.
It may seem extraordinary now but prior to the adoption of the Criminal Justice (Legal Aid) Act 1962 no legal aid was available for poor persons except when they were charged with the crime of murder (then a capital offence) or in certain circumstances where a retrial was ordered by the Court of Criminal Appeal or the Supreme Court. That situation had for a long time been considered by many to be inconsistent with the notion of a fair trial although no issue concerning it had been raised before the Courts. When Ireland ratified the European Convention on Human Rights in February 1953 the State must have foreseen that the absence of legal aid for poor persons in nearly all cases might place it in breach of Article 6 of the Convention on the right to a fair trial because, as regards that Article, it inserted in its instrument of ratification a reservation pursuant to Article 15 of the Convention that Ireland did not “interpret Article 6.3.c of the Convention as requiring the provision of free legal assistance to any wider extent than is now provided in Ireland.” Article 6.3.c of the Convention provides that
“Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”
Curiously that derogation appears to have remained in place to this very day and even more curious it was not relied upon by the Respondents when addressing the appellant’s claim for a declaration of incompatibility with the Convention as regards s. 2(1) of the Act of 1962.
In any event in 1962 the State took, in introducing the Act, what was then generally regarded as its first tentative but meaningful step in the provision of legal aid for poor persons. That is to say persons who did not have the means to pay for their own legal representation would be granted legal aid where the essential interests of justice so required.
Up to that time no case had been brought before our courts seeking to assert a constitutional right to legal aid in criminal cases and for once an initiative in the field of justice involving public expenditure for the protection of the rights of citizens, in this instance those who had little or no means, was taken without being forced upon the State by a decision of our courts but was no doubt taken in cognisance of the fact that a right to legal aid in criminal cases was becoming generally recognised as a basic right not only in an international instruments such as the European Convention but also in the laws of many countries, with particularly strong developments in the constitutional case-law on due process in the United States.
Although the Act of 1962 has been the subject of some minor amendments in the meantime it has remained in substance the same and particularly so as regards the provision for criminal legal aid in the District Court.
Thus the framework for criminal legal aid in the District Court, fashioned in the mindset and circumstances of now nearly half a century ago as a first and valuable step in this area, remains applicable today notwithstanding the substantially changed legal environment in which the District Court functions in the area of criminal justice. Those changes will be referred to later but the Court will first refer to some constitutional principles concerning the provision of legal aid in criminal cases that have been expressed in the case-law of this court.
Criminal Legal Aid and the Constitution
In 1976 this Court gave judgment in what is the leading case on the constitutional principles underpinning the right of indigent persons to legal aid in criminal cases. The case is The State (Healy) v. Donoghue [1976] I.R. 325. This was some 14 years after the adoption of the Act of 1962 and it was the first case in which the right to criminal legal aid arose as a substantive issue. It is relevant to emphasise that in that case no issue arose concerning the constitutionality of that Act. The issues in Healy were more concerned with the manner in which the Act was applied or observed in that case. Nonetheless, the statements of principle in the judgments delivered in that case have informed and governed the manner in which the Act of 1962 is implemented and they explain why the right to legal aid for poor persons in criminal cases resides in the Constitution and not just in the statute.
In the Healy case the Court was asked to grant orders of certiorari quashing certain convictions and sentences which had been pronounced against the applicant John Healy and his co-accused, Anthony Foran. For present purposes it is sufficient to state that in one case the applicant, John Healy, had not applied for legal aid and was convicted and sentenced without legal representation. As regards other charges, both applicants had been granted a legal aid certificate and, both having pleaded guilty, their sentencing was adjourned. Their cases were listed on several occasions for sentencing but no solicitor appeared for them and eventually the District Judge decided to proceed with sentencing in the absence of legal representation. The relevant conviction and sentences were quashed by the Courts on the grounds that the two accused had not been dealt with in accordance with the due process of law as the Constitution requires. One outcome of that case is that a defendant has a constitutional right to be informed of his or her entitlement to legal aid even though the Act of 1962 did not specify that he or she be so informed.
Since that case did not involve an issue as to the constitutionality of any provision of the Act of 1962 but concerned certiorari proceedings the order made is not strictly relevant to the issues in this case but the principles expressed in the judgments of the Court are directly relevant to any consideration of the constitutional right of poor persons to legal aid in criminal cases.
One of the first matters which the Court made quite clear is that the right to legal aid does not stem from a statute. It is a constitutional right. The Act of 1962, to the extent that it does make provision for legal aid, is merely a means of vindicating that right.
As O’Higgins C.J., stated at page 350 of the report in Healy:
“If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence. In my view the concept of justice under the Constitution, or constitutional justice … requires that in such circumstances the person charged must be afforded the opportunity of being represented.
This opportunity must be provided by the State. Only in this way can justice be done, and only by recognising and discharging this duty can the State be said to vindicate the personal rights of the person charged. To hold otherwise would be to tolerate a situation which the nature and extent of a man’s ability to defend himself, when accused, would depend on the nature and extent of his means. That would be to tolerate injustice.”
Henchy J., at page 354 stated:
“A person who has been convicted and deprived of his liberty as a result of a prosecution which, because of his poverty he has had to bear without legal aid has reason to complain that he has been meted out less than his constitutional due. This is particularly true if the absence of legal aid is compounded by the factors such as a grave or complex charge.”
Henchy J., went on to express the view (at page 255) that, once the interests of justice required that a person be afforded legal aid, a trial without it “could not be said to be a trial ‘in due course of law’” within the meaning of that phrase in Article 38.1.
Again at page 357 Griffin J., stated:
“The principles enshrined in these principles of the Constitution require fundamental fairness in criminal trials – principles which encompass the right to legal aid in summary cases no less than in cases tried on indictment – whenever the assistance of a solicitor or counsel is necessary to ensure a fair trial. Ours is an adversary system of criminal justice. On the one side is the State with all its resources, which it properly and justifiably uses in the prosecution of crime. It has available to it a trained and skilled police force, and lawyers who prosecute in the interest of the public. On the other side is the person charged with a crime; if he has the resources, he will retain the best solicitor and counsel obtainable for the preparation and conduct of his defence. If he is too poor to engage a solicitor or counsel, can he be assured of a fair trial unless legal aid is provided for him? It seems to me beyond argument that if lawyers are necessary to represent persons with means to pay for them, they are no less necessary for poor persons who are unable to provide for them out of their own resources.”(emphasis added).
The principles expressed in the foregoing judgments are now well established principles governing the right of a citizen to criminal legal aid.
The right is a constitutional right. Everyone has a right to be represented in a criminal trial but justice requires something more than the mere right to be represented when a person, who cannot afford legal representation, is facing a serious criminal charge. Such a person has a constitutional right to be granted legal aid by the State to enable him or her to have legal representation at the trial. The nature and extent of that right may be affected by the gravity and complexity of the charge. In addition, although the Act does not require it, every unrepresented defendant must be informed of his or her right to legal aid if they cannot afford it themselves.
Although at different points in the judgments in that case reference is made to the right to legal representation by a solicitor or by a solicitor and counsel no issue arose as to when and in what circumstances a right to be represented by solicitor and counsel would arise and in particular whether it could arise in respect of proceedings before the District Court.
It is clear that the judgments are based on the assumption that, as the Act of 1962 and regulations thereunder provided, in all trials before the Circuit Court or the Central Criminal Court an accused had a right to be represented by solicitor and counsel and in some instances two counsel. The unquestionable right of a poor accused to be provided with legal aid for solicitor and counsel in such cases undoubtedly arises from a range of factors inherent in the trial of indictable offences before such Courts. It is sufficient to mention two of them. There is the particular seriousness attached to offences tried in such Courts because of their nature or the range of severe sentences which the Court of trial has power to impose. There is the process of trial before a Judge and jury, which for many self evident reasons is more complex than a summary trial in the District Court and which necessarily requires representation by an advocate skilled in the conduct of such trials. Again the Oireachtas itself has recognised that necessity and so provided in the case of trials before a judge and jury.
The respective role and function of the two professional branches of the legal profession are known and well established. As Griffin J. stated above when referring to the right to solicitor and counsel “Ours is an adversary system of criminal justice”. In the second of two articles entitled “Competition in the cab rank and the challenge to the independent bar”, Judge John Cooke, as he then was as a member of the Court of First Instance of the European Communities, in referring to the underlining rationale of the two professions stated, inter alia:
“…From a practical point of view, the common law system of litigation with its emphasis upon direct proof by witnesses of all essential facts and the oral exposition of legal argument, effectively requires that the presentation of cases in court be a specialised activity. That is why even in those common law jurisdictions where two branches of the profession have been amalgamated as a distinct advocacy bar continues to emerge. An effective trial bar has evolved in the United States and a similar trend can be seen in Australia. Where, as in Western Australia, there is a unified profession, some law firms give over an entire floor to ‘litigation counsel’. These are partners and associates in the firm who effectively operate as barristers. They have no direct dealings with clients. They are brought into cases by other partners or associates in the same firm whenever advocacy is required. It is a separate bar in all but name. But it is considered necessary if the firm was to maintain the same level of litigation expertise as they would face at federal level when opposing leading silks from New South Wales.”
The bar is a referral profession. That is to say it does not deal directly with clients but has clients referred to it when necessary by solicitors whose practice brings them in direct contact with the public. One of the many functions of a solicitor is to advise a client when the engagement of counsel is either desirable or necessary and as to who that counsel should be. Of course there are solicitors who are or have been skilled advocates in criminal trials before a judge and jury, having devoted much of their professional practice developing those skills just as there are or have been barristers who do not profess to have full professional skills in advocacy having specialised exclusively in non court work such as conveyancing but these are very much in a minority in both professions and an exception to the general rule. In general the nature of a solicitor’s professional practice is such that he or she is committed to working on behalf of clients principally in their offices, a professional practice which they could not maintain if they were to prepare for and appear in jury trial courts with regularity. Most of the legal services required by most clients can be fully provided by a solicitor. When a client needs, exceptionally, for the purpose of legal representation or advice, the professional advice or representation of a barrister, the solicitor has at his disposal an ad hoc “partner” so to speak who can be briefed according to that barrister’s general or specialised skills that best serves the particular needs of the client on a particular matter.
Solicitors, as well as barristers, are of course professionally skilled to deal with cases in the District Court, particularly those who are on legal aid panels, because that is where they have professionally exercised and developed their skills in the course of their career. The fact is that District Court cases are heard in a local court and are in the main short cases (as opposed to criminal trials which can last many weeks). Again they are in general less complex and there is less at stake. That is not in any way to suggest that they are not important or serious cases which at times will give rise to complex legal issues.
There are many criminal cases which come before the District Court which are serious and complex. Solicitors are professionally well qualified to represent and conduct defences on behalf of defendants in such cases so as to meet the requirements of constitutional justice. But the question, as properly raised by the appellant, is whether that can be said of all cases where there is a confluence of the gravity of the charges and particular complexity or other factors.
As O’Higgins J., also stated in the Healy case:
“However, criminal charges vary in seriousness. There are thousands of trivial charges prosecuted in the District Court throughout the State every day. In respect of all of these there must be fairness and fairness of procedures, there may be other cases in which more is required where justice may be a more exacting task-master. The requirements of fairness and of justice must be considered in relation to the seriousness of the charge brought against the person and the consequences involved for him. Where a man’s liberty is at stake, or where he faces a very severe penalty which may affect his welfare or livelihood, justice may require more than the application of normal and fair procedures in relation to his trial.”
Then in referring to a citizen unable to defend himself adequately O’Higgins C.J., added:
“In such circumstances his plight may require, if justice is to be done, that he should have legal assistance. In such circumstances if he cannot provide such assistance by reason of lack of means, does justice under the Constitution also require that he be aided in his defence? In my view it does.”
The Court reiterates the view that the principles of constitutional justice require that a person who is charged with an offence before the District Court and who does not have the means to pay for legal representation be provided by the State with legal representation that is necessary to enable him or her to prepare and conduct the defence to the charge. The legal representation provided must be that which is essential in the interests of justice having regard to the gravity of the charge, the complexity of the case including the applicable law and any exceptional circumstances.
These criteria are very close to if not substantially the same as the criteria set out in s. 2(1) of the Act for the grant of legal aid in the District Court but, as already pointed out, the issue of the compatibility of that section with the Constitution is said to arise because the Act does not provide for the possibility of legal aid being granted for representation by counsel in any case irrespective of the circumstances.
The Criminal Jurisdiction of the District Court
In 2008 the number of criminal cases disposed of summarily in the District Court was 550,694. Of these approximately 65% were road traffic offences. Perhaps more relevant in the present context is the fact that the District Court dealt with 68,491 offences which were indictable offences. During the same year some 11,747 persons in respect of 18,440 offences were sentenced to detention or imprisonment by that Court. The number which were sentenced to detention or imprisonment is indicative of the seriousness of the offences which may be tried in the District Court and does not include those persons who were acquitted, fined or otherwise dealt with on charges with potentially serious consequences. Furthermore, even where no detention or imprisonment is imposed, conviction for an offence before the District Court may, because of its nature, result in serious reputational damage to a citizen in the eyes of the community.
In the Healy case in 1976 the Court was not asked whether the lack of jurisdiction in the District Court to consider the possibility of providing a poor person with the assistance of counsel in addition to a solicitor was compatible with the Constitution. It would be idle now to speculate on what it would have decided had that issue been raised. This Court must deal with the issue as it presents itself today in the context of the ambit of the jurisdiction of the District Court in criminal matters. As Kenny J., observed in the Healy case “It would be foolish to lay down what constitutes a fair trial because its requisites change from generation to generation”.
It would still be true to say that the District Court does deal with thousands of relatively trivial cases and also that as a general rule the more serious or complex criminal cases requiring legal aid could not, in the Court’s view, require more than the services of a professional solicitor to meet the essential requirements of justice.
Account must however be taken of the fact that the legal environment to which the District Court exercised its criminal jurisdiction has changed significantly since the Act of 1962 was introduced.
In 1962 any consecutive term of imprisonment which could be imposed by the District Court could not exceed 12 months, by virtue of s. 5 of the Criminal Justice Act 1951. The section provided that where two or more sentences passed in respect of a defendant by the District Court were ordered to run consecutively “the aggregate term of imprisonment shall not exceed 12 months”.
This section was amended in 1984 by the Criminal Justice Act which substituted the period of 2 years for the aforementioned period of 12 months. Thus, since 1984 where the District Court imposes two or more sentences to run consecutively the aggregate term of imprisonment may be twice the amount which it was in 1962. No change was made as regards the provision of legal aid.
Perhaps of even more pertinence is the fact that there is a wide range of potentially complex offences created in recent decades for which the District Court now has jurisdiction and which have serious import from both the perspective of the public interest and defendants. Many of these offences arise from the introduction of modern regulatory regimes often accompanied by regulatory bodies with powers of prosecution.
Such offences arise in areas such as competition law, (enforced by the Competition Authority), consumer protection (enforced by the Consumer Protection Agency), environmental law including illegal dumping, handling of hazardous waste, environmental pollution, and planning (enforced by the Environment Protection Agency, local authorities, planning authorities and other agencies), food safety (enforced by the Food Safety Authority), company law including corporate governance (Director of Corporate Enforcement) to name at least some.
In addition of course the nature and volume of crime has changed dramatically over the decades. For example dealing in and supplying illicit drugs was virtually unknown in the 1960s. Successive statutes, apart from amending legislation governing long standing criminal offences, have created new ones. The offence of possession of child pornography, which may in certain circumstances be tried summarily, is an example. Another obvious example is the regulation of the farming or agriculture industry which has seen a host of regulatory measures often, as in this case, designed to protect a vital industry from the hazards of animal disease and also public health. Such regulatory measures may be introduced in the implementation of national policies or be required to be introduced as a result of obligations arising from EU legislation.
There can be no doubt that over recent decades the enforcement and application of the criminal law in the District Court has become more complex.
In his book on sentencing law and practice, Mr. Thomas O’Malley, summarised some aspects of the evolution of the criminal jurisdiction of the District Court. He noted that:
“As a result of a series of statutes enacted during the past 50 years or so, the District Court now deals with a large amount of indictable crimes. The Criminal Justice Act 1951 provided for the summary trial of several commonly prosecuted indictable offences, subject to certain conditions precedent. The District Court jurisdiction was further enlarged by s. 13 of the Criminal Procedure Act 1967 which allows it to deal with any indictable offence, apart from a few serious ones, where the accused pleads guilty and the likely sentence is within the Court’s jurisdiction. The Criminal Justice Act 1984 increased the penalties available to the District Court when dealing with indictable offences … . The Criminal Justice (Theft and Fraud Offences) Act 2001, which revised and codified the law on theft and related offences, allows for the summary trial of any indictable offence created by the Act, including robbery and burglary subject to conditions virtually identical to those listed in the Act of 1951. These statutes are significant landmarks in the expansion of summary jurisdiction, but no less important is the legislative practice which has grown in popularity over the last 20 years or so, of creating offences triable either summarily or on indictment at the election of the D.P.P.
As a result of all these developments the District Court’s criminal jurisdiction has grown enormously ….”
The Right to Seek Legal Aid in Contemporary Circumstances
It is in the foregoing context that the Court is asked to consider whether a defendant without sufficient means who is to be tried on a criminal charge before the District Court has a constitutional right to make an application for legal aid for both solicitor and counsel and have that application determined on its merits in the essential interests of justice.
In support of his contention the appellant relied in part on the fact that the State prosecutor in this case chose to be represented by solicitor and counsel. It was pointed out on behalf of the appellant that such counsel was part of a “special panel of experienced counsel”, ten in number, who habitually represent the State in such prosecutions. It appears that that panel consists of members of the Bar of high standing and long professional experience including at least 3 senior counsel who could be counted among leaders of the Bar one of whom, regrettably, is now deceased. Curiously, State counsel were not in the position to confirm or reject the existence of the panel but acknowledged that counsel was engaged in the case against the appellant. In fact the evidence in the High Court was that most of the prosecutions of the kind involved in this case were conducted by counsel on behalf of the State.
At one point it was suggested by counsel for the State that the retention of counsel conferred no “added value” and he speculated that if counsel were retained it was possibly to avoid a “valuable solicitor” having to leave his office and conduct the prosecution. It is not necessary to pronounce on the State’s explanation for the engagement of counsel in this particular case although the Court is not entirely convinced by the suggested explanation for that. It may well be that an agency or authority which has the responsibility for enforcing the regulatory regime in the courts throughout the country might engage counsel for reasons that are not germane to the gravity or complexity of a particular case. Neither does the Court exclude the possibility that the very reason for engaging counsel may be due to particularly contentious issues of fact or the particular complexity of the law governing an offence.
It is nonetheless a fact that the State, with all the resources which it has at its disposal, is at liberty to engage counsel to act for the prosecution before the District Court irrespective of whether the services of counsel in addition to that of a solicitor are strictly required by the circumstances of the case. More relevantly it may do so because the State considers representation by counsel is necessary due to the complexity or gravity of the case.
Counsel for the appellant did however rely on the principle of “equality of arms”. Quite correctly, counsel did not go so far as to say that equality of arms meant parity of representation – so as to claim that where the State is represented by counsel a defendant had a right to be represented by counsel. To adopt an observation, cited by the amicus curiae, made by the European Court of Human Rights in Steel & Morris v. United Kingdom [2005] 41 EHRR “The adversarial system … is based on the idea that justice can be achieved if the parties to a legal dispute are able to adduce their evidence and test their opponent’s evidence in circumstances of reasonable equality.” And it might also be noted that that Court has not found that simple parity of representation is required by the principle of “equality of arms”. In general terms the principle or notion of equality of arms means that neither party in criminal trials should be procedurally disadvantaged as compared to the other party. As Henchy J., put it in the Healy case, a defendant is entitled to have his or her trial conducted in the manner which would not “shut him out from a reasonable opportunity of establishing his innocence; or, … of receiving a sentence appropriate to his degree of guilt and his relevant circumstances”. The notion of “equality of arms” is but one aspect of the general right to a fair trial or a trial in due course of law. Therefore the Court does not consider it necessary to analyse that notion further for present purposes since the issue in this case falls to be decided within the broader notion of right to a just or fair trial. Within that broader concept the fact that the State prosecutor is represented by solicitor and counsel may be a relevant factor should a court or other body have to determine whether the defendant should also be represented by counsel as well as a solicitor. If such a question fell to be determined by the District Court, which of course it has no power to do at present, and it was satisfied that granting legal aid for a solicitor only, notwithstanding the appearance of counsel for the State, was sufficient to meet the essential requirements of justice in providing effective legal representation then the constitutional obligation to the defendant would be met. On the other hand, in deciding whether legal aid should be granted to include counsel as well as solicitor such a court would in such instance, be entitled to take into account the fact that the State were represented by counsel in determining whether there were particular aspects of the case as regards the gravity, complexity or other exceptional circumstances which required the grant of legal aid for counsel in all the circumstances of that case. In making the foregoing observations the Court does not purport to pronounce in this judgment, for reasons stated later, on whether in fact in the circumstances of this particular case the appellant should be granted the services of counsel on legal aid.
It is also appropriate to note that the right to a fair trial is a right of both the prosecution and a defendant. It is a right which is protected in any modern, democratic society in the interests of society as a whole and indeed is one which is enshrined in the Constitution by the decision of the people. Sometimes simplistic and unthinking comments surface in the public arena suggesting that fairness and fair procedures at a criminal trial only exist for the benefit of criminals. So far as a defendant is concerned these are protections in place for every citizen charged with a criminal offence, who enjoys the presumption of innocence unless proven guilty. Furthermore the constitutional guarantee to a fair trial minimises as far as reasonably possible the risk of an innocent person being convicted of an offence. The fact that an accused’s defence can be effectively and fairly advanced at a trial is essential for the purpose of public confidence in the system of trial. It also gives confidence to the victims that the true perpetrator of the crime has been convicted. It is of no benefit, to say the least, to a victim or society in general if a conviction is later set aside on the grounds of a miscarriage of justice at a time when the trail to the true culprit may have become obliterated or difficult to pick up again with the passage of time.
In this case the Court must address the issues raised by the appellant concerning his right to apply for criminal legal aid and the constitutionality of s. 2(1) of the Act of 1962 in the light of the constitutional principles governing the right to a fair trial referred to earlier in this judgment and the nature and scope of the criminal jurisdiction which the District Court exercises today.
There is no doubt that s. 2(1) of the Act of 1962 accords only limited jurisdiction to the District Court to grant legal aid in criminal cases being tried before it. If legal aid is necessary in the interests of justice the certificate for legal aid granted by the District Court may only provide for representation by a solicitor. It has no jurisdiction whatsoever to provide for representation by counsel in a criminal trial in that court.
That is to say that whatever “the gravity of the charge”, whatever “exceptional circumstances” may exist and whatever “the interests of justice” might require, a defendant in a trial before the District Court has no right to apply for legal aid to include counsel.
Unless it could be assumed that no criminal case which comes before the District Court could ever require representation by counsel, in order to ensure that the trial was in accordance with the requirements of constitutional justice, this limitation on a poor defendant’s right to apply for legal aid must be considered arbitrary.
Having regard to the extremely wide scope and range of offences which come within the jurisdiction of the District Court in the field of criminal law and the increased complexity of modern legislation and regulatory measures, with which the Court is by no means unfamiliar, the Court is satisfied not only that the necessity in the interests of justice for a defendant to be represented by counsel as well as solicitor cannot be excluded but that cases, however infrequently that may be, will inevitably arise where it would be essential that an indigent defendant be afforded such legal aid.
In order to vindicate the constitutional right of an indigent defendant in the District Court to a fair trial he or she must be entitled to legal aid with representation by counsel as well as solicitor where it is established that because of the particular gravity and complexity of the case or other exceptional circumstances such representation is essential in the interests of justice. It follows that any such defendant must have a right to apply for such legal aid and have the application determined on its merits.
Context and Ambit of the Right to Criminal Legal Aid
Having determined that a defendant in criminal proceedings before the District Court has a constitutional right to apply for legal aid to include counsel and before proceeding to determine what impact, if any, such a determination has on the constitutionality of s. 2(1) of the Act of 1962 the Court feels it should make some observations to place the ambit of that right in context.
The constitutional obligation on the State to vindicate the rights of an indigent defendant to legal representation is met by providing him or her with legal aid to obtain such representation for the preparation and conduct of a defence which is essential to the interests of justice but no more. The State is not bound to provide what might be perceived by an individual defendant to be the optimum form of representation or that which he or she desires. Undoubtedly a reason why the State would limit the provision of legal aid, as it has sought to generally in the Act of 1962, to that which is required in the essential interests of justice, is the burden which the public purse would otherwise have to bear if the scheme had too broad a criteria for the grant of legal aid. In this context it must be said that a Court when considering whether to grant legal aid usually has little more to rely on other than the required form which has been filled out by the defendant/applicant. A Court, such as the District Court, is only rarely in a position to go behind what is stated in the application form or in an uncontradicted statement made in Court. The D.P.P., understandably, is given no particular role in relation to the grant or refusal of legal aid. A Court is not an investigatory body but the State has investigatory means at its disposal. Rarely does the State raise any objection at the time of the initial application for legal aid, or subsequently, concerning the means of a defendant to pay for his or her own defence. That said, it is probably the situation in most such cases that the circumstances of a defendant as known by the Gardaí make it obvious that he or she is a person who cannot afford their own representation.
As earlier emphasised the Court is of the view that those criminal cases in which the District Court grants legal aid the right of a defendant to such legal aid will normally continue to be met when he or she is awarded legal aid for a solicitor only. This is so even where the case may be considered to be grave, complex or involve other exceptional circumstances. District Court trials are less formal than jury trials. There are also procedural options available to the District Court which may facilitate the defence in certain circumstances. Unlike jury trials, hearings in the District Court may be adjourned mid-hearing if this is necessary to permit a defendant’s solicitor to deal with an issue which for good and sufficient reason cannot be addressed there and then. In substance it would be a question of judgment in each case for the Judge (assuming that a Court was conferred with such jurisdiction) concerned based on the degree of gravity and complexity in conjunction with any other exceptional circumstances of the case which may be taken into account, and which taken together necessitate a conclusion that the legal aid granted should include counsel. The object is to enable a defendant to be legally represented so that his or her defence can be properly prepared and fairly put.
In considering the legal aid to be granted a court would be bound to take into account any procedural measures which may assist the defendant in the preparation and presentation of his case. This may include the fact that the defence, in some cases at least, is provided with the statements setting out the evidence which the prosecution propose to call. This procedure is often followed in the District Court where the interests of justice in the particular case require that this be done. Although it is a relatively rare occurrence in the District Court there have been cases where the prosecution have been required to furnish written submissions on the law, in advance of a final decision, to the Court and to the defence. This gives advance notice to the defence of the legal ground which the prosecution intends to traverse and though, naturally not bound in any way by the approach of the prosecution in such submissions, in particularly complex cases the procedure may facilitate the defence in addressing particular legal issues.
The Effect of section 2(1) of the Act of 1962
As has been pointed out earlier in this judgment when the Act of 1962 was introduced it was regarded as the State’s first tentative but meaningful step in the provision of legal aid for poor persons. Prior to that such legal aid was virtually non-existent except for murder cases. Section 2 of the Act of 1962 conferred jurisdiction on the District Court to grant legal aid where none previously existed. In doing so the Act was fulfilling a constitutional imperative as was pointed out in the several judgments of this Court in the Healy case.
As O’Higgins C.J., stated at page 351 in that case “It seems to me that in 1962 the State recognised the existence of this fundamental right when the Oireachtas passed the Criminal Justice (Legal Aid) Act of that year … to the extent that this Act provides for legal aid, it discharges what I consider to be the constitutional duty imposed on the State. (emphasis added).
Subsequently in his judgment (at page 352) O’Higgins C.J., added “While I regard the Act as a recognition by the State of what is the constitutional right of a poor person facing a serious criminal charge, I do not say that the provisions of the Act match exactly what the Constitution requires”. Although he then went on to say that the right of an accused, as expressed in the Act, to be represented by solicitor and counsel of his choice might be narrowed or circumscribed and still be consistent with the Constitution, O’Higgins C.J., was clearly of the view that the Act, insofar as it went, consisted of positive provisions designed to give effect to the constitutional right of poor persons to legal aid without being definitive as to the extent of the constitutional right. Although the constitutionality of the Act was not in issue in that case that approach is of course the correct one since the ambit of any right can only be determined by reference to the provisions of the Constitution themselves.
In very much the same vein Henchy J., at page 354 of the Report in the Healy case said of s. 2(1) “So far as the section goes, it is the legislature’s implementation of the constitutional safeguards for the personal liberty of poor persons who are charged with criminal offences”. (Emphasis added).
In the Court’s view the provisions of the Act of 1962 and in particular s. 2(1) are positive rather than prohibitive or restrictive in that they conferred, for the first time, on the District Court jurisdiction to grant legal aid in specified circumstances in the furtherance of a constitutional right.
As both O’Higgins C.J., and Henchy J., observed in the Healy case, s. 2(1) insofar as it goes, vindicates a constitutional right in permitting defendants to apply for free legal representation by a solicitor in criminal trials before the District Court. As the Court has already pointed out that must be considered sufficient to vindicate that right in the vast majority of such cases. Notwithstanding the positive nature of the provisions of s. 2(1) the appellant complains that he has been deprived of his constitutional right to apply, and where appropriate be granted, legal aid to include counsel as well as solicitor.
The absence of a right to apply for such legal aid in the District Court, prior to 1962 and since, stems not from the specific provisions of the Act of 1962 and in particular from any prohibition in that Act, but from the failure of the Oireachtas to confer at any time on the District Court or any other body, jurisdiction to consider an application for legal aid to include solicitor and counsel in the exceptional circumstances to which the Court has referred above.
Since the effect of the Act of 1962 is to confer on the District Court jurisdiction to grant legal aid in circumstances it never had previously the mischief complained of by the appellant stems not from the effect of its provisions but from the failure of the State to make provision at any time for such legal aid.
In considering this issue the Court considers it relevant to point to the provisions of Article 15.4.2 of the Constitution which provides as follows:
“Every law enacted by the Oireachtas which is in any respect repugnant to this Constitution or to any provision thereof, shall, but to the extent only of such repugnancy, be invalid.”
Of course before that particular provision can be considered relevant there must be a determination that the provision of an Act is in some respect repugnant to the Constitution.
From the perspective of the appellant it is claimed that there is a constitutional deficiency in the Act in failing to provide a statutory mechanism which will enable a defendant to apply for, and obtain in appropriate circumstances, legal aid which would include counsel as well as solicitor in criminal cases before the District Court. However, as previously pointed out, and as emphasised in the Healy case, the duty of providing adequate legal representation in criminal cases to persons who cannot afford it themselves rests with the State. It is a matter in the first instance for the State to provide the mechanism or procedures by which this right may be vindicated. It may do so by statutory or administrative means provided the provision of such legal aid is secured in a sufficiently clear and certain manner. There is nothing in the provisions of the Act of 1962, and in particular in s. 2(1), which could be said to prohibit or create an obstacle to the introduction by the State of procedures or means which would enable a defendant in a criminal prosecution before the District Court to apply for legal aid which could, in particular circumstances, include representation by counsel. This is so even if the State chose to provide such legal aid by supplemental or other provisions amending the Act of 1962.
So far as the right to be represented by a solicitor in such cases is concerned the Court is satisfied that s. 2(1) insofar as it goes secures that constitutional right, although to a limited extent, and cannot be considered repugnant to the Constitution in any respect. There may be circumstances where the provisions of an Act facilitate the exercise of a constitutional right to a limited extent only but nonetheless limit the exercise of the constitutional right in a manner which has other consequences which are incompatible with the Constitution such as invidious discrimination. As regards the Act of 1962 the Court does not consider that any other consequences of that nature arise in this case.
Accordingly, the absence of a right to apply for legal aid to include counsel in appropriate cases must properly be considered as stemming from a failure of the State to make by one means or another, specific provision for such legal aid rather than from any provision, in particular any prohibition, in the Act of 1962.
Remedy
As pointed out at the outset of this judgment the substance of the appellant’s claim is that he has no right to apply for criminal legal aid in a District Court trial which would provide him with representation by counsel as well as a solicitor and therefore no right to be granted such legal aid where the essential interests of justice so require. On this basis he has claimed that s. 2(1) of the Act is repugnant to the Constitution.
The Court has already determined that the denial of an opportunity to apply for and be granted, where appropriate, such legal aid is a denial of a constitutional right.
He is entitled to have that constitutional right vindicated. Article 40.3 of the Constitution imposes on the organs of government of the State the duty to defend and vindicate the personal rights of the citizen.
As this Court has frequently pointed out, and as Henchy J., repeated in the Healy case, this Court is one of the organs of government, the judicial organ. In exercising its judicial functions it must seek to vindicate such rights.
In doing so the Court is not confined to the specific form of remedy sought by a claimant who has established that his or her fundamental rights under the Constitution are being denied. Where that is established this Court has jurisdiction pursuant to the provisions of the Constitution and in particular Article 40.3 to grant such remedy as it considers necessary to vindicate the right concerned. As Barrington J., pointed out in McDonnell –v- Ireland [1998] 1I.R. 134 at 148 “… when the Legislature has failed in its constitutional duty to defend or vindicate a particular constitutional right pursuant to the provisions of Article 40.3 of the Constitution … this Court, as the Court of last resort, will feel obliged to fashion its own remedies.”
The Court is satisfied that it would be unjust and contrary to the appellant’s right to a trial “in due course of law” as required by Article 38.1 of the Constitution if the prosecution of the charges brought against him were allowed to proceed while he is denied the right to apply for legal aid to include solicitor and counsel and have that application determined on its merits. To allow a trial to proceed without any possibility of determining whether it was essential to a fair hearing that the defendant be represented by solicitor and counsel would be, in the words of O’Higgins J., in the Healy case, “to tolerate injustice”.
Conclusion on First Issue raised by the Appellant
A consequence of this conclusion is that the appellant in this case cannot be tried unless and until he is afforded an opportunity to apply for legal aid to include solicitor and counsel and have that application determined on its merits having regard to the considerations referred to in this judgment. The State has in place more than one scheme for legal aid generally by which the rights of citizens to such legal aid are secured through either statutory or administrative measures. The obligation which rests on the State is to secure for defendants, either by administrative or statutory means, the right to apply for appropriate legal aid for those charged with criminal offences. It is for the State to determine the Court or other body which should have responsibility for deciding on the merits of such an application.
Accordingly the Court will grant a declaration that the appellant has a constitutional right to apply, prior to being tried, for legal aid in the criminal proceedings brought against him in the District Court and to have that application heard and determined on its merits. It will also make an Order prohibiting the prosecution from proceeding in respect of the criminal charges referred to in these proceedings unless and until the appellant is afforded that right.
The Second Ground relied upon by the Appellant concerning the Constitutional Issue
The second ground on which the appellant relies concerns his claim that not only had he a right to apply for legal aid to include counsel and have that application determined on its merits, the first ground, but that he was actually entitled on the merits of this case, having regard to its gravity and complexity, to legal aid for a solicitor and counsel. Firstly, the Court does not consider it necessary to decide that issue in the light of the conclusions it has already come to. Secondly the Court is of the view that the determination as to whether a defendant in criminal proceedings before the District Court should be granted legal aid to include counsel as well as solicitor should be heard and determined by a Court or body on which the State has conferred the jurisdiction or power to grant such legal aid in appropriate circumstances.
Section 5 of the European Convention on Human Rights Act 2003
The Court is satisfied that the remedies which are being afforded to the appellant in these proceedings are adequate to remedy the complaints which he has made with regard to his constitutional rights to legal aid and therefore the question of considering the compatibility of any provision of the Act of 1962 with the European Convention on Human Rights pursuant to s. 5 of the Act of 2003 does not arise.
Order
Accordingly, for the reasons set out in this judgment the Court will allow the appeal and make a declaration that the appellant, as a defendant in a criminal prosecution before the District Court has a constitutional right, prior to being tried, to apply to and have determined by a court or other appropriate body whether he should be granted legal aid to include representation by counsel as well as by a solicitor. The Court will make an order prohibiting the State from proceeding with the prosecution unless and until he is afforded that right.
D.X. v Buttimer
[2012] IEHC 175
JUDGMENT of Mr. Justice Hogan delivered on the 25th April, 2012
1. In these judicial review proceedings the applicant (whom I shall describe as “Mr. X.”) moves the Court for an order of certiorari to quash a decree of judicial separation in respect of the applicant’s marriage to the notice party (whom I shall describe as Ms. Y.) on 12th April, 1991, granted by the respondent, Her Honour Judge Buttimer, on the 8th June, 2011, pursuant to s. 3 of the Judicial Separation and Family Law Reform Act 1989 (“the Act of 1989”). The decree was granted pursuant to s. 2(1)(f) of the Act of 1989, namely, that the Court satisfied that in all the circumstances “a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application”. I should say that the applicant has appealed Judge Buttimer’s decision to the High Court, but that that appeal has been stayed pending the outcome of these judicial review proceedings,
2, The order made by Judge Buttimer also provided for the sale of the parties’ family home (which I will describe as “Z House”), along with an immediately adjacent property (which I will describe as “Y Lodge’). That House is quite substantial and the parties live apart – albeit with some difficulty – under the same roof. The notice party’s sister, Ms. T., lives in Y Lodge. This property was entirely rebuilt and refurbished over a decade ago and since then the property has been used by Ms. T. and, prior to her death in 2006, by her mother, Ms. I. Ms. Y and Ms. T. are the registered owners of Y Lodge. Both Mr. X and Ms. Y. represented themselves in person, save that Mr. X. was also assisted by his friend, Ms. S. While the Court would, of course, have jurisdiction to direct the sale of property (other than the family home) such as the Lodge where “either of the spouses has a beneficial interest”, this is contingent on the court having first made a secured periodical payments order, a lump sum order or a property adjustment order: see s. 15(1) of the Family Law Act 1995. Judged by the terms of the order actually made, it is not clear to me that the judge had, in fact, made an order of the kind (such as, for example, a lump sum order) which is deemed by the sub-section to be an essential prerequisite to the exercise of that jurisdiction to direct sale of property not comprising the family home.
3, Mr. X. contends that the order is ultra vires in three separate respects. First, he maintains that Judge Buttimer acted contrary to fair procedures and in breach of s. 40(5) of the Civil Liability and Courts Act 2004 (“the Act of 2004”) in failing to permit him to be attended in court by a friend of his, Ms. S., even though he was legally represented in those proceedings. Second, he says that Judge Buttimer wrongly permitted Ms. T. to be present for part of the judicial separation proceedings. Third, he contends that the order should not have directed the sale of both the lodge together with the house. We can now proceed to a consideration of these arguments in turn
First issue: Whether Judge Buttimer acted ultra vires in refusing to permit Mr. X. to be assisted by a friend
4. Mr. X. was treated for cancer of the larynx in 1997 and, as a result, suffered a largnectomy. He can speak, but with considerable difficulty and he tires easily as a result. Furthermore, his speech cannot always be easily understood by those who are not familiar with his condition. Mr. X. sought to have Ms. S. admitted to the family law proceedings Circuit Court, but this was refused by the respondent following an objection in that behalf by counsel for the notice party, Ms. Y. In the present proceedings, as I have already noted, both Mr. X and Ms. Y appeared in person, with Mr. X. assisted by Ms. S.
5. Article 34.1 of the Constitution provides that justice is to be administered in public, save “in such special and limited cases as may be prescribed by law.” If the proceedings were in open court, then there could be no possible justification for the exclusion of Ms. S. It is true, however, that s. 34 of the Act of 1989 provides that judicial separation proceedings “shall be heard otherwise than in public” and this section must be taken to constitute such a special and limited case for the purposes of Article 34.1.
6. The language of Article 34.1 nevertheless reflects the Constitution’s preference for the open administration of justice and derogations from that rule must truly be confined to “special and limited cases prescribed by law” in the relatively narrow sense of that term. In the present case, the exception prescribed by s. 34 of the Act of 1989 must be taken as reflecting a desire by the Oireachtas to protect other constitutional values in the context of family law proceedings such as the right to privacy (Article 40.3.1), the authority of the family (Article 41) and the protection of the constitutional rights of children (Article 42.5). It is in that context that s. 34 of the Act of 1989 falls to be interpreted.
7. Experience had shown, however, that the mandatory nature of s. 34 of the Act of 1989 as originally enacted was capable of having unintended effects which were not altogether satisfactory. Thus, in Tesco (Ire.) Ltd. v. McGrath, High Court, 14th June 1999, Morris P. held that the effect of the prohibition was to preclude the release of court orders concerning the sale of property, even in those cases where these orders might well be critical so far as the title of third parties was concerned. Likewise, in RM v. DM [2000] IEHC 140, [2000] 3 IR 373 Murphy J. held that the section precluded the disclosure of pleadings captured by the in camera rule to professional disciplinary body which was examining a complaint against a legal representative.
8. Conscious of the fact that the wording of this statutory prohibition had consequences which were not merely unintended, but went further than was reasonably necessary to achieve the original statutory objectives, the Oireachtas concluded that the (apparently) unqualified nature of the prohibition should be diluted. Thus, for example, s. 40(4) of the Civil Liability and Courts Act 2004 (“the Act of 2004”) now provides that the statutory prohibition should not permit the disclosure of the extracts from courts orders in family law proceedings to relevant third parties.
9. Section 40(5) of the Act of 2004 is in the same vein in that it provides:-
“(5) Nothing contained in a relevant enactment shall operate to prohibit a party to proceedings to which the enactment relates from being accompanied, in such proceedings, in court by another person subject to the approval of the court and any directions it may give in that behalf.”
10. Legal proceedings are, of course, stressful occasions for the parties and this is especially true of family law proceedings. While it is true that the interests of most litigants are represented by legal professionals, many litigants nonetheless find the entire experience so daunting that they would wish to have the company of a friend to provide support and reassurance quite independently of legal advisers. This, in effect, is what s. 40(5) seeks to achieve. This provision complements s. 33(1) of the Act of 1989 which provides that:-
“Circuit Family Court proceedings shall be as informal as is practicable and consistent with the administration of justice.”
11. The background to s. 40(5) can be traced to the important decision of Macken J. in RD v. McGuinness [1999] 2 IR 411. Here the applicant sought to have the assistance of a lay friend in proceedings arising under the Domestic Violence Act 1996. Likes. 34 of the Act of 1989, s. 16 of the Act of 1996 provides that such proceedings shall be held “otherwise than in public”. Macken J. acknowledged that a litigant in person generally enjoys the right to have such assistance ([1999] 2 IR 411 at 421):-
“..a person who prosecutes proceedings in person is entitled to be accompanies in a court by a friend who may take notes on his behalf and quietly make suggestions and assist him generally during the hearing but who may not act as advocate.”
12. Macken J. went on to hold, however, that this common law principle was tacitly overridden by the statutory prohibition. The presence of the lay friend would render the proceedings “otherwise than in public”, since that friend would be in attendance “in that friend’s capacity as a member of the public and not otherwise.” Absent evidence that to hold otherwise would have deprived the appellant of his right to a fair trial in the circumstances of the case, Macken J. held that she “could not justify setting aside or ignoring the clear mandatory words of s. 16 of the Act of 1996.” Section 40(5) of the Act of 2004 takes cognisance of the decision in R.D. and acknowledges the general right to have a friend present in court, subject to the approval of the court and the right of the court to impose conditions. These conditions could, for example, include an undertaking to respect the confidentiality of the proceedings or, that matter, an undertaking that, in the words of Macken J. in R.D., the friend would simply “take notes on his behalf and quietly make suggestions and assist him generally during the hearing.”
13. So far as the present case is concerned, it would appear that the respondent decided to exclude Ms. S. because Mr. X. was already legally represented. That in itself, however, is not a good reason for excluding Ms. S, since the legislative policy informing s. 40(5) clearly presumptively favours the right of a litigant to choose a friend to accompany them in court, irrespective of whether that litigant is already legally represented. No other reason was advanced in respect of the admission of Ms. S. to the proceedings and in these circumstances I am constrained to hold that the respondent thereby erred in law in directing her exclusion having regard to the provisions of s. 40(5). As I have already noted, had Ms. S. been admitted to the proceedings, it would have been open to the respondent to prescribe conditions regarding such admission- ass. 40(5) expressly so provides- but this is not an issue which I am now required to consider.
14. There was, moreover, a further particular reason why the respondent could not properly have excluded Ms. S. in the circumstances. Mr X.’s largnectomy considerably affected his capacity to speak and he was hugely dependent on Ms. S. for all types of practical assistance. Furthermore, she was familiar with his manner of speaking and she could probably have directly conveyed his instructions to his legal team better than anyone else. Article 40.1 of the Constitution obliges the judicial branch of government to ensure that all persons are “held equal before the law.” In practical terms, this means that the courts must see to it that, where this is practical and feasible in the circumstances, litigants suffering a physical disability (such as Mr. X.) are not placed at a disadvantage as compared with their able-bodied opponents by reason of that disability, so that all litigants are truly held equal before the law in the real sense which the Constitution enjoins. As Denham C.J. pointed out in MD v. Ireland [2012] IESC 12, “applying the same treatment to all human persons is not always desirable because it could lead to indirect inequality because of the different circumstances in which people find themselves.”
15. Yet absent the presence of Ms. S., Mr. X. was placed at such a disadvantage, since her presence was vital to assist him in view of his particular disability in giving effective instructions to his legal team.
16. In these particular and unusual circumstances, the failure of the respondent to permit Mr. X. to have Ms. S. present to give the kind of practical assistance which the able-bodied litigant takes for granted also amounted to a breach of Article 40.1.
Conclusions on the exclusion of Ms. S.
17. For the reasons just stated, it is plain that the respondent acted unlawfully in refusing to admit Ms. S. to the proceedings. The applicant has fairly conceded in argument that this decision did not in itself affect the fairness of the hearing or the legality of the judicial separation order. In these circumstances I propose merely to grant a declaration that this exclusion of Ms. S. from the hearing before the respondent was ultra vires s. 40(5) of the Act of 2004. This will not in itself otherwise affect the validity of the Circuit Court order.
Second issue: The presence of Ms. T. during part of the hearing
18. The applicant next objects to the fact that Ms. Y’s sister, Ms. T., was also allowed be present in court for at least part of the hearing (albeit very briefly) and to participate in the proceedings insofar as the proceedings concerned her interests. But in my view this was essential if Ms. T.’s legitimate interests- not least joint her joint ownership of the Lodge with Ms. Y.- were to be protected and the principle of fair procedures vouchsafed. This is especially so given that the Lodge is immediately adjacent to Z House and given further that Ms. Y. herself is registered as a joint owner of that property.
19. In my judgment, this case falls squarely within one of the specific exceptions to the in camera rule provided for ins. 40(8) of the Act of 2004:-
“(8) A court hearing proceedings under a relevant enactment shall, on its own motion or on the application of one of the parties to the proceedings, have discretion to order disclosure of documents, information or evidence connected with or arising in the course of the proceedings to third parties if such disclosure is required to protect the legitimate interests of a party or other person affected by the proceedings.”
20. While this sub-section is designed to deal with the release of information (such as court orders) to third parties – and thereby deals with the issue which arose in Tesco -it is also broad enough to permit the presence of third parties (such as Ms. T.) whose interests might otherwise be affected.
Conclusions with regard to the presence of Ms. T. during the proceedings
21. In that respect, therefore, such disclosure of documents, information and evidence as was necessary to protect the legitimate interests of Ms. T. was sanctioned by s. 40(8). It follows that Judge Buttimer was fully entitled- indeed, obliged- to permit Ms. T. to be present for those parts of the hearing as concerned her own property rights in the Lodge were concerned.
22. Perhaps the real objection on this score on the part of the applicant was that the respondent had ordered the sale of the Lodge in circumstances where it was not the family home, so that if the Lodge was not to have been sold as part of this process, then there would have been no need for Ms. T. (or her representatives) to have been present. This brings squarely into play the question of whether the Court had such a jurisdiction to direct the sale of this property in circumstances where the statutory prerequisites to jurisdiction were not (or, at least, do not appear to have been) satisfied. This is the third issue to which we can now turn.
Third issue: The sale of the lodge as well as the house
23. The order of the Circuit Court of 8th June 2011 provided for:-
“…the sale of the family home of the parties being the property situate and known as [Z House][address given] together with the property adjacent thereto situate and known as [Y Lodge][address give] and being in the ownership of [Ms. Y. and Ms. T.], in one or two lots.”
24. The order recited further that the respective auctioneers for Mr. X and Ms. Y. were appointed to conduct the sale of the two properties “on a joint agency basis with provision for one professional fee to be divided between both of the auctioneers.” The order continued by providing that:-
“[Mr. X and Ms. Y] will provide a sum of €1,500 each to the said auctioneers as soon as possible by way of payment on account for the costs of advertising and other charges to be in incurred in the marketing of the properties.
That the proceeds of sale of both or either of the said properties be placed on joint deposit receipt, in the names of the solicitors for the parties.”
25. The applicant objects to the fact that the order provides for the sale of the Lodge as well as the family home and that he fears that he may be fixed with some of the auctioneering and other fees associated with the sale of the Lodge. He considers that the judge was wrong to take the view that both properties needed to be sold at the same time to realise the maximum value and that it was perfectly possible to contemplate the separate sale of the properties. He further (implicitly) contends that the judge had no jurisdiction to direct such a sale if the statutory preconditions specified in s. 15 of the Act of 1995 had not been satisfied.
26. The question of whether Judge Buttimer ought to have exercised her jurisdiction in relation to both the sale (and ancillary matters such as the auctioneering fees) is a one which, absent exceptional circumstances, is best left for the pending appeal to this Court, rather than being determined in separate judicial review proceedings. Certainly, assuming that there was such a jurisdiction, questions as to how it ought to have been exercised are quite plainly matters that go to the heart of the appeal.
27. The foregoing assumes, however, that the Court’s s. 15(1) jurisdiction was properly invoked by the prior making of a secured periodical payments order, a lump sum order or a property adjustment order. This does not appear to have occurred in the present case. If this is correct, then Judge Buttimer made an order in circumstances where she (technically) had no jurisdiction to do so, although she presumably contemplated making a secured periodical payments order, a lump sum order or a property adjustment order at a later stage when the proceeds of the sale had been realised. Put another way, Judge Buttimer could have directed the sale of the Lodge in the exercise of her s. 15(1) powers given that Ms. Y. is a joint owner of the property, but only where she had already made a secured periodical payments order, a lump sum order or a property adjustment order.
28. While this point strictly goes to jurisdiction and vires, nevertheless I consider that in the exercise of my discretion it would be premature to quash the order pending the outcome of the appeal which the applicant has lodged. The judge of this Court who hears the appeal will be at large- subject, of course, to the applicable legislation -with regard to the merits of any such order. He or she will be well placed to examine the auctioneering and valuation evidence which may be tendered and, specifically, that judge will be in a position to evaluate the pivotal question of whether it would be feasible or desirable to endeavour to effect a sale of the properties separately.
29. It is true that, as a matter of jurisdiction, this Court could only made such an order in circumstances where the jurisdictional stipulates of s. 15(1) had been satisfied. This is, presumably, a matter of which the judge will be fully conscious when the appeal is heard. But it is equally true to say that insofar as this had occurred in the Circuit Court, this was a largely technical breach of the s. 15 requirements which caused no caused particular substantive unfairness to the applicant and it is precisely the type of error which can be rectified on appeal. The error in question is a far cry from cases such as Gill v. Connellan [1987] I.R. 541, where the breaches of fair procedures where so profound that the applicant’s right to a fair and proper hearing at first instance was substantially compromised. The case at hand thus presents an issue which, while perhaps technically jurisdictional, definitely falls at the opposite end of the spectrum: see, e.g., my own judgment in E. v. Minister for Justice and Equality [2012] IEHC 3.
30. E. was an asylum case where the applicant had sought to quash a decision of the Office of the Refugee Applications Commissioner where (it was argued) the Commissioner had breached fair procedures in not putting certain up-dated country of origin information to her. I took the view that any such error could best be addressed on appeal to the Refugee Appeals Tribunal, saying:-
“In the context of asylum matters, it is decidedly preferable that an applicant should exhaust his or her right of appeal to the Tribunal unless there are compelling reasons for suggesting that this would otherwise be unjust or that the error could not be satisfactorily corrected on appeal: see, e.g., the comments of Hedigan J. in B.N.N. v. Minister for Justice, Equality and Law Reform [2009] 1 IR 719 at 732-735. It is, after all, the function of the Tribunal to address the errors (if such there be) disclosed by the first instance decision. Of course, many of these errors can be characterised as jurisdictional, but in truth they often register in the middle of a spectrum which ranges from a pure appeal point on the one hand to that to which goes to the very essence of the jurisdiction on the other. Save where the error registers at the upper end of this spectrum or where the facts disclose a clear injustice, the judicial preference for exhaustion of administrative remedies tends to prevail, again for all the reasons set out by Hedigan J. in B.N.N and the extensive authorities quoted therein.”
31. The same can be said in the present case, not least given that the applicant will have the benefit of a full de novo appeal to the High Court where the case will be completely re-heard.
32. A further, related consideration here is that this Court on appeal may well take a different view on the merits with regard to the sale of the properties. It is quite possible- and I am here expressing no view at all on the merits – that the underlying order will be varied in some way, so that this precise issue will not arise. If there were to occur, then, of course, it would have been quite otiose and unnecessary to quash a part of an order of the Circuit Court which would, in that event, have been completely superseded by an order of this Court delivered in its appellate capacity. It is sufficient perhaps to say that the making of such an order is not inevitable or necessarily predetermined in advance by the underlying facts of the case. But all of this underlines the fact that the arguments advanced are quintessentially matters for the appeal, rather than for judicial review.
Conclusions on the third question
33. Conscious, therefore, that the third issue involves precisely the type of error which can be rectified on appeal, I would accordingly refuse in the exercise of my discretion to quash the Circuit Court order on the ground that it involved a breach of s. 15(1) of the Act of 1995, as this is an issue which caused no particular substantive unfairness to the applicant. In the event that the issue arises on the de novo appeal to this Court, it one which can then be best addressed by the judge of this Court nominated to hear the appeal.
Health Service Executive v OA
[2013] IEHC 172
Judgment of Ms. Justice Iseult O’Malley delivered the 12th of April, 2013
Introduction
1. This is a consultative case stated by District Judge Toale pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961. The issue on which the determination of the court is sought concerns an application by the respondent (“the mother”) for her costs at the conclusion of care proceedings brought by the applicant (“the HSE”). In brief, the HSE contends, firstly, that the District Court has no power to order costs in proceedings of this nature; secondly, and in the alternative, that if it has such power, it may or must take into account the mother’s possible eligibility for legal aid in considering whether to grant an order for costs.
2. The Attorney General, on application, was joined as a notice party in the court to make submissions on the constitutional issues.
The case stated
3. The circumstances in which the issue arose are set out in the case stated, which is set out here in full. (The Applicant is the HSE and the Respondent, the mother.)
(i) At a sitting of the District Court held on Thursday, the 28th April, 2011, the District Court granted an Emergency Care Order under s. 13 of the Child Care Act, 1991 [the CCA] in respect of a child of the Respondent herein, the said Emergency Care Order to expire on 5th May 2011. The respondent did not have the benefit of legal assistance on this occasion, nor was she present in Court. Thursday, the 28th April, 2011 was immediately prior to the May Bank Holiday which fell on Monday, 2nd May, 2011.
(ii) Subsequent to the granting of the said Emergency Care Order, the Applicant issued an application for an Interim Care Order under s.17 of the CCA, returnable to Thursday, 5th May, 2011. The Respondent was notified of the said application by registered post and attended at Dolphin House, Courthouse on the 5th May, 2011. On the 5th May, 2011 the Respondent was legally represented by Mr. Eamonn Bennett, Solicitors, who thereafter represented her interests before the Court on the following occasions;
11th May, 2011
2nd June, 2011
28th June, 2011
12th September, 2011
6th October, 2011
1st November, 2011
and on each of those dates the Interim Care Order was extended.
(iii) On the 28th November, 2011 and on the 12th December, 2011 the Applicant applied under s19 of the CCA for Supervision Orders in respect of the child, which were granted. The later Supervision Order expired on the 5th March, 2012. The Respondent was represented on each occasion by Eamonn Bennett Solicitors.
(iv) On the 5thMarch, 2011 the Respondent’s legal advisers sought their costs as against the Applicant with regard to the said proceedings.
(v) It was contended by the Applicant that it believed the respondent would have been entitled to receive legal aid from the Legal Aid Board and therefore should have applied for legal aid with regard to the proceedings in issue. It was further contended by the Applicant that if the Respondent had retained private legal representation with regard to the Child Care Proceedings before the Court in circumstances where she might have been entitled to receive legal aid, she was not therefore entitled to her costs in this matter.
(vi) It was contended on behalf of the Respondent that it was not within the remit of the Applicant to enquire into the Respondent’s means. Furthermore, it was contended on behalf of the Respondent that it may be a breach of the separation of powers doctrine if the Court were to treading into the area of policy making and this was the function of the executive or legislature.
(vii) It was further contended by the Respondent that section 33 of the Civil Legal Aid Act, 1995 specifies that a Court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.
(viii) Therefore, it was the Respondent’s contention that, as the Legal Aid Board is obliged to seek its costs in all matters which come before the Court in which it represents clients, the Court is not entitled to consider whether or not a person was entitled to receive legal aid, and the issue as to whether or not the Respondent may have been entitled to legal aid should not be considered by the Court when exercising judicial discretion in respect to granting or not granting costs to the Respondent
(ix) AND WHEREAS I, the said judge, am of the opinion that questions of law arise in the foregoing case and do hereby refer the said questions to the High Court for determination.
QUESTION
The questions upon which the opinion of the High Court is required upon the above statement of facts are: –
(i) In exercising my discretion as to whether or not to grant costs to the Respondent [can I] take into account that the Respondent may have been entitled to receive legal aid and has access to legal aid.
(ii) In exercising my discretion as to whether or not to grant costs to the Respondent [must I] take into account that the Respondent may have been entitled to legal aid and has access to legal aid.
4. It is immediately obvious that the questions asked by the learned District Judge are predicated upon the assumption that he has a discretion to grant costs and that the issue, as far as he is concerned, is the exercise of this discretion in the light of the mother’s potential eligibility for legal aid. However, and notwithstanding that the matter was not canvassed in the District Court at all, Counsel for the HSE has in this court advanced an argument that there is in fact no power to award costs to parents in proceedings under the Child Care Act, 1991.
5. The consultative case stated procedure is meant to be a method whereby a District Judge can, where he or she considers it desirable, seek the assistance of this court on a legal question arising in proceedings before him or her. In this case the Judge has asked a question concerning the exercise of a jurisdiction, the existence of which nobody had challenged before him. Where a case has been stated in such circumstances, and a party then makes the case that in fact the jurisdiction does not exist, difficulties may arise in relation to the preparation of the case by the other side. It may also be seen as unfair to the District Judge. In this case, not surprisingly, the written submissions filed on behalf of the mother dated two weeks before the hearing in this court do not deal with the issue.
6. However, in the event counsel for the Attorney General helpfully referred the court to the relevant statutory provisions by way of counter-submission on the issue. I have also had regard to the judgment of Finlay C.J. in Dublin Corporation v Ashley [1986] I.R. 781where, dealing with a case stated from the Circuit Court, he said:
“Although if this were an appeal the ordinary principle of this court would be that it would not entertain any issue or point which had not been argued and decided in the court below, that principle does not, in my view, apply to a consultative case stated from the Circuit Court. The purpose and effect of a consultative case stated by a Circuit Court judge to the Supreme Court is to enable him to obtain the advice and opinion of the Supreme Court so as to assist him in reaching a correct legal decision. Having regard to that purpose and the relationship which exists between the two courts, it would, in my view, be quite inappropriate for the Supreme Court, for any reason of procedure, to abstain from expressing a view on an issue of law which may determine the result of the case before the learned Circuit Court judge.”
7. I accept that this principle also applies to consultative cases stated from the District Court to the High Court. It was so applied by Laffoy J. and Charleton J. in National Authority for Occupational Safety and Health v O’K Tools Hire [1997] 1 I.R. 534 and DPP v Buckley [2007] 3 IR 745 respectively. However, it is worth bearing in mind that what had happened in Ashley was that the court itself was aware of a point which was dispositive of the matter and raised it in the hearing. I am not convinced that the judgment is to be read as giving carte blanche to the parties to introduce substantive issues that were never canvassed below and which in fact undermine the entire basis of the case stated.
The HSE’s submissions on the jurisdiction to award costs
8. The first point made by the HSE is that the District Court is a creature of statute and therefore its powers and duties are defined by and limited to statutory provisions. There is no inherent power to award costs and it is said that there is no provision for costs in the context of child care cases. It argues further that there is a positive legislative policy that costs should not be awarded in child care proceedings.
9. Counsel relies on the judgment of the High Court (Hedigan J) in Southern Hotel Sligo Ltd v Iarnrod Eireann [2007] 3 IR 792 and in particular the following passage (at p. 803):
“… in my view its is well established that there is no inherent power in the District Court to award costs. This follows from the fact that the jurisdiction of the District Court is defined and limited by statute. In Attorney-General v Crawford [1940] I.R. 335 as submitted by the respondent, a divisional court of the High Court decided that in proceedings for the recovery of a penalty under s. 186 of the Customs Consolidation Act, 1876 brought at the suit of the Attorney General the District justice in dismissing the matter had no jurisdiction to award costs specifically, the divisional court found that there was no inherent jurisdiction in the District Court to award costs in the absence of express statutory power. Maguire C.J. observed at p. 342:-
‘It is well established that there is no inherent power or jurisdiction to grant costs and that costs can only be granted under the provisions of some statute or rules; Garnett v Bradley; O’Connor’s Justice of the Peace 2nd ed., Vol. 1 p. 198; Paley on Summary Convictions, 7th ed., p.227.
The District Court was established by the Courts of justice Act, 1924, and is the creature of that statute.’
This finding that the District Court has no inherent jurisdiction to award costs in the absence of an expressed statutory power was affirmed by Finlay P. in The State (Attorney General) v. Shaw [1979] I.R. 136.”
10. The Southern Sligo Hotel case concerned a complaint made by the applicant under s.108 of the Environmental protection Agency Act, 1992 in relation to noise caused by the respondent. The section provides that the District Court may make an order, on the application of the local authority, the Environmental Protection Agency or a person in the neighbourhood, directed to the person or body responsible for the noise complained of to reduce the level of noise or to take specified measures for the prevention or limitation of the noise. There is no reference to costs in relation to this particular section, although costs are expressly provided for in respect of other proceedings under the Act. The case stated asked for the opinion of the High Court as to whether there was a jurisdiction to order costs.
11. The applicant submitted, inter alia, that there was an inherent jurisdiction in the court to award costs arising out of O. 51, r. 1 of the District Court Rules, 1997. This provides as follows:
Save as otherwise provided by statute or by Rules of Court, the granting or withholding of the costs of any party to civil proceedings in the court shall be in the discretion of the Court.
12. Hedigan J. held that the rule did not (and could not) confer a power in relation to costs but governed the exercise of any power otherwise conferred. Furthermore it related only to “civil proceedings”. He considered that proceedings under s. 108 were not a claim in private law but were more in the nature of a public law complaint-
“The relief provided by s. 108 is an order to take measures which is of general interest; there is no provision for damages as in private law proceedings.”
13. Hedigan J. considered that this reflected the nature of the s. 108 procedure as a “public watchdog” charter, in that an applicant could act in either the public or private interest without being deterred by the prospect of an order for costs against him or her.
14. Counsel submits that this is analogous to the functions of the HSE in child care cases. This is, he says, a public body fulfilling a public duty under statute, not a private proceeding. It does not, therefore, come within the definition of “civil proceedings” for the purposes of 0. 51, r. 1.
15. It is worth noting the facts in Crawford and Shaw. Crawford was a case stated from the District Court arising out of an unsuccessful prosecution by the Attorney General under the Customs Consolidation Act, 1876. The District Justice had dismissed the summons on the merits and wished to order the Attorney General to pay the defendant’s costs. The problem for the defendant was that the only relevant provision of the then-extant District Court Rules, 1926 was r. 37. Paragraph (a) of the rule empowered a District Justice to award costs against a prosecutor in summary cases but it specifically exempted the Attorney General. Paragraph (b) provided that (a) did not apply to proceedings dealing with duties under the care and management of the Revenue Commissioners – a category into which this case fell. In the circumstances, paragraph (b) nullified the whole of paragraph (a) and there was therefore no rule under which costs could be awarded.
16. The defendant attempted to fall back on the provisions of the Customs, Inland Revenue and Savings Bank Act, 1877. Section 5 of that Act provided that in all proceedings at the suit of the Crown under the Customs Acts, the same rule as to costs shall be observed as in suits and proceedings between subject and subject. However, there had been no adaptation of that Act and as the proceedings in question were clearly not at the suit of the Crown, the result was a finding by the High Court that there was no jurisdiction to award costs to either party in such a prosecution. The decision in Crawford was affirmed in AG v. Shaw.
17. The HSE argues that there is no statutory provision conferring on the District Court power to award costs to a parent under the Child Care Act, 1991.
18. It is submitted by the HSE that the power to award costs arises in only two instances under the Child Care Act. These are, firstly, where the court decides to join the child as a party under s. 25, in which case a solicitor is to be appointed to represent the child. The HSE is to pay the costs and expenses of the solicitor unless, on the application of the HSE, the court directs any other party to pay them (pursuant to s. 25(4) and (5)). Secondly, under s. 26 the court may, as an alternative to the power under s. 25, appoint a guardian ad litem to a child who is not represented. Again, the HSE will be responsible for the guardian’s costs unless the court directs that another party meet them (s. 26(3)).Since, in reality, the “other party” envisaged can only be a parent or other person in loco parentis, the HSE argues that the legislature must have made a deliberate decision to provide for the possibility that these particular costs could be awarded against the HSE or against the parent, without making similar provision for a parent to claim their own costs.
19. I am told that the HSE does not in practice make applications to have such costs ordered against parents but that it would have a right and a duty to do so if the person concerned was in a position to pay.
20. The HSE says that the Act therefore establishes a policy decision that costs should not be awarded against it (other than in the two specified instances) and that this policy decision is appropriate given the nature of the functions exercised by it under the Act. Counsel points to, inter alia, s. 3 of the Act (which sets out the general principle that it is the function of the HSE to promote the welfare of children who are not receiving adequate care and protection) and s. 16 (the duty to apply to court for a care order or supervision order in respect of a child who requires care or protection and is unlikely to receive it without such an order). It is submitted that proceedings of the sort in question are “inquisitorial” or “investigative” rather than adversarial, with the objective being the promotion of the best interests of the child. In the circumstances it is wrong to see the process involving “winners” or “losers” and there is no “event” for costs to follow.
21. Reliance is placed by the HSE on the judgment of the Supreme Court of the United Kingdom in Re T (Children) [2012] 1 WLR 2281 as support for the proposition that a body such as itself, carrying out child protection functions pursuant to a statutory duty, should in general not be liable for costs.
22. In T., the issue was whether the children’s grandparents should recover their costs against the local authority which had brought proceedings under the UK care legislation. Allegations of abuse had been made against six men and the grandparents were alleged to have colluded. For the purpose of the fact-finding hearing into the allegations the grandparents and five of the men had the status of “interveners” although, as noted in the Court of Appeal judgment ([2010] EWCA Civ 1585), it is not clear whether this was on their own application or otherwise. Four of the five men had legal aid. (The fifth represented himself.) The grandparents, who were in their sixties and who had a combined income of £25,000, seem not to have been eligible for legal aid and borrowed over £50,000, repayable over 15 years, to pay for legal representation. After a hearing that lasted more than five weeks they were cleared of all allegations. They were refused their costs on the basis that it was a policy not to award costs against local authorities in child care cases. They succeeded in the Court of Appeal, where it was held that this rule should not apply to fact-finding hearings, but lost in the UK Supreme Court. Before considering the judgment it is worth noting the remarkable fact that the Supreme Court appeal was conducted on a pro bono basis by all counsel involved and was argued without prejudice to the result in the Court of Appeal.
23. The court observed that since the Children Act, 1989 came into force costs had not been awarded against local authorities in cases where no criticism could be made of the manner in which they had performed their duties. It considered that the principle in question did not depend on the nature of the hearing. Judicial notice was taken of the potential impact that costs orders might have on the activities of local authorities and, further, of the fact that such bodies were financially hard pressed. In its conclusions the court said (at para. 42):-
“In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act, 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.”
The Attorney General’s submissions on jurisdiction
24. The Attorney General is of the view that the District Court does indeed have jurisdiction to award costs, derived from the Courts of Justice Act, 1924 as extended by the Courts (Supplemental Provisions) Act, 1961.
25. Section 91 of the Act of 1924 governs the powers of the rule-making authority of the District Court. In the relevant part it provides: –
In particular rules may be made for all or any of the following matters [including] the practice and procedure of the District Court generally including questions as to costs.
26. Section 34 of the Courts (Supplemental Provisions) Act, 1961) provides as follows: –
The jurisdiction which is by virtue of this Act vested in or exercised by the District Court shall be exercised as regards pleading, practice and procedure generally, including liability to costs, in the manner provided by rules of court made under s. 91 of the Act of 1924, as applied by s. 48 of this Act.
27. Section 17 of the Interpretation Act, 1937 is also relevant:-
Whenever an Act of the Oireachtas confers any new jurisdiction on a court of justice or extends or varies an existing jurisdiction of a court of justice, the authority having for the time being power to make rules or orders regulating the practice and procedure of such court shall have, and may at any time exercise, power to make rules or orders for regulating the practice and procedure of such court in the exercise of the jurisdiction so conferred, extended or varied.
28. The currently applicable rules are contained in O. 51 of the District Court Rules. Rule 1is set out in para. 11 above.
Relevant provisions of the Civil Legal Aid Act. 1995
29. The original, non-statutory Scheme of Civil Legal Aid and Advice was introduced in 1979. It was put on a statutory footing by the 1995 Act. The general criteria for the grant of legal aid and advice are set out in s.24 as follows: –
Without prejudice to the other provisions of this Act a person shall not be granted legal aid or advice unless, in the opinion of the Board-
(a) a reasonably prudent person, whose means were such that the cost of seeking such services at his or her own expense, while representing a financial obstacle to him or her would not be such as to impose undue hardship upon him or her, would be likely to seek such services in such circumstances at his or her own expense, and
(b) a solicitor or barrister acting reasonably would be likely to advise him or her to obtain such services at his or her own expense.
S 33
(1) In this section “costs” includes all outlays including solicitor’ and witnesses’ costs and expenses and barristers’ fees.
(2) A court or tribunal shall make an order for costs in a matter in which any of the parties is in receipt of legal aid in like manner and to the like effect as the court or tribunal would otherwise make if no party was in receipt of legal aid and all parties had respectively obtained the services of a solicitor or barrister or both, as appropriate, at their own expense.
(3) Subject to subsection (8) an applicant for legal aid or advice shall take all possible steps to ensure that any right he or she possesses to be indemnified either in whole or in part in respect of expenses which would, but for this Act, be required to be incurred by him or her in the matter, will, in respect of expenses incurred by the Board on his or her behalf in the matter and not yet reimbursed to the Board, inure for the benefit of the Fund.
(4) A solicitor of the Board nominated for the purpose or a solicitor engaged by the Board under section 11 to provide legal aid or advice to a person in a matter shall take all necessary steps to recover any costs recoverable by such person whether by order of any court or tribunal or by virtue of any settlement reached to avoid or bring an end to any proceedings or otherwise, and shall pay any costs so recovered into the Fund.
(5) A person in receipt of legal aid or advice under this Act shall not agree with any party not so in receipt to forego any costs or to meet any costs of any such party or to accept any sum in satisfaction of his costs or the costs of the Board in the matter, save with the prior approval of the Board, and the Board may make it a condition of such approval that any or all of its costs shall be paid out of any property recovered by the said person by virtue of the agreement.
30. Sub-section (6) provides for recovery of the Board’s costs as against the client, whether by agreement, measurement by the court or tribunal or determination by the Taxing Master.
31. The Act requires applications to be considered by reference to, inter alia, a merits test (roughly, whether there is a prospect of success, or whether it is reasonable to litigate) and a means test. However, the merits test does not apply to children cases and, by virtue of s. 29 (as amended by s. 80 of the Civil Law (Miscellaneous Provisions) Act, 2008) the Board has a discretion to provide legal aid or advice without reference to the applicant’s means.
Conclusions on jurisdiction
32. Counsel for the HSE argues that none of the above provisions expressly confer a power in relation to child care proceedings. The simple answer to that is that they do not have to. The combined effect is clear- the District Court Rules Committee has a general power to make rules providing for costs in civil proceedings and it has done so. The outcome of Crawford and Shaw demonstrates this. Those defendants failed in their claim for their costs because the relevant rules excluded them.
33. Counsel further says that the constitutionality of s. 91 is doubtful. That is an argument too far in the context of this particular case stated and I do not propose to embark upon it.
34. I do not think that the two provisions in the Child Care Act relied upon by the HSE – relating to the costs of the child and the guardian ad litem – are of assistance. These provisions clearly create a new power in the court to grant a right to be represented and to participate to persons who would not otherwise have had such a right, because as a matter of legislative policy it was thought appropriate that they should. It then became necessary to make provision for their costs. It does not follow that they are the only participants who should be entitled to their costs.
35. The next question then is whether child care proceedings are “civil proceedings” for the purpose of 0. 51.
36. It is not clear to me whether the Courts Acts were opened to the court in the Southern Sligo Hotel case. In any event, without attempting to second-guess Hedigan J. in relation to the particular procedure under the Environmental Protection Act and the provisions of that Act, it seems to me that the only distinction made in the Rules is between civil and criminal proceedings. There does not seem to be, for the purposes of the question of costs, a distinction between public and private civil proceedings.
37. The final issue under this heading is whether policy considerations require the court to refuse to grant costs against the HSE in child care proceedings.
38. There is no Irish authority that supports the HSE on the point. The decision of the UK Supreme Court in the T. case is certainly persuasive but I feel that I should not follow it for a number of reasons.
39. The grandparents in the case were not parties and do not appear to have been eligible for legal aid. With respect, I have to say that in my view the result of the application of the rule to them would be better described as an injustice than, to use the court’s term, a “serious misfortune”, were it not for the fact that the local authority concerned ran the appeal to the UK Supreme Court as a moot. In this regard I would prefer the approach of the Court of Appeal.
40. The general policy set out in T. is, I accept, a legitimate one and not unlike that considered by the Supreme Court here in Dillane v Ireland [1980] ILRM 167. In that case, the provision in the District Court Rules preventing a successful defendant from recovering costs against a member of An Garda Siochana acting as a common informer was in issue. (In contrast, costs could be awarded against an “ordinary” common informer.) The discrimination was held not to breach the equality guarantee of Article 40.1 because it related to the difference in social function between the two categories in a manner that was not arbitrary or capricious. Significantly, Henchy J. said in relation to the rule: –
“What matters is whether it could reasonably have been arrived at as a matter of policy by those to whom the elected representatives of the people delegated the power of laying down the principles upon which costs are to be awarded.”
41. By contrast, the rule now contended for by the HSE not only has no authoritative basis but is, it seems to me, plainly contrary to the explicit statement of legislative policy in the Civil Legal Aid Act. That Act post-dates the Child Care Act. It is clearly applicable to child care proceedings, given the reference in s. 28(3) to proceedings concerning “the welfare of (including the custody of or access to) a child”. It requires, in s. 33, that an application for costs should be made on behalf of the legally aided party and that the court should treat the application as it would that of a party without legal aid. There is no exception to this requirement for cases involving children. It follows that there is no statutory basis for the assertion that the legislative policy is that costs should not be awarded and indeed the contrary appears to be the case.
42. In Dunne v The Minister for the Environment, Heritage and Local Government [2008] 2 IR 775 the Supreme Court reversed a High Court decision to award costs to an unsuccessful plaintiff. The award had been made on the basis that particular considerations applied to cases where (1) the plaintiff was acting in the public interest in a matter that involved no private personal advantage and (2) the issues raised were of sufficient general importance to warrant an order for costs being made in the plaintiffs favour. Giving the judgment of the court, Murray C.J. said ( at p. 783)
“The rule of law that costs normally follow the event, that the successful party to proceedings should not have to pay the costs of those proceedings which should be borne by the unsuccessful party, has an obvious equitable basis. As a counterpoint to that general rule of law, the court has a discretionary jurisdiction to vary or depart from that rule of law if, in the special circumstances of a case, the interests of justice require that it should do so. There is no predetermined category of cases which fall outside the full ambit of that jurisdiction. If there were to be a specific category of cases to which the general rule of costs did not apply that would be a matter for legislation since it is not for the courts to establish a cohesive code according to which costs would always be imposed on certain successful defendants for the benefit of certain unsuccessful plaintiffs.”
The principle expounded here seems to me to be equally applicable to the contention that there are certain types of defendant against whom an award of costs should never be made. If the general rule, combined with the court’s discretionary power to ensure that justice is done, is to be set aside it would, in my view, require legislative intervention.
43. It may well be that a practice has grown up of not awarding costs where the relevant party is legally aided, as happened in the Supreme Court in HSE v A.N (unrep. Fennelly J, 14th April, 2010). It may also be that in many cases that is a proper exercise of the court’s discretion. However, I have not been directed to any judgment on the point where s. 33 had been considered. I am therefore not prepared to endorse such a practice as having the status of a legal principle.
44. I therefore conclude that the District Court does have a jurisdiction, based on statute and on the District Court Rules, to award costs in proceedings under the Child Care Act, 1991and that it is not debarred from so doing by policy considerations relating to the function of the HSE under that Act.
The questions posed in the case stated
45. The court is asked whether the potential eligibility of the mother for legal aid should be a factor in the court’s exercise of its discretion in relation to costs.
Submissions on behalf of the HSE
46. The HSE interprets this case as being, in reality, a claim for the funding of the mother’s legal representation other than through the provision of civil legal aid under the Act. On this aspect the HSE argues that the establishment of the civil legal aid system is the mechanism chosen by the State to vindicate the right of access to the courts in cases of this nature. It is submitted that the mother is “manifestly” entitled to legal aid and should have applied for it. Counsel says that if she chooses not to, she should not expect “the public purse” to fund her choice. It is argued that underlying her claim for costs must be an assertion of a constitutional right to legal aid, on the basis that she must be taken to be maintaining that the legal aid system is inadequate to protect her right of access to the court. The assumption is that she considers the limitation of choice in relation to legal aid solicitors to be an impermissible restriction.
47. Following through on this line of argument, counsel for the HSE then cites a number of authorities for the proposition that there is no constitutional right to legal aid in civil matters, while also pointing to features of the Legal Aid Board’s operation which do in fact facilitate the exercise of choice by a legally aided person. Such limitations as there exist are, it is submitted, not unreasonable.
48. It is submitted that “a party is not at liberty to have unlimited choice of legal representation in all circumstances”. Concern is expressed that “were it otherwise the entire system for the provision of legal aid would be undermined”.
49. The HSE says that it does not seek to limit the mother’s choice of representation. “It merely seeks to avoid being fixed with liability for the costs of her choosing representation which is not funded by the legal aid scheme. In fact, the [HSE] merely asks that, in the event that [the mother] does so choose and seeks to recover the costs which flow from that choice that the District Judge in considering the question should have regard to the fact that the costs exposure has arisen as a result of [her] choice.”
50. The further submission is made that the separation of powers is in issue. To require the District Court to disregard the availability of legal aid would be to disregard the policy decision of the Oireachtas in determining how such representation should be funded “especially where the effect of such a restriction would be to impose the burden of the cost of such representation on the HSE”. This, it is said would be contrary to the principles espoused in Sinnott v Minister for Education [2001] 2 IR 545 and T.D. v Minister for Education [2001] 4 IR 259.
Submissions on behalf of the Attorney General
51. Counsel for the Attorney General says that the mother is attempting to turn her right to be legally represented into a right to costs. If this were to be accepted it would be tantamount to establishing a privatised legal aid system. There could be no such right in absence of a constitutional right to legal aid in civil cases and it has been definitively established by the Supreme Court in Magee v Farrell [2009] IESC 60 that there is no such right.
52. Counsel refers to the child-centred nature of the jurisdiction and says that in these proceedings there are no winners or losers and no “event” for costs to follow. That being so, the only basis on which a right to costs can be asserted is by virtue of the simple fact that the mother is involved in the case. However it was accepted that the District Judge does have some discretion in relation to costs- while there is no “event”, the judge can have regard to the run of the case.
53. On the possible availability of legal aid, it is submitted that it is relevant because the core question in relation to costs is the reasonableness of legal representation, and applying for legal aid is a manifestation of reasonableness. If a parent had difficulty in getting legal aid the judge could take that into account.
54. The court was informed that the Attorney General is expressing these views only in relation to child care cases and not as a general proposition. The concern is, apparently, that the availability of costs would make proceedings more adversarial because private practitioners would see an opportunity to get costs, which is not a motivation for solicitors of the Legal Aid Board.
Submissions on behalf of the mother
55. Counsel for the mother submits that this was a matter in which it was reasonable for her to seek legal representation; that her constitutional right of access to the court entitles her to choose her own lawyer; that a corollary of that right is the right to seek costs; that the right to seek costs cannot be fettered by questioning as to her means and that, in any event, legal representatives instructed under the legal aid scheme would have been obliged by s. 33 of the Act to seek costs in the same manner. It is not, therefore, open to a District Judge to decide the issue of costs on the basis of the identity of the legal representative.
56. The mother, too, relies on the principle of the separation of powers and the same authorities in relation thereto. The submission in this regard is that the court would be engaged in policy making were it to decide to embark on enquiries as to the mother’s eligibility for legal aid.
57. Counsel says that he is not asserting either a constitutional right to legal aid or a right to be paid costs regardless of the outcome of a case. He does assert a constitutional right to choose one’s own lawyer, which includes the choice of whether to apply for legal aid or not where one may be eligible for it. He relies on the comments of O’Neill J in the case of Law Society of Ireland v Competition Authority [2006] 2 IR 262. In that case, the Competition Authority had attempted to limit the choice of legal representation of persons summoned to be examined on oath before it.
“Firstly, the legal representation is not State funded: it is the result of contracts freely entered into between the legal representatives in question and persons under investigation by the respondent or witnesses. Needless to remark, the fees of these legal representatives must be paid by the persons under investigation or by witnesses if they avail of legal representation. Thus there can be no question of the respondent having a discretion similar to that afforded to a court under reg. 7(1) of the Criminal justice (Legal Aid) Regulations 1965.
Notwithstanding the specific discretion given to a court under the above regulations, Barr]. nonetheless held in The State (Freeman) v. Cannel/an {1986} l.R. 433 that freedom of choice of solicitor, from the legal aid panel, should not be denied save for good and sufficient reasons. The conclusion of Barr]. in that regard would appear to me to be similar to that reached by the United States Supreme Court in Wheat v. United States (1988) 486 U.S. 153, namely that a presumption in favour of choice of lawyer must be recognised.”
58. At p. 281 he says:-
“That leaves me to conclude that in civil proceedings, such as the type conducted by the respondent, there must be a strong presumption in favour of freedom of choice of representation. Although it is the case that in these proceedings the clients will invariably be paying for their own lawyers, this factor does not in my view add significantly to the weight or strength of this presumption. Regardless of who is paying for the representation the principle must in my view remain essentially the same.
It could not in my view be said that a person availing of the criminal free legal aid scheme should have less autonomy or control over the conduct of their defence and in particular what lawyers were selected to conduct that defence, than would be the case if they were contracting for the services and paying for them themselves.”
59. In conclusion, O’Neill J. held as follows:-
“I am satisfied that a person facing a tribunal in respect of which it is appropriate to have legal representation does, as an incident or aspect of the right to fair procedures, have a constitutional right, pursuant to Article 40.3 of the Constitution of Ireland 1937, to freely select the lawyer that will represent him or her from the relevant pool of lawyers willing to accept instructions.”.
60. The entitlement to costs is a separate matter that may or may not arise on the facts of an individual case as determined by the judge. Reasonableness is a key consideration – costs may be awarded in favour of the HSE if a parent defends a case unreasonably. There is, however, nothing unreasonable in deciding not to apply for legal aid when one has a right not to. The District Court has, therefore, no right to take into account how a litigant chose his or her representative. The protection of the resources of the HSE cannot defeat this right.
61. On the nature of child care proceedings, it is agreed that the judge’s role is inquisitorial but, it is contended, the process itself is adversarial. Parents who contest the application made by the HSE can only do so by challenging the HSE’s evidence and adducing their own. There are always issues to be determined, the primary one being whether the HSE was justified in making the application. Going to a private lawyer does not, as such, make the process more adversarial.
Conclusions
62. There is of course no doubt about the constitutional status of the right of access to the courts. The HSE does not dispute that and nor does it dispute the right, in general, to a choice of lawyer. However, what it is trying to establish here is a principle that the choice of lawyer should in cases of this sort be limited to the extent provided by the Legal Aid Board, in order that its own resources not be exposed.
63. I accept that child care proceedings under the Child Care Act, 1991 may not be directly analogous to most other forms of litigation. It is certainly the case that the judge’s function is different, in that he or she must adopt a more inquisitorial role and reach a conclusion based on the welfare of the child beyond all other considerations.
64. However, that is not to say that it is wholly unlike other litigation. The concept that “there are no winners or losers” is an appropriate one for the attitude of the professional staff of the HSE and its lawyers but it asks a degree of detachment that is very unlikely to be shared by a parent. The procedure is, as a matter of fact, adversarial. Furthermore, although the proceedings may often be more accurately described as a process than a unitary hearing, there may well be individual issues decided along the way in favour of one side or another.
65. I agree with counsel for the mother that this case is not about legal aid or an attempt to indirectly establish a right to legal aid in civil cases. It is, in my view, about the right of an individual litigant who is not on legal aid and has not applied for legal aid to be treated in the same way as any other litigant who is not on legal aid – without arbitrary, capricious or invidious discrimination that, on the arguments mounted by the HSE and the Attorney General, could be based only on her supposed lack of means. The applicant is not seeking to have her representation “funded from the public purse”. She chose her representative, as I accept she was entitled to do as a matter of right, and now seeks what any litigant who has succeeded in litigation is entitled to seek- her costs. I know nothing about the merits of the claim or whether in the normal course of events, having regard to all the normal factors taken into account by a judge, she would be entitled to an order for costs. All that appears from the case stated to have been put up by way of opposition to her claim is, in effect, the proposition that she is poor.
66. I realise that putting it in this way may seem invidious and that the HSE and the Attorney General would, with complete sincerity, disclaim any such discriminatory intent. However, there is no way around the fact that the consequence of their submissions would be that persons of limited means would have to justify their choice of advocate, in a way that wealthier individuals would not, despite the fact (or because of the fact) that they are not seeking State assistance. The principle they contend for would mean that judges could or should subject litigants to a sort of reverse eligibility test, enquiring into their income and assets and perhaps, if someone appeared to be over the means threshold, considering to what extent the Legal Aid Board might have used its discretion. This sort of enquiry is understandable when a person applies for a State-funded service but I can see no justification for such an intrusive process when the individual has chosen not to so apply.
67. The HSE has advanced as a rationale that public policy favours the protection of its resources. This argument, however, depends on the assumption that s. 33 of the Civil Legal Aid Act, 1995 is to be regarded as a dead letter and I have already said that I am not prepared to accept that as a matter of law.
68. The Attorney General would apparently prefer that child care cases be dealt with by the practitioners of the Legal Aid Board. I should perhaps state here that I have no doubt that the body of solicitors working for the Board, whether as employees or on the panel of private solicitors, have amassed an impressive expertise in this area of law. However, there is simply no precedent for the proposition that a judge can use his or her discretion in the matter of costs to compel, or even encourage, litigants to abandon their choice of advocate. To do so would, I believe, amount to an impermissible interference with that choice. Costs are an aspect of the right of access to the courts- per Finlay P. in Henehan v Allied Irish Banks (unrep., 19th Oct., 1985)
“Jurisdiction to award costs is part of the ancillary machinery associated with access of citizens to the courts [and] should be construed in the light of the constitutional origin of that right of access.”
69. I conclude that the mother was entitled to choose her own representative, that she was not in any way obliged to apply for legal aid and that her eligibility for legal aid, whether established or presumed, has no bearing on her entitlement to apply for her costs. I will therefore answer both of the questions posed in the negative.
People (DPP) v Gormley
[2014] IESC 17
Judgment of Mr. Justice Clarke delivered on the 6th March, 2014.
1. Introduction
1.1. It is now almost 40 years since this Court made clear that the requirement in Article 38.1 of the Constitution that a person should not be tried on any criminal charge save in “due course of law” meant more than mere technical compliance with the letter of the law. The Court held that due course of law meant that a trial was required to be conducted in accordance with the concept of justice, that the procedures applied be fair, and that the person accused be given every opportunity to put forward a defence to the charges. That decision of this Court was in State (Healy) v. Donoghue [1976] I.R. 325. The case involved a young man who had been separately convicted in the District Court on two occasions and sentenced to terms of imprisonment. He had not been legally represented at either of his trials. In one case, a District judge had given Mr. Healy legal aid under the then existing statutory scheme. However, due to what might best be called an industrial dispute involving the lawyers involved in that scheme, no representation was available. In the second case, Mr. Healy had not sought legal aid. Ultimately, this Court held that Mr. Healy’s trial in both cases could not be said to have been conducted in due course of law because, having regard to the seriousness of the charges which he faced and his impecuniosity, his trial without the State affording him assistance in obtaining legal representation breached basic principles of fairness.
1.2. In these two cases, this Court is concerned with at least the same broad area of constitutional law. No question of legal assistance being provided by the State arises as such. However, the core issue which does arise is as to whether a person arrested on foot of serious criminal charges is entitled to the benefit of legal advice prior to the commencement of any interrogation and prior to the taking of any samples for the purposes of forensic examination. One of the key questions which arises is as to whether the broad concept of constitutional fairness in the criminal process, as identified in State (Healy) v. Donoghue, requires such representation.
1.3. As will be addressed further in this judgment, the question of the recognition of such a right has been a real possibility for some time. European and other major courts have, in one way or another, recognised a right of that type. The possibility that Bunreacht na hÉireann might properly be interpreted as conferring such a right could not, for the reasons analysed in this judgment, come as a surprise to anyone with an interest in this area, least of all the authorities.
1.4 While it will be necessary to go into the facts of both cases in due course, it is appropriate to start by giving a broad outline of the issues which arise.
2. A Broad Outline
2.1. Both of the defendants (respectively “Mr. Gormley” and “Mr. White”) were convicted of serious criminal offences. On the 7th November, 2007, Mr. Gormley was convicted in the Central Criminal Court of attempted rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. He was later sentenced on the 15th January, 2008, to 6 years imprisonment dating from 14th January, 2008, with 5 years post release supervision. Mr. White was convicted at the Central Criminal Court on the 29th July, 2009, of murder and was sentenced to mandatory life imprisonment. Both separately appealed to the Court of Criminal Appeal.
2.2. In the Court of Criminal Appeal (see Director of Public Prosecutions v Raymond Gormley [2009] IECCA 86), Mr. Gormley sought to challenge his conviction on the ground that the trial judge erred in admitting evidence of statements allegedly made by him to prosecuting gardaí. He argued, first, that there had been an unlawful entry into his dwelling and that, as a result, his arrest was in breach of his constitutional rights. As a result, it was said that any evidence obtained thereafter was inadmissible. Second, he contended that the relevant interviews were conducted in breach of his constitutional right of access to a lawyer. In respect of the first contention, the Court of Criminal Appeal found that Mr. Gormley had by his words cured any unlawful presence of the gardaí and thus his arrest was deemed lawful. On the other contention, the Court was “satisfied that it was open to the learned trial judge to conclude that the attempts by the Gardaí to make contact with the solicitor nominated by the applicant are bona fide and reasonable”, citing their “diligence and resourcefulness in locating the solicitor nominated by the applicant.” Mr. Gormley’s application for leave to appeal was, therefore, dismissed.
2.3. Mr. White sought leave to appeal his conviction on a number of grounds (see Director of Public Prosecutions v Craig White [2011] IECCA 78). Of particular relevance to this appeal is ground 3 by which it was suggested that the trial judge erred in ruling that the taking of samples from him, pursuant to the Criminal Justice (Forensic Evidence) Act 1990, was lawful, because of what was said to be a breach of his right of reasonable access to his solicitor. The Court of Criminal Appeal, having considered all of the surrounding circumstances, including the fact that there was an indication that a solicitor was coming to the station “immediately”, concluded that “[i]n the absence of any refusal to give the samples, and having regard to the fact that the applicant consented to the taking of samples (his reservations remaining secret and undisclosed to the gardaí until the trial), it seems difficult to criticise the learned trial judge for finding that the applicant was not deprived of reasonable access to his solicitor.” Thus, Mr. White’s application for leave to appeal was also rejected.
2.4. Thereafter both sought leave to appeal further to this Court under s. 29(2) of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006). This subsection provides:
“(2) A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the Supreme Court if that Court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”
2.5. On the 16th February, 2011, the Court of Criminal Appeal certified the following questions as questions of exceptional importance in Mr. Gormley’s case:
“1. Does the constitutional right of access require that commencement of questioning of a detained suspect (who has requested a solicitor) be postponed for a reasonable period of time to enable the solicitor who was contacted an opportunity to attend at the garda station?
2. Is the constitutional right of access to legal advice of a detained suspect vindicated where members of An Garda Síochána make contact with a solicitor requested by the suspect but do not thereafter postpone the commencement of questioning for a reasonable period of time in order to enable the named solicitor to actually attend at the garda station and advise the suspect?”
2.6. On the 16th February, 2012, a s. 29 certificate was given by the Court of Criminal Appeal in Mr. White’s case in respect of the following question:
“In circumstances where a person is in custody and has requested a solicitor, are members of An Garda Síochána, for the purpose of ensuring protection of rights of an accused, obliged not to take, or to cease if they have commenced taking, any forensic samples until such time as a person who has sought access to a solicitor, and that solicitor has indicated he/she will attend, has had actual access to that solicitor.”
2.7. A subsequent application was made to this Court on the 7th March, 2012, whereby two further grounds were permitted to be argued in Mr. White’s case. These were:
“1. Must a warrant issued by a District Court Judge, pursuant to s. 42 of the Criminal Justice Act, 1999, show on its face compliance with the statutory conditions in s. 42 of the Criminal Justice Act, 1999?
2. Is a fingerprint expert witness entitled to state his opinion as being one of which he has “no doubt” when stating that a fingerprint found on an item of evidence matched that of the accused.”
However, it must be noted that these additional issues only arise for consideration in the event that the appeal is unsuccessful on the initial certified issue.
2.8. As appears from the above, there are, however, differences between the two cases. In the case of Mr. Gormley, the evidence which was admitted at his trial concerned statements made by him while being questioned by members of An Garda Síochána after he had requested the presence of a solicitor but before that solicitor arrived. It is important to record at this early stage that, having regard to the fact that the request was made on a Sunday, the solicitor concerned had attended with commendable expedition and there was not, nor could there have been, any suggestion of any delay. Mr. Gormley’s case, therefore, concerns a statement made after a request for a solicitor but before the solicitor concerned arrived.
2.9. Mr. White’s case is different. In his case, buccal swabs from his mouth and a number of hairs were taken while he was under arrest. Again, a request for a solicitor had been made and the swab and hairs concerned were taken prior to the arrival of the relevant solicitor. Again the solicitor attended with very commendable expedition. Thus, the difference in Mr. White’s case is that the evidence which was procured after the request for a solicitor but before the arrival of that solicitor was in the nature of objective forensic evidence rather than a statement made. As will appear later in this judgment, there is at least an argument that different considerations may apply as and between the two cases deriving from that very difference. There are also other factual aspects to the circumstances in which Mr. White had the swab and hairs concerned taken from him which will need to be explored in the course of this judgment.
2.10. However, it will be seen that there is one major common question which has the potential to arise in both cases. That question concerns the procuring of material evidence on which an accused might be convicted at a time when the relevant accused is under arrest, has sought the attendance of a solicitor, but before the solicitor concerned has arrived.
2.11. It is necessary to consider the legal consequences of such a situation on a number of bases. I will address the jurisprudence of the European Court of Human Rights (“ECtHR”) in due course. However, it seems clear that, at least in the view of that Court, the protection against self-incrimination which is guaranteed by the European Convention on Human Rights (“ECHR”) is breached where a person makes an incriminating statement which forms a substantial part of the evidence leading to their conviction in circumstances where the relevant person does not have the benefit of legal advice at the time in question and where they have not waived any entitlement to legal advice. That much being clear, a series of key further questions arises. They are:-
(i) Whether the interpretative obligation imposed on the Irish courts under s. 2 of the European Convention on Human Rights Act 2003 is such that the Irish courts are, in the light of that jurisprudence of the ECtHR, required to interpret this aspect of Irish law in the light of the ECHR, so that Irish law must be interpreted as preventing the use of statements made or evidence of samples taken during a period between a request for a solicitor being made and the attendance of the solicitor concerned;
(ii) Whether it is now appropriate to interpret the right to trial in due course of law as recognised in Article 38.1 of the Constitution as encompassing a right to legal advice prior to either or both of the conduct of an interrogation of a suspect or the taking of forensic samples from such a suspect; and
(iii) Whether any distinction arises, either under the ECHR or as a matter of Irish constitutional law, between respectively cases of interrogation and cases of the taking of objective forensic samples?
2.12. Obviously, to the extent that the issues identified at points (i) and (ii) in the preceding paragraph, or either of them, might find favour, then the question of whether there may be exceptions to the application of the broad principle also arises, at least to the extent that any such possible exception might have relevance on the facts of either of these cases.
2.13. In considering the proper approach to the interpretation of Bunreacht na hÉireann, it is, in accordance with the jurisprudence of this Court, of course, appropriate to consider the case law of the ECtHR and also the constitutional jurisprudence of the superior courts of other jurisdictions which have a similar constitutional regime to ourselves. Also, it clearly follows that, if a constitutional right of the sort urged on behalf of both Mr. Gormley and Mr. White is found to exist, then questions as to the applicability, in an indirect fashion, through the European Convention on Human Rights Act 2003, of the Strasbourg jurisprudence do not really arise. On that basis, it seems appropriate to deal first with the Irish constitutional position.
2.14. Before going on to consider the position in Irish constitutional law, it is appropriate to briefly set out the sequence of facts relevant to the request for, and attendance of, a solicitor in each of the cases.
3. The Facts in Gormley
3.1. Mr. Gormley is alleged to have committed the offences for which he was prosecuted in the early hours of the 24th April, 2005, a Sunday. He was arrested at 1.47 p.m. on that same day and arrived at the Garda station at 2.00 p.m. He was informed of his rights and gave the names of two solicitors at 2.15 p.m. Efforts were then made by the gardaí to locate either one of the two solicitors, including visiting the home of the parents of one of the solicitors and leaving a message with his wife. It was said that the gardaí did not have the home phone number of the requested solicitor.
3.2 Then, at 3.06 p.m., the relevant solicitor contacted the Garda station and confirmed that he would attend at the station “shortly after 4pm” or “as soon as possible after 4pm”. Mr. Gormley was first interviewed at 3.10 p.m. by the investigating gardaí in the course of which he made a number of inculpatory admissions. This interview was recorded on tape. The requested solicitor eventually arrived at 4.48 p.m. He met with Mr. Gormley between 5.00 p.m. and 5.45 p.m. A second interview with Mr. Gormley began at 6.47 p.m. and concluded at 8.30 p.m. Again, this was video-recorded. At 7.45 p.m., during the currency of this interview, an application to extend Mr. Gormley’s detention for a further 6 hours was granted. The inculpatory statements made during the first interview were deemed admissible by the trial judge and, as outlined above, Mr. Gormley was found guilty of attempted rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.
4. The Facts in White
4.1. On the 15th November, 2005, Mr. White is alleged to have been an occupant in a stolen vehicle when he is said to have discharged 4 bullets at a Mr. Noel Roche, ultimately resulting in Mr. Roche’s death. The vehicle said to have been involved in the crime was later located and a brown bag containing a handgun, balaclava and a pair of gloves was found on the rear seat. Forensic analysis of this bag and other materials found nearby resulted in a match to Mr. White’s DNA.
4.2. Mr. White was arrested under s. 42 of Criminal Justice Act 1999 at Mountjoy Prison at 7.45 a.m. on the 13th February, 2008, and was taken to Raheny Garda Station. At 7.58 a.m. he made a request for his nominated solicitor. This solicitor could not be reached at her usual business number at this time, but a recorded message provided an alternative number for emergencies. This information was conveyed to Mr. White and he was asked whether another solicitor could be contacted. Mr. White was also told that efforts would continue to be made to contact the nominated solicitor. At 8.15 a.m., a message was left on the emergency phone number as a call to that number was not answered. However, the call was returned within one minute and the solicitor confirmed that she was coming “immediately” to the garda station. The solicitor declined the opportunity to speak to Mr. White via the phone. Mr. White was informed of this development. The solicitor arrived at the garda station at 9.42 a.m.
4.3. At 8.00 a.m., permission had been requested from an appropriate officer for the taking of various samples (a blood sample, a buccal swab from the mouth, and a hair sample) from Mr. White under the Criminal Justice (Forensic Evidence) Act 1990. This request was granted at 8.05 a.m. The various samples had all been taken by 8.30 a.m. In evidence, Mr. White stated that he did not object to the taking of the samples because he was of the belief that they would be taken forcibly if he did object. He had been told by a senior officer of An Garda Síochána that his consent was necessary, when in fact it was not. The relevant provisions of the Criminal Justice (Forensic Evidence) Act 1990 (ss. 2 and 4(b)) had by then been amended by the s. 14 of the Criminal Justice Act 2006 to remove the requirement for written consent for swabs from the mouth. However, after the samples were taken, Mr. White refused to sign forms confirming his consent.
4.4. As indicated earlier, it is first appropriate to turn to the Irish constitutional position.
5. The Current Irish Jurisprudence
5.1 In People (Director of Public Prosecutions) v Madden [1977] I.R. 336, the Court of Criminal Appeal had to consider the position of an accused who had not been provided with access to lawyer prior to making a statement, having been arrested under the Offences Against the State Act 1939. There, it was held:
“This Court is satisfied that a person held in detention by the Garda Síochána, whether under the provisions of the Act of 1939 or otherwise, has got a right of reasonable access to his legal advisers and that a refusal of a request to give such reasonable access would render his detention illegal. Of course, in this context the word “reasonable” must be construed having regard to all the circumstances of each individual case and, in particular, as to the time at which access is requested and the availability of the legal adviser or advisers sought. However, the Court is not satisfied that there is any obligation on the Garda Síochána when detaining a person either under s. 30 of the Act of 1939 or under any other authority, to proffer to such person the assistance of a legal adviser without request.”
5.2 In The People (Director of Public Prosecutions) v Healy [1990] 2 I.R. 73, an accused, again having been arrested under the Offences Against the State Act 1939, had been detained and questioned for a number of hours. A solicitor, retained by a member of the accused’s family, arrived at the garda station but was denied access until the accused had completed the making of a statement. The admissions contained in that statement were the sole evidential basis on which he was prosecuted. This Court confirmed that there was no distinction between the arrival of a solicitor on the request of an accused and on the request of a person acting bona fide on his behalf. The majority of the Court (Griffin J. did not feel it was necessary to answer the question in the circumstances of the case) also ruled that the right of reasonable access to a lawyer was constitutional in origin and not merely legal. Finlay C.J. (for the majority) went on to observe:
“A right of reasonable access to a solicitor by a detained person, I am satisfied, means, in the event of the arrival of a solicitor at the garda station in which a person is detained, an immediate right of that person to be told of the arrival and, if he requests it, immediate access. The only thing that could justify the postponement of informing the detained person of the arrival of the solicitor or of immediately complying with a request made by the detained person when so informed, for access to him, would be reasons which objectively viewed from the point of view of the interest or welfare of the detained person, would be viewed by a court as being valid.”
5.3 This Court returned to the issue of reasonable access to a lawyer in People (Director of Public Prosecutions) v Buck [2002] 2 IR 268, where it was necessary to consider the position of an accused who was arrested on a Sunday. Difficulties were encountered in procuring a legal advisor for the accused. He was questioned for a number of hours before a solicitor arrived. However, no statement was taken until after the accused had consulted with a solicitor. It was in this post-access statement that the accused made inculpatory admissions. He sought to challenge the admission of this statement in evidence on the ground that he was subjected to pre-consultation interrogation, amounting to a breach of his constitutional rights. In response to this submission, Keane C.J., on behalf of the Court, noted Walsh J.’s dissent in People (Director of Public Prosecution) v Conroy [1986] I.R. 460 to the effect that pre-access interrogation was a “constitutionally forbidden procedure”, yet stated:
“It would also seem to me that, where a person being detained under a statutory provision asks for a solicitor to be present and the gardaí make bona fide attempts to comply with that request, the admissibility of any incriminating statement made by the person concerned before the arrival of the solicitor should be decided by the trial judge as a matter of discretion in the light of the common law principles to which I have referred, based on considerations of fairness to the accused and public policy. Such an approach would seem preferable to a rigid exclusionary rule that would treat such statements as inadmissible without any regard to the circumstances prevailing in the particular case.”
5.4 In The People (Director of Public Prosecutions) v O’Brien [2005] 2 IR 206, an accused, whilst lawfully detained, requested the services of a solicitor. However, he did not specify a particular solicitor. The gardaí recommended a particular solicitor consciously knowing that there would be a delay in his arrival. In the intervening period, the gardaí continued to interrogate the accused and the accused made certain incriminating statements. In ruling these statements inadmissible for breach of an accused’s constitutional right to reasonable access to a lawyer, this Court, per McCracken J., held:
“…it was certainly wrongful of the gardaí to question him pending the arrival of the solicitor but that questioning is not what created the unlawfulness of his detention. The statements made by the accused pending the arrival of his solicitor would have been inadmissible whether there had been an undue delay in the arrival of the solicitor or not. What made the detention unlawful was the deliberate and conscious decision of the gardaí to contact Mr. Gaffney, rather than a more convenient solicitor, when they knew or ought to have known that there would be a very considerable delay in his attendance. That decision was made in breach of the accused’s constitutional rights and, therefore, from the moment that decision was made his detention became unlawful. The detention remained unlawful so long as the breach of the constitutional rights continued.”
5.5 This Court has also ruled that the right to reasonable access does not extend to having a lawyer present during questioning (see Lavery v Member in Charge, Carrickmacross Garda Station [1999] 2 IR 390).
5.6 The taking of samples in the absence of advice from a requested solicitor was considered by the Court of Criminal Appeal in People (Director of Public Prosecutions) v Creed [2009] IECCA 90. In that case, the gardaí had made a number of failed attempts to contact a solicitor after being requested to do so. These attempts were criticised by the Court, but the failure to procure a solicitor was not found to be conscious and deliberate. The following morning a hair sample was taken from the accused, which action did not require his consent. No request was made at that time for a solicitor. The Court of Criminal Appeal differentiated between the request for the solicitor the previous night and the procuring of the relevant hair sample the following morning, holding that the request on the previous night was clearly related to questioning, not the taking of the sample. Thus, it concluded that it was lawful for the trial judge to admit the evidence as to the hair sample. However, the Court did add:
“A deliberate and conscious violation of rights may indeed render a detention wholly unlawful and render any evidence taken as a consequence of it, inadmissible. Where, however, there has been no deliberate and conscious violation of the constitutional right to access to a solicitor but where reasonable efforts have not been made to obtain a solicitor and the accused has not acquiesced in that situation, it must then be a matter of discretion for the trial judge to rule as to whether any particular evidence obtained in that context should be admitted or not. It does not at all follow that because there was no deliberate and conscious violation of the right, that it would be a fair procedure towards the accused to admit evidence obtained in the absence of a solicitor when reasonable efforts have not been made to obtain one. In considering the exercise of the discretion, the judge would also have to bear in mind that under the Custody Regulations, the relevant garda is required to inform the accused that the required solicitor is unobtainable.”
5.7 It is clear that the current state of the jurisprudence in Ireland recognises that the right to have access to a lawyer while in custody is a constitutionally recognised right. A failure to provide reasonable access after a request from a suspect in custody can, on that basis, render the custody unconstitutional and thus lead to any evidence obtained on foot of such unconstitutional custody becoming inadmissible. To date the jurisprudence has not gone so far, however, as to require that advice from a requested solicitor actually be made available to the relevant suspect prior to questioning or the taking of samples. However, that is the question which falls squarely for decision in these cases.
5.8 As already noted, in considering such a question, it is appropriate for this Court to have regard to both the jurisprudence of the ECtHR and that of the superior courts of other common law countries which have like constitutional provisions. Such jurisprudence can be of assistance in analysing similar rights guaranteed under the relevant legal regimes. In that context, I propose to turn first to the jurisprudence of the ECtHR and thereafter to the relevant international jurisprudence.
6. The Position of the European Court of Human Rights
6.1. The ECtHR had to consider the issue of post-arrest rights in Salduz v Turkey (2009) 49 EHRR 19. Here, Mr. Salduz, who was 17 years of age, had been arrested on suspicion of having taken part in an illegal demonstration and of hanging an illegal banner. He was interrogated by the police in the absence of a lawyer. During this interrogation he made a number of admissions, which he claimed were made under duress. He later denied these admissions were true. Mr Salduz was later found guilty on the basis of evidence which included this initial statement. An appeal was later dismissed.
6.2. Mr. Salduz alleged that his rights under Article 6 § 3 (c) of the ECHR had been violated. This article provides:
“3. Everyone charged with a criminal offence has the following minimum rights:
…
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”
On the 26th April, 2007, the relevant Chamber held that there had been no violation of Mr. Salduz’s rights under that provision and that the fairness of his trial had not been prejudiced by lack of legal assistance while initially in police custody.
6.3 On the matter being referred to it, the Grand Chamber took a different view and outlined the applicable general principles at paras. 50-55 of its judgment:
“50. The Court reiterates that, even if the primary purpose of Article 6 of the Convention, as far as criminal proceedings are concerned, is to ensure a fair trial by a “tribunal” competent to determine “any criminal charge”, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 thereof – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia, cited above, § 36). As the Court has already held in its previous judgments, the right set out in Article 6 § 3 (c) of the Convention is one element, among others, of the concept of a fair trial in criminal proceedings contained in Article 6 § 1 (see Imbrioscia, cited above, § 37, and Brennan, cited above, § 45).
51. The Court further reiterates that although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trial (see Poitrimol v. France, 23 November 1993, § 34, Series A no. 277 A, and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). Nevertheless, Article 6 § 3(c) does not specify the manner of exercising this right. It thus leaves to the Contracting States the choice of the means of ensuring that it is secured in their judicial systems, the Court’s task being only to ascertain whether the method they have chosen is consistent with the requirements of a fair trial. In this respect, it must be remembered that the Convention is designed to “guarantee not rights that are theoretical or illusory but rights that are practical and effective” and that assigning counsel does not in itself ensure the effectiveness of the assistance he may afford an accused (see Imbrioscia, cited above, § 38).
52. National laws may attach consequences to the attitude of an accused at the initial stages of police interrogation which are decisive for the prospects of the defence in any subsequent criminal proceedings. In such circumstances, Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer already at the initial stages of police interrogation. However, this right has so far been considered capable of being subject to restrictions for good cause. The question, in each case, has therefore been whether the restriction was justified and, if so, whether, in the light of the entirety of the proceedings, it has not deprived the accused of a fair hearing, for even a justified restriction is capable of doing so in certain circumstances (see John Murray, cited above, § 63; Brennan, cited above, § 45; and Magee, cited above, § 44).
53. These principles, outlined in paragraph 52 above, are also in line with the generally recognised international human rights standards (see paragraphs 37 42 above) which are at the core of the concept of a fair trial and whose rationale relates in particular to the protection of the accused against abusive coercion on the part of the authorities. They also contribute to the prevention of miscarriages of justice and the fulfilment of the aims of Article 6, notably equality of arms between the investigating or prosecuting authorities and the accused.
54. In this respect, the Court underlines the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial (see Can v. Austria, no. 9300/81, Commission’s report of 12 July 1984, § 50, Series A no. 96). At the same time, an accused often finds himself in a particularly vulnerable position at that stage of the proceedings, the effect of which is amplified by the fact that legislation on criminal procedure tends to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence. In most cases, this particular vulnerability can only be properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself. This right indeed presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (see Jalloh v. Germany [GC], no. 54810/00, § 100, ECHR 2006 IX, and Kolu v. Turkey, no. 35811/97, § 51, 2 August 2005). Early access to a lawyer is part of the procedural safeguards to which the Court will have particular regard when examining whether a procedure has extinguished the very essence of the privilege against self-incrimination (see, mutatis mutandis, Jalloh, cited above, § 101). In this connection, the Court also notes the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (see paragraphs 39 40 above), in which the CPT repeatedly stated that the right of a detainee to have access to legal advice is a fundamental safeguard against ill-treatment. Any exception to the enjoyment of this right should be clearly circumscribed and its application strictly limited in time. These principles are particularly called for in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies.
55. Against this background, the Court finds that in order for the right to a fair trial to remain sufficiently “practical and effective” (see paragraph 51 above) Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6 …. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”
The Grand Chamber then went on consider all the factual circumstances of the case before concluding at para. 62:
“In sum, even though the applicant had the opportunity to challenge the evidence against him at the trial and subsequently on appeal, the absence of a lawyer while he was in police custody irretrievably affected his defence rights.”
6.4 The Salduz principles were later reiterated by the ECtHR in Amutgan v Turkey (Application 5138/04 (Fifth Section), 3rd February 2009) and Cimen v Turkey (Application 19582/02 (Second Section) 3rd February 2009). Similar sentiments can also be seen in the judgment of the ECtHR in Dayanan v Turkey (Application 7377/03 (Second Section) 13th October 2009), where it stated at para. 32:
“In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”
6.5. It is also important to note the judgment of the ECtHR in Panovits v Cyprus (Application 4268/04 (First Section) 11th December 2008), which post dates Salduz by two weeks. This was another case which involved a minor, where the ECtHR held the failure to provide legal assistance prior to the initial questioning constituted a violation of the minor’s rights under Article 6 § 3. In coming to that conclusion, the court again assessed the factual matrix. Of note are paras. 72-73, which state:
“72. The Court takes note of the Government’s argument that the authorities had remained willing at all times to allow the applicant to be assisted by a lawyer if he so requested. It observes that the obstacles to the effective exercise of the rights of the defence could have been overcome if the domestic authorities, being conscious of the difficulties for the applicant, had actively ensured that he understood that he could request the assignment of a lawyer free of charge if necessary (see Talat Tunç, cited above, § 61, and Padalov v. Bulgaria, no. 54784/00, 10 August 2006, § 61). The passive approach adopted by the authorities in the present circumstances was clearly not sufficient to fulfil their positive obligation to furnish the applicant with the necessary information enabling him to access legal representation.
73. Accordingly, the Court finds that the lack of provision of sufficient information on the applicant’s right to consult a lawyer before his questioning by the police, especially given the fact that he was a minor at the time and not assisted by his guardian during the questioning, constituted a breach of the applicant’s defence rights. The Court moreover finds that neither the applicant nor his father acting on behalf of the applicant had waived the applicant’s right to receive legal representation prior to his interrogation in an explicit and unequivocal manner.”
A number of subsequent cases have confirmed that a suspect can waive his right to legal representation if this is freely and knowingly done (see Trymbach v. Ukraine (Application 44385/02 (Fifth Section), 12th January, 2012); Tarasov v Ukraine (Application 17416/03 (Fifth Section), 31st October, 2013); and Bodaerenko v Ukraine (Application 27892/05 (Fifth Section), 14th May, 2013)).
6.6. In Cadder v Her Majesty’s Advocate [2010] UKSC 43, the United Kingdom Supreme Court considered Salduz and Panovits in examining whether the Scottish procedure following arrest was compatible with the ECHR. The accused was questioned in the absence of a solicitor. During the questioning he made a number of admissions, which were later relied on by the prosecution at trial. Lord Hope, giving the majority judgment, stated that the Salduz principles had consistently been applied by the ECtHR since the Salduz judgment, and drew the conclusion at para. 48 that “the contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to police questioning.” The effect of this was to overrule the earlier decisions of the High Court of Justiciary in Scotland upholding the compatibility of this procedure, namely, Paton v Ritchie (2000) JC 271, Dickson v HM Advocate (2001) JC 203 and HM Advocate v McLean (2010) SLT 73.
6.7 The United Kingdom Supreme Court has since ruled that the Salduz line of jurisprudence does not apply to pre-detention questioning (Ambrose v HM Advocate [2011] UKSC 43), and that use of the “fruits of questioning of an accused without access to a lawyer” do not necessarily amount to a violation of Article 6 (Her Majesty’s Advocate v P [2011] UKSC 44).
6.8 The ECtHR has distinguished between a scenario where an accused has made admissions prior to access to a lawyer and a scenario where objective evidence, such as samples, are taken from an accused prior to such access. In Saunders v United Kingdom (1996) 23 E.H.R.R. 313, the ECtHR observed at para. 69:
“69. The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, it does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing.”
This principle, that the privilege against self-incrimination does not apply to blood or other physical or objective specimens used in forensic analysis, was recently reaffirmed in Boyce v Ireland (Application 8428/09 (Fifth Section), 12th November, 2012), a case concerning the taking of a blood sample.
6.9 In contrast, Jalloh v Germany (2006) 44 E.H.R.R. 67, concerned the forcible and highly invasive administration of emetics to an accused in an attempt to provoke the regurgitation of a bag believed to contain illegal drugs. As the accused refused to cooperate with the procedure carried out by a doctor, it was necessary for four police officers to hold him down and immobilise him. As a result of the emetics, the accused regurgitated one bag containing cocaine. He then sought to challenge the admission of this evidence by the German courts on the basis that it had been obtained illegally and in violation of his rights. The ECtHR found that the actions of the investigative authorities did breach the accused’s rights under Article 3 of the Convention:
“82. Having regard to all the circumstances of the case, the Court finds that the impugned measure attained the minimum level of severity required to bring it within the scope of Article 3. The authorities subjected the applicant to a grave interference with his physical and mental integrity against his will. They forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out was liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of humiliating and debasing him. Furthermore, the procedure entailed risks to the applicant’s health, not least because of the failure to obtain a proper anamnesis beforehand. Although this was not the intention, the measure was implemented in a way which caused the applicant both physical pain and mental suffering. He has therefore been subjected to inhuman and degrading treatment contrary to Article 3.”
6.10 The Court then proceeded to examine the admissibility of this evidence under Article 6. At para. 102, the Court reaffirmed the general principle stated in Saunders. However, it held that the facts in Jalloh could be distinguished from those in Saunders for three reasons. In Saunders, the bodily material obtained was used to detect a substance whereas here emetics were used to obtain real evidence. Secondly, the means used in Jalloh were considered to be much more invasive and required the provocation of an unnatural bodily reaction. Finally, the procedure used in Jalloh was so severe that it was deemed to be a breach of Article 3, which was not the case in Saunders. Having weighed the following factors – the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence in issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put – the Court ruled that it “would also have been prepared to find that allowing the use at the applicant’s trial of evidence obtained by the forcible administration of emetics infringed his right not to incriminate himself and therefore rendered his trial as a whole unfair.”
6.11 In summary, the current jurisprudence of ECtHR does not appear to regard the forcible taking of samples as a breach of the privilege against self-incrimination unless the procedures used were sufficiently invasive and unnatural so as to bring the case outside the form of ordinary sampling permitted in accordance with Saunders and Boyce. I now turn to the international jurisprudence.
7. The International Jurisprudence
7.1 In Miranda v State of Arizona 384 U.S. 436 (1966), the United States Supreme Court held by a majority of 5-4, amongst other things, that statements made by a suspect during an interview while in custody are admissible at trial only if the prosecution can show that the defendant was informed of the right to consult with a lawyer, before and during questioning, and of the right against self-incrimination prior to questioning by police. In circumstances where a suspect chooses to exercise his rights to a lawyer, the interrogation must cease immediately if it has already commenced and can not resume until the suspect has had an opportunity to consult with a lawyer. An accused is then also entitled to have a lawyer present at any subsequent interview. Warren C.J., delivering the majority opinion of the Court, explained at p. 469-470:
“The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege [against self-incrimination] under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent, without more, “will benefit only the recidivist and the professional.” …Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. …Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.”
There is a “public safety” exception to Miranda (see New York v. Quarles, 467 U.S. 649 (1984)).
7.2 The United States Congress sought to overrule Miranda for federal criminal cases and return the law to a pre-Miranda position through the federal Omnibus Crime Control and Safe Streets Act of 1968. In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court held that “Miranda announced a constitutional rule that Congress may not supersede legislatively” holding that the additional protections offered by the federal law did not create an adequate substitute for the Miranda warnings.
7.3 In Berghuis v. Thompkins, 560 U.S. 370 (2010), the U.S. Supreme Court also considered the position of a person who does not explicitly invoke or waive his right. In a 5-4 decision, the Supreme Court ruled that unless this choice to invoke or waive his Miranda rights was “unambigously” made, any subsequent voluntary statements made after being informed of his rights could be used in court and that police could continue to question him. The Court also held that a voluntary reply, even after lengthy silence, could amount to a waiver.
7.4. The Canadian Supreme Court has also recently considered the extent of the right of access to a lawyer in R. v. Sinclair [2011] 3 S.C.R. 3. Section 10(b) of the Canadian Charter of Rights and Freedoms states that, upon arrest or detention, a person has the right to “retain and instruct counsel without delay”. Para. 27 of the majority judgment (5-4) in Sinclair, delivered by McLachlin C.J. and Charron J., sought to elucidate the scope of s. 10(b):
“Section 10(b) fulfills its purpose in two ways. First, it requires that the detainee be advised of his right to counsel. This is called the informational component. Second, it requires that the detainee be given an opportunity to exercise his right to consult counsel. This is called the implementational component. Failure to comply with either of these components frustrates the purpose of s. 10(b) and results in a breach of the detainee’s rights: Manninen. Implied in the second component is a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult counsel. The police obligations flowing from s. 10(b) are not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duties on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended…”.
7.5. The Court then went on reject the contention that the Miranda rule “should be transplanted in Canadian soil” and concluded at para. 42 “that s. 10(b) should not be interpreted as conferring a constitutional right to have a lawyer present throughout a police interview. There is of course nothing to prevent counsel from being present at an interrogation where all sides consent, as already occurs. The police remain free to facilitate such an arrangement if they so choose, and the detainee may wish to make counsel’s presence a precondition of giving a statement.”
7.6 In Australia, the current practice (although it varies slightly between states) is that before questioning commences, police are required to inform suspects that they may communicate or attempt to communicate with a lawyer. There is, however, no right to have a lawyer attend at a police station. Rather, the right that a suspect enjoys is to try to communicate with a lawyer. Normally, if a lawyer can be contacted and indicates that they will come to the police station, the police will not start the interview until the lawyer has arrived and has had a chance to speak to the suspect in private.
7.7 In New Zealand, s. 23(1)(b) of the Bill of Rights Act 1990 provides:
“1. Everyone who is arrested or who is detained under any enactment:
(b) Shall have the right to counsel and instruct a lawyer without delay and to be informed of that right;”
When a suspect seeks to exercise his or her right under s. 23, a police officer has a duty to refrain from taking any positive or deliberate step to elicit evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel. However the courts will examine whether information was “elicited” or whether it was voluntarily provided (R v Taylor [1993] 1 N.Z.L.R. 647).
7.8. The New Zealand courts have also ruled that the the expression “without delay” applies equally to both the suspect and the police. Therefore, a suspect must exercise this right without delay and failure to do so may constitute a waiver of the right. One consequence of this approach is that the police are not obliged to wait indefinitely for a lawyer to arrive. In R v Etheridge (1992) 9 C.R.N.Z. 268, the Court of Appeal identified a number of factors which were said to be indicative of whether a delay was reasonable or not. These factors included whether the police officers knew the person wanted legal counsel; whether the police officers were aware of what arrangements, if any, had been made; and whether there was a pressing need or great urgency requiring the interview to be conducted in absence of a lawyer.
7.9 In analysing the international jurisprudence, it is important to note two factors. First, as in any case in which foreign jurisprudence might be considered to be of assistance, it is always relevant to have regard to the extent to which the foreign court concerned is addressing substantially the same question as this Court has to answer. Foreign jurisprudence which turns, not on general principles or on rights expressed in the same or similar terms, but on the specifics of foreign constitutional or legislative documents, will only be of true assistance if the Irish regime under consideration is sufficiently similar. In that context, it is important to note that there is an express entitlement to early access to a lawyer to be found in both the Canadian Charter of Rights and Freedoms (Section 10(b)) and the New Zealand Bill of Rights Act 1990 (Section 23(1)(b)). However, the Canadian judgment in Sinclair and the New Zealand judgment in Taylor seem to accept that it follows from the right of early access to a lawyer after arrest that, at least in general terms, questioning or interrogation should not commence or cease, as the case may be, until the suspect has had the benefit of consulting with his or her lawyer. The Canadian jurisprudence does suggest that there may be an obligation on the suspect to ask for a lawyer and to do so in a timely fashion.
7.10 It is, perhaps, reasonable to conclude that, of the common law jurisdictions which operate within a Bill of Rights framework, the jurisprudence of the United States courts goes the furthest in requiring, under Miranda, the presence of a lawyer prior to and during questioning in the same way (and subject to the same obligation of the State to provide) as at trial.
7.11 It is also important to emphasise that some of the issues which clearly arise in that international jurisprudence do not have any application to the facts of this case. There is no suggestion that either Mr. Gormley or Mr. White delayed in any request for a lawyer. There could, at least in Mr. Gormley’s case, be no question of waiver. That issue might, if decisive, require some closer scrutiny in the case of Mr. White given the precise circumstances in which he permitted the relevant samples to be taken. However, there appears to be a clear international view, based on the jurisprudence to which I referred, to the effect that there is, at a minimum, an obligation in most circumstances (possibly subject to some exceptions) on investigating police to refrain from interrogating a suspect at a time after the suspect has requested a lawyer and before that lawyer has arrived to advise the suspect concerned. That appears to be the clear position in the United States, in Canada and in New Zealand. That position is consistent with the jurisprudence of the ECtHR.
8. Discussion
8.1. The first real question of principle which this Court, therefore, now has to consider is as to whether the entitlement to a trial in due course of law, guaranteed by Article 38(1) of Bunreacht na hÉireann, encompasses an entitlement to have access to legal advice prior to the conduct of any interrogation of a suspect arrested and/or prior to the taking of any forensic samples from such a suspect. If that proposition is accepted at the level of general principle then many more questions of detail would, of course, arise. Questions such as the point in time when the right arose, the extent to which it is necessary for the suspect to request the presence of a lawyer, whether the entitlement can be waived and, if so, by reference to what standard of action on the part of the suspect, the extent to which a lawyer is entitled to be present during the questioning as well as being entitled to advise the suspect prior to questioning, the extent to which the entitlement to have legal advice might extend not only to a situation where it was intended to question the suspect but also, as in Mr. White’s case, to where it is intended to take samples from the suspect and, doubtless, many others would arise. By no means do all of those issues arise on the facts of these cases. However, the first question which requires to be addressed is as to whether there is a constitutional entitlement of the type asserted in the first place.
8.2. For the reasons already analysed, the current state of the jurisprudence in Ireland clearly does not go that far. In substance it can be said that, to date, the view taken has been that the entitlement to legal advice is a constitutional right. However, it has not been held that that right precludes ongoing interrogation (or indeed the taking of forensic samples) where reasonable efforts are being made to provide the suspect with the requested legal advice. In addition, the current state of the jurisprudence addresses the issue as one which principally affects the constitutional lawfulness of custody so that, in the event that there is a breach of reasonable access to a solicitor, custody becomes unconstitutional and evidence obtained during such unconstitutional custody becomes inadmissible.
8.3. The argument put forward on behalf of Mr. Gormley and Mr. White seeks, perhaps, on one view, to come at the question from a somewhat different angle. Rather than necessarily treating the matter as one principally of unlawful custody, it is rather suggested that the entitlement to have access to a lawyer before being interrogated or having forensic samples taken forms part of the right to a trial in due course of law, such that any reliance sought to be placed on evidence obtained in breach of the obligations of fair process thus arising is said to be in itself directly unconstitutional as opposed to simply rendering evidence inadmissible.
8.4. Given that a decision by this Court to accept, at least in broad terms, the argument put forward on behalf of Mr. Gormley and Mr. White would, therefore, amount to a significant development in the jurisprudence in this area, it is important to emphasise that this Court has consistently held that the Constitution is, as it were, a living document which requires to be interpreted from time to time in accordance with prevailing norms. In his judgment in McGee v Attorney General [1974] I.R. 287, Walsh J., when discussing the values contained in the Preamble to the Constitution, stated, at p. 319:
“According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.”
8.5. This passage was quoted by O’Higgins C.J. in The State (Healy) v Donoghue [1976] I.R. 325 at p. 347 and he prefaced this quotation with the following comments:
“In my view, this preamble makes it clear that rights given by the Constitution must be considered in accordance with concepts of prudence, justice and charity which may gradually change or develop as society changes and develops, and which fall to be interpreted from time to time in accordance with prevailing ideas. The preamble envisages a Constitution which can absorb or be adapted to such changes. In other words, the Constitution did not seek to impose for all time the ideas prevalent or accepted with regard to these virtues at the time of its enactment.”
This approach has more recently been endorsed in the judgments of Denham and Murray JJ. in Sinnott v Minister for Education [2001] 2 IR 545 and A v Governor of Arbour Hill Prison [2006] 4 IR 88.
8.6. The first real question which must, therefore, be addressed is as to whether it is now necessary to interpret the “due course of law” provisions of Bunreacht na hÉireann as encompassing the asserted right to access to a lawyer prior to interrogation or the taking of forensic samples.
8.7. The first issue which perhaps arises is as to whether it is appropriate to regard any part of the investigative stage of a criminal process as forming part of a “trial in due course of law”. It is clear that the ECtHR takes such a view. It must, of course, be recalled that, in many civil law countries, there are formal parts of the investigative process which are judicial or involve prosecutors who have a quasi-judicial status. The line between investigation and trial is not necessarily the same in each jurisdiction. Furthermore, it is important to emphasise a potential distinction between a formal investigation directly involving an arrested suspect and what might be termed a pure investigative stage where the police or other relevant prosecuting authorities are simply gathering evidence.
8.8. However, I am persuaded that the point at which the coercive power of the State, in the form of an arrest, is exercised against a suspect represents an important juncture in any potential criminal process. Thereafter the suspect is no longer someone who is simply being investigated by the gathering of whatever evidence might be available. Thereafter the suspect has been deprived of his or her liberty and, in many cases, can be subjected to mandatory questioning for various periods and, indeed, in certain circumstances, may be exposed to a requirement, under penal sanction, to provide forensic samples. It seems to me that once the power of the State has been exercised against a suspect in that way, it is proper to regard the process thereafter as being intimately connected with a potential criminal trial rather than being one at a pure investigative stage. It seems to me to follow that the requirement that persons only be tried in due course of law, therefore, requires that the basic fairness of process identified as an essential ingredient of that concept by this Court in State (Healy) v. Donoghue applies from the time of arrest of a suspect. The precise consequences of such a requirement do, of course, require careful and detailed analysis. It does not, necessarily, follow that all of the rights which someone may have at trial (in the sense of the conduct of a full hearing of the criminal charge before a judge with or without a jury) apply at each stage of the process leading up to such a trial. However, it seems to me that the fundamental requirement of basic fairness does apply from the time of arrest such that any breach of that requirement can lead to an absence of a trial in due course of law. In that regard it seems to me that the Irish position is the same as that acknowledged by the ECtHR and by the Supreme Court of the United States.
8.9. The next question which arises is as to whether that requirement of basic fairness involves an entitlement not to be interrogated (or not to have forensic samples taken) without having first had access to legal advice. As it is possible that the answer to this question may differ as and between interrogation and the taking of forensic samples, I propose to deal with the question of interrogation first.
9. Legal Advice Before Interrogation
9.1. As already analysed, the consistent international position is that any entitlement to have access to a lawyer at an early stage after arrest necessarily carries with it an entitlement not to be interrogated after such access is requested and before access to such a lawyer is obtained. The reasoning of the ECtHR and the Courts of the United States, Canada and New Zealand which lead to such a conclusion has already been analysed. I am persuaded that like reasoning applies to the interpretation of the constitutional entitlement to a trial in due course of law of an arrested suspect under Bunreacht na hÉireann.
9.2. There may be many reasons why an arrested suspect may wish to have access to a lawyer. There may also be many reasons why such access may be required at an early stage. Some of those reasons may not be very closely connected with either questioning or the taking of forensic samples. It might, for example, be necessary to put in place early enquiries which might assist in the building of a defence. The suspect might require advice on the lawfulness of the arrest and of his or her custody. However, there can be little doubt but that advice on the immediate events which often occur on the arrest of a suspect (such as questioning) is one of the most important aspects of the advice which any suspect is likely to require as a matter of urgency. There would be little point in giving constitutional recognition to a right of access to a lawyer while in custody if one of the principal purposes of that custody in many cases, being the questioning of the relevant suspect, could continue prior to legal advice being obtained. At a minimum any such right would be significantly diluted if questioning could continue prior to the arrival of the relevant lawyer. In those circumstances, it seems to me that the need for basic fairness, which is inherent in the requirement of trial in due course of law under Article 38.1 of the Constitution, carries with it, at least in general terms and potentially subject to exceptions, an entitlement not to be interrogated after a request for a lawyer has been made and before that lawyer has become available to tender the requested advice. As pointed out earlier, there are many issues of detail which surround the precise extent of such a right. Not all of those issues of detail arise in the context of Mr. Gormley’s case which is, of course, the only case before this Court concerning interrogation.
9.3. The interrogation in Mr. Gormley’s case occurred wholly after he had requested a solicitor. Questions as to what must precisely be said to a suspect about their entitlement to have the assistance of a lawyer and questions concerning the extent, if any, to which the State must provide such assistance to those who may be impecunious, do not, therefore, arise on the facts of this case. I would leave to a case in which those issues specifically arise a determination of the precise parameters of the constitutional entitlement.
9.4 Likewise, questions as to whether there may be some limit on the entitlement, by reference to any difficulties which might be encountered in securing the attendance of an appropriate lawyer, do not arise on the facts of Mr. Gormley’s case. As pointed out earlier, the requested solicitor in his case, given that the request arose on a Sunday afternoon, arrived at the garda station with commendable expedition. Lest it might be argued that the statutory entitlement of An Garda Síochána to conduct questioning of suspects in particular circumstances might be diluted by a recognition of the entitlement of a suspect to have a solicitor actually give advice prior to questioning, it is only necessary to refer to s. 5A(1) of the Criminal Justice Act 1984, as inserted by s. 9(a) of the Criminal Justice Act 2011. While that section has not yet been commenced, it demonstrates not only that the Oireachtas has already been concerned about such matters but also that there is a ready solution. In substance any statutory period of detention can be extended by means of stopping time running while the arrival of the relevant lawyer is awaited.
9.5 It must also be recalled that the issue which falls squarely for decision in this case is not one which could reasonably be said to have taken the authorities by surprise. The executive long since committed Ireland to compliance with the ECHR as it is interpreted, from time to time, by the ECtHR. The decision of the ECtHR in Salduz was delivered in 2009 and the possibility that such a view might be taken by that court must have been clear for some time before that. Likewise, the Irish courts have made specific reference to difficulties arising out of questioning in garda custody not least in D.P.P. v. Ryan [2011] IECCA 6, where the Court of Criminal Appeal, in a judgment delivered by Murray C.J., drew specific attention to the potential interaction between the questioning in custody obligations of the State which arise under the ECHR and the questioning practices then typically in place.
9.6 In Ryan the Court of Criminal Appeal said:-
“Right of Access to a Solicitor Generally
Before moving on to address the next issue the Court considers it important to recall that in this case the contents of five out of the six interviews conducted by the Gardaí with the applicant, and portion of the other interview, were excluded on the grounds that the applicant’s constitutional right of access to a solicitor had been breached. This is by no means an unusual ruling in criminal trials generally including those concerning the most serious of offences such as murder. The constitutional right of persons who are being questioned in custody to access to legal advice before questioning (and the duty to advise them of that right) is well established. The right is reflected in the provisions of the Regulations for the Treatment of Persons in Custody in Garda Stations (S.I. 119 of 1987) according to which the member in charge of a garda station is obliged, inter alia, to inform an arrested person without delay of his or her right to consult a solicitor in addition to an explicit provision providing that an arrested person shall have reasonable access to a solicitor of his or her choice. It is not necessary to recall here the reasons why such a right is a necessary protection for an arrested citizen all of which have been extensively referred to in the case-law on this topic. It is also a right which is recognised in most if not all democratic countries and one of the rights recognised in the European Convention on Human Rights (to which the State is a party) and which has been the subject of important decisions by the Court of Human Rights. The frequency therefore with which garda interviewing practices have resulted in otherwise important evidence being rendered inadmissible for such breaches is surprising and to be regretted. The situation would suggest that there is some lack of a coherent practice or training of garda officers as to the manner in which arrested persons should be treated so as to ensure that full and substantive effect is given the right of access to a solicitor, having regard to established principles of law applicable to such a right including principles stemming from the case-law of the European Court of Human Rights. Apart from the relevance of the latter from a comparative law perspective account would have to be taken of s. 2 of the European Convention on Human Rights Act 2003 which requires, even if somewhat enigmatically, that any statutory provision or rule of law be interpreted as far as possible in a manner compatible with the State’s obligations under the Convention. Apart from the time and expense that would be spared if criminal jury trials did not have to spend considerable time addressing such issues in the absence of the jury (a subsidiary but important consideration), the adoption, or more important the giving effect to, of an essentially uniform practice or protocol which ensured that the right of an arrested person’s access to a solicitor was routinely respected would in turn ensure that evidence properly and fairly obtained during interviews suspects is admissible at the trial. That that should be so, whether such statements are inculpatory or exculpatory, is in the interests of justice from every perspective.”
9.7 The likelihood that the State would be required, as the UK Supreme Court put it in Cadder, to organise its systems to take account of such rights has been on the agenda for a sufficient period of time that a finding that the constitutional right to a fair trial encompasses the right to access to legal advice before questioning can hardly come as a surprise. If it be the case that the State has not, to date, organised itself in a manner sufficient to allow such questioning to take place in conformity not just with the Constitution but also with the well established jurisprudence of the ECtHR, then it is those who are in charge of putting such provisions in place who must accept responsibility.
9.8 Furthermore, the reasoning behind the obligation to ensure legal advice before questioning identified in this judgment has been available in the jurisprudence of courts, whose judgments on like issues the Irish courts frequently regard as persuasive, for quite some time.
9.9 Warren C.J. suggested as far back as Miranda in 1966 that the right to have a lawyer present at the interrogation is indispensable to the protection of the privilege against self-incrimination. That proposition applies equally to advice prior to interrogation. Likewise as McLachlin C.J. and Charron J., speaking for the Canadian Supreme Court, pointed out in Sinclair, the right to be given an opportunity to consult with a lawyer implies “a duty on the police to hold off questioning until the detainee has had a reasonable opportunity to consult …”. Furthermore, the ECtHR emphasised that, after an arrest, an accused is in a particularly vulnerable position and criminal procedure often becomes complex. On that basis the ECtHR has stated that the vulnerability of the accused can only be properly compensated for by the assistance of a lawyer whose task it is, amongst other things, to ensure respect of the right of an accused not to incriminate himself. It is also worth noting that those suspects well used to the criminal process know enough about the process to protect themselves. It is those who are unfamiliar who are the most vulnerable.
9.10 Whether there may be some extreme exceptions where the lawyer just does not arrive within any reasonable timeframe is a matter to be debated if and when a case with those facts actually comes before the Court. Likewise, the question as to whether a suspect is entitled to have a lawyer present during questioning does not arise on the facts of this case for the questioning in respect of which complaint is made occurred before the relevant lawyer even arrived. However, it does need to be noted that the jurisprudence of both the ECtHR and the United States Supreme Court clearly recognises that the entitlements of a suspect extend to having the relevant lawyer present.
9.11 The question of the extent to which a suspect must invoke the entitlement to have a lawyer present or the type of conduct which might constitute a waiver of such entitlement are again not matters which arise on the facts of this case. Mr. Gormley made a clear request and there can be no suggestion that he waived any entitlements which might thereby arise.
9.12 Finally, it is important to note that the ECtHR and the U.S. Supreme Court accept that the securing of a conviction of a person, by placing significant reliance on admissions made in the course of questioning which occurred in the absence of advice from a lawyer in breach of the suspect’s entitlements, necessarily leads to the trial being an unfair trial (see Salduz, Miranda, etc.). I am persuaded that a like position must be found to exist under Bunreacht na hÉireann.
9.13 Therefore, whatever may be the situation in other cases, it seems to me that Mr. Gormley’s case is clear. He requested a solicitor. He never withdrew that request nor could it be said that he waived his entitlement to timely legal advice in any way. He made statements, which were relied on to significant effect at his trial, before he had an opportunity to obtain the requested advice. For the reasons analysed in detail by the ECtHR in Salduz and by the U.S. Supreme Court in Miranda, I am satisfied that the entitlement not to self-incriminate incorporates an entitlement to legal advice in advance of mandatory questioning of a suspect in custody. In Mr. Gormley’s case that right was clearly denied. He had requested such advice, had not withdrawn any request or otherwise waived his entitlement and yet had been questioned before he had received the necessary advice. No question could arise on the facts of his case as to whether there might be an exception where it proved impractical, through no fault of any of the prosecuting authorities, to provide the advice in question. The right to a trial in due course of law encompasses a right to early access to a lawyer after arrest and the right not to be interrogated without having had an opportunity to obtain such advice. The conviction of a person wholly or significantly on the basis of evidence obtained contrary to those constitutional entitlements represents a conviction following an unfair trial process.
9.14 It should also be emphasised that the right to legal advice before interrogation is an important constitutional entitlement of high legal value. If any exceptions to that right are to be recognised, then it would be necessary that there be wholly exceptional circumstances involving a pressing and compelling need to protect other major constitutional rights such as the right to life. This judgment is not the place to attempt to define any possible exceptions with precision. The basis of any exception would need to meet the criteria just noted and also be clearly established in fact supported by contemporaneous records.
9.15 Likewise, it is important to emphasise that the right is one designed to provide support for the right against self-incrimination amongst other rights including the right to a fair trial. In that context it must be clearly understood that there is an obligation on arresting authorities to genuinely respect that right. Whatever parameters may exist in relation to the question of whether a person might be said either to have waived the right, or to have failed to invoke the right, the circumstances surrounding the actions of the relevant suspect will require to be carefully scrutinised to ensure that any decision made or, indeed, any inaction on the part of the suspect concerned, was not inappropriately influenced by any contrived conditions brought about or contributed to by arresting authorities designed or which would be likely to encourage any such waiver or non-invocation. A suspect should be treated in a dignified manner at all times after arrest including any period pending the arrival of a legal adviser. It must be recalled that, at such a time, the suspect not only enjoys the presumption of innocence but has not even been charged. For the reasons already analysed, the constitutional entitlement to fair process commences on arrest. The actions of those involved in an arrest must respect that fact.
9.16 Situations should not arise which would place a suspect in a position where the price which they would have to pay for invoking their right to legal advice prior to interrogation would be an unreasonably lengthened period of incarceration or the acceptance of other adverse conditions. The conditions of custody must reflect the fact that the suspect at that stage has not even been charged. Such conditions must be such as could not objectively be considered in any way oppressive or otherwise such as might lead a suspect to reasonably consider waiving any rights which they may have. Suspects should have explained to them their entitlements in a fair and appropriate way which could not, objectively speaking, be considered to in any way encourage waiver or non-invocation.
9.17 In summary, therefore, so far as Mr. Gormley’s case is concerned, I am satisfied that it has been established that Mr. Gormley did not have a trial in due course of law by reason of the fact that a material element of the evidence on foot of which he was convicted was evidence obtained during questioning which occurred after he had requested legal advice and before that legal advice had been obtained. On that basis it is unnecessary to consider whether Mr. Gormley could have succeeded in his appeal by placing reliance on the ECHR.
9.19 As has, however, been identified earlier in this judgment, it does not follow that the entitlement to have access to a lawyer prior to the commencement or continuance of questioning necessarily applies either at all or at least in the same way in respect of any possible entitlement to have access to a lawyer before objective evidence in the form of forensic samples are taken from an accused. I, therefore, turn to that question which is at the heart of Mr. White’s case.
10. Legal Advice Prior to Forensic Sampling
10.1 It seems to me that different considerations apply to forensic testing. First, it must be acknowledged that the results of forensic testing are objective. Such results do not depend on the will of a suspect or comments made by a suspect in circumstances where the right to self-incrimination could have been invoked or where it is possible that the circumstances in which the interrogation took place led to the suspect, in the absence of advice, being unfairly prejudiced by the way in which the relevant questioning was conducted or responded to.
10.2 If there truly is any question about the reliability of any form of objective testing adopted, then any such issues can be fully explored at the trial. Likewise, if there is any question about the legality of the taking of the forensic samples concerned, same can also be fully explored at the trial. Where, however, state authorities are entitled, as a matter of law, to take forensic samples, where any preconditions specified by that law to the taking of the samples concerned have been complied with, and where the samples are taken in a minimally obtrusive way which does not amount to the sort of forcible and highly invasive methods which led the ECtHR in Jalloh to hold that the methods there used amounted to inhuman and degrading treatment, then it seems to me that there is no breach of the constitutionally guaranteed right to fair process arising from the taking of the samples concerned. That position is consistent with the jurisprudence of the ECtHR as analysed earlier in this judgment.
10.3 On that basis, at the level of principle, I am not satisfied that the mere fact that otherwise lawful forensic sampling is properly taken prior to the attendance of a legal adviser renders any subsequent trial, at which reliance is placed on the results of tests arising out of that forensic material, unfair. It remains, of course, the case that the suspect is entitled to reasonable access to a lawyer. The authorities in whose custody the suspect is held are required to take reasonable steps to facilitate such access. What consequences may flow, in respect of the admissibility of forensic evidence taken from a suspect where such reasonable steps are not taken, is a matter to be decided in a case where those circumstances arise. However, I am not satisfied that there is any fair trial constitutional prohibition on the taking, without prior legal advice, of a sample in a minimally intrusive way which is justified in law.
10.4 In those circumstances, I am not satisfied that the “due course of law” provisions of Bunreacht na hÉireann preclude the taking of objective forensic samples from a suspect while that suspect is in custody, after the relevant suspect has requested legal advice and before the relevant legal advice becomes available. That general statement is subject, of course, to the requirement that there be a legal basis for the taking of the sample concerned and that any conditions or procedures specified in the statute conferring that legal basis have been complied with. The methods adopted must also be minimally obtrusive.
10.5 It follows that the general proposition asserted in Mr. White’s case must be rejected. There is nothing, per se, which renders his trial unfair by the admission of evidence in the form of forensic samples which were taken after he had requested the presence of his solicitor for advisory purposes and before that solicitor’s timely arrival.
10.6 The situation might be different in a case where the suspect has genuine legal choices available in respect of the taking of samples and where it would be reasonably necessary for the suspect concerned to have access to legal advice before making any such choices. For the avoidance of doubt, I would wish to emphasise that I do not consider that the fact that a suspect might be able, by committing a separate criminal offence of refusing to cooperate with the giving of samples, to frustrate the exercise, could not amount to the making of a choice by that suspect in the sense in which I have just used that term. It can not be said that a suspect has a right to refuse to give a sample even though there might be circumstances where, in practice, a refusal, even though constituting a separate criminal offence, might be considered by a suspect to be a sensible tactic. The sort of choice to which I have referred is a choice which is clearly given by the law to a suspect in relation to sampling and where legal advice is reasonably necessary to enable the suspect to make an informed choice. Where such a choice is given, there may well be an entitlement available to a person in custody to obtain legal advice before exercising such a choice. However, on the facts of this case, Mr. White was, as a matter of law, obliged to allow the forensic testing which was required of him. In those circumstances, there was no breach of fair process resultant from the requirement made of Mr. White to provide the relevant samples prior to the arrival of his solicitor.
10.7 I am satisfied, therefore, that a distinction, for the reasons and in the circumstances set out in this judgment, exists between the entitlement to prior legal advice in cases of interrogation, on the one hand, and the lack of such entitlement in the case of mandatory non-obtrusive taking of objective forensic samples, on the other. Given that such a distinction exists at the constitutional level, it is of the utmost importance that there be absolute clarity as to that difference. Indeed, it is a matter which might well merit specific regulation to avoid the risk that there might be confusion in the minds either of suspects or those in whose custody the suspect is held between the two processes. It is important that, on an occasion when, before legal advice in accordance with the rights identified in this judgment has been obtained, the authorities are nonetheless, legitimately, requiring or enforcing the taking of samples in a manner permitted by this judgment, such an occasion is not, either consciously or unconsciously, used to in any way to interfere with the entitlement of the suspect to obtain advice before interrogation.
10.8 The final question which remains, however, so far as Mr. White’s case is concerned, is as to whether the factual confusion which arose out of the incorrect statements made to him by gardaí in respect of the legal status of any obligation which he might have to give a sample, has any relevance, on the facts of this case, to the validity of his conviction. While the law did not give Mr. White any choice as to providing the requested samples, it would appear that the senior garda involved in seeking to apply that law was mistaken in that regard and also mistakenly informed Mr. White that he had, in fact, a choice, albeit one where a failure to give the relevant samples might result in adverse comment at any subsequent trial. I, therefore, turn to the question of whether those unusual facts affect the situation in Mr. White’s case.
10.9 In my view, the fact remains that Mr. White was legally obliged to provide the samples concerned. Any refusal would have constituted a separate criminal offence. As a matter of law, Mr. White did not have any choice in the matter. Therefore, the need for legal advice just did not arise.
10.10 It does have to be said that it is highly surprising that a senior and experienced garda should be under such a significant misunderstanding as to the legal position in an important area that he misled Mr. White by suggesting that he did have a choice. However, that was an error in favour of Mr. White in the sense that it suggested to him that he had an option to refuse (albeit one which might carry with it some adverse inferences at a possible trial) when in fact he had no such option.
10.11 If Mr. White had actually declined to give a sample, it might well have been relevant in determining whether he could, then, have properly been found guilty of any offence associated with such refusal, to take into account the fact that he had been misled by a senior garda into believing that he had such an entitlement. However, the fact remains that the fair process entitlement which Mr. White undoubtedly enjoyed did not, for the reasons which I have already analysed, include an entitlement to have access to a solicitor before such samples were required of him. I cannot see how the fact that the investigating garda made a mistake in his favour could have changed that situation so as to confer on him a right to legal advice prior to the sampling taking place which did not otherwise arise.
10.12 Having dealt with the matter under Irish constitutional law, it remains to consider whether any separate rights asserted on behalf of Mr. White under the ECHR can be availed of by him. For the reasons already analysed, I am not satisfied that the jurisprudence of the ECtHR leads to a conclusion that the taking of objective forensic samples without the benefit of legal advice amounts to a breach of the right against self- incrimination and, thus, to an unfair trial if evidence obtained from the taking of such samples is materially relied on. This is so at least in cases where, as here, any samples are taken in an unobtrusive way. I am not, therefore, satisfied that Mr. White has established any breach of his rights under the ECHR. The questions which would otherwise have arisen concerning the effect, if any, of any breach of the ECHR on the validity of Mr. White’s conviction, do not, therefore, arise.
10.13 For those reasons, I am satisfied that the circumstances in which the forensic samples in question were taken in Mr. White’s case do not lead to any difficulty concerning the admission of the analysis of those samples in evidence against him. On that basis Mr. White’s appeal on the principal point must be dismissed. It follows that it is necessary to address the two further non-certified points which Mr. White was permitted to argue. I turn to those points.
11. The First Uncertified Point – the Validity of the Warrant
11.1 The warrant relevant in Mr. White’s case was issued under s. 42(2) of the Criminal Justice Act 1999, as amended by s. 11 of the Criminal Justice Act 2006 (“section 42″), which provides:
“(2) A member of an Garda Síochána may arrest a prisoner on the authority of a judge of the District Court who is satisfied, on information supplied on oath by a member of the Garda Síochána not below the rank of superintendent, that the following conditions are fulfilled:
(a) there are reasonable grounds for suspecting that the prisoner has committed an offence or offences other than the offence or offences in connection with which he or she is imprisoned;
(b) the arrest of the prisoner is necessary for the proper investigation of the offence or offences that he or she is suspected of having committed; and
(c) where the prisoner has previously been arrested for the same offence or offences, whether prior to his or her imprisonment or under this section, further information has come to the knowledge of the Garda Síochána since that arrest as to the prisoner’s suspected participation in the offence or offences for which his or her arrest is sought.”
11.2 The relevant warrant was applied for by a Detective Superintendent to a judge of the District Court on the 7th February, 2008. A sworn information on oath was placed before the District Judge. Further evidence was given as a result of questions put by the District Judge concerned prior to her decision to issue the relevant warrant. There is no issue before this Court as to the adequacy of the information available to the District Judge to enable her to be satisfied that it was appropriate to issue the warrant concerned under the provisions of section 42. There is, thus, no issue of substance concerning the validity of the warrant.
11.3 However, the form of warrant issued specified that the District Judge was “satisfied that the arrest of the said prisoner is necessary for the proper investigation of the offence”. Thus, the warrant specified that the District Judge was satisfied of the matter contained in s. 42(2)(b). There was no similar recital in the warrant to the effect that the District Judge was satisfied of the matters specified at subs. (a) and (c) of that subsection. On that basis, it was contended at Mr. White’s trial that the warrant was defective on its face, that his arrest on foot of the warrant was, therefore, unlawful, and that any evidence by way of sample taken from him thereafter occurred in conscious violation of his constitutional right to liberty, thus, it was said, rendering any such evidence inadmissible.
11.4 In that context, the trial judge ruled as follows:-
“In relation to his criticism of this warrant, he relies in particular on the Simple Import case and the line of authorities there which I am referred to. In my view, the cases are distinguishable. In Simple Imports the warrants showed on their face that statutory preconditions had not been satisfied.”
11.5 Thereafter, as earlier noted, Mr. White appealed against his conviction to the Court of Criminal Appeal. In the course of that appeal, it was suggested that the trial judge was incorrect in the above ruling concerning a warrant. In that context, the Court of Criminal Appeal ruled as follows:-
“It might be said, also, having regard to s. 42(2) that the terms of (a) are, at least in part, sufficiently recited in the warrant. As to (c), if evidence to comply with that sub-section is given, as was the case here, it is inevitable that (b) would follow from that, and also from proof of (a). It is not, therefore, clear why, in such a case as this one, the terms of s.42 (2) (b) would not be, and should not be, deemed adequate to support the warrant. Provided that there is adequate evidence, as here, that all of the matters provided for in s.42(2)(a) and (c) were put before the learned District Court judge, which is the conclusion to be drawn from the evidence, it appears to this Court that it was adequate for the purposes of permitting the arrest of the Appellant, as a prisoner, and the arrest warrant was not invalid by the failure independently to recite the judge’s satisfaction as to the existence of each (a) and (c) of s.42(2) on the face of the warrant.
In the circumstances, the applicant cannot succeed in his contention that the arrest warrant was invalid and so too all consequences flowing therefrom. But, even if the arrest warrant was incorrectly completed, in that the specific recitals of (a) and (c) were not included expressly on the face of it, no argument has been advanced that the warrant was thereby secured in conscious and deliberate violation of a constitutional right, and no suggestion is made that the arrest warrant was procured by means of a ruse, or a deceit intended to evade those rights. If, therefore, the arrest warrant in the present case, was not in breach of any constitutional protection, but was nevertheless not in strict conformity with the statute and was therefore illegal in that sense, such illegality does not have as its automatic consequence that the warrant is thereby invalid or of no effect. The illegality in this case is not such as to persuade this Court to conclude that the subsequent arrest, detention and questioning of the applicant pursuant to the arrest warrant, were themselves, in turn, invalid, and indeed no argument on that basis was made. The learned trial judge did not commit any error in law in his finding that the arrest warrant was valid.”
11.6 The case made on behalf of Mr. White was to reiterate the points made both before the trial court and the Court of Criminal Appeal. In simple terms, it was said that the warrant was defective because there was no recital of compliance with two of the three conditions necessary for the issuing of a warrant under section 42.
11.7 Counsel argued that there was no presumption that a court document is valid on its face and that the validity must, thus, be proved. Reliance was placed on Simple Imports Limited v. Revenue Commissioners [2000] 2 I.R. 243, where the form of words appearing on a warrant was different from the statutory matter of which the issuer of the relevant warrant had to be satisfied. Some reference was also made to Director of Public Prosecutions v. Henry Dunne [1994] 2 I.R. 537. For reasons which I hope will be clear, I do not consider Henry Dunne to be relevant to this case.
11.8 Cases involving warrants can be divided into categories in various ways. There are, for example, cases concerning the substance of the circumstances in which a warrant is issued as opposed to cases involving the form of the warrant. This case is clearly in the latter category. However, even cases involving issues concerning the form of a warrant can, in my view, be divided into two types. To understand that distinction, it seems to me to be important to recall what a warrant does. A warrant permits persons authorised by same to carry out acts which would otherwise be unlawful. Persons may be arrested, and thus have their liberty curtailed, who might not otherwise be capable of legitimate arrest and detention. Persons may be required to have their premises (including a dwelling house) searched and relevant materials and evidence removed. Persons who are affected by a warrant are, prima facie, obliged to submit to its terms. Resisting an arrest lawfully authorised by a warrant is itself a criminal offence. Persons are obliged to permit a search to be carried out in accordance with the terms of a lawful warrant.
11.9 Against that background, it seems clear that a warrant must do at least two things. First, it must set out in sufficiently clear terms the authorisation which the warrant gives. Second, the warrant must specify a sufficient legal basis. The reason for both of these requirements is clear. A person whose rights are affected is entitled to know with some reasonable level of precision what it is exactly that the warrant authorises. Second, such a person is entitled to know the legal basis on which it is said that the warrant was issued because it is that legal basis which requires them to submit to something which would otherwise be unlawful (an arrest or a search, for example).
11.10 But as has been made clear in a number of recent decisions of the Court of Criminal Appeal, (see for example People (Director of Public Prosecutions) v. Mallon [2011] 2 IR 544 and People (Director of Public Prosecutions) v. McCarthy [2010] IECCA 89, [2011] 1 I.L.R.M. 430 at p. 441), not every error of form is regarded as sufficient to render a warrant invalid. So far as the question of what the warrant mandates is concerned, the test is, as O’Donnell J., delivering the judgment of the CCA in Mallon, pointed out, as to whether the error makes the warrant unintelligible or misleading. The logic of that position is clear. What a person is entitled to know is what the warrant authorises. Provided that the warrant does this in sufficiently clear terms to allow a person to understand what is authorised, then the fact that there may be a technical misdescription in matters, such as the precise formal address of a property to be searched, will not render the warrant concerned invalid.
11.11 The second type of issue of form, as already noted, concerns the extent to which it may be necessary for a warrant to specify the legal basis for the issuing of the warrant in the first place and, in particular, the extent to which the warrant must specify, in terms, that any preconditions necessary to the issuance of the relevant warrant have been met.
11.12 In that context, counsel for Mr. White placed reliance, as already noted, on Simple Imports. The principle which can be derived from Simple Imports can be found in a passage from the judgment of Keane J. (speaking for the majority) at p. 255:-
“Given the necessarily draconian nature of the powers conferred by the statute a warrant cannot be relied upon as valid which carries on its face a statement that it has been issued on a basis which is not authorised by the statute. It follows that the warrants were invalid and must be quashed.”
11.13 From that passage, it seems clear that what was decided in Simple Imports was that a warrant, which contained on its face a statement which was inconsistent with the statutory conditions necessary for its issue, cannot be valid. In like vein, the ruling in Henry Dunne involved a finding by the trial judge that, by virtue of adaptions made to a standard form document, the terms of the relevant warrant were unintelligible.
11.14 It is also of some relevance to note that this Court, in Simple Imports, considered the position in England and Wales which can be seen to derive from R. v. Inland Revenue Commissioners ex parte Rossminster [1980] AC 952. At p. 253, in Simple Imports, Keane J. said the following:-
“I am satisfied, however, that the superior courts in this jurisdiction are entitled to assume, unless the contrary is established, that judges of the District Court act in accordance with the Constitution and the law in discharging their functions. Different considerations arise, however, where, as here, the warrant itself, unlike the warrant in Reg. v. Inland Revenue Commissioners, Ex parte Rossminster [1980] AC 952, recites that the district judge has purported to exercise the jurisdiction where the statutory preconditions for its exercise have not been met. It need hardly be said that the error was clearly unintentional and resulted from the use of a standard form which had obviously been in existence for some time.”
11.15 While this Court in Simple Imports distinguished, on the facts, that case from Rossminster, it appears that this Court was of the view that the principles identified in Rossminster were consistent with the law in this jurisdiction. Those principles can be gleaned from a brief analysis of a number of the speeches of the Law Lords in that case.
11.16 First, Lord Wilberforce said the following:-
“There is no mystery about the word “warrant”: it simply means a document issued by a person in authority under power conferred in that behalf authorising the doing of an act which would otherwise be illegal. The person affected, of course, has the right to be satisfied that the power to issue it exists: therefore the warrant should (and did) contain a reference to that power. It would be wise to add to it a statement of satisfaction on the part of the judicial authority as to the matters on which he must be satisfied but this is not a requirement and its absence does not go to validity.”
Second, Lord Dilhorne expressed the following view:-
“Although it is not made necessary by the section, I think that it is most desirable that a warrant issued under this section should make it clear that the statutory conditions precedent to the issue of a valid warrant have been complied with, and also that the warrant should state accurately what it authorises to be done.”
Next, Lord Diplock took broadly the same view in the following passage:-
“Even though the statute may not strictly so require (a matter on which I express no concluded opinion) the warrant in my view ought to state upon its face the statutory authority under which it has been issued. This the form of warrant issued in the instant case does, though I agree with my noble and learned friend, Viscount Dilhorne, that the wording of the recital of the fulfilment of the two statutory conditions precedent to its issue might be improved. But for the reference to section 20C in accordance with whose provisions the information is stated to have been laid, the wording of the warrant would be consistent with its meaning that the information had not specified for consideration by the judge the grounds of suspicion on which the informant relied; but the express reference to the section, in my view, resolves any ambiguity and makes untenable the suggestion that the preamble to the warrant constitutes an admission by the judge that he had adopted blindly a statement of the informant that there existed some reasonable grounds for suspicion the nature of which however, was not disclosed.”
Finally, Lord Scarman said the following:-
“One criticism may, however, fairly be made, but was not made by counsel for the respondents, of the warrants in this case. It is that they fail to recite that the judge was himself satisfied as to the matters upon which he has to be satisfied. No doubt, and absolutely correctly, counsel took the view that the omission was not fatal to the validity of the warrants. Nevertheless the recital in the warrants is incomplete. If anything was going to be recited as to the proceedings before the judge, the fact that the judge was satisfied should have been. In a matter of such importance as the issue of these warrants it is, I think, desirable to include a recital of the essential fact that the judge was satisfied that there were reasonable grounds for suspicion and that the board itself had authorised the application.”
11.17 It should be noted that Lord Salmon dissented. The views expressed in Rossminster appear to remain the law in the United Kingdom. The overall position in that jurisdiction appears to be that, while desirable, it is unnecessary that there be a recital that the issuer of a warrant is satisfied that all of the preconditions which the relevant statute requires to be fulfilled in order that the warrant be issued have in fact been met. However, some form of words indicating that such a situation exists are considered as a desirable inclusion in a warrant.
11.18 Without deciding whether Rossminster represents the law in this jurisdiction, I am satisfied that, in general terms, a warrant issued by judicial authority is valid if:-
(a) It specifies the legal power which is being exercised by the issuing of the relevant warrant;
(b) It specifies, or it can reasonably be implied from the text, that the relevant judge is satisfied that it should be issued; and
(c) (Having regard to Simple Imports) It does not contain on its face any recital or other statement which would reasonably lead to the conclusion that the judge issuing the warrant had approached the question of whether it was appropriate to issue the warrant on an incorrect basis having regard to the relevant statute.
11.19 It is not, in my view, therefore, necessary that there be a specific recital of each of the matters of which the issuing judge was required to be satisfied in order that the warrant be considered valid.
11.20 For the reasons identified in the judgment of the Court of Criminal Appeal in this case, I am satisfied that it cannot be said that the warrant with which the court is now concerned can properly be construed as giving rise to an inference that the issuing District Judge was not satisfied as to the necessary statutory criteria or was satisfied as to inaccurate criteria. If anything, for the reasons specified by the Court of Criminal Appeal, the opposite is the case. However, for the reasons which I have analysed, it is not necessary that the warrant actually specify satisfaction with those statutory criteria. Rather, all that is required is that the statutory power be specified (which it was), that it be reasonable to infer that the judge was satisfied as to the necessary statutory criteria and that there not appear, on the face of the warrant, recitals or statements which give rise to the inference that the issuing judge applied incorrect criteria or actually was not satisfied as to compliance with the correct criteria. For the reasons already noted, such cannot be said to be the case here.
11.21 On that basis, I am satisfied that the warrant in Mr. White’s case was valid, that the trial judge and the Court of Criminal Appeal were correct in their analysis of that question, and that this ground of appeal must also fail. I now turn to the second uncertified point.
12. The Second Uncertified Point – The Fingerprint Evidence
12.1 The point under this heading can be simply put. Three out of four purported matches of fingerprints fell below what is the normally accepted standard of twelve points of comparison. The relevant garda fingerprint expert, in the course of his evidence, stated that he had “no doubt” that the fingerprints found on materials connected with the offence matched the fingerprints of Mr. White. An objection was taken on the basis that the language used came close to purporting to answer the very question which the jury have to answer (being whether they were satisfied beyond reasonable doubt that the accused is guilty).
12.2 In that context the trial judge ruled as follows:-
“Alright. Well, the starting point is why are experts permitted to give evidence? They are permitted to give evidence in order to assist a jury. In the case of fingerprints, rarely, but in the case of other disciplines, frequently, juries have to choose between conflicting expert testimony, and certainly judges in cases that are tried by judges alone day in day out have to choose between conflicting testimonies. In deciding how to make that choice the jury, where there is one, or a judge, will have regard to a number of factors. It may have regard to the particular expertise and qualifications of the expert, to what extent the, as it were, subspecialty is engaged by the expert, and also, and perhaps more importantly, to the extent to which the expert is entirely confident in the opinion he is expressing. And it seems to me that any expert is perfectly entitled to indicate that he has particular confidence in an opinion, and the corollary of that is that it’s appropriate that an expert should qualify an opinion when it isn’t expressed with the same confidence, so I see no objection whatever to Detective Garda Kane expressing the view that he has considerable confidence, complete confidence or whatever. I do understand Mr. Grehan’s sensitivities about using language that so closely reflects the task of the jury, though as I have said, ultimately the jury will be getting cautions as to how they deal with any expert testimony, but for that reason I would prefer if – and it’s a matter – I am not insisting on this – but I will strongly prefer if Detective Garda Kane, perhaps in consultation with Mr. Sammon, came up with an alternative formula designed to indicate to the jury the strength of his convictions, and his confidence in the correctness of his convictions, but without using the phrase “satisfied beyond all doubt”, because it so closely reflects the ultimate task of the jury. Subject to that invitation, there are no constraints on Detective Garda Kane.”
12.3 On appeal, it was urged on behalf of Mr. White that the use of the phrase “no doubt” gave rise to a risk of an unfair trial or an unsafe conviction. The Court of Criminal Appeal rejected that argument in the following passage from its judgment (see pp.12-13):-
“The Court is satisfied that the learned trial judge made no error in law in the manner in which he heard and dealt with the issue arising in relation to the strength or otherwise of the view to be expressed, and as expressed, by the expert, and that there could be no objection to his rulings in the matter, which were based on exchanges with counsel, on a consideration of counsels’ submissions and of the law, and for good and stated legal reasons. On the basis of the case law, and the trial judge’s ruling, the Court does not accept that the giving of the evidence relating to fingerprinting in the manner which occurred subsequently in the present trial, namely, the expert expressing the view he had “no doubt” about his results, was in any way, or could have been considered to be in any way suspect or open to criticism, and did not seek by such expression to usurp the role of the jury. Nor was it likely to have had that effect. This Court is satisfied it did not lead to an unfair trial or to an unsafe conviction.”
12.4 In relying on the proposition that fingerprint evidence is capable of being incorrect, counsel referred to two cases from different jurisdictions, being Brandon Mayfield v. United States of America [Oregon District Court, summary judgment, 26th September, 2007] and McKie v. Strathclyde Joint Police Board & ors [2003] ScotCS 353. Counsel also referred to a ruling of White J. in Director of Public Prosecutions. v. Rattigan (Unreported, Central Criminal Court, 2nd February, 2009) where that judge did not permit an expert to give his opinion as one of no doubt. Finally, counsel referred to the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v. Abdi (Unreported, Court of Criminal Appeal, 6th December, 2004) where the judgment of the Court was delivered by Hardiman J. It was said in that judgment that expert opinion should not be expressed in a form which suggests that the expert is trying to subvert the role of the finder of fact.
12.5 As was pointed out by the trial judge, it is in the nature of any expert opinion that it may be held with a greater or lesser degree of confidence. There is no necessarily correct way in which an expert ought to express the degree of confidence with which the expert holds the opinion of which evidence is given. If there is a basis, whether because of the generally accepted principles of the area in question or because of a contrary view expressed by another expert witness, for suggesting that the expert has been exaggerated in the degree of confidence expressed, then that is a matter which can be the subject of a challenge to the expert’s opinion.
12.6 It is, of course, true to state, as Hardiman J. pointed out in Abdi, that the form of expert opinion should not be such as allows the expert to subvert the role of the jury (or, where appropriate, a finder of fact who is a judge). Certainly, an expert who used the phrase “beyond reasonable doubt” or the like would be acting inappropriately. However, even if such a phrase was used in evidence, it would be a matter for the trial judge to seek to charge the jury, if that were considered safe on the facts of the case, in a way which would make clear to the jury what their role was. While the phrase “no doubt” bears some similarity to “beyond reasonable doubt”, it is also a phrase which is frequently used in every day discourse. People, and doubtless experts, express their confidence in their views in a whole range of different ways. Where an opinion is held with a high degree of confidence, it may be said that the holder is “highly confident” or is “certain” or has “no doubt” or, doubtless, a similar view can be expressed in other ways. If it is believed that the view expressed as to the level of confidence which can be legitimately be held in the opinion is incorrect, then that is a matter to be challenged the ordinary way by cross examination or by tendering contradictory evidence.
12.7 The important point to emphasise in this context is that the witness is allowed to express an opinion, as an expert, solely on a matter which falls within his or her area of expertise and not a view on the guilt or otherwise of the accused. It is, in principle, analogous to a witness of fact expressing, with a degree of confidence, a view solely on a matter of fact within his or her own knowledge such as “I am sure it was the accused that I saw at the scene of the assault”. In either case, it remains exclusively a matter for the jury to decide what weight, if any, to attach to the evidence and of course to decide the issue of guilt or otherwise of the accused.
12.8 In my view, there was nothing inappropriate in the way in which the trial judge handled this aspect of the case and the Court of Criminal Appeal was correct to disallow the appeal before it on the grounds associated with this point. I would, therefore, dismiss the appeal on that ground as well.
13. Conclusions
13.1 For those reasons, I am satisfied that the appeal on the certified point in Mr. Gormley’s case should be allowed. Mr. Gormley was convicted substantially on the basis of admission evidence made during interrogation in custody during a period after he had requested the presence of a solicitor and before that solicitor had arrived to advise him.
13.2 His conviction on that basis is a breach of the constitutional guarantee of fair process and thus is, in accordance with State (Healy) v. Donoghue, a trial otherwise than in due course of law.
13.3 Different considerations apply in the case of Mr. White. While it is true that forensic samples were taken from him at a time after he had requested the presence of a solicitor and before the arrival of the solicitor concerned, for the reasons which I have sought to analyse, I am not satisfied that the taking of samples in that manner amounts to a breach of fair process. That is so because Mr. White was legally obliged to provide those samples and same were taken in an unobtrusive way.
13.4 On that basis I would reject the certified ground of appeal in Mr. White’s case. For the reasons also set out earlier in this judgment, I would reject the two additional points which Mr. White was permitted by this Court to argue on his appeal. Therefore, Mr. White’s appeal must fail.
13.5 Finally, I would emphasise that many questions concerning the application in detail of the right to fair process as identified in Mr. Gormley’s case do not arise on the facts of his case. Those issues will fall to be determined in cases where the relevant facts arise.
In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940.
Supreme Court
[1940] IR 470
SULLIVAN C.J. :
9. Feb.
In pursuance of the provisions of Art. 26 of the Constitution, the President of Ireland, on the 8th January, 1940, after consultation with the Council of State, referred to this Court a Bill, entitled “Offences Against the State (Amendment) Bill, 1940,” for a decision on the question whether the said Bill is repugnant to the Constitution or to any provision thereof.
The said Article admittedly refers to a Bill such as this, which had been duly passed by both Houses of the Oireachtas. Under the Article it is provided that the Court, consisting of not less than five Judges, shall consider every question referred to it by the President and, having heard arguments by or on behalf of the Attorney-General and by counsel assigned by the Court, shall pronounce its decision in open Court as soon as may be, and in any case not later than sixty days after the date of reference.
The Article further provides that the decision of the majority of the Judges of this Court shall, for the purposes of this Article, be the decision of the Court (clause 2, par. 2).
It is further provided that, in every case in which this Court decides that any provision of a Bill, so referred to the Court, is repugnant to the Constitution or to any provision thereof, the President shall decline to sign such Bill, and that, in every other case, the President shall sign the Bill as soon as may be after the date on which the decision of this Court shall have been pronounced.
In accordance with the provisions of the Article the Court assigned counsel and, subsequently, the Court heard arguments by counsel on behalf of the Attorney-General and by counsel so assigned by the Court, and at the conclusion of the said arguments reserved its decision.
The decision now announced is the decision of the majority of the Judges and is, within the meaning of clause 2, par. 2 of the said Article, the decision of the Court.
The long title of the Bill, so referred to this Court is “An Act to repeal Part VI of the Offences against the State Act, 1939, and to make other provisions in relation to the detention of certain persons.”
Sect. 2, which is contained in Part I of the Act, repeals Part VI of the Offences Against the State Act, 1939. The Part of the Act of 1939 so repealed is substantially to the same effect as Part II of the Bill now before this Court.
Part II of the Bill consists of seven sections.
Sect. 3 provides that Part II of the Act is to come into force when and so often as the Government makes and publishes a Proclamation declaring that the powers conferred by the said Part of the Act are necessary to secure the preservation of public peace and order, and that, if the Government makes and publishes a Proclamation declaring that the said Part of the Act shall cease to be in force, same shall forthwith cease to be in force. It further provides that it shall be lawful for Dail Eireann, at any time while the said Part of the Act is in force, to pass a resolution annulling such first-mentioned Proclamation and thereupon such Proclamation shall be annulled and the said Part of the Act shall cease to be in force, but without prejudice to the validity of anything done after the making of the Proclamation and before the passing of the resolution.
Sect. 4 provides as follows:
“4(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section.
(2) Any member of the Garda Siochana may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section.
(3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens.
(4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act.
(5) Every warrant issued by a Minister of State under this section shall be in the form set out in the Schedule to this Act or in a form to the like effect.”
Sect. 5 confers on any member of the Garda Siochana power, in respect of any person arrested and detained under this Part of the Act:(a) to demand his name and address, (b) to search him or cause him to be searched, (c) to photograph him or cause him to be photographed, and (d) to take or cause to be taken his fingerprints. It also provides that any person who obstructs or impedes a member of the Garda Siochana in the exercise of the said powers, or who refuses to give to a member of the Garda Siochana his correct name and address, shall be guilty of a contravention of the regulations to be made under this Part of the Act and shall be dealt with accordingly.
Sect. 6 provides that a Minister of State may, by writing under his hand, order the release of any person who is being detained and such person shall forthwith be released.
Sect. 7 empowers a Minister of State to make regulations for all or any of the following purposes, that is to say:
(a) Prescribing the prisons, internment camps, and other places in which persons may be detained under this Part of this Act;
(b) providing for the efficient management, sanitation, control, and guarding of such prisons, internment camps, and other places;
(c) providing for the enforcement and preservation of discipline amongst the persons detained in any such prison, internment camp, or other place as aforesaid;
(d) providing for the punishment of persons so detained who contravene the regulations;
(e) prescribing or providing for any other matter or thing incidental or ancillary to the efficient detention of persons detained under this Part of this Act.
Sub-s. 2 of the said section provides that:
“Every regulation made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made, and if a resolution annulling such regulation is passed by either House of the Oireachtas within the next subsequent twenty-one days on which such House has sat after such regulation is laid before it, such regulation shall be annulled accordingly, but without prejudice to the validity of any thing previously done under such regulation.”
Sect. 8 provides for the setting-up of a Commission to which any person detained under this Part of the Act may apply in writing to consider the continuation of his detention, and requires the Minister for Justice to furnish to the Commission such relevant information and documents, in the possession or procurement of the Government or of any Minister of State, as shall be called for by the Commission, and further provides that, if the Commission reports that no reasonable grounds exist for the continued detention of such person, he shall, with all convenient speed, be released.
Sect. 9 provides that the Government shall, once at least in every six months, furnish to each House of the Oireachtas certain particulars therein specified with reference to persons detained.
Counsel, so assigned by the Court, contended that the Bill was repugnant to the Constitution and, in particular, they relied upon the Preamble and on Article 34, clause 1, and Articles 38 and 40.
We propose to deal specifically with the aforesaid Articles, but in arriving at our conclusion we have had regard not only to those Articles but also to all such other Articles as seemed to us material to the question which we have to determine.
Before dealing, however, with the said Articles, we desire to point out that several Acts authorising the detention of persons had been passed by the Oireachtas of the Irish Free State prior to the enactment of the Constitution which we are now considering. The existence and effect of these Acts must have been within the knowledge of the framers of the Constitution and, nevertheless, there is no express prohibition in the Constitution against such legislation. This is a matter to which we are bound to attach considerable weight in view of the fact that many Articles of the Constitution prohibit the Oireachtas, in plain and unambiguous language, from passing certain laws therein specified.
Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.
The material portion of the Preamble is that which declares that, in enacting the Constitution, the People of Ireland are
“Seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations.”
In dealing with the Preamble counsel laid great stress on the words “dignity and freedom of the individual” and focussed their attention upon those words exclusively. This does not seem to us to be the correct method of arriving at the true meaning and effect of the Preamble. The main object aimed at is the promotion of the common good, which, it is contemplated, will assure the dignity and freedom of the individual, the attainment of social order, the restoration of the unity of our country and the establishment of concord with other nations. Apart from the grammatical construction of the words of the Preamble, it seems to us difficult to understand how the dignity and freedom of the individual member of a State can be attained unless social order is maintained in that State. There is nothing in this clause of the Preamble which could be invoked to necessitate the sacrifice of the common good in the interests of the freedom of the individual.
Article 34 deals with the establishment of Courts and the administration of justice therein, and the particular Clause on which reliance was placed, is Clause 1, which provides that justice shall be administered in public Courts established by law by Judges appointed in the manner provided by the Constitution. In order to rely upon this Article it would be necessary to establish that the Minister, in exercising the powers conferred upon him by the Bill, is administering justice within the meaning of the Article. This proposition seems to us to be wholly unsustainable.
Article 38 deals with the trial of offences and provides, in clause 1, that no person shall be tried on any criminal charge save in due course of law. The remaining clauses of the Article prescribe the methods in which criminal charges may be tried and specify various Courts for this purpose. The argument necessarily proceeds upon the basis that the Minister, in performing his functions under the Bill, is engaged in the trial of a criminal charge and that the detention contemplated by the Bill is punishment in respect of a criminal offence.
In the opinion of this Court neither s. 4 nor s. 5 of the Bill creates or purports to create a criminal offence. The only essential preliminary to the exercise by a Minister of the powers contained in s. 4 is that he should have formed opinions on the matters specifically mentioned in the section. The validity of such opinions is not a matter that could be questioned in any Court. Having formed such opinions, the Minister is entitled to make an order for detention; but this Court is of opinion that the detention is not in the nature of punishment, but is a precautionary measure taken for the purpose of preserving the public peace and order and the security of the State. This distinction has been recognised in several cases.
In the case of The King (Zadig) v. Halliday (1), a question arose as to the power of the Home Secretary in England to make an order for detention under the Defence of the Realm (Consolidation) Regulations, 1914, made under s. 1, sub-s. 1, of the Defence of the Realm Consolidation Act, 1914. In the course of his speech in that case Lord Finlay L.C. says at p. 265:
“On the face of it the statute authorises in this sub-section provisions of two kindsfor prevention and for punishment. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the State.”
In a later passage he says, at p. 269:
“One of the most obvious means of taking precautions against dangers such as are enumerated is to impose some restriction on the freedom of movement of persons whom there may be any reason to suspect of being disposed to help the enemy. It is to this that regulation 14B is directed. The measure is not punitive but precautionary. It was strongly urged that no such restraint should be imposed except as the result of a judicial inquiry, and, indeed, counsel for the appellant went so far as to contend that no regulation could be made forbidding access to the seashore by suspected persons. It seems obvious that no tribunal for investigating the question whether circumstances of suspicion exist warranting some restraint can be imagined less appropriate than a Court of law. No crime is charged. The question is whether there is ground for suspicion that a particular person may be disposed to help the enemy. The duty of deciding this question is by the order thrown upon the Secretary of State, and an advisory Committee, presided over by a Judge of the High Court, is provided to bring before him any grounds for thinking that the order may properly be revoked or varied.”
Lord Atkinson, in the course of his speech in the same case, says at p. 273:
“Preventive justice, as it is styled, which consists in restraining a man from committing a crime he may commit but has not yet committed, or doing some act injurious to members of the community which he may do but has not yet done, is no new thing in the laws of England.”
Again:
“One of the most effective ways of preventing a man from communicating with the enemy or doing things such as are mentioned in s. 1, sub-s. 1 (a) and (c), of the statute is to imprison or intern him. In that as in almost every case where preventive justice is put in force some suffering and inconvenience may be caused to the suspected person. That is inevitable. But the suffering is, under this statute, inflicted for something much more important than his liberty or convenience, namely, for securing the public safety and defence of the realm.”
The principle underlying the decision in that case was acted upon and applied in this country in the case of The King (O’Connell) v. Military Governor of Hare Park Camp (1).In that case the applicant was detained in custody under an order of an Executive Minister made under s. 4 of the Public Safety (Powers of Arrest and Detention) Temporary Act, 1924, which authorised such Minister to make such an order where he was of opinion that the public safety would be endangered by such person being set at liberty. It was contended that the section was repugnant to the Constitution of the Irish Free State, which, in our opinion, was, in this respect, substantially to the same effect as the Constitution of Ireland. That contention was rejected and an application for habeas corpus was refused.
Article 40 deals with personal rights. Clause 3 thereof provides that the State guarantees by its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen, and to protect from unjust attack and, in case of injustice done, to vindicate, the life, person, good name, and property rights of every citizen.
It is alleged that the provisions of the Bill are repugnant to the guarantee contained in this clause. It seems to us impossible to accede to this argument. The guarantee in the clause is not in respect of any particular citizen, or class of citizens, but extends to all the citizens of the State, and the duty of determining the extent to which the rights of any particular citizen, or class of citizens, can properly be harmonised with the rights of the citizens as a whole seems to us to be a matter which is peculiarly within the province of the Oireachtas, and any attempt by this Court to control the Oireachtas in the exercise of this function, would, in our opinion, be a usurpation of its authority.
The People, by the Constitution, have provided for the setting-up of three great Departments of Statethe Oireachtas, the Executive, and the Judiciaryand it is essential for the harmonious working of the machinery of State that each Department should confine itself to its own constitutional functions. If the Oireachtas enacts a law within the scope of its legal and constitutional powers, it is for the Courts to construe and apply such law. Any criticism by the Courts of the manner in which the Oireachtas exercises the discretion and powers vested in it would be as much open to objection as would any suggestion, in either House of the Oireachtas, that a decision of a Court, within the scope of its authority, was not in accordance with law.
Clause 4 of the said Article provides that no citizen shall be deprived of his liberty save in accordance with law, and makes provision for the release of any person who is being detained otherwise than in accordance with law.
The phrase “in accordance with law” is used in several Articles of the Constitution, and we are of opinion that it means in accordance with the law as it exists at the time when the particular Article is invoked and sought to be applied. In this Article, it means the law as it exists at the time when the legality of the-detention arises for determination. A person in custody is detained in accordance with law if he is detained in accordance with the provisions of a statute duly passed by the Oireachtas; subject always to the qualification that such provisions are not repugnant to the Constitution or to any provision thereof.
Accordingly, in our opinion, this Article cannot be relied upon for the purpose of establishing the proposition that the Bill is repugnant to the Constitutionsuch repugnancy must be established by reference to some other provision of the Constitution.
It was contended that the effect of the Bill is to take away the right to habeas corpus. There is no foundation for this contention. Notwithstanding the provisions of the Bill, a person who is detained is entitled under Article 40, clause 4, par. 2, to have the legality of his detention enquired into and to obtain an order for his release, unless the Court or Judge, enquiring into the matter, is satisfied that all the provisions of the Bill have been complied with and that the detention is legal.
No doubt the Bill, when enacted, will have the effect of altering the law and, to that extent, will justify a detention which might otherwise be unlawful. This, however, cannot rightly be described as taking away the right to habeas corpus.
The arguments based upon ss. 5 and 7 of the Bill can be disposed of very shortly. If, as this Court holds, the arrest and detention contemplated by s. 4 are lawful, it is obviously necessary that provision should be made as to the place and mode of detention and other matters incidental thereto. Sects. 5 and 7 seem to us to be framed with this object in view. The purposes for which regulations may be made are set out in s. 7 and, in framing the regulations, the Minister is bound by the terms of the section. There is nothing in the section to suggest that any regulation made thereunder could contravene any Article of the Constitution. It is not for us to assume that the Minister will exceed the powers conferred upon him by the section
and, should he do so, it seems to us that the regulations would, to that extent, be ultra vires and invalid.
It was contended before us that the Bill is unnecessary and oppressive. This is not a matter for our consideration and we express no opinion upon it. The only question before us is whether it is within the power of the Oireachtas, consistently with the Constitution, to enact such legislation. In the opinion of this Court it is, and we shall advise the President accordingly.
The Emergency Powers Bill, 1976
[1977] IR 159
O’Higgins C.J. 170
S.C.
15th October, 1976
The Facts
On the 1st September, 1976, Dail Eireann resolved in the following terms: “That Dail Eireann hereby resolves, pursuant to subsection 3 of section 3 of Article 28 of the Constitution . . . that, arising out of the armed conflict now taking place in Northern Ireland, a national emergency exists affecting the vital interests of the State.” On the same day Seanad Éireann passed a resolution in identical terms.
On the 16th September, 1976, the Emergency Powers Bill, 1976, was passed by both Houses of the Oireachtas. On the 24th September, 1976, the President of Ireland (pursuant to the provisions24 of Article 26 of the Constitution and after consultation with the Council of State) referred the bill to this Court for a decision on the question whether the bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof. Pursuant to the provisions of Article 26, section 2, of the Constitution, this Court has considered this question and has heard arguments by the Attorney General and his counsel and by counsel assigned by this Court.
The Law
The Emergency Powers Bill, 1976, is a bill entitled: “An Act for the purpose of securing the public safety and the preservation of the State in time of an armed conflict in respect of which each of the Houses of the Oireachtas has adopted a resolution on the first day of September, 1976, pursuant to subsection 3 of section 3 of Article 28 of the Constitution.”
The latter sub-section of the Constitution reads as follows:
“Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this sub-section ‘time of war’ includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and ‘time of war or armed rebellion’ includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.”
This sub-section incorporates the First and Second Amendments of the Constitution. Sub-section 3, as originally enacted by the people, made no reference to an armed conflict and the sub-section ended with the words “in time of war or armed rebellion in pursuance of any such law.” The First Amendment incorporated the reference to an armed conflict, and the portion of the sub-section as it now stands beginning with the words “In this sub-section”down to the words “the vital interests of the State” represents the total effect of the First Amendment. The rest of the sub-section as it now stands represents the whole25 of the Second Amendment of the Constitution.
A resolution of both Houses of the Oireachtas is not a condition precedent to the enactment by the Oireachtas of any law which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion. It is, however, a condition precedent to the enactment of any such law in a time when there is taking place an armed conflict in which the State is not a participant that such law must be expressed to be for the purpose of securing the public safety and the preservation of the State in time of such armed conflict. This bill is expressed to be for that purpose. The resolutions26 upon which the bill is grounded are not part of the bill (although they are referred to in its long title and in its s. 3) and are not and could not be the subject of a reference to this Court under Article 26. Each resolution states that there is an armed conflict taking place in Northern Ireland and that a national emergency arising out of that armed conflict exists affecting the vital interests of the State. The only recital of fact contained in the bill is that each of the Houses of the Oireachtas on the 1st September, 1976, adopted a resolution pursuant to sub-s. 3 of s. 3 of Article 28 in respect of an armed conflict. The only resolutions in respect of an armed conflict adopted by the Houses of the Oireachtas on the 1st September, 1976, were those referring to an armed conflict in Northern Ireland and the bill must, therefore, be confined to the armed conflict described in the resolutions.
As to the right of the President to refer the bill to this Court, it is clear that he has power to do so notwithstanding that the bill is one passed by both Houses of the Oireachtas by reference to the provisions of sub-s. 3 of s. 3 of Article 28. The power of the President to do so has not been questioned in these proceedings.
The Submissions
It has been submitted by counsel assigned by the Court that it should be decided that the provisions of the bill are repugnant to the Constitution, or to some of the provisions thereof, and that the President should be so advised by this Court. If the Court were to do so, the President would be obliged by Article 26, s. 3, sub-s. 1, of the Constitution to decline to sign the bill, and so it would not become law.
Essentially, the submissions made by counsel so assigned have been to the effect that the provisions27 of s. 2 of the bill are repugnant to the provisions28 of Article 40 of the Constitution, and that the long title of the bill is not in accordance with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution.
The Attorney General asked the Court to deal with this reference on the basis that s. 2 of the bill would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution. As the matter has not been discussed further, the Court does not find it necessary to express an opinion on the question whether s. 2 of the bill or any part of it would be repugnant if it were not saved by Article 28, s. 3, sub-s. 3, of the Constitution.
The extent to which the bill, if signed by the President and given constitutional validity as law by Article 28, s. 3, sub-s. 3, would encroach on personal rights which would otherwise be constitutionally guaranteed was canvassed in argument. In this context it is important to point out that when a law is saved from invalidity by Article 28, s. 3, sub-s. 3, the prohibition against invoking the Constitution in reference to it is only if the invocation is for the purpose of invalidating it. For every other purpose the Constitution may be invoked. Thus, a person detained under s. 2 of the bill may not only question the legality of his detention if there has been non-compliance with the express requirements of s. 2, but may also rely on provisions of the Constitution for the purpose of construing that section and of testing the legality of what has been done in purported operation of it. A statutory provision of this nature which makes such inroads upon the liberty of the person must be strictly construed. Any arrest sought to be justified by the section must be in strict conformity with it. No such arrest may be justified by importing into the section incidents or characteristics of an arrest which are not expressly or by necessary implication authorised by the section.
While it is not necessary to embark upon an exploration of all the incidents or characteristics which may not accompany the arrest and custody of a person under that section, it is nevertheless desirable, in view of the submissions made to the Court, to state that the section is not to be read as an abnegation of the arrested person’s rights (constitutional or otherwise) in respect of matters such as the right of communication, the right to have legal and medical assistance, and the right of access to the Courts. If the section were used in breach of such rights the High Court might grant an order for release under the provisions for habeas corpus contained in the Constitution. It is not necessary for the Court to attempt to give an exhaustive list of the matters which would render a detention under the section illegal or unconstitutional.
It has been submitted by counsel assigned by the Court that the immunity granted to the type of legislation contemplated by Article 28, s. 3, sub-s. 3, of the Constitution against invalidation by any provision of the Constitution applies only to a law which becomes so on being signed by the President. It is urged that Article 28, s. 3, sub-s. 3, is not to be taken into account by this Court when considering the provisions of a bill referred to it under the provisions of Article 26. If Article 26 stood alone and could be construed without reference to Article 28, s. 3, sub-s. 3, of the Constitution, that submission would be correct and this Court might have to advise the President that the bill would be repugnant to the Constitution because of the provisions of s. 2 of the bill.
Every law enacted by the Oireachtas must initially have been a bill passed by both Houses of the Oireachtas and is, therefore, capable of being referred to this Court by the Presidentunless it is a bill of the kind expressly excluded by Article 26 from reference. The bills which may be referred include bills intended to be enactments in conformity with the provisions of Article 28, s. 3, sub-s. 3, of the Constitution. If such a bill is not referred to this Court it must be signed by the President. Thereupon, it becomes a law enacted by the Oireachtas and has the immunity conferred upon it by the sub-section in question. The Constitution, therefore, contemplates that laws which would otherwise be invalid may be validly enacted provided they conform with the requirements of Article 28, s. 3, sub-s. 3, of the Constitution.
When a bill is validly referred to the Court under Article 26, the test of its repugnancy or invalidity is what its force and effect will be if and when it becomes law. Thus, in regard to a bill which is to take effect as law under Article 28, s. 3, sub-s. 3, if it is shown to the Court that the preliminary and procedural requirements for the passing of the bill by both Houses of the Oireachtas have been complied with, it is ipso facto, because of the exemption granted by Article 28, s. 3, sub-s. 3, incapable of being struck down on the ground of repugnancy to the Constitution or to any provision thereof.
The next submission was that the long title, which is an essential part of the billbecause it is relied on as expressing the bill’s purposefails to conform with the requirements of Article 28, s. 3, sub-s. 3, in that the purpose of the bill is not expressed to be for the preservation of the State”in time of war.” This submission is based upon the provisions of the First Amendment of the Constitution, as incorporated in sub-s. 3, which provides that “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that arising out of such armed conflict a national emergency exists affecting the vital interests of the State. The argument is that, even though it is the existence of an armed conflict that is relied upon, nonetheless the expression “time of war” must be used because the latter includes the former.
As against this, the Attorney General has submitted that in the sub-section, particularly as amended by the Second Amendment of the Constitution, it is indicated that a time of war, an armed rebellion, and an armed conflict in which the State is not a participant are to be regarded as separate and distinct events. He relies on the fact that the expression,”termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion,” occurs in the latter portion of the sub-section and is substantially repeated in the words “by such war, armed conflict, or armed rebellion has ceased to exist” which follow a line or two later. Furthermore, he pointed out that the sub-section draws other distinctions between the three types of categories mentioned. Resolutions of both Houses of the Oireachtas are necessary to declare that a national emergency exists which affects the vital interests of the State when the occasion is one of an armed conflict in which the State is not a participant and such armed conflict is actually taking place. This is to be contrasted with what may be done in”time of war or armed rebellion” when such resolutions are not required. The existence of a “time of war or armed rebellion” is sufficient to bring into operation any law which has been enacted by the Oireachtas pursuant to that sub-section and which is expressed to be for the purpose of securing the public safety and the preservation of the State. If such a law had been enacted before the occurrence of such event, it is brought into operation by the occurrence of that event. The Attorney General submitted that the inclusion in “time of war” of “armed conflict” indicates the type of legislation which may be enacted under the sub-section. He submitted that different formalities are required for the enactment of legislation for an armed conflict in which the State is not a participant, as distinct from legislation for a time of war or armed rebellion. In the view of this Court this submission is well founded.
The Court is satisfied that the purpose of the bill, as expressed by reference to a time of an armed conflict instead of by reference to a time of war, complies with the requirements of Article 28, s. 3, sub-s. 3, while at the same time restricting the area of operation of the bill, in that the bill would not be applicable to a “time of war or armed rebellion,” as distinct from “armed conflict,” because it is not expressed to be for that purpose.
The last matter to be considered is the question of the existence of the state of affairs necessary to permit the application of Article 28, s. 3, sub-s. 3, of the Constitution. As pointed out earlier in this judgment, these are the matters or statements of fact which are contained in the resolutions of the two Houses of the Oireachtas. Submissions were made as to the extent, if any, to which the Court could examine the correctness of these statements. It was submitted by the Attorney General that there is a presumption that the facts stated in the resolutions are correct. The Court accepts the existence of that presumption and the corollary that the presumption should be acted upon unless and until it is displaced. In this case it has not been displaced.
The Attorney General submitted the general proposition that when the resolutions referred to in Article 28, s. 3, sub-s. 3, have been passed this Court has no jurisdiction to review the contents of them. When the consequences of this submission were pointed out to him he withdrew it as he said it did not arise in this case. The Court expressly reserves for future consideration the question whether the Courts have jurisdiction to review such resolutions.
The Court has come to the conclusion that the different objections raised to the constitutionality of this bill fail. To summarise, the exemption provided by Article 28, s. 3, sub-s. 3, of the Constitution is the decisive factor in the consideration of any question of repugnancy. The bill’s stated expression of its purpose accords with the requirements of the sub-section; and there is a presumption which has not been displaced that the facts stated in the resolutions are correct. For these reasons the Court decides that the bill is not repugnant in any respect to the Constitution or any provisions thereof and will so advise the President.
The Court would like to express its appreciation of the assistance given to it by counsel and solicitors engaged in these proceedings.