Criminal Trial
Cases
Gregory and Ors v Windle and Ors
[1995] 1 ILRM 131
In each of the three above-entitled cases the plaintiff (represented by the same counsel and solicitor in all three cases) challenges the validity of an order made against him by District Judge Windle on constitutional grounds.
In the case of Tony Gregory, upon the hearing of a complaint against him on 30 July 1987, in the Dublin District Court, alleging that on 19 July 1985, at O’Connell Street, a public place in the Dublin Metropolitan District, he did use threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace might be occasioned, contrary to s. 14(13) of the Dublin Police Act 1842, he was convicted of the said offence and ordered to enter into recognizances within 14 days of the making of the said order in the sum of £500 with one solvent surety in the sum of £1,000 to keep the peace and be of good behaviour towards all citizens for the space of six months, and in default of finding such surety and entering into recognizance aforesaid to be imprisoned for the period of one month unless he should sooner enter into said recognizance.
In the case of Christy Burke he was convicted of a like offence on the same date and in his case he was ordered to enter into a recognizance in the sum of £100 with one solvent surety in the sum of £500 to keep the peace and be of good behaviour for the space of six months, with one month’s imprisonment in default.
In the case of John Cooney he appeared before District Judge Windle on 10 January 1989, on a charge that on 9 January 1989, at Abbey Street, a public place in the Dublin Metropolitan District, he did use threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace whereby a breach of the peace might be occasioned contrary to s. 14(13) of the Dublin Police Act 1842, and an order was made on the said date that he should enter into recognizance himself in the sum of £100 with one solvent surety in the sum of £1,000 to keep the peace and be of good behaviour towards all citizens for the space of six months and in default of finding such surety and entering into recognizance as aforesaid, to be imprisoned at Mountjoy Prison for the period of three months unless he should sooner enter into the said recognizance, said recognizance to be entered forthwith upon the making of the said order.
In each case the named defendant failed to enter into recognizance or provide such surety as was required by the relevant order and in each case a warrant of committal was issued for their arrest and imprisonment in Mountjoy Prison for the stated period or for such shorter period as should elapse pending compliance with the order of the District Court.
This was followed by an application to the High Court on behalf of each of the plaintiffs for relief by way of judicial review to enable them to challenge the validity of the District Court order and warrant of committal, and the necessary order was made by Blayney J in the case of Tony Gregory on 1 October 1987; by Hamilton P, President of the High Court, in the case of Christy Burke, on 25 September 1987, and by Johnson J, in the case of John Cooney, on 11 January 1989. Leave was granted in each case to seek judicial review by way of plenary summons, and each of the plaintiffs was admitted to bail pending the hearing of the proceedings.
The relief sought is expressed as follows in the statement of claim which was delivered in each of the three cases:
1. An order of certiorari quashing the order made by the first named defendant on the [relevant date] committing the plaintiff to Mountjoy Prison for [the stated period] for his failure to enter into a recognizance to keep the peace and be of good behaviour, on the following grounds:
(a) There was no evidence to support or justify the making of such an order;
(b) The said order effectively constituted preventative detention which is not authorised by the Constitution;
(c) The said order effectively constituted a punishment for conduct which has not yet occurred and for which the plaintiff had not been convicted after trial according to law under the Constitution;
(d) The said order effectively constituted an amendment by the defendant (district judge) of a maximum statutory penalty.
2. A declaration that the common law powers of magistrates to bind to the peace were not carried over on the enactment of the Constitution on the grounds that they failed to hold citizens equal before the law, constitute preventative detention or preventative justice and punish conduct which has yet to occur and which may not occur.
3. A declaration that s. 54 of the Courts (Supplemental Provisions) Act 1961 is repugnant to and inconsistent with the Constitution and is of no force and effect for the same reasons.
A summary of the evidence given during the District Court proceedings against Messrs Gregory and Burke is contained in replies to a notice of particulars in their particular cases, and reads as follows:
Following upon the plaintiff’s plea of guilty to the said offence … a member of An Garda Síochána, a certain Superintendent Francis of Store Street Garda Station, was called on behalf of the prosecution to give evidence of the circumstances in which the said offence was committed. The said witness gave evidence to the effect that the said offence had been committed in circumstances arising out of and during the course of a demonstration by street traders protesting their trading difficulties, during the course of which demonstration the public highway was blocked and was cleared by members of An Garda Síochána of such persons, including the plaintiff … the above summary does not purport to relate the precise terms of the evidence so adduced … in the course of the said evidence and indeed during the course of the said hearing no evidence was adduced indicating a likelihood or propensity on the part of the plaintiff to engage in conduct likely to disturb the public peace in the future and further there was no suggestion to that effect from any party to the proceedings or evidence or other circumstances from which such likelihood or danger could be inferred.
Averments to the same effect are contained in affidavits sworn by the said two plaintiffs in support of their applications for leave to apply for judicial review.
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 justice, 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 named 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. 29–46. The origin of the jurisdiction is traced back to common law and to the Statute of Edward III, (34 Edwd. 3, c.1 (1360)), and the justices’ commission. (See judgment of Fitzgerald J in R. (Feehan) v. Queen’s Co. JJ (1882) 10 LR Ir 294 at p. 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] 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 (Irl), c. 22 (1495).
Fitzgerald J (later Lord Fitzgerald) said in Feehan’s case (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 by 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 p. 303):
Where it shall be made reasonably 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 a 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 public security by requiring the individual to give sureties for good behaviour and in default, to commit him to prison.
In the case of Ex parte Tanner, MP (judgment of Palles CB, 8 August 1889, reported in Judgments of the Superior Courts in Ireland , Stationery Office, 1903, p. 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 an act which would amount to such misbehaviour or breach of the peace.
He 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 in which there was no information that a repetition of the offence was likely or was apprehended … and 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 R. (Boylan) v. Londonderry JJ [1912] 2 IR 374, at p. 380, he concluded that where there had 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 Justice of the Peace provide prima facie support for the validity of the orders made by the district 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, 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 40s. being the penalty referred to in the Dublin Police Act 1842, s. 14(13)), 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 case of People (Attorney General) v. O’Callaghan [1966] IR 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.
Ó Dálaigh CJ said (at pp. 508–509):
[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 pp. 516–17):
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 Síochána 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 gardaí under the Act, was challenged unsuccessfully in In re Philip Clarke [1950] IR 235.
A person charged with a criminal offence can, 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 the 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. (O’Callaghan’s case [1966] IR 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 (Health Act 1947, s. 38(1)); 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. (Ó Dálaigh CJ, Keegan v. De Burca [1973] IR 223; Finlay P, State (Commins) v. McRann [1977] IR 78).
I share the view expressed by Palles CB in Tanner’s case 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 Feehan’s case (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 R. (Reynolds) v. Cork JJ (1882) 10 LR Ir 1, and R. v. Little (1909) 26 TLR 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 QB 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 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 US 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 10 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.
The State (Murphy) v. Kielt
Barron J. [1984] IR 461
H.C.
Barron J.
21st May 1982
The prosecutor is a young man aged 18 years. On the 13th January, 1981, he received a sentence of 12 months detention in St. Patrick’s Institution. In May of that year, he was considered suitable for temporary release under the provisions of the Criminal Justice Act, 1960. He was granted full temporary release from the 19th May, 1981, to the expiration of his sentence on the 22nd October, 1981. Prior to his release, the prosecutor signed a notice as required by r. 6 of the Prisoners (Temporary Release) Rules, 1960. The notice, which was headed “Full temporary release from Saint Patrick’s Institution”, was in the following form__
“This notice is to inform you that you Michael Murphy are being released from Saint Patrick’s Institution for the period from 10.30 a.m. 19th May, 1981, to expiration of sentence 22nd October, 1981, for the purpose of re-entering into the community under intensive supervision and that your release is subject to the following conditions, with which you are obliged to comply during the period of your release__
1. That you shall keep the peace and be of good behaviour during the period of your release.
2. That you shall be of sober habits . . .
4. That you shall report to the welfare officer as directed by her.
5. That you shall comply with the conditions as laid down by the probation and welfare officer.
Note: The currency of a sentence is suspended during a period of temporary release. Failure to return on or before the expiration of the period of temporary release or breach of any of the conditions attached to temporary release is a breach of the discipline of Saint Patrick’s Institution and is an offence punishable, on conviction, by imprisonment for a term not exceeding six months.”
That form was also signed on behalf of the officer for the time being in charge of St. Patrick’s Institution.
On the 15th June, 1981, while on such temporary release, the prosecutor was arrested under s. 30 of the Offences Against the State Act, 1939, and was charged (with two others) in the District Court in Dublin with attempted murder and possession of a fire-arm with intent to endanger life. Each of the accused was remanded in custody to St. Patrick’s Institution. On admission to that Institution, the prosecutor was treated as a prisoner on remand and was required to wear appropriate clothing. On the following day, two officers at the Institution gave him clothing to wear which was appropriate to a person who had been sentenced. He was told that, since the Gardai had brought him back, that was the clothing which he would have to wear.
On the 19th June, 1981, the respondent governor of the Institution informed the prosecutor that he was being kept in custody because of the seriousness of the offences alleged against him and with which he had been charged. It is not suggested that the respondent was in possession of any facts or evidence relating to the alleged offences, nor is it suggested that any such matters were communicated to the prosecutor by the respondent. In his affidavit the respondent stated that he believed that it would be inappropriate for him to determine the guilt or innocence of the prosecutor on the charges and that he could not carry out any formal investigation of the matter. He stated that, for that reason, he did not carry out any such investigation. The respondent was told by the prosecutor that he had done nothing wrong and that he had been charged with offences which he had not committed.
Application was subsequently made for bail by all three accused. Those applications was heard by Mr. Justice McMahon on the 26th June, 1981, and he granted bail to the prosecutor’s co-accused, but refused it to the prosecutor. It is reasonable to accept that the reason for such refusal was that the prosecutor was then, by reason of the revocation of his temporary release, serving a sentence of detention. A subsequent application for bail was made to Mr. Justice D’Arcy on the 9th October, 1981, and was refused. It is again reasonable to accept that such refusal was for the same reason as the earlier refusal. On the 23rd October, 1981, a further application for bail was made by the prosecutor before Mr. Justice Costello. On that occasion, the application was granted because, presumably, the custodial sentence received on the 13th January, 1981, had been completed.
Meanwhile, on the 23rd September, 1981, the prosecutor had obtained a conditional order of certiorari in respect of the order of the respondent revoking the grant of temporary release to the prosecutor. That conditional order was granted upon the ground that the decision of the respondent to terminate the temporary release was reached otherwise than in accordance with natural justice. The respondent has shown cause why the conditional order should not be made absolute and the prosecutor has now applied to have that order made absolute, notwithstanding the cause shown. The argument advanced on behalf of the prosecutor at the hearing of this application was that the order of the respondent (which had the effect of depriving the prosecutor of the liberty to which he was entitled by reason of the temporary-release order) was made contrary to law and contrary to the principles of natural justice. The respondent has argued that, since the conditional order was obtained on the latter ground only, that ground alone should be considered by the Court. Since the reasons put forward by the prosecutor can all be fairly considered under this one ground, I intend to deal with the case on this basis. I do not consider that any injustice will be done to either party by adopting this approach.
The argument put forward on behalf of the prosecutor is essentially that the respondent did not hear the prosecutor before revoking his temporary release. The prosecutor contends that, having regard to the effect on him of such revocation, there was an obligation on the respondent to hold a hearing of the allegation made against the prosecutor before revoking his temporary release. In support of this submission, counsel relies upon two American authorities which show that, in that jurisdiction, a hearing is required before the revocation of a parole: see Morrissey v. Brewer 1 and Gagnon v. Scarpelli .2 The prosecutor further contends that the reason given for making the revocation order was one for which there was no basis since (a) the temporary release could have been revoked only if there had been a breach of one of the conditions to which such release was subject and (b) the fact that the prosecutor was charged with a criminal offence did not constitute a breach of any of the conditions.
In reply, the respondent contends that the rules of natural justice were observed and were complied with. While the respondent did not specifically concede that he was required to hold a hearing, he was prepared to argue the case on the basis that such a hearing was required. He argues that there was a hearing and that the principles of natural justice have not been broken; that the prosecutor was told the reason why his temporary release was revoked and that, if he had wished to challenge that reason, it was open to him to have done so. In such event, it is contended that the respondent would have been in a position to consider any representations made to him by the prosecutor. The respondent further contends that this opportunity arose before the prosecutor made the first application for bail on the 26th June, 1981, and that, accordingly, on that date he had no grounds for complaint.
In my view, a hearing is required in any case where the rights of an individual are seriously threatened and where he would not otherwise have any means either of seeking to vindicate himself or to alleviate the hardship which he might suffer. Clearly, loss of liberty would come within this category. Under the provisions of the Criminal Justice Act, 1960, a person who has been temporarily released under the provisions of the Act is entitled to be at liberty unless the period for which he has been temporarily released has expired or a condition to which his release was made subject has been broken. Rule 7 of the Prisoners (Temporary Release) Rules, 1960, being rules made under the provisions of the Act, provides__
“Where a person is released under these Rules, he shall return to the prison from which he was released or to St. Patrick’s Institution, as the case may be, on or before the expiration of the period for which he was temporarily released and failure to do so or the breach by him of a condition to which his release was made subject shall be deemed to be a breach of the discipline of the prison or of Saint Patrick’s Institution, as the case may be.”
In the present case, the prosecutor’s liberty could have been curtailed lawfully only if he could have been deemed to have been in breach of the discipline of St. Patrick’s Institution by having been in breach of a condition to which his release was made subject. The respondent, when making his decision to revoke the temporary-release order, was fully aware of the serious consequences for the prosecutor in so doing.
In my view, having regard to the effect on the prosecutor of the revocation of his temporary release by reason of his potential loss of liberty, some hearing of the allegation (that the prosecutor was in breach of a condition to which his release was made subject) was required.
In support of his submission that there was a hearing, the respondent relies upon The State (Duffy) v. The Minister for Defence .3 In that case the applicant had enlisted in the Irish Navy in 1977; he proved to be unsuitable as an engine-room artificer and a decision was made that he should be discharged. He was notified of the decision and, after such notification, he had an opportunity to make representations to his superiors and, generally, to make the case that he should not be discharged. This he failed to do and he was later discharged.
In his judgment in that case Mr. Justice Henchy said__ “Counsel for the prosecutor has taken the point that because a final decision to discharge the prosecutor had been made before the 23rd February, 1978 (when he was paraded and informed of his impending discharge and of the reason for it) the purported compliance with the requirement of audi alteram partem came too late. It is said that he should have been informed of the case against him and should have been given an opportunity of meeting it before a firm decision was made to discharge him. I cannot agree. The purpose of the operation of theaudi alteram partem rule in the context of a situation such as this was to ensure that the prosecutor, in full knowledge of his impending discharge and of the reason for it, could make such representations as he thought fit. If, for example, he had been able to show that he had acquired the necessary degree of efficiency, or was likely to acquire it, it is not to be assumed that his discharge would have taken place regardless. On the contrary, in such unlikely circumstances the earlier steps taken in the process of discharge would have been nullified and the authorities would have been entitled indeed bound not to proceed with the final act of discharge. It is true that once the authorities had made the decision to discharge him for inefficiency, it is unlikely that they would have been moved to change that decision by anything he might put forward at that stage. But that seeming inevitability arose not from the lateness of the opportunity to be heard on his own behalf but from the fact that his inefficiency was inveterate and irremovable. If he had a good case to make, he still had time and opportunity to make it effectually. Assuming, without so holding, that the rule of audi alteram partem required the authorities to do more than they did when he was paraded on the 23rd February, 1978, the respite allowed between that date and the actual discharge on the 6th March, 1978, was a more than adequate compliance with the rule. The crucial step, which he was given a fair chance to forestall, was not the decision to proceed to discharge him but the actual discharge on the 6th March, 1978. In my judgment, therefore, the opportunity of being heard which the prosecutor got did not come too late and had not been foreclosed by any irrevocable decision taken earlier.”
In the present case, there is a fundamental distinction in that the issue to the prosecutor of clothing appropriate to a person who had been sentenced was not the intimation of a decision to act but an implementation of the decision itself. Accordingly, any hearing thereafter would have been a prelude to an opportunity to reverse the decision and not a prelude to the making of the decision. Nevertheless, the crucial event which the prosecutor had to forestall was a refusal of bail because he was already serving a custodial sentence. If the prosecutor had a real opportunity to make representations which could have resulted in the decision of the respondent being reversed then, in my view, theaudi alteram partem rule could have been observed in the circumstances of the present case.
In my view, the essentials of a valid hearing in the present case required at the least__
1. Evidence from which it would have been fair to hold in favour of the allegation.
2. Notification to the prosecutor of the nature of such evidence sufficient to enable him to prepare a defence.
3. Time for the prosecutor to prepare a defence.
4. An opportunity to make that defence.
Such a hearing should have been held and should have been seen to have been held. Such hearing did not have to be of a very formal nature, provided that the minimum requirements to which I have referred were met.
The only evidence that was available to the respondent was that the alleged offences with which the prosecutor had been charged were serious offences. Of itself, that was not sufficient to establish a breach of any condition to which the temporary release of the prosecutor was subject. A charge, by its very nature, establishes nothing. It is whether or not the charge can be established which is relevant. There is nothing to suggest that the respondent was ever in possession of any evidence from which it would have been fair to hold in favour of the accusation. I do not consider that the first condition of a hearing could have been established. It follows from this that the other conditions became irrelevant.
In my opinion, the prosecutor was entitled to be judged by the respondent but not prejudged. Since the respondent was not in possession of any evidence from which he could have held that a breach of any condition to which the prosecutor’s release was made subject had occurred, it follows that there could not have been a hearing and, accordingly, there could not have been a hearing which followed fair procedures. The principle of natural justice could not have been observed. In these circumstances, it is immaterial whether or not the prosecutor made representations to the respondent to reconsider his decision.
The respondent contends that, even if there was a breach of the principles of natural justice, there was excessive delay on the part of the prosecutor in seeking relief since, although he was aware in June, 1981, that he was unable to get bail, it was not until the following September that he sought relief. The respondent, in support of this submission, relies upon the decision of the Supreme Court in The State (Cussen) v. Brennan .4 In that case the court had to consider the effect of delay in seeking relief. The applicant for certiorari had been a candidate for the office of paediatrician to the Southern Health Board. He was not appointed to that position and was informed that another candidate would be appointed. The formal notification of such recommendation was given to the applicant’s solicitors on the 25th January, 1979. The applicant contended that the appointment had been made ultra vires and, on the 21st May, 1979, he applied for and obtained conditional orders of certiorari and mandamus. The question was whether or not the delay between the 25th January and the 21st May deprived the applicant of his remedy. In the course of his judgment Mr. Justice Henchy said at pp. 196-7 of the report__
“What particular period of inactivity will debar a person from getting an order such as mandamus or certiorari will depend on the circumstances of the case. I have no doubt that in this case it would be unjust to grant either mandamus or certiorari.
On the 19th January, 1979, Dr. Kearney was informed that he had been recommended by the Commissioners for the appointment. At that time he held an office under the Mid-Western Health Board. He notified that Board on the 6th April, 1979, of his new appointment and that it would commence on the 1st August, 1979. Thereupon, he instructed solicitors in Cork to act for him in connection with the purchase of a house in Cork, and he and his wife made arrangements and planned their lives on the basis that they would be going to live in Cork.
In my view, a situation was allowed to develop to a point when it would be unfair and not in the public interest to set aside the Commissioners’ recommendation of Dr. Kearney for this post. Dr. Kearney and his wife, the Mid-Western Health Board and University College, Cork, were all induced to make plans for the future and to enter into commitments from which they should not now be compelled to withdraw. They entered into those commitments because they were led to believe that Dr. Kearney’s appointment was an accomplished fact. The prosecutor, because of his dilatoriness, cannot now be heard to say that that appointment was wrongly made. He chose to ignore the Irish test when he knew it could be crucial to the appointment and then, having learned that it would in fact be crucial, he belatedly and unsuccessfully sought to undergo it. From the month of October, 1978, he had good reason to believe that the Irish test would stand between him and success. When he was told in January, 1979, that Dr. Kearney had been appointed, this confirmation of his failure cannot have come as a surprise to him. The prosecutor should have instituted proceedings forthwith so that none of the persons or bodies affected by the appointment would make plans or enter into commitments on foot of it. Instead, the prosecutor allowed four months to pass before commencing the present proceedings in the High Court. That delay was excessive and unreasonable. Because of it, the prosecutor became debarred from getting the relief he now seeks.”
There is no element in the present case of any possible prejudice either to the respondent or to a third party. Having regard to the age of the prosecutor and the period of the alleged delay, I do not consider that there was any element of wrongdoing on the part of the prosecutor which should deprive him of his relief. Further, there is no suggestion that either the respondent or any third party would be prejudiced if the conditional order is made absolute.
I take the view that the prosecutor is entitled to relief. Accordingly, I will order that the conditional order granted in this matter should be made absolute.
Supreme Court
O’Higgins C.J.
30th June 1983
In the judgment which he is about to deliver, Mr. Justice McCarthy deals with the facts and issues which are relevant on this appeal; therefore, it is unnecessary for me to state these. I have also had the opportunity of reading the judgment which Mr. Justice Griffin is about to deliver. I add that I agree with the conclusions which he and Mr. Justice McCarthy reach. However, as the appeal appears to disclose some problems in relation to the Criminal Justice Act, 1960, I feel that I should make some comments.
The Act of 1960 deals, inter alia, with the temporary release of prisoners and criminal lunatics. I wish to refer to its provisions in relation to prisoners. Section 2 authorises the Minister for Justice to make rules providing for the temporary release “of persons serving a sentence of penal servitude or imprisonment, or of detention in Saint Patrick’s Institution.” Such rules were in fact made under the title “Prisoners (Temporary Release) Rules, 1960.”Under these rules the Governor of St. Patrick’s Institution (the respondent) was authorised, in accordance with ministerial directions, to release temporarily persons detained therein. On this basis he released the prosecutor from 10.30 a.m. on the 19th May, 1981, to the 22nd October, 1981, when his sentence was due to expire.
This temporary release was subject to certain conditions, some of which are prescribed in the Rules of 1960 and others of which were specified by the respondent governor. Among those conditions was one that the prosecutor should keep the peace and be of good behaviour during the period of his release.
By s. 4, sub-s. 2, of the Act of 1960 it is provided that “a person temporarily released under section 2 or section 3 of this Act shall comply with any conditions to which his release is made subject.” It follows that, upon his temporary release, the prosecutor was bound to comply with the conditions attached to that release including the obligation to keep the peace and to be of good behaviour.
Section 6 of the Act provides for a person being “unlawfully at large.” A person who, by reason of having been temporarily released under s. 2, is at large, is determined to be “unlawfully at large” if (a) the period for which he was temporarily released has expired, or (b) a condition to which his release has been made subject has been broken. Sub-section 3 of s. 6 provides__”Where, by reason of the breach of a condition to which his release under section 2 or section 3 of this Act was made subject, a person is deemed to be unlawfully at large and is arrested under section 7 of this Act, the period for which he was temporarily released shall thereupon be deemed to have expired.”
Section 7 of the Act provides__ “A member of the Garda Siochana may arrest without warrant a person whom he suspects to be unlawfully at large and may take such person to the place in which he is required in accordance with law to be detained.”
These being the relevant provisions of the Criminal Justice Act, 1960, I now turn to the problems involved in its operation which, it seems to me, this case suggests. A prisoner who is released under s. 2 is, by reason of such release, lawfully at large and is entitled to remain so for the period of the release, provided that he observes the conditions to which that release was made subject. The Minister for Justice is given power, by s. 5 of the Act of 1960, to deal with the suspension of the currency of the sentence either at the time of the release or thereafter; however, that in no way affects the prisoner’s right to be at large. Under s. 6 this right terminates and a person at large lawfully becomes unlawfully at large in two eventualities, namely, when the period of temporary release has expired, or when a condition to which the temporary release was made subject has been broken.
The prosecutor was released “from 10.30 a.m. 19th May 1981 to expiration of sentence 22.10.81.” This release had the effect that the prosecutor was freed from the entire of the sentence imposed on him and, therefore, could be lawfully at large until the moment that sentence terminated subject, of course, to his observing the conditions. It follows that the terms of the release indicated that no suspension of the currency of the sentence had been made by the Minister under section 5. However, at any time while he was so at large, the prosecutor could be arrested without warrant by a member of the Gardai under
s. 7, if suspected of being “unlawfully at large.” In the case of the prosecutor, this could only mean being suspected of having broken a condition of his release. It could not refer to being at large after the period of temporary release because such period covered the entire of the prosecutor’s sentence.
If the prosecutor were so arrested under s. 7, the arresting Gardai would have been authorised to take him “to the place in which he is required in accordance with law to be detained.” What place would this be? The answer would be quite clear if such an arrest were effected on a suspicion which turned out to be well-founded. In such circumstances, the prosecutor would have broken a condition to which his release was made subject and, accordingly, under s. 6, sub-s. 3, his period of temporary release would have expired automatically. On the expiration of such temporary release, he would require to be detained in St. Patrick’s in accordance with law, and the Gardai would be authorised to bring him to that place for the purpose of detention. If, however, the suspicion was not well-founded, or if a breach of condition could not be or was not established, there would be no place in which the prosecutor would be required to be detained in accordance with law. If, in such circumstances, the Gardai brought him back to St. Patrick’s and had him detained therein, both they and the authorities of St. Patrick’s would have been acting without lawful authority.
In fact, the prosecutor was arrested under s. 30 of the Offences Against the State Act, 1939. He was charged before the District Court with attempted murder and with possession of firearms and was remanded by that court to St. Patrick’s. That remand, of course, was perfectly lawful. The charges, if established, clearly involved a breach of the peace and, therefore, a breach of the condition of the temporary release. However, the automatic termination of the period of such release takes place under s. 6, sub-s. 3, not on the arrest but on a breach of condition followed by an arrest. The facts of this case show that the respondent governor treated the arrest of the prosecutor on these serious charges as terminating the temporary release. In so doing, the respondent was probably acting in a common-sense manner. However, I doubt whether he could lawfully do so without it being clearly established that a breach of the peace had occurred. This was a matter which, in the circumstances of this case, fell to be decided by the Courts. An assumption of guilt on the charges preferred could not be made.
I mention these matters because it seems to me that the wording of ss. 6 and 7 of the Act of 1960 require to be examined as a matter of urgency. As these sections stand, there is a clear risk of an unintentional breach of the law being committed by the respondent governor if he regards an arrest on a serious charge as constituting a breach of condition and, possibly, by the Gardai if the suspicion envisaged in s. 7 turns out to be groundless and if the release covers the balance of the sentence.
I have nothing to add except to state that the appeal should be dismissed.
Griffin J.
The facts have been fully set out in the judgment of the learned trial judge and in the judgment about to be delivered by Mr. Justice McCarthy. The question that arises in this appeal is whether, on those facts, the temporary release of the prosecutor had been at any time validly terminated. Mr. Justice Barron held that it had not been so terminated although, by the time the matter came before him, the question was essentially moot as, by then, the prosecutor had already been released from custody.
Section 2 of the Criminal Justice Act, 1960, empowers the Minister for Justice to make rules for the temporary release (subject to such conditions, if any, as may be imposed in each particular case) of persons serving a sentence of penal servitude or imprisonment, or of detention in St. Patrick’s Institution. Where such a release is made subject to conditions, s. 4 requires that the conditions must be communicated to such person at the time of his release by notice in writing, and also requires compliance by such person with any conditions to which his release is made subject. Under s. 6, sub-s. 1, of the Act, a person who, by reason of having been temporarily released under s. 2, is at large shall be deemed to be unlawfully at large if (a) the period for which he was temporarily released has expired, or (b) a condition to which his release was made subject has been broken. Under sub-s. 3 of s. 6 where, by reason of the breach of such a condition a person is deemed to be unlawfully at large and is arrested under s. 7 of the Act, the period for which he was temporarily released shall thereupon be deemed to have expired. Section 7 gives to a member of the Garda Siochana power to arrest without a warrant a person whom he suspects to be unlawfully at large and to take such person “to the place in which he is required in accordance with law to be detained.”
The Prisoners (Temporary Release) Rules, 1960, were made by the Minister pursuant to s. 2 of the Act of 1960. Rules 3(2), 5, 6, and 7 are the relevant rules in this case. Rule 3(2) empowers the Governor of St. Patrick’s Institution or other officer in charge for the time being of that Institution, subject to the directions of the Minister, to release temporarily a person serving a sentence of detention in St. Patrick’s. Rule 5 provides certain mandatory conditions to which, in addition to any other conditions which may be imposed in any particular case, the release of a person under the Rules of 1960 shall be subject. In this case, the material mandatory condition was that “you shall keep the peace and be of good behaviour during the period of your release.” Rule 6 provides for the completion and signature of a notice (in the form set out in the schedule to the Rules) by the governor or other person for the time being in charge of St. Patrick’s. In that form, the period and purpose of the temporary release, and the conditions to which the release is subject, are to be stated. Rule 6 further provides that a copy of the notice must be given to the person whom it is proposed to release, and that he must acknowledge its receipt by signing or placing his mark on the original notice in the presence of a witness who must also sign the original notice. Rule 7 provides that a person released under the Rules shall return to St. Patrick’s on or before the expiration of the period for which he was temporarily released, and that failure to do so or the breach by him of a condition to which his release was made subject shall be deemed to be a breach of the discipline of St. Patrick’s.
Those are the relevant statutory provisions which apply in this case. The expressed purpose of the temporary release of the prosecutor was “re-entering into the community under intensive supervision”; the period of release was from 10.30 a.m. on the 19th May, 1981, to the expiration of his sentence on the 22nd October, 1981, and, included in the conditions with which he was obliged to comply, were conditions that he should keep the peace and be of good behaviour during the period of his release, that he should report to the welfare officer as directed by her, and that he should comply with the conditions as laid down by the probation and welfare officer. His probation and welfare officer was Miss Jane Baird, who witnessed his signature to the form completed by him.
A person who, in pursuance of the Act and the Rules, is released on temporary release is entitled to be at liberty so long as he complies with the conditions of his release. If revocation of his release is to be considered then, before such release is revoked, the question whether or not he has acted in breach of any of the conditions of such release must be asked and answered. It is only when a decision has been reached that he has broken one or more of the conditions that such person’s right to be at liberty may be terminated. In my opinion, this does not require anything in the nature of a judicial determination. The grant and termination of a temporary release are clearly acts which are administrative in nature. An informal procedure is all that is required, provided that such procedure is conducted fairly. As this Court has stated on many occasions, statutes which permit decisions to be taken which may affect the rights of citizens should be construed as providing for fair procedures. The rules of natural justice are essentially the rules of fair play and fair procedures as put into practice. Such an informal inquiry, which should take place within a reasonable time after arrest, will ensure that, in any individual case, no injustice is done or, at the very least, that reasonable steps are taken to ensure that no injustice may be done. Unless such an inquiry is held, an injustice may in fact be done. For example, the apparent breach of condition on the part of a person so released may be due to a mistake or such person may be able, if he is given the opportunity, to satisfy the governor that it is likely that he was not involved in an incident in which it is alleged that a breach of the peace took place; or the breach of a condition may be due to an excusable reason such as illness, accident, misadventure or the like in the case of, say, a failure to report to the welfare officer at the time and place designated by her.
The prosecutor was arrested on the 15th June, 1981 (less than a month after his release) on suspicion of having been involved in the shooting on the 9th June of a barman in a licensed premises in Gardiner Street, Dublin. On the same day, he was charged in the District Court with shooting at the injured party with intent to murder him, and with possession of a firearm with intent to endanger life. Those are very serious charges which, if substantiated, would certainly involve a serious breach of the peace. He was remanded in custody and committed to St. Patrick’s on the same day. There he was provided with clothing appropriate to a person on remand but, on the following day, he was required to wear clothing appropriate to a person serving a sentence of detention. On the 19th June, the respondent governor spoke to the prosecutor and the respondent was told by the prosecutor that he had been charged with offences which he did not commit. But no inquiry, informal or otherwise, was undertaken by the respondent, who knew nothing more about the matter than that the prosecutor had been charged with these very serious offences. Having regard to their serious nature, the respondent governor deemed, in conjunction with the Minister, that it was inappropriate to continue the temporary release of the prosecutor and his release was revoked. This is not, nor is it intended to be, a criticism of the respondent. It is easy to understand how he arrived at that decision, as there is no evidence before us that he had been confronted with any similar situation at an earlier date. Therefore, the respondent did not consider any factor other than that the prosecutor had beencharged with these serious offences.
In my opinion, the fact that the prosecutor had been charged with an offence is an insufficient reason for the revocation of his temporary release. Charges are frequently dropped or not proceeded with and, if a temporary release can be revoked merely or solely because the person released has been charged with an offence, what of the apparent injustice done to such person who, in the period intervening between the charge and the dropping of the charges, has lost the liberty to which he would otherwise have been entitled under the Act and the Rules? When, on the other hand, the governor holds an informal inquiry, justice will not only be done but will be seen to be done.
On the hearing of this appeal, counsel on behalf of the respondent submitted, as he had submitted in the High Court, that, as the respondent had informed the prosecutor of the reason why his temporary release had been revoked, the prosecutor had been given a sufficient hearing so as to comply with the provisions of natural justice, in that it was then open to the prosecutor to make whatever representations he thought fit to the respondent, who could then have considered any such representations. In support of this submission, reliance was placed on The State (Duffy) v. The Minister for Defence .3 In my view, what was said in that case by Mr. Justice Henchy in the passage quoted by Mr. Justice Barron in his judgment in this case has no application to a case such as his. On the contrary, the respondent governor in paragraph 14 of his affidavit makes it quite clear that his own belief at the time was that, as the temporary release of the prosecutor had been suspended due to the gravity of the offences alleged to have been committed by him, it would be inappropriate for the respondent to carry out any hearing or investigation of the matters alleged against the prosecutor, and that, therefore, he did not carry out any such investigation. Even if any such subsequent representations would have been sufficient to satisfy the principles of natural justice (a proposition which I do not accept) they would, in these circumstances, have amounted to a fruitless exercise.
In my opinion, as the prosecutor was not afforded the kind of hearing (informal though it might be) that the circumstances of this case required, the revocation of his temporary release was not made in accordance with law, and Mr. Justice Barron was correct in declaring that the conditional order of certiorari granted by the learned President of the High Court be made absolute.
Counsel on behalf of the respondent unsuccessfully argued in the High Court that, even if there was a breach of the principles of natural justice, there was on the part of the prosecutor excessive delay in seeking relief and they relied on the decision of this Court in The State (Cussen) v. Brennan 4 in support of that submission. Although the finding of Mr. Justice Barron on that point was included in the notice of appeal as one of the grounds of appeal, at the outset of the hearing of the appeal in this Court Mr. Fennelly stated that he was not relying on that ground and that he did not propose to argue it. Therefore, the point in issue under that ground of appeal was not discussed, nor was the decision in The State (Cussen) v. Brennan 4 opened or discussed. In my opinion, it would not be proper in these circumstances for this Court to consider that point, or to express any opinion on it or on its merits.
I should like to make one further observation. In so far as the respondent was concerned, the prosecutor was lawfully in custody under a committal warrant of the District Court, in respect of the charges before that court, until he was granted bail by Mr. Justice Costello. The prosecutor’s earlier applications for bail before Mr. Justice McMahon and Mr. Justice D’Arcy had been refused. There is no information in the affidavits filed on behalf of the prosecutor, or in any of the papers before us, about the reason expressed by either judge for the refusal of bail. No copy of either order of the High Court was exhibited, nor was any report obtained from either of the judges who refused bail. Although it may very well be that the revocation of the temporary release of the prosecutor was the reason expressed by either or both judges for a refusal to grant bail, in my opinion, in the absence of any appropriate oral or documentary evidence to that effect, this Court should not assume that the revocation of the temporary release was the reason for either refusal.
I would dismiss this appeal and affirm the order of the learned trial judge.
McCarthy J.
On the 12th January, 1981, at the Metropolitan Children’s Court, Michael Murphy, then between the ages of 17 and 21 years, was convicted of an offence for which he was ordered to be detained in St. Patrick’s Institution for the space of 12 months. In the ordinary course and allowing for remission, that sentence would have expired on the 22nd October, 1981, but, on the 18th May, 1981, pursuant to the provisions of the Criminal Justice Act, 1960, the Governor of St. Patrick’s Institution (the respondent in these proceedings) informed Michael Murphy (the prosecutor in these proceedings), pursuant to the Prisoners (Temporary Release) Rules, 1960, that he was being released from St. Patrick’s Institution from 10.30 a.m. on the 19th May, 1981, to the expiration of the sentence on the 22nd October, 1981 “for the purpose of re-entering into the community under intensive supervision”, and that his release was subject to certain conditions including, in particular, keeping the peace and being of good behaviour during the period of release.
On the 15th June, 1981, whilst on such temporary release, the prosecutor was arrested under s. 30 of the Offences Against the State Act, 1939, and charged (with two others) in the District Court in Dublin with attempted murder and possession of a firearm with intent to endanger life. He was remanded in custody to St. Patrick’s Institution and, on admission there, he was treated as a prisoner on remand and was required to wear appropriate clothing. On the following day two officers of the Institution gave the prosecutor clothing to wear appropriate to a person who had been sentenced. He was told that, since the Gardai had brought him back, this was the clothing he would have to wear.
On the 19th June, 1981, the respondent governor informed the prosecutor that he was being kept in custody because of the seriousness of the offences alleged against him and with which he had been charged. The respondent had not carried out any investigation of the alleged offences it was not his function to do so nor had he inquired about the strength of the case or, indeed, about any other circumstances surrounding it. I infer that it would have been a matter of policy, for which the respondent governor might well not be responsible, that in circumstances such as I have outlined, where fresh and serious charges are brought against an individual on temporary release, the reversion to ordinary prisoner’s status, with its consequent loss of privileges, is automatic.
On the 26th June, 1981, the prosecutor and the two others arrested with him applied in the High Court for bail; the two others obtained bail but the prosecutor was refused on the grounds that he was serving a custodial sentence. No further step was taken until the 23rd September, 1981, when a successful application for a conditional order of certiorari was made to the President of the High Court. Following that application, a further application for bail was made in the High Court on the 9th October, 1981, and it also failed but, since the original sentence had expired on the 22nd October, 1981, an application was successful when made on the following day. In the course of the argument, the Court was informed that the charges upon which the prosecutor was originally arrested and ordered to be detained (and in respect of which he was refused bail until the 23rd October, 1981) were subsequently withdrawn and that fresh charges of a like kind have been brought in respect of which, on the very day upon which the argument in this Court took place, he and the two others originally arrested have been sent forward for trial.
As I have stated, a conditional order of certiorari was granted by the President on the 23rd September, 1981, on the grounds “that the decision of the said respondent to terminate the temporary release was reached otherwise than in accordance with natural justice.” There were, in fact, five grounds advanced by the prosecutor in the application for the conditional order. Three of those grounds were different ways of alleging breaches of natural justice; the fourth was essentially a factual question and the fifth ground was a demand for habeas corpus. Cause having been shown on behalf of the respondent, the matter was heard and disposed of by Mr. Justice Barron who, in his judgment delivered on the 21st May, 1982, held that there was no basis upon which the respondent could fairly have held in favour of the accusation made against the prosecutor when the latter offences were charged.
The learned judge set out four requirements of natural justice appropriate to a matter of this kind; it is unnecessary to comment further upon those four enumerated requirements save to say that, without them, any hearing would be unfair and would lack the essentials of fair procedures.
The trial judge holding, as he did, that there was no evidence before the respondent from which it would have been fair to hold in favour of the allegation, the other considerations did not arise. He then disposed of a contention made on behalf of the respondent that there had been excessive delay on the part of the prosecutor in seeking relief the delay being from the time of the refusal of bail on the 26th June, 1981, until the date of the application for a conditional order on the 23rd September, 1981. Like Mr. Justice Barron, I would reject that contention on the simple basis that there was no undue delay on the part of the prosecutor and that the case is wholly different from The State (Cussen) v. Brennan. 4 However, I would go further. In my view, such a plea should never have been made. It was renewed in paragraph 10 of the notice of appeal but, happily, was not pursued in argument in this Court.
It is now clear, and must at all times relevant to these proceedings have been clear, to any person dealing with this matter on behalf of the respondent, including, in particular, those responsible for deciding upon the nature of the cause to be shown against making the conditional order absolute, that, in so far as the respondent governor had any statutory function to carry out in determining whether or not there had been a breach of the conditions upon which the temporary release had been authorised, there was before the respondent no evidence of any kind to support such a contention. Indeed, Mr. Fennelly, on behalf of the respondent, expressly disclaimed in this Court any wish to present an argument in support of such a proposition. The respondent is not a lawyer; he saw that the Gardai had arrested a young man who was on temporary release and had charged him with very grave offences. It was an understandable reaction on the part of the respondent that he should consider that the period of temporary release was at an end and that the prosecutor had reverted to the position he had occupied before the 19th May, 1981. Such a conclusion was, as I shall show, plainly wrong in law. Again, Mr. Fennelly has not sought to support any such conclusion; in this Court he has rested his case solely upon the argument that the case made for the prosecutor before Mr. Justice Barron, and in this Court, was not the case, or reason, upon which the conditional order was granted.
In his affidavit sworn on the 5th October, 1981, the respondent stated at paragraph 15__ “I am advised by my legal advisers and I believe that the determination of the temporary release of the prosecutor herein was made in accordance with law and in so far as it was practicably possible it was in accordance with natural justice in so far as I informed him why his temporary release was being determined.” I do not know to what legal advisers the respondent refers, but I find difficulty in understanding how any legal advisers, in the office of the Attorney General or elsewhere, could have so concluded. The pleas that the respondent acted in accordance with law and that the prosecutor had been guilty of culpable delay are both unsound in law and devoid of merit.
When the application for a conditional order was made, the prosecutor was in custody and had legitimate ground to seek some remedy in respect of the ending of his temporary release. As I have already indicated, the cause shown was of no substance, but the prosecutor was entitled to pursue the ordinary procedure to have the conditional order made absolute, notwithstanding cause shown. The real purpose of that pursuit may have been to establish a framework upon which the prosecutor may seek to maintain some form of proceedings in respect of his detention after the 26th June, 1981 a venture fraught, I would think, with considerable difficulty. Once the conditional order was made absolute, however, in the light of all the circumstances, no possible purpose was served by bringing this appeal; since both the law and the merits were on the side of the prosecutor, I doubt if the bringing of this appeal and the spending of the time of this Court on this case can be justified by the fact that the respondent was ordered to pay the prosecutor’s costs of these proceedings.
Such conclusions would be more than adequate to dispose of this appeal but, since it is the first case under the Act of 1960 to come before this Court, I think it proper to make some additional comments. The Criminal Justice Act, 1960, represents an admirable attempt on the part of the legislature to effect penal reform both generally and in respect of what are called criminal lunatics and young persons. Section 2, sub-s. 1, provides__ “The Minister may make rules providing for the temporary release, subject to such conditions (if any) as may be imposed in each particular case, of persons serving a sentence of penal servitude or imprisonment, or of detention in Saint Patrick’s Institution.”Accordingly, any person detained in prison or in St. Patrick’s for any length of time to the extent, indeed, of a life sentence, may benefit by rules made by the Minister. Such rules have been made; they are the Prisoners (Temporary Release) Rules, 1960. [The judge here referred to rr. 3-7 of the Rules of 1960, supra] In the instant case, the condition in r. 5(c) as to non-communication etc. was struck out from the notice of release dated the 18th May, 1981. [The judge here referred to ss. 4-7 of the Act of 1960, supra] Appropriate like provisions are made under s. 3 of the Act of 1960 for the temporary release of criminal lunatics.
Accordingly, if, for instance, a person on temporary release is suspected by a member of the Garda Siochana to have committed a breach of the peace, the person may be arrested without warrant and returned to the prison from which he was released. In a given case, this might occur years after the commencement of the temporary release with the immediate statutory consequence that the period for which he was temporarily released would thereupon be deemed to have expired. It is demonstrably contrary to any concept of justice that such a sequence of events could take place without fair procedures being enforced. One must interpret the requirement of a suspicion by a member of the Garda Siochana on the basis that the suspicion is to be formed upon reasonable grounds, but the person on temporary release who is arrested must be given the opportunity of contesting those grounds.
It was argued on behalf of the respondent that the situation in this case is analogous to that in The State (Duffy) v. The Minister for Defence. 3 The relevant portion of the judgment of Mr. Justice Henchy in that case has been cited by Mr. Justice Barron in his judgment. In my view, the circumstances are entirely different. Duffy was found to be incompetent as an artificer; his incompetence, if such were the case was a static feature which was known to Duffy and which he had an opportunity of remedying, or at least explaining, in the short interval between the formal notification to him of such circumstances and the date of his discharge. Here, the prosecutor was merely notified of the action of the respondent governor based not upon an established static position but, rather, upon the bringing of certain charges against the prosecutor charges of which he was, and is, presumed by law to be innocent. That wholly innocent circumstance was used as a ground for reimposing prison conditions upon the prosecutor and for the Director of Public Prosecution’s successful opposition to two applications for bail made in the High Court. On any view, justice was neither done nor seen to be done. I would dismiss this appeal.
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.
Gorman v Minister for Justice Equality and Law Reform
[2015] IECA 41
JUDGMENT of the Court delivered on the 3rd March 2015by Ms Justice Mary Irvine
1. This an appeal against the judgment and order of the High Court (Hedigan J.) delivered on 10th July 2012 whereby he dismissed the plaintiff’s claim for want of prosecution and on the grounds of inordinate and inexcusable delay.
Relevant background facts
2. By plenary summons issued on 29th January 2003 the plaintiff commenced proceedings in the High Court seeking damages from the defendants in respect of acts of assault, battery and false imprisonment which are alleged to have taken place at Dundalk Garda Station on 15th January 2001.
3. In his statement of claim delivered on 10th February 2003 the plaintiff pleaded that whilst in a cell in the station he was viciously attacked by three members of the Gardaí who beat him around the body with batons and kicked him while he lay on the ground. As a result he maintains that he was extremely shocked and suffered severe bruising all over his body.
4. A defence was delivered on 17th July 2003 wherein the defendants maintained that at all material times the plaintiff had been held in lawful custody. They denied all allegations of assault, negligence and impropriety and pleaded that any injuries he sustained were as a result of his intoxication, his failure to cooperate and the fact that he repeatedly assaulted members of An Garda Síochána.
5. The notice of trial was served in the proceedings on 30th September 2003. This was later struck out due to non attendance on 18th January 2005.
6. By letter of 8th October 2003 the defendants raised particulars arising from the statement of claim. This notice was replied to on 9th January 2004.
7. Voluntary discovery was sought from the defendants in October 2003. In May 2004 the Master made an order for discovery and the defendants complied with that order in May 2005.
8. On the 2nd March 2004 a supplemental notice for particulars was raised by the defendants. This was replied to on 20th march 2012.
9. On 22 March 2004 particulars were sought by the plaintiff solicitors arising from the defence and these were replied to on the 30th November 2005.
10. On 4th May 2004 the defendants were ordered to make discovery. A draft affidavit of discovery was delivered in November 2004 and the sworn affidavit on 6th May 2005.
11. On the 30th Nov 2005 the defendants sought discovery of the plaintiffs GP records and his hospital admission records held in Louth Co Hospital. The hospital records were furnished on the 18th May 2006.
12. It was intended that the defendants would have the plaintiff medically examined on 18th October 2005. That appointment was cancelled as the particulars of injury sought by letter dated 22nd March 2004 and the plaintiff’s medical records had not yet been furnished.
13. On 12th October 2011, the defendants were requested to agree to the reinstatement of the Notice of trial. They refused and that refusal spawned two court applications; the first an application by the Plaintiff to reinstate the Notice of trial and the second a motion issued by the defendants to dismiss the claim for want of prosecution and further on the grounds of inordinate and inexcusable delay.
14. Both motions were listed for hearing before Hedigan J. on 10th July 2012.
Judgment of High Court
15. Having considered the principles to be applied on such an application, which were agreed between the parties, the High Court judge dismissed the proceedings. He reached the following conclusions, namely:-.
i. that the delay in the prosecution of the proceedings had been both inordinate and inexcusable,
ii. that any lack of cooperation on the part of the defendants in furnishing a copy of a video which they had sought ought to have been remedied by court application,
iii. the fact that eleven and a half years had passed since the events in question was unacceptable in such a straightforward action,
iv. that the balance of justice favoured dismissal. The case would not be heard until 2013, by then regardless of the existence of witness statements, prejudicial delay was inevitable,
v. That while the claim involved a grave allegation with a public interest dimension, that such interest would have somewhat diminished over the years.
Submissions on behalf of the plaintiff /appellant
16. Insofar as the delay prior to November 2005 was concerned, counsel for the plaintiff maintained that this could not be attributed to the plaintiff as the defendants had delayed in complying with an order for discovery that had been made in May 2004. The sworn affidavit was not delivered until 26th May 2005.
17. As to the delay post November 2005, counsel submitted that there was ongoing correspondence between the parties mostly in relation to a videotape which the plaintiff’s legal advisers felt was a material proof required to advance the claim. This was not a case where the plaintiff’s solicitors had been idle for any extended period. There was extensive correspondence concerning the videotape evidencing the plaintiff’s clear intention of advancing his claim.
18. Counsel submitted that even if the trial judge was entitled to find that the delay had been inordinate and inexcusable, he should nonetheless, have concluded that the balance of justice favoured allowing the action proceed for the following reasons, :-
i. the allegations the subject matter of the claim were grave and there was a public interest in having such serious allegations fully investigated,
ii. the plaintiff had no alternative remedy,
iii. the defendants had not been able to point to any specific prejudice arising from the delay and they had a number of contemporaneous witness statements in relation to the events in question,
iv. there was no period of complete inactivity such that the defendants might have been lulled into believing that the plaintiff was not proceeding with his claim,
v. the conduct of the defendants was not without fault. They had been guilty of delay in dealing with the plaintiff’s solicitors requests in relation to the videotape in a timely manner and had generated some delay in furnishing discovery,
vi. there had been no complaint from the defendant’s solicitor urging expedition or warning that any prejudice was emerging due to the rate at which the proceedings were advancing.
The submission of the defendants/respondents
19. Counsel for the defendants submitted that the trial judge had correctly concluded that the plaintiff’s delay had been inexcusable. This, he reminded the court, had been accepted by the plaintiff in the court below. The claim was, as was stated by the High Court judge, not a complex one and should have been capable of being advanced to trial in a modest time frame.
20. Counsel submitted that the judge had correctly concluded that the unavailability of a readable copy of the video tape sought by the plaintiff’s solicitor afforded no valid excuse for the delay. Further he maintained that the claim could have proceeded in its absence as the wrongdoing the subject matter of the claim is all alleged to have taken place in a Garda cell and the video relates to events prior to the plaintiff’s arrest at or near MacDonald’s takeaway restaurant in Dundalk. Accordingly, the content of the video could never be determinative of the liability issue. Further, the plaintiff had not acted with any degree of expedition in seeking to obtain the videotape and could have made a court application if satisfied that the defendants were in breach of their obligations.
21. As to whether the balance of justice was correctly assessed by the High Court judge, counsel submitted that the judge’s approach could not be faulted. Counsel agreed with his finding that delay of the type that had occurred in this case was bound to be prejudicial regardless of the absence of any identifiable or specific prejudice. The existence of witness statements did not negate that type of general prejudice. A jury should not, he submitted, be asked to decide between two different accounts of what had happened 10 years previously.
22. As to the conduct of the defendants, the fact that the defendants had engaged in a significant amount of correspondence with the plaintiff solicitors over the years did not disentitle them to bring the appropriate application. They were not obligated to write warning letters complaining of delay and had every entitlement to move to have the claim dismissed.
23. Counsel submitted that the High Court judge had correctly applied the relevant principles and was correct in the decision he made having regard to the provisions of Article 6.1 of the European Convention on Human Rights. He further stressed the Constitutional right of his clients to have their good name cleared and that because of what was at stake for both parties there was a special onus on the court to make sure that cases of this nature were heard expeditiously.
24. Finally, Counsel submitted that, without seeking to minimise the gravity of any unlawful assault, another factor to be taken into account by the court when assessing where the balance of justice lay was the seriousness of the injury contended for. In this regard and on the plaintiff’s own pleadings his injuries were relatively modest. To the defendants knowledge treatment he received was in the immediate aftermath of the events in question.
Principles to be applied
25. The principles which govern the circumstances in which proceedings may be struck out for delay are set out in some detail by Finlay P. in Rainsford. These were later approved of by the Supreme Court in Primor plc v Stokes Kennedy Crowley [1996] 2 I.R. 499 where Hamilton C.J. stated as follows: –
“The principles of law relevant to the consideration of the issues raised on this appeal may be summarised as follows: –
(a) the courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so;
(b) it must, in the first instance, be established by the party seeking dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof, that the delay was inordinate and inexcusable;
(c) even where the delay has been both inordinate and inexcusable the court must exercise a judgement on whether, in its discretion, on the facts the balance of justice is in favour of or against the proceeding of the case;
(d) in considering this latter obligation the court is entitled to take into consideration and have regard to:
(i) the implied constitutional principles of basic fairness of procedures,
(ii) whether the delay and consequent prejudice in the special facts of the case I such as to make it unfair to the defendant to allow the action to proceed and to make it just to strike out the plaintiff’s action,
(iii) any delay on the part of the defendant – because litigation is a two-party operation, the conduct of both parties should be looked at,
(iv) whether any delay or conduct of the defendant amounts to acquiescence on the part of the defendant in the plaintiff’s delay,
(v) the fact that conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law, constitute an absolute bar preventing the defendant from obtaining a striking out order but is a relevant factor to be taken into account by the judge in exercising his discretion whether or not to strike out the claim, the way to be attached to such conduct depending upon all the circumstances of the particular case,
(vi) whether the delay gives rise to substantial risk that it is not possible to have a fair trial or is likely to cause or have caused serious prejudice to the defendant,
(vii) the fact that the prejudice to the defendant referred to in(vi) may arise in many ways and be other than that merely caused by the delay, including damage to defendant’s reputation and business.”
26. These being the relevant principles, it is important also to note, as was stated by Finlay P. in Rainsford v. Limerick Corporation [1995] 2 ILRM 561, that the onus of proof on an application to dismiss a claim on the grounds of inordinate and inexcusable lies on the party who seeks that relief.
27. The rationale behind the court’s jurisdiction to dismiss a claim on the grounds of delay is that, as was stated by Diplock L.J. in Allen v. Sir Alfred McAlpine & Sons Limited [1968] 2 Q.B. 229 at p254:-
“The chances of the courts been able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard.”
28. In considering whether or not the delay has been inordinate the court may also have regard to any significant delay prior to the issue of the proceedings: see Cahalane and another v. Revenue Commissioners and others [2010] IEHC95 and McBrearty v. North Western Health Board [2010] IESC27. However, given that this is assault action to which a six year limitation period applies, this principle is not of relevance to the present case.
29. In addition to its right to dismiss a claim on the grounds of inordinate and inexcusable delay, there is also what was described by Geoghegan J. in McBrearty .v. North Western Health Board [2010] IESC 27, a jurisdiction which permits the court to dismiss a claim, even where there has been no fault on the part of the plaintiff, if satisfied that the interests of justice would require such an approach. This jurisdiction was first considered in detail by the Supreme Court in O’Domhnaill v. Merrick [1984] I.R. 151 where Henchy J. expressed himself satisfied that a court might dismiss an action if it was satisfied that to ask the defendant to defend the action would place that defendant under an inexcusable and unfair burden. However, as this is not the basis upon which the defendants’ application to dismiss was based, there is no need to consider further the circumstances in which this type of jurisdiction may be exercised.
30. In recent times, the constitutional imperative to bring to an end a culture of delay in litigation so as to ensure the effective administration of justice and basic fairness of procedures, has been emphasised in a number of judgments dealing with delay. The relevant constitutional provisions are contained in Article 34.1, which requires the courts to administer justice and Article 40.3.2 which guarantees the citizen the right to protect their good name.
31. These specific constitutional obligations pre-suppose that litigation will be conducted in a timely fashion. If, as Henchy J. stated in O’Domhnaill, justice is put to the hazard as a result of undue and excessive delay, how then can the courts fulfil their constitutional mandate under Article 34.1? Moreover, where, as in the present case, the right to a good name of a number of members of An Garda Síochána, has been put at issue by the plaintiff, the effective protection of that right as guaranteed by Article 40.3.2 requires that such claims be adjudicated upon within a reasonable time.
32. These views have been consistently expressed in recent times. Thus in Quinn v Faulkner t/a Faulkner’s Garage and another [2011] IEHC 103 Hogan J. criticised the courts’ prior tolerance to inactivity on the part of litigants when he stated:-
“While as Charlton J. pointed out in Kelly v. Doyle [2010] IEHC 396 it would be wrong for the court to strike out proceedings because of judicial disapproval, it must also be acknowledged that experience has also shown that the courts must also become more pro-active in terms of undue delay, since past judicial practices which had tolerated such inactivity on the part of litigants and which led to a culture of almost “endless indulgence” towards such delays led in turn to a situation where inordinate delay was all too common: see, e.g., the comments of Hardiman J. in Gilroy v. Flynn [2004] IESC 98, [2005] 1 ILRM 290 and those of Clarke J. in Rodenhuis and Verloop BV v. HDS Energy Limited [2010] IEHC465.”
33. Further, as Hedigan J, himself stated in the course of his judgment, in recent times Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms has been considered to be material to the courts conclusions on an application such as that under consideration.
34. Similar sentiments were expressed by Hardiman J. in Gilroy v. Flynn [2005] 1 ILRM 290 where at pp.293-294 he stated as follows:-
“[T]he courts have become ever more conscious of the unfairness and increased possibility of injustice which attached to allowing an action which depends on witness testimony to proceed a considerable time after the cause of action accrued ….[F]ollowing such cases as McMullan v. Ireland [ECHR422 97/98 29th July 2004] and the European Convention on Human Rights Act 2003, the courts, quite independently of the action or inaction of the parties, have an obligation to ensure that rights and liabilities, civil or criminal, are determined within a reasonable time.”
35. In Michael McGrath v. Irish Ispat Limited [2006] IESC 43, Denham J. considered the extent to which the Primor principles might need revision in light of the Convention and concluded that the court’s discretion to decide whether it was in the interests of justice that a claim be dismissed for want of prosecution was to be exercised both in accordance with settled constitutional principles and “in light of developing European jurisprudence on reasonable time”.
36. In his judgments in Stephens v. Paul Flynn [2005] IEHC148 and Rodenhuis & Verloop BV v. HDS Energy Ltd [2011] 1.I.R. 611, Clarke J. also questioned whether there should be a recalibration or tightening up of the criteria by reference to which the actions of the parties might be judged. He stated that while the overall test and applicable principles remain the same, the application of those principles might require some typing up to avoid excessive indulgence: At para.11 of his judgment he advised as follows:-
“It is necessary, in a system where the initiative has left largely up to the parties to progress proceedings, for the courts to make clear that there will not be an excessive indulgence of delay, because of the courts do not make that clear, it follows that the courts actions will encourage delay and, thus, will encourage a situation of cases will not be completed within the sort of times which would be consistent with compliance with Ireland’s obligations under the European convention on human rights.”
37. In McMullen, the court when considering a sixteen year delay in the context of Article 6. 1 of the Convention gave some guidance as to what might be considered to be reasonable in terms of the duration of proceedings when it concluded that:-
(i) Legal proceedings for determination of civil rights and obligations should be resolved within a reasonable time.
(ii) Reasonableness is to be assessed by reference to the circumstances of the case, its complexity, the conduct of the applicant and of the relevant authorities and the importance of what is at stake.
(iii) The State is obliged to organise its legal system to comply with the reasonable time requirement of Article 6.
38. The guidance from the European Court of Human Rights is clearly to the effect that the Irish courts are under a convention based obligation to ensure that proceedings, including civil proceedings are concluded within a reasonable time. This means that the Irish courts must be vigilant about culpable delay and when faced with an application to dismiss a claim on the grounds of delay, should factor into its considerations Ireland’s obligations under Article 6 of the Convention.
The Appellate Jurisdiction of the Court of Appeal
39. The first matter to be considered on this appeal is the approach to be adopted by this court when dealing with an appeal against of a decision of a High Court judge made in the exercise of his or her discretion. This issue was considered at some length by this court in its recent decision in Collins v. Minister for Justice, Equality and Law Reform Ireland and The Attorney General [unreported 19th February 2015], another case in which the court was asked to dismiss proceedings on the grounds of inordinate and inexcusable delay.
40. Following a consideration of a long line of authorities in which somewhat divergent views as to the court’s jurisdiction on such an appeal had been expressed, this Court concluded that the judgement of McMenamin J. in Lismore Builders (in Receivership) .v. Bank of Ireland Finance Ltd. [2013] IESC 6 correctly described the circumstances in which an appellate court may review an order made by a High Court judge in the exercise of their discretion. At page … he stated as follows:-
“Although great deference will normally be granted to the views of the trial judge, this court retains the jurisdiction of exercising its discretion in a different manner in an appropriate case. This is especially so, of course, in the event there are errors detectable in the approach adopted in the High Court. The interests of justice are fundamental. This is clear from the judgement of Geoghegan J. in Desmond v. MGN Ltd. 2009 1 IR 737.”
41. In Desmond, Geoghegan J, expressed concern about the more traditional view that a discretionary order should not be interfered with by an appellate court unless the judge at first instance made an error of law in the exercise of that discretion. Such a restriction, he pointed out could have a very significant impact on orders involving substantive rights. At page (to be completed) he stated as follows: –
“The expression “discretionary order” can cover a huge variety of orders, some of them involving substantive rights and others being merely procedural in nature including mundane day-to-day procedural orders such as orders for adjournments et cetera. I think in reality over the years since Morelli this court has exercised commonsense in relation to that issue. The court would be very slow indeed to interfere with the High Court judge’s management of his or her list, but in a case such as this particular case were much more substantial issues are at stake for the court, while having respect for the view of the High Court judge, must seriously consider whether in all the circumstances and in the interests of justice it should really exercise the discretion in different direction”
42. In Collins the court considered the nature of an application to dismiss proceedings on the grounds of inordinate and inexcusable delay and concluded that such applications required the presiding judge to decide mixed questions of law and fact rather than questions which might be considered to be truly discretionary. It also expressed itself satisfied that in circumstances were applications of this nature were determined by reference to facts which were fully set out on affidavit that it was difficult to advance any valid reason as to why the merits of the High Court decision on such an issue should not be fully reconsidered on an appeal, should be interests of justice so required.
43. It follows that on this appeal the Court, while obliged to give due consideration to the conclusions of the High Court judge is nonetheless entitled to decide, should the interests of justice so dictate, to exercise its own discretion as to whether or not this claim should be dismissed on the grounds of inordinate and inexcusable delay.
Decision
44. Having considered the evidence that was before the High Court and the submissions made on behalf on the parties on this appeal, the Court is satisfied that the defendants have discharged the burden of proof and have established to the satisfaction of this Court that the plaintiff has been guilty of inordinate and inexcusable delay.
45. As the plaintiff in the course of the hearing of this appeal ultimately conceded that the delay had been inordinate, it is not necessary to consider that aspect of the case further. Suffice to say that it is difficult to envisage how an assault action commenced in January 2003 could still be in some type of extended gestation process almost ten years later, that being the point at which the defendants moved to strike out the claim.
46. In considering whether delay is excusable, one of the factors material to the court’s consideration is the complexity of the case. Here we have what was correctly described by the High Court judge as the simplest of cases. The claim concerns a factual dispute between the parties as to whether or not the plaintiff was assaulted on a particular day. That issue will be resolved by reference to the plaintiff’s own oral testimony and the evidence of the witnesses called by the defendants. This is not a case in which delay has arisen due to any difficulty in identifying the names and later tracing the whereabouts of potentially valuable witnesses. Further, this is not the type of action where the plaintiff’s solicitor, as often happens in personal injuries cases, has had to engage experts to advise on complex liability or causation issues.
47. The only other issue in the proceedings is the extent of any injuries sustained by the plaintiff. As to such injuries, it appears that the Plaintiff was seen at the Accident and Emergency Department of Louth County Hospital on the day of the alleged assault. In his replies to particulars delivered on the 9th Jan 2004, the plaintiff advised that the only medical treatment he received was from his general practitioner whom he attended on four or five occasions . He did not require specialist intervention and no consultant was apparently engaged for the purposes of providing expert testimony. Given the fact that the plaintiff’s medical condition and prognosis appears to have been ascertained with some certainty within months of his assault, there is no reason why this jury action was not pushed on for trial with due expedition. In fact, a notice of trial was initially served as early as 13th November 2003 and a request made in January 2004 that the defendants would make an offer in settlement of the plaintiffs claim. It would thus appear that, from a damages perspective at least, the case was ready for trial, in 2004.
48. This Court rejects the submission advanced on the plaintiff’s behalf that the delay in the prosecuting of the proceedings can be excused by reason of the defendant’s alleged failure to provide a copy of a video tape capturing the plaintiff’s attendance at McDonalds take away restaurant, Dundalk, on the day of his arrest.
49. It is not immediately clear as to why this video tape is of significance to the liability issue in the proceedings as all of the allegations against the defendants relates to events which are alleged to have taken place while the plaintiff was in custody in the Garda Station. However, having decided that it was necessary, it is quite difficult to understand as to why, the first request for a copy having been made on 22nd November 2004, the plaintiff had not obtained a readable copy of the video tape seven years later, that being the point at which the defendants moved to have the proceedings dismissed on the grounds of delay.
50. The defendants cooperated with the plaintiffs request for a copy of this video tape, albeit somewhat tardily. Having received a copy of the tape, on 2nd September 2005, the plaintiff’s solicitor wrote to the defendants to advise that the video that had been forwarded was not the correct one as, having viewed the video, the plaintiff was not to be seen on that particular recording. On 13th September 2005 the defendants requested the return of the video to check its contents. The video tape was not returned.
51. Six months later, on 18th May 2006, the plaintiff’s solicitors wrote to his counterpart seeking a response to his earlier letter. The defendants did not reply. One might have thought at that stage a court application for further discovery or inspection was warranted but no such application was made. In fact nothing at all was done to pursue a copy of the video tape over the following two and a half years. When considered against the backdrop of an assault alleged to have taken place in January 2001, eight years earlier, this further two and a half years delay is difficult to comprehend.
52. A letter sent on 22nd August 2008 was the start of a burst of activity on the part of the plaintiff’s legal advisers directed towards obtaining a copy of the correct video tape. In particular, in December 2008 a number of telephone calls were made to the Chief State Solicitor’s office seeking to clarify the position regarding the video tape. While it might be contended that the plaintiff’s solicitors were merely showing marked tolerance to delays on the defendant’s side, the fact of the matter is that there then followed another 11 month period during which the issue was allowed go cold once again.
53. A further letter and telephone call in November 2009 did not achieve a resolution of the issue and the question of the pursuit of the video tape was not re-activated until late 2010. It was only on 11th November 2010, more than five years after the first request for sight of the video tape, that the plaintiff obtained the second copy of the video tape.
54. Unfortunately, the plaintiff’s solicitor found that second video tape to be unreadable and advised the defendant’s solicitor of this fact by letter of 30th November 2010. The defendants in reply sought the return of that copy and, finally, six month later wrote again to the plaintiff’s solicitor advising that the relevant footage was to be found one hour and thirteen minutes into the recording. That was the state of play regarding the video tape at the time the defendants moved to dismiss the proceedings.
55. The Court is satisfied from a consideration of the affidavit evidence that the delay over the six year period last mentioned was inexcusable. From the correspondence it cannot be said that the plaintiff’s solicitor had become diverted in any way by the emergence of other complexities in this litigation. If the video tape was the only piece of evidence holding up the proceedings it should have been pursued with diligence. At the time the first copy was furnished by the defendants in September 2005 almost four years had elapsed since the events which are the subject matters of the proceedings. Further, the delay in obtaining the video tape cannot be ascribed to any obstruction on the part of the defendants. They actually sent two copies of what they considered to be the relevant CCTV footage to the plaintiff’s solicitor. The first was sent in September 2005 and the second in November 2010.
56. The Court is quite satisfied that if the issue of the video tape had been pursued in a purposeful fashion it could have been obtained, at worst , within a period of six to nine months. It follows that the delay in the prosecuting of these proceedings cannot be excused by reference to the engagement between the parties regarding the video tape. If requests and correspondence were ignored or long fingered then further warning letters should have been sent after which, if a readable copy of the video tape had not been forthcoming, the plaintiff should have called in aid the rules of court to secure its production.
Balance of justice
57. Having concluded that the delay in the present proceedings was both inordinate and inexcusable, the Court must now consider all of the factors which are relevant to determining where the balance of justice lies; whether it lies in favour or against allowing the proceedings advance to trial.
58. In determining where the balance of justice lies it is, of course, of particular importance to have regard to the fact that the allegations upon which the claim is founded are extremely grave. An allegation of a brutal assault allegedly perpetrated by members of An Gardai Síochána, the authority charged with upholding and protecting the rights of citizens in the State, ought to be investigated and dealt with expeditiously. Clearly, the public interest is best protected by the earliest possible appraisal of the truth or otherwise of such a serious complaint. It is nevertheless not in the public interest that such an important allegation be resolved in circumstances where, by reason of the passage of time, there is a real possibility of an unjust and unsatisfactory outcome.
59. One of the questions that the court is obliged to consider when dealing with the balance of convenience, as per the decision of the Supreme Court in Primor, is whether or not the defendant has been prejudiced as a consequence of the delay complained of. In this regard Kearns J, in delivering the judgment of the court in Stephens .v. Flynn Ltd [2008] IESC 4 seems to have accepted that the defendant need only to establish moderate prejudice arising from the delay as justification for the dismissal of an action. In the following brief passage he summarised the findings that had been made by Clarke J. in the court below:
“in considering where the balance of justice lay, he concluded that there had been a very significant delay. Not only had the plaintiff failed to render that delay excusable, he had failed to do so by a significant margin. He also concluded that the defendant, were he to be compelled to meet the case, would suffer prejudice, although he did not place that prejudice at a higher degree than moderate. He also held that there was no significant delay on the part of the defendant in exercising his right to apply for the dismissal of the action for want of prosecution.”
60. This Court is satisfied that if this historic claim were to be permitted to proceed to trial, that the defendants would likely suffer general prejudice over and beyond what might be described as moderate, even though they have not been in a position to contend for any specific prejudice as might often arise in proceedings where, by reason of the passage of time, essential witness or documents are no longer available.
61. The fact that the defendants have available to them a number of witness statements taken in the aftermath of the plaintiff’s allegations, does not mean that they would not be prejudiced in meeting a claim of this nature some twelve or more years after the events in question, 2013 being the year in which the learned High Court judge concluded the case was likely to be heard.
62. While such statements would of course assist their authors to refresh their memories of the events recorded, it is inevitable that in the course of the trial evidence would be led or allegations made concerning circumstances not captured in those documents. In that event the defendants’ witnesses might not be in a position to answer or challenge such allegations. Anything which goes beyond that referred to in the witness statements would likely pose problems of a type that would not have been encountered had the action been determined while matters remained reasonably fresh within the minds of those concerned. In this regard this court agrees with the conclusions of the High Court judge when he stated that he was in no doubt that the delay would have impacted upon the defendant’s ability to test the veracity of the claim. As Finlay Geoghegan J. said in Manning v. Benson & Hedges Ltd. [2005] 1 I.L.R.M. 180, 208:
“Delays of four to five years as a matter of probability will reduce the potential of such witnesses to give meaningful assistance or to act as a witness.”
Regardless of the integrity of witnesses, it is an undeniable fact that the greater the lapse of time between the event in question and the hearing of the claim the more fragile and unreliable the evidence becomes. This is of particular concern in cases where there is no documentary or other objective evidence to support a claim where there is conflicting oral testimony. As has been stated so often on applications such as the present one, memories fade and justice is put to the hazard.
63. Another factor that the court is entitled to take into account when considering the balance of justice in proceedings claiming damages for assault or personal injuries negligently inflicted is the seriousness of the injuries allegedly sustained. That is not to minimise the significance of any injury deliberately inflicted on a citizen by a member of An Garda Síochána.
64. If, for example, the plaintiff was maintaining that as a result of the assault he would never work again or would in some other way be permanently incapacitated, then the court would have to weigh those factors in the balance. However, the injuries he complains of are confined to bruising from which, according to the pleadings and particulars, he has made a complete recovery. In these circumstances, there is less of a concern that justice will be undermined by the dismissal of the proceedings.
65. Yet another reason for requiring that claims involving modest injuries be dealt with expeditiously is that even after a relatively short delay the assessment of the validity and extent of such a claim becomes more difficult. The same risk of prejudice does not generally arise in cases where the injuries sustained are very severe. In those latter types of cases the injuries will often be readily apparent upon a medical examination carried out several years after they were sustained. Not only will the defendant have available to it, for the purpose of dealing with the issues of causation and quantum, the type of objective evidence to be found in medical records such as x rays, scans, test results etc., but these will also be available, if relevant, to guide a judge or jury to a just and fair result. Where, as here, however, the claim is for far more moderate injuries which have no longer term consequences, then there is all the greater need for expedition, precisely because the adverse impacts of such injuries may fade and disappear relatively quickly
66. Also relevant to the court’s decision as to where the balance of justice lies is the conduct of the defendants and the extent to which they themselves have been guilty of delay, have acquiesced in the plaintiffs delay or have implicitly encouraged the plaintiff to incur further expense in pursing the claim. In this regard, the court will distinguish between delay or acquiescence on the part of a defendant from delay which might be considered culpable, as was stated by Fennelly J. in Anglo Irish Beef Processors Limited v. Montgomery[2002] 3 IR 510.
67. On the facts of this case the Court is satisfied that the defendants have not been guilty of what might be described as culpable delay. The defendants’ defence was delivered promptly and followed up by two entirely appropriate and prompt letters/notices for particulars delivered on 8th October 2013 and 22nd March 2004 respectively.
68. The defendants were, however, guilty of delay in complying with an order for discovery made in favour of the plaintiff on 4th May 2004. The defendants were obliged to deliver their discovery affidavit within six weeks. A draft affidavit was provided five months after the order was made and the sworn affidavit only delivered in May 2005. However, the period of delay between the delivery of the draft affidavit and the sworn affidavit does not appear to have prejudiced the plaintiff in his ability to advance the action in that his solicitors by letter dated 22nd November 2004 request a copy of the video tape and the photographs referred to in the draft affidavit of discovery. Accordingly, the Court is satisfied that the plaintiff did not suffer any significant prejudice as a result of the late delivery of the sworn affidavit.
69. Earlier in this judgment the Court dealt with the delay stemming from the tardy approach of the parties to the issue of the video tape which was first sought by the plaintiff’s solicitors in late 2004. In the context of considering whether the defendants are any way culpable in respect of this delay from 2004- 2011, that being the period in respect of which the parties were engaged upon the issue, the court has already stated that it is satisfied that the primary responsibility for moving the case forward during that period rested with the plaintiff and that it was his conduct – rather than any default or obstruction on the part of the defendants – which was responsible for that delay.
70. The court has also considered whether it would be unjust, by reason of the defendant’s actions, to dismiss the proceedings at this stage. Relevant to this consideration is the fact that the defendants did not impose any significant financial, personal or other burdensome obligation on the plaintiff in the course of defending their position. The standard notices for particulars were served and the discovery sought was restricted to the plaintiff’s hospital admission and general practitioner records. The former were delivered on 18th May 2006. The latter were never provided, possibly due to the death of his general practitioner. Further, the defendants did not put the plaintiff to the inconvenience of being medically examined, as had been intended, due to the fact that his medical records and updated particulars of personal injury had not been furnished as of the date when that examination was planned.
71. The not insignificant correspondence exhibited on the present application would tend to support the plaintiff’s submission that the defendants could never have doubted the plaintiff’s intention to pursue his case. Several letters contain statements to the effect that the plaintiff was anxious to have his claim dealt with. However, neither can it be stated that the defendants did anything to indicate that they were excusing the plaintiff’s delay in advancing his claim. Their conduct was not such that, when they considered the claim was heading into the realms of antiquity, they should be debarred from complaining of the injustice of being asked to defend an action which had been delayed for such an extensive period.
72. The Court is also satisfied that the fact that the defendants only moved to dismiss the claim when the plaintiff sought their consent to the reinstatement of the notice of trial does not in itself afford any ground for valid complaint. It is precisely when a step such as that is taken that a defendant is most likely review the consequences of the reinstatement of such notice and if satisfied as to the unfairness and the possibility of an injustice will bring forward motion to dismiss the claim.
73. In terms of looking at where the balance of justice lies in this case it is important to recognise that in dismissing this plaintiff’s claim the decision of the High Court have the effect of ending his constitutional right of access to the courts. However that is not an unqualified right and is one which must be balanced against the right of the defendants to protect their good name as is their entitlement under Article 40.3.2 of the Constitution. These constitutional obligations presuppose that litigation will be conducted in a timely fashion. Nobody against whom serious allegations of the nature at the heart of these proceedings are made, particularly where their professional standing is at stake, should have to wait 12 or 13 years before being afforded opportunity to clear their good name.
74. This Court is not only satisfied as to the conclusions of the learned High Court judge in respect of the inordinate and inexcusable nature of the delay in this case. It is also entirely in agreement with his conclusion that the balance of justice favoured the dismissal of the action taking into account not only the principles of law advanced in Primor, but the more recent jurisprudence of the court concerning its own obligations and those of litigants as arise by virtue of Article 6 (1) of the Convention.
75. For all of the aforementioned reasons this Court will dismiss the appeal.
Byrne v Judges of the Circuit Court
[2013] IEHC 396
JUDGMENT of Mr. Justice Hogan delivered on the 5th day of September, 2013
1. Where a jury fails to agree on a verdict after two long criminal trials in succession, is the accused entitled to demand a halt to any further prosecution in respect of the offence with which he has been charged? This is essentially the question which is posed by these two applications for judicial review which have been heard together. The issue arises in the following way.
2. In May, 2006 the applicants were charged, together with three co-accused, with the offence of robbery and false imprisonment arising from the abduction at gunpoint of the wife and children of a Mr. Richardson (who was an employee in a security company) in March, 2005. A criminal gang had broken into the Dublin home of Mr. Richardson on the evening of March 13, 2005 and held him, his wife, Marie, and children at gunpoint. Mr. Richardson was then held in the house overnight while his wife and children were taken to an undisclosed location in the Dublin mountains. In the early hours of March 14, 2005 the raiders permitted Ms. Richardson to speak with her husband by mobile telephone. The telecommunications records relating to this mobile telephone – described in the first two trials as the purple telephone – assume a particular significance in relation to Mr. David Byrne for reasons which are elaborated upon at greater length later in this judgment.
3. Later on the morning of March 14th, Mr. Rchardson was required to follow his usual routine, load his van with money and bring it to a pre-arranged location. He followed these instructions and some €2,280,000 was stolen from a cash-in-transit van. As we have just noted, Ms. Richardson and her children had been taken to the Dublin Mountains where they had been held overnight in the back of a vehicle. They were then tied up and abandoned in a mountain forest. They ultimately managed to free themselves and raise the alarm, but not before the robbery had been carried into effect.
4. There have been two trials involving the applicants. Mr. Niall Byrne was first arrested at the end of April, 2005. He was then charged with robbery and false imprisonment on 27th April, 2005. Mr. David Byrne was arrested at around the same time. The first trial commenced on 28th April, 2009 and continued until 30th July, 2009.
5. Following some four days of jury deliberations, three accused were found guilty by a jury. The jury were, however, unable to reach a verdict in respect of both Mr. Niall Byrne and Mr. David Byrne. (The fact that these two applicants share a common surname is a co-incidence and they are not related). The three other persons who were convicted of these offences on this occasion each received lengthy prison sentences, varying from twelve to twenty-five years. These accused successfully appealed their convictions and they are now facing a re-trial: see The People v. Kavanagh [2012] IECCA 65. (For completeness, I should record here that I sat as a member of the Court of Criminal Appeal in this appeal. I disclosed this fact as soon as the present case was assigned to me, but no objection was raised by either party). The re-trial of these accused is currently scheduled for October 2013. But even if I were to refuse to grant the relief sought in the present application, one may assume that neither applicant is likely to be tried along with those who are facing a re-trial following conviction and successfully appeal.
6. On the second occasion Mr. Niall Byrne and Mr. David Byrne were then tried together. The second trial commenced on 27th October, 2011, and concluded with a jury disagreement on 2nd December, 2011, the jury having deliberated for three days. The Director of Public Prosecutions has now determined that both applicants should stand trial on a third occasion and the essential question before me is whether this would be permissible in the circumstances of the present cases.
The case-law on successive trials
7. It is clear from the Supreme Court’s decision in DS v. Judges of the Cork Circuit Court [2008] IESC 37, [2008] 4 IR 379 that while there is no firm ex ante rule in this regard, there is what amounts to a working presumption against permitting a third trial following two successive jury disagreements. Much will, however, depend on the circumstances of each case.
8. In DS the applicant had been charged with six counts of sexual assault on two complainants between 1994 and 1998. At his request the indictment was severed and separate trials were ordered. On the second day of the first trial on the charges involving the first complainant the jury was discharged. The accused was acquitted on the re-trial.
9. A few months later the accused faced a trial on the charges involving the second complainant. Following a jury disagreement at the first trial, on the retrial some months later again the accused was acquitted on one count, but the jury disagreed on the other counts. The accused then successfully applied to this Court for an order restraining the prosecution from prosecuting him for a third occasion on the outstanding count charged. The Supreme Court dismissed the appeal from this decision, albeit for slightly different reasons
10. Before examining the rather nuanced differences (such as they are) between the judgments of Denham and Kearns JJ. in the Supreme Court, it is worth emphasising that which is not in dispute. First, there is no ex ante rule prohibiting a third trial. Second, while the double jeopardy rule does not, as such, apply to this situation, if the trial is indeed prohibited it will be by reason of broader conception of “fundamental fairness of legal procedures inherent in our Constitution”: see The People (Director of Public Prosecutions) v. Quilligan (No.2) [1989] I.R. 46, 57, per Henchy J. Third, while the court must exercise its jurisdiction to prohibit a third trial with some caution, it must also seek to protect the due process rights of the accused: see DS [2008] 4 IR 379, 395, per Denham J.
11. In her judgment Denham J. (with whom Hardiman, Fennelly and Finnegan JJ. concurred) had regard to a variety of factors in concluding that a third trial would be oppressive. These included the fact that the trials had consumed six years of the accused’s life; the stress imposed on the applicant and his family; there was no change in the evidence to be tendered. She concluded ([2008] 4 IR 379, 396) that the Court must have regard to the entirety of all the facts and arrive at a conclusion which is balanced and proportionate:
“In this case no individual factor is such that of itself it would be a ground upon which to prohibit the trial of the applicant. However, having considered the grounds individually it is also appropriate to consider them cumulatively, as the ultimate decision should be proportionate, relate to the process as a whole, and to the fairness of the procedures. The Court is required to exercise a supervisory role, and to take into account all the circumstances of the case, which have been set out above in the judgment. Bearing in mind all of the circumstances of the case, I am satisfied that it would be oppressive and unfair to prosecute a further trial in this case. In the interests of justice I would prohibit the third trial based on the complaint of S.L. Thus, while I have found for the Director on several of the grounds of appeal, in the interests of justice I would dismiss the appeal.”
12. It may be possible to detect a slightly different emphasis in the judgment of Kearns J. who enunciated the governing considerations in the following terms ([2008] 4 I.R. 359, 413):
“…..as is apparent from both the authorities in the United States and in Britain, there must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive and as an abuse of discretion on the part of the Director of Public Prosecutions. It may become an unfair procedure in itself to re-try. Put another way, a “breaking point” may be reached where no further trial should be permitted if the fairness and due process requirements of Article 38.1 of the Constitution and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms are to be properly observed.
I do not think that there should be an over-simplified “one size fits all” approach to the question of how many criminal trials for the same offence should be permitted. An oversimplified or stark black and white approach to the issue would, in my view, be a mistake. As Kennedy L.J. pointed out in Henworth, jury disagreement may occur in unusual circumstances and for unusual reasons which might suggest that a further trial should take place. Nevertheless I think that in the ordinary course two trials which end in jury disagreement should be seen as an adequate discharge of the public’s interest in the prosecution of crime unless there are unusual factual circumstances which suggest otherwise. A factual analysis arising in an application to prevent a third trial would have regard to matters such as the following:-
1. The seriousness of the offence or offences under consideration.
2. The extent, if any, to which the applicant may himself have contributed to any mishap which led to the requirement for a further trial. By way of example, the first trial of the applicant (in relation to the complainant TL) collapsed because of defence error. It would be in my view inappropriate to accede to a defendant’s request for relief where the applicant himself was the cause of the earlier trial mishap.
3. Any period of delay which is plainly excessive and beyond the norm for cases of the particular type and the reasons for such delay. A court will necessarily take into account in this context the considerable delay likely to arise in mounting any re-trial. It is now unusual to have a re-trial immediately after an aborted trial, such as occurred in years past, notably in The State v McMullen [1925] 2 I.R. 9, where the re-trial took place two days after the first trial.
4. The extent to which the case now to be met has altered from that which was considered in previous trials.”
13. Kearns J. then went on to hold ([2008] 4 IR 379, 414-415):
“Looking at the facts of the present case, I would observe at the outset that the trial process has been in train since 2002. While O’Neill J referred to the prospect of five trials of the applicant, there have been two trials only on the charges under consideration. The trial in respect of the first complainant was severed from the other complainant’s case at the request of the applicant, and the jury was discharged in the first of the trials in relation to the first complainant because of an error on the part of the defence. I do not see that the applicant can build a case on either of these grounds which in any event relate to different charges involving a different complainant.
On the scale of gravity of sexual offences, however, the surviving charges in this case can only be described as being at the less serious end of the spectrum. In so saying I do not ignore the huge distress described by the complainant. However the offences occurred many years ago, mainly between 1993 and 1994 and there has thus been considerable delay in bringing this matter to a conclusion. This Court has frequently commented upon the deleterious effects of delay in the context of criminal prosecutions.
The medical reports make it abundantly clear that the applicant and his family have suffered enormously as a result of the accusations which have been extremely damaging in the small rural community in which the parties reside. The applicant was asked to leave his position as trainer for the local GAA club. His wife has been alienated from her own family and driven to taking anti-depressants. His eldest daughter was verbally abused at school by some girls who asked her questions such as “When did your father last rape somebody?” His other children have also become withdrawn and stressed. The applicant’s mother died during the court hearings and the applicant believes her death was hastened by the stress of the ongoing proceedings. The applicant himself missed work at times and found it difficult to socialise or go out with his wife. His psychiatrist says that he is under “very major stress”.
There is no suggestion that the applicant himself bears any responsibility for the prolongation of the criminal proceedings, albeit that he can not invoke the first aborted trial in aid of his application. However, any error which may have occurred at that particular juncture was not his personal fault.
On a more general basis and because it is one of the factors to which I have adverted, I see no basis for holding that in the context of any re-trial (if one were to be permitted) the State would be precluded from serving a Notice of Additional Evidence if some further information or evidence had come to light between a first and subsequent trial: the Criminal Procedure Act 1967 so permits. ……Reviewing the case as a whole, however, I see no circumstances which suggest that there are unusual or exceptional circumstances which would justify treating this case as one where a third trial should be permitted following the two jury disagreements to date.”
14. It is important to stress the judgment of Kearns J. also attracted majority support within the Supreme Court inasmuch as Fennelly and Finnegan JJ. also agreed with this judgment.
15. The decision in DS can be contrasted with the later decision of the Supreme Court in AP v. Director of Public Prosecutions [2011] IESC 2, [2011] 1 IR 729. Here the applicant had been charged with 14 counts of indecent assault, but in three trials in succession the jury was discharged at the direction of the trial judge. On each occasion the trial had not proceeded beyond the first witness (namely, the complainant) when the jury was discharged. The Director of Public Prosecutions sought a re-trial – so that the applicant accused would now be facing a fourth trial – and the Supreme Court refused to prohibit this fresh trial. The various judgments delivered by Denham, Hardiman and Fennelly JJ. mention various factors in arriving at this conclusion, including the fact that there had been no undue delay, the strength of the prosecution case and the underlying seriousness of the facts alleged, which in contrast to the facts alleged in DS, fell only marginally short of rape. Nor had there been any evidence of stress “over and above what would naturally and inevitably be accompanied by any trial process”: [2011] 1 IR 729, 747, per Fennelly J.
16. Yet the critical factor in AP was that the re-trials all came about as a result of the discharge of the first prosecution witness at a very early stage in each of the three earlier criminal trials. Accordingly, Fennelly J. thought ([2011] 1 IR 729, 748) that it was important to bear in mind that, unlike the facts in DS, the trial of the applicant:
“never reached the stage where the jury was required to consider its verdict. On each occasion the trial came to a halt during the evidence of the complainant. The court has at best incomplete evidence as to the precise reasons for the discharge of the jury and cannot pronounce on the correctness or otherwise of the decisions of the trial judge. Ultimately, I do not believe that the applicant has shown grounds for prohibiting his further trial.”
17. In this general context, it may also be observed that paragraph 4.33 of the Director of Public Prosecution’s, Guidelines for Prosecutors (November, 2010) provides:
“If a jury fails to reach a verdict in a particular case or a trial otherwise does not proceed to a conclusion, consideration should be given as to whether the public interest requires a second or subsequent trial of the issue. That consideration should include an assessment of the likelihood that a jury on a retrial could deliver a verdict on the available evidence. Where a second jury disagrees the public interest would usually not require a third trial of the accused person but every case should be decided on its own merits.” (emphasis supplied)
18. Bearing these considerations in mind, how, then are the relevant principles to be applied to the present case? Proceeding from the working rule as articulated by Kearns J. in DS, one starts from the proposition that a third trial must be regarded as excluded in those cases where two successive juries have already disagreed on a verdict unless there are unusual or exceptional circumstances. Are there, then, any factors which suggest that there are unusual or exceptional factors which justify a departure from this working rule so far as the present cases are concerned?. There are, I think, a number of special considerations in the present case, not at all of which pull in the same direction.
The gravity of the offences with which the applicants have been charged
19. First, it should be stated that the offences at issue are exceptionally grave, involving as they do false imprisonment (including as an aggravating factor the false imprisonment of young children), robbery and the brandishing of firearms with menaces. While not taking from the seriousness of the allegations in DS, the offences alleged in that case – the manual penetration of the vaginal area of two girls aged 12 and 13 respectively – cannot be regarded as approaching the degree of seriousness of the offences alleged here. This is a factor which, to some degree, counsels against the granting of any order restraining a re-trial.
20. But even in cases of the utmost seriousness, it has nonetheless been held that a third trial can amount to an abuse of process. A striking example here is the decision of the Privy Council in Carter v. State [1999] UKPC 24, [2000] 1 WLR 384, a decision cited with approval by Kearns J. in DS. Here the appellants were arrested the day after an individual was shot dead in a street at Morvant, Trinidad and they were detained in prison since that date until their convictions were ultimately quashed by the Privy Council in May, 1999.
21. The appellants were first tried in late 1991 when they were first convicted of murder. Their convictions were quashed by the Trinidadian Court of Appeal in June, 1994. There was a jury disagreement in April, 1995 following a re-trial. A further re-trial commenced in September, 1996 with the trial court overruling counsel’s objections that a third trial following such a long delay amounted to an abuse of process.
22. On the third occasion the appellants were convicted and sentenced to death. An appeal was rejected by the Court of Appeal, but the appeal was ultimately allowed by the Privy Council. There is no doubt but that these were quite special features of this case which, it may be inferred, may have influenced the judgment of Lord Slynn. Three obvious issues stand out. First, the appellants had been incarcerated for some twelve periods during which they remained under the shadow of death. Second, counsel had been assigned to accused only the day before their trial for capital murder was about to commence. Third, defence counsel were deprived of access to the transcripts of the previous trials, even though this would have been indispensable for any counsel wishing to cross-examine witnesses.
23. These considerations notwithstanding, the following comments of Lord Slynn are nonetheless of interest:
“The respondent accepts that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed but that here the position is different; only one jury was unable to reach a verdict. It was thus for the prosecution to decide whether the public interest in the conviction of criminals required the second retrial to go ahead subject to the discretion of the trial judge to stay the proceedings for abuse of process. Since the trial did go ahead Mr. Guthrie Q.C. submits that the only question is whether that trial was unfair. Here it was not unfair since the facts were not complicated; two of the appellants gave evidence and did not show any real difficulties in recollecting what had happened.”
24. Lord Slynn then went on to say:
“…..Even so there may come a time when the delay is so great that even having regard to the public interest in convicting the guilty it becomes an abuse of process and unacceptable for a prosecution to continue. The delay is here on any view considerable and disturbing. The appellants contend that there has been no case in the Caribbean where the delay has been so great, particularly when the charge is one of murder and when the appellants have been under sentence of death for many years, with the increased agony recognised in Pratt v. The Attorney-General for Jamaica [1994] 2 A.C. 1 which such incarceration imposes. It must be stressed that the complaint here is not just on the ground of delay but also on the ground that it was quite wrong that these appellants should have been put on trial not for the second but for the third time after so many years and when one conviction had already been quashed and when one jury had been unable to agree on a verdict. It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered. Their Lordships recognise that the trial judge has a margin of discretion in these cases and that they will not readily interfere with the exercise of this discretion. After careful consideration, however, they are satisfied that the combination of these two factors required the trial judge in this case to stay the third trial. For the prosecution to continue was wrong in principle and constituted a misuse of the criminal process.”
25. While accepting that this case has the special features to which I referred and further accepting that the case turns in part on the long delays inherent in the re-trial process, it is nonetheless of interest that the Privy Council considered that a third re-trial could but rarely be justified, even in the case of accused charged with murder.
Delays in the criminal justice process
26. Second, it cannot be said that the delays involved in the prosecution of the applicants have been excessive bearing mind the huge complexities involved in these prosecutions. It is true that the applicants have been emeshed in the criminal justice system since the date of their first arrests in April, 2005 and even if a re-trial is ordered, it is likely that this re-trial will take place in 2014 at the earliest. Yet, measured by the delays which have been tolerated in other types of prosecutions, it cannot be said that such delays are in themselves excessive. As Kearns J. acknowledged in DS, some allowance has to be given under modern conditions for potentially adverse publicity to fade from the public consciousness. Some of the delays which have been occasioned in the present case have been brought about judicial review applications brought by the applicants and, of course, I do not take these periods of delay into account. Taken as a whole, therefore, it cannot be said that the delays, while regrettable and doubtless stressful for all concerned, have been excessive.
The onerous bail conditions
27. Third, the applicants have been subjected to extremely onerous bail conditions. In addition, both were detained in custody for relatively short periods pending the grant of bail by this Court. Thus, for example, Niall Byrne, has been required to attend Garda stations on a twice daily basis (excluding days on which he was attending court) on virtually every day for five years. (Special exceptions had been made for Christmas Day, his wedding and the birth of a child). While the bail terms were relaxed somewhat (in February, 2011 in the case of David Byrne and in February, 2012 in the case of Niall Byrne), it is impossible nonetheless to deny the pervasive effect which the prosecutions have had on their daily lives. It is only fair to record that both have at all times honoured their bail.
The stress suffered by the applicants and their families
28. Fourth, just as in DS, the applicants have suffered from considerable stress and anxiety as a result of the prosecution. In the case of John Byrne, his mother, wife and himself have all sought medical assistance to help them cope with these on-going pressures. He lost his job as a Securicor employee on the day of his arrest. This has also been true in the case of David Byrne, with his wife seeking medical assistance. His young children have met with social ostracization in that his neighbours will not allow their children to associate with them. At the time of his arrest he was working as a taxi driver and he then began driving a van as a courier, but he said that he could not obtain any work as a result of these proceedings. One of the senior investigating Gardaí, Detective Inspector Scott maintains, however, that Mr. David Byrne found employment in the film industry and that he still holds that position.
29. It is, however, worth noting that neither applicant have supplied medical reports from third parties. Thus, for example, in DS the applicant had supplied a report from a psychiatrist detailing the effect the stress of a pending trial had upon him and other members of his family. While accepting, therefore, that the applicants and their families have probably suffered from stress and perhaps from a degree of stress over and above that which is inherent in the trial process, it cannot be said that this is a decisive or dispositive factor.
The fact that two juries have already reached disagreement on the merits following two lengthy trials
30. Fifth, far and away the most striking feature of the case is the fact that the applicants had to face two exceptionally long trials, both of which ended in jury disagreement so far as these applicants are concerned. In this context two facts stand out, namely, that the jury disagreed on the merits in both trials and that the two trials were exceptionally lengthy. The fact that the jury disagreed on the merits on both occasions is significant, since as Marshall C.J. put it in Williams v. State of Georgia 258 Ga. 305, 369 S.E.2d 232 (1988) (and cited with approval by Kearns J. in DS): “The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.” Conversely, where as here, the failure to convict – looking at the matter for the moment through the eyes of the prosecution – stemmed from evidentiary insufficiency this suggests that a third trial should not be permitted.
31. The fact that the trials took so long and the juries in both cases deliberated for days is also a factor which strongly favours the applicants. Some raw statistics serve to put the enormous dimensions of these trials in perspective. Over 200 witnesses gave evidence at the first trial and 163 witnesses gave evidence at the second trial and cumulatively the two trials came to 90 days.
32. Indeed, it is not clear to me whether there has ever been a third re-trial in this jurisdiction following two jury disagreements in circumstances such as the present one. In this respect, this type of case is totally different from a case such as AP where the re-trials all happened following the collapse of the trials very shortly after they had commenced. But even if there has been such a third re-trial, one may safely assume that the circumstances must have been different from the present one in terms of the duration of the various trials. Here it may also be noted that in the first trial – which was the longest ever trial in the Circuit Court – the jury had found itself in a position to deliver guilty verdicts against three of the accused, even if could not agree verdicts in respect of the two applicants. A further striking fact is that while the second trial concerned these two applicants exclusively, the jury again disagreed. Nor was the necessity for the re-trials brought about in any way by any conduct on the part of the accused.
33. In this context counsel for the respondents, Mr. McGinn S.C., placed some emphasis on United State v. Gunther 546 F.2d. 861 (1976). Here eight defendants were charged with the theft of a quantity of tyres from a railway goods wagon. The first jury which was empanelled was unable to agree on a verdict. A short time later the second trial commenced. On this occasion two defendants were convicted and there was a jury disagreement in respect of the remaining six defendants. A month later again, the remaining six defendants were again tried and on this occasion the six were convicted on all counts on the indictment.
34. Judge McWilliams commenced his analysis with the classic US authority on the point, United States v. Perez 22 US 579 (1824). Here the accused had been tried on a capital crime, but the jury was discharged following a disagreement, The accused claimed that the re-trial was barred by the double jeopardy provisions of the Sixth Amendment, but this argument was rejected by Story J. Judge McWilliams then continued:
“Certainly the rationale of Perez and the other cases cited would not preclude a third trial where the first and second trials both resulted in mistrials based on the fact of a hung jury. Indeed the rationale of Perez suggests to us the propriety of a third trial where the prior juries were unable to agree upon a verdict. This assumes, of course, that the concept of “manifest necessity” and “ends of public justice” referred to in Perez are met. Here, in the first trial of the matter, eight defendants were brought to trial in a single trial, with each defendant apparently having separate counsel. In such circumstance some jury confusion would appear to be inevitable. The same situation prevailed at the second trial. Here, however, two defendants, Myers and Lamb, were convicted. Bringing the six remaining defendants to a third trial would appear to us to meet the conditions of Perez concerning manifest necessity and public interest. There indeed may be a breaking point, but we do not believe it was reached in the instant case.”
35. The decision in Gunter calls for some comment. First, while the length of the first trial in that case is not set out in the judgment, one may nevertheless assume that it lasted at most a few days. In this respect, it was quite unlike the 65 days which was represented the duration of the first trial in the present case. Second, McWilliams J. surmised that the jury might have been confused in the first trial in that case given the multiplicity of defendants. Yet the jury in the first trial in the present case convicted three defendants. Moreover, the second trial exclusively concerned the present two applicants and last for a shorter period. Yet even under those circumstances there was a jury disagreement.
36. Pausing at this point, therefore, it cannot, I think, be said that, subject to one important caveat in the case of Mr. David Byrne, the respondents can realistically show that a third trial would pass the test articulated by Kearns J. in DS. It is true, as we have noted already, that the charges here are more serious than those faced by the applicant in DS. It is also true that the delays between the date of the offences and the ultimate trial (2005-2014) involved here are shorter than those at issue in DS (1994-2008). At the same time both applicants and their families have certainly suffered psychological stress which is to some degree over and above that which is at issue in the average criminal trial process, even if this is not, perhaps, quite as marked as in DS.
37. But even if the seriousness of the charges and the delay points might be thought to favour a third trial, this is more than cancelled out by the remarkable and special facts of the duration of the first two trials and, just as important, the fact that these re-trials resulted from jury disagreements on the merits. While, as we have already noted, there is no ex ante rule in relation to such matters, it seems clear from the cases such as DS and Carter that a third re-trial following two jury disagreements on the merits will normally constitute a Rubicon beyond which no prosecution should generally cross. So far as the present case is concerned, it must particularly be borne in mind that a third trial involving these applicants alone would presumably take another twenty five days. If that too resulted in a jury disagreement, is to be said that we are then to have a fourth such prosecution? In these circumstances I am driven to the conclusion that, based on the test articulated by Kearns J. in DS, a further trial would amount to a ne plus ultra in terms of oppression, unless there was compelling new evidence available against either applicant.
Is there compelling new evidence?
38. Notwithstanding all that I have just said, the availability of compelling fresh evidence may nonetheless be a factor which points to permitting a third re-trial.
39. This issue was examined in the context of an abuse of process argument by the English Court of Appeal in the case of R. v Henworth [2001] 2 Cr. App. R. 4, a case which was cited with approval by Kearns J. in DS. In Henworth the appellant was charged of murder of which he was convicted. The conviction set aside by the Court of Appeal whereupon a retrial occurred which resulted in a jury disagreement. A second retrial then began in which the appellant conducted his own defence. Owing to difficulties in the conduct of his defence the jury was discharged. A further retrial then took place and the appellant was convicted. He appealed against conviction and argued that the convention which provided that if a jury disagreed on two occasions the prosecution would not seek a further trial should also apply to the circumstances of this case where the jury on the first occasion convicted.
40. The Court of Appeal held, however, that when a serious crime is committed and a clear case to answer as far as a defendant was concerned is established, the clear public interest lies in having a jury decide positively one way or the other whether that case was established. In the course of his judgment, Kennedy L.J., considered the reasons for the existence of the convention, stating:
“We suspect that at least part of the rationale for the convention to which [counsel] has referred is that the prosecution should only proceed against any given defendant if they consider that there are real prospects of obtaining a conviction from a jury. If two juries have disagreed when presented with substantially the same evidence inevitably the prosecution must carefully reconsider its position.
We see no reason to conclude that it should apply in the sort of circumstances with which we are concerned in this case. Furthermore, we would not elevate it into a proposition of law. We do have to have in mind, for example, the situation which might arise if one jury which disagreed was shown consequently to have been interfered with, or some highly persuasive piece of evidence were to emerge during the course of a retrial, too late perhaps to be used in that trial but capable of constituting devastating evidence on behalf of the Crown if there were to be further proceedings.”
41. Is, there, then compelling new evidence available to the prosecution so far as these applicants are concerned? It is accepted that so far as Niall Byrne is concerned, there is no such new evidence. The situation with regard to David Byrne is, however, different and deserves separate consideration.
The original unapproved judgment
42. Before considering this new evidence it is necessary to relate that in the original unapproved judgment delivered by me on 2nd July, I had erroneously stated that the prosecution contended that the new evidence would show that Mr. David Byrne had subsequently used the mobile telephone (i.e., the “purple” telephone) which had been used by the kidnappers in the course of the robbery. This error was in part based on an (admittedly) erroneous statement in an affidavit.
43. In the wake of the delivery of the draft judgment and before it was finalised or any any order was drawn up on foot of it, counsel for Mr. David Byrne, Mr. Marrinan SC and Mr. Fitzgerald very properly drew these errors to my attention. For their part, counsel for the Director, Mr. McGinn SC and Ms. Phelan, readily accepted that I had – all too characteristically, I fear – fallen into error in respect of these vital facts. It was agreed that in these special circumstances I should vacate that part of this judgment in relation to the new evidence. The Supreme Court has made it clear that this Court can re-open findings of fact in exceptional cases, provided that the re-opened hearing is confined specifically to the erroneous findings: see Re McInerney Homes Ltd. [2011] IESC 31 at paras. 61-62 of the judgment of O’Donnell J.
44. This is plainly such a case. The errors in question were central to any fair evaluation of the new evidence issue. I then agreed to hold a fresh hearing confined solely to the question of findings of fact in relation to the new evidence and an evaluation of that evidence. This process was very helpful in ascertaining the precise nature of the new evidence and, indeed, I believe it is probably fair to say that in the course of this further hearing both sides further refined their presentation of the new evidence issue. This judgment as thus amended reflects these further submissions.
The new evidence concerning David Byrne
45. So far as David Byrne is concerned, the prosecution maintain that there exists significant new evidence against him which was not admissible at his second trial. It is accepted that at that trial His Honour Judge McCartan ruled against the admissibility of this new evidence by reason of its late delivery to the defence.
46. The new evidence consists mainly of an analysis of certain telecommunications records relating to what came to be described as the “purple” mobile telephone. Evidence had already been given at the first and second trials that the purple telephone had been used at a critical stage in the robbery and kidnap of the Richardson family. It was thus the telephone which was used by the kidnappers at about 2.30 am in the early hours of 15th March 2005 to enable Ms. Richardson to speak with her husband. Closed circuit television evidence from a Texaco filling station on the evening of the robbery (allegedly) shows Mr. David Byrne purchasing credit for this mobile phone. Three separate mobile telephones were also found in Mr. Byrne’s car – which was a taxi – which had been parked in the driveway of his house. These telephones were given the designations DOC 1, DOC 2 and DOC 3 respectively at these earlier trials.
47. The new evidence on which the prosecution would now seek to rely at any further trial requires a subtle and painstaking analysis of these telecommunications records with a view to showing that a (now deceased) person known to Mr. David Byrne and with whom he was in contact during this period – namely, one Terence Dunleavy – telephoned the purple mobile telephone on 14th March 2005. The prosecution will accordingly seek to invite the inference that the late Mr. Dunleavy telephoned the purple telephone in the belief that by doing so he could speak to or otherwise contact Mr. David Byrne, thus connecting him (i.e., Mr. Byrne) in a material way with the kidnap by reason of his possession of or his access to that telephone.
48. The purple telephone was first used on 11th March 2005 and it was not used again after 15th March 2005. During the period from 11th March to 15th March 2005 the purple telephone initiated contact with only 12 different numbers and was the recipient of contacts from only nine persons. Five of these contact numbers are also linked with DOC1, DOC 2 and DOC3. It is also contended that these numbers included numbers associated with Terence Dunleavy and another key prosecution witness, an Alan Drumgoole.
49. It is important to stress again that the telephone records in relation to the purple telephone do not constitute new evidence as such. These records were, after all, in use in both the first and second trials. What is new is the level of attention given to the numbers and detailed examination of the numbers with which the purple telephone was in contact.
50. In the two previous trials, evidence was given that the person (or persons) who used the purple telephone was (or were) in contact with three other persons involved in the kidnap and with Alan Drumgoole. Mr. Drumgoole gave evidence that he had spoken to Mr. David Byrne on the day of the robbery on this number. What the prosecution contend is that the additional evidence demonstrates that the purple telephone was in contact with twelve telephone numbers only and that one of those numbers was that of Mr. Terence Dunleavy.
51. It is alleged that Mr. David Byrne telephoned Mr. Dunleavy in mid-April 2005 using the telephone known as DOC 3. (As it happens, Mr. Dunleavy was shot dead minutes later, but tragic as this event is, it is not directly relevant to the issues in the present case.) The call was answered by Samantha Ellis, the girlfriend of Mr. Dunleavy. Ms. Ellis cannot immediately identify Mr. Byrne by name, but says that she knew him as “Mousey” and that he drove a small blue taxi. The prosecution contends that the significance of this evidence is that it shows that Mr. David Byrne and Mr. Dunleavy knew each other.
52. It is further alleged that Mr. Dunleavy had previously sought to contact Mr. David Byrne on 14th March 2005 and, critically, that the calling pattern shows that Mr. Dunleavy believed that Mr. Byrne used or had access to the purple telephone. The prosecution accordingly contend that Mr. Dunleavy rang (i) the purple telephone, (ii) a telephone number corresponding to a contact listed as “Davey” in Alan Drumgoole’s mobile telephone and (iii) a telephone number corresponding to contact listed as “Mousey Byrne” in Alan Drumgoole’s mobile telephone in quick succession. One of these calls lasted some 62 seconds.
53. In essence, therefore, the prosecution’s case on this issue is that Mr. David Byrne knew Mr. Dunleavy and that they were in telephone contact with each other during this period. That in itself would be of no particular significance save that Mr. Dunleavy rang the purple telephone on 14th March 2005 and thereafter rang the telephone numbers corresponding to – or so the prosecution allege – the contact numbers listed as “Davey” and “Mousey Byrne” in Alan Drumgoole’s mobile telephone. Mr. Drumgoole maintains that the references to “Davey” and to “Mousey Byrne” in his telephone are to Mr. David Byrne. The prosecution contend that the inference from this sequence of telephone calls this is that a person who knew Mr. David Byrne – namely, Mr. Dunleavy – believed that the former could be contacted on 14th March 2005 via the purple telephone and that when he could not be reached at that number, Mr. Dunleavy then tried to contact him via the “Davey” and “Mousey Byrne” numbers.
54. It is important to state that Mr. David Byrne does not accept that he is the person referred to variously as “Davey” or “Mousey Byrne” in the contacts section of Mr. Drumgoole’s mobile telephone and, moreover, denies any involvement with the purple telephone. In evaluating this evidence it must be further acknowledged that Mr. Drumgoole has already accepted that he perjured himself during the course of the first trial.
55. It is accepted that the case against David Byrne is purely circumstantial. In essence, much of it turns on an analysis of the use of mobile telephones during the course of the kidnapping and the subsequent false imprisonment of the Richardson family. Here the identity of the person or persons who used or who had access to the purple telephone during the four days in which it was in use in mid-March 2005 is crucial. In many respects, the entire prosecution case rests on showing that there was a link between Mr. David Byrne and the possession or usage of the purple telephone. While the analysis of the telecommunication records urged by the prosecution is complex and sophisticated, nonetheless three points emerge.
56. First, if the account of Ms. Ellis is accepted, there is evidence that Mr. David Byrne rang Mr. Dunleavy immediately before the latter’s death in April 2005. If this is so, it suggests that both men were in contact during this general period and that they knew each other.
57. Second, if the account of Mr. Drumgoole is accepted, then the telephone numbers ascribed to “Mousey Byrne” and “Davey” in his list of contacts in his mobile telephone are in reality those of Mr. David Byrne. In making any assessment of this evidence it must not be overlooked that Mr. Drumgoole has already confessed to have given perjured evidence at earlier stages of these trials.
58. Third, the prosecution stress the fact that Mr. Terence Dunleavy rang the purple telephone and the mobile telephones of both “Mousey Byrne” and “Davey” in quick succession on March 14th. Of course, the evidence that these telephone contact numbers also refer to Mr. David Byrne rests entirely on accepting the evidence of Mr. Drumgoole in relation to the underlying identity of the person or persons referred to in his mobile telephone contact numbers, the inevitable frailties which attach to his evidence notwithstanding. Nevertheless, if Mr. Dunleavy was indeed one of the limited number of persons to make contact with the purple telephone during the short period during which it was in use, this might be regarded as a singular fact. How, for example, did he come to know of the existence of this number and why did he ring it? If it is further accepted that Mr. Dunleavy rang the three numbers (the purple telephone, the “Mousey Byrne” and the “Davey” numbers) in succession and that the latter two numbers refer to Mr. David Byrne, then this might well suggest that a person who knew Mr. David Byrne and who was seeking to contact him on that critical day rang the purple telephone because that person believed (or even knew) he could thereby speak to him.
59. The assessment in abstracto of this new evidence is not an easy task to perform. One must recognise that the prosecution case depends on the acceptance of the evidence of both Ms. Ellis and Mr. Drumgoole. From the prosecution’s perspective it is necessary – but not in itself sufficient – that this evidence be accepted in full. If these hurdles are cleared, then the prosecution case rests on the further inferences to be drawn from the fact that a now deceased person, Mr. Dunleavy, rang thee telephone numbers (including the purple telephone) in succession on March 14th.
60. At one level, the new evidence could – and might very well be – dismissed by the jury as weak and speculative, even if – which is by no means certain – the jury also accepted the credibility of the evidence of Ms. Ellis and that of Mr. Drumgoole. In the end, the prosecution case in relation to the new evidence effectively now comes down to an invitation to draw an irresistible inference from the banal and routine actions of a now deceased person and in respect of which matters many might think only an equivocal inference could at best be drawn.
61. The evidence can, of course, also be read differently. Here one might dwell on the fact that the purple telephone was only in use for a short period which was contemporaneous with the robbery; that Mr. Dunleavy knew Mr. David Byrne and that both were in telephone contact around this period; that the purple telephone was in contact only with twelve telephone numbers during the four day period associated with the robbery and the fact that Mr. Dunleavy rang two numbers associated with Mr. David Byrne immediately after ringing the purple telephone all suggest that Mr. Dunleavy believed (or, if you wish, even knew) that the purple telephone belong to Mr. David Byrne. One might also ask how it was that Mr. Dunleavy came to ring the purple telephone just a few days after it came into use.
62. Divorced as I am from the complex underlying facts which have already been presented to two juries, it is well nigh impossible to make any predictive assessment of how a jury might treat this new evidence. This is particularly so given that the new evidence is but an additional strand of circumstantial evidence, all of which rests on an analysis of the highly complex underlying facts. In many respects, the new evidence could really only be fairly weighed by a person who had the benefit of hearing the entirety of the prosecution evidence.
63. Yet it is, I think, sufficient to say that there is at least a possibility that a jury might regard this evidence as highly compelling, even if other options would seem to be equally open to them. It is true that the new evidence here is perhaps very different from that which Kennedy L.J. probably had in mind in Henworth. The test is, of course, so much easier to apply in straightforward cases where the new evidence consists, for example, of an important new witness not heretofore available or, where, in cases of assault or homicide, the hitherto concealed offensive weapon has now been discovered. The present case is anything but straightforward, but is possible that the new circumstantial evidence will prove crucial in a case which itself otherwise rests on circumstantial evidence. While the issue is difficult and troubling, I nevertheless find myself obliged to conclude that in this respect the Director has demonstrated enough to show that the case comes within the rubric of both DS and Henworth.
The potential impact of the Supreme Court’s decision in Damache
64. During the course of the hearing there was much argument concerning the impact of the Supreme Court’s decision in Damache v. Director of Public Prosecutions [2012] IESC 12 which held that the search warrant powers contained in s. 29 of the Offences against the State Act 19039 were unconstitutional. It is undeniable that this power was widely used by the Garda authorities in the course of the investigation into this case and it is plain from the decision of the Court of Criminal Appeal in The People v. Kavanagh [2012] IECCA 65 concerning the appeals of the three co-accused that certain items of evidence relied on by the prosecution during the course of the first trial will probably be excluded at any re-trial.
65. It is, however, in its own way a reflection of the immense complexity of this case that it is nonetheless really impossible for me to form any view as to what the trial judge is likely to do or rule in the course of any re-trial in relation to the admissibility of any such evidence. Much may depend on which accused may invoke the Damache principles and in what circumstances. Thus, for example, three telephones (described already as DOC 1, DOC 2 and DOC 3) were seized from Mr. David Byrne’s car which was parked in a driveway of his house. Detective Inspector Scott initially suggested that these telephones had been seized under the provisions of the Criminal Law Act 1976, but it now appears to be accepted that the seizure took place pursuant to the terms of a search warrant which had been issued under s. 29 of the 1939 Act. But even if the Gardaí had no power to seize the telephones, issues may yet arise as to whether this evidence should be excluded given that the telephones were not physically present in Mr. David Byrne’s house when this occurred.
Conclusions on the new evidence
66. In summary, therefore, I am left with the impression that at a third trial the prosecution may be able to tender new evidence against Mr. David Byrne which, if the prosecution’s analysis were to be accepted (and I stress the conditional nature of this), is capable – to adapt the words of Kennedy L.J. in Henworth – of constituting “highly persuasive evidence” against him. I express no view on whether this is so or whether the prosecution ought to be able to establish this analysis before the jury. I would merely say that the evidence is capable of having a highly persuasive effect and it is this single factor which persuades me that, in contrast to the case of Niall Byrne, I should not grant an order restraining a third trial.
Witness coaching
67. Objection was also taken to the fact that a further statement was taken from Mr. Alan Drumgoole on 7th March, 2012, by Detective Inspector Scott which it is proposed to tender at any third trial as additional evidence against Mr. David Byrne. Mr.Drumgoole was formerly a good friend of Mr. David Byrne and he was arrested in the course of the investigation. It is accepted that he did not tell the full truth in the course of earlier interviews and it is now proposed to tender a new version of his evidence at any re-trial.
68. It is, of course, axiomatic that there cannot be any witness “training” or “coaching” on the part of either the prosecution or the defence in the sense that prospective witnesses in a forthcoming criminal trial are allowed to practice giving evidence in the presence of legal professionals or to otherwise co-ordinate their evidence by means of some sort of practice sessions. Quite apart from the fact that such practice would be unethical for legal professionals (cf. Rule 5.18 of the Bar Council’s Code of Conduct), a practice whereby witnesses are so trained or coached runs the real risk that witnesses will tailor their evidence in the manner which they believe is apparently expected of them. The practice is objectionable at several levels, but chiefly because it assists the dishonest witness to calculate how his or her evidence may come across as consistent and convincing. It further helps to create an environment where the evidence of all participating witnesses may be contaminated: see generally the comments of Judge L.J. in R. v. Momodou [2005] 1 WLR 3442, 3453-3454.
69. For my part, I cannot see that this has come about in the present case. Detective Inspector Scott took a further statement from Mr.Drumgoole and a full record of that statement has been disclosed to the defence team. While I express no view at all on the merits of what is contained therein or, indeed, its very its admissibility in evidence, I cannot see how the mere taking of a further statement in the course of a Garda investigation even from a witness whose evidence was controversial and who was subject to the most searching of cross-examinations during the course of the earlier trials infringes this rule.
Conclusions
70. It remains only to summarise my principal conclusions:
A. It is clear from cases such as the Supreme Court’s decision in DS that a third trial following two jury disagreements on the merits is presumptively excluded unless there are special and unusual circumstances. This, however, is merely a working hypothesis and is not a firm rule of law.
B. It is true that both applicants face very serious charges, a factor which in itself suggests that the public interest in pursuing the matter to finality on a third trial is very strong. In the present case, however, the fact that the applicants have already faced two lengthy trials culminating in jury disagreements is a factor which also pulls strongly in the opposite direction.
C. The prospect that new and potentially highly persuasive evidence will be available on a re-trial is also a strong factor suggesting that such a trial will be permitted.
D. As there is no new evidence against Niall Byrne, I consider that the fact that he has already faced two long trials which culminated in jury disagreements is decisive in his favour. A newly empanelled jury would be in no better position to arrive at a verdict than the two previously empanelled juries who could not arrive at a verdict and in these circumstances it would be unfair to submit him to the ordeal of a third trial. Based, therefore, on the principles enunciated by Kearns J. in DS, I would accordingly grant him an order of prohibition restraining his third trial.
E. Not without some hesitation, I have come to the opposite conclusion in the case of David Byrne for the sole reason that there is a prospect that the prosecution will be able to introduce new (admittedly circumstantial) evidence which may be of a highly persuasive character in a case which rests wholly on circumstantial evidence. It is this factor which, I think, tips the balance against him and which constitutes an unusual factual circumstances within the meaning of DS which points towards a re-trial. It is for this single reason that I would refuse to grant such relief in his case.
McLoughlin v. Tuite
Carroll J.
[1986] IR 235
H.C.
Carroll J.
4th October 1985
In this action the plaintiff challenges the right of the first defendant, an Inspector of Taxes, to claim payment of penalties from the plaintiff for failing to prepare and deliver returns of income on being required to do so.
The first defendant issued a notice to the plaintiff pursuant to s. 172 of the Income Tax Act, 1967, requiring the plaintiff to prepare and deliver returns for the years 1972/73 to 1982/83, inclusive, within the period of twenty-one days limited by the notice. The plaintiff failed to deliver the returns. The first defendant sued the plaintiff on foot of a summary summons claiming that the plaintiff, by virtue of s. 500 of the Income Tax Act, 1967, had become liable to pay and was indebted to the Minister for Finance for the benefit of the Central Fund in respect of the years 1972/73 to 1982/83, inclusive, for a penalty of £500 for each of those years. The total sum claimed was £5,500 being the aggregate amount of the penalties payable by the plaintiff in respect of those years. The action proceeded to judgment and a return of nulla bona was made on execution of the sheriff.
Section 500 of the Income Tax Act, 1967, provides:
“(1). Where any person
(a) has been required, by notice or precept given under or for the purposes of any of the provisions specified in column 1 or 2 of Schedule 15, to deliver any return, statement, declaration, list or other document, to furnish any particulars, to produce any document, or to make anything available for inspection, and he fails to comply with the notice or precept, or
(b) fails to do any act, furnish any particulars or deliver any account in accordance with any of the provisions specified in column 3 of that Schedule, he shall, subject to subsection (2) and to section 503 be liable to a penalty of £100 and, if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £10 for each day on which the failure so continues.
(2). Where the said notice was given under or for the purposes of any of the provisions specified in column 1 of the said Schedule and the failure continues after the end of the year of assessment following that during which the notice was given, the first of the penalties mentioned in subsection (1) shall be £250.
(3). The preceding provisions of this section shall have effect subject to the proviso to section 169 (4) and the proviso to section 178 (1).”
By s. 60, sub-s. 1 of the Finance Act, 1982, the sum of £100 in s. 500, sub-s. 1 was increased to £500 and the sum of £250 in sub-s. 2 was increased to £800. By s. 60, sub-s. 2 (d) of the same Act the words “and if the failure continues after judgment has been given by the court before which proceedings for the penalty have been commenced, to a further penalty of £10 for each day on which the failure so continues” have been deleted and in sub-s. 2 the word “penalty” is substituted for “first of the penalties.”
Both the plaintiff and the defendants made written submissions and expanded them in argument. To summarise both cases briefly, the plaintiff submitted:
(1). The penalties imposed in s. 500 of the Income Tax Act, 1967, are punitive and proceedings for their recovery are trials of a criminal nature for the purpose of coming within the provisions of Article 38, s. 1 of the Constitution viz., “No person shall be tried on any criminal charge save in due course of law.”
(2). “Penalty” in this context is not to be confused with a penalty in a contract which is a provision for securing the due performance of a contract. It is to be equated with a fine, i.e., a pecuniary punishment for an offence. Civil liability for a breach of statutory duty is different to a penalty for such breach. For civil liability to arise there must be damage; penalties apply whether damage is caused or not. Their object is to punish in addition to any civil liability there may be.
(3). The reasoning of the courts as to the nature of offences contrary to the customs code are relevant to penalties imposed by the Income Tax Acts. Formerly, penalties under the customs code were recovered in civil proceedings (see O’Croinin and Quinn v. Brennan [1939] I.R. 274). They are now firmly regarded as criminal offences whether of a minor or non-minor character. See Melling v.O Mathghamhna [1962] I.R. 1.
(4). The Attorney General v. Casey [1930] I.R. 163, which supports the view that the recovery of penalties under the income tax code is not criminal in character, being a decision of the former Supreme Court, is not binding and has been wrongly decided.
The defendants submitted:
(1). The failure of the plaintiff to make returns within a given period as required created a non-criminal liability for the payment of a fixed sum to the Exchequer.
(2). While the Oireachtas cannot dress up a criminal charge as a civil procedure, it can create a non-criminal liability. There is no reason why, if a fixed sum is exacted, it must be criminal. Payment of a sum of money is not per se punitive; even if there is a punitive element in it, it does not mean that it is inevitably criminal.
(3). While The Attorney General v. Casey [1930] I.R. 163 is not binding, it gives the correct analysis.
(4). The construction of the Act attracts the presumption of constitutionality. If it is possible as a legal concept that there can be created a civil liability to pay a liquidated sum without giving rise to a criminal charge, that is the construction the court must give. It is only if no such construction is reasonably open to the court, that a finding of repugnancy can be made. (see McDonald v. Bord Na gCon [1965] I.R. 217 at page 239).
(5). The Oireachtas set out to create a form of civil liability as shown by the following:
(a) The precursor of s. 500 was s. 30 of the Income Tax Act, 1918. In drafting s. 500 for the consolidation of the income tax code in the statute of 1967, the Oireachtas avoided the language of a criminal charge. The word “guilty” and the words “committing an offence” which appear in s. 30 do not appear in s. 500.
(b) Under s. 508 an Inspector of Taxes is given power to sue for the recovery of the penalties in his own name by civil proceedings.
(c) A penalty payable for failure to make a return does not cease to be payable on the death of the taxpayer. It is recoverable as a debt against his estate (see section 504). This is inconsistent with the nature of a crime. A prosecution cannot be commenced after the death of a wrongdoer.
(d) If the penalty is not paid, imprisonment does not result.
(e) By the same Act the Oireachtas has created criminal offences in ss. 515 and 516 (inter alia). They are clearly meant to be criminal. In s. 515 the penalty is expressed to be a “fine” of £100.
(f) Subsequent to the Act of 1967, s. 94 of the Finance Act, 1983, created a series of statutory offences under which sub-s. 2 (e) (i) corresponds to a requirement to make a return under section 172.
“(2). a person shall without prejudice to any other penalty to which he may be liable, be guilty of an offence under this section if, after the date of the passing of this Act, he . . .
(e) knowingly or wilfully fails to comply with any provision of the Acts requiring
(i) the furnishing of a return of income etc.”
(6). The Income Tax Act, 1967, was subsequent in time to the Melling Case [1962] I.R. 1, a fact which is relevant in considering the state of law at the time the Act was passed.
(7). The purpose of the section is coercive not punitive.
(8). There can be civil expropriation/forfeiture without a criminal charge, (for example see The Attorney General v. Southern Industrial Trust (1957) 94 I.L.T.R. 161 which concerned the forefeiture of a car).
All the arguments come down to one net point to be decided, namely, whether the penalties which become payable under s. 500 of the Income Tax Act, 1967, are penalties which are criminal in character and not civil penalties recoverable as a liquidated sum in the civil courts.
The precursor of s. 500 of the Income Tax Act, 1967, which was s. 30 of the Income Tax Act, 1918, came up for consideration in The Attorney General v. Casey [1930] I.R. 163. It provides as follows:
“(1). A person who in making a claim for or obtaining any exemption, abatement, or relief hereinbefore described, or in obtaining any certificate as aforesaid
(a) is guilty of any fraud or contrivance; or
(b) fraudulently conceals or untruly declares any income or any sum which he has charged against or deducted from, or was entitled to charge against or to deduct from another person; or
(c) fraudulently makes a second claim for the same cause,
shall forfeit the sum of twenty pounds and treble the tax chargeable in respect of all the sources of his income and as if such claim had not been allowed.
(2). A person who knowingly and wilfully aids or abets any person in committing an offence under this section shall forfeit the sum of fifty pounds.”
The Casey Case [1930] I.R. 163 was concerned with whether the plaintiff was entitled to a jury as of right in an action to recover a penalty under s. 30, sub-s. 1 of the Income Tax Act, 1918. The appellant made the case that the action was really a criminal proceeding and that he had an elementary right to have it tried by a jury. Kennedy C.J. at p. 169 acknowledged that it was proceeding to recover penalties which had become payable by reason of the appellant having committed what is called in the Income Tax Act, 1918, an “offence” against the statute, upon which expression the argument was largely founded. He reviews the case law and then says at page 170:
“Upon the considerations suggested by the several authorities I have cited, the matter presents itself to me in this way. The proceeding for recovering a penalty under a statute by way of information of debt (and its present equivalent) is not in its nature a criminal proceeding, but a civil proceeding. It is the form of action of debt available, formerly to the Crown, and now to the State, acting through the Minister for Finance and the Attorney-General. But the statute which imposes the penalty may make the person who is liable to the penalty also amenable to the criminal law by indictment or otherwise in respect of the same facts as subject him to the penalty, so that, in proving the claim for the penalty in the information proceedings, the facts constituting the crime would also be established to the prejudice of the criminal trial, if that had not yet taken place, and if, upon the terms of the statute, it could also be pursued after the action of debt.”
This case is referred to in Melling v. O Mathghamhna [1962] I.R. 1 which seems to me the case which is most relevant in endeavouring to answer the question whether the penalties imposed by s. 500 must imply a criminal offence. The Melling Case established that penalties imposed by the Customs Consolidation Act, 1876, were criminal in character and not civil. It was also concerned with whether the offences were minor offences or not, which does not arise here. In the judgment given by Kingsmill Moore J., he analyses at p. 24 the meaning of a criminal offence. He says:
“What is a crime? The anomalies which still exist in the criminal law and the diversity of expression in statutes make a comprehensive definition almost impossible to frame.”
He quotes some definitions from case law and text books:
“The criminal quality of an act cannot be discerned by intuition; nor can it be discovered by reference to any standard but one: Is the act prohibited with penal consequences?”
“A crime is a legal wrong the remedy for which is the punishment of the offender at the instance of the State.”
“Crimes are wrongs whose sanction is punitive and is remissible by the Crown if remissible at all.”
He then sets out several features of the offences under s. 186 of the Customs Consolidation Act, 1876, which are regarded as indicia of crimes; which I summarise here:
(i) They are offences against the community at large and not against an individual.
(ii) The sanction is punitive, and not merely a matter of fiscal reparation; and failure to pay, even where the offender has not the means, involves imprisonment.
(iii) They require mens rea. Mens rea is not an invariable ingredient of a criminal offence, but where mens rea is made an element of an offence it is generally an indication of criminality.
The learned judge said that if the matter were devoid of authority he would not hesitate to hold that an offence under s. 186 was a criminal offence and that a properly brought accusation of such an offence was a criminal charge. However, since there were authorities and both parties claimed they were in their favour he reviewed the authorities extensively including (at p. 27) The Attorney General v. Casey [1930] I.R. 163. He quotes passages from the judgments of Kennedy C.J., Fitzgibbon J. and Murnaghan J. In relation to that case and allied cases he says as follows (at p. 28):
“The cases which I have cited may establish that if proceedings are taken under s. 218 by action analogous to the former information and subpoena on the Revenue side of the King’s Bench Division such proceedings are in the nature of a civil action. But this procedure has been regarded as anomalous, and the cases to which I have referred certainly do not decide that proceedings before a District Justice under s. 186 or s. 233 of the Customs Consolidation Act are in any way of a civil nature.”
His view of Casey’s Case [1930] I.R. 163 seems to be neutral. He appears to me to be saying that the proceedings by way of civil action for the recovery of penalties were anomalous. But the fact that they are anomalous does not prevent them from being constitutional. He concludes (at p. 33) as follows:
“It appears to me that the weight of authority is in favour of the view that prosecutions before a District Justice under s. 186 are criminal prosecutions in which a criminal charge is brought against a person accused of an offence, and I accede more readily to this weight of authority because it coincides with my own clear and strong view of the question.”
O’Dalaigh J. (as he then was) in his judgment (at p. 40), addressing himself to the question of whether there was a criminal charge or not, enumerates what is and what is not a feature of civil proceedings:
“One of the chief characteristics of civil liability (as contrasted with criminal liability) is the obligation to make reparation and, in our times, not to have to suffer imprisonment if unable to make such reparation. (See Enforcement of Court Orders Act, 1926, as amended). There are, of course, instances, such as that of defamation, when because of the circumstances of the injury the law allows the reparation to be by such a sum as will be not only reparation but also a mark of disapproval or punishment. Moreover, it need hardly be said that certain acts, such as assaults, may be the subject of criminal as well as civil proceedings.
It is not, however, a feature of civil proceedings that the plaintiff can have the defendant detained in jail before the proceedings commence and keep him there unless he can obtain bail. Nor may he obtain a warrant to enter and search the defendant’s house or shop and seize goods and if obstructed break open any door and force or remove any impediment to such search, entry or seizure (see s. 205 of the Customs Consolidation Act, 1876). Nor yet is it a feature of civil proceedings that a plaintiff can put the defendant in jail because he cannot pay the damages awarded.
The vocabulary of s. 186 of the Act of 1876 is the vocabulary of the criminal law; the preliminary detention in jail unless bail be found (s. 197) and the right to enter, search and seize goods in a defendant’s house or premises (ss. 204 and 205) are, as yet, unfamiliar features of civil litigation. In their initiation, conclusion and consequences proceedings under s. 186 have all the features of a criminal prosecution. Note that Parliament in inserting directions in the form of conviction (set out in Schedule C to the Act and directed by s. 223 of the Act to be used) speaks unequivocally: I quote:
“Where the party has been convicted of an offence punishable by pecuniary penalty and imprisonment in default of payment.”
Finally, the mode of withdrawal of proceedings is the time-honoured formula employed by the Attorney General in criminal chargesnolle prosequi (s. 256).”
He reaches the conclusion that the offences in s. 186 of the Customs Consolidation Act, 1876, are criminal charges.
In relation to Casey’s Case [1930] I.R. 163 he says at p. 41:
” Casey’s Case is a case under the Income Tax Act. It is a case in which this Court took the view that the form of the proceedings largely determined the character of the proceedings. If anything, it is a case whose logic is against the respondents’ contention. But the respondents call in aid the reasoning of the judgments in the two Northern Ireland cases, Sherry’s Case and Firman’s Case , and they press upon the Court the absurdity of proceedings under s. 186 being considered civil when taken in the High Court and criminal when taken before a Court of summary jurisdiction. This is an impressive argument but its effect upon my mind is to say simply that the decision in Casey’s Case should not be extended. It would, as it seems to me, be even greater absurdity to pronounce proceedings under s. 186 to be civil in the face of every indicium of criminality.”
Lavery J. (at p. 9) adopted the judgment of Mr. Justice Kingsmill Moore J. in relation to the issue of criminality (with certain qualifications). In relation to Casey’s Case [1930] I.R. 163 Lavery J. says at page 10:
“I am by no means satisfied that proceedings under s. 186 of the Customs Consolidation Act are not distinguishable from the question in issue in Casey’s Case for reasons which I could state at length but which I think it would be inappropriate to do.”
And he reserved the right if the occasion should arise to consider whether proceedings by information by the Attorney General in the High Court are civil or criminal. As he said, it did not arise for decision then.
In order to apply the decision in Melling’s Case [1962] I.R. 1, it appears to me that one must examine the proceedings authorised by s. 500 for the recovery of penalties to see if the indicia of a criminal offence are present.
(a) Whether there is a crime against the community
The act out of which the penalty arises is the failure to make a return when required. Unless designated by statute as an “offence”, it seems to me that no person would regard failure to fill in a form and send it to the Revenue authorities as an offence. The failure to comply with the requirement to make a return of income has been designated as a statutory offence under s. 94, sub-s. 2 (e) (i) of the Finance Act, 1983, but we are not concerned here with an offence under that section.
Section 500 is devoid of all phraseology with criminal overtones, therefore there is no express statutory offence under that section. However, the plaintiff’s case is based on the argument that as there is a penalty there must be an offence. If an offence must of necessity be implied by reason of the existence of a penalty, I am satisfied it would be an offence against the community at large and not against an individual. The fact that the Inspector of Taxes can sue in his own name does not mean that he is entitled as an individual to the money. It is the Central Fund which is entitled to the penalty, i.e., the community at large.
(b) Whether the sanction is punitive, and failure to pay involves imprisonment
The sanction is first of all coercive. It is calculated to make taxpayers send in their returns within a limited time for fear of having to pay a penalty. If the coercive element does not work then it becomes punitive. I do not think it could be argued that a penalty of £500 for failure to make each return was not punitive. It is a penalty which is intended to pinch. However, if the penalty is not paid there is no provision for imprisonment.
(c) Whether mens rea is required
As to the existence of mens rea, it is not an ingredient in a failure to make a return of income. The penalty arises for failure to make a return, not because of a deliberate decision not to make a return. The fact that the liability to pay the penalty does not cease on death but continues against the estate of the deceased, indicates that mens rea is absent. Therefore not all the indicia enumerated by Kingsmill Moore J. apply to section 500.
The indicia mentioned by O’Dalaigh J. as not being features of civil proceedings and which were present under the customs code, namely power of arrest, detention, entry and search, imprisonment in default of payment
etc., are all absent in the provisions relating to penalties under section 500. Similarly while the vocabulary of s. 186 of the Customs Consolidation Act, 1876, was the vocabulary of the criminal law, under s. 500 the only word with criminal connotations is the word “penalty”, on which the whole argument rests. The mode of withdrawal of proceedings in a criminal case isnolle prosequi whereas under the Act of 1967 (s. 512), the Revenue Commissioners may stay or compound any proceedings for the recovery of penalties.
One of the positive characteristics of civil proceedings listed by O’Dalaigh J. is an obligation to make reparation. This is an element which is not present in the proceedings for the recovery of a penalty. But O’Dalaigh J. does give instances where the civil law goes beyond reparation and has the added mark of disapproval or punishment.
I accept the argument that the Oireachtas intended in s. 500 to create a non-criminal penalty recoverable in civil proceedings as shown by the clear power to sue in civil proceedings, the continuation of the liability for penalty after death, the absence of the vocabulary of the criminal law in contrast to s. 115 which speaks clearly of an “offence” for which the punishment is a”fine”. It is also in contrast to s. 94 of the Finance Act, 1983, which creates a criminal offence in respect of the same facts.
My conclusions are as follows. The concept of a penalty under the Income Tax Act, 1918, being a statutory debt recoverable by the State in civil proceedings and not a punishment for an offence, was accepted by the Supreme Court in Casey’s Case [1930] I.R. 163. The concept is not disapproved of or overruled in Melling’s Case [1962] I.R. 1. O’Dalaigh J. says it should not be extended. But it is not necessary to extend it in order to apply the same principle to this case.
Apart from the actual imposition of a penalty, all the indicia of a criminal offence which are present under s. 186 of the Customs Consolidation Act, 1876, are absent under s. 500 of the Income Tax Act, 1967. The element of whether there is a crime against the community can only arise for consideration if an offence is clearly established, which it is not.
Therefore, the requirement that a person who has failed to make a return when required to do so within a given time, should pay a penalty into the Central Fund, is not in my opinion indicative of a criminal offence and is not repugnant to the Constitution.
The Director of Public Prosecutions v A. McD.
99/14
Supreme Court
14 December 2016
unreported
[2016] IESC 71
Mr. Justice William M. McKechnie
December 14, 2016
In the matter of an appeal pursuant to Section 23 of the Criminal Procedure Act 2010
JUDGMENT
Legal Context:
1. In early 2014, at Dublin Circuit Criminal Court, the accused/respondent was found not guilty by a jury, on a direction of the trial judge, in respect of the following three offences, namely:-
(1) Count 1 – Burglary:
that on the 19th August, 2011, he entered the building known as the car park of a certain apartment complex in the inner part of Dublin City (identified by name and location in the indictment) as a trespasser and did commit an arrestable offence to wit: arson, contrary to section 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001;
(2) Count 2 – Endangerment:
that on the same occasion and at the same place he intentionally or recklessly engaged in conduct to wit: the setting alight of a particular motor vehicle, which created a substantial risk of death or serious harm to another, contrary to section 13 of the Non-Fatal Offences Against the Person Act 1997; and
(3) Count 6 – Arson:
that again on the same occasion and at the same place he did, without lawful excuse, damage certain specified property by fire, intending to damage the same or being reckless as to whether such property would be damaged, contrary to section 2(2) of the Criminal Damage Act 1991.
A nolle prosecui was entered in respect of the other counts on the indictment.
2. The DPP took objection to the preceding evidential rulings which directly led to the non-guilty verdicts being returned. She decided to invoke the provisions of section 23 of the Criminal Procedure Act 2010 (“the 2010 Act”), so as to appeal to this Court from the rulings so made. In broad terms she claims that the learned trial judge, in acceding to the applications made on behalf of the then accused person, erroneously excluded “compelling evidence” within the meaning of section 23(3)(a) and (14) of the said 2010 Act. That evidence was twofold in nature: first, certain CCTV footage which the trial judge ruled inadmissible during the course of a voir dire; and, secondly, a certain memorandum of interview which was excluded, when the issue of its admissibility arose, on the basis that the provisions of section 19 of the Criminal Justice Act 1984 had been wrongfully invoked and that there was therefore a doubt as to whether the accused person’s responses in the interview had been given voluntarily. As there was no further evidence of value against the accused, the trial judge directed the jury accordingly. As this is a “with prejudice” appeal, the DPP also seeks to have the accused re-tried for the offences above described.
Factual Background:
3. At approximately 9.10pm on the 19th August, 2011, a number of gardaí, in response to a call from a member of the public, arrived at the apartment complex in question. One such member, whom I shall call Garda Smith, observed a male, now known to be the respondent, on the inside of a gate to the car park underneath the apartment building. He was attempting to open the gate, but was unable to do so. He acknowledged that he was not a resident in the apartment block and said that he was simply trying to get out. At that point, Garda Smith, who earlier had been conscious of smelling smoke, observed that a car was on fire within the car park itself.
4. A short time thereafter, the accused was arrested and subsequently detained pursuant to section 4 of the Criminal Justice Act 1984 (“the 1984 Act”), which detention was extended once in accordance with the provisions of that section. During this detention, in which a number of items of his clothing were taken for examination, the accused was interviewed on three occasions. Nothing of evidential value derived from the first two interviews; during the third, however, he accepted that he was at the scene of the crime and that he was a trespasser on the premises in question, but denied that he had any responsibility for setting fire to the vehicle. He was released without charge at 12.30pm on the 20th August, 2011.
5. On the 24th August, 2011, Garda Smith obtained CCTV footage which appeared to show the incident in the car park and a man setting fire to the motor vehicle. He believed that this was the same man as the person he had first encountered on arriving at the complex. Sometime afterwards he obtained a piece of forensic information regarding the presence of petrol vapour on a petrol cap found beside the burned out car. Armed with this new evidence, Garda Smith obtained, on the 14th November, 2011, a warrant under section 10 of the 1984 Act, which authorised the re-arrest of the accused in the context of this incident. That warrant was executed some two days later.
6. On the 16th November, 2011, the accused, having been re-arrested, was interviewed on a number of occasions, one of which features heavily in this case. Thereafter he was charged with certain offences arising out of the incident above described, including the three specific charges set out at para. 1, supra. On arraignment, pleas of not guilty were entered in respect of all such charges. The essential evidence upon which the DPP proposed to rely at trial was the CCTV footage of the incident, as well as a memorandum of the third interview conducted on the 16th November, 2011, (sometimes referred to as the “section 19 interview”). In effect, as events show, without this evidence there was no other basis which could possibly justify a continuation of the prosecution.
The Objections:
7. The trial of the accused commenced before Her Honour Judge Berkeley in early 2014. At the outset of the hearing, after the jury had been sworn in but before counsel’s opening address, the trial judge agreed to hear and determine an objection to the admissibility of the said CCTV footage, and for that purpose embarked upon a voir dire. Subsequent to her ruling on that issue (para. 17, infra), the case proceeded on the further evidence available until Day 3 of the trial, when objection was made to the admissibility of the said memorandum on the basis that section 19 of the 1984 Act, as substituted by section 29 of the Criminal Justice Act 2007, had been wrongly invoked. Consequently there were two discrete admissibility rulings made at the trial which remain, apart from the procedure adopted, the essential issues on this appeal. One can perhaps add a third, which is that even if the section 19 objection is a good one, does this automatically render the resulting statement involuntary. Finally, depending on this Court’s decision on these points, the consequential issue of a re-trial may also have to be considered. First, however, a reference to the statutory provision by which the case has arrived at this Court.
The Criminal Procedure Act 2010:
8. By Notice of Appeal dated the 4th March, 2014, the DPP, in the grounds of appeal, described her challenge, inter alia, as relating to:-
“1. A Ruling made by the Trial Judge [which] erroneously excluded compelling evidence of the guilt of the Accused (within the meaning of Section 23(14) of the Criminal Procedure Act 2010), namely CCTV footage allegedly showing the Accused in the act of committing the offences with which he was charged.
2. A Ruling made by the Trial Judge [which] erroneously excluded compelling evidence of the guilt of the Accused (within the meaning of Section 23(14) of the Criminal Procedure Act 2010), namely evidence of Replies made by the Accused in the course of interview.”
As is therefore quite evident, the vehicle by which the instant appeal is moved is rooted on that nominated provision of the 2010 Act.
Section 23 of the 2010 Act
9. Section 23 of that Act, which provides for the possibility of a “with prejudice” prosecution appeal by the DPP (or, where appropriate, the Attorney General) in certain criminal proceedings, states as follows:-
“23.—(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director … may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
…
(3) An appeal under this section shall lie only where—
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) … which erroneously excluded compelling evidence or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.” (Emphasis added)
10. Section 23(14) defines the term “compelling evidence” as meaning evidence which:
“(a) is reliable,
(b) is of significant probative value, and
(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.”
11. The jurisdiction of this Court on such appeal is set out in section 23(11) of the Act, which provides that:-
“(11) On hearing an appeal under this section the Supreme Court may—
(a) quash the acquittal … and order the person to be re-tried for the offence concerned if it is satisfied—
(i) that the requirements of subsection (3)(a) … are met, and
(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,
or
(b) if it is not so satisfied, affirm the acquittal …”
12. Finally, the matters so referred to in section 23(12), to which the court shall have regard in determining whether to make an order under subsection (11)(a), are as follows: (a) whether or not it is likely that any re-trial could be conducted fairly; (b) the amount of time that has passed since the act or omission that gave rise to the indictment; (c) the interest of any victim of the offence concerned; and (d) any other matter which it considers relevant to the appeal. Thus, in order to grant the Order sought by the appellant and so quash the acquittal and order a retrial, this Court must be satisfied: (1) that the trial judge erroneously excluded compelling evidence and (2) that it is in the interests of justice to do so, having regard to all the circumstances, including the matters set out in section 23(12) of the 2010 Act. Whether the facts of this case demonstrate due compliance with these provisions is an issue to which I will return later in the judgment.
Issue No. 1: The CCTV Footage:
13. As above noted, counsel for the accused person indicated at the outset of the trial that he wished to challenge the admissibility of the CCTV footage. This objection was dealt with by way of a voir dire. The prosecution called two witnesses whose evidence, the DPP says in her submissions, proved the “provenance and authenticity” of the footage: Garda Smith, the investigating officer, was one, and the other was Mr Gerard Murphy (not his real name), property manager of both the complex and car park, who had access to the system and who on request supplied the impugned footage to the gardaí.
14. Garda Smith gave evidence that he requested CCTV footage of the incident from the property manager and that on the 24th August, 2011, he received same on a disc labelled “19th of August between 20.00 and 21.00”. Garda Smith stated that on viewing this footage he recognised the respondent as being the person who set the vehicle alight. He explained that:-
“The clothing and his height, his build, colour of his hair, Judge, more or less his demeanour, his gait, I recognise, I recognised that from the CCTV. I recognise him as the same person who I arrested … in that car park on the same night.”
15. Mr Murphy, who gave evidence as to his position and occupation within the complex and who had been on vacation on the date of the fire, stated that on the 22nd August, Garda Smith requested that he retrieve CCTV footage of the incident. He said that upon checking the recording, he observed a car being shaken by a few people, after which “there was a big light coming out of it.” He downloaded this footage onto a storage device, burnt the footage onto a disc and handed this disc to Garda Smith on or about the 24th August. Neither witness was cross examined and their evidence was uncontroverted.
16. At the conclusion of the prosecution’s evidence, defence counsel made an application to exclude the CCTV footage on the basis that it had not been properly proved. The accused submitted that no evidence had been put before the trial court to enable it to ascertain whether the footage was real evidence or hearsay; there had been no explanation, even in simple terms, of how the camera system operated. It was stated that in the absence of such evidence regarding the function and operation of the CCTV system, there was no way of knowing whether there had been any human intervention in the creation of the footage: accordingly, it was inadmissible. In response, counsel for the DPP submitted that the CCTV footage was real evidence and was not inadmissible hearsay; that it was not to be equated with computer printouts/records; and that the accused had not established that the probative value of the footage was outweighed by its prejudicial value such as would give rise to a significant risk of injustice.
The Trial Judge’s Ruling:
17. In ruling on the admissibility of the CCTV evidence, the learned trial judge held as follows:-
“Well, I’m going to decide the first issue that was raised by the defence, that’s in relation to the admissibility of the CCTV. CCTV footage may be a piece of real evidence or may remain as hearsay, the actual proof and the relevance of which depends on the evidence of others. Garda Smith and Mr Murphy have satisfied me as to the relevance of the CCTV footage but it has not been proved. That is, no evidence has been led by the prosecution to indicate whether or not the CCTV automatically records information by mechanical means without intervention of the human mind to make it admissible. No evidence has been adduced to this Court in relation to its basic workings, whether it operates on a time basis, time sequence or matters that would indicate it’s automated. It is clear from the authorities cited by the defence that before this Court can decide whether the CCTV is admissible, whether as direct evidence or hearsay, it is necessary for the prosecution to call the appropriate authoritative evidence to describe the function and workings of the CCTV system, which is in effect a computer, and I’m bound by the authorities in Murphy and in the Meehan case in this regard. This would involve proof of how the system works, its sequence date and time, recordings, rather simple matters to be put before the Court, and I don’t understand why the prosecution haven’t called that evidence. In the circumstances, this Court has no option but to hold that … the CCTV is inadmissible. And that then deals with the second objection.” (Transcript (Day 2), p. 8 line 20-34 and p. 9 line 1-5)
Cases Relied Upon:
18. As is obvious from the above, the trial judge considered herself bound by the decisions of DPP v. Murphy [2005] 2 I.R. 125 (“Murphy”) and DPP v. Meehan [2006] 3 I.R. 468 (“Meehan”) when ruling on this issue. Whilst it is important to note the conclusions reached in those cases, it is even more significant, however, to recount the authorities endorsed by the Court of Criminal Appeal in each of these judgments. But first a look at the decisions themselves.
19. Murphy was a case in which the accused person was convicted by the Special Criminal Court of conspiracy to cause the Omagh bombing. One of the grounds of appeal related to the admissibility of telephone records, established by reference to cell mast information, which were introduced so as to show a pattern of communication between Mr. Murphy and other relevant persons both prior to and subsequent to this atrocity, which was one of the worst outrages in the history of Northern Ireland. Having heard evidence from the prosecution witnesses called on this issue, the court, being satisfied that all necessary evidential requirements had been established, held that such records were admissible, first, on that basis, and, secondly, as falling within the provisions of section 5(1) of the Criminal Evidence Act 1992 (see, however, McGrath, Evidence , 2nd Ed., (Dublin, 2014) at para. 5-189).
20. On appeal, the Court of Criminal Appeal (“the CCA”) was of the view that the fact that a recording is produced mechanically without human intervention “makes no difference to its general admissibility in evidence”. The Court further took the view that such applied not only where the device in question processes information supplied to it, but also where the device itself gathers information. It cited several English authorities for these propositions, the most relevant of which are considered at paras. 22 to 27 and 50 to 55 of this judgment.
21. The second Irish case relied upon by the learned trial judge was Meehan, in which the prosecution introduced a print out of telephone traffic between mobile phones used by Mr. Meehan and two other individuals. Evidence was adduced to establish that the phones in question were assigned to or were otherwise habitually used by such persons. The Court of Criminal Appeal rejected a defence argument that the proffered records were inadmissible on a variety of grounds, including that of hearsay, and reiterated what previously had been stated in Murphy. Apart from its own importance, however, the decision did not add in substance to what was concluded in the earlier case. Accordingly, save as otherwise appears, any further reference to Murphy should be read as including Meehan.
English Case Law:
22. The first of the cases cited for the CCA’s analysis in Murphy was that of The Statue of Liberty [1968] 1 W.L.R. 739, in which the plaintiff sought to admit in evidence a film of echoes recorded by radar at a shore station which was unmanned at the time. The defendants had argued that evidence produced mechanically and without human intervention was inadmissible as hearsay. Rejecting this submission, Sir Jocelyn Simon P. said:-
“If tape recordings are admissible, it seems that a photograph of radar reception is equally admissible – or indeed, any other type of photograph. It would be an absurd distinction that a photograph should be admissible if the camera were operated manually by a photographer, but not if it were operated by a trip or clock mechanism. Similarly, if evidence of weather conditions were relevant, the law would affront common sense if it were to say that those could be proved by a person who looked at a barometer from time to time, but not by producing a barograph record.”
23. In R. v. Wood (1982) 76 Cr. App. R. 23, the prosecution sought to secure a conviction for handling stolen metal by proving that the chemical composition of the recovered goods corresponded with that of the remainder of the original consignment which had not been stolen; subject to this being established, the origin of both could then be verified by reference to a log sheet and stock book created at the time of manufacture. This was a complicated exercise involving a team of scientists who had recourse to specialised equipment, the results of which were then fed into a pre-designed computer programme. When completed, the resulting printout recorded the chemical composition of the metal samples analysed. Even though such an exercise could have been done manually, the same would have involved “a laborious mathematical process”. Notwithstanding objection being taken, the evidence was allowed in and was instrumental in securing the conviction of the accused person.
24. Lord Lane C.J., in giving the judgment of the Court of Appeal (Criminal Division), was of the opinion that such a printout was not hearsay but more properly should be treated as a piece of real evidence, even if its actual proof and relevance depended upon the evidence of others. The learned Chief Justice continued:-
“Witnesses and especially expert witnesses frequently and properly give factual evidence of the results of a physical exercise which involves the use of some equipment, device or machine. Take a weighing machine; the witness steps on the machine and reads a weight off the dial, receives a ticket printed with the weight or, even, hears a recorded voice saying it. None of this involves hearsay evidence. The witness may have to be cross-examined as to whether he kept one foot on the ground; the accuracy of the machine may have to be investigated. But this does not alter the character of the evidence which is being given.”
Further examples of evidence being regarded as real and not hearsay include the use of a speedometer and that of an electronic calculator.
25. Similarly, in Castle v. Cross [1984] 1 W.L.R. 1372 it was held that evidence from a statutorily approved Intoximeter 3000 breath testing machine was admissible on the basis that it was a tool, albeit a sophisticated one. There had been no challenge to the competence of the operator or to the efficiency of the machine. Accordingly, the printout was the product of a mechanical device, which fell into the category of real evidence. It is to be noted also that the court was prepared to apply a presumption, in the absence of evidence to the contrary, that “mechanical instruments were in order at the relevant time” ( Cross on Evidence , 5th Ed., (1979) at p. 47).
26. The CCA in Murphy also referred to the case of R. v. Spiby (1990) 91 Cr. App. R. 186, which involved a computerised “Norex” machine which automatically recorded certain information about telephone calls made from a hotel bedroom. A printout of these call records, containing details such as the time and duration of the call, the numbers dialled and the cost, was admitted as real evidence. The judgment of the court (Taylor L.J.), which held that where information is recorded by mechanical means without the intervention of the human mind, the record made by the machine is admissible, went on to state that:-
“We consider that the learned recorder was right in the present case to conclude that the computer print-outs from the Norex machine were real evidence. This was not a print-out which depended in its content for anything “that had passed through the human mind”. All that had happened was that when someone in one of the rooms in the hotel had lifted the receiver from the telephone and, with his finger, pressed certain buttons, the machine had made a record of what was done and printed that out. The situation would have been quite different if a telephone operator in the hotel had had herself to gather the information, then type it into a computer bank, and there came then a print-out from that computer. There the human mind would have been involved, that would have been hearsay evidence, and sections 68 and 69 would have been in point. However, in the present case, no such intervention of the human mind occurred. What was recorded was quite simply the acts which had taken place in regard to the telephone machinery and there was no intervening human mind.” (Emphasis added)
See also R. v. The Governor of Brixton Prison, Ex p. Levin [1997] A.C. 741.
27. Finally, and of some significance, Kearns J. in Murphy stated that the cited authorities as discussed in that judgment must now be read subject to the decision in R. v. Cochrane (1993) Crim. L.R. 48 (“R. v. Cochrane”), in which it was held by the Court of Appeal (Criminal Division) that before the judge could decide whether the computer printout in that case should be treated as real evidence or as hearsay, it was necessary to call appropriate authoritative evidence to describe the function and operation of the computer in question. This is an issue which I will again refer to later in the judgment (paras. 50–55, infra).
Submissions of the Parties to this Court:
28. The position adopted by each party and their respective submissions on this point are in substance the same as those advanced before the trial judge (para. 16, supra). The appellant seeks, inter alia, to disturb the ruling as given, whilst the respondent relies upon the arguments made at trial and accepted by the trial judge. Both parties cite the same general authorities on this issue.
29. The appellant submits that the trial judge erred in equating CCTV footage with computer records, as the latter may require information, either wholly or in part, to be implanted by human agency. If such be the case, the computer records are tantamount to a statement made by the person who inputted the information into the machine and thus amount to hearsay. R. v. Coventry Justices, Ex parte Bullard (1992) 95 Cr. App. Rep. 175 (“R v. Coventry Justices”) and Myers v. Director of Public Prosecutions [1965] A.C. 1001 (“Myers”) feature examples of printouts/records of such a nature. On the other hand, some device or computer records may be produced automatically/mechanically without any human intervention; computer printouts or records in this latter category are admissible as real evidence and do not constitute hearsay. (The Statue of Liberty; R v Wood; Castle v Cross: R. v. Spiby.) As a result of this distinction, it may be necessary in a given situation to determine which kind of computer record is at issue: if the former, then the record itself is inadmissible hearsay (unless admissible under a statutory exception to the hearsay rule); if the latter, the record is admissible as real evidence and does not constitute hearsay.
30. The DPP, whilst agreeing that evidence in respect of the functioning of a computer must be called before such printouts/records are admissible (R. v. Cochrane), argues that this is not required in respect of a CCTV recording, which is the result of an independent automated process, unconnected with human input. Consequently, there is no necessity for the court to inquire into or for the prosecution to prove the function and operation of a CCTV camera, such as that in this case, as it merely records such images as are within its line of vision at any given time. Thus, it is said that the CCTV footage fits into this description of being produced without human intervention and, accordingly, that the trial judge’s ruling was incorrect as a matter of law.
31. The appellant furthers this distinction by suggesting that if the arguments advanced on behalf of the respondent are correct then this would have “absurd results”. For example, if CCTV footage was found in a person’s home which showed that person committing a murder, the same would be inadmissible in the absence of evidence concerning the type of camera or system used to record the footage: this would be an absurd situation and clearly unjust.
32. Consistent with this argument, the DPP also says that the lack of evidence, if such be the case, as to the date or time of the footage, its sequence, or whether it had been edited, might be factors which go to the weight or reliability of the evidence, but would not of themselves render the footage inadmissible as hearsay. Likewise, other details – such as whether the camera is wall-mounted or handheld, records continuously or in bursts, is motion-activated or constantly switched on, is static or swivels, or requires to be switched on and off to commence and conclude recording – all may be relevant, but not as to admissibility. In essence, it is said that in dealing with real evidence, the Court must merely satisfy itself as to the authenticity of that evidence; issues of weight are matters for the jury (R v. Robson; R. v. Harris [1972] 1 W.L.R. 651) (“R v. Robson & Harris”).
33. Finally on this point, the appellant submits that the prosecution adduced sufficient evidence to prove the “provenance and authenticity” of the recording, as well as the chain of custody in respect of the obtaining, retention and safekeeping of same. It is also pointed out that the defence did not cross-examine the prosecution’s witnesses or raise any issue with them regarding potential defects in the recording of the footage.
34. The respondent, on the other hand, submits that in the absence of appropriate evidence one simply does not know how the process of recording took place or how the system functions. One therefore cannot say whether the CCTV records everything in its line of vision, or whether some individual is involved in what is recorded and how the system works. If some person was involved in activating its operation, in choosing what might be recorded and when, or in fixing the angle of the camera, then such human intervention would render it hearsay and thus inadmissible. Whilst the distinction between hearsay and real evidence is accepted, nonetheless the trial judge simply had no evidence upon which she could make that decision in this case.
35. It was not suggested that the required evidence should be highly technical or that it should necessarily be tendered by some qualified expert in this field. The property manager would suffice to show matters such as whether it was automated, whether the date and timing was correct, what the angle of the camera was and whether the images can be enhanced. None of this material, however, was before the court. As a result, in the respondent’s view one simply does not know what one is looking at.
36. Several of the English authorities above mentioned were referred to by the respondent, but there was a high degree of emphasis on both the Murphy and Meehan cases. Furthermore, in answer to any suggestion that the court might be able to draw appropriate inferences, it was submitted that such an approach was not available given the standard of proof applicable in a criminal trial. Accordingly, the respondent submits the trial judge was legally correct in the decision which she arrived at.
Decision/Discussion:
37. It is undoubtedly the case that the learned judge felt bound by both Murphy and Meehan in reaching this decision. These cases state that a recording which is produced mechanically without human intervention is generally admissible in evidence. They also analyse the case law relied upon for this conclusion, within which are found examples of certain printouts/records from machines or computers which satisfy this requirement and others, which depend on human input, which do not (para. 29, supra). Furthermore, in the CCA’s view such decisions were now be read through the lens of the judgment in R. v. Cochrane. So, in effect, the trial judge held that an assessment on a case by case basis is required in order to determine the admissibility of the CCTV footage.
38. Despite being conscious of the distinction above described, the transcript of the proceedings does not suggest that the trial judge determined that the CCTV footage in this case had required human input or intervention of such a kind as to render the material hearsay. This is not my understanding of her ruling on this matter, and I do not read what she said as saying that the footage was inadmissible because it was hearsay. Indeed, the trial judge herself, having expressly made the point that in her view the footage may be a piece of real evidence or it may be hearsay, then continued [that in any event] “no evidence has been led by the prosecution to indicate whether or not the CCTV automatically records information by mechanical means without intervention of the human mind to make it admissible.” It is thus clear that because of this evidential void, as she saw it, the DPP had not discharged the onus of properly proving to the required standard which side of the divide this footage, and the process by which it was created, should be placed on. Accordingly, I accept the respondent’s submission that the trial judge did not make a ruling that the CCTV footage was hearsay.
39. The case law, certainly at a specific level, does not establish – and it is also highly doubtful if it even supports – a requirement for such an exercise in respect of this type of footage. The Statue of Liberty involved a film of radar echoes showing the movements of two ships; R v. Wood, a printout from a computer, otherwise described as a tool or sophisticated calculator; R. v. Spiby, a computer printout from a Norex machine; with Castle v. Cross relating to a further printout, but on this occasion from an intoximeter machine. None of these involved CCTV footage. Equally so, it is abundantly clear that the disputed evidence in Murphy and Meehan did not involve this type of material, as the relevant point in both cases related to the admissibility of telephone records.
40. The possibility of the evidentiary output of any of these devices or machines constituting hearsay existed because, without having heard evidence as to how the particular apparatus worked, the court/jury could not be sure whether that record/printout was merely displaying information fed to it by a person, or whether it had been produced without intervention by a human mind. Without evidence to explain the functioning of the machine, the court simply would not have known how the evidence was generated. This is not the case in respect of CCTV footage (see paras. 45-48 and 55, infra). Therefore it is difficult to see how these cases could be a direct basis for or justify the conclusion so reached by the learned judge.
41. The two decisions referred to at para. 29 above, in which the court held that certain printouts were hearsay, derived from the classical use of computers and in any event once again did not relate in any way to CCTV footage. Myers was a case in which the prosecution sought to identify stolen motor vehicles by their cylinder block and chassis numbers. These had been entered on cards by the actual workmen who inspected the vehicles as they passed through the assembly line, and had later been microfilmed. The only witness at trial was the operative who produced the microfilm: no workman was called. The most that could be said was that the microfilm was accurate if the original record of that particular motor vehicle leaving the factory works bearing those particular numbers was correctly made. The witness could not prove that the record was correct or that the numbers which it contained were in fact the numbers of the cars the subject matter of the indictment. In R v. Coventry Justices it was accepted that the outputs recorded on a computer printout were, or were derived from, information implanted by a human who was not available to give evidence in that particular case. Accordingly, it seems evident that the tendered evidence in both of these cases was clearly hearsay. Therefore none of the case law, as referred to in Murphy and Meehan and as analysed above, supports the proposition underlying the ruling of the learned trial judge.
42. A distinction, at the level of principle, is said to exist between computer printouts and the external records produced by other types of machines, in particular those of a CCTV camera; this, according to the DPP, can be deduced from the case law. She acknowledges that if the system in this case is to be equated with a computer, then her objection to the ruling by the trial judge is considerably weakened; however, she strenuously disputes that this is so, submitting that as the underlying process is fundamentally different from that of a computer, the resulting evidential product must likewise be so regarded.
43. I very much doubt the utility of a court having to decide whether a particular appliance is or is not a computer, an issue I suspect that many authoritative figures could argue about long and hard. With technology being ever so complex, a trend likely to continue, it seems to me that such an exercise could be both difficult and time consuming as it may involve a detailed analysis of the intricate components of any such system. Indeed, for the purposes of the legal issue in debate, even a resolution of such matter may not be determinative. Accordingly, in my view it is not essential to the issue under consideration and therefore one should not enter the classification debate on this point. Rather, in light of the objection raised, the focus must be on deciding whether or not there was human intervention in any part of the process which impacted directly on the content generated, upon which the prosecution intended to rely.
44. As is evident from what previously has been outlined, the hearsay/real evidence debate in the case law referred to, occurring as it does at the level of pure admissibility, is heavily centred on whether the particular machine, device or apparatus operates automatically and without human intervention, on the one hand, or whether human intervention is required, on the other. If the latter it is to be regarded as hearsay and, subject to well established rules, may or may not be admissible. If the former it is to be regarded as real evidence. As earlier stated, examples of both categories can be found in the relevant authorities, some of which are summarised at para 29, supra. Therefore a key question on this aspect of the appeal is whether the trial judge was correct as a matter of law in concluding that the footage tendered could amount to hearsay.
45. It seems to me that it is of the first importance to appreciate what human intervention in this context means, and what type of such intervention will be required before the disputed evidence should be regarded as hearsay. Without conducting an exhaustive study it is not possible to know how all CCTV systems work, even if one were to disregard all other devices. It is patently obviously, however, that not every one of them operates in the same way. Whatever the particular functionality might be, it is almost certain that without some input none of them could function at all.
46. Apart from its manufacture and assembly, it will be necessary to position a CCTV camera and its associated equipment in such a manner that images are recorded and that in the event of a power disruption some back-up system is in place. In addition, for example, so simple a matter as whether the system by default records all of the time, or requires to be switched on and off according to a person’s command, or is time, date, event or motion-related, will naturally have a significant bearing on the footage captured by that system. So too could a camera with any kind of “zoom” function be effected, in part, by input by a human user monitoring the camera. Depending on the functionality of the system, there may be a number of other ways in which the operation of a CCTV camera could be said to have been influenced by human intervention. A simple illustration is that a camera, at least when commissioned or installed, does not start a recording without someone pressing the “record” button, so even at a most basic level there will always be some from of human intervention in one sense of the word.
47. However, it is not clear how intervention of this kind would render CCTV footage hearsay. The content of the footage, the actual recording made by the camera in question, is not dependent on human intervention, even if, for example, it requires to be initiated by the command of a human operator. This distinction, it seems to me, is what the case law in this area is driving at, with the phraseology used by Professor Smith in his article on The Admissibility of Statements by Computers [1981] Crim. L. R. 389 being particularly apt, namely, “… hearsay invariably relates to information which has passed through a human mind …” This passage was approved in R v. Minors; R v. Harper [1989] 1 W.L.R. 441 and in Spiby.
48. Accordingly, it is not mere human intervention in the operation of a machine (for example, turning it on and off, or the initiation of a process) which renders its output hearsay; such human intervention must directly go to the very content of the printout or record itself. Thus it is somewhat difficult to see how CCTV footage could ever truly be equated with a computer printout which relied on human input for its content; the camera simply records whatever is in its field of vision. Such footage thus does not readily fit into the category of an out-of-court statement. Phipson on Evidence so agrees (18th Ed., 2013, at paras. 28-28 to 28-29). In essence, therefore, it is very difficult to see how such footage is to be regarded as hearsay, for the simple reason that it does not amount to a statement by some person who made a critical input giving rise to its content. Rather, at least at the level of principle, it is correctly classified as real evidence. In this regard see also the judgment of the Court of Appeal (Birmingham J.) in DPP v Kirwan [2015] IECA 228 at paras. 37 and 38. Therefore it follows that evidence of the functionality of the system is not necessary so as to arrive at this conclusion.
49. At the outset of her ruling (para. 17, supra) the learned trial judge stated that the footage in question may be hearsay or it may be real evidence, an issue which she could not decide upon in the absence of any evidence to indicate whether or not there had been human intervention in its creation. It seems quite clear, therefore, that in her view such evidence was required to determine this point. She did not expressly suggest any other purpose for its reception. However, on my analysis of the law, this question simply does not arise. It therefore follows that the trial judge relied upon authorities which are not applicable to CCTV footage. Insofar, therefore, as she based her decision on the absence of evidence to decide the hearsay/real evidence issue, I believe that she was incorrect in the ruling so made.
50. I do not believe that the decision in R. v. Cochrane impacts upon this view. Briefly stated, the accused was charged with three counts of theft by withdrawing cash from his account with a building society, an employee of which had erroneously credited that account with an amount far in excess of the sums lodged. The prosecution wished to rely on the printout from the ATM machine, also in the judgment called a “till roll”, created at his local branch. The information on that printout showed, inter alia, the amount of the withdrawals, which could not have been recorded unless the ATM had received information linking his PIN number and card with his particular account. This data was not inputted at the point of withdrawal, but rather came from a mainframe computer located elsewhere. In the absence of any evidence about that computer, the issue of admissibility arose.
51. In its consideration of this issue the Court of Appeal (Criminal Division) referred to two statutory provisions of potential relevance (since repealed), namely, section 69 of the Police and Criminal Evidence Act 1984, which dealt with evidence from computer records, and section 24 of the Criminal Justice Act 1988, which applies to the admissibility in criminal proceedings of a statement in a document, inter alia, created in the course of a trade, business, profession or occupation. This provision is similar to section 5 of the Criminal Evidence Act 1992 in this jurisdiction. The judgment then continued by making the following observations:-
“In the end, however, it is clear that, whether or not the judge’s view was that section 69 of the 1984 Act applied or that at least some of the entries in the till rolls relied upon by the prosecution were real evidence in the sense that they were direct evidence of the transactions carried out, it was necessary for evidence to be adduced on behalf of the prosecution to explain how each of the relevant pieces of information on the till roll came into existence. In particular, it was necessary that appropriate authoritative evidence should be called to describe the function and operation of the mainframe computer, including the extent to which it brought to bear information stored within it in order to validate a transaction and to enable an appropriate record to be made on the till roll. …
… [W]hat [the trial judge] required was authoritative evidence about the operation of the relevant machines rather than legal authority. Without the basic evidence, it is impossible for this court to decide whether or not section 69 of the Act of 1984 could have been applied. We are satisfied that the prosecution failed to adduce adequate evidence to enable the court to rule properly that the till rolls were admissible evidence; and, in the absence of the till rolls, the prosecution case could not be proved.”
52. It is somewhat unclear whether these passages were intended to address solely the statutory provisions in question, in which event their relevance would be restricted and would not require further consideration in this case, or whether such were to apply to computer material only, or even more broadly were to cover the admissibility of printouts generally. This lack of clarity may lead to a possible view that R. v. Cochrane in effect requires evidence of the workings, function and operation of a machine regardless of which side of the hearsay/real evidence divide the machine falls on. This may have been what the trial judge had in mind when one considers what further she said on this point.
53. Having drawn attention to the absence of any evidence as to the “basic workings of the system”, giving as an example of same the question of whether it operates on a time basis or time sequence, the learned judge went on to say that:
“Before this Court can decide whether the CCTV is admissible, whether as direct evidence or hearsay, it is necessary for the prosecution to call the appropriate authoritative evidence to describe the function and workings of the CCTV system, which is in effect a computer, and I’m bound by the authorities in Murphy and in the Meehan case in this regard.”
She characterised the requisite evidence as “simple matters” – proof of how the system works, its sequence, the date and time, how it records – and said she could not understand why the appellant had not adduced same. In its absence, the CCTV footage was inadmissible. Quite clearly, therefore, in so stating, she very much had in mind R v. Cochrane, and perhaps understandably so, given that it was cited with approval in both Murphy and Meehan.
54. In my view, however, Cochrane does not require evidence of such a nature in respect of the workings of a CCTV system, whose output, as I have said, must be regarded as real evidence. That decision related to the absence of any evidence to explain how critical information contained in the till roll came into existence. All that was established as to how the ATM associated the applicant’s PIN number and card with his bank account was that it was dependent on a mainframe computer about which nothing was known, not even its location. The same concerns would not appear to have arisen if all of the information was generated solely by the branch computer, which was the only device about which evidence was tendered at trial. Therefore it may well be to over-read the judgment even to say that it applies to all computers. Whether this is correct or not, the facts of the case are wholly different from those in the instant situation.
55. Quite obviously, without someone giving evidence as to the workings of the mainframe computer, no trier of fact could be expected to understand how such a machine operates or even what its function or role was in the overall process. The same could not be said of a CCTV camera, as such devices have become ubiquitous in everyday life and their essential purpose and operation would be readily apparent to any reasonable person, even if an explanation at a scientific or technical level might understandably be difficult for most members of society to follow. Therefore, in my opinion Cochrane was addressing a device which cannot be equated to the system in play in this case. Consequently, I do not accept that the judgment as such applies to a CCTV system. This conclusion, however, is not necessarily the end of the evidential inquiry.
56. The finding that this type of evidence should be regarded as real evidence should not in any way be read as suggesting that the admissibility of such footage can never be challenged; far from it. It is not the case that CCTV evidence should, without exception, go to the jury. The essential point decided by this judgment is simply that the actual footage recorded by a CCTV system is not hearsay and therefore is not open to objection on that ground; however, all other sustainable grounds of objection continue to apply.
57. Depending on circumstances there are many matters capable of giving rise to concern regarding such evidence, including any discontinuity in the recording, parts being unintelligible or indecipherable, or segments being of substandard quality either visually or audibly. The potential for manipulation, editing or tampering may or may not give rise to issues. In addition, it seems evident that a person operating the parameters by which the camera records ( e.g. by switching it on and off, the tracking of a particular object or person, its directional focus etc.), although not altering the content of the footage which is actually recorded, can play a significant role in determining what evidence is produced, what evidence could have been produced and what is excluded.
58. Like all pieces of evidence, CCTV footage must be proved in an appropriate way and to the required standard. I do not accept that some notion of judicial notice, or any similar type of approach, plays any part in satisfying this requirement, nor do I believe that there exists any type of presumption to the effect that security systems operate as designed or function as intended (see para. 25, supra). In the established phraseology, the evidence should prove the provenance and authenticity of the footage; the recording must be intelligible and of sufficient quality, and must also be relevant and have probative value. In addition, the party seeking to adduce such evidence must be able to account for its history from the moment of its recording until its production in court, this to exclude the possibility that it may have been interfered with (R v. Robson & Harris). Obviously, it is open to the accused person to test this evidence in the normal way and to raise any admissibility objection that might be open to him on both the law and the facts: the exclusionary rules, fair procedures, illegality and unconstitutionality come to mind. However, once the above requirements are satisfied, then the material in question will normally be available for consideration in the same way as any other piece of real evidence so tendered.
59. Finally, could I say that CCTV is now frequently used in a great number of criminal trials and is often described as “best evidence”, and it is difficult to argue with that perception. Equally, however, that same characterisation of the evidence is the very reason why courts must remain vigilant to ensure the integrity of each piece of such evidence used in the prosecution of an accused person.
60. In this particular case the concerns of both the respondent and the trial judge related to matters such as whether the date and timing of the recording were accurate, how was the camera mounted, i.e. in a fixed position or rotating, whether the recording captured everything within its line of vision and, finally, whether the recorded images could be enhanced. Given the evidence of both Garda Smith and Mr. Murphy, these points are not of significance, particularly so when the disc is viewed. It is not at all clear, for example, how the movement of the camera could have a bearing on whether the footage captured by it was hearsay: rather, it seems that these matters should properly be considered as going to weight or credibility but not to admissibility. Moreover, even at the most general level it is impossible to see how such objections could be seen as a basis on which to exclude the evidence.
61. It will be recalled that the investigating garda timed his arrival at the complex and at that point observed an individual whom he later identified in the footage as being the accused person. He also witnessed a significant part of the incident, then ongoing. The images as recorded showed that very incident, the subject matter of the investigation. Thus, quite evidently, the footage was recorded at a time which coincided with the garda’s arrival and presence at the scene. In any event, the recording itself expressly gives the date and timing of events, both of which can be taken as accurate as the same were verified by Garda Smith’s evidence.
62. Whether the camera was in a fixed position or capable of rotating may be relevant if it was suggested that matters pertinent to the investigation or to any defence point were recorded but not produced as part of the download; however, no such suggestion has been made. In addition, however, the footage clearly shows that the angle of each camera does not move and that they recorded what was in their line of vision. Moreover, no objection was raised to the competence of Mr. Murphy to download and burn the relevant footage, nor was it alleged that he did so incorrectly. Likewise it was never argued that the footage in question had been edited, tampered with or fabricated in any way. Accordingly, I am entirely satisfied that when the footage is considered in conjunction with the evidence given, the DPP had discharged the evidential requirements to the required standard.
63. Therefore, to summarise the general law on this issue:-
(i) CCTV footage, as a matter of principle, should be regarded as real evidence and not as hearsay; evidence as to its operation and functionality is therefore not required to establish this;
(ii) If specific circumstances should put this distinction or conclusion in issue, the same should be determined in the normal way;
(iii) Material generated by other machines or devices, such as computers, may either be hearsay or real evidence; this depends on whether or not what is sought to be tendered is the direct product of human intervention;
(iv) Human intervention in this context means that such material has passed through a human mind and is simply reflective of human input;
(v) CCTV footage does not enjoy any evidential presumption, nor should a court take judicial notice of it;
(vi) Rather, it must be proved in an appropriate manner and to the required standard; depending on challenge or concession this will, in part, be case specific;
(vii) In general, its provenance and authenticity must be established, as must any other material requirement normally associated with real evidence, such as relevance, probative value etc;
(viii) Objection to its admissibility may be taken on any sustainable ground, including those covered by the exclusionary rules, or such other as may arise on either the facts or the law of the case;
(ix) As with any piece of admissible evidence, its weight, value and credibility are matters for the jury;
(x) Because of its potency, care must be exercised to ensure the overall integrity of such evidence.
64. Accordingly, the ruling of the learned trial judge on this issue was incorrect.
Issue 2: The Memorandum of Interview
65. As above indicated, the respondent maintained his right to silence during the first and second interviews held on the 19th and 20th August, 2011. During the third interview, having stated that he was on the premises because he had followed a group of kids in there, that he had seen smoke and flames, and that when he had tried to get out the gardaí were in his way, the following relevant exchange took place:-
“Q. So what business had you being in the car park?
A. No business, I was trespassing.
Q. Had you permission to be in the car park?
A. No.
Q. Why did you follow [the kids]?
A. ‘Cos I thought something was happening, which it was. I just went down then.
Q. How long were you in there before guards arrived?
A. Two minutes, literally, probably less.
Q. If we have CCTV will it show you at this car that burned out?
A. No.”
66. On his re-arrest in November, 2011 the respondent, as previously stated, was again interviewed on three occasions. During the first and second interviews he was questioned in a manner much more specific than at any time during his first period of detention. In fact, much of what was put to him during these interviews stemmed from the availability of the CCTV footage and the results of the forensic testing of the petrol cap, two pieces of fairly crucial evidence not in the possession of the gardaí on either the 19th or 20th August, 2011. To all such questions his answers were entirely uninformative.
67. Immediately prior to the commencement of the third interview on the 16th November, the gardaí invoked section 19 of the Criminal Justice Act 1984, as substituted by section 29 of the Criminal Justice Act 2007 (“section 19 of the 1984 Act”). As I will be dealing with the section in some detail in a moment, it is sufficient to say at this point that, in certain circumstances and subject to certain conditions, if a person fails or refuses to account for his presence at a particular place at or about a particular time, then in his subsequent trial the court may draw such inferences from that failure or refusal as appear proper.
68. Thereafter, the third interview (or “the disputed interview”) commenced and during the course of the question and answer session the following exchanges took place:-
“Q. Were you present when the car was set on fire?
A. I’m telling you I was there, yeah.
Q. What were you doing at the car?
A. I don’t remember, I was out of my head.
Q. At any stage when you were present in there did you stop to think of how dangerous your actions were?
A. I can’t remember my actions.
Q. Is there any reason for or have you any defence for your actions in committing criminal damage to [an identified motor vehicle] on the 19th August, 2011, in the car park of [the complex in question]?
A. I can’t really remember, there could have been because I was there.
Q. Is there any persons you are going to rely on as a witness or as an alibi regarding the criminal damage to [the said car]?
A. I have nobody to rely upon. I couldn’t give a rat’s ass at this stage. I’ll go home and blow up the whole apartment block. Stick that in it as well.
Q. Is there anything you want to say to the people that were affected by this car going on fire?
A. I’d like to say sorry to everybody that was affected.
Q. Did you mean to damage the apartment block itself?
A. No.”
69. At trial the prosecution did not in fact seek to rely on the provisions of section 19 of the 1984 Act; rather, they took the view that this evidence amounted to an express admission by the accused that he was present when the car was set on fire and an implicit admission that he was responsible for such fire and the damage so resulting.
70. The accused challenged the admissibility of the memorandum of this interview on a number of bases, only one of which has any continuing relevance as the rejection of all other grounds has not been appealed to this Court. This was that the gardaí had no lawful authority to invoke section 19 of the 1984 Act because during the course of his previous detention he had given an account of why he was at the complex on the night in question and what he was doing there. Accordingly, it was submitted that there had been no failure or refusal to account within the meaning of the section.
The Trial Judge’s Ruling:
71. On that issue, the trial judge ruled as follows:
“In relation to the last argument [based on this objection], I have concerns in relation to the invoking of section 29 [of the 2007 Act] in this case. Initially Mr McD gave most of his answers as ‘no comment’ on the 19th of August 2011. However, in the later part of the interview of the 20th of August 2011, [he] gave an account of his presence at [the complex] for the evening/night of the 19th of August 2011. He stated that he saw four or five youths or kids running into the car park and he followed them to see what was happening and he saw smoke and flames so he turned around and tried to get back out of the gate and the gardaí were standing in his way. In this case the memorandum of interview would not be admitted so that the jury could be invited to draw inferences from [his] silence because he answered all of the questions put to him apart from one question during his absence on the — during his presence on the CCTV which would not go to the jury in any event. In the circumstances, section 29 of the 2007 Act does not apply where an account has been given and I’ve taken into account and I am bound by the decision of the Court of Criminal Appeal in the case of the DPP v. Devlin and I note the comments of Judge Fennelly in this regard. ‘Section 29 only operates where there has been a failure or refusal of a person to account for their presence.’ This was not the case for Mr McD. [He] elaborated somewhat on his initial account in his later interview in November, but I have a concern that he did so under some duress and under an illegitimate pressure under the threat of section 29. The question therefore arises whether his engagement was of a voluntary nature and I have concerns in this regard, particularly having seen the video of the interview, and in the circumstances I am not satisfied beyond a reasonable doubt as to the admissibility of the interview.”
Submissions on behalf of the appellant
72. The appellant makes three broad submissions on this point: first, that the trial judge erred in the application of DPP v Devlin [2012] I.E.C.C.A. 70 (“Devlin”); secondly, that she likewise erred in treating the account given by the accused on the 19th/20th August, 2011, of his presence at the incident location as a bar to the invocation of section 19 of the 1984 Act in the subsequent detention; and, thirdly, that even if section 19 had been wrongly invoked, the learned judge was also incorrect in holding that the replies recorded in the memorandum of interview resulted from duress or other illegitimate pressure simply because of the invocation of that section. Evidently the last point will not arise if the ruling regarding the use of section 19 cannot be sustained.
73. The DPP submits that the gardaí were lawfully entitled to activate the provisions of section 19 of the 1984 Act and that the replies given during the third interview on the 16th November, 2011, could not be regarded as having been given under duress or illegitimate pressure simply due to the invocation of that section. If the learned trial judge was correct, it would mean that a suspect who remained silent could have inferences drawn from that fact to prove his guilt, whereas the suspect who gave highly inculpatory answers could not have them used against him at trial. There is, it is said, no logic or authority to support such a proposition.
74. It is also said that at the relevant time, fresh evidence had come to light and that the second arrest and detention of the accused had been lawfully authorised. Furthermore, the gardaí explained the relevant statutory provisions, which, with the benefit of legal advice, the accused clearly understood. In addition, there is nothing in the section which prevents its use in a subsequent interview even where a suspect has given some account in a previous interview. Finally, it is also claimed that the trial judge failed to properly appreciate that the prosecution was not seeking to rely on section 19 for the purpose of drawing any adverse inference against the accused.
Submissions on behalf of the respondent
75. The respondent submits that the trial judge was correct in her decision to exclude the memorandum of interview, in particular in respect of the answers obtained after the invocation of section 19 of the 1984 Act. He also claims that the trial judge correctly applied the Devlin case.
76. The respondent further submits that the basis of the trial judge’s ruling on this issue was that she was not satisfied beyond a reasonable doubt that the answers given in interview were voluntary. He states that this was a mixed finding of fact and of law and that this Court should not overturn such a finding, particularly as her decision on involuntariness was reached having viewed the video of the interview in question. In this context he invites this Court to have regard to the video of the interview before it assesses whether the trial judge was correct in reaching the conclusion which she did.
77. Without prejudice to the foregoing, the respondent also contends that the trial judge was correct in ruling that the use of section 19 of the 1984 Act was such that the answers given in interview were not voluntary. He submits that the wording of the Act must be construed strictly and that inferences may only be drawn under section 19 where the accused “failed or refused to give an account”. There was no such failure in his case as he gave an account of his presence at the scene when first arrested and interviewed on the 19th August, 2011; whether or not his explanation was credible or reasonable was for the jury to assess.
78. Upon being re-arrested on the 16th November, 2011, the respondent chose to exercise his right to silence, at which point the gardaí purported to invoke the provisions of section 19 of the 1984 Act. He submits that in circumstances where he had previously given an account of his presence in the complex in question, it was not open to the gardaí to utilise a provision which is premised on a failure or refusal to give such an account. As he was only persuaded to depart from the exercise of his right to silence by the utilisation of a statutory provision, section 19 of the 1984 Act, which had no application, the respondent claims that the trial judge was correct in finding, as a matter of fact, that the answers given were not voluntary and in exercising her discretion to exclude all such answers.
Discussion/Decision:
79. The right to silence in its variety of forms is not only based on the common law, but also has a strong constitutional setting. In the context of a detained person who is under interrogation as a suspect in the commission of a criminal offence and who subsequently is in fact charged with such an offence, the right, if in issue at the trial, is firmly anchored in Article 38.1 of the Constitution. This is particularly so where, as in this case, the potential consequences of exercising that right are directly in play at the trial. Therefore, it is not necessary to say where in other circumstances the right can also be found, such as in Article 40.3.1° of the Constitution, or in Article 40.6.1° as a corollary to the right of freedom of expression, as stated by this Court in Heaney v. Ireland [1996] 1 I.R. 580 at p. 585 (“Heaney”), and reiterated in Rock v. Ireland and the Attorney General & Ors [1997] 3 I.R. 484 at p. 499 (“Rock”).
80. This right, however, is not absolute, and over many years has been the subject of numerous statutory encroachments, on both the civil and criminal side of the system. These have taken a variety of different forms and have various different consequences. Dealing with the criminal context, some provide, for example, that in certain circumstances a failure to account for one’s movements, or to give one’s name and address, is a criminal offence punishable by a term of imprisonment, usually six months (section 52(2) and section 30(6) of the Offences Against the State Act 1939, respectively). Others provide that a failure or refusal to answer any questions material to the investigation of an offence entitles a court to draw such inferences as may appear proper (section 2 of the Offences Against the State (Amendment) Act 1998). Yet again, there are provisions where such inferences may be drawn if an accused person fails or refuses to account for any object, substance or mark found on his person or in his possession, or where such a person fails to mention a particular fact which he subsequently seeks to rely on in his defence (section 18 and section 19A of the 1984 Act, as substituted by section 28 and inserted by section 30 of the Criminal Justice Act 2007, respectively). However, the section with which this appeal is directly concerned is, as above stated, section 19 of the 1984 Act. Whilst all of these provisions have significant elements in common, they also have a number of differences which, depending on circumstances, may be relevant.
81. Before dealing with the relevant section in this appeal, it should be noted that several of these provisions have been the subject matter of unsuccessful constitutional challenges. In Heaney, this Court held that section 52 of the 1939 Act was constitutional, although that section was subsequently found by the European Court of Human Rights to be in breach of Article 6 of the European Convention on Human Rights (Heaney and McGuinness v. Ireland (2001) 33 E.H.R.R. 12). This Court held in Rock that sections 18 and 19 of the 1984 Act were not unconstitutional on the grounds advanced. Consequently, no issue arises for consideration at this level of legal engagement.
82. Similarly, the European Court of Human Rights has held that the right to silence is not an absolute right and that in certain circumstances its exercise can have consequences for the accused person (John Murray v. the United Kingdom (1996) 22 E.H.R.R. 29; Condron v. the United Kingdom (2001) 31 E.H.R.R. 1). That Court has stated on many occasions that “the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either … during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial” (Beckles v. the United Kingdom (2002) 36 E.H.R.R. 162, § 57; Tabbakh v. the United Kingdom, App. no. 40945/09, [2012] E.C.H.R. 407, 21 February 2012, § 24; O’Donnell v United Kingdom, App. no. 16667/10, Judgment of 7 April 2015, § 48). The case law of the Court thus permits the drawing of such inferences in certain circumstances, provided that appropriate safeguards are in place.
83. Notwithstanding these authorities, it still remains the situation that the statutory provisions in issue constitute an impairment of a right which has protection at constitutional level.
84. Section 19 of the 1984 Act, in its material terms, reads as follows:-
“19.—(1) Where in any proceedings against a person for an arrestable offence evidence is given that the accused –
(a) … on being questioned by a member of the Garda Síochána in relation to the offence, or
(b) …
was requested by the member to account for his or her presence at a particular place at or about the time the offence is alleged to have been committed, and the member reasonably believes that the presence of the accused at that place and at that time may be attributable to his or her participation in the commission of the offence and the member informed the accused that he or she so believes, and the accused failed or refused to give an account, being an account which in the circumstances at the time clearly called for an explanation from him or her when so questioned, … the court (or, subject to the judge’s directions, the jury) in determining whether the accused is guilty of the offence charged … may draw such inferences from the failure or refusal as appear proper …” (Emphasis added).
85. There are several conditions set out in the full section which must be satisfied before its provisions can be invoked. The section also lays down a number of other safeguards, such as that one cannot be convicted of an offence solely or mainly on the inferences so drawn (section 19(2)).Section 19(3) provides that subsection (1) shall have no effect unless the accused was told in ordinary language what the effect of the failure or refusal to account might be, and was informed before such failure or refusal that he had the right to consult a solicitor and that he was afforded an opportunity to so consult before the failure or refusal occurred. Moreover, section 19 can have no application unless the interview process is being electronically recorded, as it was in this case. None of these points or factors, however, are in dispute on this appeal, with the single issue being whether or not the answers given in the third interview on the 19th/20th August, 2011, were such that the section could not be lawfully invoked against the accused in the last of the interviews conducted during his re-arrest and detention in November of that year. In other words, in light of such answers, could it be said that the accused had, within the meaning of the section, failed or refused to account for his presence as was demanded. Accordingly, this issue would seem to require some evaluation of what is an appropriate level of engagement so as to prevent the section from operating against an accused person.
86. The parties have referred to two cases only in their written submissions on this point. These are The People (DPP) v. Devlin (“Devlin”) and DPP v. Donnelly [2012] I.E.C.C.A. 78 (“Donnelly”). As is evident from the ruling of the learned trial judge, she considered herself bound by what the court had said in Devlin in reaching her decision to rule inadmissible the memorandum of interview in question.
87. The appellant distinguishes Devlin, saying that as the case turned upon its own facts, it is not an authority for the proposition that once any form of explanation or account is given by a suspect, then section 19 of the 1984 Act cannot thereafter be invoked against him. In reply, the respondent, not surprisingly, is satisfied to rely upon the trial judge’s interpretation and application of that decision.
88. Devlin was a case in which the accused was convicted by the Special Criminal Court of possession of a pipe bomb in circumstances where that court drew inferences under section 18 of the 1984 Act from his alleged failure to account for having certain items on his person, namely, a box cutting knife, insulating tape and black gloves. This alleged failure was seen as corroborative of the other evidence adduced, upon which his conviction was based. One of his grounds of appeal challenged the correctness of the court’s view that he had “failed to account” for the presence on his person of these items; in fact, only two remained in issue, as ultimately the prosecution did not rely on the gloves as being relevant.
89. The Court of Criminal Appeal (CCA), in its judgment given by Fennelly J., stated that, based on the trial court’s appraisal of the other evidence in the case, “the conclusion [of guilt] of the Special Criminal Court was vitally dependent upon the view it took of the answers given by [Mr Devlin] during the Garda interviews.” These answers, and their critical significance in preventing the section from operating against the accused, appear in the following passage of the judgment:-
“He [the accused person] said that both these items had been in his pocket the last time he had worn that jacket. This may or may not be a satisfactory explanation, but it was an answer. It does not amount to a failure or refusal to account.” (para. 36)
90. The Court went on to state that:-
“In view of the fact that the Special Criminal Court was not satisfied beyond reasonable doubt that the pipe bomb was in the possession of the appellant based on observations of his activity at the boot of the car, the decision came to be crucially dependent on the inferences drawn pursuant to section 18 of the Act of 1984. It is not at all clear, on the evidence, that the appellant failed to account for the most important two items. Section 18, subject to observation of the procedures it lays down, permits evidence to be given of the ‘failure or refusal’ of a person to account for, inter alia, an object that was ‘in or on his or her clothing and footwear’ or ‘otherwise in his or her possession.’ That provision does not apply where an account of any kind has been given.” (Emphasis in original) (para. 38)
91. It is undoubtedly on the basis of these two passages that the learned trial judge concluded that by virtue of the answers given in August (para. 65, supra), Mr McD had not failed or refused to account for his presence at the apartment complex in question on the occasion when the offences above outlined were committed.
92. Before turning to the trial judge’s application of Devlin, it is worth briefly mentioning the only other case referred to on this point, Donnelly, with which the appellant seeks to draw an analogy. In that case the accused, who was convicted by the Special Criminal Court of a charge of membership of an unlawful organisation, had given a short statement explaining why he was in Letterkenny on the night in question and denying membership of any illegal organisation. He had also denied knowledge of a number of items recovered from the car in which he had been travelling. He had otherwise remained silent in response to every question put to him across seven interviews during his detention; O’Donnell J described his statement as “a small island of volubility in an ocean of silence.”
93. The exception to the right to silence at play in Donnelly was section 2 of the Offences Against the State (Amendment) Act 1998, which allows for inferences to be drawn from the failure of an accused “to answer any question material to the investigation of the offence”. The CCA, whilst acknowledging that there were certain superficial similarities between that case and Devlin, went on to point out that there were also “significant differences” and that “a clear distinction” existed between section 2 of the 1998 Act and section 18 of the 1984 Act: these same differences exist, of course, between the said section 2 and section 19 of the 1984 Act.
94. Under section 2 of the 1998 Act, the test is not whether an account was given, but rather whether the accused had failed to answer any question material to the investigation of the offence. Furthermore, on the facts of the case, it was not simply that the accused had failed only to answer the occasional question but had otherwise been largely responsive; in fact he had refused to answer virtually every question put to him. The CCA therefore held that the trial court had been entitled to find that Mr Donnelly, notwithstanding his short volunteered statement, had “failed to answer questions material to the investigation” of the offence and thus had been fully entitled to draw the inferences which it did from this failure.
95. The CCA also reached a similar conclusion in DPP v. Vincent Kelly [2007] I.E.C.C.A. 110. This was another case in which inferences had been drawn under section 2 of the 1998 Act. Although the accused person did deny membership when asked directly whether he was a member of an illegal organisation, he otherwise made no reply in relation to all other material questions put to him. The CCA was satisfied that the trial court had been entitled to draw inferences under section 2 from his failure to answer these questions. As he had failed to answer virtually every question, it was not necessary for the trial court to have identified which particular questions were “material” questions.
96. Accordingly, I do not find any support in Donnelly for the appellant’s submissions: that case, in my view, does not stand for the proposition that inferences may be drawn under section 19 of the 1984 Act from a failure to answer questions even where the accused person had earlier given an account of his presence at the particular location at or about the time of the offence. Whilst the furnishing of some information will not prevent inferences being drawn under section 2 of the 1998 Act from a failure to answer any other question material to the offence, the giving of an account does however preclude the drawing of such inferences under sections 18 and 19 of the 1984 Act. The Donnelly case is thus of very limited assistance in this regard.
97. The critical question is, of course, whether the answers given by the respondent in the third interview on the 19th/20th August, 2011, precluded the invocation of section 19 prior to the commencement of the disputed interview during his subsequent detention. Many of the submissions made on this point were addressed to the issue of whether the respondent’s engagement during the first period of interrogation could be described as amounting to a “failure or refusal” to give an “account” under the section. What therefore, do these words mean?
98. Where a person has declined or refrained from giving an account when requested to do so, the same may be considered as a refusal within the meaning of section 19 of the 1984 Act. There is a deliberateness to such a refusal, an unwillingness to engage with the investigating authorities. A failure, on the other hand, may be voluntary or involuntary: it means simply that the person did not provide an account. The reason for this may be deliberate choice, in that despite the section and its consequences the person may decide to continue to rely upon his right to silence. However, it may also be because the person in question simply cannot remember why they were at the place, or even that they were at the place at all in the first instance; this could be due to the influence of intoxicants or other such causes. Further, where a failure to give an account is caused by, say, a blackout associated with an underlying medical condition, it seems highly likely that no “proper” adverse inference could be drawn from such failure under the section. Whilst all refusals are failures, not all failures are necessarily refusals. In any event, this point, in my view, is not central to the present issue.
99. More important is the definition of “an account” for the purposes of the section. In Devlin, the CCA held that while the accused person’s explanation for the presence in his jacket of the knife and tape “may or may not” have been satisfactory, nonetheless it was an answer to the question asked regarding his possession of those items. It thus did not amount to a failure or refusal to account. As above mentioned, Fennelly J. stated that section 18 “does not apply where an account of any kind has been given.” As sections 18 and 19 of the 1984 Act are identical in their operation, it would be difficult to say that an interpretation of one such provision would not apply to the other. Therefore it might usefully be asked what the Court intended by this observation.
100. When considering this point it is noteworthy, for instance, that section 19 of the 1984 Act does not contain a provision similar to that in section 2(4)(b) of the Offences Against the State (Amendment) Act 1998, which provides that “references to a failure to answer include references to the giving of an answer that is false or misleading”. So too with section 52(2) of the Offences Against the State Act 1939, which provides that in certain specified circumstances a person, when demanded by a member of An Garda Síochána, who fails or refuses to give an account of their movements and actions during any specified period and to provide all information in their possession in relation to the commission or intended commission of an offence by another person, “or gives to such member any account or information which is false or misleading”, is guilty of an offence. Evidently such a course was open to the Oireachtas when drafting the 2007 amendment to the 1984 Act but this option was not utilised and perhaps for very good reason, given the quite distinctive nature of both the crimes and persons to whom the 1939 Act is addressed.
101. Neither in the express language of the section nor in the judgment of the CCA in Devlin is there any reference to an account needing to be coherent or rational, or any suggestion that an account which is demonstrably false and misleading shall be regarded as a non-account. Notwithstanding that, it seems to me that if this statement of the CCA is to be taken literally, such that any account would be sufficient to prevent the application of sections 18 and 19 of the 1984 Act, it could easily become effortless for an accused person to circumvent the operation of those provisions. It surely cannot be the case that a person being investigated in respect of an arrestable offence can nullify the operability of this statutory provision by simply giving any manner of account, however plainly unrelated or potentially farcical it may be. To hold otherwise would be to enable such a person apprised of this fact to void the provision of its utility. It is equally apparent, however, that the views of the investigating gardaí cannot be determinative of whether an account has or has not been given for the purpose of the section. They cannot seek to invoke its terms simply because they do not like an account as given, or because they do not regard it as satisfactory, or because they do not think it sufficiently explains the person’s presence at that location. Furthermore, the issue of credibility is not for them. Therefore the interviewer cannot be arbiter in that provision. However, it must be the case that a minimum level of plausible engagement is required before an account can satisfy the requirements of section 19 of the 1984 Act. What that necessarily will be will involve a consideration of the entirety of the circumstances presenting in each case.
102. Consequently, if such became necessary, the establishment of more precise parameters by which one could evaluate whether a given account would be such as to satisfy section 19, or not, as the case may be, may have to be determined largely at the level of principle. However, what these precise parameters might be does not call for further examination in this case as I am satisfied that the explanation given by the respondent during the third interview on 19th/20th August, 2011, amounted to an “account” at that time for the purposes of section 19 of the 1984 Act. It was not demonstrably incapable of belief or so incredible as to merit only being disregarded as untrue. Accordingly, if that was the true issue which the section presented on this aspect of the appeal of satisfying the section, I would not disagree with the conclusion of the trial judge. However, in my view the key point arising is a different one.
103. Whilst the decision of the trial judge that the accused gave an account was correct, it failed to appreciate that such an account was given in the context of what was put to the accused during the course of his first arrest. If matters had not moved, I would have agreed with her conclusion in that regard. But matters did change, and change significantly, with the obtaining of additional evidence subsequent to his release on the 20th August, 2011. That evidence was such as to justify the issue of a warrant under section 10 of the 1984 Act for his re-arrest in November of that year. So by the time the second series of interviews took place, the investigation, in terms of evidence gathering, had moved quite significantly. This, for the reasons which I am about explain, must thus be regarded as the immediate background by which the section 19 issue must be determined. Further, without this critical step I would not have reached the conclusion which I have.
104. Although sections 18, 19 and 19A of the 1984 Act are designed to cover different situations, each of these provisions share a commonality in their respective wording which places the underlying failure or refusal in a circumstantial and temporal context. In both section 18 and section 19, for a failure or refusal to come within the section, the account demanded and not given must be one “…which in the circumstances at the time clearly called for an explanation…” (inserted by the substitution of sections 18 and 19 by sections 28 and 29 of the Criminal Justice Act 2007).Section 19A is similarly phrased. Accordingly, the emphasised portion of the section (para. 84, supra) positions the obligation to account in a given context. What, therefore, does this mean?
105. Quite evidently, when sitting alone or when directing a jury, the trial judge must determine whether what was put to the detainee in the circumstances existing at the time clearly called for an explanation. It is only if there was a failure or refusal within this context that the inference provisions could apply.
106. In the absence of any authority in this jurisdiction on the point, and notwithstanding some differences with the corresponding provisions in England, the following statement from the Court of Appeal (Criminal Division) in R. v. Argent [1997] 2 Cr. App. R. 27 is instructive as offering some guidance on what the above highlighted phrase could refer to; Lord Bingham L.C.J. said:
“The sixth condition is that the appellant failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned. The time referred to is the time of questioning and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression “in the circumstances” restrictively: matters such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances: and those are only examples of things which may be relevant…”
The relevance of this case in the context of the instant appeal is its confirmation that a failure or refusal to account must be evaluated in the context of the circumstances then existing, that is, at the time when the request for an account was made.
107. As there is nothing in section 19 of the 1984 Act which states that its use is restricted to a single occasion, it seems to me that the question of a failure or refusal must be judged by reference to what happened on the 16th November, 2011, given the new evidence which the gardaí had accumulated in the intervening period and which was put to the accused during the first and second interview sessions held on that date. That new evidence, which is outlined at para. 5, supra, included the critical CCTV footage of the incident in question. The question for determination, therefore, is whether, by reason of his answers given during those interviews, it was permissible for the gardaí to invoke section 19 prior to the commencement of the third interview.
108. Given my view that this is the correct interpretation of the section, and in light of the series of answers given during the first two interviews conducted on the 16th November, I am satisfied that by any yardstick or threshold by which compliance with section 19 must be judged, such answers could only be regarded as an outright refusal to engage with the new evidence as put to him. As a result, the gardaí were well justified in invoking section 19 of the 1984 Act.
109. Accordingly, for these reasons the trial judge misinterpreted the section and was wrong in law to conclude that on the 16th November, 2011, the gardaí had no jurisdiction to invoke section 19 of the 1984 Act. It follows from this conclusion that no question arises as to whether or not it could be said that, by virtue of this invocation, the alleged confession was involuntarily obtained.
Whether there should be a retrial
110. As appears from the beginning of this judgment, the appeal to this Court has travelled through the prism of section 23 of the 2010 Act. That section was intensely scrutinised in DPP v. J.C [2015] I.E.S.C. 31. Despite the divergent views expressed, it is inherent in all the judgments that this section should not be considered as a routine vehicle by which the DPP, whenever she is dissatisfied with a ruling, can seek the opinion of this Court or the Court of Appeal, as the case may be. The section in question is a “with prejudice appeal” provision, which has the fundamental effect that an accused person acquitted at trial can have such acquittal set aside and be re-tried on exactly the same charges.
111. This is to be contrasted with section 34 of the Criminal Procedure Act 1967, as amended, whereunder the DPP has full access to the Supreme Court (now Court of Appeal) on any question of law which arises out of a non-guilty verdict by direction. Such a reference has no impact on, or adverse consequences for, the subject person. This, apart from a section 29 certificate (section 29 of the Courts of Justice Act 1924, as amended), has been the standard vehicle of obtaining the opinion of this Court on an issue of law so arising.
112. This new provision of the 2010 Act substantially shifts the focus of what should be at the heart of accessing the appellate court, namely, the seeking of its views on the legal correctness or otherwise of a particular ruling. Instead it places the person in question at serious risk of being re-tried on the same charges. It is therefore critical that before invoking section 23 of that Act, the DPP must have considered the alternative route available and must be satisfied that by a consideration of all of the circumstances, including those mentioned, section 23 is still objectively demanded. Whilst I do not consider it necessary to delve further into this issue because of the submissions made, I wish to emphasise in the strongest possible terms that this provision stands outside what is normative in our criminal justice system. Accordingly, I would deprecate the random or routine use of the section.
113. In truth little was said over the course of the appeal regarding the use of this section. Indeed the matter was scarcely addressed by the respondent at all. He submits that the interests of justice do not merit a re-trial even if this Court should otherwise find against him, pointing to the time interval since the directed acquittal and the unfairness of the prosecution being permitted a second opportunity to prove its case. The DPP, in her written submissions, claims that the CCTV evidence is clearly identifiable and was in fact received by the trial court during the course of the voir dire, whilst the memorandum speaks for itself. With regard to section 23(12), the DPP submits, inter alia, that any retrial could be conducted fairly, that the lapse of time since the events in question is not such that the recollection of events by the relevant witnesses is likely to have been adversely impaired by reason of time, that the physical exhibits have been retained and are available for inspection, and that the nature of the offences in question is such that there is a strong public interest in favour of the prosecution of the person alleged to be responsible therefor. Thus it is submitted that it is in the interests of justice that a retrial be ordered.
114. In light of the manner in which the parties have addressed section 23 of the 2010 Act, I am satisfied, from a review of the evidence, that a retrial should be ordered and that the same can be conducted in accordance with due process.
115. In conclusion, I am satisfied that the ruling of the learned trial judge on both of the issues above considered was erroneous in a point of law and that, as a result, what was excluded from the jury’s consideration, namely, the CCTV footage and/or the memorandum of interview, could correctly be considered as “compelling evidence” within the meaning of that term as contained in section 23 of the 2010 Act. In addition, no reasons of a significant nature have been advanced as to why a re-trial should not take place. I would accordingly so order.