B S v DPP

• Jurisdiction: Ireland
• Judge: Clarke C.J.,O'Donnell J.,McKechnie J.,MacMenamin J.,Dunne J.,Charleton J.,O'Malley J.
• Judgment Date: 06 December 2017
• Neutral Citation: [2017] IESCDET 134
• Court: Supreme Court
• Date: 06 December 2017

BETWEEN

B S

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2017] IESCDET 134

Clarke C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

THE SUPREME COURT

DETERMINATION

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Respondent to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

1 This determination relates to an application by the prosecutor in the underlying proceedings (‘the DPP’) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Sheehan and Peart JJ, Hedigan J. dissenting) delivered on the 20th March 2012. The order appealed against was made on the 21st March 2017 and perfected on the 23rd May 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

2 The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

3 These proceedings arose out of the fact that the applicant in the underlying proceedings (‘Mr. S.’) was charged with a count of rape alleged to have occurred between the 1st January 1970 and the 21st May of the same year. In these proceedings Mr. S. brought an application before the High Court seeking to prohibit his trial on the grounds of delay. The High Court, for the reasons set out in a judgment of McDermott J. ( B.S. v. D.P.P. (2016) IEHC548), refused the relief. Mr. S. appealed to the Court of Appeal.

3. The Order appealed against

4 The majority judgment of the Court of Appeal was delivered by Sheehan J. [reference]. For the reasons set out in that judgment, Sheehan J. concluded first that Mr. S. had established sufficient prejudice so as to give rise to a real risk of an unfair trial which could not be overcome by any type of delay warning. Second, Sheehan J. concluded that this case came within what he described as the ‘wholly exceptional circumstances category’ identified in H. v. D.P.P. (2006) 3 I.R. (number). On that basis the appeal was allowed and the trial was prohibited. It is as against that order of prohibition that the D.P.P. now seeks leave to appeal to this Court.

4. The Contentions of the Parties

5 The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

6 In essence, the D.P.P. in her notice of application, suggests that important issues of law arise having regard to what is said to be an apparent departure by the Court of Appeal from what is said to be the now established...