Blood -v- DPP, [2005] IESC 8 (2005)

Docket Number:233/02
Party Name:Blood, DPP
Judge:McGuinness J.
 
FREE EXCERPT

THE SUPREME COURT

No. 233/02

McGuinness J.

Hardiman J.

Fennelly J.

BETWEEN

DARREN BERNARD BLOOD

APPLICANT/APPELLANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mrs Justice McGuinness delivered the 2nd day of March 2005

INTRODUCTION

This is an appeal against the judgment and order of the High Court (Ó Caoimh J.) made on 28th June 2002 refusing the applicant's application by way of judicial review for an injunction restraining the respondent from prosecuting the applicant in proceedings entitled Director of Public Prosecutions v Darren Bernard Blood

In those proceedings the applicant stands charged on two counts with offences contrary to section 27A(1) of the Firearms Act 1954, as inserted by section 8 of the Criminal Law (Jurisdiction) Act 1976 and amended by section 14 of the Criminal Justice Act 1984. In those charges it is alleged that on a date unknown between the 1st April 1994 and 30th April 1994 at 27 Dunamore Crescent, Tallaght, the applicant had in his possession a nine millimetre Mauser pistol and six rounds of ammunition in such circumstances as to give rise to a reasonable inference that he had not got it in his possession for a lawful purpose. The applicant was arrested and charged with these offences on 6th July 1999. A Book of Evidence was served on him on the 10th September 1999. He was returned for trial on 31st January 2001.

He obtained the leave of the High Court (Ó Caoimh J.) to issue his judicial review proceedings on 26th March 2001. He seeks to prohibit the continuance of his trial on grounds of prosecutorial delay.

The offences with which the applicant stands charged appear to arise out of the investigation of the unlawful killing of one Stephen Murphy, which occurred at Carnew, Co. Wexford, on the night of 30th April/1st May 1994 during the course of a weekend gathering of motor bicycle riders.

The applicant is a married man with two children and resides in Dublin. His affidavit grounding his application for judicial review, together with the documentation exhibited therewith, sets out the sequence of events since 1994.

The applicant was originally arrested and detained pursuant to section 30 of the Offences against the State Act 1939 in or about the month of July 1994 at Wexford on suspicion of having had possession of firearms at Carnew, Co. Wexford. He was released without charge at that time. Subsequently on 25th September 1996 his house was searched pursuant to a search warrant issued under the provisions of section 29 of the Offences against the State Act 1939. He deposes that during the course of that search he was arrested pursuant to section 30 of the said Act for the possession of firearms. The applicant refers to the Book of Evidence wherein a statement of the evidence to be given by Sergeant Gerard McGrath indicates that the arrest was for the possession of firearms between October 1994 and February 1996. The applicant says that during the course of his detention he was questioned about the receipt of hand guns from Martin McHugh sometime after October 1994. The applicant states that nothing of evidential value to the present case was obtained during the course of the detention. He said that despite the fact that this search, arrest and questioning appear to have had nothing to do with the possession of firearms in or about April 1994, these matters have been included in the Book of Evidence served on him.

The applicant refers to the contents of the Book of Evidence and states that it indicates that the Garda investigation in this case began with the investigation into the unlawful killing of Stephen Murphy referred to above. He notes that the charges against him at present relate to the allegation of possession of firearms/ammunition at Tallaght, Co. Dublin. He expresses the view that the only alleged evidence against him is that contained in the statements attributed to Michael Broughall (who is incorrectly named as Branghall in the Book of Evidence) and Martin McHugh. The applicant points out that Michael Broughall was convicted of possession of firearms and received a five year suspended sentence at Wicklow Circuit Court on 30th March 1995. He also points out that Martin McHugh was convicted of the possession of firearms in the Dublin Circuit Court on the 26th March 1998. He received a four year suspended sentence.

It appears from the affidavit of Claire Loftus, then a Principal Solicitor in the Office of the Chief State Solicitor, grounding the Statement of Opposition of the respondent, and from her subsequent oral evidence in the High Court, that the said Martin McHugh was interviewed by the Gardai in 1996 in the course of the investigation into the murder of Veronica Gurin. In or about August 1996 Martin McHugh indicated to the authorities that he was willing to give evidence against the applicant. It was, however, the view of the Director of Public Prosecutions that Martin McHugh should not or could not be asked to give evidence against the applicant until his own prosecution was completed.

The prosecution of Martin McHugh ended on 26th March 1998 in his conviction and sentence. However, it was not until some five months later, in late August 1998, that the State Solicitor for Wicklow informed the Director of Public Prosecutions of this fact. It appears that at this stage a difficulty arose because the original file on the applicant's case had been lost in the Director's office.

On 3rd December 1998 an officer recommended to the Director that firearms charges be brought against the applicant. On 8th December 1998 this recommendation was forwarded to the State Solicitor in Wicklow. On 29th March 1999, nearly four months later, the State Solicitor replied by letter setting out reasons given by members of the Garda Siochana who were responsible for the investigation into the death of Stephen Murphy which, according to the Garda Siochana, would justify the applicant being charged with the murder of Mr Murphy. Two days later on 31st March 1999, the Director replied confirming that firearms charges were to be brought.

Approximately one month later, in late April the Director's directions concerning the firearms charges were received by the relevant members of the Garda Siochana. Over two months later, on 6th July 1999, the applicant was arrested and charged with the offences set out above. On 10th September 1999, as stated above, a Book of Evidence was served on the applicant. This Book of Evidence, which is exhibited by the applicant in his grounding affidavit, is very extensive and contains a considerable amount of material which might be relevant to a murder charge against the applicant but which has in effect little or no relevance to the actual firearms charges. Between 28th September 1999 and 6th December 1999 there was a correspondence between the solicitors for the applicant and the Chief State Solicitor's Office concerning disclosure of all material relevant to the case.

On 14th January 2000 the applicant through his solicitor indicated that he required that the evidence of Martin McHugh and Michael Broughall should be taken on deposition. The date for the taking of depositions was fixed as the 14th June 2000. The applicant in his affidavit states that this was due to delays in the District Court system. On the 14th June 2000 the applicant attended court with his solicitor but no representative from the Chief State Solicitor's office or An Garda Siochana attended nor did the witnesses. Ms Loftus in her affidavit explains that this was due to "an unfortunate oversight in failing to enter a previous remand date in a diary". In the circumstances the District judge had no option but to adjourn the matter to a further date for depositions. The earliest date available was 29th November 2000 at 2 p.m. On that day there was insufficient time to take both the depositions and a further date was fixed for the taking of the remaining deposition on 3rd January 2001. As has been stated earlier the applicant was returned for trial on 31st January 2001 and obtained leave to issue the present proceedings on 26th March 2001.

THE PROCEEDINGS

In his judicial review proceedings the applicant seeks the following reliefs:

1. An order of prohibition by way of an application for judicial review prohibiting the first named respondent from hearing the trial of the applicant in proceedings entitled Bill No. 106/01, The People of Ireland (At the Suit of the Director of Public Prosecutions) v Darren Bernard Blood.

2. An injunction by way of an application for judicial review restraining the second named respondent from prosecuting the applicant in proceedings entitled: Bill No. 106/01 The People of Ireland (At the Suit of the Director of Public Prosecutions) v Darren Bernard Blood.

The grounds upon which he relies are basically those of prosecutorial delay and are set out as follows:1. That the delay between the dates of the alleged offences (1st April 1994 to 30th April 1994) and the date of the return for trial of the applicant on the 31st January 2001 amounts to a failure to vindicate the applicant's constitutional entitlement to fairness of procedures and a breach of his right to constitutional and natural justice.

2. That the delay between the dates of the alleged offences (1st April 1994 to 30th April 1994) and the date of the return for trial of the applicant on the 31st January 2001 amounts to a failure to vindicate the applicant's constitutional right to an expeditious hearing.3. The applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of the prosecution to investigate these matters with reasonable expedition and to prosecute with reasonable expedition.

4. The applicant's rights to a fair trial, to fair procedures, to constitutional and natural justice and to an expeditious hearing have been violated by the failure of An Garda Siochana to carry out their investigation with all reasonable...

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