Blood v DPP

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 02 March 2005
• Neutral Citation: [2005] IESC 8
• Court: Supreme Court
• Date: 02 March 2005

[2005] IESC 8

THE SUPREME COURT

McGuinness J.

Hardiman J.

Fennelly J.

No. 233/02

BLOOD v DPP

BETWEEN

DARREN BERNARD BLOOD

APPLICANT/APPELLANT

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

FIREARMS ACT 1954 S27(a)(1)

CRIMINAL LAW (JURISDICTION) ACT 1976 S8

CRIMINAL JUSTICE ACT 1984 S14

OFFENCES AGAINST THE STATE ACT 1939 S30

OFFENCES AGAINST THE STATE ACT 1939 S29

DPP v BYRNE 1994 2 IR 236

P (P) v DPP 2000 1 IR 403

Z v DPP 1994 2 IR 476

D v DPP 1994 1 ILRM 435

CONSTITUTION ART 38.1

O'CONNELL, STATE v FAWSITT 1986 IR 362

CAHALANE v MURPHY 1994 2 IR 262

C (P) v DPP 1999 2 IR 25

HEALY, STATE v DONOGHUE 1976 IR 325

O'FLYNN v CLIFFORD 1988 IR 740

US v MARION 1971 404 US 307

BARKER v WINGO 1972 407 US 514

MCKENNA v CIRCUIT CRIMINAL COURT & DPP UNREP KELLY 14.1.2000 1999/17/5316

MCNAMARA v MCGRUAIRC & DPP & ORS UNREP SUPREME 5.7.2001 2003/41/9958

J (B) v DPP UNREP SUPREME 19.12.2003 2003/28/6468

FITZPATRICK v SHIELDS 1989 ILRM 243

D v DPP 1994 2 IR 465

CRIMINAL LAW

Delay

Prosecutorial delay - Firearms offences - Delay of 5 years prior to charges brought - Further delay of 2.5 years prior to return for trial - Whether delays inordinate and excessive - Whether delays explained and excused - Whether risk of unfair trial - Whether prejudice inferred by reason of delays - Constitution of Ireland 1937, article 37.1 - DPP v Byrne [1994] 2 I.R. 237; O'Flynn v Clifford [1988] I.R. 740; Baker v Wingo (1972) 407 U.S. 514; J v DPP (Unreported, SC, 19/12/2003) followed - Appeal allowed, trial prohibited (233/2002 - Supreme Court - 2/3/2005) [2005] IESC 8 - Blood v DPP

The appellant appealed against the judgment and order of the High Court refusing his application by way of judicial review for an injunction restraining the respondent from prosecuting the appellant on charges of unlawful possession of firearms. The appellant sought to prohibit the continuance of his trial on grounds of prosecutorial delay.

Held by the Supreme Court (McGuinness, Hardiman, Fennelly JJ) in allowing the appeal: 1. That the delay by the respondent was inordinate and excessive and was not properly excused. In the circumstances of the case, specifically the fact that the appellant had lost contact with potential witnesses, had suffered anxiety and concern at the impending proceedings and was charged with a less serious offence than originally anticipated, the delay amounted to a denial of the appellant's right to an expeditious trial. Furthermore, there was a real danger that the delay might have lead to an unfair trial.

Reporter: L.O'S

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

INTRODUCTION

2 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

3 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 1976and 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.

4 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.

5 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.

6 The applicant was originally arrested and detained pursuant to section 30 of the Offences against the State Act 1939in 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.

7 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.

8 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.

9 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.

10 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.

11 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.

12 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...