Brendan McFarlane v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 08 November 2006
• Neutral Citation: [2006] IEHC 389
• Court: High Court
• Docket Number: [No. 542 J.R./2006]
• Date: 08 November 2006

[2006] IEHC 389

THE HIGH COURT

[No. 542 J.R./2006]

MCFARLANE v DPP

JUDICIAL REVIEW

BETWEEN

BRENDAN McFARLANE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONs

RESPONDENT

AND

THE MEMBERS OF THE SPECIAL CRIMINAL COURT

NOTICE PARTIES

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL LAW ACT 1976 S11

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

H (T) v DPP & JUDGE SMITHWICK UNREP SUPREME COURT 25.7.2006 2006 27 5830 2006 IESC 48

BARRY v IRELAND 2005 ECHR 865

M (P) v MALONE & DPP 2002 2 IR 560 2002 16 376

M (P) v DPP 2006 2 ILRM 361 2006 IESC 22

Abstract:

Criminal law - Delay - Constitution - Trial with reasonable expedition - Prosecutorial delay - Delay inherent in courts process - Whether unnecessary delay within courts process - Whether delay such that trial should be restrained - European Convention on Human Rights, article 6(1) - Bunreacht na hÉireann

Facts: the applicant was charged in 1998 with offences alleged to have been committed in 1983. His trial was fixed for 1999 when he was granted leave to restrain the further prosecution of the offences on the grounds, inter alia, that delay by the prosecuting authorities in determining the proceedings violated his constitutional right to a trial with reasonable expedition and exposed him to a real risk of an unfair trial. Those judicial review proceedings were ultimately dismissed by the Supreme Court in 2006. The applicant brought fresh judicial review proceedings to restrain his trial on the grounds that his right to a trial with reasonable expedition under the constitution and article 6(1) of the European Convention on Human Rights had been violated by reason of delays inherent in the court process.

Held by Mr Justice Quirke in refusing the relief that the appeal to the Supreme Court in respect of the earlier judicial review proceedings was unnecessarily delayed by the respondent. No evidence had been adduced by the applicant that any risk of an unfair trial flowed from the delay which interfered with his right to an expeditious trial. That where prosecutorial delay had not jeopardised the right to a fair trial but had caused unnecessary stress and anxiety, the court had to balance the right of the accused to be protected from stress caused by inordinate delay with the public interest in the prosecution of offences. Any stress or anxiety caused thereby did not outweigh the community's interest in having the offences with which he had been charged prosecuted.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Quirke delivered on the 8th day of November 2006 .

2 By Order of the High Court (Peart J.) dated the 15th day of May, 2006, the applicant was granted leave to seek certain declaratory and other relief including an injunction restraining the respondent (hereafter "the D.P.P") from prosecuting the applicant in respect of certain criminal charges preferred against him in respect of alleged false imprisonment and the possession of firearms on various dates between the 25th November, 1983, and the 16th December, 1983.

3 It is claimed on behalf of the applicant that the delay on the part of the State in providing a hearing and determination of the criminal proceedings within a reasonable time has inter alia violated the applicant's constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial in respect of the charges preferred against him.

RELEVANT FACTS

4 1. On the 5th January, 1998, the applicant was arrested and detained by the Gardaí pursuant to the provisions of s. 30 of the Offences Against the State Act 1939as amended. Subsequently he was charged with the commission of two offences namely, (a),the false imprisonment of Donald James Tidey contrary to common law and to the provisions of s. 11 of the Criminal Law Act, 1976, and (b), the unlawful possession of fire arms contrary to various provisions of the Fire Arms Acts 1925and 1964as amended. The offences were alleged to have occurred between the 25th November, 1983 and the 16th December, 1983.

5 2. A Book of Evidence was served upon the applicant on the 14th July, 1998 and his trial was fixed for the 9th November, 1999.

6 3. On the1st November, 1999, the applicant, by Order of the High Court (McGuinness J.), was granted leave to seek various reliefs by way of judicial review including an injunction restraining the D.P.P. from prosecuting the applicant in respect of the charges preferred against him

7 4. Relief was sought by the applicant on the grounds, (i), that the delay in the institution of criminal proceedings against the applicant had irreparably prejudiced his prospect of obtaining a fair trial and, (ii), that the failure of the prosecuting authorities to maintain and have available for inspection certain items of evidence had limited his ability to fully contest the nature and strength of the evidence proposed to be introduced at his trial.

8 5. The D.P.P delivered a Statement of Opposition on the 5th April, 2000, but declined to comply with a request made on behalf of the applicant on 15th May, 2000, for voluntary discovery of various documents.

9 In consequence the applicant issued a Notice of Motion returnable before the Master of the High Court on 13th October, 2000, seeking discovery of the documents sought. After adjournments by consent of the parties on two occasions and a further mutual misunderstanding between the parties the motion before the Master was struck out on the 12th January, 2001, for non- appearance. A fresh motion was issued on 2nd October, 2001, returnable before the Master on 16th November, 2001.

10 On that date and thereafter the matter was adjourned on successive occasions until 8th February, 2002, when an Affidavit of Discovery was delivered on behalf of the D.P.P.

11 6. On 11th March, 2002 the proceedings were re-entered in the Judicial Review List where they were listed to be heard in the High Court on 14th March, 2003. On 14th March, 2003, the proceedings were adjourned due to the unavailability on that date of a judge to hear the case.

12 7. The matter was relisted and the case was heard in the High Court, ( Ó Caoimh J.), on 11th July, 2003. Judgment was delivered on 18th July, 2003.

13 The Court made an order which restrained the trial of the applicant in respect of the charges preferred against him on the grounds that the failure by the prosecuting authorities to preserve certain evidence inhibited the ability of the applicant to defend the charges preferred against him. The Court refused to grant relief on the grounds of delay.

14 8. On 19th August, 2003, an appeal was lodged in the Supreme Court on behalf of the D.P.P. Subsequently a cross-appeal was delivered on behalf of the applicant in respect of the finding of the High Court in relation to the issue of delay. Books of Appeal were lodged on behalf of the D.P.P. on 15th November, 2004, and on 27th January, 2005, the D.P.P. certified the case as ready to proceed in the Supreme Court. On 2nd February, 2006, the applicant was granted leave to have his cross- appeal heard concurrently with the appeal on behalf of the D.P.P.

15 9. The appeal was heard by the Supreme Court on 16th February, 2006 . On 7th March, 2006, the Court delivered its judgment allowing the appeal on behalf of the D.P.P. and refusing relief to the applicant. The applicant's cross-appeal was also dismissed.

16 In a dissenting judgment Kearns J. upheld the findings of the learned High Court judge and dismissed both appeals.

17 10. In an affidavit sworn in these proceedings the applicant's solicitor, Mr. James MacGuill averred that from the time of his arrest in 1998 the applicant has complied with the terms of the bail which he was granted which requires him to travel large distances twice every month.

18 Additionally the applicant has had to attend at the Special Criminal Court on more than 40 occasions since1998. Mr. MacGuill also averred that in order to attend at these hearings the applicant is required to make a round trip from his home in Belfast to Dublin which is an overall distance of some 320 kilometres.

19 Mr. MacGuill also averred that the applicant has been under considerable pressure during the period of more than eight years which have elapsed since he was first charged with these serious criminal offences.

20 He married on 31st May, 2001. He has three children ranging in age from seven years to three years. His youngest daughter has special needs and his elderly mother is dependent upon him.

THE ISSUES

21 On behalf of the applicant Mr. Gageby S.C. contends that this application to prohibit the applicant's trial is to be distinguished from the earlier application made on his behalf for the same relief.

22 He says that the applicant's constitutional right to a trial with reasonable expedition has been violated by reason of delays inherent in the court process within this jurisdiction. He argues that the right conferred upon the applicant by Article 6 (1) of the European Convention on Human Rights to a hearing within a reasonable time has also been violated by the delay.

23 He says that this application for relief on grounds of delay differs from the application made in the earlier proceedings for relief on grounds of delay. He contends that the earlier application was concerned solely with the question of delay on the part of the prosecuting authorities in bringing the applicant before the courts.

24 He says that the applicant is now entitled to relief by reason of the combination of delay on the part of the prosecution authorities in bringing the applicant before the court and delay within the court process itself. He categorises the overall delay as "culpable" or "blameworthy" delay. He says that it has subjected the applicant to presumptive prejudice and to...