Brian Rattigan v DPP

• Jurisdiction: Ireland
• Judge: O'Higgins J.
• Judgment Date: 30 June 2006
• Neutral Citation: [2006] IEHC 239
• Court: High Court
• Date: 30 June 2006

[2006] IEHC 239

THE HIGH COURT

[J.R. 647/2005]

RATTIGAN v DPP

JUDICIAL REVIEW

BETWEEN

BRIAN RATTIGAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CRIMINAL JUSTICE ACT 1984 S4

DPP v BOWES 2004 4 IR 223 2004/14/3227

BLOOD v DPP UNREP SUPREME 2.3.2005 2005/5/844

C (D) v DPP 2006 1 ILRM 348

RSC O.84 r21(1)

O'DONNELL v CORPORATION OF DUN LAOGHAIRE 1991 ILRM 301

DE ROISTE v MIN DEFENCE 2001 1 IR 190

RSC O.84 r21

M (P) v DPP 2006 2 ILRM 361

DPP v LENNON 2003 3 IR 321

B v DPP 1997 3 IR 140

D v DPP 1994 2 IR 465

REDMOND v DPP 2002 4 IR 133

Z v DPP 1994 2 IR 476

DPP v HAUGH (NO 1) 2000 1 IR 184

JURIES ACT 1976 S15(3)

Abstract:

Criminal law - Delay - Impending prosecution for murder - Right to expeditious trial - Fair procedures - Whether applicant must prove prejudice caused by delay - Whether delay excessive - Whether applicant’s constitutional rights infringed - Whether applicant prejudiced in defence by reason of delay - Prohibition.

Prejudice - Adverse pre-trial publicity - Whether real risk of unfair trial - Whether such risk can be avoided by rulings and directions of trial judge - Whether further prosecution of offences should be restrained.

the applicant was charged in 2003 with murder, more than two years after the alleged offence. That charge was struck out for failure to produce a book of evidence within the time limited for doing so. The applicant was re-charged almost two years later. In the interim, a newspaper article had been published identifying the applicant as the leader of a gang involved in the alleged murder. He sought the prohibition of the continuance of the prosecution on the grounds, inter alia, that the delay in the institution and prosecution of the proceedings had been excessive and violated his right to trial with reasonable expedition and that the delay prejudiced his chances of obtaining a fair trial in that it hindered the preparation of his defence by reason, inter alia, of the consequential unavailability of witnesses. He also sought the relief on the basis of adverse pre-trial publicity due to the newspaper article which he alleged would prejudice potential jurors.

Held by O’Higgins J in refusing the relief sought that there had been a culpable and unjustified delay on the part of the prosecution but that the applicant had not established a real risk of an unfair trial which could not be avoided by appropriate rulings and directions on the part of the trial judge by reason of those circumstances, which was the appropriate standard of proof to be met by the applicant.

That whilst the right of an accused to a fair trial could be prejudiced by pre-trial publicity which could, in certain circumstances, lead to a trial being prohibited, it was necessary to balance the applicant’s rights in that respect with the community’s right to have criminal offences prosecuted. Where, however, there was a real risk of an unfair trial which could not be avoided by appropriate rulings and directions by the trial judge, such a balancing exercise did not arise.

Reporter: P.C.

1 O'Higgins J. delivered the 30th day of June, 2006.

2 By order of the High Court (McKechnie J.) dated the 4 ^th July, 2005, the applicant was given leave to seek judicial review seeking an injunction restraining the respondent from proceeding with a prosecution of the accused for murder and an order for a stay of prosecution of the applicant pending the determination of the proceedings. The grounds on which leave was granted were grounds A to M in the statement of grounds which are as follows:

"Grounds upon which relief is sought:"

3 a) That the delay in the institution of proceedings herein:-

4 a) Is oppressive, unjust and unfair to the applicant;

5 b) Violates the applicant's right to a trial with reasonable expedition;

6 c) Violates the applicant's right to a trial in the due process of law.

7 b) That the delay in the proceedings herein has been excessive and prejudicial in that it:-

8 a) Prejudices the applicant's chance of obtaining a fair trial and

9 b) Prejudices the applicant in the preparation and presentation of his defence

10 c) That the state authorities delayed unduly in preparing the book of evidence in these proceedings and in bringing forward the charge of murder and in so doing, have deprived the applicant of his constitutional right to a fair and expeditious trial;

11 d) That the prosecuting authorities delayed unduly in charging the applicant for the first time on the 18 ^th September, 2003, more than two years after the alleged offence;

12 e) That the prosecuting authorities delayed unduly in re-charging the applicant for the alleged offence on the 11 ^th March, 2005, some three years and seven months after the alleged offence;

13 f) That the state authorities delayed unduly in preparing the book of evidence in these proceedings and in bringing forward the charge of murder and in so doing, have prejudiced the applicant of the preparation of his defence and exposed him unnecessarily to the risk of an unfair trial;

14 g) That the lapse of time between the dates the offence were allegedly committed and the date of trial is now such as to deprive him of the opportunity of calling witnesses crucial to his defence;

15 h) That either the garda interviews with the applicant and other persons who were arrested and are now witnesses on the book of evidence were not electronically recorded or the electronic records of those interviews have not been furnished and consequently the applicant is prejudiced in his defence of these proceedings;

16 i) That the lapse of time between the dates the offences were allegedly committed and the date of trial is now so great as to deprive the applicant of the opportunity of collecting, collating and adducing collateral evidence at his trial;

17 j) That the prosecution of the applicant herein is in breach of Article 38 of the Constitution of Ireland which entitles the applicant to a trial in the due course of law;

18 k) That the prosecution of the applicant herein is in breach of his constitutional right to a trial of criminal charges laid against him within a reasonable time;

19 l) That the prosecution of the applicant herein is in breach of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which entitles the applicant to a fair hearing of criminal charges laid against him within a reasonable time;

20 m) That in all the circumstances of this case, it would be unfair and unjust to allow the prosecution of the applicant."

21 By order of the High Court (O'Neill J.) dated the 20 ^th February, 2006, the applicant was granted leave to amend the statement of grounds already filed to include the following:

22 n) "That the trial of the applicant has been irreparably and irremediably damaged by prejudicial pre-trial publicity such as renders him notorious nominates him as the leader of a crime gang and a drug dealer connects him with gangland murders, drug dealing and other criminal offences and nominates the offences for which the respondent seeks to prosecute him as the starting point for a gangland feud;

23 o) Further or in the alternative, that as a consequence of the delay in prosecuting the applicant, for which he is not responsible, the applicant is at a real risk of an unfair trial as he has been publicly identified as the leader of a notorious gang of criminals who are alleged to be responsible for a number of murders for drug dealing, for assaults and for other criminal offences;

24 p) That as a consequence of the delay in prosecuting the applicant, for which he is not responsible, and recent gangland murders with which he has been associated and extensive media reporting of the fact that he is serving a prison sentence at present, the applicant's trial is prejudiced in that potential jurors will know that he is a man of previous convictions;

25 q) That as a consequence of the delay in prosecuting the applicant, the offence with which he is charged is now notorious in that it has been identified by the media as "the spark that ignited the powder keg of hate";

26 r) That as a consequence of the delay in prosecuting the applicant and publicity surrounding him, it is not possible to empanel a jury which could fairly and impartially weight the evidence against the applicant in his trial for murder and consequently, his constitutional right to a fair trial has been violated irremediably;

27 s) That the Juries Act 1976 fails to provide any mechanism by which counsel for the applicant could ascertain whether potential jurors were aware of the applicant's notoriety and/or of the publicity surrounding gangland murders and other criminal offences which nominated the applicant as a murderer and a criminal;

28 t) That in the light of the jurisprudence of the Superior Courts interpreting the Juries Act 1976, it is not possible for counsel for the applicant to take any steps to ensure that the jurors who try the applicant for the offence had not been exposed to or influenced by the prejudicial publicity about the applicant."

The Facts

29 The facts may be summarised as follows:

30 1. In the early hours of the 25 ^th August, 2001, Declan Gavin was fatally stabbed at the entrance to a fast food outlet in Crumlin and a murder investigation commenced. The assailant emerged from a car and having pulled a balaclava over his head, stabbed the deceased. The deceased having been stabbed by his assailant sought refuge in the fast food outlet and was pursued by his assailant who failed to gain access. It is a vital part of the prosecution case that a finger print found on glass on the exterior of the fast...