Brian Rattigan v DPP

• Jurisdiction: Ireland
• Judge: Murray C.J.,Mr. Justice Hardiman,Mr. Justice Geoghegan
• Judgment Date: 07 May 2008
• Neutral Citation: [2008] IESC 34
• Court: Supreme Court
• Docket Number: [S.C. No. 353 of 2006]
• Date: 07 May 2008

[2008] IESC 34

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Appeal No. 353/2006

Rattigan v DPP

Between

BRIAN RATTIGAN

Applicant / AppLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/RESPONDENT

DPP v CONNOLLY 2003 2 IR 1

DPP, PEOPLE v PRINGLE 1995 2 IR 547

CULLEN v TOIBIN & MAGILL PUBLICATIONS (HOLDINGS) LTD 1984 ILRM 577

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 2005 IESC 8

D v DPP 1994 2 IR 465

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

M (P) v DPP 2006 3 IR 172

JURIES ACT 1976 S15(3)

DPP v HAUGH 2000 1 IR 184

REDMOND v DPP & PRESIDENT & JUDGES OF DUBLIN CIRCUIT COURT 2002 4 IR 133 2002/24/6062

B v DPP 1997 3 IR 140

R v GLENNON 1992 173 CLR 592

Abstract:

Criminal law - Trial - Constitution - Right to fair trial - Prosecution - Delay - Application to restrain further prosecution of offences - Exceptional factor - Nature and strength of forensic evidence to be used in prosecution - Whether exceptional factor justifying refusal of relief - Prejudice - Whether accused prejudiced by prosecutorial delay - Whether real and substantial risk of unfair trial - Whether relief should be granted.

Constitution - Right to fair trial - Accused alleging prejudice to right to fair trial by publication of newspaper article - Fade factor - Whether real risk of unfair trial established by accused - Constitution of Ireland 1937, Articles 38.1 and 40.3.

The High Court refused to grant an injunction restraining the further prosecution of the applicant for murder. The grounds upon which leave was granted to apply for judicial review were that there had been prosecutorial delay which prejudiced the applicant's right to a fair trial. It was contended, inter alia, that because most of the witnesses had died during the period of delay, the accused's defence had been impaired. The respondent contended that there could be no prejudice to the accused as his bloody handprint at the crime scene was strong forensic evidence, which would be the major evidence at the trial. The applicant appealed to the Supreme Court. The applicant further argued that pre-trial publicity since then had also prejudiced his right to a fair trial.

Held by the Supreme Court (Geoghegan J: Murray CJ, Hardiman, Denham and Fennelly JJ concurring) in dismissing the appeal:

I. that an accused had a right to a fair trial which took precedence over the right of the public to have accused prosecuted;

II. that one of the interests protected by the right to trial with reasonable expedition was the right to limit the possibility that the defence would be impaired;

III. that, as none of the witnesses provided an alibi for the applicant, their absence would not prejudice the applicant's defence so as to justify prohibiting the trial;

IV. that, in a trial where there was independent forensic evidence implicating an accused, a court, in considering whether there was a real risk of an unfair trial and whether it should prohibit the trial, was entitled to take that fact into account.

per (Murray CJ) that the evidence of the bloody handprint, in its unchallenged and unexplained condition, was itself an exceptional factor which was capable of deciding the general issue of the accused's guilt which was unaffected by delay or publicity.

Obiter dictum: that prohibiting a criminal trial could not be adopted to punish the media for prejudicial publicity as the contempt of court laws were the appropriate vehicle to use for that purpose.

Reporter: P.C.

1 JUDGMENT of Murray C.J. delivered the 7th day of May 2008

2 Judgments delivered by Murray C.J., Hardiman J. & Geoghean J. Denham J. agreed with Geoghean J. & Fennelly J. agreed with Murray C.J. & Geoghean J.

3 I agree with the conclusions of Geoghegan J. for the reasons set out in his Judgment and I just wish to add a few brief observations. If the appellant had established that there was a real and substantial risk of an unfair trial, that would determine the appeal in his favour according to the well established case-law of this Court as cited by Geoghegan J., and none of which has not been put in issue in this appeal. According to that case-law there are no exceptional circumstances which would permit a trial to proceed in the face of such a finding. However, for the reasons set out in that judgment including the actual "fade factor" referred to by Geoghegan J., I do not think that there is such a risk, in the circumstances of this case.

4 I also agree that serious delay in proceeding with a prosecution is not on its own a ground for restraining a criminal trial for grave crimes from proceeding unless there are certain consequences for the accused or the administration of justice which have been laid down by this Court in successive authorities and referred to by Geoghegan J., in his judgment. As the authorities demonstrate there is no reluctance on the part of this Court or the Judiciary generally to stay proceedings setting out the reasons for such a stay, irrespective of whose conduct is involved, where the law and the interests of justice so require.

5 Finally, in accord with Geoghegan J., I would express no view on the admissibility of any evidence at the trial since that will be a matter exclusively for the trial Judge. In particular I leave over for another case the circumstances, if any, in which a statement of an accused which has not been electronically recorded might be excluded from evidence at a trial for that reason alone, when and if that matter arises for determination by this Court.

6 Mr. Justice Hardiman delivered the 7th day of May, 2008.

7 Judgments delivered by Murray C.J., Hardiman J. & Geoghean J. Denham J. agreed with Geoghean J. & Fennelly J. agreed with Murray C.J. & Geoghean J.

8 This is a most complex and disturbing case. After anxious consideration, I have come generally to agree with the persuasive judgment of Mr. Justice Geoghegan which, as I read it, turns very much on the specific circumstances of this case. I am however gravely concerned that anyone learning merely of the result of the case might be misled into thinking that, as a general proposition, gross and unexplained delay by the Director of Public Prosecutions leading to prejudicial events will attract severe verbal condemnation by the courts but will not actually lead to a trial being prohibited and equally that lurid and grossly prejudicial publicity plainly suggesting the complicity of the accused in the crime with which he is charged will attract strong verbal condemnation from the courts but equally never, in practise, have the consequence of preventing a trial taking place. Because of these concerns I venture to offer this short judgment of my own, while agreeing with the judgment of Mr. Justice Geoghegan and the order there proposed. I am also, independently, concerned that the impression may be given that other irregularities, specifically failure to record interviews by the gardaí, is anything other than a very grave matter which, in the ordinary course, should lead to the disallowance of any admissions allegedly made during the unrecorded interviews.

A most unusual case.

9 This is a most unusual case in several respects. The crime itself was an appalling one: the deceased was murdered, one might almost say assassinated, on the public street before a large and various gathering of people some of whom knew one or more of the persons in the car from which the killer emerged. In the face of this picture of brutal and apparently totally self confident lawlessness, it is good to be able to acknowledge the presence of mind, courage and decency of one of those at the scene, the doorman of a fast food restaurant who admitted the deceased, who was still ambulatory but in a dying condition, and locked the door of the premises after him thus preventing the entry of the killer. Thus excluded, the latter struck the window with his hand, leaving a mark of the hand outlined in blood on the window. This handprint will obviously be a significant feature of the trial, if it is permitted to continue. Like Mr. Justice Geoghegan, I consider that it is a significant feature on this application as well.

Two disasters.

10 Despite the aggravated and acute nature of the case and the great public concern it caused, it was treated with an absolute lack of urgency by the office of the Director of Public Prosecutions. The case was, as the learned trial judge remarked, processed with admirable dispatch by the gardaí and the State Solicitors' office. The gardaí sent the file to the latter office on the 14 ^th March, 2002, who were able to forward it to the Director of Public Prosecutions on the 21 ^st March of that year. But the Director failed to give his directions as to what was to be done in the case until eighteen months later, in September 2003. The accused was then arrested, charged and spent something over two months in custody. The case was remanded on a number of occasions due to a failure on the part of the Director of Public Prosecutions to have the Book of Evidence ready within the statutory time or in any of the numerous extensions of time which he was granted. These extensions became shorter as time went on, as the Director maintained that the book was almost ready; but it was never actually produced. The case was struck out on the 18 ^th December, 2003.

11 Though this event did not operate as a bar to the further prosecution of the accused it was a grave set back to the State and it should certainly have led (as no doubt the learned District Judge who struck the case out intended) to great dispatch in dealing with the matter thereafter. But nothing of the sort occurred. Some...