Byrne v DPP

• Jurisdiction: Ireland
• Judge: Mr Justice Michael Peart
• Judgment Date: 22 July 2005
• Neutral Citation: [2005] IEHC 243
• Court: High Court
• Docket Number: [2005 No. 155 J.R.]
• Date: 22 July 2005

[2005] IEHC 243

THE HIGH COURT

Record Number:162 JR/2005

BYRNE v DPP

Between:

Robert Byrne

Applicant

And

The Director of Public Prosecutions

Respondent

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CONSTITUTION ART 38.1

DPP v ARTHURS 2000 2 ILRM 363

MAGUIRE v DPP 2005 1 ILRM 53

MULREADY v DPP 2001 1 ILRM 382 [REPORT ONLY]

CAREY FINN v DPP 2003 1 ILRM 217

DPP v BYRNE 1994 2 IR 236 1994 2 ILRM 91

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

EXTRADITION ACT 1965 S50(2)(bbb)

Delay

Summary offence - Right to fair trial - Right to expeditious trial - System delay - Whether delay culpable - Whether prejudice must be shown - Whether delay gave rise to inference of prejudice - Director of Public Prosecutions v Arthurs [2000] 2 ILRM 363 and Maguire v Director of Public Prosecutions [2004] IESC53, [2005] 1 ILRM 53 followed; Mulready v Director of Public Prosecutions [2001] 1ILRM 382 and Finn v Director of Public Prosecutions [2003] 1 ILRM 217 distinguished - Non-Fatal Offences Against the Person Act 1997 (No 26), s 3 -Constitution of Ireland 1937, art 38.1 -Prohibition granted (2005/162JR - Peart J -22/7/2005) [2005] IEHC 243, [2005] 2 IR 310 - Byrne v DPP

1 Mr Justice Michael Peart delivered on the 22nd day of July 2005:

2 The applicant faces a charge, arising out an alleged workplace incident on the 3rd March 2003, of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997. After the hearing date for the summary disposal of the matter had been adjourned (not for the first time) on the 3rd February 2005, until 13th July 2005, the applicant applied for leave to commence judicial review proceedings for the purpose of restraining the further prosecution of the charge on the grounds that there has been gross, inordinate and excessive delay in bringing the matter to a hearing which violates the applicant's right to a trial with reasonable expedition. That delay is in the order of two years and four months from the date of the alleged offence.

3 The applicant submits that this delay creates a substantial risk that any trial of the applicant would be unfair and therefore not in accordance with law, and furthermore that the length of the delay since the date of the alleged offence is so excessive and inordinate that it necessarily gives rise to an inference that there is such a real risk of an unfair trial.

4 A further ground relied upon in the Statement of Grounds and upon which leave was granted is that the applicant's ability to defend himself against the charge has been prejudiced to a degree which is constitutionally impermissible.

5 The applicant submits that he has at no stage contributed to or caused the delay of two years and four months. He says, first of all, that the complainant himself delayed in making a decision to pursue the matter of a prosecution of the applicant. He also submits that there has been what I will refer to as "system delay" on the part of the organs of the State in providing him with a hearing of the charge against him within a reasonable time.

6 I will set out the brief chronology of events which have resulted in this passage of time.

7 The alleged offence occurred on the 3rd March 2003. It was not until the 29th August 2003, that a summons was issued against the applicant, almost six months after the date of the alleged offence

8 The return date for this summons was the 13th February 2004, almost one year after the date of the alleged offence.

9 On that return date the matter was adjourned until the 11th March 2004 as the respondent had not yet provided the necessary direction to have the matter dealt with summarily.

10 On the 11th March 2004, that direction was available, but the matter was further put back to the 2nd April 2004 so that arrangements could be put in place to have video facilities in place as some of the trial would involve the viewing of some security video footage.

11 On the 2nd April 2004 a date was fixed for the hearing of the charge on the 8th September 2004 (half a day being set aside for the case), being one year and six months after the date of the alleged offence.

12 However on the 8th September 2004 the case was not heard as the District Judge assigned to the case was required to deal with other matters in another court in the Richmond Hospital Court complex. The case was once more adjourned, and this time to the 3rd February 2005, almost two years after the date of the alleged offence.

13 On the 3rd February 2005, the case as again not heard as the District Judge assigned to hear the case was again required to deal with other work, and the matter was further put back for hearing until the 13th July 2005. By that date lapse of time would have been in the order of two years and four months in respect of a matter which, although an indictable offence, was one deemed appropriate for summary disposal in the District Court.

14 It must be borne in mind also, given that the applicant has acted with due expedition in relation to these proceedings for judicial review, that if the Court did not restrain the further prosecution of this charge against him, the matter might be at a minimum yet another six months in the system prior to its disposal.

15 Conor Devally SC has referred the Court to a number of cases which he submits supports the view being put forward in this application that the delay which has occurred is such that the further prosecution of the applicant should be restrained on the basis that the applicant's right to a reasonably expeditious hearing has been breached and that therefore any hearing of the charge would not be a hearing in due course of law, as he is entitled to by virtue of Article 38.1 of the Constitution.

16 It is submitted that it is undisputed that the applicant has not contributed in any way to these lengthy delays, and that the prosecuting authorities had all the statements which they needed and the CCTV footage at a very early stage and that there was o reason other than, first of all, the complainant's own delay in deciding to press the charge, and secondly the various delays coming under the heading of system delay. There is no real contest the respondent about this assertion. The issue turns really on how the case law which has developed in this area should be applied to this particular case. Each case must of course turn on its own peculiar facts, and I have set out in detail the various matters which are relevant in that regard.

17 In particular, Mr Devally has referred the Court to, and relies upon the judgment of O'Neill J. in Director of Public Prosecutions v. Arthurs [2000] 2 ILRM 363; and also to the judgment of Hardiman J. in Maguire v. Director of Public Prosecutions [2005] 1 ILRM 53, in which, Mr Devally submits, the learned judge of the Supreme Court approved of the reasoning of O'Neill J. in Arthurs.

18 In his helpful written submissions, Mr Devally has drawn attention to a number of passages from Arthurs indicating that after a careful and thorough analysis of the authorities, the learned judge was satisfied that in a case of a clearly excessive and inordinate delay, it is not necessary that the applicant should have to go so far as to show actual prejudice, but that because of the difficulty of doing so with accuracy or precision, the Court can infer prejudice arising to the applicant because of the length of the delay, and perhaps other factors such as the nature of the case and the evidence likely to be adduced. The learned judge stated at page 371 of his judgment:

"In the present case the delay from the time of the offence to the trial was two years and three months approximately. For summary proceedings a delay of this length is well beyond what would be considered on any view to be an appropriate time frame in which a summary trial should be completed and is in my opinion inordinate and excessive."

19 The learned judge went on to remark that where there was an initial delay up to the commencement of the prosecution, the authorities had to be particularly vigilant to ensure that further delays in having the matter disposed of were eliminated. That remark seems particularly apt in the present case.

20 At page 376 of his judgement, O'Neill J. stated:

"If it is the case that an accused person has a right under the Constitution to a speedy or expeditious trial, a necessary corollary of that right is that there rests upon the State a duty to ensure that all reasonable steps are taken to ensure such a speedy trial is provided. This must necessarily mean conducting the investigation and prosecution in a manner which, in so far as it is reasonably practicable, eliminates unnecessary delay, and must additionally mean that such resources as are necessary for the orderly and expeditious processing of criminal cases through the courts are provided."

21 At page 377, he stated further:

"A failure on one occasion to get a trial on because of an overcrowded court list could be said to be an unfortunate mishap, not necessarily involving any fault on the part of the State. Where, as in this case, this mishap is repeated two further times, the inference that these delays are the result of a failure on the art of the State to have provided adequate resources so that the District Court could deal with the cases before it in an expeditious manner is inescapable."

22 Tom O'Malley BL on behalf of the respondent, on the other hand, submits that the...