C. O'T v President of the Circuit Court of Criminal Appeal and Another

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 26 July 2005
• Neutral Citation: [2005] IEHC 263
• Court: High Court
• Docket Number: 221JR/2002
• Date: 26 July 2005

O'T (C) v PRESIDENT OF THE CIRCUIT COURT OF CRIMINAL APPEAL & DPP

O'T (C) v PRESIDENT OF THE CIRCUIT COURT OF CRIMINAL APPEAL & DPP

JUDICIAL REVIEW

C.O'T

APPLICANT

And

PRESIDENT OF THE CIRCUIT COURT OF CRIMINAL APPEAL

RESPONDENTS

And

DIRECTOR OF PUBLIC PROSECUTIONS

[2005] IEHC 263

221JR/2002

THE HIGH COURT

DUBLIN

CRIMINAL LAW:

Delay

Prosecutorial delay - Institution of proceedings - Right to expeditious trial - Whether necessary to establish prejudice - Factors to be considered - Delay between suspicion and charge - Whether delay excessive - Information "leaked" to media - Prospect of fair trial - PO'C v DPP [2000] 3 IR 87; PL v Buttimer [2004] IESC 110, [2004] 4 IR 494 and Guihen v DPP [2004] IEHC 231 (Unrep, O'Leary J, 29/7/2004) followed - Prohibition granted (2002/221JR - Smyth J - 26/7/2005) [2005] IEHC 263

Ó Tighearnaigh v President of Circuit Court

Facts: the applicant was charged with criminal offences relating to defrauding a charity. There was a period of two and a half years between suspicion and the taking of statements from him and the making of the charge. He sought, inter alia, an injunction restraining his further prosecution on the grounds that the delay in instituting the criminal proceedings had prejudiced him in obtaining a fair trial and that the delay was referable solely to the prosecuting authorities.

Held by Smyth J in granting an injunction preventing the further prosecution of the applicant that the delay in the case was excessive and raised an inference that the risk of an unfair trial had been established as a reality. Pressure of work on the prosecuting authorities was not a valid justification for the delay.

Reporter: P.C.

BANKERS BOOKS EVIDENCE (AMDT) ACT 1959

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 8

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

O'C (P) v DPP 2000 3 IR 87

L (P) v JUDGE BUTTIMER & DPP 2004 4 IR 494 2004/27/6186 2004 IESC 110

K (M) v GROARKE & DPP UNREP SUPREME 25.6.2002 2002/14/3322

MULREADY v DPP 2001 ILRM 382

W (A) v DPP UNREP HIGH COURT KEARNS 23.11.2001 2001/24/6472

M (J) v DPP UNREP SUPREME 28.7.2004 2004/29/6677 2004 IESC 47

COMPANIES ACT 1963 S297

LARCENY ACT 1861 S82

FALSIFICATION OF ACCOUNTS ACT 1875 S1

CRIMINAL JUSTICE ACT 1951 S10

LARCENY ACT 1916 S20(1)(iv)(A)

HANNIGAN v CLIFFORD 1989 IR 524 1990 ILRM 65

O'CONNELL, STATE v FAWSITT 1986 IR 362 1986 ILRM 639

BRENNAN, STATE v CONNELLAN UNREP HIGH COURT HAMILTON 17.6.1986 1987/1/110

C v DPP & BRENNAN 1999 2 IR 45

P (P) v DPP 2000 1 IR 403

CAHALANE v MURPHY 1994 2 IR 279 1994 2 ILRM 383

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

F (B) v DPP 2001 1 IR 656

GUIHEN v DPP 2005 3 IR 23 2004/20/4569 2005 IEHC 231

HANAHOE T/A MICHAEL E HANAHOE & CO v HUSSEY & CMSR OF AN GARDA SIOCHANA & ORS 1998 3 IR 69

1 JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED 26th DAY OF JULY 2005

2 The Applicant has been charged with 42 offences relating to a period when he was Chief Executive of a charity. The offences are alleged to have occurred between 1 December 1998 and 31 December 1998. The charges relate to the manner in which monies collected on behalf of the charity were allegedly dealt with by the Applicant, including the falsification of accounts, false pretences and fraudulent conversion of these monies. The bulk of the charges were laid in respect of specific incidents and specific dates involving specific persons.

3 The allegations out of which these charges were brought first came to the attention of An Garda Síochána in late December 1998 as a result of a newspaper report. On 22 December 1998 statements were taken from three central witnesses who were collectors for the charity. By January 1999 most of the statements in the Book of Evidence had been taken. The Applicant was questioned by the Gardaí on 28 January 1999 and released without charge. On 25 February 1999 a statement was taken from one P.C. and three further statements from other persons were taken between 3 and 19 March 1999. In the period March to May 1999 orders were obtained from the District Court under the Bankers Books Evidence Act. While such were sought and obtained "in camera", news of their making was reported in the media. On 13 July 1999 the Book of Evidence was sent to the Respondent.

4 For some two and a half years the "case" did not move forward. No affidavit was sworn by the Respondent or on his behalf. The Chief Prosecuting Solicitor has sworn an affidavit and relies on pressure of work as an explanation for certain delays.

5 On 17 December 2001 the Gardaí indicated to the Applicant that they wished to arrest and charge him- which they did the following day. On 8 January 2002, forty one additional charges (to the single charge of 18 December 2001) were preferred against the Applicant

6 Murphy J. granted leave by Order of 29 April 2002 which permitted the Applicant to apply for:

7 a A. An injunction preventing his further prosecution on the grounds that:

8 (i) The delay in instituting the criminal proceedings has prejudiced the Applicant in obtaining a fair trial.

9 (ii) The delay is such as to lead to an inference of prejudice without additional proof.

10 (iii) The delay is unfair and unconstitutional and in breach of the European Contravention for the Protection of Human Rights and Fundamental Freedoms 1950. (The Convention)

11 (iv) The Applicant's right to an expeditious trial has been breached.

12 b B. Declaratory relief in relation to an alleged leaking of details of the Applicant's detention and the investigation into the charges against him, which it is alleged constitute a breach of his constitutional rights to privacy, to a trial in due course of law and to his good name, as well as constituting a breach of Article 8 of the Convention.

13 c C. The charges laid against the Applicant were duplicitous and an abuse of process.

14 The Respondent opposed the relief on the grounds that:

15 1. There has been no inordinate delay in bringing the charges against the Applicant and accordingly there has been no violation of his constitutional rights.

16 2. If there has been inordinate delay, it has not has the effect of violating the Applicant's constitutional rights.

17 3. There has been no breach of Article 6( 1) or 8 of the Convention.

18 4. The "authorities" in particular the members of An Garda Síochána investigating the allegations against the Applicant, deny leaking details about the Applicant's detention and the progress of the investigation. The "authorities" deny being involved in a conspiracy to vilify the Applicant or to deprive him of his constitutional rights.

19 5. The charges are not bad for duplicity, and even if so that is not a substantial ground for granting the relief sought.

20 It is settled law that the prosecution of indictable offences is subject to no general limitation period (P.O'C -v- DPP [2000] 3IR, 87, 93 per Keane C.J., 97 per Denham J.), the Courts have to balance factors and determine whether prohibition would be reasonable or not. (P.L. -v- Judge Buttimer and the DPP, unreported Supreme Court, December 20, 2004 per Geoghegan J. at p9).

21 A criminal trial may be stayed by reason of lapse of time between the date of the alleged offences and the likely date of the trial - provided the accused can demonstrate, on the balance of probabilities, that the passage of time has created a real and serious risk of a permanent defect going to the root of the trail, such that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences. (M.K. -v- Judge Groarke and the DPP, unreported Supreme Court June 25, 2002 pp11-12.

22 Where delay is alleged as a ground for prohibition the overall period of delay must be broken down and examined in some detail; and, an adjudication as to whether an accused has been deprived of his right to a reasonably expeditious trial can only be made on an ad hoc basis; among the factors to be considered are the length of the delay, the reason for the delay, the accused's assertion of his right and prejudice to the accused. In all cases, the onus of showing a breach of the right to a trial with reasonable expedition rests with the accused. (Mulready -v- DPP [2001] ILRM 382).

Prosecutorial Delay.

23 In A.W. -v- DPP (unreported, the High Court 23 November 2001) the mean time of six to eight weeks for processing a file to a decision (to prosecute) in 1997 was given in evidence. (In the instance case no such specific evidence is given). In that case of A.W., Kearns J. stated that:

"Where prosecutorial delay may be shown to have occurred, it is clear that the Court should not allow the case to proceed and additional prejudice need not be proved".

24 Again in J.M. -v- DPP (unreported, the Supreme Court 28 July 1994) McCracken J. delivering the judgment of the Court stated that:

"There are cases where a prosecutorial delay may be so blameworthy .... as to justify the prohibition of the trial with nothing further."

25 In my judgment the period of delay requiring critical examination is that between 13 July 1999 and 18 December 2001. In the affidavit of Detective Inspector John McCann sworn on 15october 2002 this period is dealt with in paragraphs 11 to 16 inclusive. The evidence is, that notwithstanding forwarding the main investigation files to the Respondent's office on 13 July 1999, an additional copy of the file was forwarded on 16 August 1999. On 16 September the Respondent's office sent a letter enclosing Counsel's opinion on the matter to the Garda Bureau of Fraud Investigation and thereafter correspondence was entered into between counsel for the DPP, the Gardaí and the DPP during the months September 1999, January 2000 and March 2000. On...