Cunningham v President of the Circuit Court and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 06 July 2007
• Neutral Citation: [2007] IEHC 473
• Court: High Court
• Docket Number: [2003 No.
• Date: 06 July 2007

[2007] IEHC 473

THE HIGH COURT

No. 798 J.R./2003

Cunningham v President of the Circuit Court & DPP

JUDICIAL REVIEW

BETWEEN

CECILY CUNNINGHAM

APPLICANT

AND

THE PRESIDENT OF THE CIRCUIT COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CONSTITUTION ART 38

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

CONSTITUTION ART 38.1

O'CONNELL, STATE v FAWSITT 1986 IR 362

DPP v BYRNE 1994 2 IR 236

M (P) v DPP 2006 3 IR 172

M (P) v DISTRICT JUDGE MALONE & DPP 2002 2 IR 560

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

H (P) v DPP UNREP SUPREME 29.1.2007 2007 IESC 3

K (C) v DPP UNREP SUPREME 31.1.2007 2007 IESC 5

B (J) v DPP UNREP SUPREME 29.11.2006 2006 5/797 2006 IESC 66

CONSTITUTION 6TH AMDT (US)

HEALY, STATE v DONOGHUE 1976 IR 325

KLOPFER v NORTH CAROLINA 1967 386 US 213

C (P) v DPP 1999 2 IR 25

SINGER (NO 2) 1960 98 ILTR 112

BARKER v WINGO 1972 407 US 514

KNOWLES v MALONE & HUSSEY & DPP UNREP MCKECHNIE 6.4.2001 2001/13/3778

CAHALANE v MURPHY & DPP 1994 2 IR 262

HOGAN v PRESIDENT OF CIRCUIT COURT 1994 2 IR 513

ROAD TRAFFIC ACT 1961 S49

G v DPP 1994 1 IR 374

B v DPP 1997 3 IR 140

H v DPP UNREP SUPREME 31.7.2006 2006/27/5802 2006 IESC 55

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

STRUNK v UNITED STATES 412 US 434

UNITED STATES v ELMARDOUDI 501 F3d 935 944 (8th Cir 2007)

DUNNE v DPP 2002 2 IR 305 2002 2 ILRM 241 2002/7/1645

BRADDISH v DPP & HAUGH 2001 3 IR 127 2002 1 ILRM 151

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD v AG 1970 IR 317

OFFENCES AGAINST THE PERSON ACT 1861 S23

CRIMINAL EVIDENCE ACT 1992 S4

CRIMINAL EVIDENCE ACT 1992 S5

CRIMINAL EVIDENCE ACT 1992 S6

CRIMINAL EVIDENCE ACT 1992 S30

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997

CRIMINAL LAW

Delay

Right to fair trial - Right to expeditious trial - Prohibition of trial - Prejudice - Availability of evidence - Evidence obtainable by means other than original source - Whether trial should be prohibited where no actual prejudice shown - Whether delay amounted to breach of right to trial with reasonable expedition PH v DPP [2007] IESC 3, (Unrep, SC, 29/1/2007), JB v DPP [2006] IESC 66, (Unrep, SC, 29/11/2006) and DC v DPP [2005] IESC 77, [2005] 4 IR 281 followed - Relief refused (2003/798JR - McKechnie J - 6/7/2007) [2007] IEHC 473

Cunningham v President of the Circuit Court

1 Mr. Justice William M. McKechnie delivered the 6th day of July, 2007.

Background

2 1. The applicant in the above entitled proceedings joined the Blood Transfusion Service Board (hereafter known as the B.T.S.B.) in 1967 and from 1974 onwards, held the grade of Principal Biochemist working largely in the Fractionation Department at Pelican House. She continued in that role until, having previously taken sick leave, she formerly resigned in February, 1999. This Department was responsible for the production of a substance known as Anti-D, which was a specific immunoglobulin given to mothers to prevent them becoming immunised to rhesus antigen. This substance had, as its raw material, human plasma which was obtainable from donors within the general public. It was normally produced in batch units which were then subdivided into doses. Unfortunately some batches became contaminated in that the relevant donors, who for the purpose of this case have been identified as patient "X" and donor "Y", had contacted Hepatitis C prior to their plasma being taken, and of course prior to its use in the manufacture of Anti D. Most tragically a great number of people became directly affected by the end product and many died. Many more suffered great and permanent damage to their person and their bodily structures. The entire episode and the enduring consequences which are felt even to this day, have seriously traumatised the lives of many people and their families.

3 2. In February, 1994 Dr. Jane Power, a Consultant Haematologist, established a definite link between the administration of Anti D and the subsequent development of Hepatitis C in some of those to whom the product was given. There was widespread condemnation with public and political outcry as a result. In 1994, the then Minister for Health, established an expert group to investigate "all the circumstances surrounding the infection of the Anti D Immunoglobulin product, manufactured by the Board." That report was published in January, 1995. In October, 1996 a Tribunal of Inquiry was set up under the former Chief Justice to enquire into and to make recommendations on this issue and all other related matters. Mr. Justice Finlay reported in March, 1997. That report was then sent to the Director of Public Prosecutions (hereinafter the "D.P.P." or the "Director"). A Garda investigation followed and ultimately the D.P.P decided to prosecute two people, Ms. Cunningham and a Dr. Walsh, who has since died. Alleging that the applicant had a responsibility for the production and issue of two contaminated batches in 1977 and two further such batches in 1991, the D.P.P levelled certain specific charges against her. On 28 ^th July, 2003, Ms. Cunningham was charged with seven offences contrary to s. 23 of the Offences Against the Person Act, 1861. Four of these relate to the time period between 28 ^th May, 1977 and 10 ^th August, 1977, with the other three covering the period from 10 ^th December, 1991, to 14 ^th April, 1992. Each charge, which relates to a different lady, has a common form and reads as follows:-

"For that you the said accused did, on or about the 10 ^th December, 1991, at Holles Street Hospital, Holles Street, Dublin 2 in the Dublin Metropolitan District, unlawfully and maliciously cause a noxious thing, namely infected Anti D Immunoglobulin, to be taken by (injured party) thereby inflicting on (injured party) grievous bodily harm."

4 The continuation of this prosecution stands aside to await the final outcome of this judicial review application.

5 3. On 3rd November, 2003, the applicant was given leave, by O'Sullivan J., to seek an order prohibiting the continuation of her trial on the grounds of delay and prejudice. In specific terms she seeks a declaration "that the delay in instituting the criminal proceeding" and "in bringing them to a hearing" has prejudiced her generally and specifically with regard to her right to a fair trial, and that such delay is of a type where prejudice can be inferred. She relies on Article 38 and 40.3 of the Constitution in this regard as well as article 6 of the European Convention on Human Rights. Her Solicitor, Mr. William Egan of Egan Cosgrave and Associates, has sworn the grounding affidavit on her behalf. As is customary, the first named respondent has taken no part in these proceedings with the D.P.P. acting as " legitimus contradictor". In the Statement of Opposition which has been filed, there is a clear denial of any delay on the part of either the investigatory or prosecutorial agencies of this State and the allegation of prejudice is strongly rejected. In addition it is alleged that the Garda investigation was complex, containing much documentary material, and as a large number of complaints were received, the interview process itself involved more than 70 people. Given these and other circumstances the case was such as to be correctly described as being one of the most complicated ever mounted by that force. There was therefore no culpable delay which could justify the termination of the criminal proceedings. In support of this opposition, the principal replying affidavit was sworn by Detective Superintendent John O'Mahony, who together with a colleague of equal status, headed the criminal investigation into the matters referred to. There were two further affidavits sworn by Professional Officers with the D.P.P. who were cross examined on the role of that office in this case. Both parties made oral submissions supporting the comprehensive written documents previously submitted for this Courts assistance.

6 For completeness I should say that during the documentation process, an issue arose with regard to discovery which gave rise to a judgment of the Supreme Court delivered on the 26 ^th February, 2006; Cunningham v. President of the Circuit Court, [2006] 3 I.R. 541. That issue is no longer relevant to this case.

7 4. At the outset it is important to set out the most significant dates, events and circumstances which constitute the background to this application. In so doing I propose to give, in general terms only, a chronology of such events and later in the judgment to comment in more detail on certain specific matters. This chronology is as follows:

24 th Feb, 1977 - 3 rd May, 1977:	Manufacture, production and issue of Batch No. 237 - allegedly contaminated;
28 th Feb, 1977 - 13 th May, 1977:	Manufacture, production and issue of Batch No. 238 - allegedly contaminated;
28 th May, 1977 - 10 th August, 1977:	Dates of four alleged offences;
22 nd July, 1991 - 1 st Nov, 1991:	Manufacture, production and issue of Batch No. 576 - allegedly contaminated;
9 th Sept, 1991 - 20 th Nov, 1991:	Manufacture, production and issue of Batch No. 578 - allegedly contaminated;
10 th Dec, 1991 - 14 th April, 1992:	Dates of remaining three alleged offences;
February, 1994:	Dr. Joan Power, establishes a definite link between the administration of Anti-D products and the subsequent development of Hepatitis C in some recipients;
1994:	B.T.S.B. puts in place a national screening programme to deal with this matter;

4 th March, 1994:	An expert group is established by the Minister for Health to investigate all relevant circumstances surrounding this contamination and infection;
January,...