Cunningham v The President of the Circuit Court

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 21 June 2012
• Neutral Citation: [2012] IESC 39
• Court: Supreme Court
• Docket Number: [S.C. No.
• Date: 21 June 2012

Cunningham v President of the Circuit Court & DPP

Between/

Cecily Cunningham

Applicant/Appellant

and

The President of the Circuit Court and The Director of Public Prosecutions

Respondents

[2012] IESC 39

Denham C.J.

Hardiman J.

Clarke J.

[Record No: 233/07]

THE SUPREME COURT

PRACTICE AND PROCEDURE

Costs

Mootness - Appeal - Judicial review - Application to prohibit criminal trial - Nolle prosequi entered - Judicial review proceedings rendered moot - Whether proceedings rendered moot by unilateral act of second respondent - Whether applicant entitled to costs of judicial review proceedings - Telefonica O2 Ireland Ltd v Commission for Communications Regulation [2011] IEHC 380, (Unrep, Clarke J, 11/10/2011) approved - Costs of hearing and appeal granted (233/2007 - SC - 21/6/2012) [2012] IESC 39

Cunningham v President of the Circuit Court

Facts: Ms. Cunningham was charged with offences relation to the contamination of blood products. She had sought to prohibit or prevent the prosecution on grounds of delay. The High Court had found that while there had been prosecutorial delay that the balance of justice favoured the prosecution being brought to finality and no order as to costs was made. A nolle prosequi was entitled in the criminal proceedings. The Director was not willing to discharge the costs in the matter. The Court considered the question of costs and the ordinary rule as to costs following the event. The Court considered how the proceedings had become moot due to a unilateral decision of the DPP. The DPP argued that the costs of both the High Court and Supreme Court appeal would have been dependent on the result of the appeal on the merits.

Held by Clarke J. (Denham CJ, Hardiman J concurring) that it was appropriate to characterise the case as one which had become moot by reason of the unilateral action of the DPP. There were no sufficiently weighty countervailing factors to lead the Court to depart from the general rule that costs of an issue which had become moot by the unilateral action of one party should be awarded against that party. Ms. Cunningham would be awarded the costs of both the High Court and the Supreme Court appeal to be taxed in default of agreement.

OFFENCES AGAINST PERSON ACT 1861 S23

RSC O.99 r4

GRIMES v PUNCHESTOWN 2002 4 IR 515

SPUC v COOGAN (NO 2) 1990 1 IR 273

TELEFONICA O2 IRELAND LTD v COMMISSION FOR COMMUNICATIONS REG UNREP CLARKE 11.10.2011 2011/47/13283 2011 IEHC 380

MURRAY & ANOR v COMMISSION TO ENQUIRE IN TO CHILD ABUSE 2004 2 IR 222

1. Introduction

2 1.1 These proceedings have, as their backdrop, the issues in relation to the contamination of blood products which were the subject of the Finlay Tribunal in 1996-1997. Arising out of those events the applicant/appellant ("Ms. Cunningham") was, in July 2003, charged with seven offences contrary to s.23 of the Offences Against the Person Act, 1861 which alleged that she was one of the persons responsible for contaminating blood products in 1977, insofar as four of the alleged offences were concerned, and in 1991 so far as the other three offences were concerned.

3 1.2 Subsequent to her return for trial to the Circuit Criminal Court in September, 2003 Ms. Cunningham commenced these judicial review proceedings seeking to prohibit or prevent her prosecution on the grounds of delay. Leave to seek judicial review was given by the High Court (O'Sullivan J.) in November, 2003. The substantive judicial proceedings were heard in February, 2007 with judgment being delivered by McKechnie J. on the 6 ^th July, 2007. In brief terms McKechnie J. determined that, while there had been prosecutorial delay, the balance of justice favoured the prosecution being brought to finality in all the circumstances of the case. No order as to costs was made. Ms. Cunningham appealed that decision. There was no cross appeal by the Director of Public Prosecutions ("the D.P.P.") on the finding of prosecutorial delay.

4 1.3 While the appeal to this court was pending a significant development occurred in that the D.P.P., in December, 2008, notified Ms. Cunningham that he intended entering nolle prosequi in the criminal proceedings. Those nolle prosequi were actually entered on the 12 ^th January, 2009. It follows that the question of whether it would have been appropriate to prohibit the criminal trial on the grounds of prosecutorial delay is now moot. Against that backdrop the only issue which remains for consideration by this court is the question of costs.

5 1.4 In those circumstances it is appropriate to turn to certain aspects of the procedural history both of these proceedings and of the criminal proceedings which might, on at least one view, be relevant to the question of costs.

2. Procedural History

2 2.1 In addition to the brief outline referred to above a number of other aspects of the process relevant both to the underlying criminal prosecution and these judicial review proceedings require to be noted. The first is to note that, not long after the report of the Finlay Tribunal was published, it appears that the D.P.P. took a decision not to prosecute Ms. Cunningham. It seems that the matter then under consideration was a possible prosecution for manslaughter rather than the offences with which Ms. Cunningham was ultimately charged. It was accepted that the D.P.P. was entitled, nonetheless, to bring the relevant charges against Ms. Cunningham in 2003.

3 2.2 The next matter of note requires reference to Professor J.J. Hoppe, who was, it would appear, an intended expert witness (and also partly a witness as to fact) on the part of the prosecution. A statement from Professor Hoppe was included in the book of evidence served on Ms. Cunningham prior to her return for trial. It will be recalled that Ms. Cunningham was returned for trial in September, 2003 but that the criminal process was arrested when these judicial review proceedings commenced in November of the same year. In June, 2004, some nine months after Ms. Cunningham had been returned for trial and some seven months after the commencement of these judicial review proceedings, Professor Hoppe unfortunately died.

4 2.3 It would also appear that, immediately before the commencement of the substantive hearing of the judicial review proceedings in the High Court, counsel for Ms. Cunningham was informed by counsel for the D.P.P. of the death of Professor Hoppe but was also informed that it remained the intention of the D.P.P. to continue with the criminal proceedings.

5 2.4 It should also be noted that, when an appeal to this court was lodged, a subsequent application gave rise to a stay on the criminal trial pending the hearing of the appeal in this court.

6 2.5 It also needs to be noted that, in the light of the entering of nolle prosequi, an application was brought before this court on behalf of Ms. Cunningham, by motion returnable on the 4 ^th May last, in which it was sought to adduce further evidence being an affidavit of William Egan, solicitor, dated the 28 ^th February of this year. The reason for seeking to adduce that additional evidence was because the principal issue which would have been the subject of the appeal, i.e. the question of whether the criminal trial should be prohibited, had become moot and the only issue which remained was as to costs. Mr. Egan's affidavit was directed towards the circumstances in which, to his knowledge, nolle prosequi were entered. There was no opposition on the part of the D.P.P. to the filing of that additional evidence. However, in response, an affidavit was filed by Det. Sergeant Sean Hogan of the National Bureau of Criminal Investigation. It is next necessary to turn to the circumstances surrounding the entry of nolle prosequi as appear from those affidavits.

3. The Nolle Prosequi

2 3.1 At paragraph 3 of his affidavit Det. Sergeant Hogan states that An Garda Síochána only became aware of the death of Professor Hoppe during the course of the judicial review proceedings in February, 2007 and conveyed that information immediately to counsel for the D.P.P. who in turn informed both the court and his opposite number. It is confirmed that the view of the D.P.P. at the relevant time was that the death of Professor Hoppe did not necessarily mean that the prosecution should be dropped.

3 3.2 Next it is said that, subsequent to the judgment of the High Court in these judicial review proceedings, a review of the case was conducted and amongst the matters decided on was that inquiries should be conducted in Germany (where Professor Hoppe resided) with a view to ascertaining if there were any witnesses available "who could replicate the evidence that it had been anticipated Professor Hoppe would give at the criminal trial". Details are then given of further inquiries which took place with interested parties, experts and authorities in Ireland, Germany, Canada and France. While details of the various inquiries engaged in are not given it is said that, as a result of those inquiries, a report was produced which was considered by the D.P.P. It is said that, on consideration of that report, the D.P.P. decided that the criminal proceedings should not go ahead and, as previously noted, Ms. Cunningham was informed of that fact and nolle prosequi were ultimately entered.

4 3.3 It should be noted that counsel for the D.P.P., in oral argument, suggested that it should not be inferred from the affidavit of Det. Sergeant Hogan that problems associated with the death of Professor Hoppe were the only matters which were investigated by An Garda Síochána subsequent to the hearing of these judicial review proceedings in the High Court. On that basis it is suggested that it should not be inferred that the problems associated with the unavailability of Professor Hoppe were...