Devoy v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns,Denham J.
• Judgment Date: 07 April 2008
• Neutral Citation: [2008] IESC 13
• Court: Supreme Court
• Docket Number: [S.C. No. 150 of 2006]
• Date: 07 April 2008

Devoy v DPP

Between/

John Devoy

Applicant/Respondent

and

The Director of Public Prosecutions

Respondent/Appellant

[2008] IESC 13

Denham J.

Kearns J.

Macken J.

[Appeal No: 150/2006]

THE SUPREME COURT

CRIMINAL LAW

Delay

Right to fair trial - Reasonable expedition - Blameworthy prosecutorial delay - Systemic delay - Whether significant blameworthy prosecutorial delay sufficient per se to prohibit trial - Whether applicant had to demonstrate prejudice to interest protected by right to trial by reasonable expedition - Whether nature of offence, extent of delay and alleged admissions factors to which the court could have regard - Whether particular circumstances of each case required to be put in balance - Whether proportionate to prohibit trial - Whether applicant took steps to seek expeditious trial - Whether evidence of stress and anxiety such as to require prohibition of trial - Whether real or serious risk of unfair trial - Whether applicant made out case of infringement of personal interest - PM v DPP [2006] IESC 22, [2006] 3 IR 172, PM v Malone [2002] 2 IR 560, MO'H v DPP [2007] IESC 12, [2007] 3 IR 299, DPP v Byrne [1994] 2 IR 235, B v DPP [1997] 3 IR 140, DPP v Arthurs [2000] 2 ILRM 363 and Barker v Wingo (1972) 407 US 514 approved - Respondent's appeal allowed (150/2006 - SC - 7/4/2008) [2008] IESC 13

Devoy v DPP

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

DPP v BYRNE 1994 2 IR 236

M (P) v MALONE 2002 2 IR 560

O'H v DPP UNREP SUPREME 28.3.2007 2007 IESC 12

BARKER v WINGO 1972 407 US 514

B v DPP 1997 3 IR 140

DPP v BYRNE 1994 2 IR 236

CONSTITUTION ART 38.1

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361

DPP v ARTHURS 2000 2 ILRM 363

MCFARLANE v DPP UNREP SUPREME 5.3.2008 2008 IESC 7

CONSTITUTION 6TH AMDT (US)

S (A) v DPP UNREP SUPREME 17.10.2007 2007 IESC 43

1 Judgment delivered the 7th day of April, 2008by Denham J.

2 1. This appeal raises issues of delay in prosecuting criminal offences. It is one of a number of cases which were decided in the High Court at a time when the jurisprudence was being clarified by this Court.

3 2. This is an appeal by the respondent/appellant, the Director of Public Prosecutions, hereinafter referred to as 'the D.P.P.', from the order and judgment of the High Court (O'Donovan J.) given on the 21st March, 2006, which granted an injunction restraining the further prosecution of John Devoy, hereinafter referred to as 'the applicant', on the charges referred to in this appeal.

4 3. On the 4th July, 2005 the High Court (McKechnie J.) gave the applicant leave to apply for judicial review on stated grounds.

5 4. On the 28th March, 2006 the High Court ordered that the D.P.P. be restrained from taking any further steps in the criminal proceedings being the subject matter of this application and bearing Bill Number 353/05 The People at the suit of the Director of Public Prosecutions and John Devoy.

6 5. The applicant was originally charged on the 19th October 2001 with four offences alleged to have been committed on the 17th October 2001. These charges were:

7 2 "1. For that you the said accused, on the 17th day of October 2001 at 16 Balbutcher Drive, Ballymun, Dublin in the Dublin Metropolitan District, did without lawful excuse damage property to wit: one sitting room window, to the amount of £200, the property of John Cray, intending to damage such property or being reckless as to whether such property would be damaged.

8 Contrary to Section 2 Criminal Damage Act, 1991

9 2. For that you the said accused on the 17th day of October, 2001 at 16 Balbutcher Drive, Ballymun, Dublin in said Dublin District Area of Dublin Metropolitan District, did discharge a firearm being reckless as to whether any person was injured or not.

10 Contrary to section 8 Firearms and Offensive Weapons Act, 1990.

11 3. For that you the said accused on the 17th day of October, 2001 at 16 Balbutcher Drive, Ballymun, Dublin in said Dublin District Area of Dublin Metropolitan District, did have in your possession a firearm, to wit a shotgun in such circumstances as to give rise to a reasonable inference that you had not got it in your possession for a lawful purpose.

12 Contrary to section 27A(1) of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law (Jurisdiction) Act, 1976 and amended by section 14 Criminal Justice Act, 1984, and as amended by section 15 of the Offences Against the State (Amendment) Act, 1998.

13 4. That you the said accused on the 17th day of October 2001 at 16 Balbutcher Drive Ballymun, Dublin in said District Court Area of Dublin Metropolitan District, did have in your possession, ammunition, to wit:- shotgun cartridges in such circumstances as to give rise to a reasonable inference that you had not got it in your possession for a lawful purpose.

14 Contrary to section 27A(1) of the Firearms Act, 1964, as inserted by section 8 of the Criminal Law (Jurisdiction) Act, 1976 and amended by section 14 Criminal Justice Act, 1984, and as amended by section 15 of the Offences Against the State (Amendment) Act, 1998."

15 6. The applicant was arrested on the day following the alleged offence, being the 18th October, 2001, was charged on the following day, and appeared in the District Court on 20th October, 2001, when he was remanded in custody, with consent to bail. The same day he was admitted to bail and released from custody. He was remanded from time to time pending the service of the book of evidence. On the 17th September, 2002, the District Court, having remanded him on six occasions, struck out the charges on the basis of the failure to serve the book of evidence. The applicant heard nothing more until 12th June, 2003 when the charges were re-entered in the District Court and a book of evidence served on the applicant. By order of the District Court on the 19th June, 2003 the applicant was sent forward for trial to the Dublin Circuit Criminal Court. At a hearing before the Circuit Court on the 17th July, 2003 the applicant's trial was fixed for 24th March, 2004. However, some days before the trial date the applicant and the court were advised by the D.P.P. that the order of the District Court dated the 19th day of June, 2003, returning the applicant for trial, was defective and that accordingly the trial listed for the 23rd March, 2004 could not proceed.

16 On the 7th September, 2004, papers were lodged in the High Court on behalf of the D.P.P. seeking an order of certiorari by way of judicial review to quash the order of the District Court dated the 19th June, 2003.

17 On the 15th November, 2004 the High Court quashed the order of the 19th June, 2003. On the 13th June, 2005, by order of the Circuit Court the applicant's trial was fixed for the 6th February, 2006.

18 The applicant then sought an order prohibiting the further prosecution of the charges before the Circuit Criminal Court on the grounds that there had been inexcusable, unwarranted and unconscionable delay by the D.P.P. in processing the charges through the District Court and Circuit Court.

19 7. The High Court found that there had been an inordinate and inexcusable delay by the D.P.P. in processing the charges. The learned High Court judge held:-

"I think it unnecessary for the purposes of this judgment that I review in detail all the explanations advanced on behalf of the [D.P.P.] in justification of the delay because it seems to me that the affidavits to which I have referred speak for themselves. However, whatever justification there may have been for the delay in preparing a book of evidence for service on the applicant (notwithstanding that it seems to me that the preparation of the case against the applicant was a relatively simple matter and not at all as complex as was suggested on behalf of the respondent and, accordingly, I have some reservations about the explanation offered in justification of that delay, I am prepared, for the purposes of this judgment, to accept that there was justification for it) the explanation offered for the delay of almost eight months in identifying the defect in the order of the 19thJuly, 2003 returning the applicant for trial, coupled with the delay of five and a half months between identifying that defect and applying to the High Court by way of judicial review to have that order quashed and aggravated by a further delay of two and a half months between the quashing of that order of the 19th July, 2003 and the re-entry of the matter before the District Court is, in my view, totally unacceptable. Since the passing of the Offences Against the State Act, 1939, the offences involving firearms with which the applicant was charged were required to be tried by the Special Criminal Court unless the Director of Public Prosecutions directed otherwise. Accordingly, in the absence of an indication on the order of the 19th day of July, 2003 returning the applicant for trial, that the Director of Public Prosecutions had directed that the applicant be not sent forward for trial by the Special Criminal Court, it is clear that that order is defective on its face. How this was not noted for a period of almost eight months between the 19th July, 2003 and the 12th day of March, 2004, despite the fact that the case was mentioned in court on three occasions in the interim, is beyond my comprehension and I can see no reasonable excuse for it. Then to compound matters, although it must have been immediately clear to anyone associated with the case that, in the event that the order returning the applicant for trial of the 19th July, 2003, was defective and in the event that the prosecution of the applicant was to continue, it was essential that that order be quashed and the only way to achieve that was by way of judicial review and yet, another five and a half months passed before an application is made to...