Enright v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice John MacMenamin |
| Judgment Date | 26 October 2012 |
| Neutral Citation | [2012] IESC 54 |
| Court | Supreme Court |
| Date | 26 October 2012 |
[2012] IESC 54
THE SUPREME COURT
BETWEEN
AND
FORGERY ACT 1913 S4(1)
ENRIGHT v JUDGE FINN & DPP UNREP O'NEILL 21.12.2005 2005/23/4769 2005 IEHC 454
ENRIGHT v JUDGE FINN & DPP UNREP DENHAM 29.7.2008 2008/22/4879 2008 IESC 49
CRIIMINAL PROCEDURE ACT 1967 S6
MCFARLANE v DPP 2008 4 IR 117
M (P) v MALONE 2002 2 IR 560
M (P) v DPP 2006 3 IR 172
BARKER v WINGO 1972 407 US 514
MCFARLANE v IRELAND 2010 ECHR 1272
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)
BARRY v DPP UNREP SUPREME 17.12.2003 2003/5/993 2003 IESC 63
H (T) v DPP 2006 3 IR 520
KENNEDY v DPP UNREP SUPREME 7.6.2012 2012 IESC 34
CRIMINAL LAW
Delay
Criminal trial - Trial for forgery - Previous refusal of prohibition - Further delay subsequent to refusal - Unavailability of designated judge - Prosecutorial delay - Whether added obligation to ensure expeditious trial devolved on prosecution following first judicial review - Blameworthy delay - Whether effective remedy available to applicant - Failure to apply for new judge - Unexplained delay - Absence of actual prejudice - Whether delay led to presumption of prejudice - Balance between public interest in prosecution of crime and right to expeditious trial - Systemic delay - Onus on applicant to demonstrate that fair trial improbable - Impact of proceedings before ECHR - Distinction between right to compensation for failure to provided an expeditious trial and grounds for order for prohibition - McFarlane v Director of Public Prosecutions [2008] 4 IR 117; PM v Malone [2002] 2 IR 560; PM v Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172; Barker v Wingo (1972) 407 US 514; McFarlane v Ireland [2010] ECHR 1272; Barry v Director of Public Prosecutions [2003] IESC 63; TH v Director of Public Prosecutions [2006] 3 IR 520; Kostovski v Netherlands (1989) 12 EHRR 434; Doorsen v Netherlands (1996) 22 EHRR 330 and Kennedy v Director of Public Prosecutions [2012] IESC 34, (Unrep, SC, 7/6/2012) considered - Appeal dismissed (38/2011 - SC - 26/10/2012) [2012] IESC 54
Enright v Director of Public Prosecutions
Facts: The proceedings arose out of alleged offences of forgery contrary to s. 4(1) of the Forgery Act 1913. In the High Court, Charleton J (delivered 25/07/11) refused to prohibit the appellant's trial. On appeal to the Supreme Court it was contended that the appellant could not receive a fair trial by reason of the efflux of time from the time of his arrest up until the present time. This was contrary to the provisions of the Constitution or the provisions of the European Convention on the Protection of Human Rights. There had been an earlier set of judicial review proceedings which had been the subject of both High Court and Supreme Court judgments (which had dismissed the appellant's case). It was contended that subsequent to the first Supreme Court judgment there had been an added onus upon the Director of Public Prosecutions to vindicate the appellant's right to an expeditious trial. As part of the case the appellant had initiated proceedings before the European Court of Human Rights in respect of the alleged delay and had received a sum of €9,500 as compensation from the State. The appellant had drawn the attention of the DPP to this matter and had requested the DPP to indicate that he would not prosecute the claim.
Held by the Supreme Court (MacMenamin J delivering judgment) in dismissing the appeal: A significant degree of the blame must be placed on the Office of the DPP for failing to ensure that the trial proceeded in an expeditious manner. However the appellant could have also taken steps to vindicate his right. The case against the appellant was largely based on documents, and was therefore not substantially reliant on human factors such as recollection or identification. The appellant had not discharged the onus to demonstrate, as a matter of probability that he would not receive a fair trial. The community interest in the prosecution of crime outweighed the delay in the case. The right to compensation for failure to provide an expeditious trial was quite different from the grounds for the relief of prohibition. The appellant had accepted the agreed sum as a "final resolution" of his complaint to the European Court of Human Rights and in so doing had waived any further claim against Ireland arising from the facts giving rise to his application.
JUDGMENT of Mr. Justice John MacMenamin dated the 26th day of October 2012.
Judgment delivered by macmenamin j. [nem diss]
1. This is an appeal against a judgment of the High Court (Charleton J.), delivered on the 25 th July, 2011. There, the learned High Court judge refused to prohibit the appellant's trial. On the 4 th October, 2012, this Court delivered its judgment, dismissing the appeal, refusing the application for prohibition, and directing that the prosecution would apply, at the earliest time, for a relisting of the trial. The reasons for that judgment are now explained.
2. This is the appellant's second set of judicial review proceedings seeking to prohibit his trial on the grounds of delay. The appellant stands indicted on ten grounds of forgery contrary to s. 4(1) of the Forgery Act 1913. These charges arise from incidents alleged to have occurred between the 1 st January, 1994 and the 21 st August, 1994. The date for his trial had been fixed in the Circuit Criminal Court in Tralee before he initiated these judicial review proceedings.
3. In the first set of proceedings in the High Court, O'Neill J. refused to prohibit the appellant's trial (see Enright v. Judge Terence Finn and the Director of Public Prosecutions [2005] IEHC 454). The appellant's appeal from that decision was heard by this Court on the 29 th May, 2008. This Court delivered an ex tempore judgment upholding O'Neill J.'s judgment and refusing an order of prohibition, and gave its reasons on 29 th July, 2008 (see Enright v Judge Terence Finn and the Director of Public Prosecutions [2008] IESC 49). Denham J., speaking for the Court, analysed the complaints advanced by the appellant under a number of headings:
(i) Non-compliance with section 6 of the Criminal Procedure Act 1967, as amended, with reference to the exhibits;
(ii) Delay;
(iii) Loss of witnesses;
(iv) A "side bar agreement" that the matter would not proceed if the applicant accommodated his former employer;
(v) An "attack" upon the applicant by the Law Society; and
(vi) The discretion of the court.
It is unnecessary to go into any of these headings in detail. Suffice it to say that the judgment considered each issue, and concluded that the appellant had not demonstrated that there was a real risk of an unfair trial on the basis of actual prejudice under any of the headings and, therefore, the appeal was dismissed. These issues, relating to the fairness of the intended trial, must therefore be taken as res judicata.
4. It is necessary then to trace the events after the Supreme Court judgment under two separate headings. The court will consider, first, the subsequent conduct of the prosecution and the events in the District and Circuit Courts, in the context of prosecutorial delay and, what is termed, systemic delay, that is delay within the context of the court system. Second, it will be necessary to analyse the effect of an application made by the appellant to the European Court of Human Rights ("ECtHR"), in respect of the alleged delay in prosecuting the charges.
5. The appellant is a solicitor. The District Judge assigned to the relevant district was acquainted with him. As a result, another District Judge was designated to deal with the case. He will be referred to as the 'designated Judge'. The designated Judge was not in attendance on the 22 nd October, 2008, when the matter came next before Tralee District Court; the matter, therefore, had to be adjourned until the 10 th December, 2008. Unfortunately, on a number of subsequent dates that designated Judge was again sitting elsewhere, and the matter had to be adjourned. Those dates were the 10 th December, 2008, the 25 th February, 2009, the 25 th March, 2009, the 27 th May, 2009, the 22 nd July, 2009, the 7 th October, 2009 and the 4 th November, 2009.
6. However, at no point during that period did either the prosecution or defence make an application to the sitting District Judge to request the President of the District Court to assign a different judge to deal with the matter. A further difficulty had also arisen because the State Solicitor for Kerry was also acquainted with the appellant, and a different State Solicitor, who unfortunately had an illness, had to take the matter over. None of these issues, however, were incapable of speedy resolution, if appropriate actions had been taken.
7. On the 7 th December, 2009, however, the designated Judge was in a position to attend at the Tralee District Court. On that occasion, it was submitted on behalf of the appellant that the proceedings should be dismissed on the grounds of delay. The Judge reserved his decision and the matter was adjourned until the 21 st December, 2009. On the latter date, he indicated that he required further time to consider the matter. The matter was again listed on the 11 th January, 2010 when, unfortunately there was no appearance on behalf of the Director of Public Prosecutions, and the matter was yet...
To continue reading
Request your trial