Fennell v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 26 April 2005
• Neutral Citation: [2005] IEHC 135
• Docket Number: [Record No. 1034JR/2004]
• Court: High Court
• Date: 26 April 2005

[2005] IEHC 135

THE HIGH COURT

[Record No. 1034JR/2004]

Fennell -v- DPP

JUDICIAL REVIEW

BETWEEN

CILLIAN FENNELL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Abstract:

Criminal law - Delay - Right to expeditious trial - Accused charged with road traffic offences - Prosecutorial delay - Whether right to fair trial prejudiced as result of delay - Whether delay so excessive as to merit prohibition of further prosecution

Facts: the applicant sought to restrain the further prosecution of charges of road traffic offences on the grounds that his constitutional right to a fair trial could not be guaranteed due to inordinate delay. The delay was due to the fact that there had been a number of adjournments due to the fact that a garda witness was unavailable on the dates fixed for the trial and the length of the court list.

Held by Ms Justice Dunne in refusing the relief sought that in considering delay, it was necessary to look at the facts of each case. In the present case, whilst a delay of two years and five months was undesirable, where there were reasonable grounds for the delay, the overall delay was not excessive.

Reporter: P.C.

Ms. Justice Dunne

1 The applicant in this case seeks an order by way of judicial review restraining the respondent from proceeding with the further prosecution of a summons the subject matter of criminal proceedings entitledDirector of Pubic Prosecutions v. Cillian Fennell at present pending before the Dublin District Court, case No. 2003/6126.

2 In those criminal proceedings the applicant is charged with an offence pursuant to s. 49(4) and (6)(a) of the Road Traffic Act,1961 as amended. The alleged offence is alleged to have occurred on 18th December, 2002.

3 It would be useful to set out a summary of the relevant dates in relation to this particular matter and I do so hereunder.

4 18th December, 2002…date of alleged offence.

5 21st January, 2003…summons applied for in District Court.

6 3rd April, 2003…first return date. Applicant pleading not guilty. Hearing date fixed.

7 14th November, 2003…first hearing date. Case adjourned, respondent unable to proceed due to unavailability of witness.

8 6th April, 2004…second hearing date. Case adjourned, unavailability of witness on behalf of the respondent.

9 th November, 2004…third hearing date. Case adjourned, not having been reached.

10 5th May, 2005…next hearing date.

11 It is agreed by the parties herein that in cases where it is indicated that a defendant is pleading not guilty to a charge, the practice in the District Court is to fix a date for hearing of the proceedings on the return date. Hence, in this case, the proceedings were adjourned on the return date of 3rd April, 2003 to 14th November, 2003. As can be seen above, the matter was adjourned on the first hearing date due to the unavailability of a witness namely Garda Dooley. Apparently, the prosecuting Guard, Garda Mary Lavan only became aware of this on the morning of the hearing. At that stage it was suggested that a hearing date of February, 2004 might be available but this was unsuitable because of the applicant's work commitments and accordingly the second hearing date was fixed. Prior to that hearing date the applicant herein was notified through his solicitor that there was to be an application for an adjournment of the hearing date because again Garda Dooley was unavailable, being on leave at the time fixed for the hearing. Notwithstanding the opposition of the applicant, the matter was adjourned to 9th November, 2004. As can be seen from the time schedule set out above the matter was not reached on the next hearing date the 9th November.

12 The total time between the date of the alleged offence, namely 18th December, 2002 and the new hearing date 5th May, 2005 amounts to two years and five months.

13 Counsel on behalf of the applicant relies on Article 38.1 of the constitution of Ireland which provides:

"No person shall be tried on any criminal charge save in due course of law."

14 It has long been established that Article 38.1 includes a right to a trial with reasonable expedition. Relying on the decision of the High Court (O'Neill J.) in the case ofDirector of Public Prosecution v. Arthurs [2000] 2 I.L.R.M. 363, he refers to the passage where O'Neill J. reviewed the various authorities in relation to delay and in particular delay in the context of summary proceedings. At p. 371 of his decision O'Neill J. stated:

"In the present case the delay from the time of the offence to the trial was two years and three months approximately. For summary proceedings a delay of this length is well beyond what would be considered on any view to be an appropriate timeframe in which a summary trial should be completed and is in my opinion inordinate and excessive."

15 In the course of his decision O'Neill J. went on to enumerate two tests in deciding whether there has been excessive delay in a particular case. I quote from his judgment at p. 375:

"The first of these tests is that the accused person must show that he has or is likely to suffer an actual specified prejudice or that the length of the delay is so inordinate or excessive as...