O'Flynn v District Justice Clifford

• Jurisdiction: Ireland
• Judge: Mr. Justice Gannon
• Judgment Date: 16 December 1988
• Neutral Citation: 1988 WJSC-HC 2792
• Court: High Court
• Docket Number: No. 121/1988,[1988 J.R. 121]
• Date: 16 December 1988

1988 WJSC-HC 2792

THE HIGH COURT

No. 121/1988

No. 122/1988

O'FLYNN v. CLIFFORD

JUDICIAL REVIEW

BETWEEN

ANN O'FLYNN

APPLICANT

AND

DISTRICT JUSTICE JOHN P. CLIFFORD THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE CIRCUIT COURT JUDGE FOR CORK CIRCUIT

RESPONDENTS

AND BETWEEN

MICHAEL HANNIGAN

APPLICANT

AND

DISTRICT JUSTICE JOHN P. CLIFFORD THE DIRECTOR OF PUBLIC PROSECUTIONS AND THE CIRCUIT COURT JUDGE FOR CORK CIRCUIT

RESPONDENTS

Citations:

CRIMINAL PROCEDURE ACT 1967 S8(1)

CRIMINAL PROCEDURE ACT 1967 S6

O'CONNELL, STATE V FAWSITT 1986 IR 362, 1986 ILRM 639

BELL V DPP OF JAMICA 1985 AC 937

CONSTITUTION ART 40

CONSTITUTION ART 40.3.2

Synopsis:

DELAY

Summons

Issue — Effect — Accused charged with offence 17 months after date of alleged offence — Accused not prejudiced — Return for trial affirmed — ~See~ Criminal Law, summons — (1988/121 JR — Gannon J. — 16/12/88) - [1988] I.R. 740

|O'Flynn v. Clifford|

CRIMINAL LAW

Summons

Issue — Delay — Effect — Whether accused prejudiced — Whether unreasonable delay in charging the accused — Offence in 1986 and charge made in 1988 — Accused not prejudiced — In February, 1988, the applicant was charged before the respondent District Justice with the commission of an indictable offence in August, 1986 — The respondent expressed the view that there had been unreasonable delay and he was not satisfied with the reasons offered for the delay, but the respondent was not informed of any prejudice that the applicant would suffer by reason of the delay if his trial took place — In those circumstances the respondent proceeded with the preliminary examination of the charge and eventually he ordered that the applicant be returned for trial on indictment on the said charge — On 2/5/88 the applicant obtained in the High Court leave to apply for an order of certiorari quashing the respondent's order and for an order of prohibition forbidding the Director of Public Prosecutions and the appropriate Circuit Court judge to arraign the accused on the said charge — The applicant applied by motion on notice for the said orders — Held, in dismissing the application, that the applicant had relied solely on the lapse of time which had occurred before he was charged with the offence, but he had not shown that he would be prejudiced at his trial by reason of that lapse of time — Held that the applicant had not made, nor were there grounds for making, a complaint of delay occurring after the applicant was charged with the offence — Held that the presumption of innocence in relation to a person suspected of the commision of an offence and his right to liberty, recognised by the Constitution, rendered it impossible for him to assert a right to be charged with that offence within any particular period of time: ~The State (O'Connell) v. Fawsitt~ [1986] I.R. 362 distinguished — Constitution of Ireland, 1937, Article 40 — (1988/121 JR — Gannon J. — 16/12/88) - [1988] I.R. 740

|O'Flynn v. Clifford|

1 Judgment of Mr. Justice Gannon delivered the 16th day of December 1988.

2 Because the facts giving rise to these two applications for Judicial Review are almost identical and the point of law for ruling is identical the parties have applied to have the two applications heard at the same sitting of this Court. The Orders of Barr J. giving leave to apply on the application of each of the two applicants were made on the 2nd day of May 1988. The relief sought by each application was an Order of Certiorari directed to the first named respondent in respect of an Order of return for trial made pursuant to Section 8 (1) of the Criminal Procedure Act 1967dated the 15th of March 1988 and an Order of Prohibition directed to the second named respondent and the third named respondent prohibiting the arraigning of the applicant on the charges upon which returned for trial and prohibiting the trial of the applicant on those charges.

3 The grounds upon which the applicants were given leave to apply for Orders of Certiorari and Prohibition by way of Judicial Review differ as between the two applications. Although the seven grounds set out on each of the Orders of Barr J. do not correspond precisely in the one application with the other, the one point central to all of them is the delay between the date of the commission in August 1986 of the alleged offences and the date when the applicants were first charged with these offences in February 1988. No point arises in respect of delays subsequent to the charging of the applicants in the District Court with these offences. Because the respondent District Justice expressed the opinion in Court when the matter first came before him, and before the documents to be served on the accused pursuant to Section 6 of the 1967 Act were available, that the delay was unreasonable and inexcusable, it was argued that he should have dismissed the charges without further enquiry. He was offered reasons for the delay which he considered unsatisfactory but he was not given any assistance as to what effect, if any, the delay had had, or could have, on a trial if the accuseds were returned for trial. At that stage, and in those circumstances, he had no alternative but to proceed with the enquiry prescribed in the Criminal Procedure Act of 1967by way of preliminary examination. This he did. Upon the preliminary investigation it might have become apparent that there were circumstances from which it could be inferred that delay would in some way prejudice a fair trial or put the applicants at an unfair disadvantage. In the absence of any material before him which might indicate any disadvantage to the applicants the District Justice was correct to proceed with the preliminary investigation in accordance with the 1967 Act. Had it become apparent from the documents to be...