CourtHigh Court
JudgeMr. Justice Hogan
Judgment Date17 October 2012
Neutral Citation[2012] IEHC 430
Date17 October 2012

[2012] IEHC 430


[No. 703 JR/2012]
C (G) v DPP




MIN FOR JUSTICE & ORS v TOBIN (NO.1) 2008 4 IR 42 2008 IESC 3


DEVOY v DPP 2008 4 IR 235 2008 IESC 13

NOONAN (HOBAN) v DPP 2008 1 IR 445 2007 IESC 34

DOGGETT v US 505 US 647(1992)


PM v DPP 2006 3 IR 172 2006 IESC 22




AG REFERENCE (NO.2 1983) 1984 2 WLR 465

R v RANDALL 2003 UKHL 69 2004 2 AC 72


BARKER v WINGO 1972 407 US 514

STRUNK v US 1973 412 US 434

H (T) v DPP & JUDGE SMITHWICK 2006 3 IR 520 2006 IESC 48




T (P) v DPP 2007 IESC 39 2008 1 IR 701

H (S) v DPP 2006 3 IR 575

I (I) v J(J) UNREP HOGAN 5.7.2012 2012 IEHC 327




Application for judicial review - Prohibition of trial on grounds of delay - Charges of sexual assault - Whether culpable prosecution delay - Whether prosecuting authorities failed to act promptly and with diligence - Whether delay in bringing applicant to trial objectively amounted to denial of constitutional rights - Remedy - Whether breach of right to early trial automatically led to order for prohibition - Whether specific prejudice jeopardising fair trial - Declaratory relief - Damages - Jurisdiction to award damages for breach of constitutional right - Whether appropriate to grant order of prohibition - Absence of specific prejudice - Awareness of applicant of nature of allegations - Interests of complainants - Other means of addressing breach of right - Availability of damages - Liberty to amend pleadings for seeking of damages - Minister for Justice, Equality and Law Reform v Tobin (No 1) [2008] IESC 3, [2008] 4 IR 82; Devoy v Director of Public Prosecutions [2008] IESC 13, [2008] 4 IR 235; Noonan (Hoban) v Director of Public Prosecutions [2007] IESC 34, [2008] 1 IR 445; Doggett v United States (1992) 505 US 647; PM v Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172; Kinsella v Governor of Mountjoy Prison [2011] IEHC 235, [2012] 1 IR 467; Attorney General's Reference (No 2) [2003] UKHL 69, [2004] 2 AC 72; Rahey v The Queen (1987) 39 DLR 481; Barker v Wingo (1972) 407 US 514; Strunk v United States (1973) 412 US 434; TH v Director of Public Prosecutions [2006] IESC 48, [2006] 3 IR 520; Hanrahan v Merck, Sharp & Dohme Ltd [1998] ILRM 629; Meskell v Coras Iompair Éireann [1973] IR 121; PT v Director of Public Prosecutions [2007] IESC 39, [2008] 1 IR 71; SH v Director of Public Prosecutions [2006] IESC 55, [2006] 3 IR 575 and II v JJ [2012] IEHC 327, (Unrep, Hogan J, 5/7/2012) considered - Constitution of Ireland 1937, Art 38.1 - Prohibition refused; liberty granted to amend pleadings to seek damages (2012/703JR - Hogan J - 17/10/2012) [2012] IEHC 430

C(G) v Director of Public Prosecutions

Facts: The applicant left Ireland to live in the United States for a nine year period upon notification that complaints of sexual assault had been made against him and before any charges could be brought. Residing once again in Ireland one of the complaints enquired as to the progress of their complaint, the applicant was then returned for trial on four charges of sexual assault contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990.

The question before the court was whether there had been a culpable delay in prosecution constituting a breach of Article 38.1 and if so what remedies could be adopted to rectify this.

Hogan J held there was culpable delay on the part of the prosecuting authorities which amounted to a breach of the applicant's constitutional rights to an early trial as guaranteed by Article 38.1. The applicant had contributed to the delay by his departure, but the main reason for the delay was the failure of the prosecuting authorities to follow up potentially important leads. Minister for Justice Equality and Reform v Tobin (No. 1) [2008] IESC 3 considered.

The remedy of prohibition for this breach was not appropriate; no specific prejudice had been created. Such a remedy would only be appropriate in exceptional cases. Instead in the present case immediate steps should be taken to secure an early trial and an open acknowledgement of the breach should be made in the subsequent judgment (Kinsella v Governor of Mountjoy Prison [2011] IEHC 235).

It was held that the applicant could re-apply for prohibition if adequate steps were not taken. He was also permitted to amend his pleadings allowing him to seek damages for the breach of his constitutional right.


1. Given the vast number of cases which have raised the question of delay in the prosecution of sexual offences over the last twenty years, it may seem surprising that a case of this kind would raise new issues of some difficulty that have not been hitherto fully explored. This, however, is one such case because it concerns an applicant who departed Ireland for the United States for a nine years period after the complaints of sexual assault had been made against him, but before any charges could be proffered.


2. The applicant, GC, is a professional person who has been returned for trial on four charges of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990. It is alleged that on a date or dates unknown between June, 1996 and August, 1996 he indecently assaulted four young girls who were then aged between 11 and 13 years of age at the time. The young girls made detailed statements to the Gardaí at the time. All are now in their late twenties and are available to give evidence.


3. At the time the applicant's marriage was in some difficulty. His wife obtained a barring order in the District Court on 23 rd August, 1996, which meant that he was precluded from entering the family home. On the 10 th September, 1996, Mr. C. was arrested and questioned about these allegations. His employment was terminated on the same day by reason of these developments.


4. At this stage it was evident that he had lost almost everything: his marriage was effectively over, his employment had been terminated and he was barred from his family home. It appears that he moved back to stay with his parents for a few weeks in a completely different part of the country. He then left for the United States in October, 1996. It is not disputed but that Mr. C. visited Ireland on ten separate occasions between 1999 and 2005 and that he returned permanently to live in Ireland in 2005.


5. Following his return, the applicant applied for and obtained social security assistance. In July, 2007 he applied to his statutory regulatory body for registration. One requirement was that he be vetted by An Garda Síochána and in this he was successful in September, 2007 He then first obtained part-time and subsequently full-time employment. During this period some endeavour was made to contact his former wife and children, but this did not prove to be successful. It is clear, however, that his former wife was aware since at leas, December, 2007 that the applicant had returned to Ireland.


6. In February, 2011 one of the original complainants made contact with a Detective Sergeant Treacy to ascertain the status of the original complaint. Detective Sergeant Treacy - who, it may be emphasized, had no role in the original investigation - immediately researched the investigation file and he discovered that directions to prosecute had been received from the Director of Public Prosecutions in June, 1997. These directions had not been acted upon in the summer of 1997 because by that stage the Gardai believed that Mr. C. had "fled" the jurisdiction.


7. Detective Sergeant Treacy then caused further inquiries to be made as to the then current whereabouts of Mr. C. He was ultimately located in December, 2011 and following further liaison with the Director of Public Prosecutions, the applicant was then arrested in February 2012 and charged before Cork District Court. He was ultimately returned for trial on indictment to the Cork Circuit Court, having been admitted to bail in the interval on condition that he surrender his travel documents in the meantime. It is understood that, subject to the outcome of these judicial proceedings, a trial date can be secured within a few months of today's date.

Whether there has been Culpable Prosecution Delay

8. The first question to be considered is whether there has been culpable delay on the part of the prosecution with regard to the prosecution of these offences. Here it is necessary to re-visit some of the details surrounding Mr. C's departure from Ireland in October, 1996. Mr. C. is certainly correct in pointing out that he was free to leave at the time and that no one has suggested otherwise. Nor does it appear that the Gardaí had ever taken any steps to inform any members of Mr. C.'s family (other man Mr. C.'s wife) that they wished to speak with him. Here it may be recalled that Mr. C.'s parents were living in Ireland up to the date of their respective deaths and that his siblings knew of his various addresses and whereabouts.


9. It is also to note that Mr. C. did make (or, at least, attempt to make) some contact with his estranged wife and (then) young children following his departure to America. While these endeavours were rebuffed, one cannot overlook the fact that on a few occasions he sent the children presents. It is clear from the waybills exhibited in evidence that the parcels did contain...

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4 cases
  • Nash v DPP
    • Ireland
    • Supreme Court
    • 24 October 2016
    ...an obligation on the State ‘to afford all litigants, criminal or civil, a timely trial’. 2.7 In G.C. v. Director of Public Prosecutions [2012] IEHC 430, Hogan J. in the High Court reviewed the relevant case law in this area. Reference was made to the judgment of Kearns J. in P.M. v. D.P.P. ......
  • O'Callaghan v Ireland
    • Ireland
    • Court of Appeal (Ireland)
    • 6 July 2020
    ...of members of the Supreme Court in relation to the issue of compensation for delay in McFarlane v. DPP [2008] 4 IR 117, G.C. v. DPP [2012] IEHC 430 and the more recent decision in Nash v. DPP [2016] IESC 60. Having quoted extensively from these judgments, Faherty J. turned to the present ca......
  • O Callaghan v Ireland and the Attorney General
    • Ireland
    • High Court
    • 14 March 2019
    ...hearing of the appeal by the plaintiff in this case and absent this, the State cannot be faulted on this account.” 127 In G.C. v. DPP [2012] IEHC 430, Hogan J. addressed the issue of damages in the following terms: “23. In addition to declaratory relief, I see no reason at all why the court......
  • Michael O'Callaghan v Ireland and The Attorney General
    • Ireland
    • Supreme Court
    • 30 September 2021
    ...jurisprudence. The Further Evolution of the Constitutional Jurisprudence on Right to a Trial with Due Expedition G.C. v DPP [2012] IEHC 430 64 The narrative then returns to the Irish courts. In G.C. v. DPP [2012] IEHC 430, Hogan J. had no difficulty in stating that he could see no reason wh......

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