J. Harris Assemblers v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan, |
| Judgment Date | 14 July 2009 |
| Neutral Citation | [2009] IEHC 344 |
| Court | High Court |
| Date | 14 July 2009 |
| Docket Number | RECORD NO. 1138 JR/2008 |
BETWEEN:
AND
AND
[2009] IEHC 344
THE HIGH COURT
CRIMINAL LAW
Delay
Right to fair trial - Prosecutorial delay - Whether delay sufficient to warrant order of prohibition - Applicable legal principles - Onus on applicant to establish real risk of unfair trial - Prejudice - Whether any specific or demonstrable prejudice - Whether alleged prejudice supported by evidence - Balancing test - Whether prima facie violation of applicant's right to expeditious trial sufficient to overpower community interest in prosecution - Devoy v DPP [2008] IESC 13, [2008] 4 IR 235; PM v Malone [2002] 2 IR 560; PM v DPP [2006] IESC 27, [2006] 3 IR 172; Barker v Wingo (1972) 407 US 514; McFarlane v DPP [2007] IESC 7, [2008] 4 IR 117; DC v DPP [2005] IESC 77, [2005] 4 IR 281; People (DPP) v Z [1994] 2 IR 476 and D v DPP [1994] 2 IR 465 considered- Constitution of Ireland, Article 38.1 - European Convention on Human Rights, Article 6 - Fair procedures - Conduct of investigation - Alleged violation of personal rights - Failure to caution - Admissibility of evidence obtained by breach of fair procedures - Whether allegation of violations of fair procedures during investigative phase more appropriate matter for trial judge - Presumption that trial judge will act fairly and exclude all inadmissible evidence - Safeguards in criminal process - Ryan v DPP [1988] 1 IR 232 applied - Rules of the Superior Courts 1986 (SI 15/1986) O 60, r 1 - Safety, Health and Welfare at Work Act 1989 (No 7), ss 6, 10, 48(1)(a) and 50 - Relief refused (2008/1138JR - Hedigan J - 14/7/2009) [2009] IEHC 344
J Harris Assemblers v DPP
Facts: The applicant sought by way of judicial review, an order of prohibition restraining the prosecution of the applicant for offences pursuant to ss.10(1)(b) and 48(1)(a) of the Safety, Health and Welfare at Work Act, 1989 on the grounds of prosecutorial delay. The prosecution arose from the supply by the applicant of a vehicle, which subsequently was involved in a fatal accident on 23 November 2002. Summonses in relation to the prosecution were not issued until 24 April 2007 and a book of evidence was served on the applicant on 18 December 2007. The applicant submitted that the respondent acted in breach of its right to natural and constitutional justice in failing to initiate the prosecution within a reasonable time. It was submitted that the delay was inexcusable and unwarranted and resulted in prejudice to the applicant in the preparation of its defence to the charges. The applicant further contended that the respondent acted in breach of fair procedures by failing to inform the applicant within a reasonable time that it was under investigation in relation to the offences. In particular, the applicant submitted that its employees ought to have been cautioned prior to giving statements which now formed a central part of the prosecution case against it. The applicant essentially submitted that prejudice arose from the possible dimmed or confused memories of its employees.
Held by Hedigan J. in refusing the application: That the prosecutorial delay in this case was not so severe as to merit, by itself, an order of prohibition. Furthermore, the applicant failed to demonstrate any prejudice which would affect its ability to mount a defence to the criminal charges in question. There were no problems relating to unavailability of witnesses or of documentary evidence and the proposition that the memories of the applicant’s employees may have dimmed or become confused was not substantiated by the evidence. There was a period of 14 months delay which was not satisfactorily justified. However, having regard to the fact that one fatal accident had already occurred and the public interest in prosecuting those culpably engaged in the supply of hazardous devices, the delay was not of sufficient gravity to warrant the prohibition of the applicant’s trial. Furthermore, any issue regarding the admissibility of evidence ought to be left over until the trial of the action when it may be more appropriately dealt with by the trial judge.
Reporter: L.O’S.
RSC O.60 r1
SAFETY HEALTH & WELFARE AT WORK ACT 1989 S50
SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6(1)
SAFETY HEALTH & WELFARE AT WORK ACT 1989 S6(2)
DEVOY v DPP UNREP SUPREME 7.4.2008 2008/12/2458 2008 IESC 13
DPP v Z 1994 2 IR 476 1994 2 ILRM 481
CONSTITUTION ART 38.1
EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6
RYAN v DPP 1988 IR 232 1989 ILRM 466 1988/10/2962
Judgment of Mr. Justice Hedigan, delivered on the 14th day of July, 2009
1. The applicant in these proceedings is an unlimited company, registered within the State.
2. The respondent is the authority responsible for the prosecution of criminal offences in Ireland. His statutory authority to carry out this function is derived from the Prosecution of Offences Act 1974.
3. The notice party is the legal adviser to the Government and is therefore the chief law officer of the State. By virtue of Order 60 rule 1 of the Rules of the Superior Courts, he is a necessary participant in any action in which the constitutionality of any legislative provision comes under challenge. In the present case, however, the applicant has abandoned its challenge to the constitutionality of section 50 of the Safety, Health and Welfare at Work Act 1989 ('the 1989 Act') and, as such, the notice party has ceased to take an active role in these proceedings.
4. The applicant seeks the following relief by way of judicial review:-
(a) An order of prohibition restraining the prosecution of the applicant which is currently pending before the Circuit Criminal Court;
(b) In the alternative, an injunction retraining the respondent from taking any further steps in the said prosecution of the applicant; and
(c) A declaration that the conduct of the prosecution by the respondent to date has been such as to deny the applicant its right to a fair trial as guaranteed by Bunreacht na hÉireann and the European Convention on Human Rights.
5. On the 17 th of January 2000, the applicant sold a Hino Grab/Crane Lorry ('the lorry') to South Midland Construction Company Limited ('the SMC Group'). On the 23 rd of November 2002, while in the ownership of the SMC Group, the lorry was involved in a fatal accident. As a result of this, the lorry was inspected by Mr. Martin O'Dea, a representative from the Health and Safety Authority ('the HAS') on the same date. A public service vehicle inspection was also carried out on the lorry by An Garda Siochána on the 26 th of November 2002, whereafter it was returned to the SMC Group.
6. On the 12 th of March 2003, the HSA contacted the applicant as part of its investigation into the circumstances surrounding the incident of the 23 rd of November 2002. The purpose of this contact was to confirm that the applicant had in fact been the supplier of the lorry to the SMC Group.
7. On the 31 st of August 2003, the lorry was sold back to the applicant by the SMC Group as one of a batch of three vehicles. The applicant was unaware at the time that among those vehicles was the lorry which had been involved in the above fatal accident. On the 4 th of September 2003, the applicant sold this lorry to Mr. Seán Collins of SBC Utilities Limited.
8. Throughout this period, a criminal investigation was being carried out into the fatal injuries accident. In November 2003, the respondent directed the HSA to initiate a prosecution against the SMC Group.
9. On the 21 st of April 2004, the lorry underwent further inspection by Mr. Martin O'Dea of the HSA, together with representatives from Pilz International Industrial Automation. On the 10 th of June 2004, Mr. O'Dea again inspected the lorry, this time in the presence of Mr. Seán Collins of SBC Utilities Limited. On the following day, the 11 th of June 2004, Mr. O'Dea met with Mr. Brendan Daniels and Mr. Pádraig Walsh, representative employees of the applicant. Both men furnished statements to Mr. O'Dea, prior to which no caution was administered.
10. On the 15 th of June 2004, Mr. O'Dea carried out yet another inspection of the lorry, again in the presence of Mr. Collins. Mr. O'Dea observed that the top proximity sensors of the crane feature on the lorry were absent from their proper location. On the 9 th of September 2004, a further meeting was held between Mr. O'Dea, Mr. Daniels and Mr. Walsh. Again no caution was administered.
11. In early October 2004, Mr. O'Dea's investigation file in respect of the applicant was passed to the HSA's prosecution committee for review. It was then forwarded to the HSA's legal department on the 21 st of October 2004.
12. On the 11 th of May 2005, the SMC Group pleaded guilty to charges of breaching sections 6(1) and 6(2) of the 1989 Act. A fine of €100,000 was imposed by the Dublin Circuit Criminal Court.
13. On the 8 th of December 2005, the review of Mr. O'Dea's investigation file by the HSA's legal department was completed and it was transmitted to the office of the Chief Prosecution Solicitor. The Chief Prosecution Solicitor's office responded on the 1 st of February 2006 with a request for further information on behalf of the respondent. Further to this request, a series of additional statements were taken during March and April 2006.
14. On the 27 th of May 2006, the HSA replied to the office of the Chief Prosecution Solicitor with the information that had been requested. A further request for information on behalf of the respondent was made on the 30 th of June 2006, which was complied with by reply dated the 6 th...
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