L O'N v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 01 March 2006
• Neutral Citation: [2006] IEHC 184
• Court: High Court
• Docket Number: [2005 No. 87 JR]
• Date: 01 March 2006

[2006] IEHC 184

THE HIGH COURT

[No. 87 JR/2005]

O'N (L) v DPP

BETWEEN

L O'N

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 ART 5(3)

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

CONSTITUTION ART 34.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

CONSTITUTION ART 34

EUROPEAN CONVENTION ON HUMAN RIGHTS 1950 ART 5(3)(3)

CRIMINAL LAW (RAPE) ACT 1981 S10

BARKER v WINGO 1972 407 US 514

O'CONNELL, STATE v FAWSITT 1986 IR 362

DPP v BYRNE 1994 2 IR 326

C (P) v DPP 1999 2 IR 25

P (P) v DPP 2000 1 IR 403

EVISTON v DPP 2002 3 IR 282 2003 1 ILRM 178 2002/10/2424

Q (M) v JUDGE OF NORTHERN CIRCUIT & DPP UNREP MCKECHNIE J 14.11.2003 2003/44/10828

HOBSON v DPP UNREP PEART 16.11.2005

CONSTITUTIONAL LAW

Fair procedures

CRIMINAL LAW

Delay

Right to fair trial - Constitutional right to trial with reasonable expedition - Reversal of decision - Whether delay such as to warrant dismissal of proceedings without evidence of prejudice - Whether reversal of decision of Director not to prosecute applicant in breach of fair procedures - PP v DPP [2000] 1 IR 403 applied; PC v DPP [1999] 2 IR 25 and MQ v Judge of the Northern Circuit [2004] IEHC 16, (Unrep, McKechnie J, 14/11/2003) followed; Hobson v DPP [2005] IEHC 368, [2006] 4 IR 239, H v DPP [1994] 2 IR 589 and State (McCormack) v Curran [1987] ILRM 225 distinguished; DPP v Byrne [1994] 2 IR 236 considered -Constitution of Ireland 1937, Article 38.1 -Prohibition granted (2005/87JR -MacMenamin J - 1/3/2006) [2006] IEHC 184 O'N(L) v DPP

1 JUDGMENT of Mr. Justice John MacMenamin dated the 1st of March, 2006 .

2 This judgment is circulated in a redacted form to avoid identification of parties.

Background

3 By order dated 31st January, 2005 McKechnie J. granted the applicant leave to apply for judicial review for the following reliefs

4 (a) an order of certiorari quashing the order of return for trial of the applicant

5 (b) a declaration that the continuation of the indictment as against the applicant was in breach of Articles 5(3) and 6(1) and 13 of the European Convention on Human Rights 1950 and incompatible with the obligations that the respondents owed to the applicant pursuant to s. 3(1) of the European Convention of Human Rights Act 2003

6 (c) damages pursuant to s. 3(2) of the European Convention on Human Rights Act 2003

7 (d) a declaration that the said indictment was in breach of the rights of the applicant pursuant to Articles 34.1, 38.1, 40.3.1, and 2 of the Constitution of Ireland.

8 In summary, the grounds, upon which McKechnie J. granted leave in these proceedings were as follows

9 1. That the decision of the respondent not to prosecute the applicant on indictment was, once communicated to the applicant following the admitted completion of the Garda enquiries a final and conclusive decision; the respondent had acted ultra vires and in breach of the applicant's constitutional rights and rights under the Convention purporting to reverse the said decision.

10 2. That the decision of the respondent reversing the decision not to prosecute was in breach of the applicant's right to fair procedures and constitutional justice; in particular that in failing to advise or warn the applicant when he was informed that no prosecution would ensure the investigation by the Gardaí, that the respondent reserved the right to reverse the said decision at any time in the future.

11 3. That the respondent had acted on foot of an improper policy in purporting to claim unto himself an unfettered right to reverse his decision not to prosecute the applicant when the said decision not to prosecute had been communicated to the applicant following completion of the Garda enquiries; that in the premises the respondent had acted ultra vires and in breach of the applicant's right to fair procedures.

12 4. That in the absence of good and sufficient grounds for so doing, it was not open to the respondent to purport to exercise the power to reverse a decision not to prosecute the applicant when the said decision had been communicated to the applicant following the admitted completion of the Garda enquiries; in the premises the respondent had acted ultra vires and in breach of the applicant's right to fair procedures.

13 5. The decision to reverse (the decision not to prosecute) was an abuse of the process of the court and brought the administration of justice into disrepute contrary to Article 34; further that there was undue delay by the respondent in prosecuting the applicant contrary to Articles 38.1 of the Constitution of Ireland and Articles 5(3)( 3) or 6(1) of the European Convention on Human Rights 1950. In the alternative there was undue delay by the complainants in making the complaints which unfairly prejudiced the applicant.

14 6. That the applicant had as a result of the communication not to prosecute a legitimate expectation that he would never be prosecuted.

15 7. That a prosecution at this remove from the original decision not to prosecute was oppressive; further that the respondent in having regard to the views expressed to him by relations of the complainants misdirected himself in the exercise of this discretion, in reversing his decision not to prosecute the respondent further misdirected himself and acted ultra vires.

16 A full statement of grounds of opposition has been filed taking issue with each of the grounds upon which the applicant seeks to rely.

17 In essence in argument the applicant put forward two grounds as follows:

18 1. The delay by the prosecution in this case has been excessive and so much so that he has been denied his right under the Constitution to trial of the alleged offences to be heard with "reasonable expedition".

19 2. That has been a failure on the part of the Director of Public Prosecutions to observe fairness of procedures in reversing his decision not to prosecute.

Background

20 The applicant is a fitter welder and resides in a rural location. He faces a total of 81 counts alleging indecent assault, contrary to common law and contrary to s. 10 of the Criminal Law (Rape) Act 1981. In relation to these complaints there are two female complainants, namely his relation by marriage, A.G., and S.C. 78 of the counts appertain to A.G. and the remaining three appertain to S.C. The counts on the indictment pertaining to A.G. accuse the applicant of alleged offences the earliest of which is stated to have been committed on 5th January, 1986 and the most recent of which is stated to have been committed on 28th June, 1987. The counts pertaining to S.C. accuse the applicant of offences the earliest of which is alleged to have occurred on 1st May, 1987 and the most recent of which is alleged to have occurred on 30th September, 1987. The complainants were aged between 7 and 10 years at the time of the alleged occurrences.

21 The complainant A.G. made two statements to investigating Gardaí in relation to this matter. The earliest of these two statements appears to have been made on 9th November, 1987. The second of A.G.'s statements was made on 25th September, 2000.

22 The complainant S.C. also made two statements of complaint. The early of these two statements appears also to have been made to the Gardai on 9th November, 1987. A further statement was made on 10th November, 2000. The applicant has been arrested on two separate occasions in relation to the alleged offences. He was first arrested on 11th November, 1987. Having been so arrested he made a statement largely inculpatory in nature to which reference will be made later.

23 The second arrest was effected on 21st August, 2004. On that occasion the charges as set out in the indictment were read over to the applicant and he made no reply. He was released on bail to appear before M. District Court on 9th September, 2004. On that date the District Court Judge issued a bench warrant due to his non-appearance in court. The reason why he did not appear in court on that day was that the applicant had taken a drugs overdose on that morning in a suicide attempt and thereafter had to be hospitalised. On 21st September, 2004 the applicant was brought before a local district court. On this occasion the Gardaí objected to bail and he was remanded in custody.

24 On 11th November, 2004 the applicant was returned for trial to the sittings of the local Circuit Court commencing on 30th November, 2004. On that date counsel on his behalf sought an adjournment so as to allow the applicant to apply to this court for an order set out in the statement of grounds herein. The Circuit Court Judge acceded to this application and the applicant's trial stands adjourned pending the outcome of this case.

25 It is not disputed that at the time of the original complaint in 1987 a fully completed file was forwarded to the Director of Public Prosecutions, or that at that time it was the view of the investigating Gardaí that the offences had been fully investigated and that on 11th November, 1987 the applicant was arrested, made a statement and was thereafter later released.

26 Two weeks after this arrest the applicant by invitation met a member of the Gardaí at a meeting in that Garda's home. He was told that there was a problem with the physical evidence in the case. To the applicant's best recollection he attended at the house of the Garda either at the request of that same Garda or at the request of another member of the force. He says he was informed that the respondent could not subsequently reverse a decision by re-arresting the applicant and charging him and taking any further steps...