Ludlow v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,Denham J.
• Judgment Date: 31 July 2008
• Neutral Citation: [2008] IESC 54
• Date: 31 July 2008
• Court: Supreme Court
• Docket Number: Neutral Citiation No. IESC 54 311/05,[S.C. No. 311 of 2005]

THE SUPREME COURT

Murray C.J.

Denham J.

Hardiman J.

Neutral Citiation No. IESC 54

311/05

DENIS LUDLOW

Applicant

And

THE DIRECTOR OF PUBLIC PROSECUTIONS and His HONOUR JUDGE MICHAEL O'SHEA

Appellant

Abstract:

Criminal law - Evidence - Preservation of evidence - Duty of prosecution to preserve evidence to be used against accused - Extent of duty - Judicial review - Application to restrain further prosecution of offences - Whether absence of evidence for inspection by accused creating real and unavoidable risk of unfair trial - Whether further prosecution of offences should be restrained.

Judicial review - Application for judicial review to restrain further prosecution of offences - Delay - Whether applicant disentitled to relief by reason of delay in applying for leave to seek judicial review - Rules of the Superior Courts 1986, O 84, r 21(1).

Facts: the applicant had been charged, inter alia, with dangerous driving causing death. The basis of the prosecution case against him was that he had been driving a lorry that had excessively and illegally worn tyres which had caused the fatal accident. The gardaí had carried out a forensic examination of the lorry at the time of the incident which formed the evidential basis of the prosecution and thereafter disposed of the physical evidence. Some time later the prosecution informed the applicant of the evidential basis of the prosecution which caused the applicant to request the gardaí to provide him with the evidence in question so that he could arrange for his own engineer to examine the evidence and prepare a report on same for the purposes of the defence. Some months later, in October, 2004, the applicant was made aware that the evidence was no longer available for inspection. The applicant obtained leave to seek judicial review restraining the prosecution in December, 2004. The High Court made an order restraining the prosecution on the basis that, due to the unavailability of the evidence for inspection by the applicant, his right to a fair trial would be irreparably harmed. The respondent appealed to the Supreme Court against the judgment and order of the High Court. The respondent contended, inter alia, that the applicant was disentitled to relief by reason of delay in applying for leave to seek judicial review.

Held by the Supreme Court (Denham and Hardiman JJ; Murray CJ concurring) in dismissing the appeal that, 1, that the gardaí had a duty to take possession of and retain any evidence which could affect the guilt or innocence of an accused. This was particularly so when the evidence against the applicant was entirely technical, indirect and left the offence to be inferred, so that any positive defence had to be technical as well.

2. That the duty to preserve and disclose evidence could not be defined precisely as it was dependent on all the circumstances of the case.

3. That the duty did not require the gardaí to engage in disproportionate commitment of manpower and resources and had to be interpreted in a fair and reasonable manner on the particular facts.

4. That in the alternative to retaining large physical objects as evidence, such as motor vehicles, it could be reasonable in certain circumstances for the gardaí to have a forensic report on the object. However, an accused should, in general, be given an opportunity to examine such evidence.

5. That if the evidence no longer existed the reason for its destruction was part of the matrix of facts but was not a determinative factor in the test to be applied.

6. That the principles were subject to the fundamental test to be applied, that being whether there was a real risk of an unavoidable unfair trial. In the circumstances, neither photographs nor gardaí statements were adequate to the defence to enable a fair trial.

7. That, allowing for the time needed to establish what had become of the evidence, the applicant took about three months to seek leave to obtain judicial review which was reasonably prompt in all the circumstances.

Reporter: P.C.

1 JUDGMENT of Mr. Justice Hardiman delivered on the 31st day of July, 2008.

2 Over the last number of years, the Superior Courts have had to consider a number of cases where persons charged with criminal offences seek relief by way of judicial review because the gardaí have lost or destroyed evidence, or given items of evidence to third parties who have themselves irretrievably lost or destroyed them. A representative sample of such cases are Braddish v. DPP [2001] 3 IR 127; Dunne v. DPP [2002] 3 IR 305; Bowes v. DPP; McGrath v. DPP [2003] 2 IR 25; Scully v. DPP [2005] 1 IR 242 and McFarlane v. DPP [2008] IESC 7.

3 An earlier case on the same topic led to the seminal judgment of Lynch J. in Murphy v. DPP [1989] ILRM 171.

4 This series of cases featured missing evidence of various different kinds. The items in question were as small as video tapes and as large as motor vehicles. From the pattern of losses it appears that An Garda Síochána have considerable difficulty in retaining items of evidence in secure custody for any period of time. It is not clear, and it is not relevant, whether this difficulty arises from procedures (or the lack of them) within An Garda Síochána itself or from deficiencies in the premises and facilities provided for the gardaí. The pattern of cases led the Court to observe at p.41 of the report in McGrath, which was also a case of dangerous driving causing death:

5 "Dangerous driving causing death is an offence whose seriousness has been underlined by the fairly recent increase of the maximum penalty to ten years imprisonment. Experience shows that it is almost unique, amongst offences not requiring a specific intent, in carrying possibility of a significant custodial sentence for a convicted person of good character. One would hope that its very seriousness would, in future cases, ensure that items of manifest

6 evidential potential are properly preserved. These two cases tend to indicate that there may be a need for a more cohesive practise amongst the gardaí in the preservation or disposal pre-trial of evidence which is potentially relevant to the defence in the criminal proceedings. The adoption and observation of suitable guidelines might assist in avoiding pre-trial litigation of this nature".

7 In the case of Bowes v. DPP, which was heard jointly with McGrath's case in this court, the gardaí had lost a motor car which, the prosecution said, had been used for the transportation of a significant quantity of drugs, and had been seized by the gardaí. In the circumstances of the case the Court refused to prohibit the prosecution: when the matter proceeded in the trial court it transpired that the gardaí had also (but separately) lost a considerable quantity of drugs, large in bulk and high in value, alleged to have been in the car the defendant was driving, which had itself been lost earlier.

8 From the fact that "lost evidence" cases continue to come before the Courts it appears that there is a serious problem at least in some units of An Garda Síochána in relation to the preservation of items of evidential significance.

9 There may have been a time when Road Traffic offences, even those involving fatalities, were regarded as not being criminal cases in the true sense of the term and therefore perhaps were processed or investigated in a somewhat careless or superficial manner. This is no longer the case. The considerable increase in the maximum penalty has already been noted. Only a newspaper reader's knowledge of the law is necessary to underline the fact that these are effectively the only sort of case where a respectable person without previous convictions may go to jail for a significant period of years in respect of an offence with no requirement for specific criminal intent. No doubt this is as it should be: certainly the public authorities pay for advertising which stresses this specific fact in the interest of road safety, in ads where the besuited driver is led off to a dark cell, and a heavy metal door is ominously slammed behind him.

10 These are not the only changes in the enforcement of Road Traffic laws. The days when the garda evidence was given

11 from a scrawled drawing in a note book, with all distances and times approximate only, have also passed away. Nowadays serious road traffic accidents are investigated by highly trained and specialised accident investigators who are members of An Garda Síochána. The map prepared in this case, for instance, is of a professional architectural standard, in total contrast to the crumpled scrawls one remembers from bygone years. In many cases, of which this is one, there is no direct evidence presented of dangerous or deficient driving: the evidence is entirely technical, indirect and leaves the offence to be inferred, so that any positive defence must be technical as well. The defendant will often require to deploy expert testimony in making his defence. Even with this dramatically increased sophistication, however, physical evidence continues to be lost or mislaid or given to a third party who subsequently disposes of it, sometimes frustrating the work of this new, highly skilled cadreof investigators. This Court has given warnings and advice on the subject, from my own words in McGrath (2003) to those of Denham J. in Savage just a few weeks ago: they have been ignored.

12 Factual background.

13 In the present case the defendant, Mr. Ludlow, is charged with dangerous driving causing death and a number of summary offences, some of which will be discussed below. It appears that on the 8th October, 2002, he was driving a lorry belonging to his employer, a Mr. Snowden, at a place called Roscat, Tullow, Co. Carlow. A Renault Scenic was coming in the opposite direction, from the direction of a place called Fighting Cocks. The accident occurred at about...