M.S. v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Miriam O'Regan |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] IEHC 659 |
| Docket Number | [Record No. 2020/358 JR] |
| Court | High Court |
| Date | 15 December 2020 |
AND
[2020] IEHC 659
Miriam O'Regan
[Record No. 2020/358 JR]
THE HIGH COURT
Prosecution – Prohibition – Extension of time – Applicant seeking an order of prohibition – Whether an extension of time should be granted
Facts: The applicant was afforded leave on 8 June 2020 to seek to prohibit the further prosecution of bill DU874/2019 before the Circuit Criminal Court, together with an order staying any further prosecution under that bill, together with damages and an extension of time if necessary. The issue as to damages was not pursued either in the statement of grounds or in submissions. The applicant made an assertion of wholly exceptional circumstances claiming it unfair and unjust to put him on trial on the basis that the allegations were between 28 and 52 years old; there were missing documents and missing witnesses; the trial date was fixed for 8 June 2021 when the applicant would be 88 years of age; and, he was in poor health. In addition, the applicant claimed that there was delay on the part of the prosecution, violating the applicant’s right to a fair trial with reasonable expedition without good explanation. The applicant suggested that prosecution of historic indecency allegations in accordance with the Constitution does not apply to three named individuals based on statements to the Smith Inquiry in 2010, contact with a support group, and, in respect of one individual, a successful civil action. The applicant also relied on a maximum sentence of two years for the offences, save for three complainants (two of whom might have a maximum sentence of five years and one ten years if the applicant was convicted) and the combined effect of the foregoing was such that it would be unfair and oppressive to prosecute.
Held by the Court that, on the preliminary point of delay in the institution of the proceedings, the applicant was out of time in accordance with O. 84, r. 21 of the Rules of the Superior Courts, 1986 and this was not a matter in which an extension of time might be made having regard to the provisions thereof. The Court held that, even if it was incorrect in respect of the foregoing, on the substantive claim of the applicant he had not demonstrated that an order of prohibition was warranted.
The Court held that the reliefs claimed would be refused.
Reliefs refused.
The within papers were filed on 4 June 2020 and leave was afforded to the applicant on 8 June 2020 to seek to prohibit the further prosecuting of bill DU874/2019 at present before the Circuit Criminal Court, together with an order staying any further prosecution under that bill, together with damages and an extension of time if necessary. The issue as to damages was not pursued either in the statement of grounds or in submissions.
The applicant makes an assertion of wholly exceptional circumstances claiming it unfair and unjust to put him on trial on the basis that the allegations are between 28 and 52 years old; there are missing documents and missing witnesses; the applicant is currently 87 years of age and the trial date is fixed for 8 June 2021 when the applicant will be 88 years; and, he is in poor health.
In addition, the applicant claims that there was delay on the part of the prosecution, violating the applicant's right to a fair trial with reasonable expedition without good explanation.
The applicant suggests that prosecution of historic indecency allegations in accordance with the Constitution does not apply to three named individuals based on statements to the Smith Inquiry in 2010, contact with a support group, and, in respect of one individual, a successful civil action.
The applicant also relies on a maximum sentence of two years for the offences, save for three complainants (two of whom might have a maximum sentence of five years and one ten years if the applicant was convicted) and the combined effect of the foregoing is such that it would be unfair and oppressive to prosecute.
The charges relate to 31 allegations from complainants (respondent says 11 complainants, applicant says 12 complainants) in respect of incidents alleged to have occurred between January 1968 and December 1992. The complaints themselves were made between 23 April 2012 and 2 February 2014. The applicant was interviewed by the gardaí on 5 December 2015 in respect of the original 57 complainants including the complainants the subject matter of the within bill.
Although a direction to charge issued from the Director of Public Prosecutions on 11 May 2017 the applicant had not heard of the direction until shortly prior to being charged with the bill on 3 May 2019. It had been the intention of the Director of Public Prosecutions to advise by letter the applicant's solicitors of her intention not to proceed with the complaints while the applicant was charged with other offences which were before the court. However, it is common case that due to an oversight no such communication was had with the applicant's solicitor.
The application is grounded upon two affidavits of Donough Molloy, solicitor on behalf of the applicant, respectively dated 26 May 2020 and 3 June 2020. The initial affidavit relates to the application for an extension of time and the latter affidavit grounds the statement of grounds.
In the affidavit as to an extension of time it is asserted that the applicant was charged on 3 May 2019, and on 26 July 2019 the book of evidence was served together with the applicant being returned for trial. An indictment has not yet been served.
Following the service of the book of evidence, correspondence was entered into between the applicant's solicitors and the respondents wherein further details were sought in respect of witness statements, basis for the delays, and other material which it is asserted was relevant to the formulation of the application for judicial review. The respondents were on notice of an intention to apply for judicial review as and from the letter of 26 September 2019. Some of the documents were ordered to be disclosed by the Dublin Circuit Criminal Court on 28 November 2019.
At para. 15 of the affidavit it is stated that on 22 January 2020 the deponent's office received a reply to a letter of 2 January 2020, wherein it was disclosed that “The prosecution was vigilant in ensuring that proceeding trials were not prejudiced by further charging your client.”
The affidavit goes on to detail efforts to secure a medical report on the applicant. However, it is clear that these efforts commenced in or about 6 February 2020, and in the events the only medical report received prior to the application for leave was that of Dr. Rasool, prison doctor, of 15 May 2020.
At para. 22 correspondence between the deponent and the chief prosecution solicitor of 22 April 2020 and 25 May 2020 are referred to. In the first, the deponent indicated that the matter of applying for judicial review is not sufficiently urgent to bring before the courts during COVID-19 and the response from the prosecuting solicitor is to the effect that the applicant was already out of time. The deponent states that the circumstances giving rise to the delays were outside the control of the applicant or could not reasonably have been anticipated by him.
In the affidavit of 3 June 2020 the background to the subject criminal proceedings and other proceedings is set out. On 10 June 2013 the applicant was granted leave to prohibit bill 1085/12 which application was refused both in the High Court and in the Court of Appeal, save that the Court of Appeal did indicate at para. 69 of the judgment of Hogan J. that the additional charges sought to be proffered by the Director of Public Prosecutions relating to six complainants who had not been the subject of any of the charges sent forward from the District Court do not arise from the earlier charges for the purposes of s.4M of the Criminal Procedure Act 1967 (as amended), on the basis that under s.4N the consent of the applicant is required, but was not forthcoming.
By reason of the foregoing, bill 1085/12 was split and the charges in relation to the additional six complainants were the subject matter of bill 498/16. The trial of the complaints in bill 498/16 took place in October 2017. The applicant was convicted on 2 November 2017 in respect of two complainants and the appeal of this conviction was unsuccessful. The trial in respect of bill 1085/12 commenced in January 2019. The applicant was convicted in relation to seven complainants on 8 February 2019 and the subsequent appeal of this conviction was dismissed on 17 November 2020.
The applicant was advised of a further 57 complaints in August 2015 with a 58th complaint being added soon after.
The deponent identifies that there was a three-year delay period between the last statement of the complainant in February 2014 and the date of issue of the direction from the Office of the Director of Public Prosecutions on 11 May 2017. A further period of delay was the two-year period between the direction aforesaid from the Office of the Director of Public Prosecutions and the actual charging of the applicant on 3 May 2019. These delays are said to be inordinate and inexcusable. The deponent says that the assertion that “‘the prosecution was vigilant in ensuring that preceding trials were not prejudiced by further charging’ is unreasonable and without basis in law and in fact.”
It is suggested that notes and medical records are not available, that witnesses who previously gave evidence in support of the applicant would not now come forward because of adverse publicity, that the mother of two complainants might have been of some aid to the defence, and a boy who had teased...
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