Manning v DPP

• Jurisdiction: Ireland
• Judge: O'Leary J.
• Judgment Date: 29 July 2004
• Neutral Citation: [2004] IEHC 325
• Docket Number: [2003 No. 293 JR]
• Court: High Court
• Date: 29 July 2004

[2004] IEHC 325

The High Court

[2003 No. 293 JR]

MANNING v. DPP

Judicial Review

Between

Al Manning

Applicant

And

The Director of Public Prosecutions

Respondent

Citations:

BARKER V WINGO 1972 407 US 514

M (P) V MALONE 2002 2 IR 560

DPP V BYRNE 1994 2 IR 236

BELL V DPP 1985 AC 937

O'CONNELL, STATE V FAWSITT 1986 IR 362

RSC O.84 r21(1)

Abstract:

Criminal law - Judicial review - Insurance - Delay - Practice and procedure - Right to expeditious trial - Prejudice - Health problems - Whether applicant’s right to fair trial prejudiced - Whether application for judicial review out of time - Rules of the Superior Courts, 1986.

The applicant had been charged with an offence of conspiracy to defraud contrary to common law. The offence related to an incident whereby the applicant together with two others allegedly conspired to make a fraudulent insurance claim in respect of an alleged traffic accident. The offence in question had allegedly occurred in 1995 and in these proceedings the application sought an order of prohibition against his trial from proceeding and an order granting an extension of time within which to bring the present application. The applicant contended that there had been a number of delays in bringing the matter to trial including an eight year period between the date of the alleged offence and the date of trial and an 18 month lapse of time between the applicant’s arrest for questioning and his subsequent charging. It was also submitted that the applicant had suffered medical problems by reason of delays by the prosecution. The respondent denied the claims of the applicant and contended that the applicant had himself failed to bring his application for judicial review promptly as required under the relevant rules. The applicant had been sent forward for trial in March, 2002 and a date was set for the trial on the 28th of April, 2003. The applicant had sought leave to bring judicial review proceedings on the 25th of April, 2003.

Held by O’Leary J in refusing the relief sought. The applicant’s complaints about the late delivery of documents were trivial and his reason for lack of memory was unsupported by any medical evidence. While a period of delay had occurred in the case it was not through the fault of the prosecution nor was it considered unfair by the parties until the eleventh hour. The true attitude of the applicant to the actual delay could be inferred by his failure to act up until the eve of his trial. An applicant who failed to complain of prejudice at an early date could be a compelling indication of the absence of real prejudice [Barker v Wingo]. The amount of prejudice found in the present case did not outweigh the right of the community to have the alleged crime prosecuted. There was no reason to extend the time limit for the making of the application.

Reporter: R.F.

Judgment of

O'Leary J.

delivered on the 29 day of July 2004

1 The applicant is a businessman and was returned for trial on 25^th March 2002 on the following charge:

2 Conspiracy to Defraud contrary to common law.

3 Particulars of offence.

4 Al Manning between the 10^th April, 1995 and the 20^th October, 1995 both dates inclusive conspired together with Michael Byrne and Gerard Smyth within the County of the City of Dublin to obtain money from Guardian/P.M.P.A. Insurance Company Of Wolfe Tone House Wolfe Tone Street in the County of the City of Dublin by falsely pretending that a genuine traffic accident had occurred on the 10^th April, 1994 at Annaduff, Drumsna, in the County of Leitrim and that arising from the circumstances of the accident there was an obligation on the part of Guardian/P.M.P.A. Insurance Company to make payment in respect of damage to an Iveco lorry registration number and letters 90 LH 2976 together with a low loader and a Caterpillar tracking machine and in respect of damage to motor registration number and letters 91 LD 468.

5 The applicant, pursuant to leave granted by Abott J on 18^thJune, 2003, seeks, the following reliefs:

6 1. An order of Prohibition or in the alternative an Injunction restraining the Respondents his servants or agents from taking any further steps in the criminal proceedings the subject matter of this application.

7 2. An extension of time within which to bring these proceedings.

8 The reliefs are sought on the following grounds.

9 1. The applicant has been deprived of a trial in due course of law and with due expedition. In that there has been a breach of the constitution right of the applicant. The respondent has been guilty of excessive prosecutorial delay in this matter, in particular, the respondent has:-

10 (a) Caused and/or permitted a period in excess of 8 years to elapse between the commission of the alleged offence and the trial of same.

11 (b) Caused and/or permitted a lapse of time of over 18 months between the arrest for questioning of the applicant and his arrest for the purpose of charging.

12 (c) The matter remained in the District Court for a period of 15 months by way of preliminary examination.

13 (d) No adequate details of the reason for the lengthy delay in prosecuting these proceedings have been furnished to the applicant.

14 2. The constitutional right of the applicant to trial in accordance with law is breached in that his ability to properly defend himself has been severely prejudiced by the delay and omissions of the respondent in that:-

15 (a) The delay of 8 years approximately is excessive and constitutes unconscionable delay in all the circumstances.

16 (b) The failure of the respondent to bring the within criminal proceedings to trial with due expedition.

17 (c) The failure of the respondent to disclose material statements of evidence in a timely fashion.

18 (d) The inability of the applicant to respond adequately or at all to the alleged memoranda of interview of the applicant.

19 3. His right to a fair trial has been prejudiced.

20 The leave granted was limited to the same grounds set out above.

21 The respondent opposes the relief sought on the following grounds:

22 1. It is denied that the applicant has been deprived of a trial in due course of law and with due expedition and it is denied there has been a breach of his constitutional rights.

23 2. It is denied that the respondent has been guilty of excessive prosecutorial delay in all the circumstances of the case.

24 3. It is denied that the constitutional right of the applicant to trial in accordance with law is breached and it is denied that the applicant's ability to properly defend himself has been severely prejudiced.

25 4. It is denied that the respondent failed to disclose all material statements of evidence in a timely fashion.

26 5. It is denied that the applicant has suffered any or any genuine specific prejudice relevant to these proceedings which would render him unable to fully defend the criminal proceedings, the subject matter of these proceedings.

27 6. The District Court has already adjudicated on the issue of delay and held against the applicant and accordingly, this matter isres judicata.

28 7. The applicant has failed to act promptly in bringing these proceedings and has been guilty of delay. He has failed to show any reason as to why having been returned for trial on the 25^thMarch, 2002, he did not bring an application for leave to apply for judicial review until the 25^th April, 2003 when his trial was due to commence on the 28^th April, 2003.

29 8. It is denied that the applicant is entitled to an injunction restraining the respondent his servant or agents from taking any further steps in the criminal proceedings the subject matter of this application.

30 9. It is denied that the applicant is entitled to an order of Prohibition against the respondent from proceeding with the criminal proceedings the subject matter of these proceedings.

31 10. It is denied that the applicant is entitled to the relief claimed nor any other relief.

32 11. The respondent will rely on such further or other grounds as maybe advanced at the hearing of the matter.

33 The respondent has abandoned the sixth grounds set out above.

34 The proceedings are supported by a number of affidavits as follows:

35 1. Grounding affidavit of Emer Croghan Solicitor for the applicant dated 25^th April, 2003.

36 2. Supplemental affidavit of Emer Croghan dated 6^th June, 2003.

37 3. Affidavit of Al Manning dated 6^th June, 2003.

38 4. Affidavit of John J Quinn solicitor for the Applicant dated 6^th June, 2003.

39 5. Affidavit of Emer Croghan dated 16^th September, 2003.

40 6. Affidavit of Clair Loftus solicitor for the respondent dated 23^rd June, 2003.

41 7. Affidavit of Detective Sergeant Kevin Gately dated 7^thJuly, 2003 22^nd on behalf of the respondent.

42 Each of these affidavits together with the formal pleadings in the case has been considered by the Court.

43 In spite of the number and length of the affidavits there appears to be only one issue of substance between the parties on the facts leading to this application.

Factual Background to Application.

44 The applicant has based his claim on circumstances relating to an alleged delay in coming to trial and in that regard the following appears to be the timetable relating to the matter:

45 1. The alleged offence allegedly occurred in a period of time ending on 21^st October, 1995.

46 2. The applicant was arrested on 5^th March, 1998 and questioned about the matters.

47 3. His alleged co-conspirator had been arrested on 24^thDecember, 1996 when he apparently denied the accusations.

48 4. His alleged co-conspirator retracted his denial on 6^thApril, 1998 and dated the alleged conspiracy as at 10^thApril, 1994.

49 5. The alleged co-conspirator was convicted and dealt with by the Court on 18^th September, 2000.

50 6. The case against the applicant commenced in the District Court 4^th October, 2000.

51 7. The...