Mark Nash v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Moriarty
• Judgment Date: 17 December 2012
• Neutral Citation: [2012] IEHC 598,[2013] IEHC 598
• Court: High Court
• Docket Number: [No. 35 J.R./2010]
• Date: 17 December 2012

Nash v DPP

JUDICIAL REVIEW

BETWEEN

MARK NASH

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

[2013] IEHC 598

[No. 35 J.R./2010]

THE HIGH COURT

CRIMINAL LAW

Judicial review

Injunction restraining prosecution of applicant refused - Application for damages for alleged breach of right to trial with due expedition - Application for costs - Whether applicant entitled to damages - Whether delay - Whether appropriate to award applicant costs - Dunne v Minister for Environment [2007] IESC 60, [2008] 2 IR 775 and Nash v DPP [2012] IEHC 359 (Unrep, Moriarty J, 10/8/2012) considered - Damages refused; partial costs awarded (2010/35JR - Moriarty J - 17/10/2012) [2012] IEHC 598

Nash v DPP

Facts The applicant, who had been convicted of murder, had sought damages for alleged breach of his rights under the Constitution and the European Convention on Human Rights Act, 2003. The applicant contended that his right to trial with due expedition had been breached and sought damages under the Constitution or in the alternative under Arts. 6 and 13 of the European Convention on Human Rights (ECHR). It was submitted that breach of constitutional rights were actionable per se without proof of special damage and also contended that there were heightened levels of anxiety, difficulties in presenting his defence and prolonged detention in an Irish prison as a British national, as a consequence of the repeated refusals of his applications to transfer. It was also submitted that in the event that he was unsuccessful in his damages claim costs should be awarded on the basis of raising a point of public importance.

Held by Moriarty J in refusing the relief sought: While in previous proceedings a delay had been acknowledged, it had not been so unreasonable so as to give rise to the granting of an injunction restraining the applicant”s trial. A prosecution could not be brought there was credible evidence upon which a case can be pursued and it took some time before crucial evidence had surfaced. Thereafter matters had progressed with sufficient speed. It was not a case where nothing had happened for an unexplained extended period of time such as would give rise to a finding that the applicant”s rights under the Constitution and the ECHR had been breached. Given the circumstances of the case and the delay that had occurred it was appropriate that the applicant should be awarded one third of his costs.

CONSTITUTION ART 38

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3(2)

MCFARLANE v DPP 2008 4 IR 117 2008/37/7968 2008 IESC 7

BARRY v IRELAND UNREP 15.12.2005 2005 ECHR 865 (APPLICATION NO 18273/04)

DUNNE v MIN FOR THE ENVIRONMENT & ORS 2008 2 IR 775 2007/16/3368 2007 IESC 60

RATTIGAN v DPP 2008 4 IR 639 2008/54/11351 2008 IESC 34

Mr. Justice Moriarty

Introduction

1 1. In a written judgment delivered on the 10^th August, 2012, this Court refused the applicant the primary relief sought by him, namely an injunction restraining the respondent from proceeding with murder charges resulting from a double killing at Grangegorman, Dublin, in March 1997. The Court afforded the parties a further opportunity to be heard on the question of ancillary relief. In this regard, the applicant sought damages for alleged breach of his rights under the Constitution and the European Convention on Human Rights Act 2003, and costs. This aspect of the applicant's claim was heard on the 4^th October, 2012 and I now give judgment as follows.

Applicant's Submissions

2 2. The applicant seeks damages for the alleged breach of his right to trial with due expedition. This claim is made in the first instance in reliance on his constitutional rights as protected under Art. 38 of the Constitution but, in the alternative, on Arts. 6 and 13 of the European Convention on Human Rights (ECHR) through the machinery created in section 3 of the European Convention on Human Rights Act2003. Section 3(1) obliges all organs of the State to perform their functions in a manner compatible with the State's obligations under the ECHR. Section 3(2) provides that:-

"A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate."

3 3. The applicant contends that there has been a breach of Art. 6 ECHR which reads as follows:-

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

4 The applicant also refers to Art. 13 ECHR which provides that:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

5 4. The applicant relies uponMcFarlane v. D.P.P. [2008] 4 I.R. 117 to support his claim. That case also involved an unsuccessful application for prohibition on grounds of delay, however damages were not claimed. On appeal to the Supreme Court, Fennelly J. referred to the question of damages, with reference to a case of the European Court of Human Rights, Barry v. Ireland [2005] ECHR 865 (18273/04), which was also concerned with delay in proceedings. He stated as follows:-

6 2 "88 … It appears that[in Barry] the representatives of Ireland had submitted to the court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that 'damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them'. The court's response to that argument at para. 53 was:-

7 'There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case law would not cause the domestic courts to fashion any remedies that would not otherwise have been available'

8 89.I would remark that, in [Barry], as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, if they were claimed. Any such claim would have to be made in the High Court in the first instance. The [European Convention on Human Rights] Act of 2003 might be relevant."

9 5. The applicant submits that it is therefore an open question as to whether damages would be available as an alternative remedy to prohibition in a case where it was sought for breach of the right to trial with...