McArdle v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 05 July 2012
• Neutral Citation: [2012] IEHC 286
• Docket Number: RECORD NO. 325 JR/2011
• Court: High Court
• Date: 05 July 2012

[2012] IEHC 286

THE HIGH COURT

RECORD NO. 325 JR/2011

McArdle v DPP

JUDICIAL REVIEW

BETWEEN

STEPHEN McARDLE

APPLICANT

v.

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

RSC O.84 r20(7)(A)

F (B) v DPP 2001 1 IR 656

H (S) v DPP 2006 3 IR 575

DEVOY v DPP UNREP SUPREME 7.4. 2008 2008/12/2458 2008 IESC 13

DUBLIN CORP v FLYNN 1980 IR 357

Constitutional law - Judicial Review - Criminal law - Order of prohibition - Right to trial with due expedition - Whether delay in executing bench warrants - Whether real risk of unfair trial - Bunreacht na hÉireann, 1937 - European Convention on Human Rights and Fundamental Freedoms.

Facts The proceedings arose out of two alleged offences of criminal damage against the applicant. The applicant was accused of throwing rocks at a bus and causing injuries to a passenger. The applicant, who was 16 at the time, was allegedly not available to be arrested and was the subject of a number of bench warrants (although this was disputed by the applicant). The applicant sought an order of prohibition seeking to restrain any further proceedings against him. It was contended that the applicant was prejudiced because of the delay and that he might no longer be able to recollect who the relevant witnesses were and furthermore one potential witness was now deceased. It was submitted that the delay in prosecuting the applicant was in breach of his right to trial with due expedition and had irreparably prejudiced the prospect of the applicant obtaining a fair trial.

Held by Hedigan J in refusing the relief sought: The courts had recognised that there was a special duty on the prosecution to expedite criminal matters that concerned children. There were good reasons why an order prohibiting the holding of a criminal trial should be exceptional in nature as the courts must have regard to the public interest in ensuring that crime was prosecuted. Delays had occurred in obtaining specialist reports and this delay could not be attributed to the respondents. Given that the applicant was subject to seven bench warrants it would seem highly credible that the applicant was engaging in evasion to frustrate the Gardai in the execution of the warrant. The applicant himself was responsible for much of the delay and had not pointed to any specific prejudice that raised a real risk of an unfair trial.

Mr. Justice Hedigan

1 The applicant seeks the following reliefs:-

1 An Order of prohibition by way of an application for Judicial Review restraining the respondent, his servants or agents from taking any further steps in the proceedings entitled Director of Public Prosecutions v. Stephen McArdle, at present pending before the Dublin Circuit Criminal Court, Bill number 223/2011.

2 Further and in the alternative to the foregoing plea, an Order in the nature of an injunction by way of an application for Judicial Review restraining the respondent, his servants or agents from taking any further steps in the proceedings entitled Director of Public Prosecutions v. Stephen McArdle, at present pending before the Dublin Circuit Criminal Court, Bill number 223/2011.

3 A declaration by way of an application for Judicial Review that the delay on the part of the respondent in the institution and prosecution of the criminal proceedings entitled Director of Public Prosecutions v. Stephen McArdle, which said offences are alleged to have occurred on the 3^rd February, 2007, which said charges are at present pending before the Dublin Circuit Criminal Court is in breach of the applicants right to a trial with due expedition, which said right is protected by Article 38.1 and Article 40.3 Bunreacht na hEireann and/or Article 6 of the European Convention on Human Rights and Fundamental Freedoms.

4 A declaration by way of application for Judicial Review that the delay on the part of the respondent in the institution and prosecution of the criminal proceedings entitled Director of Public Prosecutions v. Stephen McArdle, which said offences are alleged to have occurred on the 3^rd February, 2007, which said charges are at present pending before the Dublin Circuit Criminal Court, has irreparably prejudiced the prospect of the applicant herein obtaining a fair trial in accordance with the applicant's rights under Article 38.1 and Article 40.3 of Bunreacht na hEireann and/or Article 6 of the European Convention on Human Rights and Fundamental Freedoms and or is in breach of the applicants right to a fair trial.

5 An order staying the criminal proceedings entitled Director of Public Prosecutions v. Stephen McArdle the subject matter for relief herein, pursuant to Order 84, Rule 20(7) a) of the Rules of the Superior Courts, pending the determination of these proceedings.

6 An order providing for all necessary an/or incidental directions in relation to this application for relief.

2 2.1 The applicant seeks an injunction restraining the respondent taking any further steps in the proceedings pending against him entitled Director of Public Prosecutionsv. McArdle at present pending before Dublin Circuit Criminal Court, bearing Bill number 223/2011. The applicant further seeks a declaration that delay on the part of the respondent in the institution of the proceedings is in breach of his right to a trial with due expedition, and has prejudiced his prospect of obtaining a fair trial.

3 2.2 These proceedings arise out of two alleged offences of criminal damage and assault causing harm, arising out of an incident where the applicant is accused of throwing rocks at a bus, hitting a passenger through the window and fracturing her skull. This incident occurred on 3^rd February 2007. The applicant was 16 years old at this time. The driver of the bus identified the applicant to the gardai as the perpetrator of the offence immediately after it had happened. The applicant admitted in his cautioned memorandum of interview that he had thrown a rock at the bus but denied that it had hit the window.

4 2.3 The file was first sent by the prosecuting Garda Shane Fitzsimons to the Juvenile Liaison Office which determined that the case was not appropriate for inclusion in the programme. When this decision was made, the file was sent to the DPP in October 2007. In November 2007 directions were received to charge the applicant. Garda Fitzsimons then went to the address that had been given by the accused when he was arrested, and found that he was not living at that address. Garda Fitzsimons visited the address on a number of subsequent occasions and spoke with the applicant's mother. The contents of this conversation are in dispute. Garda Fitzsimons avers that the applicant's mother told him she would not bring the applicant to the station for purposes of charging. The applicant's mother has sworn an affidavit stating that she never told the guard she would not bring him to the station.

5 2.4 The applicant was in any event eventually found and charged on the 22^nd January, 2008. Between January 2008 and October 2008 psychiatric and psychological reports were secured at the request of the defence on behalf of the applicant. During the period from October 2008 until December 2009 the applicant was the subject of seven bench warrants on the following dates; 9^th October, 2008, 23rd January, 2009, 3^rd April, 2009, 6th May, 2009, 23rd July, 2009, 9th of October, 2009 and 3 December, 2009. The applicant has averred that his failure to appear on these dates was attributable to a number of problems he was having at that time. In relation to the period from December 2009 when the last bench warrant issued and November 2010 when it was executed, the applicant claimed he was available to be arrested. Garda Fitzsimons avers at paragraph's 11 and 12 of his affidavit that he does not accept that the applicant was available to have the warrant executed during this period. The applicant claims that he contacted his solicitor to try and have the warrant executed and that he was contacted by his solicitor to inform him that they had written to the Garda to execute this warrant. Garda Fitzsimons has specifically rejected any contention that any effort was made by the applicant to have the warrant executed. In relation to the period between November 2010 and February 2011 when the matter was sent forward for trial the respondent argues that matters progressed promptly. The applicant however argues that there was unacceptable delay in particular he complains about delay in serving the book of evidence.

6 2.5 The applicant asserts that he is prejudiced because of the delay in this case. He states that as a result of the delay he may not be able to re-collect certain events on the date in question which would assist him in his defence of the allegations. The applicant further asserts that there may have been a number of witnesses who were present on the date who could give evidence on his behalf at trial and that the delay in charging him until nearly a year later means that he may no longer be able to recollect who these persons were. He also states that one "potential witness" is now deceased. He states that a Mr Black could have given exculpatory evidence on his behalf. For these reasons the applicant now seeks to have his trial prohibited.

31 The applicant seeks an injunction restraining the respondent taking any further steps in the proceedings at present pending against him before the Dublin Circuit Criminal Court. The applicant seeks a declaration that the delay on the part of the respondent in the institution and prosecution of the criminal proceedings involving offences alleged to have occurred on the 3^rd February, 2007 is in breach of the applicant's right to a trial with due expedition. The applicant further seeks a...