McFarlane -v- DPP, [2008] IESC 7 (2008)

Docket Number:60/07
Party Name:McFarlane, DPP
Judge:Kearns J.
 
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THE SUPREME COURT

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J. [SC. No. 60 of 2006]

BETWEEN

BRENDAN McFARLANEAPPLICANT/APPELLANTAND

THE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENTAND

THE MEMBERS OF THE SPECIAL CRIMINAL COURTNOTICE PARTIES

JUDGMENT of Mr. Justice Kearns delivered the 5th day of March, 2008

This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. Because of the often hidden nature of those particular types of crime, there were many instances where criminal prosecutions only became possible many years after the incidents themselves when the victim or complainant finally reported abuse to the authorities. The courts were repeatedly called upon from the mid 1990s onwards to adjudicate between the community's right to see serious crimes prosecuted whilst defending an accused person's right not to be subjected to an unfair trial. The prejudicial effects of long delay were frequently invoked and relied upon by applicants to argue that no trial should take place. The right to a trial in due process of law is a right guaranteed by Article 38.1 of the Constitution and thus where it is established that there is a real risk of an unfair trial, a risk which can not be overcome by rulings or directions from the trial court, the courts in this jurisdiction will prohibit such a trial from taking place.

That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called 'prosecutorial delay', may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1.

Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. 'Systemic delay' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen's constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular article 6 thereof which provides:- "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". In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay. The Court must thus consider the circumstances in which delay of the sort complained of, particularly when superimposed upon an already lengthy interval of time between the offence and the completion of pre-trial court procedures, may entitle an applicant to obtain prohibition of his trial.

BACKGROUND

The factual background surrounding the alleged offences in this case is elaborated in greater detail in the first set of judicial review proceedings in this matter and need only be summarised briefly. On 24th November, 1983, Mr. Don Tidey, one of Ireland's best known businessmen, was abducted and held at a primitive hideout in a wooded area of County Leitrim where he remained until the 16th December, 1983. On that date Mr. Tidey was rescued from his dire predicament by the garda. During a shoot-out which occurred in the course of his rescue a garda recruit, Gary Sheehan, and an army private, Patrick Kelly, were shot dead. The kidnappers made good their escape, but amongst a number of items left behind at the scene were a milk container, a plastic container and a cooking pot. It is part of the State's case that the applicant's fingerprints were found on these items. The applicant was thus a prime suspect in the garda investigation which followed.

Certain things were known about the applicant. He had been imprisoned in Northern Ireland since 1975, serving a long sentence of imprisonment for his part in the I.R.A. bombing of a bar on the Shankill Road in Belfast in which five people were killed. On 25th September, 1983, the applicant, along with other prisoners, managed to escape from the Maze Prison. The kidnapping of Mr. Tidey occurred not long afterwards in November, 1983. The applicant was arrested in The Netherlands in January, 1986 at which point he was found to be in possession of a stolen or forged Irish passport. On 3rd December, 1986, he was extradited from the Netherlands back to Northern Ireland. From that time until some time shortly prior to his arrest, he was serving his sentence in Northern Ireland, a fact that was known to the garda. The garda did not seek to interview the applicant in relation to the Tidey abduction while serving his sentence in Northern Ireland because it was believed he would not co-operate in any such venture and would be entitled to refuse to see any garda that sought to interview him whilst in prison in Northern Ireland. The applicant was on parole in this jurisdiction at the time of his eventual arrest on 5th January, 1998.

The statements of the garda witnesses make clear that, following arrest, the applicant for the most part declined to answer questions and simply stared at the wall. It is alleged, however, that he did make certain admissions while being questioned. Specifically, it is alleged when asked about his involvement "in Drumcroman Woods" he said:- "On the advice of my solicitor I will not discuss it. I was there you can prove that but I will not talk about it." He was also questioned as follows:- "Q. What do you expect will happen to you? A. I am prepared for the big one. I have already talked to her [his girlfriend who had been to see him] about our future and house.

Q. Do you mean murder? A. I am prepared for the worst." These alleged admissions, together with the fingerprints, constitute the case against the applicant. Neither in the course of previous proceedings, nor in the present proceedings, has the applicant disputed the admissibility or accuracy of the evidence in relation to these alleged admissions. However, in the years following the events at Drumcroman Woods, the various items upon which it was alleged the applicant had left his fingerprints became lost in Garda Headquarters in the Phoenix Park in Dublin where they had been stored. From evidence given in the first judicial review proceedings, described in the next paragraph hereunder, it appears that these items were preserved in a specific room in Garda Headquarters in 1983. The room in question was subsequently changed in use from storeroom to a library and conference room and the items in question could not thereafter be traced or located. However, photographs of the fingerprints on the items had been taken and the same were preserved and are available for use at any trial of the applicant. Their loss, however, featured prominently in the first set of judicial review proceedings brought herein.

Before describing those proceedings it is perhaps useful at this point to set out a chronology of the relevant dates which relate to the various steps taken by the parties in this litigation to date:-1) 5 January, 1998: The applicant is arrested and subsequently charged with offences arising from the abduction of Mr. Tidey

2) 14th July, 1998: The applicant is served with the Book of Evidence containing statements of the evidence proposed to be given at trial.

3) 1st November, 1999: The applicant seeks and obtains leave to bring judicial review proceedings, in which he seeks to prohibit his trial both on the basis of prejudice arising from the loss of the items on which his fingerprints were allegedly found and, also on the basis of prejudice arising from delay. As part of the relief on the granting of this application, the applicant obtains a stay on his prosecution.

4) 9th November, 1999: A trial date which had been fixed for the appellant's trial is vacated having regard to the applicant's ongoing judicial review proceedings.

5) 5th April, 2000: The respondent files opposition papers to the applicant's judicial review application.

6) 15th May, 2000: The applicant makes request for voluntary discovery. The respondents decline to make voluntary discovery.

7) 13th October, 2000: Return date for applicant's Motion for Discovery before the Master of the High Court.

8) 12th January, 2001: Discovery motion is struck out as both parties make an error about the correct date of the hearing.

9) 29th May, 2001: The applicant's solicitor writes to Chief Prosecution Solicitor seeking to have the motion re-entered.

10) 2nd October, 2001: The applicant brings a...

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