McFarlane v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan,Fennelly J.,Mr. Justice Kearns
• Judgment Date: 05 March 2008
• Neutral Citation: [2008] IESC 7
• Court: Supreme Court
• Docket Number: [S.C.
• Date: 05 March 2008

McFarlane v DPP

BETWEEN/

BRENDAN McFARLANE

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Prosecutor

AND THE MEMBERS OF THE SPECIAL CRIMINAL COURT

Notice Parties

[2008] IESC 7

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

No. 60/2007

THE SUPREME COURT

CRIMINAL LAW

Delay

Right to fair trial - Reasonable expedition - Prosecutorial delay - Systemic delay - Principles to be applied - Delay in prosecution due to applicant's judicial review to prohibit trial - Whether applicant entitled to bring subsequent proceedings on grounds of delay in conduct of first judicial review - Whether blameworthy prosecutorial and/or systemic delay in conduct of judicial review proceedings - Whether delay referable to conduct of applicant - Whether delay breach of right to trial with reasonable expedition - AA v Medical Council [2003] 4 IR 302, SM v Ireland [2007] IESC 11, [2007] 3 IR 283, DPP v Byrne [1994] 2 IR 236, PM v Malone [2002] 2 IR 560 and PM v DPP [2006] IESC 22, [2006] 3 IR 172 followed; B v DPP [1997] 3 IR 140, DC v DPP [2005] IESC 77, [2005] 4 IR 281, SA v DPP [2007] IESC 43, (Unrep, SC, 17/10/2007), Barker v Wingo (1972) 407 US 514, DPP v Byrne [1994] 2 IR 236, TH v DPP [2006] IESC 48, [2006] 3 IR 520, Barry v Ireland [2005] ECHR. 865, (Unrep, ECHR, 15/12/2005) and McMullen v Ireland [2004] ECHR 404, (Unrep, ECHR, 29/7/2004) considered - Constitution of Ireland, 1937, Article 38.1 - European Convention on Human Rights, article 6 (60/2007 - SC - 5/3/2008) [2008] IESC 7

McFarlane v DPP

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

DPP v BYRNE 1994 2 IR 236

MCMULLEN v IRELAND 2004 ECHR 404

BARRY v IRELAND 2005 ECHR 865

OFFENCES AGAINST THE STATE ACT 1939 S30

CRIMINAL LAW (JURISDICTION) ACT 1976

HENDERSON v HENDERSON 1843 3 HARE 100 1843 67 ER 313

A (A) v MEDICAL COUNCIL 2003 4 IR 302

LAW SOCIETY OF IRELAND v MALOCCO UNREP SUPREME 15.2.2005 2005/36/7409 2005 IESC 5

H (T) v DPP 2006 3 IR 520 2006 IESC 48

CARROLL v RYAN & ORS 2003 1 IR 309 2003 2 ILRM 1

MITCHELL v IRELAND, AG & DPP UNREP SUPREME 28.3.2007 2007 IESC 11

JOHNSON v GORE WOOD 2002 2 AC 1

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

HEALY, STATE v DONOGHUE 1976 IR 325

BARKER v WINGO 1972 407 US 514

M (P) v MALONE 2002 2 IR 560

MILLS v THE QUEEN 1986 29 DLR 161

O'FLYNN v CLIFFORD 1988 IR 740

M (P) v DPP 2006 3 IR 172

CONSTITUTION ART 29.6

O LAIGHLEIS, RE 1960 IR 93

KAVANAGH v GOVERNOR OF MOUNTJOY PRISON 2002 3 IR 97

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

WOODHOUSE v CONSIGNA 2002 2 AER 737 2002 1 WLR 2558

RUSSELL v WATERFORD & LIMERICK RAILWAY CO 1885 16 LR IR 314

COX v DUBLIN CITY DISTILLERY (NO. 2) 1915 1 IR 345

AKRAM v MIN JUSTICE 2004 1 IR 452

REICHEL v MCGRATH 1889 14 AC 665

P (P) v DPP 2000 1 IR 403

CONSTITUTION OF THE UNITED STATES OF AMERICA 6TH AMDT

O'H v DPP UNREP SUPREME 28.3.2007 2007 IESC 12

GILROY v FLYNN 2005 1 ILRM 290 2004/19/4269

NOONAN (AKA HOBAN) v DPP UNREP SUPREME 27.7.2007 2007 IESC 34

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599

B v DPP 1997 3 IR 140

A (S) v DPP UNREP SUPREME 17.10.2007 2007 IESC 43

1 Mr. Justice Geoghegandelivered the 5th day of March 2008

2 I have had the benefit of reading the judgments to be delivered in this appeal by Fennelly J. and Kearns J. I am in broad agreement with them and, in particular, I am in complete agreement with their view that the appeal should be dismissed.

3 There are small nuances of difference, mainly differences of emphasis in the two judgments which to some extent impinge on aspects of the case which I myself would like to emphasize. For that reason, I have prepared this short judgment with observations of my own.

4 The aspect of the appeal on which I particularly want to concentrate is the relatively new concept of systemic delay. First of all, I am not entirely clear what exactly the concept means and to what extent it can be relevant in relation to justiciable delay. Various alternatives come to mind. I would suggest, for instance, the following and there may indeed be more.

5 1. Any delay thought to have been unnecessary and for which the accused was not responsible in the procedures of bringing him to trial and completing the trial.

6 2. The same definition but confined to situations where the delay was caused by blameworthiness on the part of the authorities.

7 3. The same definition but confining the concept of " unnecessary delay" to delay within the existing system as it stood. In other words no cognisance would be taken of, for instance, a failure on the part of the state to appoint an adequate number of judges or to provide an adequate number of courtrooms etc.

8 4. The same definition but account would only be taken of delay caused within the office of the Director of Public Prosecutions or the Garda Síochána but not within the courts. It must be remembered in this connection that unlike in the case of the U.K. the courts are excluded from the definition of "organ of the State" in the European Convention on Human Rights Act, 2003. If the courts have been expressly excluded from that Act, as they have been, it might seem wrong on one view to introduce them by a back door unless of course the Constitution brought them in, a matter to which I will refer again later.

9 As I do not think that any important issue of systemic delay arises in this case, I would like to postpone expressing any view on its nature and relevance until a case in which it properly arises. Whilst I agree with Kearns J. that prosecutorial delay in the sense that the Irish courts have understood it, could be considered to be a form of systemic delay, I do not agree that systemic delay and prosecutorial delay are the same thing. At most, prosecutorial delay is one form of systemic delay and then only if systemic delay means not just delay due to a bad system but delay due to a perfectly good system not being properly applied. Furthermore in the Irish jurisprudence, it imports gross blameworthiness.

10 I do not know of any case where as a consequence of an inadequate structure due to a lack of staff or lack of suitable staff, justiciable delay resulted. Contrary to the view of Kearns J., I would have considerable doubt that in enunciating the principle that delay of itself and by itself might in exceptional circumstances be a ground for prohibiting a trial, Finlay C.J. in DPP v. Byrne [1994] 2 I.R. 236 had in mind " systemic delay". I would rather suspect that the former Chief Justice was entirely viewing the matter from the point of view of the constitutional rights of an accused and was opining that there could be circumstances where a particular situation of the accused rendered it unfair to put him or her on trial having regard to a long lapse of time however caused. Conceivably that long lapse of time might in fact have been contributed to by the judiciary.

11 In this particular case, as Fennelly J. has pointed out, the only conceivably relevant justiciable delay was the delay between the serving and filing of the notice of appeal by the Director of Public Prosecutions on the 19th August, 2003 and the lodging of the books of appeal on the 15th November, 2004. The explanation for this delay was apparently a difficulty in obtaining a signed and approved transcript of the judgment of the High Court. We do not know what exactly led to that delay. It might have been simply an oversight on the part of a conscientious and hardworking judge as the particular judge was in this case or there might have been some reason why he was delaying approving it or indeed it may not have been adequately placed before him for approval. It could be a number of reasons. There is a system which normally works perfectly well whereby a judge who gives an ex tempore judgment is asked to sign and approve it. As to whether he gives priority to that job of work may depend on whether he is being given proper information as to the urgency with which it is required. I find it unnecessary to consider whether this particular lapse of time should be taken into account in considering whether a trial should be prohibited because I am quite satisfied that prohibition would not be appropriate in this case at any rate.

12 Having regard to the view which Fennelly J., Kearns J. and I myself have taken, I do not think that a detailed consideration of the concept of systemic delay is necessary and I would like to reserve my consideration of it until a case where it seriously arises.

13 I have already indicated that although I am in full agreement, as is Kearns J., with the principles of Finlay C.J. laid down by him in DPP v. Byrne cited above, I do not think for the reasons I have given that the former Chief Justice was referring to "systemic delay". In relation to the wider meaning of that expression, the fact that at any given time the Oireachtas had provided for an inadequate number of judges would, if anything, be a reason under our domestic law for extending the period which might be thought of as a reasonable time within which a case should be heard. I fully acknowledge that that view might not accord with the Convention. It is for that reason that I believe the issue of systemic delay is a brand new one and is dependent on the application of the Convention within the limits of its applicability under the 2003 Act.

14 The case law of the European Court of Human Rights including the McMullen case and the Barry case, makes it clear that in any situation in which redress is being sought on the grounds of delay all the circumstances have to be considered and systemic delay may be one of those circumstances. I rather doubt there is enough...