McKenna v The Presiding Judge of The Circuit Criminal Court and DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Kelly
• Judgment Date: 14 January 2000
• Neutral Citation: [2000] IEHC 2
• Date: 14 January 2000

[2000] IEHC 2

THE HIGH COURT

No 88JR/1999

MCKENNA v. THE PRESIDING JUDGE OF THE CIRCUIT CRIMINAL COURT AND THE DPP

JUDICIAL REVIEW

BETWEEN

DAVID MC KENNA

APPLICANT

AND

THE PRESIDING JUDGE OF THE DUBLIN CIRCUIT CRIMINAL COURT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Citations:

FORGERY ACT 1913

LARCENY ACT 1916

LARCENY (AMDT) ACT 1990

CONSTITUTION ART 38.1

CONSTITUTION ART 40

CONSTITUTION ART 41

CRIMINAL JUSTICE ACT 1984 S4

P (P) V DPP UNREP GEOGHEGAN 5.10.1999

O'R V DPP 1997 2 IR 273

GIBBS V PRESIDENT OF DUBLIN CIRCUIT CRIMINAL COURT UNREP KELLY 16.5.1996 1996/11/3587

HEALY, STATE V DONOGHUE 1976 IR 325

O'CONNELL, STATE V FAWSITT 1986 IR 362

CUDDY, STATE V MANGAN 1988 ILRM 720

DPP V BYRNE 1994 2 IR 236

CALAHANE V MURPHY 1994 2 IR 262

HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 513

FITZPATRICK V SHIELDS 1989 ILRM 243

D V DPP 1994 2 IR 465

BARKER V WINGO 1972 407 US 514

Z V DPP 1994 2 IR 476

B V DPP 1997 3 IR 140

Synopsis

Criminal Law

Criminal; judicial review; prohibition; delay; delay of fourteen months between date complaint made and date of first arrest; delay of four years and four months between date of applicant's first arrest and second arrest; applicant seeking an order of prohibition to restrain the further prosecution of the charges against him; whether delay was inordinate; whether the applicant has been prejudiced by the delay and his right to a fair trial impaired.

Held: The cumulative delay was inordinate and inexcusable; delay has not given rise to a real risk of an unfair trial; application dismissed.

McKenna v. D.P.P - High Court: Kelly J. - 14/01/2000

The applicant had been subject of a investigation with regard to alleged forgery offences. These offences were alleged to have taken place in 1991 and 1992. It was not until 1998 that a decision was taken to prefer charges against the applicant. The applicant sought an order prohibiting the impending prosecution. The applicant claimed that the relief should issue on the basis of the delay that had occurred and the prejudice he would suffer if the trial was to go ahead. In the High Court Kelly J held that there was an onus upon the state authorities to prosecute criminal offences as soon as practicable. Although some of the delays involved in the case were inordinate and inexcusable, the overall prejudice resulting to the applicant was not so excessive as to entitle him to a declaration prohibiting the impending prosecution. Mr. Justice Kelly therefore declined to grant the relief sought.

1 JUDGMENT of Mr. Justice Kelly delivered on the 14th day of January, 2000

INTRODUCTION

2 The Applicant has been returned for trial on six charges involving dishonesty offences. Four of the charges have been brought under the provisions of the Forgery Act, 1913 and the remaining two have been brought under the provisions of the Larceny Act, 1916 as amended by the Larceny Act, 1990. All of the offences are alleged to have been committed on various dates between the 2nd April, 1991 and 28th June, 1992.

3 On the 8th March, 1999 Morris P. gave leave for this Judicial Review. The Applicant seeks an order of prohibition to restrain the further prosecution of these six charges before the Circuit Criminal Court. The grounds relied upon to seek such an order and in respect of which leave was granted to apply are:-

4 2 "1. By reason of excessive delay the (Applicant) has been denied his right to a fair and speedy trial in breach of his constitutional rights pursuant to Article 38.1 of the Constitution.

5 2. By reason of excessive delay it would be unconscionable and oppressive to allow the Respondents to proceed with the criminal charges where they have chosen to take no action on foot of the subject matter of these charges for 41/2years.

6 3. By reason of excessive delay the Respondents created a reasonable expectation on the part of the Applicant that no charges would be brought and in the circumstances the bringing of charges at this time constitutes an unfair attack on the Applicant's personal rights guaranteed by Articles 40 and 41 of the Constitution and on his family's rights."

7 Whilst references are made in the evidence before the Court to the Applicant's family circumstances, the thrust of the case and the legal submissions made on his behalf were directed to the first two of these grounds.

CHRONOLOGY

8 The Applicant was a partner in a firm of stockbrokers and the charges relate to transactions alleged to have taken place while he held that position.

9 As I have already noted, the charges relate to matters which are alleged to have occurred between April 1991 and June 1992. A complaint was made to the police by the Applicant's former partners concerning these alleged activities on the 22nd December, 1992. An investigation got under way headed by a now retired Detective Sergeant and other members of staff attached to the Fraud Section of the Central Detective Unit at Harcourt Square, Dublin.

10 On the 23rd February, 1994, some fourteen months after the making of the original complaint to the police, the Applicant was arrested on suspicion of forgery and was detained at Dundrum Police Station under Section 4 of the Criminal Justice Act, 1984. Whilst detained the Applicant declined to answer any questions.

11 Nine months later on the 24th November, 1994, the investigation file was submitted to the Director of Public Prosecutions for directions. During the interval between the Applicant's arrest and this date the Court has been told on Affidavit that the investigation file was being completed.

12 The professional officer having charge of the matter in the office of Director of Public Prosecutions received the investigation file from the police on the 12th December, 1994.

13 On the 10th January, 1995 the office of the Director of Public Prosecutions raised a number of queries in respect of the contents of the file and received answers thereto on the 8th February, 1995. On the 14th February, 1995 further queries were raised in a letter from the DPP concerning three particular issues, namely, the evidence to be given by one of the suggested witnesses, the purchase of Allied Irish Bank shares by the Applicant on that witness's behalf and the position regarding the dismissal of another person from the Applicant's firm.

14 On the 18th April, 1995 additional statements were supplied by the police to the DPP in relation to handwriting analysis.

15 On the 28th April, 1995 the officer in charge of the case in the Office of the DPP sought a reply to his letter of the 14th February, 1995 by sending a reminder. He sent further written reminders on the 19th May, 29th May and 7th July, 1995 but it was not until the 8th August, 1995 that he received the material that he had originally sought the preceding February. He says that that delay may in part be explained by the fact that in the interim he received the additional statements regarding the analysis of handwriting found on a number of documents pertaining to the investigation. This material, although transmitted on the 18th April, 1995, was not received by the relevant officer in the DPP's office until the 17th May, 1995. Further copies of these additional statements were sent to him on the 25th May and the 6th July, 1995 in apparent response to his letter of the 14th February, 1995.

16 On the 31st July, 1995 additional proofs were forwarded to the DPP.

17 On the 17th August, 1995 new queries were raised by the DPP's office concerning the purchase of Allied Irish Bank shares by the Applicant and also in relation to what is described as a "results" account. These queries had in turn to be followed up by reminders from the DPP's office dated 16th October and 20th November, 1995. It was not until the 15th November, 1995 that a statement was taken from a witness regarding the purchase of these shares and that statement was received by the Director of Public Prosecutions on the 4th December, 1995.

18 On the 22nd December, 1995 three years to the day after the complaint was made the DPP wrote to the Office of the Chief State Solicitor suggesting that a consultation should take place in early January of the following year.

19 On the 28th December, 1995 the DPP received a letter from solicitors acting for one on the injured parties. It was suggested that the Applicant had made a statement in the presence of a solicitor admitting certain matters and as a result on the 23rd January, 1996 the DPP wrote to the police asking for the matter to be clarified.

20 On the 8th February, 1996 a consultation took place at the office of the Director of Public Prosecutions. As a result of that, the police were asked to obtain clarification of a number of matters and also to enquire into the alleged admissions. This request had also to be followed up by a reminder dated the 13th March, 1996. The material was ultimately received by the DPP on the 30th April, 1996. Meanwhile on the 11th March, 1996 one of the partners in the firm of stockbrokers to which the Applicant belonged made contact with the police regarding the making of a further statement.

21 On the 2nd May, 1996 the DPP requested the police to carry out further enquiries. These were carried out and correspondence was forwarded to the DPP on the 5th June, 1996 but was not apparently received by the professional officer in that office until the 25th June, 1996.

22 On the 2nd July, 1996 the DPP wrote asking that Mr. Kevin Haugh, S.C. (as he then was) be briefed and requested his opinion and general advice. Shortly afterwards Mr. Haugh was appointed a Circuit Court Judge and Mr. Paul O'Higgins S.C, was nominated in his stead on the 2nd August, 1996.

23 A further consultation took place on the 4th September, 1996 and Counsel requested additional material. This was done and the material was obtained on the...