Michael O'Callaghan v Ireland and The Attorney General

JurisdictionIreland
JudgeMr. Justice John MacMenamin
Judgment Date30 September 2021
Neutral Citation[2021] IESC 68
CourtSupreme Court
Docket Number[Supreme Court Record No. 118/2020] [High Court Record No. 1675P/2015]
Between:
Michael O'Callaghan
Applicant
and
Ireland and The Attorney General
Respondents

[2021] IESC 68

Clarke C.J.

O'Donnell J.

MacMenamin J.

Dunne J.

Baker J.

[Supreme Court Record No. 118/2020]

[Court of Appeal Record No. 207/2019]

[High Court Record No. 1675P/2015]

THE SUPREME COURT

Criminal appeal – Delay – Article 38.1 of the Constitution – Appellant seeking a declaration that the delay which occurred in his criminal appeal infringed his constitutional right under Article 38.1 of the Constitution – Whether the appellant’s constitutional right under Article 38.1 of the Constitution had been infringed by delays which took place in his appeal to the Court of Criminal Appeal

Facts: The High Court dismissed the claim of the appellant, Mr O'Callaghan, that his constitutional right under Article 38 of the Constitution had been infringed by delays which took place in his appeal to the Court of Criminal Appeal: [2019] IEHC 782. That judgment was upheld by the Court of Appeal on the 6th July, 2020: [2020] IECA 180. Both the High Court and the Court of Appeal held that the appellant’s lawyers had either made, or failed to make, certain procedural steps prior to the appeal which contributed to the delay. Thus, both courts held that the appellant was debarred from recovering damages. The appellant applied for leave to appeal to the Supreme Court. He contended that the Court of Appeal had erred in its decision. The focus in the case was, to a significant degree, on the basis for the Court of Appeal’s conclusions on the evidence regarding the existence of systemic delay at the time, and three factors of varying weight which, it considered, debarred the appellant from relief. Those three factors were: first, a finding that there had been delay in amending the appellant’s grounds of appeal to the Court of Criminal Appeal; second, a conclusion, though of lesser weight, that the appellant’s lawyers should have applied to the Court of Criminal Appeal for bail or an early trial; and third, the absence of comparator evidence to provide a basis for a finding that there had been unreasonable delay.

Held by MacMenamin J that in the relevant period of 2011 to 2013, it was systemic deficiencies which had the effect of delaying the appeal. He held that those deficiencies were known to the State, and were within its power to solve. He held that the elapse of time before the appeal was heard fell outside what could be considered reasonable. He held that the evidence in the case, when analysed and considered, showed that the dominant cause of the delay was the deficiencies in the system at that time, rather than any conduct by the appellant’s lawyers, as urged by the respondents, Ireland and the Attorney General. MacMenamin J held that the delay was caused as a result of inaction by the State in remedying a clear and evident systemic problem which had been long signalled by judges in the State, and referred to in judgments of the ECtHR. He held that, by contrast to other categories of case, the position of the appellant in the criminal appeal could not be remedied by mechanisms, such as an award of interest on a judgment, or adjustments to the measure of damages; what was in question was a criminal prosecution, resulting in a conviction and sentence, not an inter partes civil proceeding where many other constitutional considerations might arise. Setting aside the earlier sentence for a different offence, MacMenamin J held that the appellant was in jail solely on the charges from 7th August, 2011 onwards. MacMenamin J held that the appeal was listed five times without a date being fixed, between December, 2011 and March, 2013, when, on each occasion, no dates were available to hear the appeal because judges could not be assigned to deal with the matter; during that time, the appellant was in custody until his conviction was quashed on 31st July, 2013. MacMenamin J held that this was not a trial or appeal conducted with due expedition. For that reason, he concluded that the appellant was entitled to a declaration that the delay which occurred in his criminal appeal infringed his constitutional right under Article 38.1 of the Constitution, and to an award of €5,000 in damages.

MacMenamin J reversed the judgment of the Court of Appeal, granted a declaration, and made an award of damages. He proposed counsel be heard on the form of the declaration and order.

Appeal allowed.

Judgment of Mr. Justice John MacMenamin dated the 30 th day of September, 2021

Introduction
1

The right to have criminal proceedings conducted with due expedition has been long recognised in the constitutional jurisprudence of this State. That right derives from Article 38 of the Constitution, which provides that no person shall be tried on any criminal charge save in due course of law. This case raises that entitlement, albeit within a narrow scope, both as to time and circumstance. The case at hand concerns alleged systemic delay in a criminal appeal. The events in question occurred in the years 2011 to 2013. This will be referred to as the “relevant period”. The alleged systemic delay under consideration arose in the functioning of the Court of Criminal Appeal, now superseded by the Court of Appeal, created by statute in 2014. Those events were described in a judgment delivered by the High Court, [2019] IEHC 782. There, Faherty J. dismissed the appellant's claim that his constitutional right under Article 38 had been infringed by delays which took place in his appeal to the Court of Criminal Appeal. That judgment was upheld by the Court of Appeal, [2020] IECA 180 (Donnelly, Ní Raifeartaigh and Power JJ.) on the 6 th July, 2020. Like the High Court, the Court of Appeal also reiterated the principle that, in certain circumstances, there was an entitlement derived from Article 38 of the Constitution to recover damages for infringement of the right in question, and that the entitlement was not a novel one. (See, most recently, Nash v. Director of Public Prosecutions [2017] 3 I.R. 320, and, earlier, McFarlane v. Director of Public Prosecutions [2008] 4 I.R. 117). Both the High Court and the Court of Appeal held that the appellant's lawyers had either made, or failed to make, certain procedural steps prior to the appeal which contributed to the delay. Thus, for somewhat different reasons, both courts held that the appellant was debarred from recovering damages.

2

The appellant applied for leave to appeal to this Court. He contended that the Court of Appeal had erred in its decision. The focus in this case, therefore, will, to a significant degree, be on the basis for the Court of Appeal's conclusions on the evidence regarding the existence of systemic delay at the time, and three factors of varying weight which, it considered, debarred the appellant from relief. These three factors were, first, a finding that there had been delay in amending the appellant's grounds of appeal to the Court of Criminal Appeal; second, a conclusion, though of lesser weight, that the appellant's lawyers should have applied to the Court of Criminal Appeal for bail or an early trial; and third, the absence of comparator evidence to provide a basis for a finding that there had been unreasonable delay. One of the many distinct features of this case is that the events in question occurred in the proceedings of a court which is no longer in operation, and where, as the appellant submits, he was in custody serving a sentence pending the outcome of an appeal to the Court of Criminal Appeal.

3

It must be emphasised, therefore, that this is a highly unusual case, which relates to a court structure which has since been altered with the intention of eliminating systemic delays. After his conviction in the Circuit Criminal Court on the 15 th February, 2011, the appellant's appeal to the Court of Criminal Appeal had to be adjourned on no less than five occasions, due to the unavailability of judges due to other work, before, on the sixth occasion, a date could be fixed for the appeal. This is the gravamen of the appellant's case.

The Circumstances
4

In March 2009, two men robbed a post office in Cork City. The appellant was later arrested in relation to this offence on 14 th April, 2009. He was charged the following day. On the 16 th April, 2009, he was brought before the Circuit Criminal Court, and remanded in custody. On the 8 th February, 2011, the appellant was arraigned before the Cork Circuit Criminal Court on the post office robbery charges. He pleaded not guilty. The trial took place between the 8 th and 15 th February, 2011. During the course of those proceedings, the judge excluded the evidence of two members of An Garda Síochána purporting to identify the appellant from CCTV recording taken during the robbery. However, the court admitted DNA evidence which potentially connected the appellant to a balaclava allegedly worn and discarded by one of the raiders. Before the jury, there were; ultimately, three principal strands of prosecution evidence against the appellant. These were, first, eye-witness evidence of a witness, BG, who had given a statement to the Gardaí of seeing one of the raiders take off his balaclava and throw it into a nearby canal. The witness did not, however, give identification evidence. Upon application by the prosecution to the trial judge, the witness' written statement was nonetheless admitted in evidence under s.16 of the Criminal Justice Act, 2006. Second, there was testimony that, when interviewed, the appellant had failed to tell Gardaí that he had, in fact, visited the post office in question earlier on the same day as the robbery. Third, there was DNA evidence relating to a balaclava which was found at a nearby canal. This forensic evidence did connect the appellant to the balaclava, but it also connected two other persons to the garment. At the close of the prosecution in the...

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