Murphy v Director of Public Prosecutions

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 14 July 2009
• Neutral Citation: [2009] IESC 53
• Court: Supreme Court
• Docket Number: [S.C. No. 336 of 2007]
• Date: 14 July 2009

[2009] IESC 53

THE SUPREME COURT

Murray C.J.

Hardiman J.

Geoghegan J

Fennelly J.

Finnegan J.

336/07

Murphy v DPP & Ors

BETWEEN/

COLM MURPHY

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS, IRELAND AND THE ATTORNEY GENERAL

Respondents

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

MCFARLANE v DPP 2008 4 IR 117

CRIMINAL LAW

Trial

Delay - Systemic delay - Prohibition - Fair trial in due course of law - Prosecutorial delay - First trial adjourned due to illness of judge - Conviction quashed on appeal - Retrial adjourned pending prosecution of witnesses for perjury - Medical evidence of impaired memory - Separate charges - Prosecution of charge of membership of an unlawful organisation delayed pending prosecution of charge of conspiracy to cause explosion - Whether blameworthy delay existed - Whether delay warranted prohibition - Whether prejudice evident - Whether further prosecution incompatible with European Convention on Human Rights - Whether stress and anxiety of pending prosecution warranted prohibition - Whether impaired memory and mental functioning of prejudice - McFarlane v DPP [2008] IESC 57, [2008] 4 IR 117 considered - Constitution of Ireland, Article 38.1 - European Convention on Human Rights, article 6(1) - Applicant's appeal on membership charge allowed (336/2007 - SC - 14/7/2009) [2009] IESC 53

Murphy v Director of Public Prosecutions

: An appeal was brought against the order of the High Court refusing relief by way of judicial review to grant an injunction to restrain the respondent from proceedings with a re-trial in the Special Criminal Court on a charge of conspiracy to cause an explosion, commonly referred to as the Omagh bomb. The issue arose inter alia as to the failure of the Court to deal with the membership charge and the finding of the Court that there was no blameworthy prosecutorial delay giving rise to a breach of Article 6 ECHR.

Held by the Supreme Court per Geoghegan J. (Murray CJ, Hardiman, Fennelly & Finnegan JJ. concurring), that the stress and anxiety or prejudice alleged was not such as to warrant orders of prohibition or an injunction. The appeal would be dismissed as to the conspiracy count. As to the membership count, it would be unfair to allow the trial proceed and the appeal would be allowed to that extent only and an injunction would be granted accordingly.

Reporter: E.F.

1 JUDGMENT of Mr. Justice Geoghegan delivered the 14th day of July 2009

2 Judgment delivered by Geoghegan J.

3 This is an appeal brought by the above-named appellant from an order of the High Court (O'Neill J.) refusing by way of judicial review to grant an injunction against the Director of Public Prosecutions from proceeding with a re-trial in the Special Criminal Court of a charge of conspiracy to cause an explosion (the alleged explosion being popularly referred to as "the Omagh Bombing") ordered by the Court of Criminal Appeal following the hearing of an appeal from the Special Criminal Court convicting the appellant of that offence. The ground put forward for such judicial review was essentially delay in different forms in processing the proceedings against the appellant. On the original indictment, there was a second count, that of membership of an unlawful organisation. The trial of that count was postponed by the court pending completion of the proceedings relating to the conspiracy count. In relation to the membership count, the appellant made the case in his judicial review application to stop trial of it also by reason of the long lapse of time in which it remained dormant. Through some oversight or perhaps misunderstanding, the learned trial judge in his reserved judgment did not deal with this second aspect of the judicial review sought but the appeal now before this court does relate to it. I will postpone all further reference to this count until after I have fully dealt with the proceedings relating to the conspiracy count.

4 In connection with the conspiracy proceedings there were some unusual events and circumstances. Before I explain them, I intend to set out in this judgment the chronology of the material events. That chronology is as follows:

5 15/8/98 Explosion in Omagh.

6 8/11/98 Appellant first arrested.

7 21/2/99 Appellant arrested for the second time.

8 23/2/99 Appellant charged with the conspiracy count.

9 26/3/99 Appellant admitted to bail.

10 5/10/99 Book of evidence served on the appellant.

11 31/ 1/2000 Appellant refused legal aid.

12 21/ 3/2000 Trial fixed for 16/1/2000.

13 Due to another trial exceeding its anticipated time limit, court unable to proceed with the trial on 16/ 1/2001 as fixed and a new date was fixed for 9/10/2001.

14 12/10/2001 Trial commenced.

15 19/11/2001 Trial became adjourned owing to illness of one of the three judges. The trial was then adjourned to 11/01/2002.

16 14/ 1/2002 Conclusion of trial.

17 22/ 1/2002 Verdict of guilty on the conspiracy count (trial of the other count had been postponed).

18 25/ 1/2002 Sentence of 14 years imprisonment imposed in respect of the conviction. Leave to appeal refused.

19 30/ 1/2002 Notice of application for leave to appeal lodged with the Court of Criminal Appeal but contained no grounds.

20 October, 2002, grounds of appeal lodged.

21 3/7/2003 Transcript became available for the hearing of the application for leave to appeal by the Court of Criminal Appeal.

22 26/ 4/2004 Application for legal aid on the application to the Court of Criminal Appeal granted.

23 14/6/2004 Written submissions delivered by the appellant.

24 27/10/2004 Date of hearing of application for leave to appeal fixed for 7/12/2004.

25 7/12/2004 to 9/12/2004 Hearing of the application for leave to appeal.

26 21/ 1/2005 Court of Criminal Appeal treated the application for leave as the appeal itself, allowed the appeal, quashed the conviction and ordered a new trial. Almost immediately after the judgment of the Court of Criminal Appeal, two members and one Garda Síochána who had given evidence in the appellant's trial were charged with perjury in respect of that evidence. It is not in dispute that the Director of Public Prosecutions decided to proceed with the perjury prosecution before proceeding with the appellant's re-trial and that the appellant acquiesced in this decision as indeed one would expect him to do.

27 5/ 4/2005 The appellant's case was mentioned in the Special Criminal Court and was adjourned on several occasions thereafter pending the perjury trial. In the event there was an acquittal of the gardaí on the perjury charges.

28 25/ 4/2006 New trial date fixed for the 11/ 1/2007 (the trial of the gardaí having determined).

29 17/7/2006 Application for leave to seek an order injuncting a proposed retrial on grounds of delay. Order made on that date by O'Neill J. granting leave to seek an order of prohibition restraining the second-named respondent from conducting the trial and/or an injunction restraining the Director of Public Prosecutions from further prosecution and a declaration that the trial of the appellant would, if it proceeded, contravene the rights of the appellant under the Constitution and/or the European Convention on Human Rights in particular Article 6 thereof on grounds which can be summarised as undue delay giving rise to a real risk of an unfair trial and lapse of time contravening Article 6 of the European Convention. By a later order of 23/ 5/2007 O'Neill J. gave leave for a third ground to be added namely:

"The capacity of the applicant to defend the criminal proceedings against him is compromised by reason of his memory impairment to such an extent as to render it unfair and/or in breach of his rights under the Constitution and/or the European Convention for Human Rights to proceed with the trial either at all or after such a lapse of time has occurred."

30 The leave to add that additional ground was given at the actual hearing of the judicial review which in turn was brought pursuant to a motion of 21/7/2006. The additional leave was sought by a motion of the 11/ 5/2007. The order of the High Court 30 ^th October, 2007 refusing the judicial review covers the additional ground as well as the original ground. That order followed on a reserved judgment delivered by the learned trial judge on the 23 ^rd October, 2007.

31 A notice of appeal dated the 26 ^th November, 2007 to this court was then served. It contains 28 listed grounds. However, many of them are interrelated with each other, I would summarise the position by saying there are essentially seven issues on the appeal. These are:

32 1. The failure to deal with the membership charge in the judgment.

33 2. The finding that there was no blameworthy prosecutorial delay.

34 3. An issue of alleged systemic delay due to alleged inadequate resourcing of the Special Criminal Court.

35 4. The finding by the learned High Court judge that there was inordinate and unexplained delay on the part of the appellant in advancing an application for legal aid in relation to his appeal.

36 5. The alleged memory impairment on the part of the appellant.

37 6. The finding that the appellant had failed to demonstrate any prejudice arising from alleged delay or that he had suffered a significant level of anxiety.

38 7. The finding that there were no breaches of Article 6 of the European Convention on Human Rights.

39 I will deal with each of these issues though I will postpone expressing views on the first issue which relates to the other count until the end of this judgment. Starting therefore with the issue of delay and in particular the issue of blameworthiness for that delay, I find myself in broad agreement with the views of the learned trial judge....