Nash v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 24 October 2016
• Neutral Citation: [2016] IESC 60
• Docket Number: [Appeal Nos: 22/2013 and 24/2013],[S.C. Nos. 22 and 24 of 2013]
• Court: Supreme Court
• Date: 24 October 2016

[2016] IESC 60

THE SUPREME COURT

Clarke J.

Denham C.J.

O'Donnell Donal J.

Clarke J.

Dunne J.

Charleton J.

[Appeal Nos: 22/2013 and 24/2013]

Between

Mark Nash

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

Delay – Criminal trial – Damages – Appellant seeking to prohibit a criminal trial and to claim damages on the basis of an allegation of delay – Whether it was possible in principle and appropriate in the circumstances of the case to award the appellant damages as a result of a significant delay in the criminal process

Facts: The appellant, Mr Nash, brought proceedings before the High Court in which he sought, on the basis of an allegation of delay, both to prohibit a criminal trial then pending and to claim damages. The proceedings before the High Court were the subject of two separate judgments dealing respectively with the prohibition issue ([2012] IEHC 359) and the damages issue ([2012] IEHC 598). Mr Nash appealed both judgments to the Supreme Court. Mr Nash was also awarded part of his costs in the High Court for the reasons set out by the trial judge in the latter judgment. The respondent, the DPP, cross appealed against that costs order.

Held by the Court that the principal focus of its judgment concerned the question of whether it is possible in principle and appropriate in the circumstances of this case to award an accused in a criminal trial damages as a result of a significant delay in the criminal process; that question arose both in respect of the right to a timely trial conferred by the European Convention on Human Rights (ECHR) and also by the Constitution. The Court held that, at least at the level of general principle, it is clear that damages may be available for the breach of a right to a timely trial under either the European Convention on Human Rights Act 2003 or the Constitution. The Court concluded that it was necessary to start any analysis of a claim, such as that brought by Mr Nash in these proceedings, by reference to the facts for the purposes of determining whether any case has been made out for culpable delay on the part of the State or persons or entities for whom the State may be responsible. The Court was not satisfied that any culpable delay on the part of the State or persons or entities for whom the State is responsible had been established in all the circumstances of this case. It followed, in the Court’s view, that Mr Nash’s appeal on the damages question must be dismissed. The Court held that the decision of the trial judge to award partial costs to Mr Nash was within the range of costs orders which were open to the trial judge within the margin of appreciation which must be afforded to a High Court judge in a case such as this.

The Court held that both Mr Nash’s appeal on the damages question and the DPP’s cross appeal on costs should be dismissed.

Appeal dismissed.

Judgment of Mr. Justice Clarke delivered the 24th October, 2016.

1. Introduction

1.1 The principal focus of this judgment concerns the question of whether it is possible in principle and appropriate in the circumstances of this case to award an accused in a criminal trial damages as a result of a significant delay in the criminal process. That question arises both in respect of the right to a timely trial conferred by the European Convention on Human Rights (‘ECHR’) and also by the Constitution.

1.2 This judgment relates to a second leg of the appeal brought by the applicant/appellant (‘Mr. Nash’) before this Court arising out of the failure of his claim before the High Court. Mr. Nash had brought proceedings before that Court in which he sought, on the basis of an allegation of delay, both to prohibit a criminal trial then pending and to claim damages. The proceedings before the High Court were the subject of two separate judgments dealing respectively with the prohibition issue ( Nash v. Director of Public Prosecutions [2012] IEHC 359) and the damages issue ( Nash v. Director of Public Prosecutions [2012] IEHC 598). Mr. Nash appealed both judgments to this Court. Mr. Nash was also awarded part of his costs in the High Court for the reasons set out by the trial judge in the latter of the above judgments. The respondent (‘the D.P.P.’) has cross appealed against that costs order.

1.3 As the relevant criminal trial was due to commence in early course it was considered that the appeal on the issue of prohibition should be determined first with any question relating to damages or costs being left over. The Court, having heard the appeal in respect of prohibition, dismissed Mr. Nash's appeal in that respect ( Nash v. Director of Public Prosecutions [2015] IESC 32). Thereafter the criminal trial proceeded and Mr. Nash was convicted of murder. Mr. Nash has appealed to the Court of Appeal against both that conviction and the precise way in which the mandatory life sentence imposed was specified as applying. For that reason it is of particular importance that nothing is said in this judgment which might have an impact on the proper exercise by the Court of Appeal of its role to consider and determine the issues which arise on that appeal. It will be necessary to touch on that important consideration again later in the course of this judgment.

1.4 In any event the remaining aspects of this appeal, being the question of damages and costs, were subsequently listed for hearing. This judgment is directed to the issues which thereby arose. For the reasons set out in this judgment I have concluded that both Mr. Nash's appeal on the damages question and the D.P.P.'s cross appeal on costs should be dismissed.

1.5 It also requires to be recorded that an additional matter was argued before the Court at the same hearing. It involved an application on the part of Mr. Nash to admit further evidence arising out of matters which transpired at and around his criminal trial. For reasons which I hope will become apparent, I propose dealing with the question of the possibility of admitting fresh evidence after dealing with the substantive issues which arose on the appeal in respect of the damages issue.

1.6 As the case made on behalf of Mr. Nash asserted a potential entitlement to damages for delay in the criminal process it is necessary to start by identifying the legal basis on which such a claim might be brought.

2 Damages for Delay – A Legal Basis?

2.1 Since the coming into force of the European Convention on Human Rights Act 2003 (‘the 2003 Act’) it is clear that, at least at the level of principle and at least in many cases, a claim can be maintained in damages against an organ of the State (as defined in that Act) in respect of a breach of the rights conferred by the ECHR.

2.2 Section 3(2) of the 2003 Act provides that a person who suffers loss or damage as a result of a failure by an organ of the State to perform its functions in a manner compatible with the ECHR may ‘if no other remedy in damages is available’ be awarded damages if a court of competent jurisdiction considers it appropriate.

2.3 There may be some questions about the precise parameters of the type of claim permitted under the 2003 Act. First it has been held in Dublin City Council v Fennell [2005] IESC 33, L.C. v Minister for Justice, Equality and Law Reform [2007] 2 IR 133 and Donegan v Dublin City Council & anor and Dublin City Council v Gallagher [2012] IESC 18 that the 2003 Act is not retrospective and there may well, therefore, be a question as to whether damages can be awarded in respect of any breach of rights which occurred prior to the Act coming into force which event happened on 31st December, 2003. In addition attention must be drawn to the provisions of s.3(5)(a) and (b) of the 2003 Act which provides a limitation period of one year which the court can extend if it appears to the court to be appropriate so to do in the interests of justice. That in turn may raise a question as to the precise parameters of damages available in the case of a continuing potential breach of rights (such as delay in a court process) some of which might be said to pre-date and some of which might be said to post-date the coming into force of the legislation or the limitation period. Likewise, in the same context, it is arguable that it may be necessary to identify the point in time at which a breach of rights caused by delay might be said to have first arisen for the purposes of placing some or all of the breach of rights in a timeframe which either pre or post-dates the legislation or the limitation period.

2.4 However, and subject to the possibility that there may be some limitations of the type just addressed or, indeed, of other types, there can be little doubt but that there is the possibility of the award of damages for breach by organs of the State of rights under the ECHR deriving from the provisions of the 2003 Act.

2.5 It might be considered, therefore, that the question of whether damages could also be awarded in the same circumstances under the Constitution, while potentially of theoretical significance, might be of little practical relevance given that damages might be available for breach of rights under the ECHR in any event.

2.6 However, it is clear that, in an appropriate case, damages for breach of constitutional rights by the State can be awarded (see for example, Kearney v Minister for Justice [1986] I.R. 116 and Kennedy v. Ireland [1987] I.R. 587). That position has, therefore, long since been clarified by this Court. It is again clear that the Constitution recognises the right to a timely trial and that this also has long since been recognised by the courts. Indeed, in my own judgment in respect of the prohibition aspect of this case, I noted, at para. 2.18, that there was an obligation on the State ‘to afford all litigants, criminal or civil, a timely trial’.

2.7 In G.C. v. Director of Public...