P.P. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 05 October 1999
• Neutral Citation: [1999] IEHC 194
• Court: High Court
• Docket Number: No. 393 J.R./1998,[1998 No. 393 J.R.]
• Date: 05 October 1999

[1999] IEHC 194

THE HIGH COURT

No. 393 J.R./1998

P (P) v. DPP

JUDICIAL REVIEW

BETWEEN

P.P.

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Citations:

B V DPP 1997 3 IR 140

C V DPP & BRENNAN UNREP SUPREME 28.5.1998 1998/13/4254

HOGAN V PRESIDENT OF CIRCUIT COURT 1994 2 IR 513

HEALY, STATE V DONOGHUE 1976 IR 325

CONSTITUTION ART 38.1

O'CONNELL, STATE V FAWSITT 1986 IR 362

Synopsis

Criminal Law

Criminal; delay; judicial review; prohibition; injunction; alleged offences of gross indecency and indecent assault perpetrated upon a minor on one occasion in 1977; complainant first reported the alleged offences in 1995, some 18 years later; whether relief could be granted against respondent; whether prejudice to applicant could be presumed; whether alleged defence of alibi prejudiced by lapse of time; whether delay by the Gardaí justified preventing the case from proceeding.

Held: Prohibition only available against inferior tribunals and no judge of the Circuit Court joined as a party to the proceedings; application could be treated as one for an injunction against respondent; dominance of alleged perpetrator over victim not essential for delay to be reasonable; mere fact that now more difficult to substantiate an alibi does not justify discontinuation of prosecution; where there has been a long period of time between alleged offences and date of complaint, of paramount importance that there should be no blameworthy conduct on part of gardaí; injunction granted.

P. v. D.P.P. - High Court: Geoghegan J. - 05/10/1999 - [2000] 1 IR 403

While the office of the respondent acted impeccably and dealt with this case with commendable speed, the Garda Siochana investigation of a complaint giving rise to charges of gross indecency and indecent assault had been conducted in a lackadaisical and slovenly fashion. The applicant was not interviewed by gardai until 14 months after the original complaint. There was a failure on the part of the garda authorities as distinct from individual members of the force properly to follow up possible witnesses. The overall delay was wholly unacceptable despite the excuses made. It was in breach of a defendant's rights under article 38(1) of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this involving sexual offences committed many years ago. If there was such delay, the court should not allow the case to proceed. Additional actual prejudice need not be proved. The applicant's constitutional right had been clearly infringed. An injunction would be granted against the respondent from further proceeding with the charges. The High Court so held in granting the relief claimed.

1 Judgment of Mr. Justice Geoghegan delivered on the 5th day of October, 1999.

2 This is an application brought pursuant to leave granted on 12th October, 1998 for judicial review in the form of an Order of Prohibition prohibiting the Respondent from proceeding with a prosecution of the Applicant on charges of gross indecency and indecent assault respectively alleged to have occurred between 1st October, 1977 and 1st December, 1977. Strictly speaking, an Order of Prohibition can be made only against inferior Courts and Tribunals. In this case, no Judge of the Circuit Court has been made a Respondent and the sole Respondent is the Director of Public Prosecutions. If the Court were to take the view that the Director ought not to be permitted to proceed with the prosecution, an injunction rather than an Order of Prohibition would seem to me to be the appropriate remedy. This is something which I should have averted to when originally granting leave on 12th October, 1998 but I think it reasonable to treat the Applicant as effectively seeking an injunction against the Director of Public Prosecutions.

3 In the first instance, the Applicant seeks to prevent the trial going ahead on the basis that too long a time has elapsed since the date of the alleged offences. The two alleged offences arose out of a single alleged incident. Alternatively, it is argued on behalf of the Applicant that even if the long lapse of time was not sufficient in itself to prevent the prosecutions going ahead, then the Applicant is in a position to demonstrate that he would suffer actual prejudice in the conduct of his defence. As a further alternative, the Applicant argues that there was unjustifiable delay on the part of the prosecuting authorities and that this of itself should entitle the Applicant to have the prosecution discontinued.

4 The legal principles to be applied in relation to the first two of these arguments, though not the third are to be found in the judgment of Denham J. in the Supreme Court in B. -v- D.P.P. [1997] 3 I.R. 140 and in the judgments of Denham J., Keane J. and Lynch J. in C. -v- D.P.P. (unreported) Supreme Court judgments, 28th May, 1998. In the outline written submissions on behalf of the Applicant numerous other cases and, in particular, decisions of the High Court are referred to but, in my view, they are of limited value. The settled jurisprudence is contained in the four Supreme Court judgments to which I have referred.

5 The basic facts of this case are as follows. The alleged victim of the offences claims that at the time of the offences he was 15 or 16 years of age and was employed as a helper by the Applicant on a milk round. He claims that on an occasion when he was alone in the van with the Applicant, the Applicant drove into a quiet area and engaged in homosexual activity with him. The Complainant never reported the alleged offences to the Gardai until November 1995, i.e. some eighteen years later.

6 It has always been accepted since the obiter dicta of Finlay C.J. in Hogan -v- The President of the Circuit Court (1994) 2 I.R. 513 that the way the Courts view delay in criminal proceedings can often be different in the case of "charges by young children in regard to assaults on them at an early age which are not brought to the attention of the authorities by such children until very many years after they occur". In C. -v- The Director of Public Prosecutions cited above, Keane J. observes as follows:-

"There are cases, however, of which this is one, where the disparity in age between the complainant and the person accused is such that the possibility arises that the failure to report the offence is explicable, having regard to the reluctance of young children to accuse adults of improper behaviour in feelings of guilt and shame experienced by the child because of his or her participation, albeit unwillingly, in what he or she sees as wrongdoing."

7 The learned judge goes on to explain that the delay may also be more readily explicable in cases where, not merely is the person concerned significantly older than the complainant at the time of the alleged offences, but occupies a particular role in relation to him or her, e.g. as parent, step-parent, teacher or religious. In such cases dominion by the alleged perpetrator over the child and a degree of trust on the part of the child may be more readily inferred.

8 But I am satisfied from a reading of the relevant judgments that, while dominance is a factor which the Courts will heavily take into account its existence is not essential for a Court to take a view that the delay was reasonable. To quote Keane J. again:-

"The issue in every such case is whether the Court is satisfied, as a matter of probability, that the circumstances were such as to render explicable the inaction of the alleged victim from the time of the offence until the initiation of the prosecution. It is necessary to stress again that it is not simply the nature of the offence which discharges that onus. All the circumstances of the particular case must be considered before that issue can be resolved."

9 In this case, a Mrs. Rosaleen McElvaney, Clinical Psychologist/Psycotherapist has prepared a report on the alleged victim. In doing so she was quite clear as to what her terms of reference were because under the heading "background to referral" there appears the following:-

"Mr. Farren was referred...