Philomena Coton v DPP

CourtHigh Court
JudgeKearns P.
Judgment Date21 May 2015
Neutral Citation[2015] IEHC 302
Date21 May 2015
Coton v DPP





[2015] IEHC 302

[No. 955 JR/2013]


Criminal – Murder – Order of certiorari – Order 84, rule 21 of the Rules of the Superior Courts – Extension of time.

Facts: The applicant sought an order of certiorari prohibiting the trial before the Central Criminal Court. The applicant was charged with causing grievous bodily harm with intent to murder. The applicant claimed delay on the part of the prosecution. The respondent argued that the applicant failed to seek relief by way of judicial review and failed to provide for the explanation of the delay and therefore, the applicant was out of time to apply for the judicial review. The applicant sought an extension of time in the case stating that the delay was outside the control of the applicant.

Mr. Justice Nicholas Kearns held that the application for extension of time would be granted. The Court declined to accept the applicant's contention that the delay was outside the control of the applicant. However, in the interest of fair procedure the Court observed that the extension would not prejudice a third party and the full arguments seeking prohibition may be heard. The Court observed that the delay would not warrant refusal of relief.


JUDGMENT of Kearns P. delivered on the 21st day of May, 2015


In these proceedings the applicant seeks prohibition of her trial before the Central Criminal Court where she stands charged with unlawfully and maliciously causing grievous bodily harm to her husband Christopher Payne with intent to murder him and also with unlawfully and maliciously causing grievous bodily harm to her said husband with intent to do grievous bodily harm. Ancillary reliefs by way of declaration and stay are also pursued.


Having regard to the fact that the incident giving rise to the criminal prosecution occurred on the 13 th May, 1988, and having regard also to the subsequent progress of the investigation and prosecution, the applicant seeks relief on grounds of prosecutorial delay.


The respondent contests this claim and has raised by way of preliminary issue the applicant's own delay in bringing this prohibition application in circumstances where the return for trial was ordered on the 20 th February, 2013 but no application for relief by way of judicial review then followed until the 18 th December, 2013. It is argued that no explanation for the delay was offered to the High Court on the making of the leave application and no application to extend the time provided for by Order 84, rule 21 for bringing such an application was made until the matter came on for full hearing before this Court.


In arguments advanced before this Court, an issue has arisen as to the date or time when the period provided for by Order 84, rale 21 of the Rules of the Superior Courts (Judicial Review) 2011 ( S.I. No. 691 of 2011) commences to run in the case of an application for prohibition of a criminal trial. A further consequential issue is whether or not an issue of delay should be dealt with by the High Court at the leave stage or, in the alternative, as a discrete preliminary issue which, if resolved against an applicant, would dispose of the matter in its entirety.


Having regard to the importance of having some clarity on these points, the Court sought and was given evidence with regard to the relevant time periods which, following the bringing of charges for a criminal offence, may be seen to apply for the taking of certain steps in the criminal process, steps which include service of the Book of Evidence, the return for trial and the service upon an accused person of an indictment.


On the 13 th May, 1988, the prosecution allege that four men entered the applicant's home and administered a serious beating to the applicant's husband, Christopher Payne Snr. while he lay sick in bed. The prosecution maintain that the applicant had a role in this attack and that she and her daughter had arranged for the men in question to carry out the assault. At the time of the beating, Mr. Payne was in very poor health and suffered from severe renal disease. He died on the 28 th November, 1988, some six months after the assault.


The applicant remained in Ireland with her children until the trial of the four men was due to commence in July 1989 and attended at the Four Courts as a witness for the prosecution. However, as the perpetrators of the crime pleaded guilty, the applicant was informed that she and her daughter were no longer required as witnesses.


Following the sentencing of the four men, the respondent directed charges be brought against the applicant and her daughter, Sharon, and in that month the applicant and her two children moved to England. In 1991 she married Gregory Coton in England and had a daughter with him. Thereafter the applicant undertook studies in Coventry University and after achieving her "A levels" went on to complete a nursing diploma. In 1998 she worked with the Premier Employment Agency and was placed in a local hospital. In the years 2000-2001, the applicant was employed in a permanent position as a mental health assistant in Calden Centre Mental Health Unit in Coventry.


Her daughter Sharon returned to Ireland with her husband in 2004.


In 2010, a "Cold Case Review" was conducted on the file and on the 8 th February, 2012 an arrest warrant issued in Ireland for the applicant. The respondents then applied for a European Arrest Warrant and the applicant was eventually returned to this jurisdiction on foot of this warrant.


On the 11 th January, 2013 the applicant was charged with the offences hereinbefore referred to and was brought before Dublin District Court.


The applicant was served with a book of evidence and returned for trial on the same date, namely, 20 th February, 2013.


While the High Court granted leave to bring the present application by order dated the 18 th December, 2013, the statement of opposition maintains (at para. 4) that:-

"It was moved well outside the time-limit prescribed by Order 84, rule 21(1) of the Rules of the Superior Courts which requires that the leave application be moved within three months from the date when grounds first arose. In this regard the following factual matters are of significance. Firstly, the applicant was surrendered from the United Kingdom late in 2012. Secondly, she was charged with the two offences and brought before the District Court on the 11 th January, 2013. Thirdly, she was served with the book of evidence and returned for trial on the 20 th February, 2013. Fourthly, she was aware at all material times that her daughter had commenced and had finalised High Court judicial review proceedings on related matters. Moreover, no extension of time to seek leave has been sought and no factual basis has been pleaded to support a basis for delaying/for extending time. The application can be dismissed on this basis alone"


For the sake of completeness, it is of some relevance to set out the timeline for the sequence of legal proceedings which attended the associated prosecution of the applicant's daughter, Sharon Payne (now Sharon Cullen).


Sharon Payne was fifteen years of age in May 1988 at the time of the alleged offences.


She was also charged and brought before the courts for what the prosecution contended was her role in the assault on her father.


She commenced judicial review proceedings seeking prohibition of her trial. Her case was successful in the High Court in June 2013 before O'Malley J. and the Supreme Court dismissed an appeal brought by the respondent on the 16 th October, 2014.


There were special circumstances which arose in Sharon Payne's case, the principal one being her age at the time of the offence and the clear requirement for speedy prosecutions in the case of young offenders. Thus at para. 118 of her judgment in Sharon Cullen's case ( Cullen v. the Director of Public Prosecutions [2013] 6 JIC 1701) O'Malley J. stated:-

"It seems to me that the overwhelming consideration is that the special duty to deal with young offenders as closely as possible to the time of their offences has been seriously breached to the extent that what is now proposed is to try a 40-year old in relation to the words and intentions (not actions) of a 15-year old in circumstances where she is not to blame for the delay. Such a trial would, as described by the Supreme Court in B.F. v. D.P.P. take on a 'wholly different character' to any trial that would have been embarked upon when she was at or near the age of 15. Were she to be convicted, the purpose of the sentencing process would also be radically altered. Although many of the protections afforded to young offenders under current legislation did not exist at the time there were significant features such as the fact that she could have been imprisoned only in very limited circumstances. Sentencing of a girl of her age would have focussed very largely on the issue of rehabilitation, which is at this stage manifestly irrelevant."


Having regard to the importance of the special duty in relation to young persons and the breach of that duty which has been established in this case, I consider that the proposed process to be unfair to the point that it should not be permitted to proceed."


That consideration has no particular significance in the instant case, given that the applicant herein was almost 35 years of age in May 1988 and having regard also to the consideration that detailed admissions were made by the applicant in a cautioned statement dated the 15 th May, 1988 which was contained as part of the book of evidence. Nonetheless,...

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