Q(M) v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Aindrias Ó Caoimh
Judgment Date05 March 2004
Neutral Citation2004 WJSC-HC 9739
Date05 March 2004

2004 WJSC-HC 9739

THE HIGH COURT

[No. 462JR/2001]
Q (M) v. DPP
JUDICIAL REVIEW

BETWEEN

M.Q.
APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT

Citations:

CRIMINAL LAW (AMDT) ACT 1935 S6

CRIMINAL LAW (RAPE) ACT 1981 S10

CONSTITUTION ART 38.1

C(P) V DPP 1999 2 IR 25

O'C (J) V DPP 2000 3 IR 478

W(A) V DPP UNREP KEARNS 23.11.2001 2001/24/6472

M (P) V MALONE 2002 2 IR 560

P (P) V DPP 2000 1 IR 403

F (B) V DPP 2001 1 IR 656

EVISTON V DPP 2002 3 IR 260

DPP V BYRNE 1994 2 IR 236

BARKER V WINGO 1972 407 US 514

B V DPP 1997 3 IR 140

Abstract:

Criminal law - Delay - Sexual offences - Alleged reversal of earlier decision not to prosecute - Whether applicant established real and serious risk of unfair trial - Whether blameworthy prosecutorial delay

The applicant applied by way of judicial review for an injunction restraining the respondent from continuing to prosecute the applicant in respect of counts alleging offences contrary to common law, s. 6 of the Criminal Law (Amendment) Act 1935 and s. 10 of the Criminal Law (Rape) Act 1981. The grounds upon which the relief was sought were inter alia that in circumstances where a decision not to prosecute the applicant for the same offences was made in 1989, that decision, once communicated to the applicant following the completion of the Garda Síochána inquiries, was a final and conclusive decision and that the respondent was acting ultra vires and in breach of the applicant’s rights in purporting to reverse it and that the delay in the institution of the proceedings had prejudiced the applicant and infringed the applicant’s right to a fair trial.

Held by O Caoimh J. in refusing the applicant the relief sought that the applicant had failed to establish a real and serious risk that he could not obtain a fair trial. Furthermore, there had not been blameworthy prosecutorial delay. It was clear that no formal complaint was made in 1989 by the complainant or her mother and although the matter was brought to the attention of the health authorities no decision was taken by the DPP.

Reporter: R.W.

1

Judgment of Mr. Justice Aindrias Ó Caoimhdelivered the 5th March, 2004

2

By order of the 9 th September, 2001, the applicant was givenleave to institute these proceedings by way of an application forjudicial review for an injunction restraining the respondent fromcontinuing to prosecute or take any further steps in the prosecution ofthe applicant pending before the Eastern Circuit in respect of twentythree counts alleging certain offences contrary to common law, s. 6 ofthe Criminal Law (Amendment) Act, 1935and s. 10 of the Criminal Law (Rape) Act, 1981. The grounds upon which the relief is sought are as follows:-

3

1. That in the circumstances where a decision not to prosecute theapplicant for the same offences was made in 1989, that decision, oncecommunicated, to the applicant, following the completion of the GardaSíochána enquiries, was a final and conclusive decision inthat the respondent was acting ultra vires, contrary to law andin breach of the applicant's constitutional rights in purporting toreverse it thereafter.

4

2. That if, which is denied, the respondent had the power toreview and reverse the said decision not to prosecute (such decisionhaving been made following the conclusion of enquiries made by An GardaSíochána and communicated to the applicant), therespondent was guilty of a breach of the applicant's right to fairprocedures and constitutional justice by failing to advise and/or warnthe applicant at the time of communicating the said decision not toprosecute, that the respondent reserved the power to reverse the saiddecision.

5

3. That the respondent acted on foot of an improper policy inpurporting to claim for himself an unfettered right to reverse adecision not to prosecute the applicant when the said decision not toprosecute had been communicated to the applicant following thecompletion of enquiries made by An Garda Síochána and, inthe premises, the respondent had acted ultra vires and inbreach of the applicant's right to fair procedures.

6

4. In the absence of good and sufficient grounds for so doing, it wasnot open to the respondent to purport to exercise his power to reversethe said decision not to prosecute the applicant when the said decisionhad been communicated to the applicant following the completion of theenquiries made by An Garda Síochána and, in the premises,the respondent had acted ultra vires and in breach of theapplicant's right to fair procedures.

7

5. That the delay in the institution of the proceedings abovereferred to has prejudiced the applicant, is unfair and unjust to theapplicant and has thereby violated the applicant's right to a criminaltrial in due course of law in accordance with Article 38.1 of theConstitution.

8

6. That there has been an unjustifiable delay by the prosecutingauthorities in the preparation, initiation and prosecution of theaforesaidproceedings against the applicant, which is unfair and unjust to him andhas, thereby, violated his right to a criminal trial in due course oflaw pursuant to the provisions of the aforesaid article of theConstitution.

9

7. In all the circumstances, the delay in the preparation, initiationand prosecution of the aforesaid proceedings has infringed theapplicant's right to a fair trial with reasonable expedition,irrespective of whether there is actual or presumed prejudice.

10

8. That by reason of the said delay by the said prosecutionauthorities in the preparation and initiation of the prosecution of theaforesaid proceedings against the applicant, the applicant has beendeprived of the opportunity to establish his movements at the time, toseek out prospective witnesses or to defend himself in any way otherthan a bare denial on oath of the said charges.

11

9. That the said decision not to prosecute the applicant, made in1989, created a legitimate expectation for the applicant that he wouldnot be so prosecuted, and, in the circumstances giving rise to thecurrent prosecution and proceedings, the continuance of the same isunconscionable, unfair and in breach of the principles of natural andconstitutional justice.

12

An affidavit has been sworn by the applicant, in which he states that hewas born in November, 1949, and was previously a member of the IrishArmy and is currently unemployed, save for participating in voluntarycommunity work, in which he has been involved for about the last tenyears. The applicant states that on 5 th August, 1999, he wasquestioned by Gardaí in connection with allegations that hecommitted acts of indecent assault on his daughter M.Q., who is thecomplainant in these proceedings between 1976 and 1986. He states thatthese allegations were the same allegations that were made against him1989 by his wife and daughter, but a fullinvestigation was made and completed by the Gardaí at the time.He says further that the assaults were alleged to have occurred at anumber of locations which he identifies. He states that these locationswere locations where he had previously lived with his family.

13

The applicant states that on 6 th September, 2000, he wasarrested at his home and brought to the garda station, where he wascharged with offences alleging indecent assault and was subsequentlyserved with a Book of Evidence. This he exhibits with hisapplication.

14

The applicant says that the allegations of indecent assault made againsthim were originally complained of to the Gardaí in 1989 and thatat that stage a full investigation of the complaints was undertaken bythe Gardaí. He says that he was questioned about theseallegations in 1989 at his home by Garda Arthur Kiely who was theJuvenile Liaison Officer for the Kildare/Naas Districts, and who, itwould appear, was responsible for investigations into allegations ofchild sexual abuse. He says that he carried out this work in associationwith the Eastern Health Board.

15

The applicant says that some time later he was visited at the sameaddress by Garda Kiely, whom he believes has since retired, but thistime accompanied by a social worker, whose name he does not know. Hestates that he was informed on this occasion by the garda of a programmefor sex offenders which was run by Dr. Art O'Connor in the CentralMental Hospital in Dublin. He states that it was expressed to him onthat occasion that should he undertake to go on the said course, nofurther action would be taken against him in relation to the complaints.He states that he went on the programme in Dundrum and he completed sameafter a period of eighteen months.

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The applicant states that during this time his relationship with hiswife broke down and he no longer lived in the family home. He says thathe continued to maintain a reasonably good relationship in thecircumstances with his children. He states that in the ten years sinceundergoing the programme he has become involved with a new partner, withwhom he is currently living. He states that he became involved insetting up and running several community projects on a voluntarybasis.

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The applicant states that since the complaints were originally madeagainst him he maintained a relationship with his daughter M.Q., thecomplainant in the criminal proceedings, although there were occasionswhen they had fallen out over issues of money. He states that in orabout January of 1999, the complainant learned that he may have a claimagainst the Army authorities for hearing impairment arising from hisyears of army service. He states that, as a result of this, thecomplainant stated to him that she would make a complaint to thegardaí, in effect resurrecting her original complaints made in1989, unless he gave her £10,000.00. He states that he refused todo this and shortly after this he became aware that a further complainthad been made to the Garda Síochána and he asserts that itwas this refusal on his part that has led to the making of this...

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