Q (M) v Judge of Northern Circuit & DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice William McKechnie
• Judgment Date: 14 November 2003
• Neutral Citation: [2003] IEHC 88
• Date: 14 November 2003

[2003] IEHC 88

THE HIGH COURT

13JR/2001

Q (M) v. JUDGE OF NORTHERN CIRCUIT & DPP

JUDICIAL REVIEW

BETWEEN

M.Q.

APPLICANT

AND

THE JUDGE OF THE NORTHERN CIRCUIT AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Background:

1 On the 15 ^th January, 2001, the applicant, above identified as M.Q., obtained leave from this Court to seek by way of an application for Judicial Review, an Order of Prohibition preventing the first named respondent, from proceeding with the trial of the said applicant on any of the charges contained in an indictment then standing against him and secondly, a permanent injunction restraining the 2 ^nd named respondent from taking any future steps in the further prosecution of the applicant on all or any of those said charges.

2 The grounds upon such relief were sought were so described in paragraph (E) of the statement grounding the application, in the manner following:

1 The applicant has been deprived of his right to a trial with reasonable expedition because of the lapse of time between the alleged commission of the offences and the trial of the applicant.

2 Because of the gross and inexcusable delay between the making of the complaint and the institution of the appropriate criminal proceedings, the applicant has been denied his right to a trial in due course of law.

3 The applicant has been prejudiced by the delay in his being brought to trial.

4 When the second named respondent had made a decision not to prosecute and this decision had been communicated to the applicant, the second named respondent acted unfairly and contrary to natural justice in deciding to institute a prosecution against the applicant over four years later when no additional evidence had come to hand to support such a decision.

5 The second named respondent has acted on foot of an improper policy in reversing his decision not to prosecute when the applicant had been told he would not be prosecuted.

6 A further trial of the applicant, having regard to the evidence and all the circumstances, would be oppressive and contrary to natural and constitutional justice and fair procedures: it would also amount to an unlawful and unreasonable breach of the applicant's constitutional rights to a fair trial and would be contrary to due process."

3 The evidential material before the Court which is by way of several affidavits and exhibits, indicates that the complainant in this case was born on the 30 ^th April, 1970, and had for several years been a pupil of the applicant who taught her Irish dancing, On the 29 ^th August, 1993, the said complainant, Miss D, made an allegation to the Gardaí that the applicant had sexually abused her between the years 1982 and 1989. On the 31 ^st of that month, the sergeant to whom the complaint was made interviewed the applicant. Further inquiries, investigations and interviews with other potential witnesses were then conducted by the Gardai. A file was sent to the Director of Public Prosecutions. On the 15 ^th March, 1994, not having heard further from the Gardaí, the applicant and his wife spoke to the investigating sergeant about these allegations. No information at that time was given to them. In July of that year the accused person and his wife again met the sergeant. It is claimed by Mr. Philip White, solicitor, who represents the accused person, at para. 6 of his grounding affidavit that the sergeant informed both of them that "the case had been before the DPP and the DPP has ruled that there is no case to answer and this is the end of it". In his own affidavit the applicant puts the detail of this information as follows. He says he was told, "I am to inform you that the DPP will not be proceeding with the case". The sergeant, in her affidavit, gives a slightly different version again when she says that she simply informed the accused person of the result which was that there would be no prosecution. These differences between the individuals mentioned and indeed further differences as to what transpired in August 1993, March and July of 1994 when the applicant and his wife met this Garda, are not in my view of any relevance. Whatever maybe their exact recall as to what information was imparted to the accused person in July 1994, I am quite satisfied that he was informed of the DPP's decision that there would be no prosecution arising out of the complaints previously made, those being the subject matter of this Garda investigation.

4 Without any further contact between the Gardai and the accused person, the latter was arrested on the 27 ^thJanuary, 1999, and charged with 24 offences of indecent assault on the complainant between the 1 ^st January, 1983 and the 31 ^st December, 1988, all contrary to s. 10 of the Criminal Law (Rape) Act, 1981. On the 10 ^th June, 1999, the applicant was returned for trial to Letterkenny Circuit Court. The trial was eventually fixed for the 2 ^nd February in the year 2000. After a three-day hearing before His Honour Judge Deery, the jury disagreed. Following a direction by the DPP the re-trial was fixed for hearing on the 30 ^thJanuary, 2001. Prior to that, as is evident from the dates above mentioned, leave of this Court was obtained to institute these proceedings. That Order, according to its terms, granted a stay on the further prosecution of the applicant until such time as the issues herein raised had been finally determined.

5 The circumstances in which the Director of Public Prosecutions came to reverse his earlier decision not to prosecute, are outlined in the affidavits of Miss Catherine Firm, from the Chief State Solicitor's Office and from the affidavit of Sergeant Hargadon, sworn by her in April 2002. These can be summarised as follows:-

(a) It would appear that, having received instructions from the DPP's office in 1994 not to prosecute the accused person, Sergeant Hargadon also informed the injured party of that decision. She and her immediate family were obviously distressed by such a decision and so expressed their dissatisfaction to the sergeant. The sergeant then returned the file to the DPP's office with a request that the earlier decision be further reviewed. The result of that review affirmed the decision that no prosecution should take place. The exact timing of these events is not clear but these are likely to have occurred in 1994.

(b) Some time afterwards, the complainant apparently immigrated to America where, a number of years later, she married. In the summer of 1998 the sergeant became aware that the injured party had returned to Ireland and was living in Co. Clare. Following the intervention of the North Western Health Board, the Superintendent of the relevant Gardai Station agreed to reopen the case and a fresh interview between the sergeant and the injured party took place on the 12 ^th July, 1998. This lead to a further statement which was taken from the said complainant on that occasion. The sergeant then requested her superiors to ask the DPP to reopen the case.

(c) This apparently was done by the local State Solicitor, who on the 7 ^th September, 1998, wrote to the DPP enclosing the second statement from the injured party and "other enclosures constituting a fresh Garda file".

(d) On the 24 ^th September the DPP referred the State Solicitor to some of cases later mentioned and also requested the injured party to undergo a psychological assessment. Evidently she so agreed; hence the report of Mr. Clarke, dated the 11 ^thNovember, 1998. That was sent directly by him to the DPP who in turn furnished copies to the relevant parties.

(e) By letter dated the 12 ^th January, 1999, the DPP wrote to Mr. Ciaran McLoughlin, the State Solicitor for Donegal, directing the prosecution of the applicant on the several counts which ultimately became the indictment in the criminal case.

It was these steps which lead to the arrest of the accused person on the 27 ^th January, 1999 and to the events subsequent to that which are hereinafter outlined.

Submissions:

6 Mr. John Whelan S.C., on behalf of the applicant, challenged the legality of his client's position under a number of headings. His first complaint related to the overall delay between the commission of these alleged offences, that is between 1982 and 1988, and the date upon which the accused person was charged with them. This period runs from eleven to seventeen years and in his submissions his client's right to a trial with reasonable expedition as guaranteed by Article 38.1 of the Constitution cannot now be satisfied. He referred to The State (Healy) v. Donoghue [1976] I.R. 325, The State (O'Connelly) v. Fawcitt [1986] I.R. 362, Hogan v. President of the Circuit Court [1994] 2 I.R. 513 and The DPP v. Byrne [1994] 2 I.R. 236. He then relied upon some later cases as reaffirming and consolidating the principles outlined in the authorities just mentioned. These cases were P.P. v. The Director of Public Prosecutions [2000] 1 I.R. 403, P.O'C v. DPP [2000] 3 I.R.87, J.L. v. DPP [2000] 3 I.R. 122 and B.F. v. DPP [2001] 1 I.R. 656. He argues that under this heading, notwithstanding the special consideration which the courts give to cases of sexual abuse involving minors, his client's constitutional rights as above identified cannot in the individual circumstances of this case, be vindicated, if he is now forced, after such a lengthy period of time, to re-engage in the criminal justice system.

7 A second ground of complaint related to the period between the victim making her initial statement to the Gardai in August, 1993 and the charging of the applicant in January, 1999, a period of almost five and a half years later. The authorities above mentioned were relied upon in this regard, including Hogan v. The President of the Circuit Court [1994] 2 I.R. 513. Moreover he suggested that no acceptable explanation has been forthcoming for such delay. He says that the entire of the police investigation was completed when the...