T.C. v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Birmingham |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] IECA 400 |
| Date | 21 December 2016 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2016] IECA 400 No. 2016/306 |
[2016] IECA 400
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Sheehan J.
Mahon J.
Neutral Citation Number: [2016] IECA 400
No. 2016/306
Judicial review – Indecent assault – Delay – Appellant seeking judicial review – Whether the appropriate course of action was to extend time
Facts: The appellant was returned for trial on 100 charges of indecent assault and was due to stand trial at the criminal sessions in Monaghan in January 2017. The charges related to ten complainants, all nieces and nephews of the appellant. They fell into two groups and the offending behaviour was alleged to have occurred between 1964 and 1984. On the 18th May, 2016, the appellant sought leave to apply for judicial review by way of prohibition on the grounds that he could not receive a fair trial given the delay in the making of the complaints and the initiation of the criminal prosecution. He also argued that witnesses who might have been in a position to assist him, such as his mother, were now deceased and that he was severely prejudiced by the complainant and prosecutorial delay. On the 14th June, 2016, Humphreys J decided that the appellant was out of time to move the application and that there were no circumstances to warrant the exercise of the Court’s discretion to extend time. He also went on to conclude that this was a case where the appellant had to be in a position to establish substantial grounds in order to warrant the grant of relief and that that had not been made out. The appellant appealed to the Court of Appeal from the decision of the High Court refusing leave to seek judicial review.
Held by the Court that the appropriate course of action was to extend time, but then, if leave to seek judicial review was granted, to arrange for the matter to be brought before the President of the High Court at an early date with a view to having the proceedings fast tracked. The Court agreed with the observations of the trial judge about the reluctance to grant prohibition and it seemed to them that this was a highly relevant consideration in assessing whether a case is in fact an arguable one; for leave to be granted the judge would have to conclude that arguably this is a case where the exceptional remedy that is prohibition would be appropriate. However, in the Court’s view that threshold had been met. The Court came to that view because of the exceptionally long delays, over 52 years since the first offence, the fact that the K group complainants seemed to have come forward together some 30 years after the alleged incidents and at a time that they were in their forties, but that there then was a five year delay before a decision to prosecute. In that regard though, the Court made it clear that they were in no sense critical of the respondent, the DPP, revisiting the earlier decision not to prosecute in respect of the K group complainants when a decision was taken that there should be prosecutions in respect of the H group complainants.
The Court held that, in the circumstances, they would grant leave and in doing so would seek to ensure active and rigorous case management with a view to having the judicial review proceedings determined at the earliest possible date. The Court was happy to discuss with counsel what arrangements could be made in that regard.
Appeal allowed.
This is an appeal from a decision of the High Court (Humphreys J.) refusing leave to seek judicial review. The background to the present appeal is that the applicant for judicial review has been returned for trial on 100 charges of of indecent assault and is due to stand trial at the next criminal sessions in Monaghan in January 2017. The charges relate to ten complainants, all nieces and nephews of the appellant. They fall into two groups and the offending behaviour is alleged to have occurred between 1964 and 1984.
On the 18th May, 2016, the applicant sought leave to apply for judicial review by way of prohibition on the grounds that he could not receive a fair trial given the delay in the making of the complaints and the initiation of the criminal prosecution. He also argued that witnesses who might have been in a position to assist him, such as his mother, were now deceased and that he was severely prejudiced by the complainant and prosecutorial delay.
The judge having charge of the vacation list was told that the application was being moved nine days outside the time limits prescribed by O. 84 of the Rules of the Superior Courts. The judge having charge of the vacation list indicated that he would prefer that the matter would be dealt with in the non jury judicial review list in term time and adjourned the matter to the 30th May, 2016. However, it was indicated that the fact that an application had been moved on the 19th May, would be noted so that fact could be relied on in the context of an application for an extension of time.
The matter came on for hearing in the non jury judicial review list before Humphreys J. on the 13th June, 2016. He requested that the respondent, the Director of Public Prosecutions be put on notice. However counsel who appeared for the Director indicated that the Director was neither consenting nor objecting to the application for leave for judicial review, but did not otherwise take an active part in the proceedings.
On the 14th June, 2016, in a detailed written judgment, Humphreys J. decided that the applicant was out of time to move the application and that there were no circumstances to warrant the exercise of the Court's discretion to extend time. He also went on to conclude that this was a case where the applicant had to be in a position to establish substantial grounds in order to warrant the grant of relief and that had not been made out. He felt that granting leave would ‘scuttle forever the chance of the complainants having their allegations of historical criminal misconduct tested in a criminal court’. This was a reference to the fact the judge was told that the applicant was 79 years of age and was suffering from terminal cancer. The judge was told by the lawyers who moved the application that their client's life expectancy had been put at six months. However, the judge concluded that even if he...
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