T.H. v DPP

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: MR JUSTICE FENNELLY
• Judgment Date: 25 July 2006
• Neutral Citation: [2006] IESC 48
• Date: 25 July 2006
• Docket Number: [S.C. Nos. 207 & 208 of 2004]

[2006] IESC 48

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

Fennelly J.

Macken J.

No. 207/04

No. 208/04

H (T) v DPP & JUDGE SMITHWICK

between

T.H.

Applicant/Respondent

v

THE DIRECTOR OF PUBLIC PROSECUTIONS and HIS HONOUR JUDGE PETER SMITHWICK

Respondents/Appellants

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

HANNIGAN v DPP & SMITHWICK 2001 1 IR 378 2002 1 ILRM 48

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2(2)

CRIMINAL LAW (RAPE) ACT 1981 S12

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S16

CRIMINAL PROCEDURE ACT 1967 S13(2)

CRIMINAL LAW (RAPE) ACT 1981 S12(2)

CRIMINAL LAW (RAPE) ACT 1981 S12(1)

CRIMINAL PROCEDURE ACT 1967 S13

HOGAN v PRESIDENT OF THE CIRCUIT COURT 1994 2 IR 513

BARRY v IRELAND 2005 ECHR 865

DPP v BYRNE 1994 2 IR 236

O'CONNELL, STATE v FAWSITT 1986 IR 362

P (C) v DPP 1999 2 IR 25

P (P) v DPP 2000 1 IR 403

F (B) v DPP 2001 1 IR 656

M (P) v MALONE 2002 2 IR 560

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

UNITED STATES v MARION 1971 404 US 307

BARKER v WINGO 1972 407 US 514

M (P) v DPP 2006 2 ILRM 361

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 13

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 41

KOSTOVSKI v NETHERLANDS 1989 12 EHRR 434

DOORSEN v NETHERLANDS 1996 22 EHRR 330

CRIMINAL LAW:

Delay

Right to expeditious trial - Sexual offence - Delay in prosecution due to applicant's judicial review - Whether reprehensible delay on part of state authorities in handling judicial review proceedings - Whether delay referable to conduct of applicant - Whether effect of delay would result in applicant being deprived of fair trial - Right of applicant to protection from stress and anxiety caused by delay - Whether restraint on further prosecution justified - Test to be applied incases of prosecutorial delay - Factors to be taken into consideration - Balancing of rights - Whether natural stress and anxiety necessarily associated with pending criminal trial sufficient to displace public interest in prosecution and conviction of those guilty of criminal offences - Whether applicant able to point to real risk of unfair trial - PM v DPP [2006] IESC 22, [2006] 3 IR 172; [2006] 2 ILRM 361 and PM v Malone [2002] 2 IR 560 followed - Injunction discharged (207 &208/2004 - SC - 25/7/2006) [2006] IESC 48, [2006] 3 IR 520 H(T) v DPP

The applicant appealed from the order of the High Court refusing to grant him an injunction restraining the respondent from taking any further steps in a number of prosecutions against him for sexual offences alleged to have been committed by him, while he was employed as a teacher on four of his pupils in the mid 1960's. The applicant alleged that there was prosecutorial delay and submitted that by virtue of the delay between the dates of the alleged offences and the date of his proposed trial there was a real risk he would not receive a fair trial. In the High Court, O Caoimh J. concluded that the delay complained of was referable to the applicant's own conduct.

Held by the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan, Fennelly JJ) in dismissing the appeal: That the delay in this case did not result in prejudice to the applicant such as would give rise to a real or serious risk of an unfair trial. Furthermore, no wholly exceptional circumstances arose in this case whereby it would be unfair to allow the trial to proceed.

Reporter: L.O'S.

1 JUDGMENT of MR JUSTICE FENNELLY delivered on the 25th day of July, 2006 .

2 The applicant commenced judicial review proceedings in 1997. He wished to prohibit his trial on a charge of sexual assault. His central claim was that the Director of Public Prosecutions, the appellant, had applied improper pressure on him to plead guilty in the District Court. McKechnie J, in a comprehensive judgment delivered in March 2004, rejected the argument based on that ground. He prohibited the trial, nonetheless. He held that there had been delay on the part of the appellant as a result of the seven years it had taken to dispose of the case, that the applicant's right to an expeditious trial had been breached and there could not now be a fair trial. The appellant has appealed. He says that the delay was caused by the unmeritorious proceedings taken by the applicant and the way in which he conducted them. The applicant has filed a Notice to Vary in which he seeks to uphold the judgment of the High Court on the ground originally advanced in support of his application for judicial review but which was dismissed by the learned trial judge. It should be noted that the second-named respondent, His Honour Judge Peter Smithwick has taken no part in the proceedings. The appellant is the Director of Public Prosecutions.

3 This Court is not unfamiliar with applications to prohibit criminal trials where there has been lengthy delay. According to a well-developed jurisprudence, applied in many cases in recent years, the Court has jurisdiction to prevent the further prosecution, on the ground of delay, of offences alleged to have been committed many years previously. It is, however, unusual, to say the least, and unique in my experience, for an accused person to profit from delay which is the result of unmeritorious proceedings which he has himself prosecuted.

4 The Notice to Vary challenges the judgment of the learned trial judge on nineteen grounds. Whether the order of prohibition ultimately made by the learned trial judge was warranted can best be understood against the background and history of the judicial review proceedings and their outcome. It is not possible to separate consideration of the issue of delay from the question of the merits of the judicial review application.

5 The learned trial judge has given a thoroughly comprehensive account both of the facts and the arguments. It is sufficient for me to give a brief summary and to indicate my opinion on the High Court judgment.

6 In a summons issued on 26th September 1996, the applicant was charged with the offence of sexual assault on a male person contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990. Over a number of hearings in the District Court, the applicant through his counsel sought to show that the case should be disposed of summarily. His solicitor wrote on 20th November 1996 to Inspector Delaney of an Garda Síochána seeking an explanation as to the basis on which the trial was to proceed on indictment when, in the solicitor's view, the matters alleged were of such a nature that they ordinarily should be disposed of by way of summary trial. But his client did not wish to plead guilty. The applicant originally made a number of complaints regarding the conduct of the appellant and of the several judges of the District Court who dealt with the matter. He was refused leave to apply for judicial review in respect of these matters. Leave was also refused in respect of alleged delay between the date of the alleged offence and the commencement of the prosecution. These matters are of no relevance, although they demonstrate from the outset the applicant's case was conducted in a tendentious way. A flavour of these events can be gathered from the judgment of Hardiman J, delivered on 30th January 2001 in Hannigan v Director of Public Prosecutions [2001] 1 I.R. 378. He referred to these hearings in the following passage (see page 379):

"The applicant makes numerous complaints about the manner in which this allegation was investigated, about the circumstances in which the summons was served on his mother, and about events which occurred when the complaint came before the District Court, in particular on the question of whether the charge was to be dealt with on indictment or summarily. He ventilated these complaints at great length at the hearing before the learned second respondent, and when the results of this hearing were unsatisfactory to him he sought relief by way of judicial review."

7 Morris J, as he then was, on 14th February 1997 gave leave to apply for judicial review on two grounds, only one of which is now relevant. The other was that there "had been a pattern of abuse of process and unfairness amounting to oppression and a denial of the right to constitutional justice..." This ground was rejected by McKechnie J in his judgment after a full hearing and there is no cross-appeal or notice to vary in respect of it. The order of 14th February 1997, granting leave, also restrained the appellant from further prosecuting the applicant in respect of the said offence. That order is still in force.

8 The first ground on which leave was granted may be summarised as follows. The offence with which the applicant was charged is "indecent assault upon any male person" contrary to section 2 of Criminal Law (Rape) (Amendment) Act, 1990. The section says that the offence is to "be known as sexual assault." Section 2(2) of that Act provides:

"A person guilty of sexual assault shall be liable on conviction on indictment to imprisonment for a term not exceeding 5 years."

9 Although, therefore, this is an indictable offence, it may, in certain circumstances, be dealt with summarily. Two relevant provisions have been debated in the present case. Section 12 of the Criminal Law (Rape) Act, 1981, as amended by section 16 of the Act of 1990, provides:

10 2 "12.ù(1) A justice of the District Court shall have jurisdiction to try summarily a sexual assault or an offence to which section 11 relates ifù

11 (i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily,

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