Ó Tighearnaigh v President of the Circuit Court

• Jurisdiction: Ireland
• Judgment Date: 26 July 2005
• Date: 26 July 2005
• Docket Number: [2002 No. 221 JR]
• Court: High Court

[2005] IEHC 263

High Court

[2002 No. 221 JR]

Ó Tighearnaigh v. President of the Circuit Court

Cian Ó Tighearnaigh ó tighearnaigh

Applicant

and

President of the Circuit Court and Director of Public Prosecutions

Respondents

Cases mentioned in the report:-

P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25.

Cahalane v. Judge Murphy [1994] 2 I.R. 262; [1994] 2 I.L.R.M. 383.

The Criminal Law (Jurisdiction) Bill, 1975 [1977] I.R. 129.

B.F. v. Director of Public Prosecutions [2001] 1 I.R. 656.

Guihen v. Director of Public Prosecutions [2004] IEHC 231, [2005] 3 I.R. 23.

Hanahoe v. Hussey [1998] 3 I.R. 69.

Hogan v. President of the Circuit Court [1994] 2 I.R. 513.

M.K. v. Groarke (Unreported, Supreme Court, 25th June, 2002).

P.L. v. Buttimer [2004] IESC 110, [2004] 4 I.R. 494.

J.M. v. Director of Public Prosecutions [2004] IESC 47 (Unreported, Supreme Court, 28th July, 2004).

Mulready v. Director of Public Prosecutions [2001] 1 I.L.R.M. 382.

O'Flynn v. District Justice Clifford [1989] I.R. 524; [1990] I.L.R.M. 65.

P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87.

P.P. v. Director of Public Prosecutions [2000] 1 I.R. 403.

The State (Brennan) v. Connellan (Unreported, High Court, Hamilton P., 17th June, 1986).

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

A.W. v. Director of Public Prosecutions (Unreported, High Court, Kearns J., 23rd November, 2001).

Criminal law - Prosecutorial delay - Institution of proceedings - Right to expeditious trial - Whether necessary to establish prejudice - Factors to be considered - Delay between suspicion and charge - Whether delay excessive - Information "leaked" to media - Prospect of fair trial.

Judicial review

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Smyth J., infra.

On the 29th April, 2002, the applicant sought and was granted leave by the High Court (Murphy J.) to apply for reliefs by way of judicial review including an order of prohibition in respect of criminal proceedings concerning the applicant. The application for judicial review, which was brought by motion on notice dated the 9th May, 2002, came on for hearing before the High Court (Smyth J.) on the 25th and 26th January, 2005.

The applicant was charged with a large number of charges relating to the manner in which monies collected on behalf of a charity of which the applicant was chief executive were dealt with by him including falsification of accounts, false pretences and fraudulent conversion of the monies.

The allegations out of which the charges were brought first came to the attention of An Garda Síochána in December, 1998. Statements were taken from witnesses in December, 1998 and the applicant was questioned in January, 1999 and released without charge. In the period March to May, 1999, orders were obtained from the District Court under the Bankers Books Evidence Acts. While such were sought and obtainedin camera, news of their making was reported by the media.

For approximately two and a half years the case did not move forward until the applicant was arrested and charged in December, 2001 and additional charges laid in January, 2002.

The applicant sought reliefs by way of judicial review including an order of prohibition in respect of his trial on the grounds, inter alia, that the delay in instituting proceedings had prejudiced the applicant in obtaining a fair trial and that the applicant's right to an expeditious trial had been breached. The applicant further sought declaratory relief and an award of damages in respect of the alleged leaking to the media of information concerning the proceedings by members of An Garda Síochána.

Held by the High Court (Smyth J.), in granting the order of prohibition sought, 1, that the prosecution of indictable offences was subject to no general limitation period; the courts had to balance factors and determine whether prohibition was reasonable or not.

• P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87 and P.L. v. Buttimer [2004] IESC 110, [2004] 4 I.R. 494 applied.

2. That, where delay was alleged as a ground for prohibition, the overall period of delay must be broken down and examined in some detail and an adjudication as to whether an accused had been deprived of his right to a reasonably expeditious trial could only be made on an ad hoc basis; among the factors to be considered were the length of the delay, the reason for the delay, the accused's assertion of his right and prejudice to the accused. In all cases, the onus of showing a breach of the right to a trial with reasonable expedition rested with the accused.

Mulready v. Director of Public Prosecutions [2001] 1 I.L.R.M. 382 followed.

3. That the delay in the instant case might not have produced the prejudice complained of but was of such a length in the circumstances of the case as by its length to have been unfair and unjust to the applicant.

4. That prejudice was a much more subtle concept than merely a witness dying or missing documents and that stress and anxiety could be a sufficient basis for staying a trial where there had been prosecutorial delay. Taken in conjunction with the "leaking to the media", the prospect of a fair trial, notwithstanding any direction of a trial judge, was difficult if not impossible of achievement.

Guihen v. Director of Public Prosecutions [2004] IEHC 231, [2005] 3 I.R. 23 followed.

5. That an award of damages was inappropriate in all the circumstances.

Hanahoe v. Hussey [1998] 3 I.R. 69 distinguished.

Cur. adv. vult.

Smyth J. 26th July, 2005

1 The applicant has been charged with 42 offences relating to a period when he was chief executive of a charity. The offences are alleged to have occurred between the 1st December and the 31st December, 1998. The charges relate to the manner in which monies collected on behalf of the charity were allegedly dealt with by the applicant, including the falsification of accounts, false pretences and fraudulent conversion of these monies. The bulk of the charges were laid in respect of specific incidents and specific dates involving specific persons.

2 The allegations out of which these charges were brought first came to the attention of An Garda Síochána in late December, 1998, as a result of a newspaper report. On the 22nd...