X v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 21 January 2020 |
| Neutral Citation | [2020] IECA 4 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 2019/210 |
| Date | 21 January 2020 |
[2020] IECA 4
The President
McCarthy J.
Donnelly J.
Record No: 2019/210
THE COURT OF APPEAL
Injunction – Prosecution – Unfair trial – Appellant seeking an injunction restraining the respondent from prosecuting the appellant – Whether it would be unfair given the length of delay to put the appellant on trial
Facts: The High Court, on the 3rd April, 2019, refused an injunction restraining the respondent, the Director of Public Prosecutions, from prosecuting the appellant in respect of 105 charges of historical sexual abuse. The High Court also refused ancillary reliefs sought by way of judicial review, [2019] IEHC 221. The appellant appealed to the Court of Appeal against the judgment and order of the High Court. The appellant submitted lengthy grounds of appeal. The issues which arose on the appeal were as follows: (a) the failure to extend time; (b) whether it would be unfair given the length of delay to put the appellant on trial; (c) whether the trial judge was correct that the appellant failed to discharge the onus of proof to establish that there was a real risk of an unfair trial; and (d) the order for costs made against the appellant in circumstances where he had been given the benefit of the Legal Aid Custody Issues Scheme.
Held by the Court that the appellant was not entitled to succeed on the substantive grounds that he had raised in this appeal. The Court held that it was an unsatisfactory situation that an issue as to the date from which time ran had been raised on appeal when it was not raised in the court below. In all the circumstances of this case, the Court was satisfied that the appellant had not made out any grounds to allow the appeal on the basis that it would be unfair to put him on trial. The Court held that there was no real risk of an unfair trial.
The Court held that the appeal would be dismissed.
Appeal dismissed.
On the 3rd April, 2019, Barrett J. refused an injunction restraining the Director of Public Prosecutions (“the DPP”) from prosecuting the appellant in respect of 105 charges of historical sexual abuse. He also refused ancillary reliefs sought by way of judicial review. His judgment is available under the title X v. The Director of Public Prosecutions [2019] IEHC 221. The appellant now appeals against the judgment and order of Barrett J.
Barrett J. set out the background as follows: -
“The applicant is facing trial for 105 charges of historical sexual abuse, which abuse is alleged to have occurred between 1971 and 1982, and to have been committed against a relative who was between six and eighteen years of age at the time of the alleged offences. The offences are alleged to have occurred in the applicant's home, in outdoor locations in and around that home, and in various motor vehicles owned by the applicant. The charges are drawn from what are claimed to be thousands of instances of abuse over the period aforesaid.”
Each charge is an allegation of indecent assault on a male person contrary to common law as provided for by s.6 of the Criminal Law (Amendment) Act, 1935. Each of these offences carries a maximum sentence of two year's imprisonment.
The appellant claimed that his constitutional rights to an expeditious trial and to a fair trial would be breached if the trial were allowed to proceed. The appellant refers to the lapse of time since the commission of the alleged offences i.e. thirty-six to forty-seven years ago. He contends that the delay is attributable to both the complainant and the prosecution generally and that it is inordinate, culpable and unexplained.
The appellant claims both general and specific prejudice that he says that he will experience as a result of the delay. In terms of specific prejudice, the appellant points to the death of witnesses, the inability to find records relating to the cars that he drove and in which it is claimed that offences took place and the absence of certain other witnesses who may or may not be deceased.
In the High Court below, it was accepted by both parties that the proceedings by way of judicial review had to commence within a three-month period from the return for trial. On that basis, the appellant was out of time by two months. The trial judge referred to 0. 84, r.21(1) and r.21(3) of the Rules of the Superior Courts (hereinafter “RSC”). Under the RSC, despite the requirement to apply for leave within three months from the date when grounds for the application first arose, the High Court may on an application for that purpose extend the period within which an application for leave to apply for judicial review may be made, which extension can only be granted if the court is satisfied inter alia that: -
“there is good and sufficient reason for doing so.”
The Supreme Court in M. O'S v. The Residential Institutions Redress Board [2018] IESC 61 emphasised the traditional idea that in approaching an application for extension, the interest of justice remains the overarching test.
The trial judge identified various relevant features in the application for an extension, including the delay in commencing proceedings where delay was the subject matter of the application, that awaiting disclosure was not a requirement before the judicial review application could be brought and that there was an alternative remedy open to the applicant, namely the ability to make his application to the trial judge. In the circumstances, the High Court did not see that there was good and sufficient reason for granting an extension of time, nor did the interests of justice require that such an extension be granted.
For those reasons the trial judge declined to grant an extension of time for the bringing of the application for judicial review.
Despite his finding that the matter was out of time, the trial judge went on to rule upon the entirety of the issues he heard thus minimising any exacerbation of the delay should he be incorrect in his initial finding.
The trial judge relied on the decision of the High Court (Charleton J.) in K (E) v. Judge Moran & Anor [2010] IEHC 23 and in particular to the reference therein to that case being “one of those now rare cases where it would be unfair to allow the trial to proceed.” He also referred to the distillation by Charleton J. of the legal principles applicable to the application. He also relied on the case of M.S. v. DPP [2015] IECA 309 where it was also claimed that the lapse of time since the date of the alleged offences was too great for the prosecution of that applicant to proceed.
Barrett J. also referred to a more recent decision of the Court of Appeal in DPP v H (8th February 2019) in which it was stated (Edwards J.): -
“110. The delay in this in this case, being close to fifty years, is one of the longest that the courts have encountered. However, be that as it may, that fact alone would not necessarily, in and of itself, justify the prohibiting of the appellant's trial. There is a public interest in this trial proceeding, notwithstanding that the matters complained of are said to have occurred a long time ago, but that can only happen provided that the appellant can receive a fair trial.
111. The parties on both sides are agreed that the relevant test is that enunciated in SH v. Director of Public Prosecutions [2006] 3 I.R. 575, namely: -
‘Whether the delay has resulted in a prejudice to an accused so as to give rise to a real or serious risk of an unfair trial’
Moreover, the decision in SH holds open the possibility that, in addition to an identifiable specific prejudice that meets the required threshold, the threshold can also be met, at least in principle, by general prejudice, or a combination of general and specific prejudices, where it amounts, where they amount, to: -
‘Wholly exceptional circumstances where it would be unfair or unjust to put an accused on trial’
112. The jurisprudence makes clear that any judicial consideration of a claim of prejudice relied upon to prohibit a trial, requires a rigorous analysis of the overall circumstances in which the case is brought, including engagement with the currently available evidence.”
The trial judge rejected each of the specific contentions raised by the appellant as to why his trial would be unfair due to the delay. He therefore refused to grant the injunction.
The appellant submitted lengthy grounds of appeal. It is more useful to identify the issues which arose on the appeal.
(a) The failure to extend time;
(b) Whether it would be unfair given the length delay to put the appellant on trial
(c) Whether the trial judge was correct that the appellant failed to discharge the onus of proof to establish that there was a real risk of an unfair trial; and
(d) The order for costs made against the appellant in circumstances where he had been given the benefit of the Legal Aid Custody Issues Scheme.
Before this Court, the appellant relied upon CC v. Ireland [2006] 4 I.R. 1 for the proposition that the time for bringing a prohibition action seeking to prohibit a criminal trial did not begin to run until the DPP had served the indictment. No explanation was given as to why that was not relied upon in the High Court. Instead it had been expressly conceded that time began to run from the date of the return for trial. A contrary view of the law was reached by Kearns P. in the case of Coton v. DPP [2015] IEHC 302. In that case Kearns P. heard evidence to the effect that it was commonplace for an indictment to be served on the eve of a trial and on that basis he determined that he could depart from the statement that had been made in CC v. Ireland by the Supreme Court.
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