THE HIGH COURT
									1999 No. 674SS
IN THE MATTER OF SECTION 2 OF THE SUMMARY JURISDICTION ACT, 1857 AS EXTENDED BY SECTION 51 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT, 1961
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
									APPELLANT
AND
JOHN RICE AND OWEN WALSH
									RESPONDENTS
EX TEMPORE JUDGMENT of Mr. Justice Kelly delivered on the 
22nd day of November 1999 
	This is the application of the First named Respondent to dismiss an appeal by way of case stated brought before this court by the Director of Public Prosecution on the grounds that there has been excessive delay in its prosecution.
	The facts are as follows.    On the 7th January 1995 the First named Respondent was involved in an alleged altercation with a police officer at Terenure Road North, Dublin.   Summary proceedings were commenced against that Respondent.    On the 24th November 1995 the case was heard before District Judge Fizpatrick.    The Judge dismissed the case on the merits.    Four days later the Appellant served a notice requiring a case to be stated.  
	On the 23rd February 1996 the Appellant instructed Counsel to draft the case stated.   On May 15th 1996 the draft case stated was sent to the Respondent's Solicitors.    The Solicitor says that shortly afterwards he agreed the draft case stated in the form presented subject to one minor amendment.    The Director of Public Prosecutions claims that there was an additional point of disagreement outstanding.    Since the correspondence relied upon in that regard has not been exhibited in the affidavits before me, I cannot consider this aspect of the matter further.
	On the 18th September 1997 the draft case stated was forwarded to Judge Fitzpatrick for his signature.    On the 17th December 1997 a reminder was sent to the Judge.    On the 19th January 1998 Judge Fitzpatrick requested that the draft be amended.    The affidavit of Monika Leech sworn on the 12th July 1999 sets out the various attempts made on the Appellant's behalf to have the case stated signed.     These efforts extended from January 1998 to April 1999.    
	It transpires that Judge Fitzpatrick signed the case stated on the 7th April 1999 and forwarded it to the office of the Chief State Solicitor on the 16th April 1999.    The case stated was then served upon the First named Respondent's Solicitors and filed in the central office of this court on the 20th April 1999.    It was listed for mention on the first occasion before the court on the 17th May 1999.     
	From the above chronology it is clear that it is now almost four years to the day since the complaint was before the District Court.    It is little short of five years since the incident which gave rise to the complaint.    I am of the opinion that it would be unjust for the High Court to deal with this case stated at this remove in time.
	In Director of Public Prosecutions -v- Flahive (1988) I.L.R.M. 133 at 136, Hederman J., speaking for the court said:-
	"There is one matter which was canvassed on the appeal on behalf of the Respondent and on which I should make comment and that issue is the question of delay, even though in the instant case it is in no way prejudicial to the Defendant/Respondent's chance of a fair trial.....
	In my view any party seeking a case stated in the High Court has an obligation to diligently prosecute the appeal and if there is any undue delay, I am of opinion that the High Court would be entitled to refuse to deal with the case, and where the High Court was of opinion that to deal with the case after a long delay would be prejudicial or unjust to the other party, should refuse to entertain the case.    Again, if there is an undue and unexplained delay in appealing from the High Court to this court, this court should reserve to itself also the right to refuse to hear such an appeal".

	There is undoubtedly undue delay in these proceedings.    It is contended that this delay is explained.    It is true that the affidavit sworn by Ms. Leech offers an explanation as to how the delay arose.     But it is one thing to explain and another thing to excuse.    The matters that she refers to may explain, but they do not excuse the delay which has arisen in the prosecution of this case stated.    Furthermore, she provides no explanation for the delay in briefing Counsel and the various to-ings and fro-ings that took place with Judge Fitzpatrick.
	Counsel for the Director of Public Prosecutions has correctly pointed out that the First named Respondent has not shown that he has suffered any actual prejudice as a consequence of the delay that has arisen.    However, I must also take into account the contention made on behalf of that Respondent that it would be unjust to deal with the case stated in view of the delay which has occurred.     Of the two decisions cited to me in this regard, Director of Public Prosecutions -v- Flahive (1988) I.L.R.M. 133 is closer to the circumstances that arise for determination here than Irish Refining PLC -v- Commissioner for Valuation (1990) 1 I.R. 568.    That case raised an issue of delay in the context of the case stated in proceedings under the Rating Code.
	Counsel for the Director of Public Prosecutions has also drawn my attention to the decision of D.P.P. (Harrington) -v- Kilbride (1999) 1 I.L.R.M. 452 at 455 where the High Court set out a list of factors to be analysed and issues to be determined where it is contended that there has been excessive delay in the prosecution of criminal proceedings.    Examining the circumstances of these proceedings in the light of these factors there has undoubtedly been a delay in respect of which no adequate justification has been provided.    The First named Respondent's right to a trial in due course of law under Article 38.1 of the Constitution is possibly jeopardised if the case stated is entertained.     If the appeal is allowed and the matter sent back to the District Court the First named Respondent will face a rehearing of the complaint made against him in summary proceedings determined in November 1995 on the merits.    I have reached the conclusion that it would not be just to put the First named Respondent in jeopardy at some stage in the year 2000 in respect of matters that are alleged to have occurred in 1995 and in respect of which he was acquitted on the merits in November of that year.
	In these circumstances I order that the case stated in these proceedings be stayed.