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Knowles v. Malone [2001] IEHC 71 (6th April, 2001)
THE
HIGH COURT
JUDICIAL
REVIEW
2000
No. 176JR
BETWEEN
DON
KNOWLES
APPLICANT
AND
JUDGE
LEO MALONE, JUDGE GILLIAN HUSSEY AND THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT
of Mr. Justice McKechnie delivered the 6th day of April 2001
.
-
On
the 16th January 1999, the Applicant, in the above entitled judicial review
proceedings, was charged with the offence as set out in Kilmainham Charge Sheet
44/99, to wit, that, on the 15th January, 1999 at Jamestown Court, Inchicore in
the Dublin Metropolitan District, he assaulted one Kenneth Foley causing him
harm contrary to Section 3 of the Non Fatal Offences Against the Person Act,
1997. By reason of certain events, details of which are hereinafter set forth,
the third named Respondent was not in a position to proceed with the
preliminary examination of this charge, under Section 8 of the Criminal
Procedure Act, 1967 until the 13th April, 2000. Given the nature of these said
events, it is asserted on behalf of the accused, that in the resulting
circumstances, the further prosecution of this offence should not be permitted.
Accordingly, having obtained leave therefor, he seeks in these proceedings an
Order of Prohibition against the first and second named Respondents and the
comparable order of an Injunction against the Director of Public Prosecutions.
Being satisfied however that it is no longer necessary to seek Orders against
the Respondent Judges, the application for judicial review, as moved, was
confined to the relief sought against the DPP and accordingly, this is the sole
issue which forms the subject matter of this judgment.
-
The
following events and circumstances are relevant to a consideration of the above
issue:-
15/01/99:- date
of the alleged assault upon Kenneth Foley at Jametown Court,
Dublin
8.
15/01/99 Mr.
Knowles is arrested under
Section 4 of the 1997 Act.
16/01/99:- Mr.
Knowles is charged with the
Section 3 offence, as above indicated
16/01/99:-
One John Cleary arising out of the same incident is also charged with
murder
of the said Kenneth Foley.
16/01/99:- Having
appeared before Court No. 46 both accused are remanded in
custody.
APPEARANCES
AT KILMAINHAM DISTRICT COURT FOLLOWING FIRST CHARGING
:-
18/02/99:- Mr.
Knowles, the accused, is granted bail.
19/02/99:- He
appears before Kilmainham District Court.
19/03/99:- Case
listed for DPP’s directions - none available.
12/04/99:- Garda
file sent to the DPP.
16/04/99:- Case
listed for DPP’s directions - none available.
27/05/99:- DPP
directs that no further charges should be offered against Mr.
Knowles
or Mr. Cleary with the charge against Mr. Knowles being
prosecuted
on indictment.
28/05/99:- Case
listed for the DPP’s directions - conveyed as last mentioned.
25/06/99:- Case
listed for service of Book of Evidence - none available.
23/07/99:- Case
listed for service of Book of Evidence - none available.
23/07/99:- Book
of Evidence served on John Cleary who is given a trial date in
the
Central Criminal Court of the 20th November, 2000.
30/07/99:- Case
listed for service of Book of Evidence on Mr. Knowles - none
available:
adjourned to the 2nd September and marked peremptory as
against
the DPP.
02/09/99:- Case
listed for service of the Book of Evidence - none available and on
application,
the charge is struck out for the first time.
APPEARANCES
AT KILMAINHAM DISTRICT COURT FOLLOWING SECOND CHARGING:-
20/10/99:- The
applicant, for the second time, is charged with the same offence on
Kilmainham
charge sheet 1293/1999.
27/10/99:- Case
listed in the District Court for service of the Book of Evidence -
none
available: marked peremptory as against the DPP.
10/11/99:- Case
again listed for service of Book of Evidence: Book of Evidence
served
but adjournment sought to serve additional evidence.
24/11/99:- Case
listed for service of additional evidence, submissions and
preliminary
examination: no additional evidence available: marked
peremptory
for a second time as against the DPP.
08/12/99:- Case
listed for service of additional evidence, submissions and
preliminary
examination - no additional evidence available - no
appearance
from the Chief State Solicitor’s Office - unsuccessful
application
by the prosecuting Gardai for an adjournment - charge
struck
out for a second time.
APPEARANCES
AT KILMAINHAM DISTRICT COURT FOLLOWING THIRD CHARGING:
-
03/03/00:- The
prosecuting Gardai swears an Information for an Arrest Warrant:
03/03/00:- Accused
is arrested and charged, and the Book of Evidence is served.
/03/00:- Adjourned
for service of additional evidence.
24/03/00:- Additional
evidence served on Applicant.
13/04/00:- Case
listed for submissions and preliminary examination.
-
Prior
to the date last mentioned the Applicant on the 10th April, 2000 successfully
obtained leave to seek a number of reliefs on the grounds specified at
paragraph (e)(i) (ii) and (iii) of the Statement grounding the application.
Reliefs No. (i) and (ii) and grounds No. (i) and (ii) are not now, as I have
said, being proceeded with, as events have overtaken their relevance. Hence
the only live issue being that as identified above.
-
Within
the time sequence as outlined, one must consider both the specific periods
which can be segregated one from the other, as well as the overall period of
just under 15 months between the date of first charging and the court date of
the 13th April for preliminary examination.. The said individual periods can
be identified as follows:-
1. 16th
January 1999 - 28th May 1999 - ......................4
½
months.
2.
25th
June 1999 - 2nd September 1999 - ..................9 weeks approximately.
3.
2nd
September 1999 - 20th October 1999 - ............7 weeks, approximately
4.
27th
October 1999 - 8th December 1999 - ..............6 weeks, and
5.
8th December 1999 - 3rd March 2000 - .................3 months.
1. The
first period is taken to end with the receipt of the DPP’s directions,
the second period is taken to commence from the date upon which the case was
first listed for the service of the Book of Evidence, the third period is to
cover the interval between the first striking out of the case and the second
charging of the accused, the fourth period is taken to end when the case is
struck out for the second time and the fifth period covers the entirety of the
time gap between the date last mentioned and the third charging or second
recharging of the said accused.
-
In
response to the evidence grounding this application, replying affidavits have
been sworn by the Sergeant in charge of the investigation and by a senior
assistant Solicitor, in the office of the Chief State Solicitor, who had the
legal responsibility for the file in this case. Therefrom the following
emerges:-
(a) The
incident, grounding the charge proffered against the accused took place on the
15th January, 1999 as a result of which Mr. Kenneth Foley died. The Gardai,
were therefore, involved in a murder enquiry. Over that day, and the day
following, their investigations revealed the existence of circumstances which
enabled them to arrest, charge and bring before the District Court, on the 16th
January, both the said accused and a Mr. John Cleary. In the period which
followed, their enquiries had reached a stage which by the 12th of April 1999
had permitted them to forward a file to the Director of Public Prosecutions.
On the same day a copy of that file was also sent to the relevant solicitor.
On the 27th May this said solicitor received instructions from the DPP that no
additional charges were to be offered against either of the accused persons but
that the
Section 3 charge was to be prosecuted on indictment. The District
Court was so informed on the day following.
(b) By
the end of July 1999 no Book of Evidence had been completed, much less served
on the accused. The reason therefor, as deposed to by the said solicitor, was
that of undue pressure of work with a resulting inability to complete the
legal assignments allocated to him. At least in part, this was caused by an
ongoing lack of resources. In addition, a priority had been afforded to Mr.
Cleary who, not only was on the more serious charge but who, unlike the
Applicant, had been unable to obtain bail. On the 23rd July the Book of
Evidence had been served on him and as above stated a trial date for November
2000 was obtained.
(c) For
the last two weeks in August annual leave was pursued with the result of
course, that come the 2nd September there was still no Book of Evidence
available. Rather surprisingly perhaps, in paragraph 5 of his affidavit, the
solicitor avers that he was unaware of the peremptory listing of the case for
that date. Indeed it is unclear if there was any solicitor in attendance for
that hearing. The prosecuting Gardai however was, and immediately after the
Judge striking the case out, she contacted the solicitor in question who
informed her that the preparation of the Book of Evidence was in the process of
completion. He would re-establish contact, at the appropriate time, with a
view to having the Applicant recharged.
(d) On
the 20th October the same charge, for a second occasion was levied against Mr.
Knowles, this at a time when, for whatever reason, the Book of Evidence was
still not available, a situation which continued until the 10th November, 1999.
It was served on that day, pursuant no doubt, only to a second peremptory
marking of the case. Even then it was incomplete as an adjournment was sought
to serve additional evidence.
(e) This
additional evidence was relevant, as after agreeing to a voluntary suspension
of questioning for a certain specified period, the accused, it is claimed, made
further cautioned statements which the DPP proposed to rely upon at trial. The
evidence of such suspension was necessary so as to meet any potential challenge
to the admissibly of such statements. However, when the Book was being
prepared with a view to exhibiting these said statements “they were not
to hand on the relevant date”. Hence the necessity for further time to
serve additional evidence though the reason for their non availability in the
first place, has never been properly explained.
(f) Notwithstanding
the fact that once again the case carried a peremptory warning there was no
representative of the Chief State Solicitor’s Office, in Court on the 8th
December, when the matter was called. The prosecuting Sergeant, both to her
credit and diligence however was. When called, commendably she applied for an
adjournment until Friday 10th as, on inquiry she was told that the Solicitor in
question was unavailable, being on Court business else where. The learned
District Court judge refused and for a second time the case was struck out.
(g) The
explanation for the aforesaid non attendance was an erroneous belief that the
case was listed for the 10th December and not the 8th; this due to an
inadvertent error in the diary of the solicitor.
(h) Immediately
following the making of this order the prosecuting Sergeant appraised the
solicitor of what had occurred. She also spoke with the Deputy Director in the
DPP’s office. The solicitor in question likewise made contact with the
said Deputy Director. On Friday 14th January an instruction was received from
the DPP that the charge should be “re-entered.” In the solicitors
words “in view of the unfortunate history of the matter to date I decided
that the safest manner to proceed was to start from scratch and to prepare a
fresh Book of Evidence. On March 3rd, 2000 I informed Sergeant
O’Sullivan that the Book of Evidence was ready”.
(i) From
December 1999 up to March 3rd, 2000 the Sergeant involved, I am satisfied was
in regular contact with the office of the Chief State Solicitor and on the date
last mentioned, being informed that the book was ready, she arrested and
charged the accused and on him at that time served the said Book, and finally
(j) Even
then, quite extraordinarily, a further remand was necessary so as to serve
additional evidence which evidence came to hand on the 24th March. This led to
the case, now ready for the first time, being listed for submissions and
preliminary examination on the 13th April.
6.
On behalf of the said Applicant it is alleged that the chronology of events as
outlined, demonstrate an excessive delay in the proper prosecution of this
case, which delay remains both unexplainable and inexcusable. Accordingly, as
Mr. Knowles has a constitutional right to a trial, in due course of law and
with reasonable expedition, that right has been infringed with the result that,
in his favour, this court should prohibit the further prosecution thereof. It
is submitted that whilst no express prejudice is established, the court can and
should infer, or make a finding of, presumptive prejudice. The end result, in
the aforesaid circumstances should be a halt to the further movement of this
case.
7.
The DPP submits, by way of response, that whilst the mishaps, as outlined, are
regrettable the time periods involved are not excessive, and although
admittedly in general terms, are nonetheless adequately explained. Furthermore
it is claimed that case law is cogently against granting the relief sought, in
that, an examination of the reported decisions would show that the courts have
permitted the continuation of many prosecutions where the delay, either
individually assessed or collectively analysed, is well in excess of that
pertaining in the instant case. Accordingly, even if unsatisfactory, the trial
should now proceed.
8.
The legal principles applicable to this matter are described and set forth in
numerous decisions of both this Court and the Supreme Court. In
B
-v- DPP
(1997) 3 I.R. 140 Denham J,
in
her judgment at p. 195, identified several factors, numbered (i) to (x)
inclusive which should be considered in determining an issue of this type.
Though the charges and offences in that case were of a sexual nature,
nevertheless there is no doubt but that most of the elements as specified have
a general application. See also
P.C.
-v- Director of Public Prosecutions
(1999) 2 IR 25 where the Supreme Court adopted, and again followed the
aforesaid judgment of Denham J. In this Court, Kelly J in
DO’R
-v- DPP
(1997) 2 I.R. 73 summarised, what in his view were the appropriate principles
which a Court should take into account when adjudicating upon matters of this
nature. In addition in the
DPP
(Harrington) -v- Kilbride
(1999) 1 ILRM 452 Mr. Justice Quirke, when dealing with the particular events
of that case, did so by reference to and reliance upon, the factors outlined in
the aforesaid judgment of Denham J. Accordingly, being well established and
well documented, any further recital of these principles, or of these relevant
and material factors, would be entirely repetitive and would serve no purpose,
useful or otherwise. It is the application of such principles that I must now
consider.
9.
As
stated above, the date of the alleged offence was the 15th January 1999, with a
background which gave rise to the resulting charge involving circumstances in
which a person died. Therefore, the Gardai were involved in that type of
investigation. Matters moved swiftly which enabled the charging of the
Applicant to take place on the day following, namely the 16th January.
However, further enquiries were obviously necessary. By the 12th April, these
had reached the stage whereby the Garda file was ready for the DPP. Having
considered the matters within that file, the Director, on the 27th May, issued
instructions that no further charges were to be brought against Mr. Knowles,
but that the
Section 3 charge should be prosecuted on indictment. The accused
and the District Court were so informed on the 28th May. This first period was
therefore a little over 4½ months. Given the circumstances which existed
and as a result of the matters outlined, this period, in my opinion was
reasonable and of itself, could not be described or properly described, as
constituting or involving any delay at law.
10.
The
second time span, a period of nine weeks, ended when the District Court for the
first time struck out the charge on the grounds of the DPP’s failure to
have ready the Book of Evidence. This failure was not in any way attributable
to the Sergeant in charge or the District Court, though of course, it has been
well established that such a Respondent, being an appropriate organ of State,
is identified in law with, and is therefore responsible for, delays emanating
from any of these sources. In this case the explanation by the Solicitor in
question seems to be:-
(a) that
precedence was given to the preparation of the book in the case of Mr.
Cleary who was in custody and who had been charged with the more serious
offence of murder,
(b) that,
in general, he, the Solicitor was overworked with no or no sufficient help
or
assistance being available and
(c) that
annual leave intervened.
11.
The
third period, namely from the 2nd September to the 20th October 1999, covers
the seven week interval before the accused was charged for the second time. As
annual leave was over and as the Book of Evidence on Mr. Cleary had been
served, these two diversions no longer existed. Hence reliance solely on
pressure of work. Though the Book of Evidence clearly was not complete, the
accused nonetheless was recharged on the 20th October. Why such a move was
made, in these circumstances, is difficult to understand. If the reason was
purely tactical, and I am not saying that it was, I would take a poor view
indeed of it. In any event during the fourth period the Book of Evidence, was
in fact served on the 10th November 1999 albeit in circumstances where it was
still not complete. I cannot understand this nor can I understand the wholly
inadequate explanation offered therefor by the Solicitor. Two further
opportunities, were given but not availed of so as to serve the additional
evidence before once again the case was struck out on the 8th December.
2. The
final period involved contact with the Deputy Director of Public Prosecutions
who on the 14th January 2000 gave a direction that the accused should be
recharged with the same offence. On receipt of this the Solicitor decided to
start afresh with the presentation of the book. Being finally complete, Mr.
Knowles was arrested, charged and had on him the Book of Evidence served on the
3rd March 2000.
12.
The
above recital of the relevant circumstances in this case, shows, that after the
DPP’s directions were received on the 27th May 1999, an inadequate
application was adopted to this matter. Preparation of the Book of Evidence
was not initiated, conducted or carried through with the required level of
diligence, attention or urgency that is, not only expected but demanded of, an
efficient and proper administration of justice. An accused person is entitled
to know, by the service on him of the book, of what witnesses, evidence and
exhibits he will have to face at trial and is entitled to have this information
available at the earliest permissible time. That clearly did not happen in
this case with the result that the Applicant is entitled to have and feel a
sense of grievance as most certainly are the Respondent Judges. Between May
1999 and March 2000 this case appeared before them on several occasions. At
least twice they marked the case peremptory against the Director of Public
Prosecutions. Even this was an insufficient warning as to the urgency of the
matter. As obviously were the Orders made on the 2nd September and the 8th
December. In the midst of these occurrences, it would seem that the Solicitor
did not know that the case had been marked peremptory for the 2nd September and
had mistook the correct date for the Court Listing in December. Whilst of
course mistakes happen, and for one to err is human, nonetheless in any
assessment of what took place the performance was less than satisfactory.
13.
Notwithstanding,
and whatever discomfort might be voiced or whatever admonishment might be
delivered, I must still apply the recognised principles when dealing with this
case. As stated above the first period on it’s own does not represent
any delay as that word is understood in this context of law. Undoubtedly the
charge of murder against Mr. Cleary was a more serious charge than the
Section
3 offence alleged against Mr. Knowles. Together with the fact that the latter
was on bail, one can understand a desire to give priority to completing the
documentation in Mr. Cleary’s case. Holidays, of course, must be
provided for. However, it is very difficult to appreciate what was going on in
September, October and November of 1999. Whilst general pressure of work and
un-staffing traverses the entire period, no specific case, assignment, event or
inquiry is pointed to, or focussed upon as an explanation for what clearly was
a three month period of at least, partial inactivity. The reaction of the
Solicitor, namely in starting afresh, when he was informed that the case was
struck out for a second time, may well on the one hand, attract sympathy but
yet on the other confirms the clear impression of a total lack of confidence in
the preparatory work done, to that date, in respect of the said Book.
14.
Nonetheless,
the question remains whether the accused right to a trial with reasonable
expedition has been breached or whether there has been a violation of Article
38
Section 1. In this case there is no suggestion of actual prejudice. No
witness is missing, no human memory is unduly distorted, no piece of evidence
is unavailable and nothing of a specific nature has been identified which would
impair Mr. Knowles in the preparation of his defence or in the actual conduct
of it. Whilst it has been said that his anxiety levels have been prolonged, in
truth one would think that every person charged with a serious offence, should
to some degree or other have an ongoing concern about it. Therefore, without
more, I cannot I feel, elevate this suggestion into a category which would
enable this case to be considered as one where actual or presumptive prejudice
is present. Nor I feel, can I view the overall period of just under fourteen
months as being such, as would move an inference of prejudice. In addition,
for some individual periods, there are good reasons advanced for the delays in
question and whilst for others, the reasons are less satisfactory, nonetheless,
even these must have some probative value. Therefore I am of the opinion that
the overall time-lapse does not constitute excessive delay and that whilst for
some segregated periods within that, the activity and lack of respect both to
Mr. Knowles and the District Judges are worthy of condemnation, nevertheless I
cannot hold, that in the totality of the circumstances the issuing of the Order
as sought, would be warranted.
15.
This
conclusion is supported by authority. In
DPP
-v- Byrne, 1994 2 I.R. 236
the overall delay was ten months. In
Kilbride’s
case
the period from the date of the offence, namely the 29th January 1997 to the
first occasion upon which the Court was ready to deal with the matter, namely
the 4th February 1998, was just over twelve months and in
Mulready
-v- the DPP
,
McGuinness J., H/C: U/R, 1 / 2/2000 the period was some twenty-one months.
3. Even
though, these cases, were of a summary nature and should thus, ordinarily
attract the greater expedition, nevertheless whilst each respective Court,
expressed concern and did so in a variety of ways, not one was satisfied in the
circumstances, that the delays as established were sufficient to grant
prohibitive or injunctive relief.
16.
There
have been, of course, many other cases where the offences in question were not
summary in nature, but rather were triable on indictment. Several of these
involve offences of a sexual nature where the time periods have often being
very considerable. However, since that type of charge places the resulting
prosecution in a special category, as provided for in
B
-v- DPP, Supra
,
further consideration of their individual circumstances would not necessarily
be productive in this case. Likewise as each case must be considered within
the parameters of its own facts, an analysis of the Judgment in
McKenna
-v- The Presiding Judge of the Dublin Circuit Criminal Court and the Director
of Public Prosecutions
,
H/C, U/R, 14/1 2000, would equally be only of marginal value. That is, save
for noting the general observations of Mr. Justice Kelly where, as against the
background of an investigation and prosecution allegedly grounded upon fraud,
he held that, though the delay involved was inordinate and inexcusable
nonetheless, since there was no real risk to an unfair trial and no actual
prejudice demonstrated, the Orders prayed for would be refused.
17.
In
addition there is the case of the
Director of Public Prosecutions (Coleman) -v- McNeill
(1999) 1 IR 91. In that case the relevant dates were as follows:-
10/04/1996: summons
issue - with a return date of the 21st May 1996,
21/05/1996: summons
not served, so obviously no trial,
27/05/1996: summons
reissued with a return date of the 2nd July 1996,
02/07/1996:
again,
service of the said summons had not being effected, by this the specified
return
date,
07/08/1996: summons
reissued for a second time with a new return date of October 1st
1996,
01/10/1996: As
the original summonses were mislaid, the matter did not proceed to a
hearing,
10/01/1997: summonses
reissued for a third time and made returnable to Roscommon District Court on
the 4th February 1997,
04/02/1997: the
District Court, being satisfied that all matters were now regularised, fixes
the 18th February for the actual hearing.
18.
On
this said date, following submissions made on his behalf, the Respondent was
successful in convincing the learned District Judge that because of delay the
trial against him should not proceed. A case stated was requested and agreed
to, wherein the opinion of the High Court was sought on this ruling. Mr.
Justice O’Donovan upheld the decision of the said District Judge. An
appeal was taken to the Supreme Court. At p. 96 of the Report
O’Flaherty J. who gave took the Judgment of that Court said :-
“Whilst
there were a series of mishaps about the failure to serve these summonses on
the Defendant in this case, which still remains unexplained to an extent, I
believe that there really was no evidence to lead the District Judge to hold
that the Defendant could be prejudiced in any way.”
4. Having
pointed out that the onus was on the Defendant, the learned Judge, at the same
notation, continued:-
“In
relation to the charge of drunk driving, that is notorious for throwing up
technical points - and very often specious technical points - we do well to
remind ourselves that courts of law exist to do justice between the parties and
not to act as disciplinary tribunals over the conduct of litigation:
cf
Murphy -v- Minister for Defence
(1991) 2 I.R. 161. Nonetheless, we do not breach that guideline by repeating
that there is a solemn responsibility on anyone having anything to do with
prosecuting cases to make sure that they are brought to Court with all due
expedition.
It
is most likely that the learned District Judge and the learned High Court Judge
allowed themselves to be over influenced by what they both regarded as a degree
of ineptitude in relation to the service of the summonses. But courts are not
there to chastise any one party who comes before them but rather to make sure
that justice is done as between the respective parties”.
19.
Evidently
there is a distinction between an offence of a summary nature and a charge
triable on indictment. In the former situation it is normally necessary to
make an application for the summons within six months from the date of the
alleged offence Section 10 (4) of the
Petty Sessions (Ireland) Act 1851. In
the latter there is no time limit provided either expressly or inferentially.
See
Section 7 of the
Criminal Justice Act 1951. Again, in general, summary
cases are less serious and less complicated and should therefore be prosecuted
more speedily than cases tried on indictment. However, and notwithstanding
this greater urgency, the periods above identified, in the summary cases
mentioned, have not been held sufficient to warrant a prohibition or an
injunction. Though not seriously complicated the instant case did involve a
murder investigation and ultimately did involve the service of a substantial
Book of Evidence. Given therefore the views of the Courts as expressed in the
decisions heretofore recited, it seems to me, that notwithstanding some uneasy
moments surrounding this case, I would be acting contrary to established
authority in quite a significant way if I was to grant the injunction as sought
in this matter. Accordingly, I will therefore refuse the relief as prayed for.
20.
During
the course of debate an issue was touched upon about the independence or
interdependence of the right to a trial with reasonable expedition. It is a
matter upon which I would like to comment.
21.
In the United States of America, the Sixth Amendment to the Constitution,
insofar as it is material provides as follows:-
“In
all criminal prosecutions, the accused shall enjoy the right to a speedy
and
public trial......”
5. Thought
separate and distinct one from the other, this amendment is sometimes spoken of
and discussed in conjunction with, or in the context of, the Fourteenth
Amendment, which provides:-
“....Nor
shall any state deprive any person of life, liberty or property without due
process of law”.
6. In
the Constitution of Ireland there is no express right to parallel that
contained in the Sixth Amendment but the right to a trial with reasonable
expedition, undoubtedly has a constitutional basis, namely in Article 38
Section 1. That Section reads “no person shall be tried on any criminal
charge save in due course of law”. Such a right, whether expressed
positively - as a right to a speedy trial, or as a right to a trial with
reasonable expedition, or negatively - as a right to a trial without undue or
excessive delay, is now so well established in our constitutional jurisprudence
that it’s protection can be readily enforceable at this status and level
of importance.
22.
In
addition however this right also has an existence in the common law. In The
State (Healy) -v- Donoghue
1976 I.R. 325 Gannon J, at pages 335 and 336 of the report, having specified
certain rights to which an accused person was entitled, went on to describe
such rights, as being
“....... among the natural rights of an individual......”
and having incorporated within that phrase
“rights
such as the right to reasonable expedition......”
he continued
“The
rights I have mentioned are such as would necessarily have a bearing on the
result of a trial. In my view, they are rights which are anterior to and do
not merely derive from the Constitution, but the duty to protect them is cast
upon the Courts by the Constitution”.
7. See
the endorsement of this passage by O’Higgins CJ at p. 349 of the Report.
Hence
the view that the right in question has an origin which pre dates the
establishment of the Constitution and thus of necessity must also have a
foundation outside that Constitution
23. That
such is the case was identified by Chief Justice Warren in
Klopfer
-v- North Carolina
1967 386 U.S. 213 where, in his judgment, he explained that the source of such
right within the U.S. derived from their English law heritage: He then traced
it’s history from the Assize of Clarendon (1166) through Magna Carta
(1215), via Coke and his Institutes and thereafter through the law schools and
ultimately into the U.S. Constitution. This recognition by the Chief Justice
of the origin of such right and it’s common law history was quoted with
approval by Murphy J. in the
State
(O’Connell) -v- Fawsitt
1986 I.R. p. 362 and by Keane J, as he then was, in
PC
-v- DPP
1999 2 IR 25 at 65. Indeed, Mr. Justice Keane pointed out that Lavery J. in
the matter of
In
Paul Singer
1960, 97 ILTR, 130 referred to it as “a right enjoyed for
centuries”. Therefore it seems to me that there is the highest
authority for the proposition that this right exists in, and as part of the
common law, as it does, and of course of far more importance, by virtue of the
constitutional provision above mentioned.
24.
As is clear and as is clearly accepted, the constitutional basis of this right
is not found on any specific provision of the Irish Constitution which would be
comparable to the Sixth Amendment in the U.S. Constitution; rather it is within
the “due course of law”, general provision contained in Article 38
Section 1. This manner of incorporation into our constitution should not be
taken to mean, that such right suffers or is lessened or is in any way diluted,
by not having its home in an exclusive and specific constitutional provision.
Its status, scope, applicability and remedy for its breach, are in no way
adversely affected by its identification within Article 38.1. This I believe
follows from the judgment of the Supreme Court in
DPP
-v- Byrne
1994 2 I.R. 236, and if correct, is a view I respectfully agree with.
25.
In that case, which dealt with a variety of issues, judgments were delivered
by Finlay CJ, with whom Egan J agreed, by Blayney J with whom O’Flaherty
J agreed, and by Denham J. At p.244 of the report the then Chief Justice
referred to Article 38. I, and having quoted the relevant section passage in
the
State
(Healy) -v- Donoghue, Supra
,
which section identified the right to reasonable expedition, he continued
“In
some constitutional structures the right to a speedy trial or to a trial with
reasonable expedition is separately provide for from the right to a trial in
due course of law or by due process of law. The most obvious and well known
example of that is the existence
in
the Constitution of the United States of America of the Sixth Amendment and
Fourteenth Amendment. The Sixth Amendment provides the right “to a
speedy and public trial, by an impartial jury” and the Fourteenth
Amendment provides “nor shall any state deprive any person of life,
liberty or property without due process of law”.
As
is clearly implied in the
State
(Healy) -v- Donohue
1976 I.R. 325 by this court as well as by the High Court, the importance of
the protection of the right to a trial with reasonable expedition is not in any
way lessened by the fact that the constitutional origin of it in our law arose
from the general provision for a trial in due course of law rather than from a
separate express provision of a right to a speedy trial”.
26.
This passage, in my opinion can only mean that the right, to include and
embrace all of its constituents and elements, should differ in no way than if
such right had an independent base in a separate and distinct provision of the
constitution. If this be correct the right is a stand alone right, the breach
of which, in itself, and without more, can, in the appropriate circumstances
attract the required and necessary relief. In saying this I fully appreciate
that it also belongs to the family of rights, duties, obligations and
responsibilities which are deducible from Article 38.1 of the Constitution and
furthermore I clearly acknowledge that the right must also be considered in the
context of that composite Article when it is appropriate to do so.
Nevertheless if circumstances so warrant, the right in isolation could be
invoked and relied upon. If I am right in this it must follow that when so
relied upon, as a stand alone right, there is no necessity, if an invasion is
established, to further consider it in the overall context of Article 38. 1 and
thus, no requirement to satisfy any residual test, as for example whether the
accused person can receive a trial “in due course of law”. This
question of course may also be posed, but in my view it is not a compulsory
adjunct where a breach of the former right has been successfully relied upon.
27.
This conclusion is I feel supported by other passages in
Byrne’s
case. That case it will be recalled dealt with offences under the Road Traffic
Acts with the date of alleged commission being the 19th April, 1991. Because
of administrative difficulties with a computer system, the resulting summonses
did not issue until the 19th December, 1991 and, though served shortly
thereafter, the earliest trial date available was not until the 12th February,
1992. A total delay of about 10 months. No evidence was called or sought to
be called to explain or justify this delay. The District Judge dismissed the
charges. On a case dated at the request of the DPP, the High Court upheld the
District Court in the way in which it exercised its discretion. The Supreme
Court on appeal reconsidered the entirety of the case including a number of
matters not of immediate relevance. One issue, which is however, is the
question of prejudice in the context of a right to a speedy trial. The US case
of
Barker
-v- Wingo
1972 407 U.S. 514 is frequently cited in this regard as having set forth,
albeit succinctly, the underlying reasons for this right. At p.245 of his
judgment Finlay CJ expressly approved the following passage in
Barker
at p. 532 where Powell J said :-
“Prejudice,
of course, should be assessed in the light the interests of the defendants
which the speedy trial right was designed to protect. This court has
identified three such interests:
(i) to
prevent oppressive pre-trial incarceration, and
(ii) to
minimise anxiety and concern of the accused,
(iii) to
limit the possibility that the defence will be impaired”
.
8. See
also Murphy J in the
State
(O’Connell),
supra at p. 366.
28.
Having endorsed these observations the Chief Justice continued:-
“Having
reached that conclusion I am driven to the further conclusion that, of
necessity, instances may occur in which a delay between the date of the alleged
commission of an offence and the date of a proposed trial identified as
unreasonable would give rise to the necessity for a court to protect the
constitutional right of the accused by preventing the trial, even where it
could not be established either that the delay involved an oppressive pre-trial
detention, or that it created a risk or probability that the accused capacity
to defend himself would be impaired. This must lead of course to a conclusion
that, on an application to prohibit a trial on the basis of unreasonable delay
or lapse of time, failure to establish actual or presumptive prejudice may not
conclude the issues which have to be determined”.
29.
In my respectful view I can only read this passage as indicating that even
where the interests of the accused, as identified by Powell J, have not been
violated and even where no actual or presumptive prejudice can be established,
nevertheless where there has been an unreasonable delay, that in itself may
form the subject matter of an application to prohibit the further continuance
of the trial in question. I believe that the passage immediately following the
one last quoted from the Chief Justice makes it clear, that delay alone and
without more, but one which has reached a certain level, can constitute an
infringement of a person’s constitutional right to a trial with
reasonable expedition and, if and when so found, like any other invasion of a
Constitutional right, can attract the most appropriate remedy.
9. The
succeeding paragraph is as follows:-
“The
type of delay which may be involved in this particular form of constitutional
right undoubtedly creates difficulties in that it cannot be assessed with any
measure of certainty or precision. The delay which is indicative of an
improper motive or gross carelessness on the part of prosecuting authorities is
identifiable, and is different from the mere failure
with
which I am at this stage dealing
,
to render to a person a constitutional right to a trial with reasonable
expedition. The delay which has caused or is likely to cause, significant or
serious impairment of an accused persons capacity to defend himself is again
readily identifiable and largely may be classified by reason of its
consequences on the facts of a particular case.
The
reasonableness or unreasonableness of a delay which by itself and without any
other consequence is an infringement of an constitutional right is much more
difficult of definition”.
(Emphasis
added).
30.
Undoubtedly, in this passage, the Chief Justice identifies delay, which on
the one hand may have been caused by an improper motive or gross carelessness,
or on the other a delay which has caused serious impairment to a persons
ability to defend himself i.e., prejudice. However, in my view the essence of
the point being made is not that which I have just summarised but rather is
that which is found in these two passages where firstly the Chief Justice says
“the
mere failure, with which I am at this stage dealing, to render to a person a
constitutional right to a trial with reasonable expedition
”
and secondly where he continues
“the
reasonableness or unreasonableness of the delay which by itself and without any
other consequence is an infringement of a constitutional right is much more
difficult of definition
”.
Though he indicates that the definition of such delay is much more difficult
then where prejudice can be established, nonetheless that difficulty in no way
takes from the pivotal focus of the paragraph. I therefore believe that delay,
by itself, which in the circumstances is unreasonable can infringe one’s
constitutional right to a trial with reasonable expedition, and where so found
on its own, can afford relief.
31.
The
view of the Chief Justice on this point, represents in my opinion the majority
if not the unanimous view of the court in the
Byrne’s
case. At p.254 Blayney J said:-
“
If in the present case I had concluded that there had been a breach of the
Respondent’s right to a trial with reasonable expedition, I would agree
with the view expressed by the Chief Justice in the present case that such a
conclusion could be reached even though the circumstances were not such as to
establish any actual or presumptive prejudice to the respondent in his defence
to the prosecution.
Taking
the view, as I do, that there has been no breach of the respondent’s
constitutional right, there is no need for me to say anything further on this
aspect of the case”.
10. In
addition, thought agreeing with the view that the time lapse was insufficient
in the circumstances of that particular case, Denham J at p. 259 of the report
added :-
“However
as a general principle of law I cannot agree that a time lapse between, an
offence and the case coming on for trial of between nine and ten months, in
the absence of evidence of prejudice to the accused, is such an unreasonable
delay on behalf of the State that of itself it warrants dismissal of the
summons.”
11. The
implication clearly being that if the delay was so unreasonable then that
by
itself
would command such a dismissal. See also (1)
B
-v- Director of Public Prosecutions, Supra
at p.195 where Denham J expressed the unanimous views of the Supreme Court (2)
McKenna’s
case, above and in particular the section headed “The Law” and (3)
DPP -v- Arthurs
2000 2 ILRM 363
12. I
therefore believe that there is to be found clear authority for the proposition
that, without the existence of prejudice, actual or presumptive/inferred, a
prosecution of an accused person can be halted if the delay is so unreasonable
as to amount to a breach of that persons constitutional right to a trial with
reasonable expedition. Once such a finding is made it is not essential, in my
opinion, that the accused should have to further satisfy the court that his
trial also breaches the due process clause. Whilst frequently the right to
reasonable expedition will be considered in the context of Article 38.1 and
whilst frequently a violation of that right will also result in a breach of
this provision, nevertheless it is conceivable that the result last mentioned
will not follow or necessarily follow, in every case.
32.
Finally whilst I am aware of a number of decisions for example
S
-v- DPP and Connellan
S.C. U/R 19/12/2000 where the right to a trial with reasonable expedition has
predominantly been discussed in the context of Article 38.1, I do not read in
or take from any of these decisions a questioning of or a dissenting from the
judgment in
DPP
-v- Byrne
supra.
33.
In conclusion therefore, on the facts of this case and as is evident form an
earlier part of this judgment, there has been no breach, in my view, of the
Applicants constitutional right to a trial with reasonable expedition or to his
right to a trial in due course of law. Therefore I refuse the relief sought.
© 2001 Irish High Court
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