[2004] IEHC 383   

THE HIGH COURT 
[2004 Rec. No. 1085 SS] 
IN THE MATTER OF SECTION 52 (1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
IN THE MATTER OF ORDER 63 RULES 3 AND 7 OF THE RULES OF THE SUPERIOR COURTS
AND IN THE MATTER OF PROCEEDINGS
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
AND
COLEMAN DOYLE
ACCUSED
JUDGMENT of the Honourable Mr. Justice Quirke delivered the 8th day of December, 2004.
This is a case stated by Judge David Riordan, a judge of the District Court, District No. 19 (being the District Court area of Cork City) pursuant to the provisions of s. 52 of the Courts (Supplemental Provisions) Act, 1961) for the opinion of this court on questions of law which arose in the course of proceedings before the District Court.

Facts 
1.	The accused is charged with three driving offences contrary to the provisions of the Road Traffic Acts.  They are alleged to have occurred on 5th November, 2000 and include an offence of driving whilst intoxicated contrary to the provisions of s. 49 (4) of the Road Traffic Act 1961 as amended.  
2.	On 18th April, 2001 the prosecutor applied for a summons which was issued on 26th July, 2001 returnable from 8th October, 2001. On that date it was adjourned for hearing to 12th November, 2001.
3.	Between the 12th November, 2001 and 10th November, 2003 the proceedings came before the District Court on eight separate occasions. They were adjourned on each of those occasions on the application of the prosecutor.  The reason advanced on each occasion on behalf of the prosecutor for the adjournments was the fact that there was a challenge to the relevant Road Traffic Act legislation pending before the Superior Courts which was likely have a bearing upon one of the charges with which the accused has been charged. 
4.	On 10th November, 2003 the prosecutor sought a further adjournment of the proceedings advancing the same reason for the adjournment, that is, the pending Superior Court challenge.  The learned District Judge indicated a willingness to adjourn the proceedings “…provided the accused undertook not to raise the issue of delay or prejudice at any future hearing.”  
The accused refused to give such an undertaking and the matter was accordingly listed for hearing in the District Court on 8th December, 2003.
5.	On 8th December, 2003 an application was made on behalf of the accused to the learned District Judge to have the charges dismissed by reason of inordinate and inexcusable delay on the part of the prosecutor in bringing the accused to trial.

QUESTIONS

The learned District Judge has sought the opinion of this court on the following questions:
“(1)	Is a judge of the District Courts, disposing of Summary Criminal matters, entitled to adjudicate on the issue whether the Accused can receive a fair trial by virtue of the alleged delay in the matter coming before the District Court? and 
(2)	In the light of the decision by O’Neill J. in Director of Public Prosecutions v. Liam Arthurs [2000] 2 I.L.R.M. 363 (21st December, 1999) wherein delay within the court process itself was found to be reckonable time in any determination of the overall delay period alleged, whether accordingly, a judge of the District Court might be perceived to act as a Judge in his own cause when determining such an issue.  
(3)	If a Judge is so entitled to adjudicate on the issue of delay and in the event of a finding in favour of the accused on the said issue, whether the appropriate form of Order should be dismiss the summons, or strike out the summons, or make an Order prohibiting the prosecution proceedings with the summons?.”

1.	JURISDICTION OF THE DISTRICT COURT TO ADJUDICATE ON THE ISSUE OF ALLEGED DELAY.
The right of every accused person to a trial of the offence with which he/she has been charged with reasonable expedition is well settled (see The State (O’Connell) v. Fawsitt [1986] I.R. 362).
In Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 Finlay C.J. observed (at p. 245) that:
“The right to reasonable expedition in the trial of a criminal charge would appear clearly to precede, as a natural right, not only the Constitution of Ireland, but the Constitution of the United States as well, and from an historical point of view would appear to derive directly from the Magna Carta and to be part of the common law.” 

The right was confirmed by the Supreme Court (Keane J.) in P.C. v. Director of Public Prosecutions [1999] 2 I.R. 25 and has been repeatedly recognised by the courts before and since that date.
In Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236 the Supreme Court did not dispute the jurisdiction of the District Court to dismiss charges on the grounds of inordinate delay and the judgments of Finlay C.J. and Egan J. (although dissenting in respect of the majority decision on other grounds) expressly recognised that jurisdiction.
The High Court in Director of Public Prosecutions (Maher) v. Carrolll (Unreported, High Court, Blayney J., 8th August, 1986) and Barr J. (Director of Public Prosecutions v. Corbett [1991] 2 I.R. 1 has also recognised and upheld that jurisdiction.
It is to be noted that the jurisdiction recognised was the jurisdiction of the District Court to dismiss charges in respect of summary offences.  The position is different in respect of indictable offences triable in the Circuit Court (see The State (O’Connell) v. Fawsitt [1986] 1 I.R. 362).

2.	“DPP v ARTHURS” AND THE PERCEPTION OF “NEMO IUDEX IN CAUSA SUA.” 
The concept of court process delay was discussed by the High Court (O’Neill J.) in Director of Public Prosecutions v. Liam Arthurs [2000] 2 I.L.R.M. 363.  
In that case a prosecution for assault in the District Court was listed for hearing on three separate occasions, but was not reached for administrative reasons concerning the workload within the District Court and the number of cases listed for hearing.  
Delivering judgment O’Neill J. observed (at pp. 21-22) that:
“A failure on one occasion to get a trial on because of an over-crowded Court List could be said to be an unfortunate mishap, not necessarily involving any fault on the part of the State.  Where, as in this case, this mishap is repeated two further times, the inference that these delays are the result of a failure on the part of the State to have provided adequate resources so that the District Court could deal with the cases before it in an expeditious manner is inescapable.  The failure on the part of the State to have made adequate provisions for the expeditious conduct of cases in the District Court in question resulting, as it did, in the adding to an already excessive delay, a further nine months delay bringing the total delay to two years and three months, was, in my opinion, an unwarranted invasion of the Accused’s constitutional right to an expeditious trial.”  

What was in issue in that case was a delay in prosecution caused by an apparent failure on the part of the State to provide adequate resources to enable an accused person to receive a trial with reasonable expedition.  It was not alleged that the delay or any part of it was caused or contributed to by any act or omission on the part of any particular judge of the District Court or indeed any court.
In the instant case the prosecution of the offences in question was delayed by reason of adjournments made on the application of the prosecuting authority (the State) for the purpose of awaiting the outcome of a case which, the State believed, might have a bearing upon the prosecution of the offences.
The principle that no person shall be a judge in his own cause (“Nemo Iudex in Causa Sua”) operates to prevent both actual (“subjective”) bias and reasonably apprehended (“objective”) bias.
The question asked by the learned District Judge relates to the latter.
In Bula Limited (In Receivership and Ors. v. Tara Mines Limited and Ors. (Unreported, Supreme Court 3rd July, 2000) Denham J. observed at (pp. 37-38):
“A judge has a duty to sit and hear a case.  However, in certain circumstances, it is appropriate that he or she disqualify himself or herself from a particular case.  The test is not whether that judge believes he or she would be impartial.  Nor is it whether the judge or judges on a motion to set aside such a judgment believes the judge was or would be impartial.  Nor is it whether the parties consider the judge impartial.  The test is objective.
This has been analysed by the Constitutional Court of South Africa: The President of the Republic of South Africa and Ors. v. South African Rugby Football Union 1999 7) B.C.L.R. 725 (CC) at p. 49:)... ‘the correct approach to this application for the excusing of members of this court is objective and the onus of establishing it rests upon the applicant.  The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel.  The reasonableness of the application must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour, and their ability to carry out that oath by reason of their training and experience.  It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions.  At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of the litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial…’.”    

In the instant case the accused person, who is and has at all material times been represented by experienced professional legal practitioners, has at no time requested that the learned District Judge should disqualify himself from hearing an application on the issue of delay.  On the contrary he has expressly applied to the learned District Judge to rule on that issue.  
It cannot accordingly be rationally argued that the accused person reasonably apprehends that the learned District Judge has not or will not bring an impartial mind to bear on the adjudication of the issue which he has asked the learned Judge to determine.  
Indeed, there is much force in the argument advanced by Mr. Holland S.C. on behalf of the accused that the latter has in fact waived his right to object on grounds of objective bias (see Corrigan v. Irish Land Commission [1977] I.R. 317).
Subjective bias does not arise in this case. It has not been alleged  by or on behalf of the accused person.
The question of whether or not, in particular circumstances, a judge should disqualify himself or herself from hearing a particular case or determining a particular issue must invariably depend upon the particular facts of the case or issue concerned.
On the facts of the instant case it is appropriate that the learned District Judge should sit and determine the issue which he has been asked to determine.
This court would accordingly answer the questions asked by the learned District Judge as follows:
(1)	Yes
(2)	On the facts of the instant case it is appropriate that the learned District Judge should sit and determine the issue which he has been asked to determine.
(3)	In the event of a finding in favour of the accused the appropriate form of order would be an order dismissing the charge preferred.  

Approved:	Quirke J.