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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'T. (C.) v. President of the Court of Criminal Appeal & Anor [2005] IEHC 263 (26 July 2005) URL: http://www.bailii.org/ie/cases/IEHC/2005/H263.html Cite as: [2005] 3 IR 470, [2005] IEHC 263 |
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Neutral Citation No: [2005] IEHC 263
THE HIGH COURT
DUBLIN
JUDICIAL REVIEW
Case No. 221JR/2002
C.O'T
APPLICANT
And
PRESIDENT OF THE CIRCUIT COURT OF CRIMINAL APPEAL
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENTS
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED 26TH DAY OF JULY 2005
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 1 December 1998 and 31 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.
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 22 December 1998 statements were taken from three central witnesses who were collectors for the charity. By January 1999 most of the statements in the Book of Evidence had been taken. The Applicant was questioned by the Gardaí on 28 January 1999 and released without charge. On 25 February 1999 a statement was taken from one P.C. and three further statements from other persons were taken between 3 and 19 March 1999. In the period March to May 1999 orders were obtained from the District Court under the Bankers Books Evidence Act. While such were sought and obtained "in camera", news of their making was reported in the media. On 13 July 1999 the Book of Evidence was sent to the Respondent.
For some two and a half years the "case" did not move forward. No affidavit was sworn by the Respondent or on his behalf. The Chief Prosecuting Solicitor has sworn an affidavit and relies on pressure of work as an explanation for certain delays.
On 17 December 2001 the Gardaí indicated to the Applicant that they wished to arrest and charge him- which they did the following day. On 8 January 2002, forty one additional charges (to the single charge of 18 December 2001) were preferred against the Applicant
Murphy J. granted leave by Order of 29 April 2002 which permitted the Applicant to apply for:
A. An injunction preventing his further prosecution on the grounds that:
(i) The delay in instituting the criminal proceedings has prejudiced the Applicant in obtaining a fair trial.
(ii) The delay is such as to lead to an inference of prejudice without additional proof.
(iii) The delay is unfair and unconstitutional and in breach of the European Contravention for the Protection of Human Rights and Fundamental Freedoms 1950. (The Convention)
(iv) The Applicant's right to an expeditious trial has been breached.
B. Declaratory relief in relation to an alleged leaking of details of the Applicant's detention and the investigation into the charges against him, which it is alleged constitute a breach of his constitutional rights to privacy, to a trial in due course of law and to his good name, as well as constituting a breach of Article 8 of the Convention.
C. The charges laid against the Applicant were duplicitous and an abuse of process.
The Respondent opposed the relief on the grounds that:
1. There has been no inordinate delay in bringing the charges against the Applicant and accordingly there has been no violation of his constitutional rights.
2. If there has been inordinate delay, it has not has the effect of violating the Applicant's constitutional rights.
3. There has been no breach of Article 6(1) or 8 of the Convention.
4. The "authorities" in particular the members of An Garda Síochána investigating the allegations against the Applicant, deny leaking details about the Applicant's detention and the progress of the investigation. The "authorities" deny being involved in a conspiracy to vilify the Applicant or to deprive him of his constitutional rights.
5. The charges are not bad for duplicity, and even if so that is not a substantial ground for granting the relief sought.
It is settled law that the prosecution of indictable offences is subject to no general limitation period (P.O'C –v- DPP [2000] 3IR, 87, 93 per Keane C.J., 97 per Denham J.), the Courts have to balance factors and determine whether prohibition would be reasonable or not. (P.L. –v- Judge Buttimer and the DPP, unreported Supreme Court, December 20, 2004 per Geoghegan J. at p9).
A criminal trial may be stayed by reason of lapse of time between the date of the alleged offences and the likely date of the trial – provided the accused can demonstrate, on the balance of probabilities, that the passage of time has created a real and serious risk of a permanent defect going to the root of the trail, such that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences. (M.K. –v- Judge Groarke and the DPP, unreported Supreme Court June 25, 2002 pp11-12.
Where delay is 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 has been deprived of his right to a reasonably expeditious trial can only be made on an ad hoc basis; among the factors to be considered are 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 rests with the accused. (Mulready –v- DPP [2001] ILRM 382).
Prosecutorial Delay.
In A.W. –v- DPP (unreported, the High Court 23 November 2001) the mean time of six to eight weeks for processing a file to a decision (to prosecute) in 1997 was given in evidence. (In the instance case no such specific evidence is given). In that case of A.W., Kearns J. stated that:
"Where prosecutorial delay may be shown to have occurred, it is clear that the Court should not allow the case to proceed and additional prejudice need not be proved".
Again in J.M. –v- DPP (unreported, the Supreme Court 28 July 1994) McCracken J. delivering the judgment of the Court stated that:
"There are cases where a prosecutorial delay may be so blameworthy …. as to justify the prohibition of the trial with nothing further."
In my judgment the period of delay requiring critical examination is that between 13 July 1999 and 18 December 2001. In the affidavit of Detective Inspector John McCann sworn on 15october 2002 this period is dealt with in paragraphs 11 to 16 inclusive. The evidence is, that notwithstanding forwarding the main investigation files to the Respondent's office on 13 July 1999, an additional copy of the file was forwarded on 16 August 1999. On 16 September the Respondent's office sent a letter enclosing Counsel's opinion on the matter to the Garda Bureau of Fraud Investigation and thereafter correspondence was entered into between counsel for the DPP, the Gardaí and the DPP during the months September 1999, January 2000 and March 2000. On 6 March 2000 the Respondent communicated a number of matters that Counsel considered required attention before charges could proceed against the Applicant. On March 29, 2000 a consultation was held between persons concerned with the prosecution. Counsel's advice of 30 June 2000 together with a draft indictment was forwarded to the Gardaí on 5 July 2000 by the professional officer in the Respondent's office. The Garda Bureau of Fraud Investigation was directed to proceed with the charges against the Applicant and indictment as advised by Counsel. On 10 August 2000 the office of the Chief State Solicitor and An Garda Síochána decided that charges would be preferred against the Applicant once the Book of Evidence was ready to be served on him. This was confirmed by Detective Inspector McCann by letter dated 29 November 2000 which enclosed draft charges to be preferred to be checked by the solicitor or professional officer.
In April and again in August 2001 Detective Inspector McCann addressed reminders to the office of the Chief State Solicitor. A copy of the intended charges was received from the office of the Chief State Solicitor under cover of a letter of 19 October 2001. Administrative difficulties then arose in preferring the charges. A new computerised system for generating charge sheets was in operation at the time. The introduction of his system resulted in some administrative difficulties, which Detective Inspector McCann averred delayed the preferring of the full amount of the charges directed by the Respondent.
On 18 December 2001 Detective Garda McGroder swore an information upon which a warrant was obtained for the Applicant's arrest. On that day the Applicant was arrested, charged and brought before the Dublin Metropolitan District Court on charges under section 297 of the Companies Act 1963, as amended, section 82 of the Larceny Act 1861, section 1 of the Falsification of Accounts Act 1875, section 10 of the Criminal Justice Act 1951 and section 20(iv) (a) of the Larceny Act 1916.
A slight different emphasis on detail on the foregoing narrative is to be found in the affidavit of Liam Mulholland, who in the period 2000-2001 was the solicitor in charge of the District Court section of the Chief State Solicitor's office. His evidence is that throughout the period August 2000 to October 2001, the Chief State Solicitor's Office, and in particular its Criminal Division, was understaffed and that the legal assistant to whom the file was assigned was under very considerable pressure of work at the time. During this period, staffing issues in the Chief State Solicitor's office were the subject of discussions between that office, the Department of Finance and trade union interests in the context of the intended transfer of responsibility for criminal prosecutions which took place at the end of 2001.
A period from 18 December 2002 to 8 July 2003 was taken up by the discovery process.
A considerable quantity of the evidence in this application is related to peripheral detail directed to the prejudice stated to be suffered by the Applicant. This entire matter arose from a newspaper article written by one Mark O'Connell; described as a journalist and a student of King Inns, it is not possible or necessary for me to determine Mr. O'Connell's motivation or by what rights or ethics (personal or institutional) he came to write the articles or his conduct in the events which brought the Applicant to the notice of the Gardaí. The Applicant complains that almost his every significant move during the period from December 1998 onwards was leaked to the media by the Gardaí. While this allegation is strenuously denied and while it seems probable to me that the actual Gardaí primarily concerned with the investigation did not leak information to the media, I am of opinion that as a matter of probability that someone in the Gardaí was on such intimate or familiar terms with another person or persons directly or indirectly as to supply or make available to the media information which would otherwise be unavailable. The information concerning the in camera application in the District Court could only have been known to a handful of people – yet the protection of the law was broken.
Concentrating on the period July 1999 to December 2001, I considered the case most in point to be Hannigan –v- Clifford [1990] ILRM 65. In that case there was a delay of 18 months between the arrest of the Applicants and their being charged with a number of offences. The Supreme Court rejected their attempt to stay the trial on the facts, but accepted that an avoidable delay in charging could hamper the conduct of an accused's defence and thus prejudice a fair trail. In the course of his judgment Walsh J. at p.68 of the report stated:
"…With regard to the interval between the forming of suspicion and a decision to charge everything depends upon the circumstances of the case. In my view, once a decision to charge a person has been taken then it should be effected without delay and the person brought to trial."
Walsh J. continued:
"…the circumstances of any given case may be such as to indicate that the charges were not laid until an inexcusable delay had occurred …. There is no evidence in the present case that any circumstances existed to indicate that the prosecution authorities were in a position to institute their prosecution before they did so or that the delay which occurred between the commission of the offences and the bringing of the charges against persons who were already suspected persons for 18 months was such as could lead to the conclusion that the right to a fair trial had been prejudiced."
(P.69 of the report)
That case can be contrasted with the instant case where the period is two and a half years between suspicion (and statements taken) and charge. While the State (O'Connell) –v- Fawsitt [1986] IR 362 was centred on an interval between charge and trial, Murphy J. at page 371 of the report stated:
"At the end of the day, the test will be whether all the relevant circumstances reasonable expedition was achieved. It is, however, material to bear in mind that in reaching that conclusion the Court has to recognise, as O'Higgins C.J. pointed out in delivering the decision of the Supreme Court in the Criminal (Jurisdiction) Bill 1975 [1977] IR 129 that the phrase "in due course of law", which itself imports that requirements of reasonable expedition requires a fair and just balance between the exercise of individual freedoms and the requirements of an ordered society."
In the instant case, there was only one person to be charged. The charges effectively arose out of a "sting" operation – in short a controlled set of circumstances, it was not a case of any great complexity, or of any great quantity of documents. While undoubtedly there had to be a properly prepared set of charges on foot of the checked evidence, in my judgment a period of two and a half years was excessive – it was a period in which perforce the Applicant had to establish a new way of life – given the nature of the charges, self-employment was a reasonable choice. Having done so in or about March 1999 and thereafter at some expense and having traded for a period of over two and a half years to be then faced with the prospect of a criminal trial seems harsh, but it was a never intimated to the Applicant that charges would not be preferred. This was and is not a case of the Applicant being uncooperative and seeking "to postpone the day of reckoning."
In the State (Brennan) –v- Connellan (unreported, the High Court 17 June 1986) it was held that:
"…pressure of work does not provide a justification for (such) delay and consequent infringement of constitutional rights."
(Page 14 of the typescript of the judgment)
In P.C. –v- DPP [1992] 2IR 25 (HC), 45 (SC) Keane. J. (as he then was) considering delay in the context of a prohibition on the continuance of a prosecution stated:
"The delay may be such that, depending on the nature of the charges, a trial should not be allowed to proceed, even through it has not been demonstrated that the capacity of the accused to defend himself or herself will be impaired."
In the instance case no delay is referable to the Applicant – it is solely that of the prosecuting authorities. While it would be unfair to characterise the investigations and delays in this case as was done by Geoghegan J. in P.P. –v- DPP [2000] 1IR 403 at 409/410, nevertheless in my judgment the delay in the instant case was unreasonable. The delay in the instant case may not produce the prejudice complained of but in my judgment is of such a length in the circumstance of the case as by its length to be unfair and unjust to the Applicant.
Both Cahalane –v- Judge Murphy [1994] 2IR 262 and Hogan –v- President of the Circuit Court [1994] 2IR 513 show that pre-charge delay which is not attributable to the fault of the accused is viewed very seriously in the Courts. Notwithstanding that Fisher –v- DPP (unreported, the Supreme Court 22 February 2001) dealt with an accused who was a minor at the time of certain alleged sexual offences, the post delay complained period was two and a half years (as in the instant case). In my judgment it is in point. Geoghegan J. delivering the judgment of the Court said that:
"The right of an accused to a trial with reasonable expedition is separate from and in addition to his right to a fair trial."
(Page 14)
He went on to hold that:
"…Neither actual or presumed prejudice is in all cases essential to stop a criminal prosecution".
(Page 15)
He concluded:
"I take the view that where there is culpable delay on the part of the State authorities, then having regard to all the circumstances of the case the delay itself may entitle the accused to an order preventing the trial irrespective of whether there is actual or presumed prejudice".
In my judgment this is a case in which the facts of the delay raise an inference that the risk of an unfair trial has been established as a reality. Only on the balance of probabilities am I satisfied that the accused will be in a position to establish on the facts the real risk of a particular prejudice which would render the trial unfair.
However, as Guihen v- DPP (unreported, the High Court, O'Leary J. 29 July 2004) makes clear, prejudice is a much more subtle concept than merely a witness dying or missing documents and that stress and anxiety can be a sufficient basis for staying a trial where there has been prosecutorial delay. To the extent that facts can be established by affidavit evidence, untested by cross-examination, reliance is placed on paragraph 16 of the Applicant's affidavit sworn on 25 April 2002, where he states:
"My life has moved on significantly over the last three years and I find that the resurrection after such a long period of these changes is extremely prejudicial to me. Since I resigned from the [charity] I have built up a new business….This business has had very large start-up costs and it involved significant outgoing and financial commitments. I held off doing this until I reasonably believed that the criminal proceedings were over."
Taken in conjunction with the "leaking to the media" which is averred to have added to the stress of the Applicant associated with the charges, make the prospect of a fair trial, notwithstanding any direction of a trial judge, difficult if not impossible of achievement.
Other Grounds.
I am not disposed to making the declarations sought under the Convention. The right of an accused person under Article 6(1) is to fair hearing – there is no evidence to sustain a case that if the accused went to trial that he would not get a fair hearing. Likewise I accept the submissions of the Respondent that duplicity of charges does not constitute grounds for restraining a criminal trial.
A claim for damages was permitted to be advanced at the leave stage. In my judgment the Applicant was given good reason to complain as to how the media came to be 'inspired' as to the times of his visitations to the Gardaí. However, this is not a case that is similar or comparable to Hanahoe –v- Hussey [1998] 3IR 69.
In coming to the view that an award of damages is inappropriate in this case, I have not lost sight of the fact that the alleged larceny was of monies of a charity or the contents of paragraph 24 of the affidavit of Detective Inspector McCann sworn on 15 November 2002.
Accordingly, I allow the relief to the extent indicated in this judgment.
THE JUDGMENT CONCLUDED
Approved Smyth J.