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Judgment Title: P. McC. v DPP
Neutral Citation:  IESC 9
Supreme Court Record Number: 138/08
High Court Record Number: 2007 848 JR
Date of Delivery: 24/03/2011
Court: Supreme Court
Composition of Court: Macken J., O'Donnell J., McGovern J.
Judgment by: Macken J.
Status of Judgment: Approved
Notes on Memo: Reasons stated today for decision given 27/01/10 to dismiss the appeal
THE SUPREME COURT
DIRECTOR OF PUBLIC PROSECUTIONS
Judgment delivered by Macken, J. on the 24th day of March, 2011
This is the appellant’s appeal from the refusal by the High Court (Hanna, J.) of his application, based on undue delay, to restrain his further prosecution before Kilkenny Circuit Criminal Court. The appellant faces a charge of sexual intercourse with a mentally impaired person, contrary to s.5(1) of the Criminal Law (Sexual Offences) Act 1993. The offence was alleged to have occurred on 1st July, 2001. On the 21st July, 2010 this Court, at the conclusion of the hearing, announced that the appeal was not successful. This judgment sets out the reasons therefor.
The Notice of Appeal
The learned High Court judge erred in law:-
• in failing to find that the accumulated periods of delay, that is to say, a period of six years and three months between the commission of the offence and the second trial date should be treated as presumptively prejudicial, and in failing to consider the cumulative period of delay complained of;
• in failing to examine each period of delay separately, and in finding that the only period of excessive and culpable delay was the 14.5 months between the arrest and charging of the appellant;
Grounds 6, 7, 8 & 9
• in not finding that the failure of the respondent to disjoin the appellant’s trial from that of his co-accused lead to further excessive delay;
Grounds 9, 14 & 22
• in failing properly to balance the appellant’s right to an expeditious trial with the right of the community to have him prosecuted;
Grounds 15, 16, 17 & 18
• in failing, while carrying out the said balancing exercise, to have regard to the uncontroverted evidence of the serious anxiety suffered by the appellant and the effect of the delay on his family, personal and employment life;
• in finding that the stress and anxiety was not deposed to by the appellant but only by his solicitor;
• in appearing to suggest or require medical evidence of anxiety in the circumstances of the present case;
• in failing to have regard to the repeated statements in case law that it is not the quality of the stress and anxiety that is of relevance but rather the duration of such anxiety that a speedy trial is designed to protect against;
Grounds 33 & 34
The major ground advanced at the hearing before this Court, and on which the appellant contends the learned High Court judge erred, is one by which counsel on his behalf argues he is entitled to an order prohibiting of any further retrial, because two earlier trials have not led to his conviction, and when combined with the culpable inordinate delay which occurred, prohibition is essential to avoid a real and serious risk of an unfair trial.. Before considering the arguments raised, it is necessary to set out the sequence of relevant dates, which are as follows:
21st December, 2001: Order permitting respondent to retain appellant’s forensic samples.
16th September, 2002: Appellant re-arrested and formally charged.
4th November, 2002: Book of Evidence served. Case adjourned.
20th January, 2003: Appellant not present. Bench warrant issued.
3rd March, 2003: Appellant sent forward for trial. An indictment preferred.
11th March, 2003: Appellant remanded on bail.
15th July, 2003: Case adjourned at prosecution’s request. Unlikely to have been reached.
4th November, 2003: Case adjourned at request of prosecution to January and at request of defence to March sessions.
9th March, 2004: Case adjourned. Unlikely to have been reached.
13th July, 2004: Case adjourned at prosecution’s request. Co-accused taking judicial review proceedings.
5th October, 2004: Case adjourned at prosecution’s request, for same reason.
15th February, 2005: Case adjourned at prosecution’s request, for same reason.
21st June, 2005: Case adjourned at prosecution’s request. Sergeant not available.
27th October, 2005: “Revised” indictment sent to appellant. Co-accused included. Case adjourned.
1st November, 2005: Case adjourned at prosecution’s request.
25th January, 2006: Respondent applied to adjourn the trial and sought to revoke bail of co-accused.
22nd March, 2006: Trial (of both) commenced. Trial judge discharged the jury.
25th April, 2006: Case adjourned (essential witness of co-accused missing).
27th June, 2006: Case adjourned (essential witness of co-accused missing).
7th November, 2006: Case adjourned at prosecution’s request. Forensic witness not available.
23rd January, 2007: Case adjourned. Transcript not ready.
1st & 2nd May, 2007: Retrial (of both men) commenced. Trial judge discharged the jury, on 3rd May, 2007.
9th July, 2007: Leave to issue judicial review proceedings granted.
On behalf of the appellant, senior counsel Ms. Boyle, argues, in general, that the principles of law, which will be discussed further below, in particular the constitutional entitlement to a trial with expedition, combined with a necessary limit on the number of trials to which a party may be subjected, is designed to protect the interests of an accused. When these two principles are tested in the present case, the requirement that the continuing prosecution of the appellant be prohibited becomes compelling. On the issue of the overall delay between the commission of the alleged offence and the date of the first trial, being five years, and the date of the second trial, being more than six years, this was clearly excessive, counsel submits, and, as was found by the learned High Court judge, the reasons for the delay, apart from one excusable period, cannot be laid at the door of the appellant. On this ground alone the appellant is entitled to an order of prohibition. Even if the appellant were not so entitled, the additional factor of the serious anxiety and interference suffered by him in his personal life, which has continued for a period of seven years and through two criminal trials, if not also conclusive of itself, triggers the balancing test which should be resolved in his favour. In the further alternative, and relying on an opinion of Justice Stephens of the United States Supreme Court, there is a distinct and serious possibility that the appellant will be subjected to a further unfettered third trial, which similarly gives rise to an entitlement to prohibition
According to senior counsel Mr. Collins, for the respondent, the learned High Court judge was correct in holding that, while there had been excessive and culpable delay on the part of the prosecution, by reason of which the required balancing exercise was engaged, nevertheless, in applying the relevant case law, the learned judge made no error in law in not being satisfied, on the facts of this case, that the appellant had suffered such prejudice as would demonstrate a real and serious risk that he could not obtain a fair trial. The learned High Court judge was also not in error in finding that, following the approach adopted in the case law, in the absence of a completed trial on the charge, the right of the public to prosecute the crime had not yet been fully vindicated. Counsel also submits that, having considered and rejected the arguments advanced on behalf of the appellant by reference to provisions of the Convention, the learned High Court judge had correctly done so. In the foregoing circumstances, it is contended on behalf of the respondents that the legal principles governing proceedings of this nature were applied in a wholly unexceptional fashion.
Grounds 1 and 2
The respondent, on the other hand, submits that on a correct reading of Alfred Flowers v. The Queen, supra., although the Privy Council found the delay to be “presumptively prejudicial”, it nevertheless went on to consider three other factors, including: (a) the reason for the delay; (b) the defendant's assertion of his right; and (c) prejudice to the defendant. Having done so, the Privy Council refused the relief sought, finding that prejudice to the defendant arising from the lengthy delay had not been demonstrated. In any event, it is argued by the respondent that the legal principles applicable are those established within this jurisdiction. Those principles, it is contended, make it clear that the issues are to be considered on a case by case basis, and they include: (i) an assessment of the length of delay; (ii) the reason for the delay; (iii) the accused’s assertion of his rights; and (iv) prejudice to him. The learned High Court judge had applied all of these criteria to his assessment of the lapse of time and its consequences. There was, therefore, no basis upon which his finding can be or ought to be disturbed on appeal.
On the application of the appropriate principles by the learned High Court judge, my conclusion on this must be deferred to the end of an exposition of the several grounds of appeal raised and the legal bases for these, set out in the next sections of this judgment, which concern specific errors alleged in respect of discrete periods of time, and other matters leading to the finding by the learned High Court that culpable delay had occurred, and that the balancing test should be applied.
Grounds 3 to 5 and 10 to 12
Further, while certain periods of delay were based on “systemic delay”; that systemic delay had not been taken into account in weighing in the balance the rights of the parties, and should have been held against the respondent. The learned High Court judge placed some emphasis on this Court's decision in Devoy v Director of Public Prosecutions, supra., but that judgment only became available one or two days before the High Court hearing and concerns, inter alia, the fact that there had been no real attempt to identify what the acceptable delay norm ought to have been. Counsel argues that this is not a relevant factor in this case because, even allowing for delays in the court system, had the decision not been made by the respondent to try the appellant with another party, the trial of the appellant would have been ready to commence within two years of the return for trial date, a matter dealt with under the next grounds.
On these grounds the respondent replies as follows. The basis of four of the grounds relating to an alleged failure to examine each period of delay cannot stand, in light of the clear evidence in the High Court judgment of a consideration of the very facts referred to. The periods of time which may have been inadequately explained are insignificant in the overall period of delay complained of. There were good reasons for having the appellant and his co-accused tried together. The learned High Court judge found that there was a lapse of time which was excessive and culpable, and which necessitated a consideration of whether there was a real and serious risk of an unfair trial to the appellant, and the application of the balancing test. Counsel points to the fact that the appellant appears to contend, not that he will not receive a fair trial by reason of the delay involved, but rather that he cannot do so by reason of the risk of facing a third trial, where there were two prior aborted trials.
Grounds 6 to 9
Mr. Collins argues that the learned trial judge accepted there were sound reasons for having the appellant and the co-accused tried together, and these reasons, substantial and valid, were not controverted in evidence. Their existence prevents the appellant from successfully relying upon the judgment of O’Leary, J. in Guihen v. Director of Public Prosecutions  3 IR 23, where the respondent was criticised for not having adverted to the reasons why a joint trial of the various defendants was desirable. The common thread in Grounds 6 to 9, it is said, appears to be the alleged failure of the High Court judge to attach blame to the respondent for deciding to try the appellant and his co-accused together, having regard to the potential that decision had for delaying the appellant’s trial. The respondent argues that the appellant cites no authority in support of such a proposition. The evidence in the High Court was that the respondent had reviewed his decision to proceed by way of joint trials when it became apparent that some delay would arise from the co-accused’s judicial review proceedings. Finally, counsel points to the fact that the grounds upon which leave was granted to commence these proceedings did not challenge the legality of the respondent’s decision to seek to try the appellant and his co-accused together. Such a challenge would have amounted to a collateral attack upon the decisions of the several trial judges who refused applications for separate trials.
Conclusion on Grounds 3 – 5, 6 – 9 and 10 - 12
(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a trial with reasonable expedition.
(b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition.
(c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community’s entitlement to see crimes prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in P.M. v. Malone  2 I.R.560 and P.M. v. DPP  3 I.R.172 are demonstrated.”
The appellant is correct is saying that the learned trial judge did not enter into a separate detailed analysis of the various periods making up further delay, apart from the above specified period. He did, however, consider the reasons for those delays and their overall effect. This criticism on the part of the appellant does not, however, appear to have made any significant difference, because on any analysis of the factual matters giving rise to delay, and comparing the delay in question to that arising in Director of Public Prosecutions v. Byrne, supra., the delay in the present case, brought about in part by delay, specifically found by the learned High Court judge to be caused by the prosecution, and in part by reason of the two aborted trials and overcrowded court lists, not being the fault of the appellant, is not of such a length or nature as to constitute an automatic entitlement to prohibition on the basis of the principles laid down in that case. Nevertheless, the question to be considered was whether there was such significant blameworthy delay on the part of the prosecution of a lesser degree, as would trigger the balancing exercise envisaged by the case law, and he correctly found that it did.
Separate from the delay periods brought about by the above matters, there remains the further particular delay period complained of by the appellant arising from the failure on the part of the prosecution to disjoin the appellant’s trial from that of his co-accused, when that accused commenced judicial review proceedings, necessarily giving rise to further delay. Counsel on behalf of the respondent has pointed to the fact that this issue was considered by the respondent, as would be appropriate. The appellant, in turn, made several applications to Circuit Court judges for that separate trials. While the appellant was also fully entitled to do so, it is important to bear in mind that, although the respondent opposed those applications, the learned Circuit Court judges, on hearing the applications and the arguments of both parties, declined the direct separate trials. There is no evidence before this Court, and there appears to have been no evidence before the learned High Court judge, that any appeal was taken by the appellant from any of those decisions. I have to conclude that, in relation to such decisions, the learned Circuit Court judges were satisfied in law with the arguments on the part of the Director of Public Prosecutions that there were good grounds for resisting the applications, or were not persuaded by the arguments of the appellant that there should be such separate trials.
I have found that the learned trial judge made no error in his approach to the principles to be applied. As to the application of those principles in reaching his conclusion that there was excessive culpable delay in relation to the period specified, which brought into play the balancing test, he did not err in law on that ground either. Undoubtedly there was some delay, between February, 2004 and April, 2005, attributable to the fact that a co-accused brought judicial review proceedings. The learned High Court judge correctly found that it was not such, as to constitute serious, excessive or further delay, as would likely lead to a breach of the guarantee of an expeditious trial, even when considered together with the other delay periods, and could not lead to a consequent automatic order of prohibition. Nor did the learned trial judge, in failing to add all other periods of delay which occurred to the original excessive culpable period of delay which he found to exist, fall into error, by not considering that total period of delay complained of by the appellant to have been presumptively prejudicial in the sense in which that phrase was applied in Director of Public Prosecutions v. Byrne, supra. Not being in that category, the balancing test properly came into play.
Grounds 15 to 18
16. The learned trial judge erred in finding that the stress and anxiety was not deposed to by the applicant but only by his solicitor.
17. The learned trial judge erred in appearing to require medical evidence of anxiety in circumstances where the affidavit filed on behalf of the respondent contained a specific averment to the effect that it did not challenge any of the assertions made in the grounding affidavit sworn on the applicant’s instructions and on his behalf.
18. The learned trial judge erred in failing to have regard to the repeated assertions of this honourable court that it is not the quality of the stress and anxiety that is of relevance but rather, and particularly when a person is charged with a sexual offence, the duration of such anxiety that may infringe one of the interests of accused persons that a speedy trial is designed to protect.
Miss Boyle, on behalf of the appellant, points to the existence of a series of cases in which stress and anxiety have been considered in some detail, and argues that the appellant comes clearly within the ambit of the principles established with those cases. Further, she contends that the tenor of the High Court judgment wrongly appears to suggest that the affidavit sworn on the appellant’s behalf by his solicitor, was not adequate. Rather, it implicitly but erroneously, and contrary to the case law, appeared to require medical evidence to be furnished in support of the appellant’s complaint of the anxiety and stress he suffered. Counsel for the appellant relies on the principles enunciated in joined cases Cormack v. Director of Public Prosecutions & Others and Farrell v. Director of Public Prosecutions & Others  IESC 63, in the judgment of Kearns, J., on the issue of stress and anxiety, and, in particular, points out that, according to that case law, undue levels of stress and anxiety may be inferred as a matter of commonsense from the particular facts of the case, citing the following extract:
The respondent, on the other hand, argues that the learned trial judge’s analysis of the evidence was correct, and having regard to that analysis, there was no undue stress or anxiety arising by virtue of the excessive culpable delay found to exist in the present case. The evidential basis for the assertion that the appellant suffered stress and anxiety by reason of the charge pending against him consists, the respondent says, of an affidavit made by the appellant “late in the day”, affirming the truth of the content of his solicitor’s affidavit in that regard, and counsel notes that the evidence of a professional, to which his solicitor refers in her affidavit, was not before the High Court.
I am instructed by him that he was born on 7 May 1961 and was brought up by his grandmother; that as a result of speech and reading difficulties he was assigned a special teacher for two hours of every day at school; that he left school at 12 and began working in the building industry; and that for many summers he has worked with fun fairs. He instructs me that he was let go from one of his employments because word had gone around that “he had raped someone”; that he had to leave his mother’s home and go and stay with friends in other towns for eight months for the same reason; that he was let go by his last employer (building) due to the number of days he was taking off to attend court; that he is at present working where he can around the country sawing down trees; and that he had intended to go to England but cannot do so because the trial is still pending.
I am further instructed that he has four children and was previously married; that his relationship with his eldest daughter in particular has been affected by the continuing criminal proceedings; that approximately six months ago he had become engaged to be married to an English woman who however has recently broken off the engagement finding it hard to accept the fact that his trial is not yet over.
I am further instructed by the Applicant that he would be physically ill, sweating, shaking, vomiting and unable to eat when notified by me, approximately a fortnight before each listing, that his case was to appear in a list.
Should this honourable court grant the Applicant leave to seek judicial review then he will seek liberty to file a supplemental affidavit exhibiting the report of a professional in relation to these matters.”
In PM v Director of Public Prosecutions, supra., Kearns, J. stated:
I am not satisfied that on any of the arguments adduced before this Court by counsel for the appellant, in her very able submissions, both written and oral, on this issue, they are such as to persuade me that the learned High Court judge failed to have appropriate regard to the facts and matters surrounding the claimed stress and anxiety, or that there were matters which he failed to take into account. In the circumstances, it is not necessary to set out further extracts from the additional case law, which has been referred to in part above, as well as in the High Court judgment, and in the submissions of both parties to this Court.
Grounds 14 & 22
The respondent submits that such a contention is not readily understood, and that the appellant cites no authority to support what the respondent considers to be a novel assertion. The respondent submits that the fact that there may be two perpetrators of criminal offences does not, on its face, diminish the community’s interest in the prosecution of an offence allegedly committed by one of them, even if the other has been convicted of an identical, or similar, offence against the same person, and occurring on the same occasion.
Whatever steps may be taken to exclude prejudice, an accused who goes to a third trial is under an enormous handicap compared to one facing a first trial. … Repeated trials increase the possibility that even an innocent accused may be found guilty …”.
As was stated uncontroversially by Denham, J. in her judgment in D.S. v. Judges of the Cork Circuit Court and The Director of Public Prosecutions  4 IR 379:
The principles to be considered and applied, therefore, are those emanating from Irish case law, including PM v. Director of Public Prosecutions, supra., Devoy v. Director of Public Prosecutions, supra., D.S. v. Judges of the Cork Circuit Court and The Director of Public Prosecutions, supra., and others. These principles, on the facts of the present case, concern predominantly whether or not the appellant has established that it would be in breach of his constitutional right to a fair trial, or that it would in some way be otherwise unduly oppressive of him, having regard to stress and anxiety or to other relevant factors, to leave him open to the prospect of having to face a third trial, or to oblige him to undergo such a trial.
As to the facts surrounding this appeal, the first trial was aborted when the complainant, as the first witness, was interrupted in her evidence on the first day, and the second trial was halted when, because of a notation on certain photographs handed to the jury, the learned trial judge took the view it too should be aborted. In passing, it should be said that in the particular circumstances of that trial, this does not appear to have been absolutely necessary on the grounds stated. However, these conclusions proceed on the basis that both trials were properly aborted, within jurisdiction, well prior to the conclusion of the prosecution case. There is, as counsel accepts, no question that either trial was aborted for “prosecutorial misconduct”.
The learned High Court judge, in his judgment, correctly made a distinction, based on the existing case law, between those cases in which a trial may be prohibited where a trial has been completed, but for some reason, such as the failure to vindicate the right to a fair trial, a trial or trials have been declared unsatisfactory, and a case, such as this one, where a trial has never been completed because of some mishap during the course of the trial.
In his judgment the learned High Court judge approached the case on the basis of the existing Irish case law which he considered supported his finding that where a trial has not proceeded to its conclusion, there has been no vindication of the public’s right to prosecute, invoking in particular on the judgment of O’Neill, J., in the case of Michael McGrealy v. The Director of Public Prosecutions (Unreported, High Court, 28th November, 2007) in which the learned High Court judge stated:
The appellant has not established any grounds supportive of his contention that any future trial could not be guaranteed to be a fair trial by reason of the fact that it is a third trial. That conclusion is not altered by the fact that in the United States, in a dissenting opinion on this point, one of the members of the United States Supreme Court has taken a different view. There is ample case law in this jurisdiction to support the view that where a trial has not concluded in the sense that a jury has not been charged nor been required to make any verdict, a third trial is not, a priori, to be prohibited. While I do not rely on it for my decision in this case, I note in passing that in a recent judgment of this Court in AP v. Director of Public Prosecutions  IESC 2, a proposed fourth trial was not prohibited, on the mere basis that it was a fourth trial.
My conclusion that the learned trial judge did not err in law is not altered by the fact that there has also been excessive culpable delay, where, as here, the appellant has not established that the required balancing test should be determined in his favour. Whereas, it is undoubtedly the case that the public interest in prosecuting an accused does not always, or even, in general, automatically trump an accused’s entitlement to both a trial with expedition, and to a trial in due course of law, as is clear from the case law, and whereas courts must always properly protect or guard against any inherent dangers which might arise in the case of repeated trials, the intended prosecution of the appellant in the present case, even allowing for the fact that there has been culpable prosecutorial delay, and a lengthy period of time has since passed, does not constitute a breach of the appellant’s right to trial with expedition, or to a fair trial, merely because there were two earlier uncompleted trials. That is not to say but that in other, exceptional, circumstances, which do not arise in the present case, a successful argument might be made to the contrary. It is not necessary for this Court to speculate as to what circumstances might give rise to such a contrary view being accepted by the Court. I am satisfied, in the present case, that there are no grounds properly advanced, for concluding that an order of prohibition ought to have been granted by the learned High Court judge on this ground.
The Convention on Human Rights Ground
Counsel on behalf of the respondent does not demur from the obligations found in the provisions of the Convention, but points to the fact that the European Court of Human Rights has not, in any of the cases invoked, or in any cases which concern the obligation on a State to provide or guarantee a trial with expedition, directed prohibition of a trial. Insofar as the appellant relies on decisions of the European Court of Human Rights on this basis, the arguments must also be considered in light of the findings of this Court in TH v. Director of Public Prosecutions  3 IR 520, that the vindication of rights pursuant to Article 6 of the Convention does not necessarily require the making of an order prohibiting a further trial.
The obligation on Irish courts to consider the case law and rulings of the European Court of Human Rights is clearly set out in law. Under s.2 of the European Convention on Human Rights Act, 2003 Courts in this jurisdiction are obliged to interpret and apply statutory provisions and rules of law, insofar as possible, subject to the rules of law relating to such interpretation and application, in a manner compatible with the State’s obligations under the provisions of the Convention. Section 4(A) of the Act requires courts to take judicial notice of judgments of the European Court of Human Rights. This Court will, therefore, interpret provisions of national law concerning the right to a fair trial, for example, in light of the appropriate articles of the Convention, having regard to relevant case law, and will generally apply the interpretation of the Convention adopted by the Court of Human Rights, this principle being subject only to the proviso that any such interpretation must not be inconsistent with the Constitution.
It is not possible to glean from the jurisprudence of the Court of Human Rights that prohibition necessarily follows in any, or all, cases where there has been excessive blameworthy prosecutorial delay. I am unaware of any case in which the court has found that the balancing test, which is prescribed to be carried out within Irish jurisprudence, is an inappropriate, or unsatisfactory, mechanism by which courts in this jurisdiction evaluate the rights of the parties. Nor is it evident from the case law that, in the event there has been found to be excessive culpable delay, the Court is not entitled, at least as a general rule, in assessing the respective rights, to have regard also to the right of the public to have serious offences prosecuted to conclusion.
I am not persuaded that the learned High Court judge misdirected himself in relation to this aspect of the matter. If he did so, it is a question of pure law as to whether he applied the correct principles, or not, a matter which can be cured by this Court. On the basis of the jurisprudence of the European Court of Human Rights, I am not satisfied that this establishes that the only effective remedy to be applied, in circumstances such as those in the present case, is the remedy of prohibition.