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THE HIGH COURT
RECORD No 60 JR 1997
THE DIRECTOR OF PUBLIC PROSECUTIONS AND HIS HONOUR JUDGE PETER SMITHWICK
JUDGMENT of Mr . Justice William M. McKechnie delivered on the day 9th of March, 2004.
The Leave Order:
(A) That the first named respondent was guilty of oppression in insisting that the applicant be "put on his election", that is to say, to conduct a purported "arraignment on the summons" in the District Court, being a court other than the court of trial, to require the applicant, in response to questions to be put to him by the judge in the District Court, who would also advise the applicant of the following consequences of pleading guilty or not guilty, to decide, or "elect", whether he would plead guilty, with the consequence that the trial would be disposed of by way of summary jurisdiction in the District Court pursuant to s. 12(1) of the Criminal Law (Rape) Act, 1981, or, if he refused to plead guilty, then, with the consequences that he would be sent forward for trial on indictment before a judge and jury, that is to say, that there was oppression in that the "consent" of the first named respondent to summary jurisdiction under s. 12(1) of the Criminal Law (Rape) Act, 1981, was made conditional upon the applicant pleading guilty and that the first named respondent was giving his consent selectively for the purpose of or, alternatively, with the effect of, bringing pressure to bear on the applicant to plead guilty in violation of Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Rights.
(B) That there has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 5.1 and Article 6 of the European Convention on Human Rights and Article 38.1 and Article 40.3 of the Constitution.
(C) That there has been delay, which would make the further prosecution of the alleged offence otherwise than in accordance with law and contrary to Article 38.1 and Article 40.3 of the Constitution and Article 6 of the European Convention on Human Right: (the additional ground).
Subject, therefore, to any issue as to the scope of the grounds specified at B and C above, the applicant is not entitled in these proceedings to seek any relief consequent upon the District Court order of 3rd December, 1996 or the order of 22nd October, 1996 and likewise is not entitled to advance any argument on the issue of charge pre-delay.
General Background: Period No. 1 For Grounds (A) and (B)
The relevant events occurring within this first period can be summarised as follows:-
23rd Jun 1995: Date of alleged offence against the applicant.
14th Jul 1995: Date on which the victim made a formal complaint to the Gardaí, and furnished a statement in respect thereof.
8th Sept 1995: Date upon which the applicant is requested by the Gardaí to attend at a local Garda Station in relation to the said complaint.
9th Sept 1995: Mr. T.H. voluntarily attends at the local Garda Station and is later that day released without charge
7th Oct 1995: The applicant, following arrest, is detained pursuant to s. 4 of the Criminal Justice Act, 1984. On questioning, he denies the allegations as made, but at an identification parade is identified by the victim. He is released without charge.
26th Sept 1996: A summons issues charging the accused person that on 23rd June, 1995, he did, at a place specified, sexually assault one J.K., a male, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990.
27th Sept 1996: This summons is served by the Gardaí on Mr. T.H.'s mother at the family home.
22nd Oct 1996: On this date, being the return date on the summons, the case is adjourned to 29th October and the District Court orders the D.P.P. to furnish documents to the legal advisers acting on behalf of the accused.
(24th Oct 1996 -
30th Oct 1996): Mr. Denis O'Sullivan, solicitor for the applicant, seeks these documents from the said Gardaí.
29th Oct 1996: The case is further adjourned to 3rd December, 1996
7th Nov 1996: Superintendent P.J. Brennan, who is in overall charge of the Gardaí's involvement, encloses "copy of file as requested" by the said solicitor.
20th Nov 1996: Mr. O'Sullivan writes to Inspector Delaney who was also involved in the prosecution and makes what he describes as two preliminary points. He firstly seeks an explanation for the delay between 23rd June, 1995 and the issue of the summons on 26th September, 1996 and, secondly, seeks an explanation as to the basis upon which this trial was to proceed on indictment, when, in his view, the matters alleged are of a nature which ordinarily should be disposed of by way of summary trial.
3rd Dec 1996: On Mr. O'Sullivan's application, Judge MacGruairc of the District Court orders that the applicant's objection to jurisdiction should first be dealt with as a preliminary issue and, for that purpose, adjourned the case to 17th December, 1996, whereupon a date for such legal argument would be fixed.
10th Dec 1996: The case may or may not have been adjourned to this date from 3rd December, but, in any event, was next listed in the District Court for 17th December.
13th Dec 1996: Superintendent P.J. Brennan replies to Mr. O'Sullivan's letter dated 20th November, 1996 and indicates that "it is the intention of the prosecution to apply to the court on that date (the 17th) to have the matter adjourned to Court 1 on Thursday 19th December, 1996, for the purpose of having your client put on his election". He also said that the matters raised in the said letter of 20th November were matters for argument in court and that he would not further comment upon them.
17th Dec 1996: The D.P.P., in circumstances which are controversial, has the case adjourned to 19th December, presumably for the purposes of having the accused person "put on his election" as previously had been indicated in the Superintendent's letter of 13th December.
19th Dec 1996: The District Court does not put the applicant "on his election" and reinstates the priority of its order made on 3rd December, 1996. It fixes the 23rd January, 1997 as the date for argument on the preliminary issue.
23rd Jan 1997: The second named respondent hears legal argument from counsel on behalf of the accused person and from a representative of the state solicitor acting on behalf of the D.P.P. He rejects all the submissions so advanced on behalf of Mr. T.H.
In the replying affidavit sworn on 18th June, 1997, Superintendent Brennan concede, that it was not appropriate to suggest, as he had done in his letter dated 13th December, 1996, that the D.P.P. wished to have the accused person put on his election. He said that a certain amount of confusion arose on 17th December as to the precise basis upon which the case could proceed in the District Court. By this he meant whether it was s. 12(1) or s. 12(2) of the Criminal Law (Rape) Act, 1981, which could apply.
There was, it should be said, no attempt to put the applicant "on his election" and at no time whilst this matter remained in the District Court was he ever so put.
(a) the issue of delay in the initiation of the charge against the accused person;
(b) the issue of the D.P.P.'s consent under s. 12(1) of the Criminal Law (Rape) Act 1981 and under s. 12(2) of the same Act: the applicant alleging that the first named respondent was guilty of oppression in giving his consent to have the case summarily disposed of under subsection (2), but refusing to so do under subsection (1) of the said section;
(c) the issue of what occurred on 17th December, 1996: in that it was alleged that the actions of the D.P.P. were designed, perhaps deliberately, but without any reflection on the state solicitor, to frustrate the applicant's right to argue a question of jurisdiction, and finally,
(d) the issue of document delivery or document disclosure on the part of the D.P.P.
Having heard detailed and considerable argument on these points and having considered the many authorities quoted in respect thereof, the learned President of the District Court refused to accede to any of the submissions so made and accordingly ruled against Mr. T.H. on all of the points so advanced on his behalf.
Before dealing with the issues in this case, I would like to say that in respect of all matters canvassed by both the applicant and the respondents, I have had the benefit of most comprehensive and detailed written submissions, supported where appropriate with copies of all statutory and constitutional provisions, as well as the relevant case law: this not only from our domestic courts, but also from other systems of law, including England and the United States. In addition, the main points of the applicant's reply to the submissions advanced on behalf of the first named respondent, were also committed to writing. In total, the text alone of the submissions so prepared on behalf of Mr. T.H. ran to over 75 pages. It is important, irrespective of outcome, that I should immediately recognise the contribution which these submissions have made and should in respect thereof offer my gratitude to all counsel involved for their diligence, industry and commitment.
As part of this procedure, it is said that the D.P.P. was prepared to furnish his consent to a summary disposal under s. 12 (1) of the 1981 Act, but only upon condition that the said accused person would plead guilty. In putting forward this discriminatory basis, on which he would give, or withhold, his consent, he was acting selectively. These matters, as part of this process, constituted, in the submission of the applicant, oppression, in that the same were designed to bring pressure to bear on the accused to plead guilty and, as a result, violated Article 38.1 and Article 40.3 of the Constitution and also Article 6 of the European Convention on Human Rights.
In this case, it is claimed that following upon the improper suggestion made by the Superintendent in his aforesaid letter dated the 13th December, 1996, and given the matters which occurred in the District Court on the 17th and 19th December of that year and also on the 23rd January, 1997, the D.P.P. tried to compel the accused person to partake in what has been described as this "pernicious election as to plea" and also tried as part of this wholly improper procedure, to force an arraignment on him in the District Court.
Firstly, by reason of its inherent inducements and threats it brings wholly improper pressure to bear on an accused to plead "guilty" and secondly, because it is has no jurisdictional basis, in that it is equivalent to an "arraignment on a summons" in a court other than the court of trial, which is both unlawful and improper.
This, it is suggested, constitutes an improper threat, promise or inducement all of which are designed to coerce a defendant to plead guilty
"12 - (1) A Justice of the District Court shall have jurisdiction to try summarily a sexual offence or an offence to which section 11 relates if
(i) the justice is of opinion that the facts proved or alleged against a defendant charged with such an offence constitute a minor offence fit to be tried summarily
(ii) the Director of Public Prosecutions consents
(iii) the defendant (on being informed by the justice of his right to be tried by a jury) does not object to being tried summarily,
and, upon conviction under this subsection, the said defendant shall be liable to a fine not exceeding £1,000 or, at the discretion of the court, to imprisonment for a term not exceeding 12 months or to both such fine and such imprisonment.
(2) Section 13 of the Criminal Procedure Act, 1967 (which provides for the procedure where a person pleads guilty in the District Court to an indictable offence) shall apply in relation to an offence mentioned in subsection (1) and as if, in lieu of the penalties specified in subsection (3) of the said section 13, there were specified therein the penalties provided for by subsection (1) of this section and the reference in subsection (2) (a) of the said section 13 to the penalties provided for in subsection (3) of that section should be construed accordingly.
(3) Section 2 of the Criminal Justice Act, 1951 (which provides from the indictable offences which may be tried summarily with the consent of the accused) shall not apply to an offence to which section 10 relates."
22. As can be seen by virtue of subsection (2) of s. 12 of the 1981 Act, s. 13 of the Criminal Procedure Act 1967 becomes immediately relevant. Insofar as the section is material, it reads as follows:-
"13. – (1) …
(2) If at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the Court is satisfied that he understands the nature of the offence and the facts alleged, the Court may –
(a) with the consent of the Director of Public Prosecutions, deal with the offence summarily, in which case the accused shall be liable to the penalties provided for by subsection (3), or
(b) if the accused signs a plea of guilty, send him forward for sentence with that plea to a court to which, if had pleaded not guilty, he could lawfully have been sent forward for trial.
(4) (a) Where a person is sent forward for sentence under this section he may withdraw his written plea and plead not guilty to the charge.
(b) In that event the court shall enter a plea of not guilty which shall have the same operation and effect in all respects as an order of a Justice of the District Court sending the accused forward for trial to that court on that charge, and the Director of Public Prosecutions shall cause to be served on him any documents required to be supplied to an accused and not already served.
District Court hearings: 17th and 19th December 1996:
At para. 15 of the same affidavit, Superintendent Brennan recalls his recollection of those events:-
"15. On 17th December 1996, Mr. Horgan, barrister, appeared on behalf of the applicant. Submissions were made by Inspector Dillane in regard to the provisions of Criminal Law (Rape) Act 1981 and the Criminal Law (Rape) (Amendment) Act, 1990. Although there was some initial confusion regarding the matter, the Director of Public Prosecutions was not consenting to summary disposal of the matter pursuant to s. 12(1) of the Criminal Law (Rape) Act, 1981, as amended. Rather, the case was to be dealt with pursuant to s. 12(2) of that Act. As a consequence, the relevant statutory provisions were s. 12(2) of the Act of 1981 and s. 13 of the Criminal Procedure Act, 1967. This is set out at pages 69, 70 and 75 of the transcript of the hearing on the 17th December, 1996 before the second named respondent."
This reference to a transcript seems to be erroneous as no such document exists amongst the papers.
Disregarding, however, this problem for a moment, the case then came before Judge MacGruairc on 19th December who agreed that the preliminary issue as such, was to be determined and fixed the 23rd January for that purpose. On making this ruling, senior counsel for Mr. T.H. expressed himself totally satisfied that, by reason of this order, his client's rights, whether legal or constitutional, had been fully protected. Whatever had been intended had not succeeded. Given that nothing detrimental is alleged to have occurred to the applicant between the 17th and 19th of December, it is extremely difficult to see how any point, arising out of 17th December court hearing, could have travelled beyond the 19th December but travel it did.
In respect of the January, hearing there is a full transcript available. Dr. John White S.C., together with junior counsel and solicitor, appeared on behalf of the applicant. Mr. Edward O'Hanlon, solicitor, represented the D.P.P., as he had previously done. The hearing was presided over by the President of the District Court, the second named respondent.
District Court hearing 23rd January 1997
(a) the gross and inexcusable delay in the initiation of the proceedings after a formal complaint had been made to the Gardaí;
(b) the oppression exercised by the D.P.P. in bringing pressure to bear on his client to plead guilty;
(c) the attempt by the first named respondent, through his agents, to defeat Mr. T.H.'s constitutional rights to have the preliminary issue determined as ordered by the District Court; and finally;
(d) the failure of the D.P.P. to make full document disclosure.
As part of his argument on each of these issues, Dr. White S.C. referred to the relevant factual context in which such matters arose and supported his submissions by quoting extensively from the appropriate statutory provisions and also from relevant case law.
"THE PRESIDENT: Sorry, no, that, was the third point. Oh yes, the second point is that one in which he says that the Director of Public Prosecutions, in giving a decision as to whether or not he would consent to jurisdiction in this court, was being oppressive in saying that he would do so only on a plea of guilty and would not be prepared to do so on a plea of not guilty.
MR. O'HANLON: In answer to that, President, I would say that the charge is under the amended Criminal Law Rape Act of 1981, s. 12, that was amended by the Criminal Law Rape Amendment Act, 1990, by s. 16 and Dr. White has kindly given you a copy of the Garda Síochána guide and whilst I haven't read it I think he read out what was correct.
THE PRESIDENT: Well now first of all is it the case that the prosecution are prepared to accept a guilty plea in the District Court?
MR. O'HANLON: Oh yes, President, I have no difficulty about that, President I have no difficulty.
THE PRESIDENT: You are prepared to accept a plea of guilty in the District Court but if the accused is pleading not guilty you are not prepared. Is that the case?
MR. O'O'HANLON: No, President, I say that the first and fundamental situation is the court has to decide whether it's a summary offence or not under the amended section. It says there, subsection 1 of s. 12 of the Criminal Law Rape Amendment Act, 1990, "…"
Now I will pause here, President, because I say that was the issue before the court, before Judge Finn and before Judge MacGruairc, that the District Judge has to hear the allegations of fact, then decide. That is the fundamental principle on which he has jurisdiction. Otherwise he has no jurisdiction.
THE PRESIDENT: I do not think there can be any doubt about the next step – the accused has a right of election and the accused opts for trial by jury and that is an end to it.
MR. O'HANLON: That is an end to it but I say unless you hear the facts.
THE PRESIDENT: Of course, well I would consider the file which has been handed into me and/or anything else you want to say to me and if I hold that it is not a minor offence it must go forward for trial and that is the end of it.
MR. O'HANLON: And that is the end of it.
THE PRESIDENT: But let us say that if I hold that it is a minor matter fit to be tried summarily and if the accused indicates that he is prepared to elect for summary disposal we then come to the third person with power in this matter, that is the Director of Public Prosecutions.
MR. O'HANLON: Yes.
THE PRESIDENT: Now if both I and the accused should choose a method of summary trial, what is the attitude of the Director of Public Prosecutions to that? If he is prepared to accept?
MR. O'HANLON: Well, then the Director is prepared to consent.
THE PRESIDENT: The summary disposal?
MR. O'HANLON: The summary disposal.
THE PRESIDENT: Without any qualification?
MR. O'HANLON: Sorry on a plea of guilty.
THE PRESIDENT: Only on a plea of guilty. Now this is the point that Dr. White makes, that the D.P.P. is saying "I consent to summary disposal only on a plea of guilty and not on a plea of not guilty", that in doing that he is being oppressive.
MR. O'O'HANLON: Well, fortunately I have a case here and I gave a copy of it to my friend this morning. It is the Director of Public Prosecutions v. James Paul McDonnell and Paul Smith. It was delivered by Mr. Justice Frank Murphy on 13th of May 1994.
THE PRESIDENT: Because it would seem to be that in some statutes it is actually written in, in respect of some offences that the District Court can deal with it only on a plea of guilty so when that distinction is being made by statute is very difficult to see how that can be oppressive. At least it would not be open to me to hold that it was. I would have to presume a statute to be constitutional. I will read this judgment of Mr. Justice Murphy.
MR. O'HANLON: Now, if I could go to p. 2, President, there. Well first of all it was a charge.
THE PRESIDENT: Yes, this is a case where the Director was consenting to summary disposal on a plea of guilty and the defendant was not proposing a plea of guilty.
MR. O'HANLON: If I could read the last paragraph on p. 2 for the purpose of the note taker present.
THE PRESIDENT: Yes, that is a good point.
MR. O'HANLON: " ……
THE PRESIDENT: Yes.
MR. O'HANLON: …. (continuing the quote)
Now, I have no problem in the present case. I have instructions from the Director of Public Prosecutions to consent first of all on you being satisfied that it is a summary charge fit to be tried summarily and secondly of course that the accused consents.
THE PRESIDENT: Yes.
MR. O'HANLON: But that is if there is a plea of guilty forthcoming. Now Murphy J, goes on at the top of p. 3 "indeed, it did seem at one stage from the evidence that it might have been inferred that this statement was made as an inducement to persuade the respondent to enter a plea of guilty. I am quite satisfied on the evidence that this was not the case." Now, in the particular circumstances of the case I am meeting today, President, there is no question of the Director trying to induce. It's a fact of life.
THE PRESIDENT: Yes.
MR. O'HANLON: The court cannot deal with the matter unless you decide it's a summary offence, unless the accused consents and the Director then says "I will if he pleads guilty".
Now, if I could pause there and I will refer you to s. 2 of the amended Criminal Law Rape Act, 1981, again.
THE PRESIDENT: Section ?
DR. WHITE: President I am handing in a copy I am going to give you the guide.
THE PRESIDENT: I have one.
DR. WHITE: But that is composite.
THE PRESIDENT: Thank you very much indeed Dr. White that is very good, yes. (Document handed to the court).
MR. O'HANLON: I submit that the question of consent to summary trial pursuant to s. 12(1) does not arise unless these matters are met and I will say that essentially s. 12(1) therefore does not apply to the case irrespective of whether you are of the view that it is minor or not and even if the defendant does not object. So I say in the present circumstances then the matter falls to be dealt with within the corners of s. 12(2).
THE PRESIDENT: Yes.
MR. O'HANLON: Of that Act, as otherwise I say that the matter becomes an indictable offence not being dealt with summarily and s. 12(2) I think I have again a photostated copy. I am sorry I do not have the statute with me but I think Dr. White will accept I have a copy of the Criminal Procedure Act, 1967 I will hand in. (Document handed into court). And s. 13 I think deals with, it says "this section applies to all indictable offences except the following – and it goes on. Now its subsection (2) is the relevant one, President. "If it at any time the District Court ascertains that a person charged with an offence to which this section applies wishes to plead guilty and the court is satisfied etc." Now, I say that is where s. 12(2) comes in and s. 13 of the Act of 1967.
THE PRESIDENT: Yes
MR. O'HANLON: So that s. 13 again provides that "the District Judge may, if he ascertains that an accused person wishes to plead guilty, with the consent of the Director deal with the offence summarily." Now, I say that would not be deemed to be summary trial of the offence but rather that you are empowered to deal with the matter by applying the penalties provided for in the 1981 Act and I say if the matter is not dealt with in that way then either the accused should be sent forward for trial either – that goes into preliminary examination.
THE PRESIDENT: Yes.
MR. O'HANLON: That situation then. We have not even reached that stage yet.
THE PRESIDENT: Yes.
MR. O'HANLON: So what I say is there is no question of coercion. It's a fact of life. In 99.9% cases in the criminal sessions in the District Court the accused is always asked does he consent or if he is pleading guilty or not guilty. It is not a question of coercion. It's a fact of life. It's a practice that has been going on for years in the District Court. If Dr. White is saying because of that – and I say there is no ambiguity – there is no attempt to coerce the accused. The Director has an input into the case that if he does not consent then even if your good self consents and if the accused consents it goes to another forum. I have no difficulty about that, at present."
Further on in the transcript, at p. 85, this matter is referred to. The following is the exchange between Mr. O'Hanlon and the President.
"MR. O'HANLON: President, could I just clarify two matters. One is I may not have made myself clear as regards s. 13 of the Criminal Procedure Act, 1967.
THE PRESIDENT: That deals with ?
MR. O'HANLON: What I meant to convey was that it is clear to me and I am instructed that s. 12(1) does not apply in the present circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have the matter dealt with summarily on a plea of guilty. Now I didn't make that clear I think.
THE PRESIDENT: No, I quite understand.
MR. O'HANLON: You follow.
THE PRESIDENT: I do follow."
From even a cursory reading of the subsection, it is abundantly evident that there are no further preconditions for its use. In particular, there is no mention of any requirement on an accused person to plead guilty and by no rule of statutory interpretation could such a condition be inferred or implied. Indeed, given the absence of such a requirement, and given the obviousness of the judge having to adjudicate on the question of guilt or innocence, it is quite evident in my view that the subsection envisages its operation on the premise that a defendant asserts his innocence and does not in fact plead guilty. In my humble opinion, there cannot be any other construction placed upon this subsection.
Needless to say, therefore, if any additional or varied requirement, not specified in s. 12(1) or s. 12(2) of the 1981 Act, was insisted upon, for the operation of either subsection, then any resulting exercise in jurisdiction would unquestionably be ultra vires the relevant subsection.
Given the difference of both regimes, there is nothing inconsistent, much less incongruous, in the D.P.P. taking a positive view with regard to one sub-section and a negative view with regard to the other sub-section.
" … I would be somewhat reluctant to consent to summary disposal of this charge and would certainly do so only on a plea of guilty. The Gardaí might be asked for their views as to summary disposal."
Apart from this direction to the state solicitor, I cannot find any later instruction which either alters, varies or rescinds this view. A copy of this letter was sent to Mayfield Garda Station on the 4th June, 1996. Therefore, at the District Court hearings in December, 1996 and January, 1997, both the Gardaí and the state solicitor must have known that the D.P.P. would consent to summary disposal, only if the accused person should plead guilty. There is no suggestion whatsoever on the evidence that consent would be forthcoming for a disposal in the District Court on the basis of the defendant pleading not guilty.
In approaching it thus, it seems to me that, at least initially, some confusion could be said to have existed by reason of the language used by Mr. O'Hanlon. In the beginning of his submission, he told the President, in an answer to a direct question, that he had no difficulty in accepting a guilty plea in the District Court, which though not stated presumably could only mean that on his instructions the D.P.P. would consent to a summary disposal on a plea of guilty. Quite logically, the learned President then suggested, by way of further enquiry, that in the absence of a plea the D.P.P.'s position was that he would not accept the District Court. In answer, having said "No", Mr. O'Hanlon, solicitor, then suggested that the first and fundamental enquiry of the court was to decide whether or not the charge constituted a summary offence. He claimed that if there was a positive finding in this regard, jurisdiction existed but otherwise no. This tends to show that his mind was referring to s. 12(1) of the 1981 Act. Exchanges continued between himself and the learned President with the latter again enquiring as to what the position of the D.P.P. was, if both he and the accused agreed to summary disposal. The eventual answer was that the D.P.P. would consent but "on a plea of guilty" (see page 25). That answer is more appropriate to the invocation of s. 12(2) (effectively meaning s. 13 of the Criminal Procedure Act, 1967) rather than s. 12(1) of the 1981 Act. So, these exchanges could legitimately have given rise to confusion.
"What I meant to convey is that it is clear to me and I am instructed that s. 12(1) does not apply in the present circumstances and in fairness to the accused it would be the duty of the prosecutor to point out at s. 13 that they could have the matter dealt with summarily on a plea of guilty. Now I didn't make that clear I think."
To which the President replied:
"No, I quite understand."
This view is entirely consistent with the transcript of the relevant submissions and also is entirely in accordance with the only instructions which the state solicitor had from the D.P.P. I therefore believe that the premise upon which the applicant mounts this argument is incorrect and that factually there are no grounds in existence which could possibly establish the basic framework, which would be necessary in order to justify the acceptance of the legal submissions made thereon.
Notwithstanding this, it is still submitted that the D.P.P.'s attempts, being those alleged by the applicant, had "irrevocably poisoned the criminal justice process in the instant prosecution" and thus the furtherance of that prosecution should be prohibited. The People (Director of Public Prosecutions) v. Healy  2 I.R. 73 and The People (Director of Public Prosecutions) v. Kenny  2 I.R. 110 were quoted in this regard. In Healy, the issue was the right of a detained person to have immediate access to his solicitor, who, following request was present at the Garda Station where and whilst the accused was being interrogated and at a time prior to the completion of an inculpatory statement. Having found that the refusal or failure of the Gardaí to permit immediate access was conscious and deliberate, the Supreme Court concluded that these acts were unconstitutional and, as a result, agreed that the incriminating statement should be excluded.
In Kenny, the Supreme Court considered several decisions of both the Court of Criminal Appeal and of the Supreme Court itself, when deciding how evidence obtained in breach of one's constitutional rights should be dealt with. Having rejected the majority view in The People v. Shaw  I.R. 1, on this particular point, Finlay C.J., himself giving a majority judgment, at p. 134 said:
"I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its ('the court's) discretion."
The court then excluded evidence which had been obtained as a result of forcible entry.
"Because our system of law is accusatorial and not inquisitorial and because (as had been stated in a number of decisions by this Court) our Constitution postulates the observance of basic or fundamental fairness of procedures, the judge presiding at a criminal trial should be astute to see that, although a statement may be technically voluntary, it should nevertheless be excluded, if by reason of the manner of or the circumstances in which it was obtained, it falls below the required standard of fairness. The reason for exclusion here is not so much the risk of an erroneous conviction as a recognition that the minimum of essential standard must be observed in the administration of justice."
Having dealt with those matters, the Supreme Court then had to consider a finding by the trial judge, that as it was impossible on the evidence to be satisfied that the incriminating statement had been completed prior to the time when the solicitor should have gained access, was it a correct conclusion in law to exclude that statement from the courts consideration. Finlay C.J. at p. 81 of the report, identified in these terms the vital issue as he saw it "… if a breach of the right of access to a solicitor has occurred as a result of a conscious and deliberate act of a member of the Gardá Síochana, is whether there is a causative link between that breach and the obtaining of an admission". It, therefore, can immediately be seen that the court was dealing with an incriminating admission which was made following upon, and consequent on, a breach of the applicant's constitutional rights.
Kenny, when dealing with a choice of applying a deterrent test or an absolute protection test where evidence had been obtained in breach of constitutional rights, the court revisited some of the points touched upon in Healy and also reviewed the judgment of the majority of the court in The People v. Shaw  I.R. 1 From a relief point of view, however, the crucial issue was whether or not evidence obtained in breach of such rights should be excluded.
In Shaw a similar problem was before the court, which was whether in the context of a breach of constitutional rights a statement should be allowed in as part of the body of evidence or should be excluded.
As can therefore be seen, these three cases are fundamentally different to the circumstances existing in this action. Each judgment had a factual context of an unconstitutional act and a resulting detriment to the detained or accused person. No such basis exists in the case of Mr. T.H. As pointed out previously, he was never put on his election and he never made a statement or otherwise incriminated himself. Therefore, I cannot see how these cases are of assistance.
It can, I think, evidently be seen that all of the individuals in the cases above mentioned had suffered adversely as a result of the acts, actions or omissions complained of and thus their resulting cases are in my view wholly distinguishable from the situation of Mr. H.
Walsh J., in his judgment in The People (At the Suit of the Attorney General) v. Gerald O'Brien and Patrick O'Brien  I.R. 142, touched upon this topic when at p. 168-169 he said:-
"In my view it would properly be within the province of a court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial. If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle."
Lest, it should be thought, that by dealing with this submission, I am in any way accepting, even by inference, that either the superintendent, in writing his letter of the 13th December, 1996 or the D.P.P. or Mr. O'Hanlon when making submissions to the District Court, have acted otherwise than in an entirely correct manner, I wish to categorically state that at all times, these individuals, have discharged their duties and responsibilities to a proper and professional standard. I therefore reject this part of the applicant's submission.
If this be correct, it means that prior to any such indication, a District Judge cannot enquire of an accused person as to what his intentions might be and likewise the D.P.P. cannot indicate a favourable view on the question of consent to a disposal under s. 12(2) of the 1981 Act. If the D.P.P. should so indicate, as he did in this case, the applicant alleges that this amounts to the misconduct, of the same type though under a different heading, which occurred in relation to his attempted use of s. 12(1) of the 1981 Act. He points to Mr. O'Hanlon's submission that in 99.9% of cases "this is how it is done in the District Court", as confirmation of this.
The accused person, of course, can also so do.
In addition, I see no reason for reading the section in the narrow and confined way as is suggested by the applicant. I see nothing objectionable, in principal, in permitting the D.P.P. to indicate his view. If, however, the occasion should be used for any unlawful or illegal purpose, such as the making of an inducement or the issuing of a threat or the indication of oppression, then the available law and the District Court are well capable of scrutinising such circumstances and of dealing with those if the same should arise. I believe s. 12(2) of the 1981 Act is a valuable provision which is entirely consistent with constitutional justice and which serves that course well, very frequently to the distinct advantage of an accused person.
I do not believe that I should read the decision of The Director of Public Prosecutions v. McDonnell and Smyth, High Court, Unreported, 13th May 1994 as being in anyway in conflict with this view. The facts of that case are not entirely evident. It would appear that the District judge decided that the case before him could not properly be disposed of summarily. He felt that he had no jurisdiction, but instead of transferring the case to the Circuit Court, he dismissed the entire prosecution. Murphy J. in the High Court quashed that order and, in the process, referred to concerns which the District judge had, that the offer by the D.P.P. to consent under s. 13 might have appeared as an inducement to the accused person to plead guilty. On the facts Murphy J. was quite satisfied that this was not so.
In order, however, to allay any fears in this respect, I would say that any indication by the D.P.P. of his views should be expressed carefully so as to avoid even the remotest implication of the same amounting to, whether directly or indirectly, actually or potentially, an inducement, threat or other illegality. I would not, however, otherwise interfere with its operations. See s. 10 of the Criminal Justice Act 1999.
On the facts as I find them, I am totally satisfied that the actions of Mr. O'Hanlon, when representing the D.P.P., were fully genuine and entirely bona fide.
For the above reasons, I reject all of the submissions made by the applicant on this first issue.
As appears from the first paragraph of this judgment, the second ground upon which the applicant was granted leave, by order of Morris P. on the 17th February, 1997 was:
"That there has been a pattern of abuse of process and fundamental unfairness amounting to oppression and a denial of the right to constitutional justice which is in violation of Article 5.1 and Article 6 of the European Convention on Human Rights and Article 38.1 and Article 40.3 of the Constitution".
Under this heading the applicant now proposes to rely upon the following matters, both individually and cumulatively, to support the submission that he is entitled to an order of prohibition under this heading. These matters are as follows:
(i) The applicant's arrest, detention and interrogation (purportedly under s. 4 of the Criminal Justice Act 1984) was wholly unlawful
(ii) the comprehensive and compelling breach of the mandatory statutory duty imposed by s. 4(5) of the Criminal Justice Act, 1984;
(iii) the service on the applicant's mother of the summons for sexual assault which was a wholly oppressive abuse of the process of the courts;
(iv) the prejudicial non-disclosure of documents in disobedience of an order of the District Court;
(v) the oppression in withholding consent to summary disposal unless the applicant would plead "guilty" in the District Court; and
(vi) the attempt to defeat the order providing for preliminary legal argument and to coerce the applicant into an admittedly unlawful "election as to plea" on an admittedly unlawful arraignment in advance of that argument was wholly unlawful.
He was refused leave on the other three. I therefore do not believe that it would be correct or proper, even if I was minded to so do, which I am not, to allow the applicant to argue, albeit under a different heading, any of these grounds. To do so, in effect, would mean the reinstatement of matters by this Court, when previously the same Court had declined to entertain them. Given the absence of any appeal against that refusal, I will decline to further consider them.
It is submitted that the applicant's arrest and subsequent detention 7th October, 1995, under s.4 of the Criminal Justice Act, 1984, was unlawful in that:-
(a) there is no power to arrest and detain, for interrogation purposes, at common law;
(b) equally so, there is no such power under s. 4 of the 1984 Act;
(c) the member of An Garda Síochána who arrested him had no grounds to do so;
(d) the member of An Garda Síochána who detained him had no reasonable grounds for believing that his detention was necessary; and,
(e) having voluntarily attended at the Garda station on the 9th September, 1995, there was no basis upon which he could, or should, have been subsequently arrested.
What was done, it is claimed, was calculated to exert psychological pressure on the applicant and was designed to circumvent the relevant requirements of the 1981 Act.
The case of Miranda v. Arizona  384 US 436 was cited in support.
Section 4(2) of the Act reads "Where a member of the Garda Síochána arrests without warrant a person whom he, with reasonable cause, suspects of having committed an offence to which this section applies, that person may be taken to and detained in a Garda Síochána station for such period as is authorised by this section if the member of the Garda Síochána in charge of the station to which he is taken on arrest has at the time of that person's arrival at the station reasonable grounds for believing that his detention is necessary for the proper investigation of the offence."
In this case, having being requested to so do, the applicant did attend voluntarily at McCurtain Street Garda Station on 9th September, 1995, but this fact of itself could not possibly operate as a bar or prohibition on the Gardaí making subsequent use of s. 4, if circumstances otherwise justified it.
The applicant in this part of his submission claims that by reason of what occurred in the afternoon of his detention, which took place on 7th October, 1995, the Gardaí were in breach of s. 4(5) of the Criminal Justice Act, 1984 and also in breach of the judge's rules.
Section 4(5) of that Act reads as follows:-
"(5). Where a member of the Garda Síochána has enough evidence to prefer a charge for an offence against the person detained in a Garda Síochána station pursuant to this section, he shall without delay charge that person or cause him to be charged unless that person is, with reasonable cause, suspected of another offence to which this section applies and the member of the Garda Síochána then in charge of the station has reasonable grounds for believing that the continuance of his detention pursuant to this section is necessary for the proper investigation of that offence". Though this provision was repealed and replaced by s. 2 of the Criminal Justice (Miscellaneous Provisions) Act, 1997, it still remains applicable given the dates involved in this case.
In my view, s. 4(5) of the 1984 Act cannot be read in the manner suggested by the applicant. It seems to me that the whole intention and aim of the subsection was to ensure that a person would not be detained in custody any longer than what was necessary for the proper investigation of the offences. Once that justification no longer existed, then the person, unless he was suspected of another offence, had to be charged or released. In applying the subsection to the facts of this case I have come to the following conclusions:-
(a) that it is for the Gardaí in question to make a fair assessment of the evidence when deciding whether or not to prefer charges against a detained person and once the assessment made is fair, then a court should not on subsequent examination, fault that decision even if it or indeed other members of the Gardaí would come to a different conclusion: see Keating v. Governor of Mountjoy Prison  1 I.R. 61 at 67,
(b) that the Gardaí in question can at any time release a detained person from the provisions of s. 4(5),
(c) that such a release can take place without charge in circumstances where the relevant Gardaí reasonably and bona fide wishes to obtain the instructions of the Director of Public Prosecutions and
(d) any later or subsequent charging of that person by the D.P.P. is not invalid merely because the accused person might have been charged at an earlier date by the relevant Garda.
See D.P.P. v. O'Toole & Hickey, Court of Criminal Appeal, 20th July 1990 and also the High Court decision in McCormack v. Director of Public Prosecutions, High Court, 20th March 1997.
In this case, given the nature of any proposed charge, and given the fact that the investigation was a joint one, it was not in my view in any way a breach of s. 4(5) of the 1984 Act for the applicant to have been released from s. 4 detention on the 7th October, 1995 without charge and subsequently on the instructions of the D.P.P. to have a summons issued against him.
The summons which issued, charging the accused person with the offence of sexual assault, was served on the applicant's mother at the family home on 27th September, 1996. It is submitted on his behalf that this amounted to misconduct which was "repugnant to every concept of decency". It was suggested that this was to bring psychological pressure to bear on the applicant and that the same was fundamentally unfair, oppressive and in violation of constitutional justice. The passage from The People v. Shaw  I.R. 1 at 61, which it is claimed, was endorsed by the Supreme Court in The People (D.P.P.) v. Healy  2 I.R. 73 at pp. 80 – 81, was cited in support. Superintendent Brennan, in the substantive replying affidavit, states that the summons was served on a person who was over the age of 16, at the plaintiff's residence and denies any deliberate intention to serve the applicant's mother or indeed any other particular person (presumably with the exception of the applicant), in the house. This method of service it is claimed is provided for by law.
47 (2)(a) A summons may be served on a defendant to whom it is directed by delivering to him a copy thereof issued for service or by leaving such copy for him at his last or most usual place of abode or at his office, shop, factory, home or place of business with the husband or wife of the defendant or with a child or other relative (residing with the defendant) of the defendant himself or of his wife or her husband as the case may be, or with any agent, clerk or servant of the defendant, or with the person in charge of the house or premises wherein the defendant usually resides, provided that any person (other than the defendant himself) with whom such copy is left for the defendant is not under sixteen years of age and is not the complainant.
The mode of service of the summons in this case would appear to fall within (2)(a) of Rule 47 and consequently would appear to be authorised by that rule. It was therefore served lawfully in accordance with these provisions. However, as with all rules of court, their existence and their operation must be subject to constitutional and natural justice. Whilst I believe that service in this case did not violate either of those principles, I would be of the view that in general it would be more preferable to serve this type of summons personally on an accused person. Particularly where there is no difficulty in effecting such personal service. In a matter such as the present, which is most serious and also for the accused person most sensitive, I cannot but believe that, where there is no difficulty in effecting personal service, then that type of service should be aimed for and achieved. However, since I don't believe that there was any improper motive, purpose or intention behind the manner of service in this case and since the same was served in accordance with Rule 47of the District Court Rules, as then applied, I cannot agree that the service effected was in breach of the applicant's rights.
58. Matter No. (iv)
The substance of this point is an allegation that the applicant has been prejudiced by an alleged non-disclosure of documents on the part of the Director of Public Prosecutions, in disobedience of an order of the District Court made on 22nd October, 1996. Precisely what documents are being referred to, was not identified in either the statement grounding the application or in the supporting affidavit of the applicant. However, in his submissions it became evident that the focus of this attack was a memorandum of an interview which the Gardaí had with one A.B., who was also the subject matter of the investigation. That memorandum was numbered "10" on the relevant Gardaí file. The applicant alleges that Superintendent Brennan wrote an untruth when, in his letter dated 7th November, 1996, he enclosed to Mr. O'Sullivan what he described as "copy file as requested". This file, to his knowledge did not include this document. Moreover, given that the Gardaí/D.P.P. were fully aware that this document was omitted, they breached, by deliberate disobedience, the provisions of the said District Court Order.
Superintendent Brennan deals with this matter at para. 25 of his affidavit. In essence, he points out that the relevant file was a joint file involving the applicant and Mr. A.B., and that Sergeant Brosnan, who dealt with this issue of disclosure on his behalf extracted from the combined file all documents having any reference directly or indirectly to Mr. T.H.. He stated that Sergeant Brosnan, who used this criteria, took the view that the memorandum of interview with A.B. was not relevant and hence was not enclosed as part of this file.
This explanation is utterly rejected by and on behalf of the applicant.
The point, which the applicant seeks to argue under this heading, is precisely the same point as that which is raised in Issue No. 1. This is that the D.P.P. acted oppressively, unlawfully and unconstitutionally in the manner in which he sought to give and withhold his consent under s. 12 of the 1981 Act in the manner in which he sought to operate s. 12(1) of that Act by insisting upon a plea of guilty from the accused person and, finally, in the manner in which he brought pressure to bear on the same person to so plead. All of these matters are dealt with under that issue in an earlier part of this judgment, and accordingly I would respectfully adopt the conclusions previously reached for the purposes of answering the second ventilation of this said point.
This is the last matter which falls to be dealt with under the second ground upon which leave was obtained. It refers, once again, to the order of the District Court made on 3rd December, 1996, whereby the court agreed to have a preliminary hearing on certain matters. It is claimed that the actions of the Gardaí, through the Superintendent's letter of 13th December and the submissions made to the District Court on 17th December, were all designed to defeat the applicant's constitutional right to have this preliminary argument heard, and secondly, were also part of a campaign to force the applicant onto his "election as to plea." Once again these matters were fully debated and explored before the learned President, who rejected all of the submissions so advanced in his ruling of 23rd January, 1997. Once again ground No. 3 of the original statement grounding the judicial review application sought leave on these two points, namely, the attempt made by the D.P.P. to avoid the hearing which ultimately occurred on 23rd January, 1997, and secondly, his attempts, allegedly supported by the Gardaí, to force the applicant into an unlawful arraignment. The former President of the High Court did not grant leave on this ground and, on a point of principle, I could not entertain the re-opening of this under a different heading. In any event, it is, in substance, covered by the decision reached in an earlier part of this judgment.
Before I commence to deal with the third issue, it might be opportune to mention that the Director of Public Prosecutions, as well as making submissions on each of the above individual matters, also made two points of general application on this ground number two. Firstly, he says that many of the matters raised are more properly matters for a court of trial, and secondly, he invites the court to treat this ground with a not inconsiderable suspicion as in his view it bears a remarkable similarity in style presentation and content to certain submissions made in another case, namely Barry v. Director of Public Prosecutions & Others, High Court, 14th February 2003. With regard to the last mentioned point, one could understand how the D.P.P. might have reached such a view, but at the same time it is important to recognise the duties which legal advisors of an accused person have in discharging their responsibilities to him. On the first point raised I entirely share the submission of Mr. McDonagh S.C. I have no doubt whatsoever that several of the matters above mentioned are matters properly to be dealt with in a court of trial. Certainly, for my own part, before the views of the presiding judge are known, I would be very reluctant to permit High Court judicial proceedings to be taken in respect thereof.
Ground No. 3
17th Feb 1997: Order granting leave to seek judicial review
10th Mar 1997: Time extended for the filing of a statement of opposition
7th Apr 1997: Further extension of time for the filing of the said statement
14th Apr 1997: Further extension of time for the filing of the said statement
28th Apr 1997: Further extension of time for the filing of the said statement
12th May 1997: Further extension of time sought by the D.P.P. so as to enable him to apply to Morris J. to limit the scope of the order granting leave
29th May 1997: Morris J. refuses to interfere with the said leave order
9th Jun 1997: Further extension of time for the filing of the said statement of opposition
18th Jun 1997: Statement of opposition filed by the first named respondent
7th July, 1997 A general order for discovery made directing the D.P.P. to file his affidavit of documents within seven days from the date thereof.
4th Dec 1997: Superintendent P.J. Brennan swears the affidavit of discovery on behalf of the D.P.P.
9th Dec 1997: The applicant makes complaints about the alleged inadequacy of discovery and is directed by Geoghegan J. to issue a notice of motion in respect thereof.
3rd Feb 1998: The said notice of motion issues wherein two reliefs are sought, the first being an order that the D.P.P. make discovery in proper form and the second an order directing the said D.P.P. to produce for inspection documents in the second part of the first schedule in respect of which a claim for privilege is made.
19th Feb 1998: The replying affidavit of Superintendent P.J. Brennan is sworn.
23rd Feb 1998: The motion is adjourned to permit the filing of a further affidavit, in response, by and on behalf of the applicant.
27th Feb 1998: Affidavit in reply of Mr. Denis O'Sullivan, solicitor, is sworn.
2nd Mar 1998: Adjourned to 9th Mar 1998
3rd Mar 1998: Application not reached in the court list: adjourned to 23rd Mar.
23rd Mar 1998: Application not reached and the motion is transferred to the next list to fix dates, with an application for priority being refused.
24th Mar 1998: Case not reached in this list to fix dates.
2nd Jul 1998: The notice of motion is heard before Geoghegan J., who delivers an ex tempore judgment in respect thereof.
3rd Jul 1998: The order of the High Court, reflecting the said judgment, is drawn. It is ordered that the D.P.P., through Superintendent Brennan, make further and better discovery in the form of a corrective affidavit:-
(a) correcting the admitted errors in the existing affidavit,
(b) making it clear that the deponent had, prior to the first affidavit of discovery, ascertained from the D.P.P. that no further documents were or had been in his possession,
(c) making it clear that the plea of privilege and of public interest immunity had been raised on the instructions of the D.P.P.
17th Jul 1998: The "corrective" affidavit of Superintendent Brennan is sworn
21st Jul 1998: Applicant's notice of appeal to the Supreme Court against the 3rd July order.
28th Jul 1998: Having read the documents in respect of which the pleas of privilege and public interest immunity were raised, Geoghegan J. directs that document No. 20 in the second part of the first schedule of the first affidavit of discovery be disclosed, but refused relief in respect of all other documents.
17th Aug 1998: Applicant's notice of appeal to Supreme Court against this said order.
12th Nov 1998: The first named respondent agrees note of judgment delivered on 28th July, 1998.
23rd Nov 1998: Composite books of appeal to cover both notices of appeal, including a note of both judgments, filed in the Supreme Court office.
12th Mar 1999: The Supreme Court, on the application of counsel for the applicant, orders that both appeals be consolidated.
5th & 6th Dec 2000: The Supreme Court hears both appeals.
30th Jan 2001: The Supreme Court gives judgment and orders that a letter dated 29th May, 1996, sent by the D.P.P. to the state solicitor in Cork, be discovered to the applicant, who is also granted his costs.
8th May 2001: The D.P.P. discloses an edited version of the said letter dated 29th May, 1996 and alleges that the letter, in this form, is in compliance with the said order of the Supreme Court dated 30th January 2001.
16th May 2001: Mr. Denis O'Sullivan, solicitor on behalf of the applicant, refuses to accept the letter in this form and insists upon full disclosure of its content.
5th Jul 2001: The D.P.P. reiterates his view that the edited version is in compliance with the said order.
11th Jul 2001: Mr. O'Sullivan insists upon full disclosure and suggests that the Director of Public Prosecution, personally, be acquainted with the situation.
14th Feb2002: The D.P.P. issues a motion seeking to have these said proceedings put into the list to fix dates, asserting in his supporting affidavit that "this application is now ready for hearing".
11th Mar 2002: At the hearing of this motion, the High Court adjourns the matter to allow an application to be made to the Supreme Court.
21st Mar 2002: The first named respondent issues a motion returnable before the Supreme Court seeking to amend the order previously made by it on 30th January, 2001.
12th Apr 2002: The said first named respondent applies to have the said motion dealt with by the same division of the High Court which heard the original appeal.
The Supreme Court directs the D.P.P. to file written submissions on or before the 9th September, with the replying submissions to be filed on or before 7th October.
3rd Oct 2002: The first named respondent files his said submissions.
10th Oct 2002: The Supreme Court adjourns the motion to 21st October in order to afford the applicant an opportunity of considering the said submissions and responding thereto.
17th Oct 2002: Written submissions are filed on behalf of the applicant.
21st Oct 2002: The Supreme Court dismisses the said notice of motion and orders the first named respondent to pay to the applicant his costs of the said application.
23rd Oct 2002: Mr. O'Sullivan seeks inspection facilities in respect of the said document.
23rd Oct 2002: The first named respondent encloses a full copy of the said letter.
5th Nov 2002: Mr. O'Sullivan insists upon facilities to inspect the said document.
11th Nov 2002: Adjourned for two weeks in the non-jury list so that inspection can take place.
12th Nov - 15th Nov 2002 The applicant's solicitor again insists upon inspection facilities.
18th Nov 2002: Letter dated 14th November from the first named respondent is received by Mr. O'Sullivan, advising that inspection facilities are in situ and can be activated by prior arrangement with the state solicitor in Cork.
20th Nov 2002: The said letter dated 29th May, 1996 is produced for inspection.
Even, however, if I am wrong in this assessment, this period undoubtedly also has relevance to the weight and significance which should be attached to any later periods which are relied upon. So on either basis the period cannot be ignored.
"Applying those principles to the facts of this case, I am satisfied that quite apart from any question of a prejudice in the defence of the applicant, there is clear evidence that the state authorities in the bringing forward of this prosecution have disregarded what I am satisfied is their obligation to provide for and protect the right of an accused person to an expeditious trial as a positive constitutional right." See Finlay C.J. at p. 521 of the report in Hogan:
"Furthermore, the manner in which the problems arising from the taking of depositions at the request of the State was dealt with would appear to indicate a complete failure to give the applicant's undoubted right to an expeditious trial the priority which it deserved." See Finlay C.J. at p. 284 of the report in Cahalane.
In D.P.P. v. Byrne  2 I.R. 236, Finlay C.J. at pp. 246/247 of the report expressed the view " … that, with regard to the type of delay which is involved on the issues in this particular case, it is not valid to distinguish between the activity of the members of the Garda Síochána as an agent of the prosecuting authority on the one hand, and the activities of other State servants engaged in the administration of the courts service on the other hand, if the combined effect of these activities or the effect of one or other of them constitutes an infringement of one of the accused's constitutional rights." In the same case at p. 257 Denham J. said "the fact of the delay, be it by the Director of Public Prosecutions' office, the garda office, or other State or court agency, is a potentially detrimental matter to the accused for which the prosecution has to answer in court."
In all of these cases, the High Court's judgment in The State (Healy) v. O'Donoghue  I.R. 325 and the Supreme Courts judgment in State (O'Connell) v. Fawsitt  I.R. 362 were referred to as acknowledging or conferring this said right to reasonable expedition.
With regard to the Convention, it should be said that prior to the coming into force of the European Convention on Human Rights Act 2003, the Articles of the Convention did not have the force of law in this jurisdiction though the judgments of the court, particularly in latter years have been increasingly influential in our jurisprudence. Even, however, if the convention was part of our domestic law, I don't think reliance upon it, is essential for the purpose of this case.
"8. I say that the period of time during which I have been kept in the criminal process has been especially oppressive for me because of the nature of the alleged offence. I say that for more than seven years my whole life has been dominated by the ongoing proceedings and the pending prosecution. There is no point in trying to advance myself because everything would be destroyed just by the publicity surrounding even a successful defence of the charge. In the community in which I live, any publicity or association of me in relation to such a charge would in reality be the same as a conviction and I would be tarred with a brush which would destroy both myself and my family. I say that every single day I have had feelings of despair about this situation and that I have been psychologically traumatised by the past seven years."
pre-complaint delay cannot be taken into account when assessing an alleged breach of an accused person's right to a trial with reasonable expedition, such being relevant only in considering a person's right to a trial in due course of law. This submission, though highly interesting, has no real application to this case as on no interpretation of the dates could one suggest that there was any pre-complaint delay as such. Finally having stated that the accused person could without reservation even now obtain a trial in due course of law, he forcibly concluded by submitting that in the circumstances of this case there was of breach of Mr. T.H's right to a trial with reasonable expedition.
"prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right is designed to protect. This Court has identified three such interests: (i) to present oppressive pre-trial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired". These three reasons, underpinning the right to a trial with reasonable expedition, have subsequently, on many occasions, been re-affirmed by our courts in both sexual and non sexual delay cases.
The passage last quoted was referred to by Mr. Justice Geoghegan when giving judgment in P.P. v. Director of Public Prosecutions  1 IR 403, which case could be described as involving prosecutorial delay. Having so referred to this passage, the learned judge, at p. 409 of the report, then continued "It is not acceptable and, in my view, is a breach of a defendant's rights under Article 38.1 of the Constitution for the prosecuting authorities to allow unnecessary delay to occur in a case such as this, involving sexual offences committed many years ago. The necessarily delayed trial is most unfortunate, but it is wholly intolerable that it should be postponed still further due to unnecessary delays on the part of the prosecuting authorities. I am using this expression "prosecuting authorities" to cover the Director of Public Prosecutions and the Gardaí Síochána". On the following page Geoghegan J. continued "faced with that situation, I have to decide whether I prevent the trial from proceeding. …. I think that where there has been a long lapse of time, as in these prosecutions for sexual offences, between the alleged offences and the date of complaint to the guards, it is of paramount importance, if the accused's constitutional rights are to be protected that there is no blameworthy delay on the part of either the guards or the Director of Public Prosecutions. If there is such delay, the court should not allow the case to proceed and additional actual prejudice need not be proved. … But, in my view, a constitutional right has been clearly infringed and therefore the trial should not be permitted to proceed."
The same judge, when giving the unanimous judgment of the Supreme Court in B.F. v. Director of Public Prosecutions,  1 IR 656 endorsed what he had previously said in P.P.
Whilst I appreciate that the facts in P.P. involved considerable delay between the date of the alleged offences and the date of first complaint, nevertheless I cannot see why, in principle, the observations of the trial judge, insofar as these relate to the constitutional right of a trial with reasonable expedition and the consequences which follow from a breach thereof, should not equally apply, even where there is pre-complaint delay, but where otherwise the circumstances so permit.
These said views can be summarised as follows:
(a) the right to a trial with reasonable expedition has been recognised as an essential feature in our system of law for many years,
(b) this right has a constitutional foundation and origin,
(c) the existence of this right is designed (i) to protect an accused person from oppressive pre-trial incarceration, (ii) to minimise his anxiety and concern and (iii) to limit the possibility that the defence will be impaired: see Barker v. Wingo, supra,
(d) the enforcement by the court of this right is not merely intended to vindicate and protect the rights of an accused person in the area of criminal justice but also to uphold the public interest in a speedy prosecution of all such crime,
(e) the consequences which may follow from the absence of a trial being held with reasonable expedition are varied and several. These include, but are not limited to, actual or presumptive prejudice, as well as an impairment of the person's ability to defend himself,
(f) where such a right has been breached, that violation, in itself and without further consequences, may be sufficient to prohibit the continuation of a trial, though in what circumstances this will follow is not capable of exact description or definition,
(g) where there are further consequences of a detrimental nature, then such description or definition is more readily ascertainable
(h) where the consequences result in a real and substantial risk of an unfair trial, then, given the hierarchical position of this last mentioned right, any further continuation of a trial will be prohibited, see D. v. Director of Prosecutions  2 I.R. 465, and
(i) where the consequences, however, do not so establish such a real and substantial risk, then the court must engage in an exercise of evaluating the respective positions of an accused person whose right has been violated, as against the right of the general public to prosecute to finality those charged with criminal activity.
Finally, as is clear from the judgment of Keane C.J. in P.M., anxiety and concern may take many forms and these may include "stigmatisation of the accused, loss of privacy, … disruption of family, social life and work, legal costs, uncertainty as to the future." See p. 573 of the report. Whilst these comments of the Chief Justice were made in the context of pre-charge delay, it seems to me that there is no reason why the same should not, in principle, equally apply to post-charge delay.
In an earlier decision, the same judge, in D.P.P. v. F, Court of Criminal Appeal, Unreported, 2nd December 1996, also said that he regarded the case before the court as "a chilling example of the effect even of a relatively short lapse of time on the memories of witnesses".
And lastly, a further passage from the judgment of Powell J., in Barker v. Wingo, supra, which is not quoted as extensively as the passage which appears at para 74 of this judgment, is also I think apt and worthy of recall. At p. 514 the learned Judge said " … the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown".
These general principles of law have been restated very frequently in many judgments of both our domestic courts and of courts of foreign jurisdictions. It is their application to the particular facts of any given case that causes difficulty. It is this to which I now turn to in the instant circumstances.
In my view, I don't believe that the applicant can legitimately complain about delay in the above time frame. That is apart from the four month period in which it took the D.P.P. to respond. Why this was necessary has not been fully explained. However, given the fact that the file in question was a combination of a joint investigation, I am prepared to hold, on balance, that this period, whilst borderline, was not so excessive as to constitute, in the circumstances, inordinate or excessive delay. I, therefore, do not believe that this period can be usefully relied upon by the accused person to further his complaint on ground No. 3.
The 13 weeks within which it took the D.P.P. to file a statement of opposition is a long period of time, but on balance is possibly not excessive. I accept that the standard period of three weeks is not sufficient to gather the required documentation, to submit the same to counsel, to receive back from him draft papers and then to have the same sworn by the deponent of the replying affidavit. These documents must also be served. So whilst on paper a period of over three months might appear excessive, I don't in fact believe that in the circumstances it should be so described.
However, I cannot see any possible justification for the five month period delay in swearing the affidavit of discovery. Though the investigation involved two persons and the resulting file was a combined one, from an investigate point of view one could not describe the underlying circumstances as extremely difficult or extraordinary complex. It must be remembered that the Garda documentation was completed not later than 28th November, 1995, when the co-ordinating Sergeant transferred the same to Superintendent Brennan. Apart, therefore, from the D.P.P.'s instructions given in May ,1996 and the application for, and the obtaining of, the summons, nothing further required to be done to complete the file. I therefore fail to see why it took five months to make discovery, when the entire documentation was long since in existence and was readily available. I therefore believe that this period was excessive and unreasonable.
I would allow the appeal and order the production for inspection of the communication …. "
As appears from both the order and judgment there are no qualifications or conditions attached to the direction compelling the production of the said document.
Taking these three periods only and without having recourse to any other time span it appears to me that, in the circumstances of this case the same amount to an unreasonable and inordinate delay, for which the D.P.P. must bear full responsibility. The total time span is about two years and nine months. The applicant cannot be held to be blameworthy for any portion of this time. It must be recalled that the underlying circumstances could not be described as unduly complex or technical. It must also be recalled that the investigation was complete as of November, 1995, a period of almost seven years prior to November, 2002, that the summons was served in September, 1996 a period of more than six years prior to the said November, 2002 and that, as of the latter date, the applicant was part of the criminal justice process for a period of six or seven years. It seems to me that given the length of time during which the discovery issue travelled in both the High Court and the Supreme Court and the five months for the swearing of the original Affidavit the D.P.P. should have been ever conscious of the issue of time and delay and should have been acutely aware of his responsibility not to cause any further lapse of time. This, unfortunately, did not happen and in particular the final period of 22 months was, in my view, entirely avoidable. In these circumstances, and having considered the overall facts of this case, I would have no hesitation in coming to the conclusion that the periods above mentioned and, in particular, the said period of 22 months, constitute, in my view, a breach of the applicant's right to a trial with reasonable expedition. As a result, in order to protect and vindicate this positive constitutional right, I would grant in his favour an injunction prohibiting the D.P.P. from the further prosecution of the applicant on the charge against him.
(a) In the initial statement of complaint to the Gardaí the complainant refers to several acts of sexual abuse allegedly committed by A.B. and in the process refers to a third party, whom he identified by a particular name but who otherwise was unknown to him. The victim also says in that statement that he had two litres of cider that night,
(b) In a statement made to the Gardaí by the complainant's sister, she recalls that the said complainant was very drunk on the night in question, that he could not stand up and was getting repeatedly sick. She claims that he informed her he got drink and thereafter got hash,
(c) In a statement by the complainant's mother to the Gardaí she states that on the day following she asked her son about the previous night but in response he said he couldn't recall anything,
(d) In an interview with the Area Medical Officer on 1st August, 1995 the victim repeated the allegation against the third party, then identified by a particular name, but did so in terms different from other occasions upon which the allegation was also repeated.
These are but instances of where further exploration of the evidence will be necessary. There are many other such examples. Bearing in mind what Hardiman J., said in D.P.P. v. F., supra, I have a real concern given the circumstances surrounding this alleged sexual assault and the lapse of several years since its alleged occurrence that in any trial the memory of the most critical witnesses will be distorted forcing them to fall back on and refer to statements. This would be most unsatisfactory. I therefore also therefore believe that if this trial should proceed there is a real risk of the accused person not obtaining a trial in due course of law.