Supreme Court grants bail to Colm Maguire despite 20-month delay, prioritizing speedy trial interests over s.2 grounds.

[2004] IESC 111

THE SUPREME COURT

420/04

Denham J.

Hardiman J.

Fennelly J.

Between:

COLM MAGUIRE

Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of the Court (ex tempore) delivered by Mr. Justice Hardiman on the 29th day of October, 2004.

1. This is an appeal against the judgment and order of the High Court dated the 18th August, 2004 whereby the applicant’s bail

application was refused.

2. On the 10th October, 2003 the applicant was charged before the Special Criminal Court with the offence of membership of an

unlawful organisation contrary to s.21 of the Offences against the State Act as amended. He applied for bail to the Special Criminal

Court and this application was opposed on two grounds namely that he was a flight risk and on the ground, mentioned in s.2 of the

Bail Act, 1997 that the refusal of bail was reasonably considered necessary to prevent the commission by him of a serious offence.

The prosecution has resiled from the first objection. This application was refused and he has been in custody since the 10th October,

2003, apart from a few days in July 2004 when he was by consent released on compassionate bail in order to attend a family

function.

3. The subsequent history of the applicant’s pursuit of bail is set out at pages 2 - 8 of the judgment of this Court in a previous appeal

by the applicant, Maguire v. The Director of Public Prosecutions (Supreme Court, unreported, 30th July, 2004). It is unnecessary to

repeat that history here, but it is of course the essential background to the present appeal. It seems that, having been refused bail in

the High Court on the ground set out in s.2, the applicant subsequently invoked s.3 of that Act and applied to the High Court on the

basis that four months had expired from the date of the initial refusal of bail without his trial having commenced.

4. This application was refused, the President holding that the High Court’s jurisdiction on an application pursuant to s.3 was confined

to consideration of delay in the commencement of the trial caused by the prosecutor so that, as he put it:-

“Delay in serving a Book of Evidence would be relevant. However not relevant is delay not attributable to the prosecutor.

In the circumstances of this case delay resulting from the inability of the Special Criminal Court to afford a prompt hearing

will not confer a right to renew an application for bail.”

5. The learned President also held that, in an application under s.3, once the requirement of delay on the part of the prosecutor had

been established, the Court should have regard, solely, to that fact and to any change that may have occurred in relation to the

factors set out in s.2(2).

6. This Court reversed the finding that the High Court’s discretion under s.2 was limited to the factors mentioned in that Section and

held specifically:-

“The factors in addition to those mentioned in s.2(2) which the Court may consider on such an application are those

which have been long established at common law and include a consideration of when the applicant’s trial will, or will

probably, take place. This is factor which is of obvious relevance because I do not believe that any consideration of a bail

application which excludes this vindicates the applicant’s right to personal liberty or to a speedy trial. These rights are

assured to him by the Constitution and by the European Convention on Human Rights”.

7. Equally, this Court rejected the view that, in considering whether the applicant had met the delay requirement of s.3, he was

limited to considering delay attributable to the prosecutor and held, as Peart J. in the High Court had previously held in White v. DPP

(High Court, unreported, 20th May, 2003) that “the passing of a period of four months from the date of refusal of bail is sufficient,

without more, to trigger the following part of s.3(1) namely a consideration of the interests of justice”.

Remittance to High Court.

8. Having reached the decision summarised above, the Supreme Court allowed the appeal to the extent of setting aside the order of

the High Court refusing to admit the applicant to bail. Since it appeared to the Court that the High Court in reaching that conclusion

had adopted an erroneous construction of Sections 2 and 3 of the Act of 1997, the Court remitted the application to the High Court

for further consideration on a correct interpretation of those Sections.

9. This occurred on the 18th August, 2004. The somewhat protracted history of the case was outlined to the learned trial judge and

the evidence of Detective Superintendent O’Sullivan and of the applicant was heard. The learned trial judge then gave a brief

judgment in which he said that he had considered the matter and was refusing bail. He said that the application had come before two

judges in the High Court on previous occasions both of whom had refused bail on the basis of two objections, one of which was not

urged before him. He said that although the Supreme Court had decided that the matter was not res judicata, he was refusing bail

because of the sworn evidence of Detective Superintendent O’Sullivan that he believe Mr. Maguire was a member of an unlawful

organisation. This evidence was not challenged. The learned trial judge concluded that he had to be satisfied that the s.2 objection

was well founded and that since he was so satisfied he was refusing bail.

10. The Court is very conscious of the fact that this application came before the learned trial judge in a crowded vacation bail list and

that the requirements of justice for the parties, especially the applicant, dictated that the matter be resolved immediately.

Nevertheless, it is difficult to regard the judgment, as noted by counsel, as addressing adequately the basis on which the applicant’s

application had been remitted to the High Court. First of all, it was an application pursuant to s.3, a fact which does not feature in

the brief note of the judgment. Secondly, a salient feature of this Court’s decision had been that the High Court was entitled to

consider the period which would elapse before the applicant could be given a trial, regardless of whom any delay was attributable to,

so long as it was not the applicant’s delay. An application under s.3 of the Bail Act, 1997 invokes a new jurisdiction and requires that

the terms of the Section be addressed by the High Court on the facts of the case. It is a type of application unsuited to a court

taking a long list. At issue are matters of significant importance to the applicant, where the Court must consider the “interests of

justice”. This aspect, also, is absent from the note of the judgment which limits itself to finding, for the reasons stated, that the s.2.

objection was well founded.

11. It is of course the case that there would no be application pursuant to s.3 if a court had not already found that a s.2 objection

was well founded. Indeed, without expressing any concluded view on the subject because it was not fully argued, it appears that

delay in putting the applicant on trial is the principal or sole criterion for allowing an application under s.3 to be urged. But once the

application is capable of being urged, the requirements of “the interests of justice” are the sole criterion of whether the applicant

should be admitted to bail.

Should the case be remitted?

12. Having regard to the fact that the principal issue arising when the case was remitted to the High Court, the question of whether

the interests of justice required that the applicant be released on bail in light of the inability of the State to provide him with a trial

before June 2005, appears to have been misapprehended, we have seriously considered whether the matter should be remitted to the

High Court once more. If this were done, there would be a full judgment of the High Court on the issue and, if desired, this Court

could deal with the matter in a comprehensive way on appeal. But it would involve the further detention of an untried defendant who

has already been in custody for over a year. We consider that the applicant has sufficiently raised the question of the length of his

detention and that this fact allows us to address the question of whether the interests of justice require his release on bail. The

learned trial judge must be taken as holding that the delay did not require the applicant’s release. We are, however, conscious of the

fact that we are deciding this appeal without the benefit of a full or elaborated decision of the High Court on the matter and in

certain respects without full submissions. For example, Mr. Grehan S.C. on behalf of the Director simply had no instructions on the

question of whether his client wished to argue that, in the circumstances of the applicant, a trial after twenty months in custody

could be regarded as a trial within a reasonable period of time. For these reasons, our decision on this application is of limited

precedential value.

The interests of justice.

13. We have borne in mind, firstly, that a trial in a relatively simple case, where the Book of Evidence has been served a long time

ago, which can take place only after twenty months could not be described as a speedy trial. Equally, we have considered the dictum

in A.G. v. O’Callaghan [1966] IR 501:-

“The possibility of a speedy trial is relevant to the extent that if there is no prospect of a speedy trial a court may very

well allow bail where it might not otherwise have allowed it. It cannot be too strongly emphasised however that the

prospect of a speedy trial is not a ground for refusing bail where it ought otherwise be granted”.

14. We have also considered that the applicant has in fact been admitted to bail on firearms charges which, counsel for the Director

has told us, are intimately associated with the membership charge and the facts of which will indeed form part of the evidence on

that charge. This occurred in the Special Criminal Court after that Court had heard evidence from the same witness who was called in

the High Court in this case making the same objection. Counsel for the Director conceded that the different conclusions come to by

the High Court and the Special Criminal Court did suggest that the question of whether the applicant should be admitted to bail is a

narrow and finally balanced one. We have also considered that the applicant is, as far as the evidence goes, a man of no previous

convictions who if not granted bail will serve, prior to his trial, the equivalent of a two year sentence.

15. We have, of course, borne in mind that the People, in enacting the 16th Amendment to the Constitution, specifically envisaged

that bail might be refused on the ground set out in s.2 of the Act of 1997. The Courts must have regard to this amendment and to

the statutory scheme which followed it.

16. It appears to us however that the prospect of persons being remanded in custody before trial, on a newly introduced ground,

prima facie triggers an obligation on the State to ensure that resources and facilities will be available to accord them a speedy trial.

If it is considered very important to incarcerate such persons, or some of them, prior to trial, this has obvious consequences which

include the provision of judges and court facilities to meet the State’s obligation under the Constitution and the European Convention

on Human Rights.

Conclusion.

17. In these circumstances we consider that the interests of justice require the release on bail of an untried prisoner to whom the

State cannot afford a trial until June 2005. Having regard to the fact that counsel for the Director was not instructed fully to argue

the question of whether the delay which applied in this case took to the proposed trial of the applicant out of the category of “trial

within a reasonable time”, we express no concluded view on this topic. It is sufficient for the purpose of the application that, on the

basis of the materials produced in this case, it appears to us that the interests of justice require the release of the applicant on bail.