Supreme Court allows bail appeal by correcting High Court's erroneous interpretation of the Bail Act 1997 regarding delay.

[2004] IESC 53

THE SUPREME COURT

324/04

Hardiman J

Geoghegan J.

McCracken J.

BETWEEN:

COLM MAGUIRE

Applicant/Appellant

And

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 30th day of July, 2004.

1. This is the appellant’s appeal from the order of the High Court (Finnegan P.) of the 22nd April, 2004 whereby he was refused bail. It

appears that his application by notice of motion and affidavit was filed on the 18th February, 2004, and was heard on the 25th and

26th March, 2004. Judgment was reserved at that time and delivered by the learned President on the 2nd April, 2004. This judgment

included very significant findings of the learned President in relation to the law applicable to applications such as the appellant’s.

Having delivered it the President decided to hear evidence with regard to the issue of delay within the meaning of s.3 of the Bail Act,

1997. Having done this he refused the application.

Factual background.

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 the grounds that the applicant represented 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. He was thereupon remanded in custody.

3. The applicant then applied to the High Court (Gilligan J.) on the 10th November, 2003, and was unsuccessful. He continued to be

held in custody awaiting the service of a Book of Evidence upon him. It appears that the statutory time for the service of such Book –

42 days – was extended from time to time. When no Book had been served by the 13th January, 2004, the applicant reapplied to the

Special Criminal Court on that date but was refused on the basis that the Special Criminal Court considered that the application

should be made in the High Court. The applicant applied to the High Court (Peart J.) on the 23rd February, 2004. The respondent

indicated his intention to oppose the application on the same grounds as it had originally been opposed before the Special Criminal

Court, but first took the preliminary point that the issue was res judicata. It appears that this issue was opened fully to Peart J. The

learned judge took the view that the matter should be adjourned to the 15th March, 2004 i.e. a date more than four months after the

first refusal. On that day, the application came before Kearns J., who considered that, the matter having been opened before Peart

J., the hearing should continue before him. But Peart J. was not then available and the learned President indicated his willingness to

take the matter up.

New charges.

4. On the 9th March, 2004, the applicant was charged with two further offences which were firearms offences, one of which carried a

maximum penalty of ten years imprisonment, as opposed to seven years on the membership charge. On the same date the applicant

applied to the Special Criminal Court for bail on those charges and on this occasion the application was opposed on the s.2 ground

only. The applicant was, however, admitted to bail on these two charges. He is now in custody solely on the original charge alleging

an offence contrary to s.21.

Service of the Book and subsequent developments.

5. It appears that the Book of Evidence in relation to this charge was served on the 5th March, 2004. Subsequently, a trial date was

fixed in respect of that charge for June, 2005. Thereafter, the applicant’s notice of motion for admission to bail, which led to the

making of the order the subject of the present appeal, was made returnable before the President.

The High Court decision.

6. On the hearing of the applicant’s application the learned President considered Sections 2 and 3 of the Bail Act, 1997. He then

considered the decision of this Court in DPP v. Stephen Doherty (Supreme Court, Unreported, 30th July, 2001) to the effect that the

fixing of a relatively remote trial date was not a change of circumstance such as to allow an applicant to bring a further bail

application. In Doherty, however, the ground of refusal of bail had been the apprehended interference with witnesses, as opposed to

s.2 grounds.

Sections 2 and 3 of the Bail Act, 1997 and the High Court findings.

7. Section 2 provides as follows:

2.—(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the

application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a

serious offence by that person.

(2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive

evidence or submissions concerning—

(a) the nature and degree of seriousness of the offence with which the accused person is charged and

the sentence likely to be imposed on conviction,

(b) the nature and degree of seriousness of the offence apprehended and the sentence likely to be

imposed on conviction,

(c) the nature and strength of the evidence in support of the charge,

(d) any conviction of the accused person for an offence committed while he or she was on bail,

(e) any previous convictions of the accused person including any conviction the subject of an appeal

(which has neither been determined nor withdrawn) to a court,

(f) any other offence in respect of which the accused person is charged and is awaiting trial,

and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused

person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977.

(3) In determining whether the refusal of an application for bail is reasonably considered necessary to prevent the

commission of a serious offence by a person, it shall not be necessary for a court to be satisfied that the commission of a

specific offence by that person is apprehended.

8. Where bail has been refused pursuant to s.2 of the Bail Act, s.3 relates to circumstances in which the application may be renewed.

It provides as follows:

3.—(1) Where an application by a person for bail—

(a) has been refused by a court under section 2, and

(b) the trial of the person for the offence concerned has not commenced within 4 months from the date

of such refusal,

then, the person may renew his or her application for bail to that court on the ground of delay by the prosecutor in

proceeding with his or her trial, and the court shall, if satisfied that the interests of justice so require, release the person

on bail.

(2) In determining whether to grant or refuse an application under subsection (1), a court may receive evidence or

submissions concerning the delay in proceeding with the trial of the person concerned.

(3) Nothing in this section shall affect the operation of section 24 of the Act of 1967.

9. The learned President also held that s.2(2) of the Act “enumerates matters that the Court shall take into account when exercising

its jurisdiction under subsection (1), and a further matter which the Court may take into account – the fact that the accused person

was addicted to a controlled drug”. He went on to hold that:

“As Section (2) is regulated in part by the word ‘shall’ and in part by the word ‘may’ this suggests that the legislature

intended the factors enumerated in the subsection to be the only factors to which the Court should have regard where an

objection to bail is raised in reliance on s.2”.

10. The learned President went on to hold that

“The eleventh ground enumerated by Murnaghan J. in O’Callaghan’s case is not a factor to be taken into account in

exercising jurisdiction under s.2 of the Act”.

This ground is “the possibility of a speedy trial”.

11. Moving to a consideration of s.3 of the Act of 1997, the learned President held as follows:

“In order to be entitled to renew an application for bail pursuant to s.3 the applicant must establish delay by the

prosecutor in proceeding with his or her trial. Thus 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. Section 3(2)

permits the Court to receive evidence or submissions concerning the delay in proceeding with the trial. This suggests that

the Court is not concerned exclusively with the lapse of time which has occurred but will have regard to the causes and

circumstances giving rise to the same in order to determine if there has been delay by the prosecutor”.

12. In a further finding the learned President said:

“Having regard to my finding that s.2 creates a discrete jurisdiction in the exercise of which the Court is confined to the

factors enumerated in s.2(2) I am satisfied that on a renewed application pursuant to s.3 the Court should have regard

only to those factors enumerated in s.2(2) and the delay which has occurred which is attributable to the prosecutor…

accordingly I hold that on a renewed application the requirement of delay on the part of the prosecution having been

established the Court should have regard to that delay and to any change that may have occurred in relation to the

factors set out in s.2(2). In so far as no change of circumstances can be shown in relation to such factors the principle

of res judicatawill apply.”

The broader legal context.

13. In considering a bail application, the Courts are exercising one of their most ancient and the most fundamental jurisdictions. In

Blackstone’s Commentaries on the laws of England 6th Ed., (Dublin 1775), Book IV at p. 295, the learned author says:

“By the antient common law, before and since the conquest, all felonies were bailable, ‘til murder was excepted by

statute: so that persons might be admitted to bail almost in every case.”

14. The conquest referred to is, of course, the Norman conquest of England in the year 1066: the learned author is treating of a

jurisdiction at common law over one thousand years old. He goes back still further: having chronicled the various limitations on the

offences which were bailable (commencing with the Statute of Westminster in the thirteenth century and relating almost exclusively

to offences where the death penalty was a likely result of conviction), he says:

“Upon a principle similar to which, the Athenian magistrates, when they took a solemn oath, never to keep a citizen in

bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled

the public money or been guilty of treasonable practices.”

15. Apart from the offences which, by statutory provision, were not bailable Blackstone observed:

“And, first, to refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any

magistrate, by the common law; as well as by the Statute of Westminster, 3 Edw. I c. 15 and the habeas corpus Act, 31

Car. II c. 2. And lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than

the nature of the case demands, it is expressly declared by Statute, 1 W. & M. 2 c. 1., that excessive bail ought not to

be required: though what bail shall be called excessive must be left to the Courts, on considering the circumstances of

the case, to determine.”

16. The origin of the term “bail” appears in the French word “bailer”, to deliver. Expounding this Blackstone says (Book III page 290):

“For, the intent of the arrest being only to compel an appearance in court… that purpose is equally answered, whether

the Sheriff detains his person or takes sufficient surety for his appearance, called bail because the defendant is bailed, or

delivered, to his sureties upon their giving security for his appearance; and is supposed to continue in their friendly

custody instead of going to gaol.”

17. It is of historical interest to note that this explanation of the nature of bail is given in the context of civil, not criminal, cases but

is in the next volume applied to criminal cases

18. It is therefore clear that the jurisdiction to grant bail is an ancient one, exercised in classical times and in the earliest period of

the common law for which there is any surviving evidence. It is scarcely surprising that the early modern statutory references cluster

in the later 17th century: the Stuart monarchs had effectively used the denial of bail as a form of internment. Thus, the English

Habeas Corpus Act and still more notably the Bill of Rights of 1688, both of which were declaratory of the common law, provided that

excessive bail should not be required.

19. It thus appears that, at a time when sensitivity to what we would now describe as civil or human rights was much less developed

than it is at present, the grave wrong constituted by long pre-trial imprisonment was nonetheless recognised. The jurisdiction to grant

bail, according to Stephen’s History of the Criminal Law, Volume I, (London, 1883) at p. 233 is “as old as the law of England itself”. In

A.G. v. O’Callaghan [1966] IR 501 Walsh J. says:

“From the earliest times it was appreciated that detention in custody pending trial could be a cause of great hardship and

it is as true now as it was in ancient times that it is desirable to release on bail as large a number of acute persons as

possible who may safely be released pending trial. From time to time necessity demands that some unconvicted persons

should be held in custody pending trial to secure their attendance at the trial but in such cases ‘necessity’ is the

operative test. The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking

effect only at the trial. In the modern complex society of which we live the effect of imprisonment upon the private life of

the accused and his family may be disastrous in its severe economic consequences to him and his family dependent on his

earnings from day to day or even hour to hour. It must also be recognised that imprisonment before trial will usually have

an adverse affect upon the prisoner’s prospects of acquittal because of the difficulty, if not the impossibility in many

cases, of adequately investigating the case and preparing the defence.”

Further apprehended offences.

20. In A.G. v. O’Callaghan Walsh J. famously stated at p. 516:

“In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any

person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances

he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most

extraordinary circumstances carefully spelt out by the Oireachtas and the only to secure the preservation of public peace

and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin

to that.”

21. The Sixteenth amendment to the Constitution (1996), however, amended Article 40.4.1 to insert:

“Provision may be made by law for the refusal of bail by a court to a person charged with a serious offence where it is

reasonably considered necessary to prevent the commission of a serious offence by that person.”

22. This amendment permitted the passing of Sections 2 and 3 of the Bail Act, 1997, the provisions of which have been quoted

above.

23. To these fundamental sources there must now be added Articles 5 and 6.1 of the European Convention on Human Rights which

provide in so far as relevant:

5(1) Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the

following cases and in accordance with a procedure prescribed by law

(c) The lawful arrest or detention of a person effected for the purpose of bringing him before the

competent legal authority on reasonable suspicion of having committed an offence or where it is

reasonably considered necessary to prevent his committing an offence or fleeing after having done so.

(2) -

(3) Everyone arrested or detained in accordance with the provision of paragraph (1)(c) of this Article shall be brought

promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a

reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

24. It will be noted that the formula “reasonably considered necessary” to describe the state of mind the Court must have reached in

relation to the prospect of further offences in order to mandate pre-trial detention, is common to the Sixteenth amendment, s.2 of

the Bail Act and Article 5(1)(c) of the European Convention.

25. The following Article provides in part:

6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a

fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” (Emphasis

added)

26. Section 2(1) of the European Convention on Human Rights Act, 2003, provides as follows:

“In interpreting and applying any statutory provision or a rule of law, the Court shall, in so far as possible, subject to the

rules of law relating to such interpretation and application, do so in a manner compatible with the State’s obligations

under the Convention provisions".

27. Most fundamentally, one must bear in mind the presumption of constitutionality attaching to a post 1937 statute and its corollary,

the requirement, where possible, to adopt a constitutional rather than an unconstitutional construction of the Statute. Of relevance

here is the well known passage of the judgment of this Court in East Donegal Co-operative Limited v. Attorney General [1970] IR 317:

“At the same time the presumption of constitutionality carries with it not only the presumption that the constitutional

interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that

proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by an Act of the

Oireachtas are to be conducted in accordance with the principles constitutional justice. In such a case any departure

from those principles would be restrained and corrected by the Courts.”

A discrete jurisdiction?

28. It is necessary now to consider the finding of the High Court that s.2 creates “a discrete jurisdiction in the exercise of which the

Court is confined to the factors enumerated in s.2(2).” (Emphasis added). If it is, as the learned President held, then the possibility

or otherwise of a speedy trial is indeed not to be taken into account in the exercise of the jurisdiction under s.2(1). This factor was

held to be relevant by Murnaghan J. in the High Court in A.G. v. O’Callaghan [1966] IR 501. Commenting on this Walsh J. said:

“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.”

29. As is very widely known, the High Court in O’Callaghan’scase had considered it legitimate to take into account, on an application

for bail:

“The likelihood of the commission of further offences while on bail. In this connection a prisoner facing a heavy sentence

has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and in

an effort to get money to support his family may commit further offences.”

30. This finding, however, was set aside by the Supreme Court on grounds that are fundamentally of a constitutional nature. Thirty

years later, as we have seen, the Constitution itself was amended in order to permit the refusal of bail on the ground that it is

reasonably considered necessary to prevent the commission of a further serious offence, thereby making possible the enactment of

s.2 of the Act of 1997. I cannot see that the Sixteenth amendment to the Constitution or the statutory provision which followed it

operate to exclude from the consideration of a court entertaining a bail application the question of whether a speedy trial will be

possible. The constitutional amendment permitted the introduction of legislation allowing a new ground on which bail might be refused.

It does not appear to me otherwise to trench upon the scope of the immemorial jurisdiction of the Court on a bail application. Nor do I

consider that the opening words of s.2(2) of the Act of 1997, introducing a list of six factors which a court “shall take into account”

on such application operates to exclude any other matter which a court is entitled or obliged to consider. If it had been the desire of

the legislature so to confine the Court’s consideration, that result could have been achieved by the use of a form of words such as

“shall consider only”, in place of the phrase actually used.

31. I am fortified in this conclusion by the commentary on the constitutional amendment and the statute in Professor Dermot Walsh’s

Criminal Procedure,1st Ed., (Dublin, 2002). At p. 517 the learned author says:

“The amendment paved the way for the enactment of the Bail Act, 1997 which, inter alia, permits the Court to refuse bail

in certain circumstances in order to prevent the commission of further offences by the applicant. This measure came fully

into effect on the 15th May, 2000. The relevant provisions are considered further below. It is worth emphasising,

however, that the do not exist in isolation. They merely amend one aspect of the basic common law and constitutional

principles governing bail.”

32. Furthermore, I do not think that the ordinary and natural meaning of the phrase “take into account”, or such legal authority as is

available on the phrase, support the proposition that it connotes an exhaustive list of matters to be considered. According to the

Oxford English Dictionary, the relevant meaning of the term account is “estimation or consideration”. The phrase “take into account”

is defined in the same work as “to take into consideration as an existing element”. In Metropolitan Water Board v. Assessment

Committee of the Metropolitan Borough of St. Marylebone [1923] 1 KB 86 the meaning of the phrase was discussed by Lord Hewart

C.J. and by Sankey J., as he then was. The question was whether the water authority’s power to impose additional levies to meet a

deficiency in their accounts was to be taken into account as part of their gross revenues for rating purposes. Lord Hewart said:

“It is quite evident that confusion has arisen in the past between the ambiguous meanings of the word ‘account’. ‘To take

into account’ in the sense of including figures in a mathematical calculation is one thing; ‘to take into account’ in the

sense of paying attention to a matter in the course of an intellectual process is quite another thing”.

33. Sankey J., in construing the same phrase said that he preferred the word “consideration” to the word “account”. This, of course,

would be compatible with the OED definition.

34. That definition “to take into consideration as an existing element”, in terms allows for the existence of other elements. To require

that something be taken into account, or taken into consideration, suggests that there is already a framework into which the relevant

factors are taken. Lord Hewart’s sense of the phrase – “paying attention to a matter in the course of an intellectual process” is

perfectly apt to describe this in the context of the law of bail and the place of the 1997 Act in it: a new element is taken into the

process.

35. Moreover, quite apart from the consideration of the likely period to be spent in custody, a construction of s.2 which absolutely

limited the Court to the matters set out in subsection 2 thereof, would produce a manifest absurdity by rendering irrelevant factors

such as the terminal illness or total disablement of a defendant. These matters have an obvious relevance.

36. If it were the case that s.2 created a discrete, self-contained and exclusive jurisdiction in relation to cases where the section

was invoked, the question of the probable or determined length of pre-trial incarceration would thereby be wholly excluded from the

court’s attention. I do not consider that such an exclusion would be consistent with the right to personal liberty, acknowledged in

Article 40 of the Constitution or with Articles 5 and 6(1) of the Convention. I would therefore decline to construe s.2 as creating a

jurisdiction which excluded consideration of the probable or determined length of pre-trial detention without bail unless the wording of

the enactment itself compelled me so to construe it. For the reasons given above I do not consider that the section has this effect.

The nature of relevant delay.

37. Is the issue of delay in the commencement of a trial restricted, for the purposes of a bail application, to a consideration of delay

on the part of the prosecution authorities, or still more restrictively to culpable delay on their part? I do not believe that it is. In this

regard, and subject to what is said below about s.3, I respectfully agree with what was said by O’Neill J. in DPP v. Arthurs [2000] 2

ILRM 363, at p. 376:

“If it is the case that an accused person has a right under the Constitution to a speedy or expeditious trial, a necessary

corollary of that right is that there rests upon the State a duty to ensure that all reasonable steps are taken to ensure

such a speedy trial is provided. This must necessarily mean conducting the investigation and prosecution in a manner

which, in so far as it is reasonably practicable eliminates unnecessary delay, and must additionally mean that such

resources are as necessary for the ordinary and expeditious processing of criminal cases through the Courts are

provided.”

38. Arthurs was not a bail case but a summary prosecution where a delay of two years and three months, caused in part by the

failure of the case to get on for hearing due to the overcrowded state of the District Court lists, was considered excessive. The

learned trial judge held that it would be “an unfortunate mishap, not necessarily involving any fault on the part of the State, if such

case failed to be heard on one occasion” but went on:

“Where, as in this case, this mishap is repeated two further times, the inference that these delays are the result of a

failure on the part of the State to have provided adequate resources so that the District Court could deal with the cases

before it in an expeditious manner is inescapable. The failure on the part of the State to have made adequate provision

for expeditious conduct of cases in the District Court in question… was in my opinion an unwarranted invasion of the

accused’s constitutional right to an expeditious trial.”

39. Arthurs was a summary case and I am far from suggesting that an equal lapse of time might not be justified in another instance,

especially in a more complex indictable case. But the relevance of the decision to the present circumstances is the recognition that a

failure to provide a speedy trial may lead to the dismissal of a case even where there is no question of pre-trial custody. The right

recognised and enforced in that case is, in my opinion, inconsistent with the suggested total exclusion of the topic of when a trial is

likely to take place from the consideration of a court on a bail application.

Summary of conclusions on Section 2.

40. For the reasons set out above I cannot agree that s.2 of the Bail Act, 1997 creates a discrete or isolated jurisdiction in which the

Court is confined to a consideration of the factors specifically mentioned in subsection 2. On the contrary, the effect of the section is

to add a ground – the prevention of the commission of a further serious offence by the applicant for bail – on which a bail application

might be refused. So far from existing in isolation, the section is a statutory addition, rendered possible by the Sixteenth amendment

to the Constitution, to the important and ancient jurisdiction of the Court to consider and determine applications for bail.

41. 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

a factor which is of obvious relevance because I do not believe that any consideration of a bail application which excludes it

vindicates the applicant’s right to personal liberty or to a speedy trial. These are rights assured to him by the Constitution and by the

European Convention on Human Rights.

42. Article 5 of the latter instrument requires that a person arrested on suspicion of having committed a crime “… shall be entitled to

trial within a reasonable time or to release pending trial”. If, as the Director contends, s.2 of the Act excludes any consideration of

when the trial will take place, it appears to me that it would fly in the face of the Convention by evading the enforcement of this

guarantee. More fundamentally, it would constitute a disproportionate invasion of the right to personal liberty under the Constitution if

a court were precluded, by the invocation of s.2 on the part of the Director, from considering the duration of the pre-trial

incarceration which it is requested to bring about by refusing bail.

Director’s case on s.3.

43. The interpretation of s.3 which the Director urged upon us was the nub of his case on the hearing of this appeal. Junior Counsel

for the Director, Mr. Shane Costello, advanced his point with admirable focus and supported it with a forceful and realistic argument.

He emphasised that what had been before the President was a renewal of a bail application and not a bail application de novo:

accordingly it was governed by s.3, and not s.2, of the 1997 Act. This appears to be so; the order refusing bail of the 10th

November, 2003 states expressly that the application was refused “under the provisions of s.2 of the Bail Act, 1997”.

44. Mr. Costello argued that s.3 envisaged four requirements being met before bail could be granted. These are:

(1) That four months should have expired since the refusal of the bail application without the applicant’s trial having

commenced. This criterion appears to be met.

(2) That there should be delay, attributable to the prosecutor, in the bringing on of the trial. Mr. Costello submitted that

the meaning of the statutory phrase “the prosecutor” was the Director of Public Prosecutions, his servants or agents and

not Ireland, the Attorney General, the People, or the community generally.

(3) A renewed application for bail on the ground of this delay.

(4) A change of circumstances in relation to one or more of the matters set out in s.2(2).

45. Mr. Costello pointed out that, although a date for trial had not been fixed until March, 2004, it had been obvious at all times since

the applicant’s arrest that he would be in custody for a long time awaiting trial if bail were refused. Specifically, he said, it would have

been known to all concerned that a defendant charged before the Special Criminal Court will inevitably face a much longer period of

remand than a person charged before the ordinary courts. This delay was not due to “the prosecutor” in any way but related solely to

pressure of business in the Special Criminal Court which prevented that Court from fixing his trial for an earlier date. Mr. Costello fully

acknowledged that the prospect of an untried defendant spending twenty months in prison on remand was a disturbing one. However,

by reason of the provisions of s.3, that was an irrelevant consideration on the renewal of this application for bail.

46. It should be noted that twenty months spent on remand would be the equivalent of significantly over two years spent serving a

sentence, when remission is allowed for.

47. Mr. Costello’s submissions on this point were, of course, those which had found favour with the learned President, who illustrated

his findings by saying that delay in the service of a Book of Evidence by the Director was relevant delay for the purposes of s.3, but

delay resulting from the inability of the Special Criminal Court to afford a prompt hearing would not confer a right to renew an

application for bail. He went on to find that if the criteria for making an application under s.3 were met, the Court was confined to a

consideration of the factors enumerated in s.2(2), together with the delay which had occurred in so far as was attributable to the

prosecutor. Since he had already held that the terms of s.2(2) precluded a consideration of when the trial would take place in an

original application in which s.2 is invoked, this finding has the effect that that question continues to be irrelevant in a renewal of an

application under s.3, unless the whole of the delay in commencing the trial is attributable to the prosecutor.

48. The President held that, in the circumstances of this case, there had been some delay on the part of the prosecutor but went on,

“However, in the overall context of the delay which will be incurred, which will be in the order of twenty months from the date of

charge, the significance of this delay is somewhat reduced”.

49. That, in fact, is likely to be the position in the huge majority of these cases: any delay attributable to the prosecutor will usually

be dwarfed by the delay in getting the case on for trial.

Construction of Section 3.

50. I would first observe that this topic has been the subject of a written judgment in another High Court case and I wish gratefully

to acknowledge the assistance I have derived from it.

51. In White v. DPP (High Court, unreported 20th May, 2003) Peart J., in dealing with an application pursuant to s.3 of the Act of

1997, said:

“While there has been delay, it cannot reasonably be said that the prosecution is guilty of any culpable delay, but s.3

does not refer to culpable delay, merely delay. On that reading of the Section, therefore, it is the fact that no trial has

taken place within four months which is relevant, rather than any reason for the delay. This seems confirmed by

subsection (2) of s.3 which states that in determining whether to grant bail the Court may receive evidence or

submissions concerning the delay. It is not therefore mandatory that it does so.

Counsel for the respondent has raised a preliminary point that the matter of bail is res judicata since the decision of Butler

J. in December, 2002, and submits that it is only where there is what could be described as culpable delay on the part of

the prosecution that the applicant can renew his application, and only then that the Court can proceed to consider

whether it is satisfied that the interests of justice require that the applicant be granted bail.

A person’s right to bail, and consequently his liberty pending trial on offences in respect of which he enjoys the

presumption of innocence, is an important right and in my view the Act must be interpreted strictly in accordance with

the ordinary meaning of the words used in the Act, and that in any case of ambiguity or doubt the benefit of such

ambiguity or doubt ought to be given to an applicant for bail. I am therefore satisfied that it is open to this Court to

construe the Section’s meaning that once the fact of the matter is shown to be that a period of four months has elapsed

from the making of a refusal under s.2, this Court on the hearing of a renewed application can go on to consider whether

the interests of justice require that the applicant be granted bail, and that the Court may or may not require to hear

evidence or submissions in relation to the delay which may have occurred.” (Emphasis in original)

52. As the extract makes clear, Peart J. was there dealing with a preliminary application to the effect that the renewed bail

application should not be considered at all because the issue was res judicata. It will be noticed that the Director submitted in White

that the delay on his part had to be “culpable”: no such submission was made here but it was stressed that the delay had to be his.

In the final passage of his judgment Peart J. summarised its effect elegantly as follows:

“In all the circumstances of this case I am satisfied that the Act should be interpreted in the way I have described, for

the purpose of doing justice in the unusual circumstances of this case, and bearing in mind the presumption of innocence

which the applicant enjoys. Accordingly I am satisfied 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. Having considered the interests of justice in the context of the facts of this case I am satisfied that I should

consider the remainder of this application for bail.” (Emphasis added)

53. It will immediately be apparent that if the Director’s submissions prevail, the question of the likely length of pre-trial delay will be

wholly irrelevant on an initial application where he invokes s.2 and will be relevant on a renewed application, a trial not having

commenced within four months of the original refusal, only in so far as the delay can be attributed to him. While, as noted above, the

Director’s submissions on this appeal did not use the term “culpable” delay, as he had in White, I believe that the concept of culpable

delay is inherent in his submissions. It is clear from the affidavit filed on behalf of the Director in this case that he does not consider

lapse of time due to the length and complexity of the investigation required to be reckonable delay for the purposes of s.3 because it

is explicable in terms of the exigencies of the case, some of which are described. Since, in the Director’s view, explicable and

excusable delay is not reckonable it must follow that any delay which can enure to the benefit of the applicant is culpable in one

degree or another. But even if that is true, the Director would say, it must be culpable on him and not on the part of the executive,

the legislature, the State or the community generally.

54. In the very analogous context of s.2, I have expressed my grave anxiety as to whether the very narrow construction which found

favour with the President would be at all consistent with the Constitution or the Convention. I am still more concerned on that topic

as it arises in connection with s.3. It amounts to a contention that the question of the length of pre-trial incarceration can be wholly

excluded when s.2 is invoked in answer to an original application and (on the facts of this case) very largely excluded on a renewed

application under s.3. The Director has been ready for trial since the service of the Book of Evidence, five months after the

defendant’s arrest. Obviously, the whole of that period cannot be considered culpable on the part of the Director: perhaps none of it

is and certainly not more than a month or two. Accordingly the Director’s contention comes down to this: that of the twenty month

pre-trial delay, during which the defendant will be incarcerated if the Director prevails, perhaps none and at best only one or two

months – five or ten per cent – can be considered.

55. The difficulty in the Director’s submission can be put in another way. There is no doubt that, prior to the enactment of the

Sixteenth amendment and the Act of 1997, the question of when a trial would take place was an admissible and sometimes an

important consideration on an application for bail. There is high authority for the proposition that a long deferred trial might lead to

bail being granted where otherwise it would be refused. Neither the amendment nor the statute purported in any express way to

render the date of the trial an irrelevant or inadmissible consideration. Neither measure was urged or advocated on the basis that it

would have this effect. On the contrary, the amendment and the Statute constituted an addition to, and not a deletion from, the

corpus of law in relation to bail.

56. One of the major considerations in considering whether any particular period of pre-trial detention is acceptable, whether one

approaches that issue in legal, constitutional or simple human terms, is the length of that detention. In my view, it imperatively

requires to be considered in every case. It would be a curious law that precluded its consideration by the very courts charged

(together with other organs of government) with the vindication of the citizen’s right to liberty. Accordingly, and having regard in

particular to the court’s obligation, where possible, to construe enactments so that their operation is consistent with the

Constitution, and the European Convention, I would only adopt the construction contended for by the Director if I were constrained

to do so.

Structure of the Section.

57. I would first refer to the very basic canon of construction summarised in Bennion, Statutory Interpretation, 4th Ed., (London,

2002) at p. 285:

“Prima facie, the meaning of an enactment which was intended by the legislature (in other words its legal meaning) is

taken to be that which corresponds to the literal meaning.”

58. The learned author notes that the literal meaning corresponds to the grammatical meaning unless that meaning, deduced in the

relevant context, is ambiguous. In that event, then any of the possible grammatical meanings may be described as the literal

meaning. Authorities in several different centuries are cited for those basic propositions.

59. The subsection in question consists (firstly) of two preconditions which, if they are both met, (secondly) allow a person to renew

his application for bail on a specified ground and (thirdly) a requirement of a court to release the person on bail on the hearing of such

renewed application “if satisfied that the interests of justice so require”.

60. The specified ground is “delay by the prosecutor in proceeding with [the person’s] trial”, but the basis on which the court is to

act is a quite different one, relating to the interests of justice.

61. It seems to me that the preconditions to the renewal of an application for bail are the prior refusal and the elapsing of four

months from it during which the trial has not commenced. The preconditions do not include delay by the prosecutor in proceeding with

the trial nor is such delay the mandated criterion of action by the courts: that criterion is “the interests of justice”.

62. The above appears to me to be the correct grammatical meaning of the relevant parts of the section. The critique of it in the

Director’s submission is that it attributes only a nominal role to the question of “delay by the prosecutor” whereas the fact that those

words have been included by the legislature suggest that they be given a more active role, and perhaps that such delay must be

established before “the interests of justice” can be considered.

63. From any point of view, the section must be considered as oddly drafted. Commenting on this aspect, Professor Walsh in the work

already quoted, at p. 534 says:

“On a renewed application under these provisions the Court must grant bail if satisfied that the interests of justice so

require it. The wording of this provision is unusual in that the application must be brought on the basis of delay, while the

Court is required to release the person on bail if satisfied that the interests of justice so require. There is at least an

implication that the Court would be obliged to release the person on bail if satisfied that that was in the interests of

justice, even though it was not satisfied that there had been delay on the part of the prosecutor. It is also worth noting

that the provision is mandatory. The Court must grant bail where it is satisfied that the interests of justice so require”.

64. It will be noted that this passage suggests the same conclusion as that reached by Peart J. in White v. DPP, (High Court,

Unreported, 20th May, 2003) cited above.

65. It appears to me that, grammatically construed, the section may be truly ambiguous. It is redundant to require proof of delay on

the part of the prosecutor if the court is mandatorily required to have regard to the interests of justice whether or not it finds delay

on the part of the prosecutor. Equally, it is redundant to require the court to act on the basis of the requirements of the interests of

justice if it cannot do so unless it finds that there has been delay on the part of the prosecutor. If there is such ambiguity I would

prefer the grammatical and literal construction which allows the court to entertain a renewed application on proof that the previous

application has been refused and that four months has passed since then without the trial commencing. The application must be

brought on the ground of delay by the prosecutor, but the Court must determine it on the basis of the requirements of the interests

of justice which, as in every bail application, require a consideration of when the trial will, or probably will, take place. In other words,

I prefer an interpretation which gives primacy to the Court’s view of the requirement of the interests of justice rather than one which

permits that essential matter to be considered only if there is delay on the part of the prosecutor. The interests of justice, in my

view, require a consideration of the actual time to be spent in custody, no matter who is culpable for that, and whether or not

anyone is culpable at all.

66. If the reference to “delay by the prosecutor” were accorded the meaning contended for by the Director, it would sit oddly with

s.3(1)(b). This merely requires, as a precondition to the renewing of the bail application, that four months should have elapsed from

the refusal of the original application without the trial having commenced. But the renewal, enabled by the passage of four months

without more, must be sought on the basis of “delay by the prosecutor”. This goes beyond ambiguity and approaches the status of

contradiction, unless the term “the prosecutor” is given a broad meaning as opposed to the narrow one for which the Director

contends. Article 30.3 of the Constitution provides:

“All crimes and offences prosecuted in any court constituted under Article 34 of this Constitution other than a court of

summary jurisdiction shall be prosecuted in the name of the People and at the suit of the Attorney General or some other

person authorised in accordance with law to act for that purpose”.

67. On this basis, it might be possible to regard the People, that is the community as a whole, as the prosecutor, but that

interpretation is not itself entirely straightforward. More convincingly one might (bearing in mind the terms of subparagraph (b)) regard

“delay” as a reference to the four month lapse of time mentioned there, and the immediately following words as simply excluding from

consideration any lapse of time attributable to the applicant himself. On balance this is the interpretation I would favour.

68. It appears to me, in summary, that the drafting of this Section is not merely unusual, but ambiguous or even contradictory. That

being so, I do not feel constrained to adopt a construction of it which requires that delay other than delay by the Director of Public

Prosecutions is excluded from the consideration of the Court. The reasons for this are fundamentally the same as those which have

led me to reject the Director’s contention that the interval before trial is not to be considered at all on an application under s.2.

69. Since I do not consider the list of factors specified in s.2 to be exhaustive of the factors a court is entitled to consider, it follows

that I do not consider that the Court, on the hearing of a s.3 application, is confined to seeking a change of circumstances in relation

to one or more of those factors. Indeed, I do not see how a result which is required to meet the requirements of justice could be

limited so as to exclude consideration of a central factor.

Conclusion.

70. I would allow the appeal to the extent that I would set aside the order of the learned trial judge refusing to admit the applicant to

bail. Since it appears to me that the High Court, in reaching its conclusion, adopted an erroneous construction of sections 2 and 3 of

the Bail Act, 1997, I would remit the application to the High Court for further consideration on a correct interpretation of those

sections.