Supreme Court allows appeal granting prohibition against prosecution due to excessive pre-trial delay of 14 years.

THE SUPREME COURT

405/04

Murray C.J.

Denham J.

Hardiman J.

BETWEEN:

VERONICA NOONAN (AKA VERONICA HOBAN)

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Mr. Justice Hardiman delivered the 27th day of July, 2007.

1. The applicant was for a considerable time a bookkeeper employed by a credit union based in Cabra, Dublin. She and a superior

financial official, the Treasurer, were apparently employed full time and there were also various part time employees. In early 1992

some anonymous phone calls were received by the Irish League of Credit Unions as a result of which it was decided to have an

inspection by way of unannounced visit at the premises of the credit union in May, 1992. As a result of this in turn, Ms. Noonan was

suspended and an interim report was prepared by the League on the 8th July, 1992. The following month a decision was made to

make a complaint to An Garda Síochána and this was done on the 4th September, 1992.

2. Two and a half years later, on the 21st February, 1995, the applicant was arrested and detained for questioning pursuant to s.4 of

the Criminal Justice Act, 1994. Two years and ten months after that, on the 23rd December, 1997, the applicant was brought before

the District Court and charged with a single offence. Some months later she was charged with fifteen further offences. All of these

charges allege offences contrary to s.32(2)(a) of the Larceny Act, 1916 as amended and all relate to the period between the 1st

January, 1990, and the 7th May, 1992. The following is a specimen of the charges originally preferred against the applicant:

“For that you the said accused on a date unknown between the 1st January, 1990, and the 25th February, 1991, at the

offices of Cabra Credit Union 87a Cabra Road, Dublin 7, in the Dublin Metropolitan District, did fraudulently cause one

Christine Marshall and May Walters to execute a valuable security by signing a blank Bank of Ireland cheque No. 010540

drawn on the account of Cabra Credit Union A/C No. 14383858 by falsely pretending that the same was required for

payment of a sum properly due and owing by Cabra Credit Union.

Contrary to s.32(2)(a) of the Larceny Act, 1916, as amended by s.9 of the Larceny Act, 1990”.

3. The two ladies mentioned were board members of the credit union.

4. From the foregoing it appears that some five years and three months elapsed between the making of a complaint and the eventual

charging of the applicant. This period is divided into a period of approximately two years and five months between the complaint and

the arrest of the applicant and her detention pursuant to s.4, and a further period of two years and ten months between that arrest

and her subsequent charging on the 23rd December, 1997. Only one charge was then preferred, the balance following about three

months later.

The proceedings in the District Court.

5. A further period of some four years and six months elapsed between the applicant’s first appearance before the District Court and

her eventual sending forward for trial on the 4th July, 2002. This date was exactly nine years and ten months after the original

complaint. No less than two years and eight months of this period of four and a half years which the case spent in the District Court

was occupied with attempts to take prosecution depositions. The prosecution first stated that they required to examine two

witnesses on deposition and applied to do so on the 28th July, 1998. But these depositions were not taken until the 23rd February,

2001.

6. In the course of the District Court proceedings the charges against the applicant were amended by the deletion of the name “May

Walters” from the charge sheet. An application was made to do this on the 15th June, 1998. This is a striking amendment because

the signatures of both Ms. Walters and Ms. Marshall appear on all the relevant cheques. Ms. Walters was witness no. 23 in the Book

of Evidence. When the State’s depositions were eventually taken, the applicant applied to have Ms. Walters examined on deposition.

It transpired that she had died in January, 2000.

The present proceedings.

7. Shortly after being returned for trial the applicant instituted judicial review proceedings directed at the prevention of her trial on

the grounds of delay and prejudice.

8. The matter came on for hearing in the High Court (O Caoimh J.) and the applicant was refused relief in a judgment delivered on the

9th day of July, 2004.

The High Court judgment.

9. A number of features of the High Court judgment are of significance for the disposition of the appeal. Relief was refused on the

basis that:

“Notwithstanding the period of delay, that the delay in question is not one that has been demonstrated to have impaired

the defence of the applicant”.

10. Dealing with the period of pre-charge delay the learned High Court judge held, at p.31 of his judgment:

“While it is clear that some of the period in question, in relation to the decision making and the preparation of charges,

have not been adequately explained, I am satisfied that in regard to the overall period, that no gross or inordinate delay

has been identified such as to warrant the granting to the applicant of the relief which she seeks”.

11. The learned trial judge was also impressed by the absence of documents in the Credit Union. He found that “It is unnecessary to

ascribe the blame for this state of affairs but the essential fact is not seriously disputed”. He also considered that it was “self

evident” that the charge was a complex one “involving as it does a serious fraud on a credit union”.

12. Turning to the post-charge delay, at p.32 of the judgment the learned trial judge held that:

“the delay in this case, while significant, has been explained in the affidavits put before the Court. There is of course

some dispute in relation to some of the dates and whether, for example, cases were adjourned due to the non-

attendance of a solicitor, either for the applicant in the District Court or for the prosecution. However, I do not believe

that the areas of dispute are of any significance in this regard. The overall situation is one where the essential delay

related to the necessary course of events in the District Court, but further by reason of periods which were unnecessary

due to the absence of the judge handling the case in the District Court”.

13. In relation to the overall period of delay in the District Court, the learned trial judge held:

“I am not satisfied that the period in question is one attributable to what is described as prosecutorial delay and it

appears that at all stages the prosecution sought to advance the case through the District Court. Equally, insofar as

issues were raised on behalf of the applicant of the District Court by her legal advisers no blame attaches to same. The

solicitor in question was entitled to raise issues notwithstanding the fact that some of these may have been ruled upon

against his client and no suggestion is made that there was any deliberate attempt on the part of the applicant to delay

the proceedings in the District Court. There is, however, the situation whereby a number of delays occurred by reason of

factors for which neither party was to blame; namely the non-availability of members of the District Court and lengthy

adjournments for matters to be addressed. This is what has been referred to as systemic delay in the District Court and is

a matter which must be of some concern”.

14. In relation to the circumstances in which, after the State depositions were taken, the applicant required the deposition of May

Walters, a witness who transpired to have died in the early part of the year 2000, the prosecution had submitted that it was very

likely that the accused had known of this unfortunate event at the time she requested the witness’s deposition. But the learned trial

judge made no findings to this effect, though he found that the prosecution and the defendant’s legal advisers were unaware of it.

But certain of the averments on affidavit by the Director’s deponent on this issue will be considered further below.

The applicant’s submissions on appeal.

15. On the hearing of this appeal, the applicant challenged the learned trial judge’s findings in relation to both aspects of the delay.

She relies on the fact that portions of the delay were described by the learned trial judge as “unnecessary” and “inordinate” (p.34).

The applicant attacks the proposition that a delay in getting papers from the credit union accounts for any significant part of the

overall time elapsed before the charge and says that according to the affidavit of Detective Sergeant Finan, the State had all the

documentation they required on the 14th June, 1994. She points to the fact that it took nine months to take sixteen statements

(from October 1995 to June 1996), another ten months or so to deal with unspecified requirements of the Director of Public

Prosecutions and fully six months for the latter to consider the file before issuing his directions.

16. In relation to the post-charge period, I do not understand either party on the hearing of this appeal to take issue with the learned

trial judge’s findings that, insofar as there were contradictions as between the affidavits lodged on behalf of the respective parties,

those contradictions were not really significant for the purpose of the present case. But the applicant challenges the central

proposition on this topic in the High Court judgment: that “systemic delay” in the District Court accounts for long periods of time

which cannot be regarded as availing the applicant because they are not periods of delay caused directly by the prosecutor. In this

regard, she relies heavily on the decision of Mr. Justice O’Neill in D.P.P. v. Arthurs [2000] 2 ILRM 363, and in particular the following

passage at p.376 of the report:

“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

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

manner which, insofar as it is reasonably practicable, eliminates unnecessary delay, and must additionally mean that such

resources as are necessary for the orderly and expeditious processing of criminal cases through the Courts are provided”.

17. The applicant also challenges the learned trial judge’s finding as to the absence of real prejudice, a topic which I will return to

below. But in any event, she relies if necessary on what was said by Geoghegan J. in B.F. v. D.P.P. [2001] 1 IR 656, at 665:

“where there is culpable delay on the part of the State Authorities, then having regard to all the circumstances of the

case, the delay itself may entitle the accused to an order preventing the trial, irrespective of whether there is actual or

presumed prejudice”.

18. The applicant also relied on several decided cases where relief had been granted in respect of delay no longer than that disclosed

in the present case. Some of these will be discussed below. Reliance was also placed on certain decisions of the European Court of

Human Rights.

The Director’s case.

19. The Director says that the affidavit of Detective Sergeant Finan has adequately explained delay having regard to the complexity

of the case. He complains that the Detective Sergeant was not cross-examined “and thus never had the opportunity to answer the

suggestions now made in the applicant’s written submissions before this Court that certain periods of time have not been adequately

explained.

20. He relies on Hogan v. President of the Circuit Court [1994] 2 IR 513:

“Obviously, in any case where the prosecuting authorities on the information available to them have not got proper

grounds for charging any person with an offence their failure to do so and elapse of time before they are in a position to

do so cannot give an accused the right to prohibit a trial on the basis of the defeat of his constitutional rights to an

expeditious trial”.

21. On the very striking level of delay in the District Court, the Director of Public Prosecutions makes a number of points. He draws

attention to certain of the numerous adjournments in the District Court as being either for the benefit of the defence or for the

benefit of both parties. He says that the applicant rarely or never objected to an adjournment. More significantly, he relies on a

dictum of Kelly J. to the effect that “fraud cases by their nature are complicated… McKenna v. The presiding Judge of the Dublin

Circuit Criminal Court, (High Court, unreported, 14th January, 2000).

22. The Director submitted that the case of State (Brennan) v. Connellan (High Court, unreported, 17th June, 1986) correctly

summed up the proper approach to a case such as this and is particularly significant because it, too, was a fraud case. He relied on

the following passage from the judgment as expressing the core question on an application such as this:

“whether the delay in this case is such as, in all the circumstances, to be of such a degree as to amount to an

infringement of the prosecutor’s constitutional right to have his trial heard with reasonable expedition”.

23. It may be of interest to note that the delay complained of in that case was a period of twelve months in preparing the Book of

Evidence and securing a return for trial (by comparison with four years and eight months in the present case); a period of six and a

half months between the return for trial and the date of arraignment in the Circuit Criminal Court; a period of six months in dealing

with proceedings to have a defective return for trial quashed in the High Court and a period of a further six months in preparing and

serving a notice of intention to proceed.

24. The judge in that case said:

“I am satisfied that there was no reasonable justification for the delay in preparing and serving the notice of intention to

proceed on the prosecutor, that such delay constituted an infringement of the prosecutor’s right to have his trial heard

with reasonable expedition and that the reason given therefore, namely pressure of work, does not provide a justification

for such delay and the consequent infringement of constitutional rights”.

25. It is fair to say that the Director’s greatest reliance was on an unreported decision of Mr. Justice Kelly, McKenna v. The presiding

Judge of the Dublin Circuit Criminal Court (High Court, unreported, 14th January, 2000). This was a slightly double edged case: the

complaint was made in December, 1992, but no charge was brought until September, 1998, a period of over six years. The applicant

was however returned for trial in early 1999. Nevertheless, Kelly J. held that there had been inordinate delay in respect of the pre-

charge period. However, he refused relief on the grounds that no prejudice had been demonstrated. This was one of the learned trial

judge’s fundamental findings in the present case.

26. The Director also mentioned the Strasbourg jurisprudence in his submissions. In particular he urged that the European Court of

Human Rights decision in Barry v. Ireland (15th December, 2005) is not decisive of this case because the applicant there was in his

eighties and had to bear the weight of the charges for a period of ten years during which he was debarred from carrying on his

profession as a medical practitioner. It was these factors, not present in this case, which led to the finding that the delay of ten

years had been in violation of Article 6 of the Convention. He urged that the Irish Courts decision in the same case was of much

greater relevance.

Decision.

27. I do not consider it a legitimate criticism of the applicant that she relies on certain statements and omissions in the affidavit of

Sergeant Finan without having cross-examined him. Where evidence is given viva voce, an opposing party is perfectly entitled to

accept the witness’s statements at face value and make such submissions as he thinks fit on the basis of them. He is not obliged to

cross-examine if he does not think it necessary or tactically wise to do so. The same position, in my view, applies to evidence on

affidavit. In this case, for example, there are a number of periods of delay which do not appear to be explained at all in the Sergeant’s

affidavit: I cannot see any obligation on an opposing party positively to draw them to his attention and ask him has he any

explanation for them. I am thinking, for instance of the periods June 1994 - October 1995 and March - September 1997. The same

rule, of course, will apply to the affidavit verifying the facts stated in the Statement of Grounds.

28. I consider that, although the present case is undoubtedly a fraud case, it is not unduly complicated. In fact, the central

allegation is blindingly simple: it was first alleged that the defendant, the applicant here, fraudulently obtained money from the credit

union by getting two ladies, Ms. Walters and Ms. Marshall, to sign blank cheques. Each of these ladies signatures appeared on each of

the cheques allegedly procured by fraud. Six months after the first charge was preferred, and three months after the other fifteen

were preferred against the applicant, the name of May Walters was deleted from the charge without any explanation to the

defendant or to the Court. In other words, she was first charged with fraudulently causing both ladies to sign blank cheques: it is now

alleged only that she caused one of these ladies to sign the blank cheques and no allegation is being made about the other, even

though each lady signed every cheque. It must be noted that the withdrawal of Ms. Walter’s name occurred well before that lady’s

unfortunate death.

29. While it is certainly true that the investigation of the offence involved more than simply speaking to Ms. Marshall and Ms. Walters

it appears to me that the rest of the work was of a relatively mechanical kind: chasing up the cheques to see what happened to

them after they were drawn. This may have been tedious at times but was neither complex nor intellectually difficult. I would reject

any suggestion that all fraud cases are by definition complex. This one was more bicycle mechanics than rocket science.

30. It appears to me that many of the difficulties involved in the case related not to any inherent complexity but to the inability of

the gardaí, and later the State Solicitor, to give the case exclusive attention over a shorter period rather than episodic attention over

a period that was, in the end, immensely long. This, combined with the alarmingly long periods for which the case required to be

adjourned to get proper attention in the District Court, appears to me to account for a good deal of the delay.

31. Neither sort of delay in my opinion is inherent in the nature of a fraud case. Like every other sort of case, fraud cases range from

the very simple to the very complex: it is their factual details, and not their general nature, which cause such a case to be simple or

complicated.

32. In another fraud case almost twenty years ago, Fitzpatrick v. Shields and the D.P.P. [1989] ILRM 243, the defendant also

complained of delay. A complaint in the nature of fraud had been made against Ms. Fitzpatrick in 1983, relating to a fraud allegedly

committed in February of that year. The investigation took from late 1983 until late 1985. The defendant was arrested in May, 1986,

and the Book of Evidence served in June of that year. The prosecution then announced their intention to take depositions and the

case was further delayed in December, 1986, where it transpired that orders under the Bankers Books Evidence Acts were defective.

This led to a further adjournment until June, 1987, for the purpose of taking depositions. The applicant then moved for judicial review.

33. Miss. Justice Carroll in the High Court, in a judgment delivered in November, 1987, held that:

“The cumulative effect of all these delays is that a long delay at an early stage of the proceedings means that a short

delay at a later stage which might not have been objectionable is no longer tolerable. The delay in the preparation of the

Book of Evidence is not tolerable and taking all the circumstances of the case into account I hold that the Order of

Prohibition sought by the applicant should be granted”.

34. From the report of Fitzpatrick it appears that the delay between complaint and the High Court application was about three and a

half years. The delay between complaint and arrest was about two and a half years. The Book of Evidence was served within a month

of arrest but a little over two and a half years from complaint. I cannot see that the case was any more complicated than this one

and one can only express alarm about the much longer periods of time involved in dealing with the latter.

35. Also of relevance is the case of Cahalane v. Judge Murphy [1994] 2 IR 262. In that case there had been a two year investigation

of revenue offences between 1987 and 1989. The D.P.P. directed charges in 1990 and in the following year the defendant was in fact

charged. In 1992 a Book of Evidence was served and in 1993, after a considerable delay about depositions in the District Court, he

was returned for trial. Charges were brought four years after the last date on which an offence was said to have been committed. In

the course of this time a defence witness had died and the applicant had suffered hardship. The case was described by Finlay C.J. as

one of “some complexity” but prohibition was granted. Finlay C.J. said that he had:

“failed to discover any reasonable explanation for such delays as occurred for example, between the conclusion of the

last District Court process in 1989 and the direction of the D.P.P. ten or eleven months later and equally significantly the

delay between the direction of the D.P.P. and the actual charging of the accused which was almost a year. 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 to the applicant’s undoubted right to an expeditious trial the priority which it

deserved. To take depositions of the District Court which are explained in the affidavit of the State Solicitor for the

purpose of conveniencing the situation with regard to judges of the District Court and with regard to the availability of

court accommodation at intervals of three, four and six months in a case where the accused had been charged almost

four years after the last date on which he was alleged to have committed an offence is, it seems to me, utterly

inconsistent with a clear recognition and vindication as any State Authority would be obliged to give to the right of the

applicant to an expeditious trial”.

36. This case appears to me to be directly in point.

37. In my view we have over the last decade or so become unfortunately accustomed to very long periods of delay. Many of these

arise in child sexual abuse cases, which are the subject of a separate jurisprudence. In other cases, it must be borne in mind that a

period such as elapsed in this case of two months short of a decade between complaint and sending forward for trial is a period of

very remarkable length, requiring detailed explanation. In the case of State (O’Connell) v. Fawsitt [1986] IR 362 a period of between

three and four years was described, correctly in my view, as “extreme”. It is necessary to adopt a much more rigorous attitude to

delay than has been seen in recent times, if the prosecution of these cases is to meet domestic and international standards.

38. I cannot accept the finding of the learned trial judge that delays which are described as “systemic” in the District Court are to be

excluded from the category of delay which can assist an applicant. It is wholly unacceptable that the arrangement of a date for the

taking of two short depositions from banking witnesses occupied a period of two years and eight months. In large measure this is

because, at least until recently, such depositions took inordinate periods of time to record, because the recording had to be done by

handwriting. Accordingly even short depositions needed long hearings. It is outrageous that this system has endured into the 21st

century. Furthermore, it is clear from the number of adjournments necessary to facilitate the hearing of a brief legal argument, that it

was a major difficulty for the District Court to provide time for argument on a legal point of moderate complexity. In the present case,

two such points seems to have arisen. The first arose when the prosecution decided to delete the name of May Walters from the

charges after the Book of Evidence had been served: an issue arose as to whether this was legally possible. Secondly, when the

depositions were sought, an argument arose as to the scope of the evidence that was open to the relevant witnesses to give. This

argument, when eventually time became available to hear it, led to a restriction on the evidence of one of the witnesses.

39. As it happens, about the time this case was heard on appeal, the trial concluded of two executives of the notorious Enron

Corporation. It is revealing to see how much more rapidly this hugely complicated case was processed through the American criminal

system than our system could deal with a very much simpler case. In Enron, the investigation began in January of 2002; the auditors,

Arthur Anderson, were convicted of certain offences in June of that year; high executives pleaded guilty to various charges in

August, 2002; a major Enron trader pleaded guilty to wire fraud in October; a middle ranking executive to under declaring of tax in

November. There were further pleas by significant players in February, 2003, September, 2003, and October, 2003. The first of the

top managers pleaded guilty in January, 2004, two years after the investigation commenced. The corporation’s secretary pleaded

guilty to insider trading in May, 2004. Kenneth Lay, the former C.E.O. of the company, was indicted in July, 2004. His trial began

January, 2006, and ended in conviction in May, 2006. Confronted with the enormous disparity between the speed in which this

uniquely huge and complicated case was dealt with in America and the snail’s space at which the Irish system processed the present

case, counsel for the Director attributed the difference to the enormous media publicity which the Enron case attracted. I cannot see

this as a satisfactory explanation.

40. The comments of O’Neill J. in Arthurs, cited above, have already been approved by this Court in Maguire v. D.P.P. [2004] 3 IR 241.

I would again express my agreement with him in this case. It is no consolation to a person whose trial has been inordinately delayed

that this delay, or some discrete part of it, is due to “systemic delays” due to under sourcing of the District Court, rather than to foot

dragging by the prosecutor himself. The result is the same. It is the State which has an obligation to provide a trial with reasonable

expedition and I would not hold an applicant disentitled to relief because the failure to afford her this right arises from the activity or

inactivity of one part of the State rather than the other.

41. In my view, our State is in some danger of becoming acculturated to delays which are, on our domestic jurisprudence and by

international standards, immensely long. Something quite extraordinary would be required to justify a case where virtually a whole

decade had elapsed between complaint and return for trial. There is nothing of that sort here.

42. In reaching that conclusion, I have not found it necessary to discuss the cases from the European Court of Human Rights. But it

is manifestly necessary for the State authorities to consider those cases carefully and to take necessary steps to ensure that Ireland

is in a position to meet the standards of a Convention which we have recently decided to incorporate into our law. I hope that the

brevity of this reference will not lead to an understatement of the urgency of official attention being directed to this matter.

A relevant precedent.

43. If relief is not granted in this case, the Court would in my view be indicating that it will now apply a less demanding standard to

applications of this sort than was applied well over a decade ago by Finlay C.J. in Cahalane v. Judge Murphy [1994] 2 IR 262. The

similarities between the two cases are striking. In each case there was an element of unexplained delay: in this case portions of the

delay were described by the learned High Court judge as “unnecessary” and “inordinate”. In each case, moreover, a considerable

amount of the delay in the District Court was caused by difficulty in getting time and personnel to take depositions. This case was

four years and eight months in the District Court: Cahalane was one year and four months. Still more significantly as a matter of

principle, the Supreme Court in Cahalane flatly declined to treat the availability or otherwise of judges or of accommodation in the

District Court as a factor excusing the much shorter delay which occurred in that case. I could not agree that, twelve years later, we

should now be more tolerant of delay based on that reason. Moreover, the overall period of delay from alleged offence to sending

forward for trial was eleven years and seven months, by comparison with about seven years in Cahalane. I would not be prepared to

apply a less stringent standard than that applied by Finlay J. a considerable time ago.

44. But concern about systemic delay was expressed by Finlay C.J. over a decade ago, and led at that time to the prohibition of

further proceedings. The history of this case shows, unfortunately, that mere condemnation however justified and however elegantly

expressed, will have no practical consequence in the vindication of the citizen’s right to a speedy trial.

Prejudice.

45. The foregoing part of this judgment relates to the applicant’s right to a speedy trial, which I believe to have been seriously

breached in this case. That does not in itself call for the demonstration of prejudice. But I have to say that I do not agree with the

finding of the learned trial judge that there was no prejudice in this case. As appears from the summary of the facts set out above,

the applicant was originally charged with fraudulently procuring two ladies to sign blank cheques. Later, for reasons unexplained, one

of these ladies was deleted from the charge sheet. It is this lady who has since unfortunately died. There seems to be reason to

believe that this lady would have been a favourable witness from the defendant’s point of view, quite apart from any speculation as

to the reason why the prosecution removed her from the charge sheet. In his affidavit of the 30th June, 2003, Detective Sergeant

Finan says that the deceased lady “would have considered herself to have been a close friend of the applicant and any hesitation she

may have had in identifying some handwriting was from a misplaced loyalty to the applicant”.

46. This, of course, is the prosecution view of the deceased lady. It reflects the fact that she “may have been hesitant in identifying

certain handwriting” and seeks to attribute this to a loyalty, which the Detective regarded as misplaced, to the applicant. But this

implies that the witness was “hesitant” in identifying handwriting attributed to the applicant and was loyal to the applicant despite

the allegations which the prosecution had made against her. In view of the fact that these observations are made about a person

who was originally said to have been one of only two people allegedly caused by the applicant to sign the cheques in question, and

who was later deleted from the charge sheet without explanation, it appears to me that the applicant is disadvantaged, and the

State advantaged, by her unfortunate death. This might not have been so significant a matter had she died within a reasonable time

of the complaint being made, but in fact she died some seven and a half years later. I can see absolutely no reason why this case

could not have been disposed of well within that time.

Issues raised.

47. I cannot regard the time which has elapsed in this case as consistent with the applicant’s “implied right to reasonable expedition,

under the due process clause”, as Denham J. put it in D.P.P v. Byrne [1994] 2 IR 237.

48. In my opinion, a case exhibiting this level of delay confronts the Superior Courts with some very pointed questions. Is one

prepared to accept that all fraud cases are by definition presumptively so complex as to justify a remarkable length of time necessary

to investigate relatively simple facts such as those we see here? Is one prepared to say that delay, to be reckonable for the purpose

of an application like this must be that of the prosecutor and not “systemic” delay which is to be laid at the door of the State more

generally? In my view, these questions amount to asking whether the Superior Courts are to be part of the problem or part of the

solution. This case was before the District Court on thirty-one separate occasions over a period of four and a half years: this seems

to me to be five or six times what is appropriate. The legal issues which arose were undoubtedly important to the prosecutor and to

the defendant and required proper professional attention from the lawyers involved in the case, but they were not issues at the

cutting edge of the law. It is hard to believe that they could not have been resolved in a half day’s legal argument, if only there had

been a half day, and the appropriate judge, available at the same time. The position was not helped by the fact that numerous

different solicitors appeared for the prosecution at different times some of whom, it is fair to conclude, may have been more familiar

with the case than others. To read the list of appearances in the District Court and the reasons (no matter whose reasons one

prefers) for the multiple adjournments is to realise that there was a large element of sheer chance in determining when the case could

be processed. Perhaps there was a series of missed chances in the huge number of adjournments: one hopes so, and that other

similar cases may be dealt with somewhat more quickly. But however that may be the overall delay is such as, in my opinion, no Court

could approve. No defendant, whether innocent or guilty, should normally be asked to endure fourteen years pendancy of a charge.

The period of time occupied by the investigation here is hugely beyond the expectations of anyone familiar with commercial forensic

accounting enquiries. One realises of course that a forensic accountant’s report does not translate automatically into statements of

evidence for a criminal trial. But the League of Credit Unions had prepared an interim report at least at the time the complaint was

made here, and there is nothing to justify the enormous lapse of time it took to develop sufficient evidence to prosecute the

applicant.

49. This Court has not enough information before it to say (even if it were relevant to do so) why precisely the unacceptable delays

with which this case has been plagued actually occurred. I am far from making findings of fact as to why this may have been, other

than to say I am satisfied that none of them can be the responsibility of the applicant. Insofar, however, as the delays in the Court

system are concerned I would make a few observations. The number of judge in Ireland is, by European standards, very low indeed.

According to “European Judicial Systems”, a 2006 publication of the European Commission for the efficiency of Justice, the Irish ratio

of professional judges to each 100,000 of the population is lower, at 3.2, than the ratio applying in any other part of the European

Community, apart from England and Wales. In that jurisdiction, however, the 1,305 full time professional judges are supplemented by

no fewer than 28,029 lay magistrates and 1,396 part-time professional judges. If these office holders, unknown in Ireland, are

counted, Ireland has by far the lowest ratio of judges per 100,000 of population in Europe.

50. It must be said immediately that those countries in continental Europe who follow a classic civil law system have judiciaries hugely

larger than any common law system would simply because that system counts as members of the judiciary persons whose functions

are not judicial as we understand the term. It may, for example, include prosecutors. But the point is that even by common law

standards our number of judges (which varies, depending on vacancies, between 120 and 130) is very low and there is some evidence

to believe that the brunt of the difficulties caused by this are felt in the District Court.

Conclusion.

51. I would allow the appeal and grant an order of prohibition against the further prosecution of the applicant.