Court allows trial to proceed despite gross delay and prejudicial publicity, ruling they do not automatically bar proceedings.

[2008] IESC 34

THE SUPREME COURT

353/06

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Between:

BRIAN RATTIGAN

Appellant/Applicant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 7th day of May, 2008.

1. This is a most complex and disturbing case. After anxious consideration, I have come generally to agree with the persuasive

judgment of Mr. Justice Geoghegan which, as I read it, turns very much on the specific circumstances of this case. I am however

gravely concerned that anyone learning merely of the result of the case might be misled into thinking that, as a general proposition,

gross and unexplained delay by the Director of Public Prosecutions leading to prejudicial events will attract severe verbal

condemnation by the courts but will not actually lead to a trial being prohibited and equally that lurid and grossly prejudicial publicity

plainly suggesting the complicity of the accused in the crime with which he is charged will attract strong verbal condemnation from

the courts but equally never, in practise, have the consequence of preventing a trial taking place. Because of these concerns I

venture to offer this short judgment of my own, while agreeing with the judgment of Mr. Justice Geoghegan and the order there

proposed. I am also, independently, concerned that the impression may be given that other irregularities, specifically failure to record

interviews by the gardaí, is anything other than a very grave matter which, in the ordinary course, should lead to the disallowance of

any admissions allegedly made during the unrecorded interviews.

A most unusual case

2. This is a most unusual case in several respects. The crime itself was an appalling one: the deceased was murdered, one might

almost say assassinated, on the public street before a large and various gathering of people some of whom knew one or more of the

persons in the car from which the killer emerged. In the face of this picture of brutal and apparently totally self confident lawlessness,

it is good to be able to acknowledge the presence of mind, courage and decency of one of those at the scene, the doorman of a fast

food restaurant who admitted the deceased, who was still ambulatory but in a dying condition, and locked the door of the premises

after him thus preventing the entry of the killer. Thus excluded, the latter struck the window with his hand, leaving a mark of the

hand outlined in blood on the window. This handprint will obviously be a significant feature of the trial, if it is permitted to continue.

Like Mr. Justice Geoghegan, I consider that it is a significant feature on this application as well.

Two disasters.

3. Despite the aggravated and acute nature of the case and the great public concern it caused, it was treated with an absolute lack

of urgency by the office of the Director of Public Prosecutions. The case was, as the learned trial judge remarked, processed with

admirable dispatch by the gardaí and the State Solicitors’ office. The gardaí sent the file to the latter office on the 14th March, 2002,

who were able to forward it to the Director of Public Prosecutions on the 21st March of that year. But the Director failed to give his

directions as to what was to be done in the case until eighteen months later, in September 2003. The accused was then arrested,

charged and spent something over two months in custody. The case was remanded on a number of occasions due to a failure on the

part of the Director of Public Prosecutions to have the Book of Evidence ready within the statutory time or in any of the numerous

extensions of time which he was granted. These extensions became shorter as time went on, as the Director maintained that the

book was almost ready; but it was never actually produced. The case was struck out on the 18th December, 2003.

4. Though this event did not operate as a bar to the further prosecution of the accused it was a grave set back to the State and it

should certainly have led (as no doubt the learned District Judge who struck the case out intended) to great dispatch in dealing with

the matter thereafter. But nothing of the sort occurred. Some sixteen months elapsed before the appellant was charged again. No

convincing reason whatever was given for this and the Director was eventually compelled to fall back, as an excuse for these

cumulative delays, on “systemic failures”. In my view, this phrase means absolutely nothing. It communicates no answer to the

question “Why was this serious case so grossly delayed?” It fully justified the learned trial judge’s observation:-

“there has been a culpable and unjustified delay on the part of the prosecuting authorities from the time in March, 2002

when the file was forwarded to the office of the DPP and September, 2003 when the prosecution of the applicant was

directed. The explanation for the delay in recharging the applicant after the striking out of the case in December 2003, on

the basis that the preparation of the Book of Evidence was awaited, is not satisfactory.”

5. I have to say that this is a case which reflects grave discredit on the Director of Public Prosecutions in his official persona. The

bland formula with which it was explained, “systemic failure”, appeared to me to reflect a confidence on the part of the Director that,

though the Court might use harsh words about the delay it would not actually grant relief on foot of it. I wish to say in the strongest

terms that but for a unique feature of the case, to be discussed below, I would have favoured granting relief on the basis of the long

and wholly unexplained delay. The first delay appeared to the learned District Judge to merit the striking out of the case. This serious

indication of judicial concern and displeasure had absolutely no effect and a further delay of almost equal length occurred despite the

fact that one is entitled to infer that the Book of Evidence, which had already been worked on for well over a year, must have been

(and was said to have been) in an advanced state of preparation at the time the case was struck out. The seriousness of the case,

which was urged with apparent earnestness on the court as a reason for refusing relief had absolutely no effect on those responsible

for the internal organisation of the office of the Director of Public Prosecutions. Moreover, one reads with some surprise in some of

the newspaper articles complained of that the gardaí apparently felt driven to share with a newspaper the fact that they had written

on several occasions to the Director of Public Prosecutions, but without evoking any reaction.

6. I also wish to say that the phrase “systemic delay” is not only meaningless, it is a caricature of a meaningless bureaucratic phrase

and is almost an insult to any tribunal to which it is offered. It would be infinitely better and more straightforward to say that the

Director of Public Prosecutions and his officers can offer no explanation, which is the fact.

7. In my view this is an unforgivable and unexplained delay, suggesting a contempt for the views of the courts and (if the newspaper

account may be believed) of the gardaí. If the courts were to tolerate delay such as this they would in my opinion be making

themselves part of the problem and not part of the solution.

8. Nevertheless there are two features of the case which make me unwilling, despite the apparent inconsistency with what I have

said above, to grant the appellant relief on the ground of prosecutorial delay. These are the irrelevance of this delay to a dramatic

and (at this stage) wholly unchallenged and unexplained piece of evidence: the bloody hand mark which has been forensically linked

to the accused. I fully accept that the accused is under no obligation to attempt to challenge or explain this evidence in these

proceedings but the fact that he has not done so leaves this dramatic evidence untouched for purposes of these proceedings. I fully

accept what has often been said, that the appellant’s right to a fair trial is, in a hierarchy of constitutional rights, superior to the

community right to have a crime prosecuted. Nor do I accept what is sometimes said in cases such as these, that trials will be

prohibited only in exceptional circumstances: they will and must be prohibited in every case where there is a real risk that the

defendant will not obtain a fair trial. Whether such occasions will be common or exceptional is very much under the control of the

gardaí and the Director of Public Prosecutions. But I consider that the evidence of the bloody handprint, in its unchallenged and

unexplained condition, is itself an exceptional factor which cries out for a proper forensic consideration, and one capable of deciding

the general issue by itself, which is unaffected by delay or publicity.

9. The second reason which would prevent my granting relief is linked to the first. It is that those matters on which the applicant

relies as showing prejudice following from the delay, other than newspaper articles, are wholly unimpressive, for the reasons set out in

the judgment of Geoghegan J. with which I agree. The newspaper material will be considered below.

10. I wish to make it perfectly clear that in my opinion but for those exceptional circumstances the Director’s wholly unexplained

period of delay and the publicity which took place in this period, would lead to the granting of relief. This case cannot properly, in my

view, be adduced in support of the proposition that a cumulative delay of thirty-four months, which is wholly unexplained, cannot

ground an entitlement in the person who suffers it.

Other matters.

11. I agree, again for the reasons given by Geoghegan J., that no entitlement to relief on the grounds of non-recording of certain

garda interviews has been established. In any event, I consider that the admissibility of the contents of such interviews would be a

matter for the trial judge. I wish to say however that I would take most seriously a case where it was established that garda

interviews had not been recorded. For many years the greatest loss of reputation suffered by our system of criminal investigation and

criminal justice, and indeed by that of the neighbouring jurisdiction, was a series of cases where it transpired that people accused of

grave crimes had been “verballed”, that is had material in the nature of confessions attributed to them which they either did not say

at all or which distorted their actual words so as to give a quite false impression. This matter was considered in some detail at the

Court of Criminal Appeal in D.P.P. v. Connolly [2003] I.R.1 and I wish to repeat what was said there, particularly at the end of the

judgment. This subject was taken so seriously, and became such a scandal, that the government in the late 80s established a

committee under the chairmanship of the late Judge Frank Martin S.C. to look into what preventative measures were necessary to

protect persons in custody, and indeed gardaí. In the case referred to, the Court of Criminal Appeal discussed this report at p.10 and

drew attention to its findings that, in a Canadian jurisdiction where recording had become routine, allegations of “verballing” and of

the obtaining of admissions by threats (whether to the prisoner or to another person) physical brutality or trickery had dried up almost

entirely. This has been the position, too, in Ireland since recording became routine, something which occurred a disturbing number of

years after statutory provision for it had been made. I would regard with horror any slow drift back to non-recording on the basis of a

confidence that the courts would not, in practise, do anything meaningful about it. I wish to stress that in my opinion non-recording

should normally mean exclusion and that only in this way can the courts ensure that recording will in practise be routine.

12. It is fair to point out that this is an old case, late in coming before the Courts because of the prosecution’s delay. Accordingly, it

may not be a reliable guide to contemporary garda practice in the matter of recording. I am prepared to assume that it is not. But the

recording of interviews in garda stations must be assiduously policed by the courts.

13. On a related matter, I have to express some disagreement with the judgment of Mr. Justice Geoghegan in relation to what he

describes as “inferred admissions”. There are in this case certain remarks, attributed to the accused, which are not in form

admissions. But they have two other qualities. Firstly some of them, though not direct admissions, are nearly so and are additionally

so callous as to be repulsive. Secondly, I do not agree that these indirect admissions (for such they certainly are) should be taken

into account on an application such as the present on a basis different and, (from the prosecution point of view) more permissive

basis than if they were signed written statements of admission. I am not quite clear as to the significance of this passage:-

“I think that the significance to be attached to those kinds of inferred admissions is quite different from the significance

to be attached to an alleged formal statement of admission in circumstances where that statement is going to be

challenged. The kind of answers which is set out in the judgment even though not yet proved to have been made could, I

think, reasonably be taken into account”.

14. I can see no grounds for distinguishing between the two types of admission. The “inferred admission” is couched in language of

such callousness, on occasions, as to doubly damn the accused. Moreover, an “inferred admission”, that is a statement which though

not a confession tends to suggest guilt, especially if expressed in colloquial form, can be even more convincing than a direct

admission because it may seem to the tribunal of fact that if an interrogator was so unscrupulous as to “verbal” a prisoner, he would

surely put a direct and unambiguous admission into his mouth rather than something from which guilt has to be inferred. The indirect

statement may thus disarm suspicion and be more readily accepted than a direct confession about which a series of cases of

miscarriages of justice have made even many laymen sceptical. Inferred admissions have this effect in a number of recorded cases

such as D.P.P. v. Pringle [1995] 2 I.R. 547.

The newspaper publicity.

15. During the very long period where the progress of this court case was inexplicably delayed, it was the subject of a good deal of

newspaper publicity. I had at first proposed to append some of this material to this judgment as an appendix. However, because (as

Mr. Justice Geoghegan points out) there is a contempt of court application pending in this matter, I have not done so. Moreover, the

repetition of the material complained of appears unwise in view of the conclusion I have come to about that material.

16. The learned trial judge applied the adjective “lurid” to the material complained of. I do not think anyone could quibble with that

description. But the constitutional rights of persons, including but not limited to persons employed in the media, extends to a right to

publish material which is wrong headed, ignorant, biased, prejudiced or simply wrong. What is not permitted, and cannot be permitted

while we adhere to the system of trial by evidence, not prejudice, is the publication of material which states, or necessarily implies,

that a defendant in a criminal case is guilty of the offence with which he is charged. This material is of that sort.

17. The basis upon which such material is not permitted to be published is that it interferes with the right of every citizen to a fair

trial before a jury unaffected by loud unreasoned assertions of the defendant’s guilt. The applicant, and every citizen, is entitled to

have the evidence against him, if any, presented in court in his presence and that of his representatives so that no improper evidence

is admitted against him and he is able to make an immediate answer to any proper evidence adduced against him. Publishing one sided

statements to the effect that the defendant is guilty of the crime in question, or that the defendant is an associate, or a leader, of

other persons who are guilty of the crime, or of similar crimes, destroys the citizen’s right to a fair trial. Since Ireland is committed,

both by its constitution and by the European Convention on Human Rights which it has incorporated into its law to provide a fair trial,

it must of necessity inhibit publications which are inconsistent with such a fair trial. There are, in particular, two types of publications

that tend to prejudice the right to a fair trial. The first is a publication of a sort which will make it difficult for the jury or other tribunal

of fact to approach the case with an open mind for example because it suggests information which is not proven in evidence or

strongly proclaims the guilt (or the innocence) of a defendant. The second and quite different type of contempt which interferes with

the constitutional right to a fair trial is published material of a sort which, by repetition or otherwise, so affects the person about

whom it is written as to hamper his ability properly to conduct his defence. The fairness of a trial may also be interfered with by

publications which are heavily partisan towards someone else involved in a case: for example, constantly favouring an alleged victim

by for example publishing flattering photographs of him or his distressed relatives, referring to him by his Christian name perhaps

prefixed with words such as “little” or “lovely”, while referring to the defendant by a surname or in some other peremptory way, or the

constant publication of a “leaked” information tending to favour one side over the other are examples of publications interfering with a

fair trial.

Effect of publications.

18. In recent times it has become fashionable to consider that publications which prejudge the result of cases have their effect

exclusively on jurors and are incapable of having any untoward effect on judges. This may be controversial. Both sides to this

particular controversy were well rehearsed in the case of Cullen v. Tobin [1984] I.L.R.M. 577 where the Supreme Court took the view

that judges were immune from such pollution. The High Court judgment of Barrington J. on this topic is a cogent statement of another

of point of view.

19. I do not think I am wrong in detecting, in recent years, a great caution on the part of the judiciary in penalising the media in

respect of pre-trial publications. Even gross cases may avoid criticism or redress on the basis that jurors will not remember the

publication at all (the so called fade factor) and may not have read it in the first place; that jurors will be instructed to disregard any

material relevant to the case other than what they have heard in the courtroom and it should not be assumed they will not be able to

comply with this instruction; and that people tend to exaggerate the likely effect of what is in the newspapers anyway.

20. I do not accept any of these propositions. Neither do I accept their converse: there is a considerable need for serious research

into these topics and for ceasing to rely on guess work or vague impressions. Moreover, there is some evidence of concern, by frank

and outspoken journalists, as to the effect such publications. Dealing specifically with criminal trials, Mr. John Waters wrote in the

Irish Times on the 28th January of this year:

“We should be concerned that publicity surrounding controversial trials may sometimes have a greater role in the

determining their outcomes than anything laid down in law.

There is little doubt that the magnification of the circumstantial, the hunch, or unadorned popular prejudice is in some

cases creating consequences which the facts do not support”.

21. Although I have no information about the specific cases which Mr. Waters goes on to discuss in his article, I wish to express my

sense of the importance of the general proposition quoted above.

22. Nor is the law of contempt, in my view, in any way unreasonably restrictive of freedom of speech, whether that of the media or of

anyone else. There is ample scope to discuss crime in general. What is not permitted is to prejudice, in one way or the other, the fair

trial of an individual who, at the time the publication is made, has already been charged. I have no doubt that the media in general

would be supportive of the proposition that a person charged with a crime is entitled to a fair trial for that crime, free from what Mr.

Waters goes on to call “ the background radiation of rumour, innuendo and superficial impression [which] can create conditions in

which certain elements of the media and/or population refuse to accept the outcome of a trial and demand the continued punishment

of an accused long after the tariff of the court has been paid”.

23. The principles which the court applies in such cases are long established. They were applied in difficult circumstances in the 1998

case of Fr. Patrick Ryan, whose extradition to the United Kingdom on terrorist charges including murder was sought. But the Attorney

General considered that it would be improper, and an abuse of the process of the courts, to initiate extradition proceedings. Part of

the reason for this was the publication of lurid material about Fr. Ryan in English newspapers. The Attorney General said:-

“The material in questions consists of references to Patrick Ryan which have appeared in newspapers, particularly

newspapers with a large circulation and on radio and television, over a protracted period. They consisted, inter alia of

attacks on Patrick Ryan’s general character, often expressed in intemperate language and frequently in the form of

extravagantly worded headlines, and also assertions of his guilt of the offences comprised in the warrants - and, indeed,

assertions of his guilt of other offences in respect of which no charges have been brought”.

24. Many aspects of this general description could be applied to the material complained of in this case.

25. The Attorney General went on to describe certain political comment in a foreign legislature, an aspect absent from the present

case.

26. He continued:-

“Every citizen has a constitutional right to a fair trial… The right to a fair trial includes a right to protection against the

creation of prejudice or animosity in the minds of potential jurors, such as would effectively deprive a person of the right

to a non-biased trial. The presumption of innocence is not a procedural rule governing the onus of proof at trial. It is a

fundamental principle of substantive law. Any decision to prosecute implies no more than that there is an issue to be tried

as to whether the person charged is guilty or not guilty… Having regard to the extreme nature and extent of the

prejudicial material published the Attorney General has had to conclude that this prejudice is irredeemable. No direction

to the jury by the trial judge to ignore the prejudicial material to which they have been exposed could be

effective in removing the bias which has been created”. (Statement of the Attorney General December 14 1988).

27. I wish respectfully to express my agreement with the principles outlined in the above statement.

28. I also wish specifically to express my agreement with what was said in the judgment of Mr. Justice Geoghegan as to the

responsibilities of the Director of Public Prosecutions in this regard.

29. It is undesirable to say more about this particular case because of the pendency of contempt proceedings. And while these

proceedings are pending, it is premature to conclude that no remedial action, short of stopping the trial of an offence which correctly

causes great public concern. But I think it appropriate, after a period of years in which egregious publications have attracted no

sanctions from the courts to state plainly that there is an obligation on every citizen to protect, or at least not to interfere with, the

rights of every other citizen to a fair trial. This obligation required the specific and serious consideration of the media and the courts.