Supreme Court dismisses appeals on summary prosecution delay, ruling prosecution proceeds despite warrant execution failures.

THE SUPREME COURT

Geoghegan J.

Kearns J.

Finnegan J.

[S.C. No. 340 of 2006]

BETWEEN

STEPHEN CORMACK

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

&

THE JUDGES OF THE METROPOLITAN DISTRICT COURT

RESPONDENTS

And

[S.C. No. 340 of 2006]

KEITH FARRELL

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

&

THE JUDGES OF THE METROPOLITAN DISTRICT COURT

RESPONDENTS

JUDGMENT delivered by Mr. Justice Kearns on the 2nd day of December, 2008

These are appeals in two cases which involve similar issues concerning the effects of delay on the summary prosecution of

criminal offences in circumstances where there has been a failure to execute bench warrants expeditiously. As such the cases

- which were heard successively by this Court on the same day - may be conveniently dealt with by means of a single

judgment. The issue of stress and anxiety as a factor to be considered by a court when performing a balancing exercise

between the public interest in having criminal offences prosecuted and an applicant’s right to seek prohibition on grounds of

delay arises more particularly in the second case under consideration, namely, the appeal of Keith Farrell.

BACKGROUND TO THE CASE OF STEPHEN CORMACK

On 28th July, 2002 this applicant was charged with two offences as set out on Blanchardstown Charge Sheets being

respectively an offence of intoxication in a public place on that date contrary to s.4 of the Criminal Justice (Public Order)

Act 1994 and an offence contrary to s.9 (4) of the Firearms & Offensive Weapons Act 1990, also on the same date, the

charge being that he had on the same occasion without lawful authority or reasonable excuse an article, to wit, a lump

hammer for the purpose of causing injury to or incapacitating a person. The offences are alleged to have occurred at

Blanchardstown Shopping Centre at about 3.30 a.m. in the morning. In the affidavit sworn on behalf of the respondents

herein by Garda Nives Caplice, she asserts that on that occasion she saw the applicant with a lump hammer in hand which

he then threw into adjoining shrubbery. The applicant said he had the lump hammer for his own protection as he feared a

fight. The applicant was conveyed to Blanchardstown Garda Station where he was later charged. His reply after caution to

the charge involving the lump hammer was “yeah, but it’s a load of crap”.

In the Garda Station the applicant signed a bail bond which bailed him to appear at Court 45 of the Dublin District Court on

31st July, 2002. On that date the matter was remanded to 4th September, 2002. On 4th September, 2002 the applicant was

present and legally represented in court when a hearing date for the case was fixed for 10th February, 2003. A plea of not

guilty was entered on behalf of the applicant and a request was made by his solicitors for a summary of the prosecution

evidence. By letter dated 20th January, 2003 a précis of the prosecution case was sent to the applicant’s solicitors.

The applicant failed to appear for the hearing of his case on 10th February, 2003 whereupon Judge Scally issued a bench

warrant for his arrest. In the affidavit supporting his application for judicial review, the applicant states that he had been

drinking heavily the night before, had been arrested on another matter, and subsequently “did not remember” that he was

due to face trial on the two said charges, notwithstanding that the date for such trial had been set some five months

previously when he was himself present in court.

On the day prior to the projected hearing on 10th February, 2003 the applicant was charged with a separate offence of

stealing a teddy bear from a shop premises in Blanchardstown Shopping Centre at around midday on 9th February, 2003.

Having been detained for theft, he was then arrested and brought to Blanchardstown Garda Station at around lunchtime

where he was charged with an offence under s.4 of the Criminal Justice (Theft & Fraud Offences) Act 2001. He made no

reply to the charge after caution, but was released on his own bail to appear before Court 45 of the Dublin District Court on

17th February, 2003. He was released from custody shortly after 2 p.m. Garda Karl Smith, who effected the arrest of the

applicant for the theft offence, deposes in his affidavit that the applicant was not intoxicated when he left the Garda Station

on 9th February, 2003.

On 17th February, 2003 the applicant was due to appear in court in accordance with the terms of his bail in relation to the

theft offence but failed to do so. A further bench warrant issued on this occasion. In his affidavit sworn in support of his

application for judicial review the applicant asserts that he did not attend court on the 17th February, 2003 because he was

under the influence of alcohol when given that date and subsequently forgot it.

In relation to the lump hammer offence, Garda Caplice in her affidavit states that she attempted to execute the warrant by

calling to the applicant’s house at 13 Whitestown Gardens but found no lights on and no one at home. She believes she

made this call some three or four weeks after the 10th February, 2003. She was subsequently informed by Garda Karl

Smith that he also had a warrant for the applicant and that he had called to the same address only to be told by the

applicant’s mother that he no longer lived there, but that she would make contact with him and request that he contact the

station.

Garda Caplice deposes that the applicant did not make any contact with her and did not leave any message for her to

contact him. She did not call to the applicant’s house with a view to executing the warrant until April, 2005. At that point in

time, she had been informed that her warrant for the applicant had been executed and the applicant was due to appear in the

District Court on 25th May, 2005. She further states her belief that the first appearance of the applicant on foot of the said

warrant was on 27th April, 2005 but she was not in court on that date. On 25th May, 2005 the applicant pleaded not guilty

and a hearing date was set for the 27th June, 2005. On 27th June, 2005, however, Garda Caplice was sick and reported

unfit for duty. Another Garda from Blanchardstown stood in for her in court and sought an adjournment due to her illness.

The court refused an application made on behalf of the applicant to strike out the case on grounds of delay and adjourned

the case for hearing on a peremptory basis to the 1st September, 2005.

The present judicial review proceedings were commenced on 28th July, 2005 and the order granting leave was made by the

High Court (Peart J.) on 28th July, 2005.

In relation to the theft offence, Garda Smith states that the bench warrant which had been issued on 17th February, 2003

was brought to the attention of other members of the Blanchardstown Garda Station by posting a notice in the public office

of the station on that date. He himself called to the applicant’s address at Whitestown Gardens in the hope of executing the

bench warrant. He there spoke with the applicant’s mother who informed him that the applicant no longer lived there. She

undertook to make contact with the applicant over the next few days and inform him that he was being sought by the gardai.

Garda Smith further deposes that he called to the house on a second occasion approximately one week after the 14th April,

2004 when again the applicant was not present. His mother, however, agreed to have him call to the station in order to have

the bench warrant dealt with.

Garda Smith confirms that the applicant did call to Blanchardstown Garda Station some days later and spoke with him.

However, at that time Garda Smith was unable to execute the bench warrant as he was processing two prisoners who were

in custody in relation to unconnected matters. He asserts that he followed his normal practice of telling the applicant in such

a situation to make contact with him at a later date convenient to him or that he would make contact with the applicant in

reference to the execution of the warrant, and believes that this is what he did on this occasion. He states, however, that he

did not receive any messages from the applicant or his mother and the bench warrant was ultimately executed on 26th April,

2005 by another member of the station, namely Garda Ken Lyons. The applicant then appeared in the District Court on

27th April, 2005 and the case was adjourned to 25th May, 2005. On 25th May, 2005 the applicant pleaded not guilty to the

theft offence and a hearing date was set for the 27th June, 2005.

Garda Smith deposes that on 27th June, 2005 he did not have a witness in court. The security officer who had been on duty

in the shop premises from which the teddy bear had allegedly been stolen was not available in court on the date in question.

The court then adjourned the case for hearing to the 1st September, 2005 as already indicated. However, on 28th July,

2005 the applicant sought and obtained leave to bring the present judicial review proceedings.

The applicant in his grounding affidavit has set out a version of events which is somewhat at variance with that furnished by

the two gardai. He states that he has always lived with his mother except for a brief period when he was living with his

girlfriend in a different part of Blanchardstown. He states that in April, 2004 Garda Smith called to his house and spoke to

his mother who said she did not know his girlfriend’s precise address but undertook to contact him with a view to going

down to the station. The applicant said he did receive a phone call from his mother and in consequence some four days later

he went to the Garda Station where he met Garda Smith who, he says, told him to come back the next morning so that he

could be arrested and brought to court to have the bench warrant in respect of his case executed. The applicant further

asserts that when he went back down to Blanchardstown Garda Station the following morning he was told that Garda Smith

was not there. He says he left his name and telephone number with the officer in charge and subsequently rang the Garda

Station in an effort to speak with Garda Smith but did not receive any response. Approximately one year later he received

from the Fines Office a letter in relation to the estreatment of his bail. Following receipt of this letter he went down to the

Garda Station to arrange to pay half the money owed and hoping he could pay the other half subsequently. He says that

when he arrived at the Garda Station he was told there were two bench warrants in the system in respect of him. He was

arrested and brought to court. Bail was set which required a cash lodgement and he was detained overnight before being

released on bail the following day. He appeared in court on 27th April, 2005 and was remanded on bail to Cloverhill on 25th

May, 2005. On that occasion he entered a plea of not guilty and the matter was further adjourned for mention on 1st June,

2005 for the purpose of having a date fixed for hearing. On that date a hearing was fixed for 27th June, 2005. The applicant

confirms that an adjournment application was sought on that occasion because Garda Caplice was sick. He also confirms

that in relation to Garda Smith’s case, that Garda Smith indicated to the court that he did not have a witness in court and

required an adjournment. He states that while an objection was raised on the basis that delay was an issue in the case, the

particular District Court judge indicated that this could be raised on the next date. All matters were then adjourned for

hearing to 1st September, 2005.

A separate affidavit has been sworn by Marian Cormack, mother of the applicant, who confirms Garda Smith did call to her

house at 13 Whitestown Gardens on 14th April, 2004. She also confirms that in April, 2005 another Garda not previously

known to her called to her house explaining about a bench warrant which had issued and a ‘fine’ of €400 which was due.

She states that her son was back living with her at this time and she passed on the message to him. As a result, he called to

Blanchardstown Garda Station with half of the sum involved whereupon he was arrested on foot of the outstanding bench

warrants and detained overnight.

In these particular circumstances, the applicant sought an order of prohibition to prohibit the first named respondent from

taking any further steps in the prosecution of the applicant in respect of the three charges. The grounds upon which relief is

sought include the assertion that there has been significant and inordinate delay in the prosecution of the alleged offences

such as gives rise to an “unavoidable presumption of prejudice” against the applicant. It is further asserted that the

prosecuting authorities have been responsible for a significant delay in expediting the prosecution of the applicant, in

consequence whereof the applicant has been deprived of a trial with due expedition.

The statement of opposition filed herein denies that there has been significant and/or inordinate delay in the prosecution of

the offences, or that the prosecuting authorities have been responsible for any significant delay in expediting the prosecution

of the applicant. It is also denied that no reasonable effort was made to execute the bench warrants which issued in respect

of the applicant’s failure to appear in court.

The matter was heard in the High Court (Feeney J.) where judgment was delivered on 27th July, 2006. In the course of his

judgment, the learned trial judge noted, firstly, the applicant’s failure to appear in court on various occasions and, secondly,

the alleged delay in the execution of the various bench warrants. Having considered the evidence tendered both by the

applicant and by the respective garda officers in relation to the circumstances surrounding attempts to execute the bench

warrants, the learned trial judge made certain factual findings as follows:-

“From the foregoing, a number of matters would appear clear. If the applicant had not absented himself in

February, 2003 on the two occasions when his cases were listed, those cases in all probability would have

been disposed of within a short number of months.

Secondly, during the following year, February, 2003 to February, 2004, the applicant did nothing to remedy

his non-attendance. The fact that he was legally represented on one occasion of his non-attendance should

have insured that no matter how forgetful due to alcohol consumption he might have been he would

nonetheless been aware of a missed court date.

Thirdly, the gardai were entirely inactive in endeavouring to enforce the warrants for over a one year period.

Fourthly, when a real effort was made (i.e. to enforce the warrants) the applicant was amenable to attend the

garda station within a matter of weeks and thus demonstrated that any true effort to enforce the warrants

would have been likely to have succeeded.

Fifthly, the gardai allowed a further year in April, 2004 to April, 2005 to pass by without any attempt to

execute the warrants. The period of delay in executing the warrants under scrutiny in this case is some two

years and for the bulk of that period and certainly for the final year the delay was either entirely caused or

greatly contributed to by the inaction of the gardai.

Finally, a sixth matter to take into account is that the extent of the prejudice relied upon by the applicant is

limited to a general averment contained in paragraph 16 of his grounding affidavit to the effect, and I quote:-

“The delay has been such as to prejudice me in my defence as I have a very dim memory of the

dates in question.”

There is no attempt to provide any specific incidents of prejudice, nor is it explained as to whether the

applicant’s memory was ever other than a dim one of the dates in question.”

The learned trial judge noted the arguments raised on behalf of the applicant to the effect that members of the gardai are

obliged to execute warrants with expedition and to take reasonable steps to enforce warrants not merely for the purpose of

ensuring that citizens are brought to court to answer for alleged offences, but also to ensure a speedy and fair trial.

Having then reviewed the case law with regard to the obligation on garda authorities to enforce bench warrants, the learned

trial judge also considered the issue of delay thus arising in the context of various decisions of this Court, notably PM v.

Malone [2002] 2 I.R. 560 and PM v. DPP [2006] 3 I.R. 172.

Having conducted this exercise, the learned trial judge decided that there had been some blameworthy prosecutorial delay

such as would warrant the carrying out of a balancing exercise between the public interest in having charges prosecuted on

the one hand and the applicant’s right to an expeditious trial on the other.

Noting that the applicant had failed to produce any evidence of specific prejudice, he noted also that one of the charges,

being that in relation to the lump hammer, could be identified as being of a serious nature, albeit capable of being tried

summarily. He further held that the time period of culpable delay was not such as to create any manifest prejudice and

accordingly there was no material available to the court which would justify the prohibition of the trials over and above the

mere fact that there had been some blameworthy delay. In such circumstances, he refused the application for a judicial

review.

BACKGROUND TO THE CASE OF KEITH FARRELL

In this case the applicant was arrested on 26th July, 2004 in Lucan on suspicion of having committed offences under the

Road Traffic Acts. At the time of his arrest this applicant gave a false name and address, stating that he was a Garreth

Renynor with an address at Coldhurst Crescent in Lucan. The applicant was brought to Ronanstown Garda Station where

he was detained for about three hours. While in the Garda Station he corrected his name, but gave an address at

Cherrywood Crescent, Clondalkin (a property which belonged to his mother and which was let to tenants) instead of his

then current address which was at Brandon Road in Drimnagh. The custody record apparently showed the applicant to have

been intoxicated and he was noted to have a large cut to his right temple. He was released from the Garda Station at around

4.10 a.m. The applicant’s mother states that approximately two days later she called to the Garda Station accompanied by

the applicant for the purpose of confirming his correct identity and correct address. She contends that she specifically

informed the gardai that the applicant did not reside at Cherrywood Crescent and furnished his true address. Garda Dunne

from Ronanstown Garda Station has no record of any such visit which he asserts would have been noted and recorded had

it taken place. Be that as it may, Garda Dunne applied to the District Court Office for the issuing of five summonses against

the applicant and the same were duly issued and made returnable to the Dublin District Court on 31st March, 2005. The

same had been served by post addressed to the applicant at the rented property. They were not served personally upon the

applicant. The applicant maintains he never received the summonses in question.

When the matter came before the District Court on 31st March, 2005 the applicant did not appear and a bench warrant was

issued in his absence. The gardai attempted to execute the bench warrant by calling to the rented property where they were

informed by persons at that address that the applicant did not reside there. No other attempts to locate him were made. The

applicant contends that he was living openly in this area of Dublin, that he was either unemployed and drawing

unemployment assistance or employed and paying PAYE/PRSI, that he was registered with FAS and that he was the

registered owner of a car, had bank accounts and so on and was easily traceable notwithstanding the absence of a precise

residential address for him. The applicant became aware of the existence of a bench warrant for his arrest on 30th April,

2005 when he was in Ronanstown Garda Station in respect of a separate matter. He was there informed by Garda Powell

that there was an extant bench warrant for his arrest arising from a failure to appear in Court 51 on 31st March. However,

Garda Powell did not on that occasion execute the warrant.

Arising out of his arrest for the unrelated matter on 30th April, 2005, the applicant told his solicitor about his conversation

with Garda Powell concerning the alleged bench warrant. The applicant’s solicitor invited Garda Powell to produce the

warrant on the applicant’s next court date, namely, 28th June, 2005 or, alternatively, to suggest an alternative arrangement

for execution of the warrant. The applicant subsequently appeared at Kilmainham District Court on three occasions in June

and July of 2005 and in the month of February, 2006 and on none of those occasions did Garda Powell either produce the

bench warrant in question or attempt to execute it against the applicant.

In addressing this matter, Garda Powell’s response has been that the particular case was not his case and that Garda Dunne,

whose case it was, was indisposed as a result of a serious sports injury sustained in August, 2005 and was out of work for

an extended period.

On 27th October, 2006 the applicant was stopped by the gardai in connection with a suspected road traffic offence and was

arrested and conveyed to Lucan Garda Station. While there it was discovered there was an outstanding bench warrant

against the applicant. He was released on the condition that he presented himself subsequently in District Court No. 52 in

the Richmond Hospital. He did so and the warrant was executed by arrangement on this occasion.

There was thus a delay in this case running from 31st March, 2005 when the bench warrant was issued to the 31st October,

2006 when the same was executed.

The applicant contends that as a result of the delays in this case he has been denied a right to an expeditious trial and has

suffered unnecessary stress and anxiety. In the course of the hearing before the High Court he exhibited a report from

Michael Dempsey, Clinical Psychologist, dated 28th November, 2007, wherein Mr. Dempsey describes receiving a history

from the applicant of subjective feelings of depression, lack of self confidence, irritability and difficulty in concentrating. Mr.

Dempsey felt that the applicant was reporting mild symptoms of depression in relation to the dilemma he was in.

On 18th June, 2007 the applicant was granted leave to apply for an injunction restraining the respondent from prosecuting

him in relation to the various driving offences alleged to have occurred on 26th July, 2004. The grounds upon which leave

was granted may be summarised as prosecutorial delay to the prejudice of the applicant. The case was heard and

determined in the High Court (Edwards J.) and judgment was delivered on 5th February, 2008.

Having reviewed in some detail the case law in relation to the requirement to execute bench warrants speedily and in relation

to delay generally, the learned trial judge expressed himself satisfied on the evidence that there had been some unjustifiable

prosecutorial delay in this case. He also considered that the applicant himself was in large measure responsible for much of

the delay because he provided an out of date address which may have prevented the summonses reaching him in the first

place. Moreover, when informed by Garda Powell in April, 2005 that he might be the subject of an outstanding warrant he

did not contact either Garda Dunne or Garda Powell to make further enquiries as it had been suggested he should do.

However, Edwards J. confirmed that the mere existence of culpable prosecutorial delay was not dispositive of the matter.

He took the view that it was also necessary to consider whether or not the applicant had been prejudiced by the delay and, if

so, whether the nature and degree of any prejudice was so great as to outweigh the public interest in the prosecution

continuing. He then proceeded to review the relevant legal authorities, including PP v. DPP [2001] 1 I.R. 403, PM v.

Malone [2002] 2 I.R. 560, PM v. DPP [2006] 3 I.R. 172. Edwards J. interpreted these authorities as requiring him to make

a determination whether the applicant for relief had put sufficient into the balance where prosecutorial delay arose to

outweigh the public interest in having serious charges proceed to trial.

He noted in particular that the mere fact that some prosecutorial delay of a blameworthy nature had taken place would not

of itself justify the prohibition of a trial. He refused the relief sought.

It is of some importance to record what the learned trial judge found in relation to the levels of stress and anxiety which

would meet the test laid down in PM v. DPP [2006] 3 I.R. 172 where in the course of his judgment he stated as follows:-

“Stress and anxiety are not always prejudicial phenomena. Everybody experiences some stress and anxiety in

their lives. This is part of the human experience. Indeed, a modicum of stress can be a good thing, serving to

motivate the individual to achieve a goal or objective. Stress and anxiety can also be bad for one. They can

precipitate, or potentially precipitate, serious illnesses such as stroke or heart attack, or cause a mental

breakdown. Moreover they can be oppressive on an individual to such an extent as to impair his/her

performance of mental tasks or skilled work, or his/her general enjoyment of life. I believe that for stress and

anxiety to be taken into the balance in the manner referred to by Kearns J. (i.e. in PM v. DPP [2006]3 I.R.

172) they must be pathological, with entirely negative effects, and seriously prejudicial. In my view these

phenomena must exist at the level where they are impinging on a person’s right to bodily integrity, in the

sense of causing illness, physical or mental (or at least predisposing the person to development of such

illness), or of causing significant depression. In my view the evidence in this case does not remotely approach

what is required.”

As part of the arguments raised on behalf of the applicant before this Court it is contended that the learned trial judge set too

exacting a standard for the degree of stress and anxiety which might entitle an applicant to relief in the context of any

balancing exercise conducted by the court.

THE LEGAL ISSUES

Three separate legal issues arise for consideration in this case:-

1) What are the consequences for a prosecution where there has been a failure to execute bench warrants expeditiously?

2) Do the tests applicable to other types of delay in court processes apply equally to summary prosecutions?

3) Where delay in the court proceedings has caused stress and anxiety to the applicant, what degree of stress and anxiety

must be demonstrated to justify his trial being prohibited in the absence of any specific prejudice?

DELAY IN THE EXECUTION OF BENCH WARRANTS

The law unambiguously requires gardai to execute bench warrants without delay and within a reasonable timeframe. In this

context the courts must ensure that court processes and orders are given due respect by the relevant State authorities and the

execution of a bench warrant is not something to be simply left to the relevant State authority as a matter of discretion.

In Dunne v. Director of Public Prosecutions (Unreported, High Court, 6th June, 1996) Carney J. described the status of a

warrant in the following terms:-

“A warrant of apprehension is a command issued to the gardai by a court established under the Constitution

to bring a named person before that court to be dealt with according to law. It is not a document which merely

vests a discretion in the guards to apprehend the person named in it; it is a command to arrest that person

immediately and bring him or her before the court which issued it. That it is a command rather than merely

an authority or permission to arrest can clearly be seen from the terms of the warrant in the instant case.”

Similarly, with regard to the execution of committal warrants, Barron J. in The State (Flynn) v. Governor of Mountjoy

Prison (Unreported, High Court, 6th May, 1987) Barron J. outlined the guiding principles for the execution of committal

warrants for sentencing purposes when stating as follows:-

“It is implicit that a warrant should be issued there and then when the sentence is to be imposed, and where

the sentence is imposed on appeal, as soon as reasonably possible. Likewise, once it has issued, it must be

executed as soon as is reasonably possible. If not, then a defendant sentenced to a term of imprisonment may

find himself or herself serving such sentence at a future date merely through a failure of administrative

processes.”

In Bakoza v. Judges of the Dublin Metropolitan District [2004] IEHC 126, the delay in the execution of a bench warrant

led to the prohibition of the trial of the applicant notwithstanding that there were suggestions that the applicant had made

“an attempt to go to ground and avoid the court process” by inter alia changing address without notifying the gardai.

Peart J. held that:-

“As far as the efforts of the gardai to execute the warrant are concerned they were in my view minimal and

perhaps short of what the court should regard as reasonable. It is true that efforts were made on a few

occasions in the immediate aftermath of the issue of the warrant, but thereafter nothing was done. I am always

acutely conscious of the limited resources available to the gardai and it goes without saying that, as stated by

Carney J., there can be no question that reasonable effort would extend to a “national manhunt”, but I believe

that even if further enquiries proved unfruitful the fact that they were made would show intent and would

indicate that the gardai did not simply file the warrant away and forget about it when their initial efforts bore

no fruit. If such a situation were to be the extent of the effort made to apprehend persons on foot of warrants

issued by the courts of this country, the task of evasion so often undertaken by persons hoping to avoid the

criminal process would be an easy one indeed, and the rule of law would be in some considerable jeopardy as

a result.

There must be a middle ground short of a national manhunt, but in excess of a few unsuccessful knocks on the

door. Each case would have to be considered on its own facts.”

While prohibition was granted in that case, MacMenamin J. took a different view in Conway v. DPP (Unreported, High

Court, 14th December, 2007) when refusing prohibition in a case where the delay in executing a bench warrant was

fourteen and a half years from 1992 until 2006. The applicant was seeking prohibition of his trial for various offences, the

most serious of which was manslaughter. In the course of his judgment, upheld by this Court on appeal, MacMenamin J.

noted that “few meaningful steps were taken towards his apprehension” but also commented that he was not satisfied that

the applicant’s identity or location was easily ascertainable by gardai. In refusing the relief sought, MacMenamin J. stated:-

“the applicant cannot assert a right to an expeditious trial in circumstances where his own conduct has

actually frustrated that right. Any prejudice asserted, even if accepted on foot of the evidence, is too general to

constitute specific prejudice … I consider that this is an application which in the first instance should be

refused on discretionary grounds by reason of the applicant’s own conduct in absconding from custody and

leaving the jurisdiction. On the state of the evidence it is not possible to conclude that culpable delay has been

made out either on credibility or on the balance of probability”.

I am satisfied that the judgments of the various High Court judges to which I have referred emphasise the obligation on the

gardai to execute bench warrants promptly. By way of example it is not open to the gardai to take no active steps or simply

wait for the wanted person to gratuitously fall into their laps by being arrested in relation to some other offence. Equally, the

issuing of a warrant need not trigger a national manhunt, nor need it involve the deployment of totally disproportionate time

and resources in an effort to execute the warrant. Nor should an applicant be granted relief where he himself has contributed

to the delay in executing the warrant by furnishing false particulars of his identity or address or by engaging in other forms of

deceit and evasion to frustrate the gardai in the execution of their duties. Any judge who has sat in Cloverhill Courthouse to

deal with bail applications on a Monday will be well aware that a huge amount of garda time is taken up, presumably to the

detriment of other police work, in searching out and apprehending individuals some of whom have a long history of bench

warrants for failing to honour the terms of their bail.

In the context of delay therefore, the legal position in relation to the execution of bench warrants may be simply stated.

There is an obligation on the Garda Siochana to execute same promptly or within a reasonable time. A failure to do so may

amount to blameworthy prosecutorial delay. However, members of the gardai can not automatically be assumed to be in

default where immediate execution of warrants does not occur, bearing in mind the multiple other duties and obligations

requiring to be performed by them. They may encounter all sorts of difficulties when endeavouring to execute bench

warrants which are brought about by deceit and false information given to them. Nonetheless, it must be the case that a

point in time will arise where the continuing failure to execute a bench warrant will amount to blameworthy prosecutorial

delay sufficient to trigger an enquiry whether an applicant’s right to an expeditious trial has been compromised to such a

degree as to warrant prohibition. It is impossible to be more specific as to what timeframe for the execution of a warrant

should obtain other than to stress that warrants must be executed promptly or at least within a reasonable time. For reasons

set out below, that permissible timeframe must be one of shorter duration where summary proceedings are concerned.

DELAY IN SUMMARY PROSECUTIONS

Counsel for the applicants in these cases has argued that the amount of delay which may be tolerated for the prosecution of

a summary offence is considerably less than that which might be allowed for a serious or complex charge. He submitted that

the whole philosophy underpinning the summary disposal of criminal offences is the public interest and that of alleged

offenders in having such matters disposed of as expeditiously as possible. I accept the validity of this contention. It follows

that delay in summary proceedings is less to be tolerated than in other cases. Counsel for the applicant has, however, gone

further and argued that where the court, as in DPP v. Arthurs [2000] 2 ILRM 363, believes the delay to be excessive, there

is then no requirement on the court to conduct any form of balancing exercise between the community interest in having

crimes prosecuted and the applicant’s right to an expeditious trial.

Any consideration of this submission may usefully begin by having regard to what was stated by Powell J. in delivering the

unanimous opinion of the US Supreme Court in Barker v. Wingo 407 US 514 [1972]. That court there emphasised that a

defendant’s constitutional right to a speedy trial could not be established by any inflexible rule but could be determined only

on an ad hoc balancing basis in which the conduct of the prosecution and that of the defendant are weighed. As Powell J.

stated:-

“A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do

little more than identify some of the factors which courts should assess in determining whether a particular

defendant has been deprived of his right. Though some might express them in different ways, we identify four

such factors: length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to

the defendant.

The length of the delay is to some extent a triggering mechanism. Until there is some delay which is

presumptively prejudicial, there is no necessity for enquiry into the other factors that go into the balance.

Nevertheless, because of the imprecision of the right to a speedy trial, the length of delay that will provoke

such an enquiry is necessarily dependant upon the peculiar circumstances of the case. To take but one

example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious,

complex conspiracy charge.”

The latter part of this citation was adopted with approval by Finlay C.J. in The Director of Public Prosecutions v. Byrne

[1994] 2 I.R. 236. The importance of the reference is to show that the courts both in the U.S. and in this jurisdiction do not

simply drop a time guillotine on the prosecution of summary offences but rather emphasise instead that delay in minor cases

is less to be condoned or tolerated. It is of some importance that Powell J. did not outrule a balancing test in this context.

Counsel’s main submission on the effect of delay on summary prosecutions is almost entirely based upon a decision

delivered by O’Neill J. in DPP v. Arthurs [2000] 2 ILRM 363. In that case the High Court prohibited the trial of an

applicant in a case of summary proceedings for assault where a delay of two years and three months had passed from the

date of the alleged offence to the date of the hearing. The case had been adjourned on three occasions in the District Court

because of the length of court lists on dates when the case was scheduled to be heard. O’Neill J. expressed the view that a

delay of this magnitude constituted “an unwarranted invasion of the accused’s constitutional right to an expeditious trial”

and prohibited the trial without conducting any form of balancing exercise and notwithstanding the absence of evidence of

prejudice.

While counsel has argued that this decision has received a measure of approval from this court in Maguire v. DPP [2004] 3

IR 241, it is only fair to point out that the decision in that particular case concerned a bail application. A quite different view

was taken by this court in Devoy v. Director of Public Prosecutions (Unreported, Supreme Court, 7th April, 2008) where,

in a case of alleged prosecutorial delay, this Court disapproved the judgment in Arthurs, noting that the judgment did not set

out any criteria to determine what might constitute an exorbitant delay in the context of prosecution of summary offences. I

would be strongly of the view that courts should not act as legislators to frame a subjective limitation period for the

prosecution of criminal offences, even offences of a summary nature, and should in every case where delay is established

conduct the balancing exercise indicated in Barker v Wingo. This is the approach replicated in the Irish cases which have

applied similar, if not identical, criteria in this jurisdiction; see PM v. Malone [2002] 2 IR 560; PM v. DPP [2006] 3 IR 172;

McFarlane v. DPP (No. 2) (Unreported, Supreme Court, 5th March, 2008).

In this context I see no basis for applying a separate legal regime to summary prosecutions than that which arises in the case

of indictable offences. Obviously, however, it follows from everything already said that delay will more rapidly become

blameworthy and delays of lesser magnitude will be seen as more likely to be intolerable where summary proceedings are

concerned.

STRESS AND ANXIETY

Where it is alleged that delay has caused stress and anxiety to the applicant, I would agree with the views expressed by

Edwards J. that an applicant must demonstrate something more than the predictable levels of anxiety that any citizen would

feel in the face of an impending trial. A similar view was expressed by Fennelly J. in delivering the majority judgment of this

Court in O’H v DPP [2007] 3 I.R. 299 when he stated:-

“There must be evidence of something more than normal, something extra caused by the alleged prosecutorial

delay”

Obviously, it may be helpful in a particular case if medical evidence is furnished in support of a contention that an applicant

has suffered a peculiar level of stress and anxiety in the particular circumstances of his or her case. This may arise in a

variety of ways and for a variety of reasons such as in the case of an offence alleged to have occurred in a small rural

community where the applicant’s identity would be well known, or in the case of an elderly applicant who might in addition

be afflicted with other medical problems likely to be exacerbated by stress and anxiety. There may indeed be cases where

undue levels of stress and anxiety may be inferred as a matter of common sense from the particular facts of the case. I thus

agree with the views expressed by Geoghegan J in P.M. v. Director of Public Prosecutions [2006] 3I.R. 172 where he

stated at p 176:-

“I do not think that the courts should normally concern themselves with the degree of anxiety in a quantitative

sense requiring proof thereof…the size of the anxiety will be determined by the length of time rather than on

any qualitative basis”

I do not therefore think it necessary for an applicant to meet a threshold of having to establish or prove a form of psychiatric

illness for the purpose of making out a case of stress and anxiety. I have previously expressed the view that it would be most

unfortunate if cases of this nature came to be determined by reference to some form of contest between doctors called for

an applicant on the one hand or the prosecution on the other.

DECISION IN STEPHEN CORMACK CASE

Given that the bench warrants in the case of Stephen Cormack issued in February, 2003, the delay in executing the bench

warrants until the month of April, 2005 is prima facie excessive in circumstances where the offences with which the

applicant is charged are being dealt with summarily in the District Court. That period of delay is sufficient to trigger an

enquiry.

Upon making such enquiry, however, the applicant’s case rapidly falls to pieces. Firstly, the alleged offence contrary to

s.9(4) of the Firearms & Offensive Weapons Act 1990 and the alleged offence of intoxication took place on 28th July, 2002.

A hearing date for the trial of these offences was fixed for 10th February, 2003 but the applicant failed to appear. He makes

the most implausible case that he was drunk the night before his trial and simply forgot about it. Given that the remedy of

prohibition is a discretionary remedy, that failure of itself could on one view of this case be seen as dispositive of the entire

matter. The applicant was offered an early trial and, entirely through his own fault, failed to avail of it.

In respect of the stealing offence, a warrant issued for the applicant’s arrest when he failed to appear in court on 17th

February, 2003. The explanation offered for this failure is also that the applicant was under the influence of alcohol to such

a degree that he did not remember the date he was due in court.

I am satisfied that a call was made thereafter to the applicant’s home address, although it does appear that there was nobody

in when Garda Caplice made that particular call. I am equally satisfied that from March, 2003 until April, 2004 no attempt

whatsoever was made to execute the bench warrants. At that time, Garda Smith called to the home address, which was the

applicant’s mother’s house, and spoke to her. She undertook to contact the applicant who thereafter attended the Garda

Station but, given that Garda Smith was busy with more urgent work when the applicant called, he was unable to execute

the warrant at that point in time. It is common case that the applicant agreed to return and swears that he did so on the

following day. However, Garda Smith is unaware of this second call. No further attempt to execute either warrant was made

for another twelve months. In April, 2005 Garda Caplice called to the home address, but nobody was present.

Matters came to a head at the end of April, 2005 when the applicant attended at the Garda Station following receipt of a

letter concerning the estreatment of his bail. At that stage, on 26th April, 2005 the warrants were executed and the applicant

was arrested and brought before the court the following day.

As already noted, a hearing date was fixed for 27th June, 2005, but the prosecuting garda in respect of the first two charges

was sick on that occasion and a peremptory adjournment of the applicant’s case was granted. In the stealing case, a

prosecution witness failed to attend in court and that case similarly was adjourned until 1st September, 2005.

The judicial review proceedings were brought at the end of July, 2005, in consequence whereof the applicant has secured a

stay on the hearing in respect of the various offences until these proceedings are disposed of.

I do not regard the period of delay arising from the adjournment in June, 2005 as being blameworthy in any respect. A full

explanation has been offered in respect of the first two charges, being the fact that the prosecuting garda was unwell.

Equally, a satisfactory explanation has been offered to explain why, due to the absence of a vital witness, the stealing

offence could not be proceeded with at the same time.

The period of delay is therefore effectively the period from February, 2003 until June, 2005. I am satisfied that some efforts

were made by the gardai to execute the warrants and that a call was made to the applicant’s home address in April, 2004.

During the preceding fourteen months, the applicant did nothing to remedy his non-attendance, notwithstanding that he had

legal representation and must have been aware that he had missed an important trial date. There was some culpability on the

part of the gardai in respect of this period, although I would apportion greater culpability to the applicant having regard to the

fact that he must have known that he was being sought by the gardai having regard to his failure to attend his trial.

Different considerations apply to the period between April, 2004 and April, 2005 and I agree with the finding of the learned

High Court judge that there was a culpable failure on the part of the gardai in respect of that period.

This period of delay does not, however, in my view constitute such delay as would warrant the making of an order for

prohibition in this case. There is a definite public interest in seeing these criminal charges prosecuted, notably when one of

the charges, namely possession of the hammer, may properly be described as being one of a serious nature, albeit capable of

being tried summarily.

The applicant has singularly failed to point to any circumstance of prejudice arising by virtue of any delay, nor is he able to

point to any real element of heightened stress or anxiety arising from a delay which ultimately in this case is one of his own

making. Even allowing for the fact that these are all offences which are being tried summarily, I am satisfied that the

outcome of any balancing test must be in favour of allowing the prosecution in this case to proceed.

DECISION IN THE CASE OF KEITH FARRELL

I am satisfied that in this case also there has been an element of unjustifiable prosecutorial delay. I would also be of the

view, as was the learned High Court judge, that the applicant himself was in large measure responsible for much of the delay

in that he provided an out of date address which may well explain why the summonses failed to reach him. I say “failed to

reach him” because the parties to this appeal have agreed that this may have been the case notwithstanding that the form of

service complied with the Rules. This case does not therefore possess the significantly disentitling elements which

characterise the preceding case.

I am satisfied that in this case the gardai did not do enough to attempt to execute the warrant. A single call out to 21

Cherrywood Crescent was not sufficient. There could and should have been a response to the applicant’s solicitor’s letter.

Furthermore, the applicant had two court appearances in June and July of 2005 before Garda Dunne sustained his injury in

August of that year. These were all opportunities whereby the identity of the applicant as the man named in the warrant

could have been confirmed.

Having reached the conclusion that the delay in this case is sufficient to trigger an enquiry, it is manifest that the applicant

does not contend that he has suffered any actual prejudice to his ability to defend himself. Essentially his entire case on

prejudice is that he has suffered unnecessary stress and anxiety by reason of the delay in executing the warrant.

As already indicated, I believe that in this context an applicant must show more than the ordinary level of stress and anxiety

which may be expected to arise in a case of any citizen facing a criminal trial, albeit a summary offence only.

I have already indicated in my view that the learned High Court judge in this case set the bar too high in so far as his

judgment may be taken as requiring an applicant to establish that a physical or mental illness has resulted from the levels of

stress and anxiety suffered in a particular case. However, I agree with the trial judge that the so-called medical report did

nothing more than relate the applicant’s complaints and contained no evidence of value from the psychologist who prepared

it.

Overall I believe this prosecution should also be allowed to proceed. There has been a degree of delay but no gross delay.

The applicant himself has been partially responsible for some of the delays. When informed by Garda Powell in April of

2005 that he might be the subject of an outstanding warrant the applicant did not contact Garda Dunne as had been

suggested by Garda Powell. I would therefore dismiss the appeal and confirm the order of the learned High Court judge

herein.