Supreme Court dismisses appeal on systemic delay grounds, finding no systemic failure in this specific case.

THE SUPREME COURT

No. 60/2007

Hardiman J.

Geoghegan J.

Fennelly J.

Kearns J.

Macken J.

BETWEEN/

BRENDAN McFARLANE

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Prosecutor

AND THE MEMBERS OF THE SPECIAL CRIMINAL COURT

Notice Parties

JUDGMENT of Mr. Justice Geoghegan delivered the 5th day of March 2008

I have had the benefit of reading the judgments to be delivered in this appeal by Fennelly J. and Kearns J. I am in broad agreement

with them and, in particular, I am in complete agreement with their view that the appeal should be dismissed.

There are small nuances of difference, mainly differences of emphasis in the two judgments which to some extent impinge on aspects

of the case which I myself would like to emphasize. For that reason, I have prepared this short judgment with observations of my

own.

The aspect of the appeal on which I particularly want to concentrate is the relatively new concept of systemic delay. First of all, I

am not entirely clear what exactly the concept means and to what extent it can be relevant in relation to justiciable delay. Various

alternatives come to mind. I would suggest, for instance, the following and there may indeed be more.

1. Any delay thought to have been unnecessary and for which the accused was not responsible in the procedures of bringing him to

trial and completing the trial.

2. The same definition but confined to situations where the delay was caused by blameworthiness on the part of the authorities.

3. The same definition but confining the concept of “unnecessary delay” to delay within the existing system as it stood. In other

words no cognisance would be taken of, for instance, a failure on the part of the state to appoint an adequate number of judges or

to provide an adequate number of courtrooms etc.

4. The same definition but account would only be taken of delay caused within the office of the Director of Public Prosecutions or the

Garda Síochána but not within the courts. It must be remembered in this connection that unlike in the case of the U.K. the courts are

excluded from the definition of “organ of the State” in the European Convention on Human Rights Act, 2003. If the courts have been

expressly excluded from that Act, as they have been, it might seem wrong on one view to introduce them by a back door unless of

course the Constitution brought them in, a matter to which I will refer again later.

As I do not think that any important issue of systemic delay arises in this case, I would like to postpone expressing any view on its

nature and relevance until a case in which it properly arises. Whilst I agree with Kearns J. that prosecutorial delay in the sense that

the Irish courts have understood it, could be considered to be a form of systemic delay, I do not agree that systemic delay and

prosecutorial delay are the same thing. At most, prosecutorial delay is one form of systemic delay and then only if systemic delay

means not just delay due to a bad system but delay due to a perfectly good system not being properly applied. Furthermore in the

Irish jurisprudence, it imports gross blameworthiness.

I do not know of any case where as a consequence of an inadequate structure due to a lack of staff or lack of suitable staff,

justiciable delay resulted. Contrary to the view of Kearns J., I would have considerable doubt that in enunciating the principle that

delay of itself and by itself might in exceptional circumstances be a ground for prohibiting a trial, Finlay C.J. in DPP v. Byrne [1994] 2

I.R. 236 had in mind “systemic delay”. I would rather suspect that the former Chief Justice was entirely viewing the matter from the

point of view of the constitutional rights of an accused and was opining that there could be circumstances where a particular

situation of the accused rendered it unfair to put him or her on trial having regard to a long lapse of time however caused.

Conceivably that long lapse of time might in fact have been contributed to by the judiciary.

In this particular case, as Fennelly J. has pointed out, the only conceivably relevant justiciable delay was the delay between the

serving and filing of the notice of appeal by the Director of Public Prosecutions on the 19th August, 2003 and the lodging of the books

of appeal on the 15th November, 2004. The explanation for this delay was apparently a difficulty in obtaining a signed and approved

transcript of the judgment of the High Court. We do not know what exactly led to that delay. It might have been simply an oversight

on the part of a conscientious and hardworking judge as the particular judge was in this case or there might have been some reason

why he was delaying approving it or indeed it may not have been adequately placed before him for approval. It could be a number of

reasons. There is a system which normally works perfectly well whereby a judge who gives an ex tempore judgment is asked to sign

and approve it. As to whether he gives priority to that job of work may depend on whether he is being given proper information as to

the urgency with which it is required. I find it unnecessary to consider whether this particular lapse of time should be taken into

account in considering whether a trial should be prohibited because I am quite satisfied that prohibition would not be appropriate in

this case at any rate.

Having regard to the view which Fennelly J., Kearns J. and I myself have taken, I do not think that a detailed consideration of the

concept of systemic delay is necessary and I would like to reserve my consideration of it until a case where it seriously arises.

I have already indicated that although I am in full agreement, as is Kearns J., with the principles of Finlay C.J. laid down by him in DPP

v. Byrne cited above, I do not think for the reasons I have given that the former Chief Justice was referring to “systemic delay”. In

relation to the wider meaning of that expression, the fact that at any given time the Oireachtas had provided for an inadequate

number of judges would, if anything, be a reason under our domestic law for extending the period which might be thought of as a

reasonable time within which a case should be heard. I fully acknowledge that that view might not accord with the Convention. It is

for that reason that I believe the issue of systemic delay is a brand new one and is dependent on the application of the Convention

within the limits of its applicability under the 2003 Act.

The case law of the European Court of Human Rights including the McMullen case and the Barry case, makes it clear that in any

situation in which redress is being sought on the grounds of delay all the circumstances have to be considered and systemic delay

may be one of those circumstances. I rather doubt there is enough case law yet to form a firm view as to what the precisely correct

approach to systemic delay is under the Convention. For instance, to what extent, if at all, is blameworthiness relevant to systemic

delay. If so, how is that blameworthiness assessed? A government might in a period of recession (to take an obvious example) have

limited resources. Ideally, two new judges are needed and ideally a new hospital is needed but both cannot be afforded. Is it

necessarily to be said that an accused can get some kind of remedy (whatever it might be) for delay resulting from this failure in what

might be argued to be necessary expenditure. In the absence of a firm ruling to the contrary by the European Court of Human Rights,

I think that the concept should be kept within tight limits and should be more or less confined to a situation where there is a

positively negligent system or negligent failure of system within the resources that exist of administering criminal justice. But all these

matters can be argued out in an appropriate case which this is not.

Returning to this particular case in the High Court, counsel for the appellant referred to four periods of what he considered to be

unnecessary delay and relevant to the overall calculation. Quirke J. rejected one of the suggested periods outright. In relation to the

other three, he considered that the delay as to the discovery matter was the fault of both parties. In relation to the so called

fourteen month waiting period in connection with the appeal to the Supreme Court no evidence had been put forward that this was

excessive. From my own ordinary knowledge of the court, I am quite satisfied it was not. Only one of the suggested periods was

considered by Quirke J. to be the fault of the Director of Public Prosecutions and that related to the delay in lodging the certificate of

readiness in respect of the appeal to the Supreme Court. I have already referred to the explanation given for this.

The suggested period of four months which was rejected by the learned trial judge arose because on the date of hearing of the

original judicial review proceeding a judge was not available and the case was heard four months later. For some years, as a judge of

the High Court, I was in charge of the judicial review list and I am well aware that this can happen. For it to happen once is normally

not the fault of anybody. Questions of systemic failure could arise if it was established that an applicant for judicial review through no

fault of his own failed a second or third time to get a hearing due to a shortage of judges. This could be an indication of relevant

systemic failure. A case not reached should be given priority and the powers that be should ensure that a judge is available to hear it

on the next occasion just as that should happen in relation to any case that is specially fixed but unfortunately, it does not always

happen. This is where I can understand that the concept of systemic delay might be relevant but I am satisfied that it does not arise

in this case and I agree that the appeal should be dismissed.