Supreme Court allows injunction for dormant membership count but dismisses appeal regarding conspiracy count due to fair trial findings.

THE SUPREME COURT

336/07

Murray C.J.

Hardiman J.

Geoghegan J

Fennelly J.

Finnegan J.

BETWEEN/

COLM MURPHY

Applicant/Appellant

and

THE DIRECTOR OF PUBLIC PROSECUTIONS,

IRELAND AND THE ATTORNEY GENERAL

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 14th day of July 2009

This is an appeal brought by the above-named appellant from an order of the High Court (O’Neill J.) refusing by way of

judicial review to grant an injunction against the Director of Public Prosecutions from proceeding with a re-trial in the

Special Criminal Court of a charge of conspiracy to cause an explosion (the alleged explosion being popularly referred to as

“the Omagh Bombing”) ordered by the Court of Criminal Appeal following the hearing of an appeal from the Special

Criminal Court convicting the appellant of that offence. The ground put forward for such judicial review was essentially

delay in different forms in processing the proceedings against the appellant. On the original indictment, there was a second

count, that of membership of an unlawful organisation. The trial of that count was postponed by the court pending

completion of the proceedings relating to the conspiracy count. In relation to the membership count, the appellant made the

case in his judicial review application to stop trial of it also by reason of the long lapse of time in which it remained dormant.

Through some oversight or perhaps misunderstanding, the learned trial judge in his reserved judgment did not deal with this

second aspect of the judicial review sought but the appeal now before this court does relate to it. I will postpone all further

reference to this count until after I have fully dealt with the proceedings relating to the conspiracy count.

In connection with the conspiracy proceedings there were some unusual events and circumstances. Before I explain them, I

intend to set out in this judgment the chronology of the material events. That chronology is as follows:

15/8/98 Explosion in Omagh.

8/11/98 Appellant first arrested.

21/2/99 Appellant arrested for the second time.

23/2/99 Appellant charged with the conspiracy count.

26/3/99 Appellant admitted to bail.

5/10/99 Book of evidence served on the appellant.

31/1/2000 Appellant refused legal aid.

21/3/2000 Trial fixed for 16/1/2000.

Due to another trial exceeding its anticipated time limit, court unable to proceed with the trial on

16/1/2001 as fixed

and a new date was fixed for 9/10/2001.

12/10/2001 Trial commenced.

19/11/2001 Trial became adjourned owing to illness of one of the three judges. The trial was then adjourned to 11/01/2002.

14/1/2002 Conclusion of trial.

22/1/2002 Verdict of guilty on the conspiracy count (trial of the other

count had been postponed).

25/1/2002 Sentence of 14 years imprisonment imposed in respect of the

conviction. Leave to appeal refused.

30/1/2002 Notice of application for leave to appeal lodged with the

Court of Criminal Appeal but contained no grounds.

October, 2002, grounds of appeal lodged.

3/7/2003 Transcript became available for the hearing of the

application for leave to appeal by the Court of Criminal

Appeal.

26/4/2004 Application for legal aid on the application to the Court of

Criminal Appeal granted.

14/6/2004 Written submissions delivered by the appellant.

27/10/2004 Date of hearing of application for leave to appeal fixed for

7/12/2004.

7/12/2004 to 9/12/2004 Hearing of the application for leave to appeal.

21/1/2005 Court of Criminal Appeal treated the application for leave as

the appeal itself, allowed the appeal, quashed the conviction

and ordered a new trial. Almost immediately after the

judgment of the Court of Criminal Appeal, two members

and one Garda Síochána who had given evidence in the

appellant’s trial were charged with perjury in respect of

that evidence. It is not in dispute that the Director of Public

Prosecutions decided to proceed with the perjury prosecution

before proceeding with the appellant’s re-trial and that the

appellant acquiesced in this decision as indeed one would

expect him to do.

5/4/2005 The appellant’s case was mentioned in the Special

Criminal Court and was adjourned on several occasions thereafter pending the perjury trial. In the event there was an

acquittal of the gardaí on the perjury charges.

25/4/2006 New trial date fixed for the 11/1/2007 (the trial of the gardaí having determined).

17/7/2006 Application for leave to seek an order injuncting a proposed retrial on grounds of delay. Order made on that date

by O’Neill J. granting leave to seek an order of prohibition restraining the second-named respondent from conducting the

trial and/or an injunction restraining the Director of Public Prosecutions from further prosecution and a declaration that the

trial of the appellant would, if it proceeded, contravene the rights of the appellant under the Constitution and/or the

European Convention on Human Rights in particular Article 6 thereof on grounds which can be summarised as undue delay

giving rise to a real risk of an unfair trial and lapse of time contravening Article 6 of the European Convention. By a later

order of 23/5/2007 O’Neill J. gave leave for a third ground to be added namely:

“The capacity of the applicant to defend the criminal proceedings against him is

compromised by reason of his memory impairment to such an extent as to render it

unfair and/or in breach of his rights under the Constitution and/or the European

Convention for Human Rights to proceed with the trial either at all or after such a lapse

of time has occurred.”

The leave to add that additional ground was given at the actual hearing of the judicial review which in turn was brought

pursuant to a motion of 21/7/2006. The additional leave was sought by a motion of the 11/5/2007. The order of the High

Court 30th October, 2007 refusing the judicial review covers the additional ground as well as the original ground. That order

followed on a reserved judgment delivered by the learned trial judge on the 23rd October, 2007.

A notice of appeal dated the 26th November, 2007 to this court was then served. It contains 28 listed grounds. However,

many of them are interrelated with each other, I would summarise the position by saying there are essentially seven issues

on the appeal. These are:

1. The failure to deal with the membership charge in the judgment.

2. The finding that there was no blameworthy prosecutorial delay.

3. An issue of alleged systemic delay due to alleged inadequate resourcing of the Special Criminal Court.

4. The finding by the learned High Court judge that there was inordinate and unexplained delay on the part of the appellant

in advancing an application for legal aid in relation to his appeal.

5. The alleged memory impairment on the part of the appellant.

6. The finding that the appellant had failed to demonstrate any prejudice arising from alleged delay or that he had suffered a

significant level of anxiety.

7. The finding that there were no breaches of Article 6 of the European Convention on Human Rights.

I will deal with each of these issues though I will postpone expressing views on the first issue which relates to the other

count until the end of this judgment. Starting therefore with the issue of delay and in particular the issue of blameworthiness

for that delay, I find myself in broad agreement with the views of the learned trial judge. O’Neill J. made the following

observation which is particularly relevant to this particular case:

“In the course of any prosecution a variety of diverse circumstances will arise which will require

varying degrees of time to be dealt with. The first period of complaint relates to time lapse between

the appellant being charged with the offence and the service of the book of evidence. This period

ran from the 23rd February, 1999 to the 5th October, 1999.”

While this period could not be described exactly as short, I agree with the learned High Court judge that given the nature of

the case and the events in connection with it, the period could not be described as inordinate. There was a claim for legal aid

and that was apparently refused on the 31st January, 2000. A date was fixed for the trial on the 21st March, 2000. The trial

date fixed by the Special Criminal Court was the 16th January, 2001. In my view, this court would have no reason to

believe that that was not an appropriate date having regard to the Special Criminal Court list. However, the appellant is

complaining of the lack of resources given by the State to the Special Criminal Court to enable speedier trials and he is

characterising this as so-called “systemic delay”. I have certain views about this phrase which I have expressed in other

judgments. Indeed my observations in McFarlane v. DPP unreported judgment 5th March, 2008 are set out in the written

submissions of the respondents. In a nutshell, I believe it can mean so many different things that it is dangerously imprecise.

If carried to its logical conclusion, the courts could abort a trial because there were not enough judges or not enough court

rooms etc. I do not know of any judgment of the Court of Human Rights in Strasbourg still less any court in this jurisdiction

which has ever given credence to that view and there is nothing whatever in Article 6 of the Convention which says that

there can be no trial in such situation even if there was a breach. There is an established constitutional jurisprudence in this

jurisdiction relating to delay and its effect or non-effect on an impending criminal proceeding. I have no reason to believe

that the application of that jurisprudence does not adequately fulfil the requirements of the Convention.

What I have just said is equally applicable to the adjournment of the trial which occurred as a consequence of another trial

overrunning its estimated time. Again, any delay resulting was not blameworthy in my view quite apart from the fact of

course that the Director of Public Prosecutions himself has no function in providing adequate resources for the courts. Other

factors may, combined with the lapse of time, render it unlikely that an unfair trial could be held. The so-called systemic

delay of itself cannot do so.

Yet again the same point arises in relation to complaints about the provision of the official transcript. The learned High

Court judge correctly makes the point that there was no real prejudice in that the appellant was in possession of transcripts

which had been made available throughout the trial. However, it is undoubtedly true that an official transcript would have to

be obtained before the appeal could be heard and the appellant complained of the “systemic delay” in obtaining the

transcript. In recent years, delays in obtaining official transcripts have been greatly reduced. I am not satisfied that any

justiciable complaint could be made about delay in obtaining the transcript in this case. At any rate, it appears that the

appellant delayed considerably in delivering his written submissions for the purposes of the appeal. They were not delivered

until the 14th June, 2004 which as the trial judge points out was almost two and a half years after the commencement of the

application for leave to appeal. The excuse given for this was delay in processing an application for legal aid but the learned

High Court judge found himself unable to accept this explanation. He points out that on the 3rd February, 2004, the case

was listed in the Court of Criminal Appeal Case Management List to ascertain readiness to proceed having regard to the legal

aid application. It then emerged that the appellant had not lodged the necessary papers for the legal aid application. The case

was adjourned to a case management list on the 2nd March, 2004. Apparently, a complete statement of means was

demanded of the appellant which in all the circumstances would seem to be reasonable. The learned trial judge concluded

that “there was inordinate unexplained delay on the part of the applicant in advancing his application for legal aid and

that this delay in turn inevitably affected the onward progress of the application for leave to appeal in the Court of

Criminal Appeal list. Had the applicant pursued his application for legal aid in a timely fashion, it is probable that his

appeal would have been prepared far sooner and been given a date for hearing far sooner than occurred. I am satisfied

that all of this delay was occasioned by inaction on the part of the applicant.” I see no reason for setting aside those

findings of the learned High Court judge.

The two year period from January, 2005 until January, 2007 is dealt with by the learned High Court judge as follows:

“The two year period from January 2005 until January 2007 when a date was fixed for the retrial

was entirely explained by the prosecution of the two garda witnesses in the first trial of the

applicant for perjury. The applicant acquiesced in this manner of proceeding and consented to

various adjournments along the way. In my view, he cannot now complain about this delay.”

It seems so obvious that the appellant would not want his re-trial to commence until after the trial of the two gardaí charged

with perjury that any suggestion that the acquiescence was in some way reluctant (which seems now to be suggested) is

simply incredible and irrespective of whether in this regard the learned High Court judge can be said to have made a finding

of fact or to have drawn an inference from the facts, it would be wholly inappropriate for this court to interfere with that

finding.

I turn now to the issues relating to alleged stress and memory loss.

In his reserved judgment, the learned trial judge sets out a lengthy passage from the report of Dr. Ferguson, a

neuropsychologist. The judge seems to have placed particular reliance on this passage and I therefore think it worthwhile to

set it out again in this judgment.

“… I would not expect Mr. Murphy to be compromised in being able to recall important episodic or

factual information from his past (even post-head injury); he would not appear to have difficulties

with the permanent storage of such information. The specific impairment in short term memory

would affect his ability to temporarily remember immediately presented information especially if it

is not repeated or presented at a slow pace; the condition is unlikely in some interrogative style. In

the stressful conditions of such a police interview, he could become confused easily, and be unable

to remember important aspects of the interview as he cannot store the verbal information long

enough for it to stay in memory. Mr. Murphy’s speed of processing verbally presented information

is also poor, and would further impede his ability to remember important aspects of an interview,

both during the interview process itself, and he is also likely to forget aspects of the interview after

it is finished due to the cumulative effects of not being able to process the verbally presented

information at the time. This assessment can only conclude that Mr. Murphy is likely to experience

difficulties with the temporary storage of verbally presented information in his ‘working’ or

‘immediate’ memory. Within the process of a stressful rapidly paced interrogative interview style,

Mr. Murphy is likely to fail to process and remember certain information spoken to him, this is

information he has no control over. I cannot however conclusively state that Mr. Murphy will

experience difficulty recalling anything he has said in previous interviews with police. This would

after all be information generated verbally by him, it is unlikely to be new or ‘novel’ information,

but based upon semantic memory and his knowledge and experience; and it is ultimately verbally

presented information that he has control over. Nevertheless because of the result of stress he may

have been under during his previous interviews, there may have been some difficulties recalling

aspects of discussion in general.

Regarding prognosis, it is unlikely that if a right cerebral hemisphere lesion has occurred as a

result of head injury, Mr. Murphy’s stated deficits will fully recover to his pre-morbid levels of

functioning. However, continued development of effective compensatory strategies for his poor

short-term memory and processing speed should result in some improvement in symptom

management and general coping ability. The findings of this assessment of intellectual function are

consistent with those of previous testing in 1990, recent to the road traffic accident. There does not

appear to have been any decline in functioning during this time, or as is also noteworthy, any

improvement.”

The learned trial judge went on to say the following:

“From this evidence I would infer that the applicant’s memory difficulty is limited to a short term

difficulty in absorbing information verbally presented to him in a fast paced interrogative style

interview. He has no difficulty in recalling events or information from his past including his post-

accident past and has no difficulty in recalling what he himself has said in the past.

I am satisfied that the memory impairment which afflicts the applicant has not at all affected his

ability to recall relevant events and in particular his participation in interviews with members of

An Garda Síochána and to instruct his legal team accordingly. Thus insofar as an important part of

the State case against the applicant is an admission allegedly made by him in the course of one

interview, it would seem to me that his memory impairment would not affect his ability to

remember something as important as this, allegedly said by him. It is noteworthy that in this regard

no memory difficulties apparently impinged upon his defence in the first trial.”

Finally, after making some further observations on the memory issue, O’Neill J. concludes “that there is nothing in the

evidence of Professor Kennedy or Dr. Ferguson which gives rise to a concern that the applicant’s memory impairment is

such that he cannot now have a fair trial.” I see no basis on which this court can set aside those findings by the learned

High Court judge.

With regard to distress and anxiety, these would be bound to arise to some extent in a trial of this significance. I see no

reason to alter the view taken by the learned trial judge that there was anything of this nature of a degree which would

warrant prohibition or injunction.

With regard to prejudice, no case would seem to have been made out which would warrant prohibition or injunction and this

was the view of the learned High Court judge.

In connection with the delay issue, I have already commented on the effect of Article 6 of the Convention on Human Rights

and I do not think any further treatment of the subject is required.

As far as the conspiracy count is concerned, I would dismiss the appeal.

The membership count however is in a different position. There has never been a trial on it and it has lain dormant for many

years. It would have been perfectly proper originally not to have proceeded with this trial in tandem with the conspiracy

count having regard in particular to special evidential rules which can apply to a membership charge. Even apart from that

aspect it would have been reasonable for the Director of Public Prosecutions to delay that trial pending the outcome of the

conspiracy trial. But the extraordinary events which occurred could not have been anticipated. The sickness of a judge, the

overlap of a previous trial but above all the delay caused by the perjury trial. In the events that have happened, I am of

opinion it would be unfair to allow that trial to proceed now and, therefore, I would allow the appeal to that extent only.

Accordingly, there should be an injunction against the Director of Public Prosecutions from proceeding with that particular

count.

Murphy v. The DPP & Ors.