Supreme Court dismisses appeal for prohibition of trial due to delay, citing waiver of ECtHR claims.

THE SUPREME COURT

JUDICIAL REVIEW

APPEAL NO 380/11

Murray J.

Clarke J.

MacMenamin J.

BETWEEN

PATRICK ENRIGHT

APPLICANT/APPELLANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS AND JUDGE CARROLL MORAN

RESPONDENTS

JUDGMENT of Mr. Justice John MacMenamin dated the 26th day of October 2012.

1. This is an appeal against a judgment of the High Court (Charleton J.), delivered on the 25th July, 2011. There, the learned High

Court judge refused to prohibit the appellant’s trial. On the 4th October, 2012, this Court delivered its judgment, dismissing the

appeal, refusing the application for prohibition, and directing that the prosecution would apply, at the earliest time, for a re-listing of

the trial. The reasons for that judgment are now explained.

Background to the First Judicial Review Application

2. This is the appellant’s second set of judicial review proceedings seeking to prohibit his trial on the grounds of delay. The appellant

stands indicted on ten grounds of forgery contrary to s. 4(1) of the Forgery Act 1913. These charges arise from incidents alleged to

have occurred between the 1st January, 1994 and the 21st August, 1994. The date for his trial had been fixed in the Circuit Criminal

Court in Tralee before he initiated these judicial review proceedings.

3. In the first set of proceedings in the High Court, O’Neill J. refused to prohibit the appellant’s trial (see Enright v. Judge Terence Finn

and the Director of Public Prosecutions [2005] IEHC 454). The appellant’s appeal from that decision was heard by this Court on the

29th May, 2008. This Court delivered an ex tempore judgment upholding O’Neill J.’s judgment and refusing an order of prohibition, and

gave its reasons on 29th July, 2008 (see Enright v Judge Terence Finn and the Director of Public Prosecutions [2008] IESC 49).

Denham J., speaking for the Court, analysed the complaints advanced by the appellant under a number of headings:

(i) Non-compliance with section 6 of the Criminal Procedure Act 1967, as amended, with reference to the exhibits;

(ii) Delay;

(iii) Loss of witnesses;

(iv) A “side bar agreement” that the matter would not proceed if the applicant accommodated his former employer;

(v) An “attack” upon the applicant by the Law Society; and

(vi) The discretion of the court.

It is unnecessary to go into any of these headings in detail. Suffice it to say that the judgment considered each issue, and concluded

that the appellant had not demonstrated that there was a real risk of an unfair trial on the basis of actual prejudice under any of the

headings and, therefore, the appeal was dismissed. These issues, relating to the fairness of the intended trial, must therefore be

taken as res judicata.

4. It is necessary then to trace the events after the Supreme Court judgment under two separate headings. The court will consider,

first, the subsequent conduct of the prosecution and the events in the District and Circuit Courts, in the context of prosecutorial

delay and, what is termed, systemic delay, that is delay within the context of the court system. Second, it will be necessary to

analyse the effect of an application made by the appellant to the European Court of Human Rights (“ECtHR”), in respect of the alleged

delay in prosecuting the charges.

Background the Second Judicial Review Application

5. The appellant is a solicitor. The District Judge assigned to the relevant district was acquainted with him. As a result, another

District Judge was designated to deal with the case. He will be referred to as the ‘designated Judge’. The designated Judge was not in

attendance on the 22nd October, 2008, when the matter came next before Tralee District Court; the matter, therefore, had to be

adjourned until the 10th December, 2008. Unfortunately, on a number of subsequent dates that designated Judge was again sitting

elsewhere, and the matter had to be adjourned. Those dates were the 10th December, 2008, the 25th February, 2009, the 25th

March, 2009, the 27th May, 2009, the 22nd July, 2009, the 7th October, 2009 and the 4th November, 2009.

6. However, at no point during that period did either the prosecution or defence make an application to the sitting District Judge to

request the President of the District Court to assign a different judge to deal with the matter. A further difficulty had also arisen

because the State Solicitor for Kerry was also acquainted with the appellant, and a different State Solicitor, who unfortunately had

an illness, had to take the matter over. None of these issues, however, were incapable of speedy resolution, if appropriate actions

had been taken.

7. On the 7th December, 2009, however, the designated Judge was in a position to attend at the Tralee District Court. On that

occasion, it was submitted on behalf of the appellant that the proceedings should be dismissed on the grounds of delay. The Judge

reserved his decision and the matter was adjourned until the 21st December, 2009. On the latter date, he indicated that he required

further time to consider the matter. The matter was again listed on the 11th January, 2010 when, unfortunately there was no

appearance on behalf of the Director of Public Prosecutions, and the matter was yet again adjourned to the 1st February, 2010. On

the 1st February, 2010, the designated Judge ruled against the appellant in relation to the delay point. The matter was then

adjourned until the 26th February, 2010 for the purpose of taking depositions. By that date, the preliminary examination of witnesses

in the District Court had concluded, and the appellant was returned for trial at the next sittings of the Circuit Criminal Court in Tralee.

8. On the 21st May, 2010, the matter appeared in a list to fix dates in the Circuit Criminal Court. The solicitor representing the

Director of Public Prosecutions indicated to the learned Circuit Judge, who is the second named respondent herein, that the

prosecution would not be in a position to deal with the matter until the middle of July, 2010. Consequently, the matter was adjourned

to the following list to fix dates. On the 4th October, 2010, the case again appeared before the learned Circuit Judge in a list to fix

dates. On that occasion, again, there was no appearance by or for the Director of Public Prosecutions. The matter then had to be

adjourned to the next list to fix dates. It should be said in fairness that it is not alleged the Circuit Judge was in any way responsible

for the delays and mishaps which occurred. On the 5th January, 2011, the trial was finally fixed for the 5th April, 2011, following an

application by the prosecution. The application for leave to seek judicial review herein was made on the 28th February, 2011.

The Appellant’s Submissions

9. Counsel for the appellant submits that he cannot receive a fair trial, in accordance with the provisions of the Constitution or the

provisions of the European Convention on the Protection of Human Rights and Fundamental Freedoms, by reason of the efflux of time

from the time of his arrest in connection with these matters in 1994 up to the present date. In argument, his counsel submits that

the delay in the criminal proceedings should be divided into two parts namely, first, the time period from the appellant’s arrest to the

judgment of the Supreme Court in 2008; and, secondly, from that judgment up to the date upon which the appellant’s trial date was

fixed. This latter period, it is said, is of particular significance having regard to the earlier lengthy delay.

10. In the light of the earlier Supreme Court decision, no complaint can arise regarding matters of alleged actual prejudice, which

occurred prior to that decision. The matters are res judicata. Instead counsel for the appellant submitted there was presumptive

prejudice arising from the lapse of time which took place after the Supreme Court decision, to be seen now in the context of the

overall timespan of the entire case going back to 1994. He submitted that, in the circumstances, there was an added onus upon the

Director of Public Prosecutions, subsequent to the first Supreme Court judgment, to ensure that the appellant’s right to an expeditious

trial was vindicated.

Prosecutorial Delay

11. In my view, an added obligation did devolve on the prosecution to ensure that the trial proceeded in an expeditious manner. The

prosecution did not proceed in this way and, for this, a significant degree of the blame must be placed on the Office of the Director of

Public Prosecutions or those representing it. There was blameworthy delay on the part of the prosecution authorities arising from the

non-appearances and, also in part, from the systemic delays arising from the failure to take any remedial steps to get the case

reassigned. However, I would reject any contention, that the appellant had no effective remedy available to him to ensure an

expeditious trial. He, too, could have applied for a different judge to take on the matter. Without doubt, a new judge would have

been made available. In this way, therefore, the appellant could also have taken steps to vindicate his right. Nonetheless, there has

been blameworthy delay on the part of the prosecution. But is this sufficient to debar the Director from proceeding with the trial?

12. In McFarlane v. the Director of Public Prosecutions [2008] 4 I.R. 117 at pp. 162-163, Kearns J. summarised the present law on

prosecutorial delay in the following terms:

“(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant’s constitutional entitlement to a

trial with reasonable expedition;

(b) prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to

an expeditious trial by directing prohibition;

(c) where there is a period of significant (as distinct from minor) blameworthy prosecutorial delay less than that envisaged

at (b), is demonstrated, the court will engage in a balancing exercise between the community’s entitlement to see crimes

prosecuted and the applicant’s right to an expeditious trial, but will not direct prohibition unless one or more of the

elements referred to in P.M. v. Malone [2002] 2 I.R. 560 and P.M. v. Director of Public Prosecutions [2006] IESC 22,

[2006] 3 I.R. 172 are demonstrated;

(d) actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to

prohibition.”

13. The prosecution delay here has been significant and is largely unexplained. However, it is accepted that this delay has caused no

actual prejudice to the appellant. Moreover, it is also a fact that the case against the appellant is based largely on documents, and is

therefore not substantially reliant on human factors such as recollection or identification. The grounds for this appeal must, therefore,

be narrowly based and confined to presumptive prejudice arising from the lapse of time. The question then arises as to whether the

delay is of such a degree that the court will presume prejudice or whether it falls below that threshold, i.e. point (c) in the judgment

of Kearns J. above, in which case the Court will be required to carry out a balancing exercise, where the community’s entitlement to

prosecute crime is engaged as the counter weight.

14. In weighing these factors, I refer to the three interests identified in this Court’s judgments in P.M. v. Malone and, again, in P.M. v

Director of Public Prosecutions. In P.M. v. Malone, Keane C.J., citing the decision of the United States Supreme Court in Barker v.

Wingo (1972) 407 U.S. 514, identified the fundamental issues to be considered in a case of this nature, as being: (a) loss of liberty

pending trial; (b) anxiety and concern to the accused; and (c) impairment of the defence.

15. P.M. v Director of Public Prosecutions has a particular relevance to this case. There, the sole point of substance was whether

blameworthy prosecutorial delay could, in itself, be sufficient to warrant a restraint of trial. This court answered that question in the

negative, indicating that one or more interests protected by the right to an expeditious trial must be shown to have been so

interfered with so as to warrant the granting of an order of prohibition. In the instant case, there has been no loss of liberty. It is not

said the delay after this Court’s decision in 2008 has impaired the appellant’s capacity to defend himself. And it has not been

submitted that there is any specific stress element in the case.

16. The court would also lay emphasis on the fact that amongst the important factors mentioned in Barker v. Wingo was whether the

accused had taken any steps to assert his right by for example, applying for an early trial (see also the judgment of the ECtHR in

McFarlane v. Ireland [2010] ECHR 1272 at para. 148, where the appellant in McFarlane successfully appealed to the ECtHR claiming

violation of his rights under Articles 6 and 13). The appellant did not do so. First, he never made an application for, or requested, an

early trial. Second, as clearly pointed out, he did not ask for a new judge to deal with the preliminary applications.

17. Therefore, these authorities are not of assistance to the appellant. The balancing exercise to be carried out, between the public

interest in the prosecution of crime and the appellant’s right to an expeditious trial, favours the former. I now turn to the issue of

systemic delay.

Systemic Delay

18. This question of systemic delay was also addressed by this Court (Kearns J.) in McFarlane v. Director of Public Prosecutions, when

he stated at p.164:-

“Should systemic delay be seen as qualitatively different from prosecutorial delay? From an applicant's point of view,

assuming he has not occasioned or contributed to the delay arising since the inception of the criminal process, I believe

that the distinction is one without a difference. I believe that systemic delay is to be governed by the same principles

which govern prosecutorial delay, not least because both forms of delay affect an accused in the same way.”

19. Here again, having regard to the balancing exercise involved, the court must have regard to the absence of any of the three

factors identified earlier: loss of liberty; stress or anxiety; or impairment of the defence through actual prejudice. Here too, there is

the important factor that much of the evidence relied upon by the prosecution is documentary in nature. Assessing each of the

relevant factors individually, and collectively, and placing each in the balance, I find the appellant has not discharged the onus which

necessarily requires him, to demonstrate, as a matter of probability that he will not receive a fair trial. The community interest in the

prosecution of crime outweighs the delay in the instant case. Therefore, I am unable to conclude that the appellant can succeed in

this argument.

The Proceedings before the European Court of Human Rights

20. For completeness, it is necessary then to consider whether the proceedings initiated by the appellant (through another lawyer)

before the European Court of Human Rights have a bearing on this appeal. In the proceedings before the ECtHR, initiated in 2008, the

appellant had alleged violation of his Convention rights by reason of the delay in prosecuting the charges, and the lack of an effective

remedy for such violation under Article 6 of the Convention. Those proceedings were adjourned on the 14th December, 2009, pending

the decision of the Grand Chamber in McFarlane v Ireland.

21. On the 6th October, 2010, the ECtHR indicated, by letter to the Director of Public Prosecutions and to the appellant, that it was

resuming consideration of the appellant’s case following the delivery of the McFarlane judgment. It is unnecessary to outline the facts

in McFarlane for the purpose of this judgment. It is sufficient to say that the ECtHR concluded that the Government of Ireland had

not shown that any of the national remedies proposed by it (including an action for damages for breach of the constitutional right to

trial with reasonable expedition) constituted effective remedies for delay and that, accordingly, there had been a violation of Article

13 ECHR (Right to an effective remedy) in conjunction with Article 6 ECHR (Right to a fair trial). That Court also held that there had

been a failure to provide a trial within a reasonable time, thereby violating Article 6(1) of the Convention. Therefore, it held that the

applicant, Mr. McFarlane, was entitled to an award of compensation for non-pecuniary damages and a further award for legal costs

and expenses.

22. On the 17th December, 2010, the ECtHR indicated by letter to the parties herein that the appellant’s case lent itself to “having its

admissibility and merits examined at the same time”. Also enclosed was information outlining the procedure for friendly settlement of

the case. Negotiations took place on a without prejudice basis. On the 18th January, 2011, the ECtHR received the appellant’s

declaration that he accepted a proposal from the Government of Ireland to pay him the sum of €9,500 as a “final resolution of the

case”. The reference therein was, clearly, to the appellant’s case, and the complaints of delay contained therein, before the ECtHR.

On the 9th February, 2011, the ECtHR received the Irish Government’s declaration that it accepted the proposal to pay €9,500 to the

appellant as “final resolution” of the case. On the 12th January, 2011, the appellant wrote to the Director of Public Prosecutions

setting out the position in the ECtHR and calling on the Director to indicate that he would not prosecute the claim. To this, there was

a response on the 1st February 2011, wherein it was indicated that the Director intended to continue with the prosecution.

23. It is important to emphasise the appellant in this appeal does not place any direct reliance on any of the Strasbourg proceedings

(or the resolution thereof) as being determinative on this court. It is not suggested that the formula of words adopted in the friendly

settlement has a direct bearing on the judicial review herein. In the context of the McFarlane decision, it must be emphasised that

the only relief sought by the appellant in this appeal is simply prohibition of his impending trial. No other claim or other relief of any

type has been sought; specifically, he has not sought any financial compensation for alleged delay. Consequently, it is unnecessary,

save for general context, for this court to consider anything other than prosecution delays in the case and those within the court

system.

24. Insofar as the appellant might have relied on the decision of the European Court of Human Rights in McFarlane, counsel for the

respondent submits such reliance would be misconceived. McFarlane concerned an award of damages to the applicant on the basis

that he had not received an expeditious trial, in circumstances where the ECtHR reached the conclusion that it was not clear that the

applicant could have received damages in the Irish courts had he made such a claim.

25. The right to compensation for failure to provide an expeditious trial is quite different from the grounds for the relief of prohibition.

In McFarlane v. Ireland, the ECtHR did not demur from the ruling of this Court to that effect in Barry v. Director of Public Prosecutions

[2003] IESC 63, its reiteration by Kearns J. in McFarlane v. Director of Public Prosecutions, and the observations to the same effect

by Fennelly J. in T.H. v Director of Public Prosecutions [2006] 3 I.R. 520 at p.540. In T.H, Fennelly J. observed:-

“It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights.

The court does not, and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if

a judgment of that court holding that the prosecuting authorities were “partially or completely responsible” for certain

periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any

legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from

other parts of the caselaw of the court that it does recognise the public interest in prosecuting crime (see Kostovski v.

Netherlands (1989) 12 E.H.R.R. 434 and Doorsen v. Netherlands (1996) 22 E.H.R.R. 330). Thus, the decision of the Court

leads to a monetary award. It has no consequence for the pending prosecution.

26. These views were recently reiterated in judgments of this court in Kennedy v. Director of Public Prosecutions [2012] IESC 34,

where the applicant sought to prohibit a prosecution initiated against him in 2010, arising from events that had occurred from 1992.

Denham C.J. reiterated the three interests set out in Barker v. Wingo relevant to the grant of prohibition when the issue of a right to

an expeditious trial arises. She went on to point out at paras. 66-67:-

“… blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also

that one of his interests protected by his right to an expeditious trial has been interfered with: P.T. v Director of Public

Prosecutions [2007] 1 I.R. 701; D. v Director of Public Prosecutions [1994] 2 I.R. 465; P.M. v Malone [2002] 2 I.R. 560;

P.M. v Director of Public Prosecutions [2006] IESC 22, [2006] 3 I.R. 172.”

She added:-

“Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP a further analysis would be required

to determine if there had been consequential prejudice to the appellant.”

27. The Chief Justice then went on to consider the effect of a decision of the European Convention on Human Rights in the context of

an applicant’s claim for prohibition. She stated at para. 80:-

“The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused

under Irish jurisprudence. I have had no case opened to me where a decision of the ECHR determined that as a

consequence of delay a trial shall be prohibited. Consequently as the remedy sought by the appellant was to prohibit his

trial, an option under Irish law, but not apparently under the ECHR, this claim has been determined on Irish law.”

28. In the same case, Clarke J. also considered the impact of a determination by the European Court of Human Rights on the

continuance of domestic criminal proceedings. He adopted the reasoning of Fennelly J. in the T.H. case, and pointed out that a

decision by the ECtHR of a breach of an entitlement under the Convention to a reasonably expeditious trial did not automatically lead

to a breach of the right to a fair trial requiring an order of prohibition. He pointed out that the ECHR provides an express entitlement

to a trial within reasonable time (Article 6(1)) and continued at paras. 4.1- 4.3:-

“… if, making all allowance for the complexity of the case and any other factors which could legitimately lengthen the time

within which the case might expect to be concluded, and paying appropriate regard to any material contribution by the

complainant to the lapse of time concerned, the case is nonetheless not finished in a timely fashion, then a breach of the

Convention will be established and the complainant will be entitled to an appropriate award of damages.

However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of

a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial,

whether for the purposes of the ECHR or under the Constitution (to the extent that there might be any difference in the

relevant jurisprudence). Counsel for Mr. Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to

award damages in the event that a breach was established was the only reason why the ECtHR confined itself, in many of

the cases, to making a finding of a breach of the right to a reasonably expeditious trial coupled with an award of

damages.

However it seems to me that the distinction between the right to a reasonably expeditious trial, and the right to a fair

trial under the jurisprudence of the ECtHR is much wider than conceded by counsel. The fact that, in either case, the

ECtHR is confined to awarding damages, cannot be doubted. However it does not follow that in every case in which the

ECtHR finds a breach of the right to a reasonably expeditious trial also involves a finding by that court to the effect that

the trial was unfair. It further does not follow that it would, necessarily, be a breach of the right to a fair trial under the

ECHR to allow a trial to go ahead after a lapse of time which amounts to a breach of the right to a reasonably expeditious

trial. The appropriate response to a finding of a breach of the right to a reasonably expeditious trial does not necessarily

require that there can be no trial but rather can involve a range of measures including, if appropriate under the law of the

relevant contracting State, the award of damages, amelioration of the sentence imposed on conviction in criminal

proceedings, or any other measure which the ECtHR might consider to be a proper proportionate and appropriate response

to the breach established. It does not therefore follow that the ECHR requires, for the avoidance of a breach of its

provisions, that a trial be prohibited in every case where there has been a breach of the right to a reasonably expeditious

trial.”

29. These observations are particularly à propos in the instant case. It is clear then that even a determination that there was a

violation of the right to an expeditious trial does not give rise to any automatic finding that the trial is ipso facto unfair. Counsel for

the appellant has not suggested otherwise, and largely confined his argument to prosecutorial and systemic delay, seen in the light of

Irish jurisprudence.

30. In the instant case, the appellant has not sought to avail himself of any of the remedies identified in that final passage of Clarke

J.’s judgment in Kennedy. Moreover, here, the appellant must have regard to the fact that he himself accepted the agreed sum as a

“final resolution” of his complaint to the ECtHR. In so doing, I consider that he waived any further claim against Ireland arising from

the facts giving rise to his application. The acceptance of the sum of money is therefore to be seen as a final resolution of any claim

that he might have had relating to a violation of his rights.

Conclusion

31. In all the circumstances, therefore, I would dismiss the appeal and uphold the High Court judgment.