Supreme Court dismisses appeal against High Court refusal of prohibition order due to prosecution delay.

THE SUPREME COURT

Macken, J. [S.C. No. 406/2009]

O’Donnell, J.

McKechnie, J.

BETWEEN

J. HARRIS (ASSEMBLERS)

Applicant/Appellant

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent/Respondent

Judgment of the Court delivered by Macken J. on the 1st day of February, 2012

By a judgment delivered on the 14th July, 2009, the High Court (Hedigan J.) refused the appellant’s application for an order of

prohibition restraining the respondent from pursuing a prosecution of the appellant under Bill No. CC92/08, which at that time was

pending before Dublin Circuit Criminal Court. That relief was sought among other reliefs, including an injunction restraining the

respondent from taking any further steps in those proceedings, an order staying the prosecution of those proceedings, and a

declaration that the respondent had acted otherwise than in accordance with the principles of natural and constitutional justice, or in

accordance with fair procedures, such as to preclude the appellant from having a fair trial. The application was made on the basis

that there had been inordinate delay on the part of the respondent in the prosecution by him of the offences in respect of which the

appellant was charged under the above Bill.

The Attorney General had been joined as a notice party to the proceedings in the High Court, but did not play any role in these

proceedings during the course of the High Court hearing, and is not party to the present appeal.

Background

A detailed background, including the procedures adopted giving rise to the original proceedings, is found in the High Court judgment

and briefly can be stated to be the following:

In January, 2000 the appellant sold a particular type of lorry to a company called South Midland Construction Company Limited

(“Southern Midland”). In November, 2002, while that lorry was in the ownership of the latter company, it was involved in a fatal

accident as a result of which the lorry was inspected by a representative from the Health and Safety Authority (“HSA”). The Garda

Síochána also carried out an inspection of the lorry a few days later on the 26th November, 2002, and then the lorry was returned to

South Midland. In mid-March, 2003 the HSA contacted the appellant as part of its investigation into the circumstances surrounding

the fatal incident. The purpose of this was to confirm that the appellant had been the supplier of the lorry to the company. In mid-

May, 2003 a representative of Palfinger Ireland Limited, the manufacturer’s agents, and crane specialists, apparently informed an

inspector in the HSA that the designated safe zone from which an operator can operate the crane which was on the lorry can be

breached if safety devices are overridden. In late August, 2003 the lorry was sold back to the appellant by Southern Midland as one

of a batch of three vehicles. At that time the appellant did not know that among the three vehicles was the lorry which had been

involved in the accident, and shortly after this, on the 4th September, 2003, the appellant resold the lorry on to a Mr. Sean Collins of

a company called SBC Utilities Limited (“SBC Utilities”). On the 10th September, 2003, the lorry was sent to Palfinger Ireland Limited

to repair a hydraulic leak.

During this time a criminal investigation was being carried out into the accident, and in November, 2003 the respondent directed the

HSA to commence a prosecution against the appellant. Thereafter, the lorry underwent an inspection by a Mr. O’Dea of the HSA,

together with a representative, or representatives, of Pilz International Industrial Automation, in the presence of the new owner. The

same representative then met with two employees of the appellant company who furnished statements to him, prior to which no

cautions were administered. Mr. O’Dea subsequently carried out another inspection of the lorry in the presence of Mr. Collins of SBC

Utilities and observed that the top proximity sensors of the crane featured on the lorry were absent from their proper location. A

further meeting was then held between Mr. O’Dea and the same two employees of the appellant, at which no prior caution was

administered. In early 2004 the investigation file in respect of the appellant was passed by Mr. O’Dea to the HSA’s prosecution

committee for review, and was then forwarded to its legal department in late October, 2004.

On the 11th May, 2005, the appellant pleaded guilty to charges of breaching s.6(1) and s.6(2) of the Safety, Health and Welfare at

Work Act 1989 (“the Act of 1989”), and a fine of €100,000 was imposed by the Dublin Circuit Criminal Court. In early December, 2005

the review of Mr. O’Dea’s investigation file by the HSA’s legal department was completed and transmitted to the office of the

respondent who replied in February, 2006 with a request for further information and a series of additional statements were thereafter

taken during March and April, 2006. Replies were sent to the respondent in May, 2006 and a further request for information on behalf

of the respondent was made in June, 2006, which directions were duly complied with in early November of the same year. In January,

2007 the respondent gave directions to proceed with the prosecution of the appellant, and also directed that additional evidence

should be gathered, which was duly complied with, and sent to the respondent on the 2nd April, 2007. On the 24th April, 2007, two

summonses relating to the sale of the lorry were issued, and these were served on the appellant on the 22nd June, 2007. The

charges were as follows:-

(a) That the applicant, being a supplier within the meaning of the Safety, Health and Welfare at Work Act 1989, and a

person to whom s.10(1) of the said Act applies, did, on or around the 4th day of September, 2003, fail to take such steps

as were necessary to secure that persons supplied by the appellant with an article to wit: Hyno Grab/Crane Lorry

Registration No. 00 D 7794, were provided with adequate information about the use for which it had been designed, or

had been tested, and about any conditions relating to the articles, so as to ensure when in use, dismantled or disposed

of, it would be safe and without risk to health, contrary to s.10(1)(b) and s.48(1)(a) of the Safety, Health and Welfare at

Work Act 1989.

(b) That the applicant, being a supplier within the meaning of the Safety, Health and Welfare at Work Act 1989, and a

person to whom s.10(1) of the said Act applies, did, on or around the 4th day of September, 2003, supply an article to

wit: Hyno Grab/Crane Lorry Registration No. 00 D 7794, and did fail to ensure that the said article was designed,

constructed, tested and examined so as to be safe and without risk to health when used by a person at a place of work,

contrary to s.10(1)(a) and s.48(1)(a) of the Safety, Health and Welfare at Work Act 1989.

A book of evidence was served on the appellant in December, 2007 and on the 19th of that month the matter was sent forward to

Dublin Circuit Criminal Court for trial on indictment. Certain documentation was sought by way of disclosure, and following considerable

correspondence this was acceded to at the end of July, 2008.

On the 13th October, 2008, the High Court (Peart J.) granted the appellant leave to apply by way of judicial review for the reliefs set

forth at the commencement of this judgment.

The High Court Judgment

In the High Court judgment, the learned judge recited the submissions of the parties, setting out the arguments adduced, and dealt

with these, having regard to the grounds in respect of which judicial review was granted, on the following basis:

He recognised that the question of prosecutorial delay was one which had been the subject of very considerable scrutiny by the

courts over a period of years and invoked Devoy v. D.P.P. [2008] 4 I.R. 235, in which Kearns J. carried out a lengthy and informative

analysis of the applicable principles, and he cited those principles. Next the learned judge pointed to the fact that in the same case

Kearns J. emphasised the exceptional nature of the remedy of prohibition in the context of the criminal justice process. He then dealt

with the obligation on the court to have regard to the general presumption that if the matter were permitted to proceed, a trial judge

would act fairly in respect of the appellant, citing The People (D.P.P.) v. Z [1994] 2 I.R. 476.

Having regard to the above principles, and applying them to the facts germane to the present case, the learned High Court judge

found, first, that the prosecutorial delay in question was not so severe as to merit, of itself, an order of prohibition. In doing so, he

noted that the delay between the 4th September, 2003, when the alleged offences were said to have occurred on the sale of the

lorry to SBC Utilities Limited, and the 24th April, 2007, when the summonses were served, constituted a lapse of time deserving of the

court’s attention, but found the period was not so egregiously lengthy as to entitle the appellant to the relief sought, without further

consideration of the surrounding circumstances. The learned High Court judge then considered the obligation on the court to assess

whether any specific prejudice had arisen as against the appellant which had affected, or would affect in the future, the appellant’s

ability to mount a defence to the charges in question. On that issue, he found that there were no problems relating to the

unavailability of witnesses, or of documentary evidence. He pointed to the fact that the appellant’s submissions on this issue were

confined to general claims that the memories of employees may have, or had, dimmed, or become confused by subsequent events. In

that regard, the learned High Court judge determined that this argument was not supported by the evidence before him, and, on the

contrary, two of the appellant’s employees were capable of providing, on affidavit, for the purposes of the present judicial review

proceedings, quite detailed recollections of the events surrounding the sale of the lorry. In such circumstances, he was unable to

accept that any tangible or appreciable prejudice had arisen or been established.

In circumstances where the delay was insufficient to justify, of itself, an order of prohibition, and since the learned High Court judge

found that there had been no demonstrable prejudice established, he next turned to the question of implementing the balancing test

envisaged by the Supreme Court in Devoy v. D.P.P., supra. He drew attention to the exercise to be carried out by weighing the

community’s entitlement to see that criminal offences do not go unpunished and a defendant’s right to an expeditious trial in due

course of law, against the backdrop of the circumstances of the case as a whole. In that regard, the learned High Court judge found

that there had been significant delay in the case and that that delay had not been contributed to by any fault on the part of the

appellant. He found, however, that a considerable portion of the period in question prior to service of the summons, had been

adequately explained in the affidavit of Mr. O’Dea sworn on behalf of the HSA, in particular to the effect that diligent investigations

were taking place between April and October, 2004, and that almost the entire calendar year of 2006 was spent obtaining further

evidence and responding to directions by the respondent in respect of the then likely prosecution of the appellant. He recognised that

a period of 14 months, from October, 2004 until December, 2005 was explained merely by reference to a backlog of work within the

HSA legal department, which he found not to be a satisfactory justification, and which amounted, prima facie, to a violation of the

appellant’s right to an expeditious trial.

In these circumstances, what had to be considered, he said, was whether the prima facie breach of the appellant’s rights in respect

of that period of time was sufficient to “overpower the community interest in the present case”. The learned High Court judge

considered that the offences were undoubtedly serious ones, that there was ample jurisprudence in respect of incidences in which

the supply of unsafe machinery and work equipment had directly resulted in the death or serious injury of employees in the conduct of

their regular daily tasks, and that in the present case the lorry had already been involved in one fatal accident while in the hands of

the first purchaser, Southern Midland. The prosecution of corporations and individuals who culpably engaged in the supply of such

hazardous devices was a matter of utmost public importance. He did not accept that the period of blameworthy inordinate delay

which did occur, which he found to amount to the above 14 months, was of sufficient gravity to warrant the prohibition of the

appellant’s trial.

The next issue considered by the learned High Court judge concerned an alleged breach of fair procedures in the conduct of the

investigation. This arises out of one of the grounds for judicial review, the basis for which was in the following terms:-

“That the respondent failed to caution certain employees of the appellant company prior to the taking of statements in

relation to this prosecution”.

The facts surrounding this are mentioned in the course of the above factual background, when statements were taken by Mr. O’Dea

on behalf of the HSA, on two separate occasions, from two employees of the appellant, without the administration of a prior caution.

In the course of the High Court judgment, the learned High Court judge pointed out that the appellant had contended that this

constituted a breach of fair procedures, and as an additional argument, it was also a breach of fair procedures to fail to inform the

appellant within a reasonable period of time that it was under investigation in relation to the offences with which it was subsequently

charged. Concerning these arguments, the learned High Court judge found as follows. First, he recognised that there is a general, well

recognised and well established, right to silence, and the principles surrounding the privilege against self incrimination are equally well

established. Circumstances might arise in the context of a criminal investigation in which it would amount to a violation of the rights

of an individual to fail to caution such an individual as to the significance of any inculpatory statement which he might make.

Secondly, the learned High Court judge found that the significance of any alleged errors in that regard is primarily a matter

concerning, and relevant to, the admissibility of evidence obtained in consequence of the claimed breach, and he considered this to

be classically a matter for the trial judge alone, citing in that regard Ryan v. D.P.P. [1988] I.R. 232. Thirdly, the judgment reiterates

the presumption that a trial judge must act fairly and must exclude all inadmissible evidence, and that he, the High Court judge, must

have regard to that presumption. Finally, he recognised the numerous safeguards in the criminal process which should, or would,

ensure that no injustice is done by virtue of the failure of the HSA to administer a caution to the appellant’s employees, including: (a)

the possibility of an application for a direction to the trial judge; (b) the higher standard of proof required in criminal cases; (c) the

scope for explanation and warnings in the judge’s charge, and any requisitions on same; (d) the possibility of an appeal to the Court

of Criminal Appeal; (e) the possibility of a consultative case stated during the course of the trial; and (f) the scope for judicial review

of any serious errors of law, or unreasonable decisions made.

In the foregoing circumstances, the learned High Court judge determined that the issue of the admissibility of the statements so

procured should be left to the trial of the action, when it would be more appropriately dealt with by the trial judge.

Having regard to the foregoing, the High Court dismissed the application for judicial review by order made on the 17th July, 2009,

(perfected on the 2nd September, 2009).

The Appeal

From the judgment and order the appellant appealed by notice of appeal dated the 7th October, 2009, grounded on a series of

grounds (18 in all).

The appellant asserted that the learned High Court judge misdirected himself in law and upon the evidence and the balance of the

evidence as follows:-

(1) In concluding that the applicant had abandoned its challenge to the constitutionality of s.50 of the Act of 1989;

(2) In construing the facts of the present case in light of the general principles contained in decisions on prosecutorial

and systemic delay; and in failing to recognise that the principles on prosecutorial and systemic delay emerging from the

Irish case law concerning child sexual abuse are the subject of separate jurisprudence;

(3) In finding that the delay between September, 2003 and April, 2007 did not appear to be so egregiously lengthy as to

entitle the applicant to the relief sought;

(4) In failing to have any proper regard to the nature of the offence;

(5) In failing to recognise that the case was sui generis due to the reversal of the onus of proof provided for by s.50 of

the Act of 1989 and that delay on the part of the prosecution necessarily disadvantages the accused due to the reversal

of the onus of proof and, in light of this, that there ought to be a higher duty of reasonable expedition on prosecuting

authorities;

(6) In finding that the appellant’s submissions were in essence confined to general claims that the memories of its

employees may have dimmed or become confused by subsequent events and that the submissions on prejudice were not

supported on the evidence before the court, and in finding that the ability of the appellant’s employees to provide

detailed recollections on affidavit of the events surrounding the sale of the lorry were relevant to the offences;

(7) In failing to take into account that the respondent had treated the applicant throughout the investigation as though

no investigation which might lead to prosecution was in train, by taking uncautioned statements from employees;

(8) In finding that a considerable portion of the period of delay was adequately explained; and that diligent investigations

were taking place between April and October, 2004, in finding that the delay for the calendar year 2006 was explicable

and/or reasonable and/or satisfactorily justified; and in finding that the only delay not satisfactorily justified was that

between October, 2004 and December, 2005;

(9) In finding that the infringement of the appellant’s right to an expeditious trial was heavily outweighed by the public

interest in ensuring that offences such as those at issue were fully prosecuted.

Detailed written submissions on the appeal were filed on behalf of the appellant, and also on behalf of the respondent, supplemented

by submissions on the part of Mr. O’Higgins, S.C. for the appellant, and by Ms. McDonagh, S.C. on behalf of the respondent.

I am satisfied, first, that the only issues of law for consideration in this appeal arising out of the judgment of the High Court are those

of delay and of an absence of fair procedures in respect of the absence of a caution, the two issues treated by the learned High

Court judge. It is said in the course of the notice of appeal that the constitutionality of s.50 of the Act of 1989 is still extant, and

that the learned High Court judge was wrong to consider that it was no longer the subject of the High Court proceedings. In the

course of the written submissions the appellant points to the original grounds upon which relief was sought, which include a

declaration as to the invalidity of s.50 of the Act of 1989. The only context in which s.50 arises in the appeal is based on the reversal

of the burden found in that section, which factor, according to the appellant, ought to have had a particular influence on the

assessment of the impact of any prosecutorial delay. I am satisfied that the learned High Court judge was correct in his conclusions

concerning the status of the challenge to the validity of s.50 of the Act of 1989. I note, in any event, that no argument has been

presented in the written submissions filed on behalf of the appellant as to the constitutionality of that section, and there has been no

oral argument before this Court in relation to the same, in which circumstance I am satisfied that the validity of the section is not an

extant issue, at this time, in the appeal.

I therefore propose to deal with the matter exclusively on the basis of the judgment of the High Court. The appellant submits, and, it

is assumed, also submitted in the High Court, that the respondent was in a position, or ought to have been in a position, to have

assembled all relevant materials within a short period of time after the alleged offence, which period the appellant places at nine

months, commencing from early September, 2003. It is said that this is supported by the fact that Mr. O’Dea, on behalf of the HSA,

averred on affidavit that he became aware of the apparent non-compliance with the provisions of the Act of 1989 in April, 2004. It is

contended that since that was so, the respondent had wrongly delayed for a further three years before serving summonses on the

appellant, and that during this period of inordinate delay the appellant had no notice of the alleged offences, and that statements

were taken without any indication that the appellant might be prosecuted.

Counsel for the appellant analyses the judgment and the learned High Court judge’s application of the principles enunciated in Devoy

v. D.P.P., supra., following on from the American case, Barker v. Wingo [1972] 407 U.S. 514. In that regard, the appellant contends

that the learned trial judge fell into error because he failed to take account of the unique nature of the offences with which the

accused was charged, and that the case law makes it clear that the nature of the offence must be taken into account, citing D.P.P.

v. Byrne [1994] 2 I.R. 236, and Noonan v. D.P.P. [2008] 1 I.R. 445. In particular, on the question of delay, counsel refers to the

acknowledgement in the latter case of the fact that lengthy periods of delay are the subject of separate jurisprudence where they

concern issues arising in child sex abuse cases. Secondly, counsel contends that due to the varied nature of offences, and the

circumstances leading to their commission, a single test for analysing prosecutorial delay is inappropriate, and argues that in Barker v.

Wingo, supra., the US Supreme Court emphasised that there could be no inflexible rule, since every case must be dealt with on an

individual basis. Thirdly, while recognising that mere delay, per se, does not give rise to an entitlement to an order prohibiting a trial,

and therefore an additional factor must be present, the question which the High Court judge ought to have considered was whether

or not in the present circumstances there was such an additional factor. In that regard, counsel for the appellant cites an extract

from the judgment of Finlay C.J. in D.P.P. v. Byrne, supra. in the following terms:-

“… instances may occur in which a delay between the date of the alleged commission of an offence and the date of a

proposed trial identified as unreasonable would give rise to the necessity for a court to protect the constitutional right of

the accused by preventing the trial, even where it could not be established either that the delay involved an oppressive

pre-trial detention, or that it created a risk or probability that the accused's capacity to defend himself would be

impaired. This must lead of course to a conclusion that, on an application to prohibit a trial on the basis of unreasonable

delay, or lapse of time, failure to establish actual or presumptive prejudice may not conclude the issues which have to

be determined.”

The additional factor which counsel for the appellant contends exists in the present case, and which was erroneously not taken into

account by the learned High Court judge, is found in the provisions of s.50 of the Act of 1989. It is as well to set out the terms of

this section at this stage, which are as follows:-

“In any proceedings for an offence under any of the relevant statutory provisions consisting of a failure to comply with a

duty or requirement to do something so far as is practicable or so far as is reasonably practicable, or to use the best

practicable means to do something, it shall be for the accused to prove (as the case may be) that it was not

practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that

there was no better practicable means than was in fact used to satisfy the duty or requirement.”

By the terms of this section, it is argued by counsel for the appellant that the additional factor consists of the fact that in law the

evidential burden is transferred from the respondent to the appellant, and in consequence the prosecuting authorities are aware that

any delay will necessarily operate against the interests of an accused. The upshot of this, it is submitted, is that the blameworthy

delay which existed in the present case, and which was recognised by the learned High Court judge, coupled with the reversal of the

onus of proof, necessarily impedes the right of an accused person to a fair trial. Not to treat such a reversal of the onus as an

appropriate “additional factor” incentivises delay on the part of prosecuting authorities, aware of the fact that it is the accused on

whom such onus rests. In the foregoing circumstances, had it been properly taken into account, the learned High Court judge should

have granted an order of prohibition in the particular circumstances of this case.

Apart from the foregoing arguments on the question of prejudice, the appellant contends that the learned High Court judge was also

incorrect when he found that there was no tangible or appreciable prejudice arising in the circumstances of the present case. Counsel

argues that prejudice must always be viewed as a relative concept, and that having regard to the lengthy delay which occurred, the

rights of the accused have been severely impaired, when compared to the position which would have arisen had the trial been

conducted with due expedition. It is said in the present case that there should have been no difficulty in relation to the laying of

charges, in particular since the HSA received instructions from the respondent to prosecute the appellant for various offences,

contrary to s.6 of the Act of 1989, in November, 2003. It had to be accepted, therefore, that the investigation was neither

particularly complex nor detailed, and that the failure to move with greater expedition cast the appellant in the impossible position of

having to prove that certain sensors were in place on a vehicle in 2003, or that it was neither practicable, nor reasonably practical,

to do more than was, in fact, done on the use of the machines upon their sale by the appellant. This is particularly so in

circumstances where no indication was given by the HSA, despite several interviews with the appellant’s employees, that it might be

prosecuted for such offences until 2007, and especially as the vehicle had been inspected on six occasions between September, 2003

and June, 2004, without any of these inspections, including those by an expert, revealing the absence of sensors. Where the

appellant had done nothing to contribute to the delay, a factor recognised by the learned High Court judge, and where there was

sufficient information to prosecute the appellant at a much earlier date, it is legally unacceptable that the appellant is informed it is

being prosecuted for an offence, in respect of which it carries the probative onus, three and a half years after its commission.

Finally, the appellant contests the acceptance by the trial judge of the reasons offered by Mr. O’Dea on behalf of the HSA for the

delay which, in fact, occurred. This criticism is made on the basis that, in the initial period, the investigations undertaken do not

appear to have been essentially for the purposes of bringing charges, and this is supported by the fact that statements were taken

from employees of the appellant without cautions being administered. Secondly, complaint is made of the reliance by the judge on the

serious backlog of work in the legal unit of the HSA stemming from the absence of resources. Counsel for the appellant argues that

this is not an acceptable explanation. He invokes, in that regard, an extract from the judgment of Hardiman J. in Noonan v. D.P.P.,

supra., to the effect that it is little consolation to a person whose trial has been inordinately delayed, that this delay, or part of it, is

due to systemic delays due to under resourcing, since the result for an accused is the same in any event. Counsel for the appellant

finally challenges the explanation for the further period of delay which was referred to by Mr. O’Dea as covering exchanges of

correspondence with the Chief Prosecution Solicitor and further meetings with representatives of the appellant, and says that

although it was accepted by the learned High Court judge that there were diligent investigations taking place between April and

October, 2004, the appellant was not furnished with statements setting out what had transpired at those meetings, or their relevance

to the prosecution. In such circumstances, it is contended that these additional meetings and further correspondence are entirely

irrelevant in the context of the prosecution.

The respondent counters the foregoing challenges to the High Court judgment on the basis that, while accepting there is a clear right

to an expeditious trial, the learned High Court judge was correct in saying that the delay was not so egregiously lengthy as to entitle

the appellant to the relief sought without any further consideration of the circumstances in question. It is pointed out that the

appellant makes no complaint of any delay relating to the period after the appellant was charged, but confines the objection to the

period giving rise to a failure to initiate charges within a reasonable time after the alleged commission of the offences, on the basis

that this has seriously prejudiced the appellant. The right to an expeditious trial, it is submitted, does not commence on the date on

which the offence is alleged to have been committed, and therefore the date of the 4th September, 2003, is not the appropriate

date. That right commences, on the contrary, when an accused person is charged with an offence, or when the prosecuting

authorities are in a position to charge an accused, but do not do so. This position is clarified in the judgment in O’Flynn v. District

Justice Clifford [1988] I.R. 740, in which Gannon J. stated that there was an important distinction between the stage before charge,

when the matter of a suspected crime is being investigated, and the stage after an accused person has been charged, and so is

subject to the directions of a court. In that case Gannon J. had explained the distinction between these two periods and the

consequences flowing from them. This same theme is found in the judgment of Finlay C.J. in Hogan v. The President of the Circuit

Court [1994] 2 I.R. 513. The respondent in its written submissions, as supplemented by counsel, also makes reference to Cahalane v.

Murphy [1994] 2 I.R. 262, delivered shortly before the Hogan decision, in which statements of principle are found which were

subsequently approved by the Supreme Court in McFarlane v. D.P.P. [2007] 1 I.R. 134 in which Hardiman J. stated at p.140:

“The delay of which the applicant complains is entirely pre-charge delay. Since the evidence on which to bring a charge

was not available until just before he was in fact charged there appears to be no basis for the applicant to complain

about that delay.”

Secondly, it is argued that the correct manner in which to consider an application relating to prosecutorial delay must commence with

the role of the prosecutor, rather than the investigative role of gardaí or that of the HSA. The focus, it is said, in prosecutorial delay

cases is on ensuring that when evidence is available to charge an accused, he must be charged without delay, so as to ensure that

the accused’s rights, including the right to an expeditious trial, are vindicated. Under the provisions of the European Convention on

Human Rights, and in particular Article 6(1) of the same, the position is no different.

Mr. O’Dea was not cross-examined or challenged on the content of his affidavit, whose averments the learned High Court judge was

entitled to accept. When the file was transmitted to the respondent in December, 2005, further information was sought prior to the

respondent making a decision whether or not to initiate a prosecution, which included statements taken from witnesses in March,

2006 and April, 2006, and from a further party in late April, 2006, all of which statements are contained in the book of evidence and

are being relied upon by the prosecution. In such circumstances, and having regard to the evidence adduced before the trial judge,

the respondent submits that there is no evidence the respondent could have directed that the appellant be charged at a date earlier

than the date upon which he was, in fact, charged.

Next, the respondent argues that the learned trial judge correctly relied on and applied the principles governing prosecutorial delay as

enunciated in Devoy v. D.P.P., supra,, in P.M. v. Malone [2002] 2 I.R. 560, and other cases, all of which approve the principles set out

in Barker v. Wingo, supra. It is said that it is in the context of the pre-trial interests, identified in the latter case, that the appellant’s

case should be considered. The respondent adopts the analysis carried out by Kearns P. in the Devoy case as correctly representing

the law, including any additional factor to be taken into account. However, the additional factor which the appellant, wrongly in the

contention of the respondent, seeks to have considered, is the nature of the offence itself. The respondent submits that the nature

of an offence is relevant only insofar as the investigation of more complex cases can take longer than more simple cases. It is not,

however, connected with the appellant’s pre-trial interests. As to the appellant’s argument that the so-called reversal of the onus of

proof in s.50 of the Act of 1989 is a unique factor, the respondent contends that such a factor is not contemplated by the principles

in Barker v. Wingo, supra., as adopted in this jurisdiction. Where a burden passes to a defendant, moreover, as it may lawfully do, he

is obliged to discharge that burden only on the balance of probabilities, as is clear from Hardy v. Ireland [1994] 2 I.R. 550.

It is also important, the respondent says, to understand precisely the principles that are applicable in the case of prejudice arising

due to the absence of an expeditious trial, so as to put in context the absence of any validity to the arguments propounded on behalf

of the appellant. The respondent accepts that actual prejudice does not have to be established in order for a trial to be prohibited.

Other factors, such as pre-trial stress and anxiety, can be sufficient, in appropriate circumstances, to permit a trial to be prohibited.

The case of O.H. v. D.P.P. [2007] 3 I.R. 299, invoked by the appellant, is not germane to this appeal, the respondent contends, as no

stress or anxiety was found to exist there. In the present case, there is no question of pre-trial incarceration, as the appellant is an

unlimited company and no element of stress or anxiety comes into play. Insofar as directors of the company may suffer, no stress or

anxiety was deposed to on their behalf by the appellant. This may well be because the appellant indicated it was surprised to be

charged. There could therefore be no question of any party having suffered from any anxiety prior to that point, arising from delay.

The appellant, although asserting real and substantial prejudice, does not meet the test for any such prejudice. It was clear from the

evidence tendered that there were no difficulties with the memory of either employee in relation to the circumstances surrounding the

sale of the lorry, and the evidence of other parties, as sworn to on affidavit, does not support any factual prejudice of the type found

in proceedings of this nature.

In the foregoing circumstances, it is argued that the learned High Court judge, having applied the proper principles to the issues

arising in the course of the High Court proceedings, had made no error in law.

Decision

I am satisfied that the learned High Court judge dealt with the issues arising in the course of the High Court proceedings on the basis

of appropriate legal principles, entrenched in the established jurisprudence on the question of delay, whether arising in specific classes

of offences (such as sexual assault cases), or in general. The principles are readily listed. First, in the case of inordinate and

inexcusable delay, the Court will look at the nature of the offences, the reasons for the delay, the timescale involved, and whether

the delay has been of such a gross nature as to support, without more, a presumption of prejudice. It is clear from the evidence

adduced, and even from the arguments made on behalf of the appellant, that the present case does not in any way meet the type of

delay which might give rise, without more, to presumptive prejudice. It is true, of course, as counsel for the appellant points out, that

in the case of sexual assaults, a particular and separate jurisprudence has developed by reason of the nature of those offences and

the effects that these may have on, usually, young vulnerable boys and girls and, in consequence, their inability to disclose the

offences for many years after they occur. Presumptive prejudice has been found to arise in some such cases where there has been

delay of thirty, thirty-five, forty or more years. Not all cases, however, with lengthy periods of delay having been established,

necessarily or inevitably result in a finding of presumptive prejudice. The determination of this will depend on the circumstances of

each case. What can be said, however, is that where the delay is extremely lengthy, such as of a nature of the periods mentioned

above, a court will look with very considerable circumspection to see whether or not it is possible for an accused to be guaranteed a

fair trial. On the jurisprudence, the determination by a court will not be limited purely to the right to an expeditious trial, but will

frequently overlap with the right to a fair trial, taking into account the effect on that latter right of any accumulated periods of delay,

including those arising before summonses issue or charges are laid. For that reason, it is not always correct to find that delay prior to

charges being laid can always be disposed of by reference to cases where pure prosecutorial delay is invoked, and determined.

But whatever the extent of the delay, or the backdrop against which it is to be assessed, the principle remains very much the same.

It seems to me that, even allowing for the fact that trials have (or have not) proceeded in the case of sexual assaults, after lengthy

periods of delay, on the basis of the particular jurisprudence attaching to those types of cases, taking the delay evidence in the

present case, it is not possible to conclude that a period of delay of four years, even if that was all blameworthy, can be considered,

ipso facto, as one causing presumptive prejudice in this case, such as to automatically prohibit a trial. All the more so where the

delay of 15 months is established as being the relevant period. I am satisfied that the learned trial judge committed no error in law in

concluding, on the facts of the present case, that the delay, of itself, was not such as to give rise to an automatic entitlement to an

order of prohibition.

That means that the next issue which arose for determination, properly speaking, was whether specific or particular prejudice had

been suffered or would likely be suffered, by the appellant in its ability to mount a defence to the criminal charges in question by

reason of inordinate blameworthy delay. In that regard, the learned trial judge pointed out, correctly, that there was no question

relating to the possible unavailability of witnesses, or indeed of documentary evidence. The absence of witnesses was never an issue

in the proceedings, and nor was there any suggestion that adequate documentary evidence would not be available. The learned High

Court judge correctly pointed to the fact that the appellant’s submissions were confined to claims that the memories of employees

were dimmed, or might be dimmed, or were confused, or might become confused, by the subsequent events arising. He also found

that, on the evidence, this contention was not supported.

In the argument on appeal what is contended for, however, is that the prejudice to the appellant should have been assessed by

reference to the position which would have arisen had there been no delay in bringing the charges, and, in effect, getting on with the

hearing. It seems to me that this would be a reasonable approach to take, and is supported by the case law invoked on behalf of the

appellant, including P.P. v. D.P.P. [2000] 1 I.R. 403 and others. But the question which arises in that context is, where is the evidence

to support the implicit allegation that the trial would have been more readily defended by the appellant had it been brought sooner

than otherwise is the case? There is no material adduced as to how or why that might be so. In that regard, the appellant puts

forward no evidence upon which to conclude that it would be so, apart from claiming that there is a difficulty, at this remove, in

establishing whether or not sensors were in place on the vehicle which was sold in 2003, or that it was not practicable or reasonably

practical to do more than was in fact done in relation to the vehicle, or in relation to giving instructions as to the operation of the

vehicle. The appellant contends, for example, that the vehicle was inspected on several occasions between September, 2002 and

June, 2004 (although the offence is one alleged to have taken place in September, 2003) and that even though that inspection

included one by Palfinger Ireland Limited, holding itself out to be an expert in relation to cranes, none of these inspections revealed an

absence of sensors. However, that evidence, if adduced, is not necessarily evidence prejudicial to the appellant.

The appellant alleges, however, that a unique factor which exists in this case, arising from the burden placed on the appellant

pursuant to the provisions of s.50 of the Act of 1989, could, and should have, affected the foregoing exercise, but was not

considered by the learned High Court judge. Had it been, it would have had a material impact on the decision in favour of granting an

order of prohibition. There is, however, nothing improper in law in reversing an evidential burden in the manner contained in Section

50. Express statutory exceptions to the principle that the burden rests at all times on the prosecution have been recognised in Irish

law. The burden arising under s.50 is one similar to that placed on defendants under various legislative schemes and, of itself, could

not justify a prohibition order against the trial of the appellant, even when combined with delay.

In his approach to determining whether or not the appellant had established any actual prejudice, the learned trial judge assessed the

evidence before him and did not err in his conclusion that the appellant had not supported the allegation of prejudice by the

production of any material evidence. This was a finding on the evidence, and his conclusions of fact, or the inferences drawn, were

fully within jurisdiction. In truth, in the course of the appeal, while the findings of the judge are challenged, his entitlement to

consider the evidence adduced to the High Court and to make findings or conclusions arising from that evidence were not challenged.

His conclusions in that regard have not been undermined by any material or argument put forward in the course of this appeal, nor

can I find any basis upon which the terms of s.50 of the Act of 1989 affects the matter in such a way as to alter the conclusion of

the trial judge on the issue of prejudice.

The learned trial judge’s next approach, correctly in my view, was to consider in such circumstances whether or not the balancing

exercise to be carried out was one which, upon a proper consideration of the relevant factors, should militate in favour of prohibition

of the trial. This approach is clearly endorsed by the case law of this Court, including in the judgment of Kearns J. in Devoy v. D.P.P.,

supra., in which a considerable analysis was made of the principles governing prosecutorial delay, following on from the decision in

P.M. v. Malone, supra., and P.M. v. D.P.P. [2006] 3 I.R. 172, in turn relying, at least to some extent on Barker v. Wingo, supra. In the

P.M. case, although setting out in some considerable detail certain principles gleaned from Barker v. Wingo, supra., it is important to

recognise that the judgment goes on to state that the principles are not different to any significant degree from those already

contained in Irish decisions on prosecutorial delay. These cover not only principles developed specifically relating to charges

concerning sexual offences, but also those applicable to more general categories of offences, applying equally to cases where so-

called systemic delay is under consideration, in light of the fact that all forms of inordinate blameworthy delay may affect an accused

in the same way.

It is also important to recognise the exceptional nature of the remedy of prohibition in the context of the criminal justice process, a

matter also considered in Devoy v. D.P.P., supra., and mentioned in several other cases, including D.C. v. D.P.P. [2005] 4 I.R. 281, in

which it was pointed out that prohibition is a remedy “to be granted only in exceptional circumstances”. Kearns J. in Devoy at p.255

stated:-

“… any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when

exercising this jurisdiction. It must analyse the causes for delay with great care, weighing up and balancing the role of

both the prosecution and the applicant and their respective contributions to delay. In this context not every delay is

significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry

by the court under P.M. v. D.P.P. or Barker v. Wingo. …”

In the present appeal, viewing the circumstances of the case as a whole, and the evidence adduced as to delay, and in the absence

of any cross-examination of Mr. O’Dea on the content of his affidavit as to the delay arising from the investigations averred to, there

is no basis for departing from the conclusion drawn by the learned High Court judge that the period of inordinate blameworthy delay

consisted of the period of 14 months from the 14th October, 2004, until the 15th December, 2005. I am satisfied that in his analysis

of the evidence, he was entitled to find the delay in issue was limited to the 15 month period which he identified as constituting

blameworthy inexcusable delay. This undoubtedly constituted a prima facie breach of the appellant’s right to an expeditious trial,

considering the matter from the appellant’s point of view at its highest, and viewed from the point at which charges might have been

laid. It does not seem to me that any evidence has been adduced which is sufficient to suggest that the balance should be tipped in

favour of the appellant when balancing this delay against the public right to ensure that corporations and others are charged with

offences of the nature of those in the present appeal. Indeed, the appeal in this case does not proceed on the basis that the charges

are not ones which are of such a serious nature that, absent established prejudice to an accused, or the balance being held in his

favour, should not be prosecuted. There is no suggestion of any deliberate ploy on the part of the investigative authorities not to

prosecute the appellant as speedily as possible, and no suggestion that the delays (and there were several) which arose in the

present case were deliberately engineered or brought about so as to disadvantage the appellant in any way. The delays came about

as part of the ordinary investigation of the offences, save with the exception of the above 14 month period, which might be

categorised as systemic delay arising from the absence of resources in the particular investigative offices in question. It might well be

that in a particular case, but not in the circumstances of the present case, equivalent delays might be ascribed to factors other than

proper investigation of the offences, but there is no evidence, and indeed no allegation, that the delays were caused otherwise than

by appropriate investigations, save for a relatively short period, which was both inordinate and inexcusable, even if the overall delay

was nevertheless long, at almost four years. No allegation of delay is made in the period post charge.

The final matter to be determined is the allegation that there was wrongdoing on the part of the respondent, or more correctly, the

investigative authority, the HSA, in failing to inform or warn two employees of the appellant, or the appellant itself, that it would be

sued or that prosecutions were under consideration when statements were taken from the two employees without prior cautions. The

arguments on this issue are set forth earlier in the judgment. Part at least of the argument put forward on behalf of the appellant

appears to be based on some form of estoppel, although not pressed strongly. If that is a correct interpretation of the argument, I

am satisfied that no estoppel argument could be raised in relation to this issue. On the more material argument, namely, that this was

improper, having regard to the offences in issue and their nature, I am satisfied that the learned High Court judge was correct not to

accept this as a basis for a prohibition order, and I am equally satisfied as to the legal basis upon which he refused to do so, namely,

that such an issue is classically and essentially one to be disposed of at the trial. Any argument based on the admissibility of evidence

procured in the absence of a caution is a matter for the trial judge, and is not a good ground for acceding to an order of prohibition.

It is not necessary to recite the case law, already referred to above, since the matter is well established at this time.

In the foregoing circumstances, I am satisfied that the learned High Court judge was correct in his conclusion that prohibition was not

an appropriate order in the circumstances of the present case.

I would dismiss the appeal and affirm the order of the High Court.