THE HIGH COURT
[2004] IEHC 218
JUDICIAL REVIEW
[2003 No. 448 JR]
BETWEEN
PETER LEAHY                                          
	APPLICANT
AND
JUDGES OF THE CIRCUIT COURT FOR THE TIME BEING ASSIGNED 
TO THE DUBLIN CIRCUIT CRIMINAL COURT
AND THE DIRECTOR OF PROSECUTIONS
	  RESPONDENTS
JUDGMENT of O’Leary J. delivered on the 29th day of July, 2004. 
The applicant is an auctioneer by profession and was returned for trial on 25th March, 2002 on the following charges:
Count No. 6:
That he, Peter Leahy between the 26th day of January 1996 and the 14th day of May 1996 within the County of the City of Dublin conspired with another to defraud the Guardian/PMPA Insurance Company of Wolfe Tone House, Wolfe Tone Street in the County of the City of Dublin by falsely pretending that a road traffic accident had occurred on the 26th day of January 1996 at Knockmartin, Longford in the County of Longford involving two motor vehicles, one an Isuzu Trooper motor Vehicle registration number and letters 92 LD 467, the other a Mercedes 200 motor car registration numbers and letters 89 CW 77, and that arising from the circumstances of the accident there was an obligation on the pat of Guardian/PMPA Insurance Company to make payments by way of payment of compensation.  

Count No. 7:
That he, Peter Leahy between the 2nd day of July 1995 and the 1st day of August 1995 conspired with Michael Byrne to defraud the Guardian/PMPA Insurance Company of Wolfe Tone House, Wolfe Tone Street in the County of the City of Dublin by falsely pretending that motor vehicle registration number and letters 93 LD 729 was damaged by fire in an incident at the Hitching Post Licensed Premises, Collinstown, Leixlip in the County of Kildare on the 2nd day of July 1995 and that by reason of the circumstances of the incident and the amount of damage sustained that there was an obligation on the part of the Guardian/PMPA Insurance Company to make payment of £19,000.

Count No. 8:
That he, Peter Leahy on the 1st day of April 1996 within the City of the County of Dublin obtained from the Guardian PMPA Insurance Company of Wolfe Tone House, Wolfe Tone Street, in the County of the City of Dublin the sum of £24,000 by falsely pretending that a motor vehicle owned by him, namely Landrover Discovery registration number and letters 95 LD 781 had been stolen from the Laurels Pub, Clondalkin in the County of the City of Dublin which statement was false and made with intent to defraud.

Count No. 9:
That he, Peter Leahy on or about the 1st day of August 1995 obtained from Guardian PMPA Insurance Company of Wolfe Tone House, Wolfe Tone Street, in the County of the City of Dublin the sum of £19,000 by falsely pretending that motor vehicle registration number and letters 93 LD 729 was damaged by fire in an incident at the Hitching Post Licensed Premises, Collinstown, Leixlip in the County of Kildare and that arising from the circumstances of the incident and the amount of damage caused to the vehicle there was an obligation on the part of the Guardian/PMPA Insurance Company to pay him the sum of £19,000 which pretence was false and made with intent to defraud.

Count No. 10:
That he, Peter Leahy between the 28th day of July 1995 and the 18th day of October 1995 within the County of the City of Dublin conspired with two other persons to defraud the Cornhill Insurance Company Plc, St. Stephens Green, in the County of the City of Dublin by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28th day of July 1995 and that arising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment to Daniel Leahy in the sum of £16,306.25.

Count No. 11:
That he, Peter Leahy on the 18th day of October 1995 within the County of the City of Dublin obtained cheque No 13357 in the sum of £16,205 from the Cornhill Insurance Company Plc, St. Stephens Green, by falsely pretending that a road traffic accident had occurred at Lisnamuck, Longford on the 28th day of July 1995 and that arising from the circumstances of the accident there was an obligation on the Cornhill Insurance Company to make a payment, which pretence was false and made with intent to defraud.  

The charges laid, on which the applicant was returned for trial, relate to a number of different incidences in which allegedly bogus claims were made, or attempted to be made, against insurances companies together with alleged conspiracies surrounding these alleged facts.
The applicant, pursuant to leave granted by Abbot J on 18th June, 2003, seeks the following reliefs:
1.	An order of Prohibition or in the alternative an Injunction restraining the Respondents their servants or agents from taking any further steps in the criminal proceedings the subject matter of this application
2.	If necessary an extension of time within which to bring these proceedings
3.	Such further or other order as to this Honourable Court shall deem just and proper
4.		Costs pursuant to the Attorney General’s scheme.

The reliefs are sought on the following grounds.
1.	The Applicant has been deprived of a trial in due course of law and with due expedition.  In that, there has been a breach of the constitutional right of the Applicant.  The Second Named Respondent, his servants or agents and/or authorities for which he is responsible has been guilty of excessive prosecutorial delay in this matter, in particular, the Respondent has:
a)	Caused and/or permitted a period in excess of 8 years to elapse between the commission of the alleged offence and the trial of same.
b)	Caused and/or permitted a lapse of time of over 19 months between the arrest for questioning of the Applicant and his arrest for the purposes of charging.
c)	Caused and/or permitted the matter to remain in the District Court for a period of over 2 years and 3 months by way of preliminary examination from date of charge to sending forward for trial.  (First Court Appearance/Charged 7th December 1999 / Sent Forward 25th March 2002) (18 District Court Appearances)
2.	The constitutional right of the Applicant to trial in accordance with law has been or would if the trial proceeded, be breached in that his ability properly to defend himself has been severely prejudiced by the delay.  His right to a fair trial has been prejudiced.  In particular delay will handicap the Applicant in the cross-examination on his behalf of Prosecution witnesses whose recollections will inevitably have been coloured and affected by the lapse of time.  

The leave granted was based on the same grounds as in the application.

The second named respondent opposes the relief sought on the following grounds:
1.	It is denied that the applicant has been deprived of a trial in due course of law with due expedition.
2.	It is denied there has been a breach of the applicant’s constitutional rights.
3.	It is denied that the second named respondent has been guilty of excessive prosecutorial delay in all the circumstances of the case.
4.	It is denied that the constitutional right of the applicant to trial in accordance with law has been or would be breached, if the trial proceeded.
5.	It is denied that the applicant’s ability to properly defend himself has been severely prejudiced.
6.	It is denied that the applicant’s right to a fair trial has been prejudiced.
7.	It is denied that the applicant has suffered any or any genuine specific prejudice relevant to these proceedings which would render him unable to fully defend the criminal proceedings, the subject matter of these proceedings.
8.	The District Court has already adjudicated on the issue of delay and held against the applicant and accordingly this matter is res judicata.
9.	The applicant has failed to act promptly in bringing these proceedings and has been guilty of delay.  He has failed to show any reason as to why having been returned for trial on the 25th March 2002, he did not bring an application for leave to apply for judicial review until the 18th June, 2003, in particular in circumstances where the accused’s trial was already listed for hearing on the 10th February, 2003 but due to alleged injuries which the applicant allegedly sustained in an alleged road traffic accident, the trial was adjourned to the 1st July, 2003.
10.	It is denied that the applicant is entitled to an order of Prohibition against the second named respondent from proceedings with the criminal proceedings the subject matter of these proceedings.
11.	It is denied that the applicant is entitled to the relief claimed nor another relief.
12.	The respondent will rely on such further or other grounds as may be advanced at the hearing of the matter. 

The proceedings are supported by a number of affidavits as follows:
1.	Grounding affidavit of Karen M Clabby Solicitor for the applicant dated 18th June, 2003.
2.	Affidavit of Peter Leahy dated 2nd October, 2003.
3.	Affidavit of Detective Garda Andrew Brennan 22nd October, 2003 on behalf of the second named respondent.
4.	Replying affidavit of Peter Leahy dated 8th December, 2003.

Each of these affidavits toether with the formal pleadings in the case has been considered by the Court.
In spite of the number and length of the affidavits there appear to be no issue between the parties on the facts leading to this application.

Factual Background to Application
The applicant has based his claim on the delay in coming to trial and in that regard the following appears to be the timetable relating to the matter.
The alleged offences allegedly occurred in a period of time from 2nd July, 1995 and 14th May, 1996.
1.	The applicant was arrested on 30th April, 1998 and questioned about the matters.
2.	The applicant was further arrested, charged and brought before a District Court on 7th December, 1999.
3.	The applicant having been released on Bail, the matter was adjourned on 26th January, 2000 and 22nd March, 2000. 
4.	The book of evidence was served on the applicant contemporaneous with a sitting of the District Court on 17th April, 2000.
5.	Pending the taking of depositions (at the request of the prosecution), the matter was adjourned eight times.
6.	The depositions were taken on 16th July, 2001.
7.	After five further adjournments the applicant was sent forward for trial on 25th March, 2002.
8.	The matter was mentioned in the Circuit Criminal Court on 13th June, 2002 when a trial date of 10th February, 2003 was set.
9.	On the morning of the proposed trial, 10th February, 2003, the applicant’s legal team submitted evidence that the applicant had been injured in an accident on the previous day 9th February, 2003.  As a result the trial (and the trial of a co-accused) did not proceed on the trial date.
10.	The matter was listed for mention on 11th February, 2003, 21st February and 31st March when a trial date was set for 1st July, 2003.  During this period the applicant changed his legal team.
11.	On 18th June, 2003 leave was granted in this matter for judicial review.

The applicant has submitted that, the delays in this case were the responsibility of the prosecution for the most part, and that the applicant has suffered prejudice by reason of these delays.  In particular the dimming of recollection of prosecution witnesses and the hardship caused by the non-renewal of the auctioneering licence of the applicant, due to his failure to get an insurance bond, are relied upon in support of the application.
The second named respondent in reply submitted that much of the delay was necessitated by the complex nature of the charges and that their investigation was part of eighty linked suspected cases involving over 1,100 civilian witnesses and over 100 bank accounts.   This respondent also pointed out (a fact not disputed) that the long period of time between return for trial, listing and trial date arose because each trial (there being a number as a result of the investigation) was required to be listed before a separate panel of jurors. This separate listing was on consent.

Delay in commencing Judicial Review proceedings
Order 84, Rule 21 (1) Rules of Superior Courts provides as follows:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers there is good reason for extending the period within which the application shall be made.”

In this case, the first date at which the applicant knew the full extent of the delay he had suffered was at his return for trial on 25th March, 2002.  If he felt that he had been wronged by reason of delay in the preliminary moves to bring him to trial he should have sought the assistance of this Court promptly and in any event not later than 25th June, 2002.  It is clear that the correct date to use as a base line in a case such as this is the date of the return for trial i.e. 25th March, 2002.  The applicant made no application for judicial review for the eleven months from that date to his trial date. Even if one were ‘start the clock’ on the date at which the trial date was set, 13th June, 2002, the applicant left a further eight months elapse without any effort to seek the protection of judicial review.  Notwithstanding these delays a further four months elapsed before the application for leave was made giving a total delay of almost fifteen months from the return for trial.   
This Court considers that prior to the accident on the day before his trial; the applicant had long passed the date at which an application could be made to prohibit the trial (subject of course to the absence of a satisfactory explanation).  The fact of the accident and the delays it necessitated cannot be used as a reason to revive the lost right.  That accident was a factor external to the second named respondent. The burden of the delay caused by the accident must be borne by the applicant. 
As set out in detail in the leading United States case of Barker v. Wingo [1972] 407 U.S. 514 it is likely that an applicant who alleges prejudice by reason of delay will complain of that prejudice at an early date and failure to so can be a compelling indication of the absence of real prejudice. 
This is particularly true where competent lawyers, as in this case, advise an accused person.
The right to relief may not be lost if there is tendered a ‘good reason’ for the delay.  In this case no reason for delay has been tendered so this exception has no relevance.	
However, the Court does not treat the three-month limit, as equivalent to a Statute of Limitation and in exceptional cases will look beyond the time limit in the pursuance of justice for the parties.   Therefore, the Court, prior to its final assessment of this application, also considered the merits of the application.
The law in this matter has been set out in various ways. One of the clearest expositions was by Keane C.J. in P.M. v Malone [2002] I.R 560 at 572
 “It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself.  As it is sometimes put, it is not the delay, which are crucial.  Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable.  The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.
	That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious.  But it does not follow that impairment of this ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial.  Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial.  That, however may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.
	The first major consequence may be the loss of his liberty while the trial is pending.  That does not arise in this case, and where it does arise, is capable of remedy through the machinery of bail and habeas corpus.   The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.  
	There are thus three interests of defendants which the right to a speedy trial is intended to protect the third being, the possibility that the defence will be impaired.  These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo [1972] 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial committee of the Privy Council in Bell v. D.P.P. [1985] A.C. 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”

Against this matrix the present case can be assessed.   The nature of the alleged offences is such that immediate knowledge of their existence by the authorities cannot be presumed.  In the case of say a bank robbery everyone knows immediately that a crime has been committed but in a case such as this the existence of a crime may not be discovered for a considerable time. Allowing for this complication no criticism of the conduct of the prosecuting authorities falls to be made up to the date of the applicant’s original arrest.   Thereafter the explanation tendered by the respondent covering the period up to the charging of the applicant in December 1999, i.e. the complicated nature of the enquiries, is accepted as reasonable. The explanations for a two-year three-month delay between charge and return for trial are accepted as factually correct but nevertheless the Court considers these delays to have been excessive. 
However, not all the delay was the responsibility of the second named respondent.   Some small part of the time was taken up by the hearing of submissions from those accused (including the applicant) urging the District Judge not to order a return for trial by reason of delay.  The prosecution was not responsible for the time spent in considering this application.  The processing of the case was complicated by the decision of the second named respondent to seek depositions.  The delay in the taking of these depositions was excessive.  It is difficult, on the basis of the evidence tendered, to be precise as to the extent of the prosecutorial delay but a maximum of eighteen months appears the outer limit. 
Therefore, the delay in this case, which has not been satisfactorily explained, is in the view of the Court at most eighteen months.

Adverse consequences of delay
The applicant makes two complaints of specific prejudice, that 
(1)	The recollection of prosecution witnesses would have dimmed, rendering a cross-examination of them less effective. 
(2)	The delay in the trial has affected the ability of the applicant to continue as an auctioneer due to a difficulty in getting a bond.  
No prejudice is alleged in respect of other aspects of the applicant’s defence but this possible difficulty falls to be automatically considered under the heading of presumptive prejudice.  Of the complaints specifically listed, it is difficult to give much weight to the problem of obtaining a bond as; unfortunately, this is likely to be a product of the charge proffered rather than the outcome of the trial.
The applicant has a general right to an early trial.   This has to be considered together with any residual difficulties caused by the delay to the defence of the charges not already covered above.  The Court has considered all these factors in the light of the evidence. Further the unusual nature of the allegations renders it less likely that difficulties of recollection will arise in this case as and compared with other more usual criminal allegations.

Rights of community
Balanced against these adverse consequences are the right of the community to have alleged crimes of this type adjudicated on by a jury.

Conclusion on merits
Ignoring for the present the delay of the applicant, I would not grant the relief sought.  This decision would have been arrived at, having balanced the accused infringed right to an early trial and his rights arising therefrom, against the community’s right.

Decision
Having reached the conclusion on the merits of the application outlined above it is self evident that these circumstances cannot found an application to vary the time limit set out in O. 84 r.21(1).
For the reasons stated the application is refused. 

Approved: O’Leary J.