THE HIGH COURT 

JUDICIAL REVIEW

RECORD NO. 2004/186JR

BETWEEN/

IVOR SWEETMAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS,
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Judgment of Mr. Justice Roderick Murphy dated 1st April, 2004

1.	Outline of Application
This is an application for leave for judicial review seeking an order restraining the Director of Public Prosecutions from prosecuting the applicant in respect of Central Criminal Court Bill No. CC0045/1996 for the offence of murder contrary to common law, possession of firearms with intent contrary to s. 15 of the Firearms Act, 1925 as amended by s. 4 of the Firearms Act, 1971 and s. 21(4) of the Criminal Law (Jurisdiction) Act, 1976 and s. 14(1) of the Criminal Justice Act, 1984 and s. 4 of the Firearms and Offensive Weapons Act, 1990, false imprisonment contrary to s. 11 of the Criminal Law (Amendment) Act, 1976 in respect of one Bridget Fanning; and false imprisonment contrary to s. 11 of the Criminal Law (Amendment) Act, 1976 in respect of Rosaleen Fanning, on or about the 6th February, 1996.
	The background to the offences was given in the affidavit of the applicant’s solicitor, Peter White, filed the 8th March, 2004 at para. 4 thereof.  
	The members of the Fanning family were detained by a group of three men in the kitchen of their home.  Subsequently Mrs. Fanning and her daughter, Rosaleen, were taken to a bedroom and tied up.  Mr. Fanning was detained in the kitchen of his home, tied to a chair.  Mrs. Fanning and her daughter were left bound together in a darkened room, heard a shot and heard Mr. Fanning cry out but were unable to attend to him because they had been bound.  Mrs. Fanning, upon managing to free herself, immediately went to her husband who had been shot in the left leg and was dead.  The men who had entered the home had left.  
	On the 15th March, 1996, almost five weeks later, the Gardaí searched the applicant’s premises and arrested him on suspicion of having committed a scheduled offence, namely unlawful possession of firearms, on the 6th February, 1996.  During the course of his detention the applicant was alleged to have made an inculpatory verbal statement that he was asked to go to the country to frighten a farmer, having helped but not hurt the two women in a bedroom he heard a gunshot blast, he said he did not fire the gun and was not told about guns being used.
	The applicant was again arrested in June, 1996 and charged with the offence of murder.  Having been remanded in custody he was subsequently granted bail in August, 1996.  On the 24th September, 1996 he was returned for trial.

2.	Trial
	On the 10th February, 1997 the applicant and a fellow accused stood trial before the Central Criminal Court.  On the second day of the trial the jury was discharged by reason of the publication in various newspapers of photographs adverse to the accused.
	A new trial date was set and such trial commenced on the 21st April, 1997.  On the 13th May, 1997 the accused and another were convicted on a 10 to 2 majority verdict on counts of murder and possession of firearms with intent to danger life.

3.	Appeal
	An appeal against the refusal for leave to appeal against conviction was lodged with the Court of Criminal Appeal on the 26th May, 1997.  An application for bail on the 23rd July, 1997, pending the hearing of the appeal was refused.  A date for the hearing of the appeal was set for the 15th December but was vacated on the 8th December, 1997 by reason of the absence of transcripts of the trial.  These became available on the 7th January, 1998 and the applicant’s appeal was fixed for the 30th March, 1998 and was subsequently heard on the 18th May, 1998.
	That appeal did not proceed by reason of the applicant changing legal representation.  A number of adjournments followed.  The applicant’s appeal was separated from that of his co-accused.  The case was adjourned to a list to fix dates on the 23rd March, 1999.
	As a result of fresh evidence on behalf of the applicant in respect of cumulative sum analysis carried out by a forensic linguist the appeal was further adjourned.  On the 18th June, 1999 the applicant sought to amend his grounds of appeal, to adduce fresh evidence and to direct the attendance of witnesses.  On the 12th July, 1999, the Court granted leave to amend the grounds of appeal.  On the 27th July, 1999 the Court of Criminal Appeal refused to proceed until all grounds of appeal were before it and adjourned the matter to the 1st November, 1999.  On the 28th October, 1999 the State furnished a report in response to the applicant’s proposed expert evidence, resulting in an adjournment to the next list to fix dates in February, 2000 when a date for the hearing of a motion to adduce fresh evidence was fixed for the 22nd May, 2000.  
A date for the substantive appeal was set for the 23rd October, 2000 when the Court of Criminal Appeal quashed the applicant’s conviction for murder and possession of firearms with intent.  A retrial was ordered which is still pending.  The applicant claims that such trial be prohibited by reason of four periods of delay by the prosecuting authorities.

4.	First period of delay
	From the 13th May, 1997 to the 23rd October, 2000, a period of three years and five months had elapsed, during which time the applicant’s legal representation was changed.  Mr. White, the applicant’s solicitor, avers that the delays from the date when his firm came into the case, delays were not attributable to the actions of the applicant who, throughout the period, was in custody.  The major cause of the delay, he further avers, was the inability of the Court of Criminal Appeal mechanism to respond to the applicant’s need to properly conduct his appeal.  On each occasion when fresh evidence was required to be adduced or the grounds of appeal extended there was an adjournment to a list to fix dates which were heard only once per term.  This, the deponent averred, resulted in undue and unwarranted delay in bringing the applicant’s appeal to a successful conclusion.  The introduction of the Court of Criminal Appeal case management list in or around the month of September, 2002 acknowledged the unsatisfactory situation that prevailed in expediting cases during the period.  
	This complaint from the 26th May, 1997, when the appeal was lodged, until the 28th February, 2000, when the appeal was determined by way of quashing the conviction and ordering a retrial, of two years and five months, resulted from the applicant’s exercise of his right to appeal by reason of adducing fresh evidence and of extending the grounds of appeal necessarily took time given the adjournments to list dates as well as the one month delay over Christmas, 1997, to await the trial transcripts.  A further delay occurred when the hearing of the applicant’s appeal was separated from that of his co-accused.  
	One year elapsed before the applicant changed solicitor.  There were further delays in preparing for the adducing of fresh evidence with the forensic linguist’s cumulative sum analysis, the extension of grounds of appeal and the separation of the co-accused’s case.  

5.	Second period of delay
	The second period of delay from the 23rd October, 2000 until the 24th April, 2002 – a period of one year and five months – is characterised by Mr. White as a failure to take any step to initiate the prosecution of the retrial of the applicant.  The appeal of the applicant’s co-accused was refused on the 22nd March, 2002.  A month later, on the 24th April, 2002,  the chief prosecution solicitor indicated that it was his intention to have the applicant’s case listed the following day for the purpose of date to be fixed for the trial at the Central Criminal Court.  The applicant’s solicitor protested at the short notice and suggested that the case be put in to the next list to fix dates, noting “that there appears to be no prejudice to any party in this course being adopted”.  Despite that, the matter of the applicant’s retrial was not adjourned to the next list but was fixed on that day for the 18th December the following year.  An application for a certificate under s. 29 of the Courts of Justice Act, 1924, for the purpose of an appeal to the Supreme Court on the matter of the order directing a retrial of the applicant was heard before the Court of Criminal Appeal on the 30th July, 2002.  That court declined to certify. 

6.	Third Period of Delay
	The one year and seven months delay to the date fixed for trial on the 1st December, 2003 was further extended by the non-availability of a judge to hear the case on that date, notwithstanding the empanelling of a jury.  The case was adjourned for three days to the 4th December, 2003 and later to the 8th December, 2003.  The applicant’s linguistic expert was not available until the 11th December, 2003 and, in those circumstances, the defence was obliged to seek an adjournment.
		
7.	The Fourth Period of Delay
	At the list to fix dates on the 18th December, 2003, counsel for the applicant indicated to the Central Criminal Court that the defence witnesses would be available in March, 2004.  Counsel for the State indicated that the injured parties, who were also the main prosecution witnesses in the case, were grossly concerned about the delay in bringing matters to trial.  On the basis that the offences giving rise to the charges occurred in February, 1996, priority was sought for the hearing of the trial.  Despite such concern a trial date was set for the 10th January, 2005, a further delay of thirteen months and a total of over four years from the applicant’s conviction being quashed.  
	On moving the application for judicial review on the 9th March, 2004, the Court indicated that an application should be made for an earlier date.  On the 29th March, 2004 the applicant sought and was granted a trial for the 14th June, 2004, at which date the applicant would have both expert and witnesses of fact available.
	
8.	Judicial Review Application
	In these circumstances the applicant having commenced judicial review proceedings on the 9th March, 2004, renewed those proceedings for leave to seek judicial review on the 29th March, 2004, seeking the reliefs sought.  By supplemental affidavit of Peter White, sworn that day, he deposed to the facts of the new trial date.
	The Court was urged that by reason of the constitutional right to a prompt trial and by reason of Articles 6(1) and 8 of the European Convention on Human Rights, the applicant’s trial should be prohibited in the circumstance.
	The relief sought and the grounds are appended hereto.

9.	Submissions of Counsel
Counsel submitted that in circumstances where the applicant was first arrested in connection with the offences in March, 1996, a period of delay extending  originally to January, 2005 and now June, 2004, in bringing the matter to re-trial is in breach of the applicant’s right to a fair trial in due course of law, the period of delay is inordinate, inexcusable and on the balance of justice the trial should not now be allowed proceed.  The period of delay is also unreasonable by virtue of the applicant’s right to the determination of a criminal trial within a reasonable time as set out at Article 6(1) of the European Convention on Human Rights Act, 2003.  In being left in a state of uncertainty over a prolonged period pending the outcome of the criminal proceedings against him the applicant’s right to respect for private and family life, as provided for at Article 8 of the European Convention is breached.
Counsel for the applicant submitted that the delay in bringing the applicant’s retrial to prosecution is in breach of the applicant’s Constitutional right to fair procedures and natural justice and amounts to a breach of the applicant’s right to a trial in accordance with the law and the expeditious initiation and disposal of criminal proceedings pursuant to Article 40.3. It is further submitted that the lapse of time in itself has prejudiced the applicant in his defence in respect of the said charges and gives rise to a probability that the applicant cannot now receive a fair trial. It is further submitted that the applicant’s statutory rights, as contained in the European Convention on Human Rights Act, 2003 and in particular those rights contained in Article 6( 1) and Article 8 of the European Convention have been breached by the past and prospective delay in bringing the applicant to re-trial.
The delay in bringing the applicant to trial was both inordinate and inexcusable.  Counsel referred to O'Domhnaill v. Merrick [1984] I.R. 151; JO'C v. Director of Public Prosecutions [2000] 3 I.R. 478; State (O'Connell) v. Fawsitt [1986] I.R. 362; B v. The D.P.P. [1997] 3 I.R.140 at 194; The State (Healy) v. Donoghue [1976] I.R. 325 at 336; D.P.P. v. Byrne, [1994] 2 I.R. 236; BF v. D.P.P. [2001] 1 I.R. 656; PC v. D.P.P. [1999] 2 I.R. 25; The State (Cahalane) v. Judge Murphy [1994] 2 I.R.; Fitzpatrick v. Shields [1987] I.L.R.M. 243; Gibbs v. The President of the Circuit Court and the D.P.P. (Unreported, Kelly J., May 16th, 1996); Porter v. Magill [2001] 2 A.C. 357; Ausiello v. Italy (1996) 24 E.H.R.R. 568 at 571; Milasi v. Italy [1988] 10 E.H.R.R. 333; B v. Austria [1990] 13 E.H.R.R. 20; Konig v. Federal Republic of Germany [1978] 2 E.H.R.R. 170; D.P.P. v. O'Callaghan (Court of Criminal Appeal, December 18, 2000). 

10.	Decision of the Court
	There has no doubt been a lengthy delay between the 6th February, 1996 when the Fanning family were falsely imprisoned and Mr. Fanning was murdered and the date on which the applicant will be re-tried on the charges in relation thereto.
	In my view there can be no complaint regarding the time elapsed up to the first trial nor, indeed, up to the decision of the Court of Criminal Appeal decision on the 23rd October, 2000.  During that period the applicant had changed his legal representative.  He had sought the introduction of fresh evidence by way of an expert forensic linguist.  It was reasonable for the Court of Criminal Appeal to refuse to proceed until all the grounds of appeal were before it.  While the applicant’s solicitor had referred to the matter going to the list to fix dates on four occasions, this was not as a result of prosecutorial delay.
	In relation to the second period of delay, the following facts are relevant.  The chief prosecution solicitor indicated that it was his intention to have the applicant’s case listed within a month after the refusal of the appeal of the applicant’s co-accused on the 22nd March, 2002.  The applicant’s solicitor protested at the short notice of the application to fix a date.  An application under s. 29 of the Courts of Justice Act was pending which was refused on the 30th July, 2002.  The applicant’s solicitor requested that the matter be adjourned to the next list to fix dates, noting that there appeared to be no prejudice to any party in this course being adopted.  A date was fixed for the 18th December, 2003.  
	It seems to this Court that the delay, during the second stage, was by reason of the applicant’s co-accused’s appeal pending until the 22nd March, 2002.  Given that the trials had been separated as from the 21st December, 1998, over three years beforehand, this would seem not to have been necessary.  However, given that the matter was reactivated on the 24th April, 2002 by way of fixing a date for the 18th December, 2003, presumably with the consent of the applicant’s solicitor, it would appear reasonable.  Moreover, the applicant was on bail and, accordingly, did not suffer any custodial prejudice.
One year elapsed before the applicant changed solicitor.  There were further delays in preparing for the adducing of fresh evidence with the forensic linguist’s cumulative sum analysis, the extension of grounds and the separation of the co-accused’s case.  While Mr. White’s affidavit referred to the matters going to the list to fix dates on four occasions, it is not clear that this could be characterised as prosecutorial delay.  
 	The delay to the 1st December, 2003 was further extended by the non-availability of a judge on that date, notwithstanding the empanelling of a jury.  Further adjournments occurred.  The applicant’s linguistic expert was not available until the 10th December, 2003 and, accordingly, the defence was obliged to seek an adjournment.
	While it is, of course, upsetting that the trial, fixed for the 1st December, 2003, was unable to be heard, such delays occur from time to time both in civil as well as criminal trials.  The further delays, forced by the unavailability of a judge on the 1st December, were due to the applicant’s expert not being available.  The applicant was, of course, on bail and, accordingly, may not have got the priority in trial that would be afforded an accused in custody.  
	Nonetheless, it is clear that this delay, in addition to other delays, may have added to the anxiety of the applicant and, indeed, caused some general prejudice to someone who is entitled to the presumption of innocence.  
	The fourth period of delay is prospective insofar as, on the list to fix dates on the 18th December, 2003, it was indicated that a trial date could not be set until the 10th January, 2005, which was a further delay of thirteen months and a delay of over four years from the applicant’s conviction being quashed.
	However, it is clear that the applicant’s witnesses would not be available in March, 2004, from which I assume that an earlier date would have been available had they been in a position to give evidence earlier.  
	In any event the applicant re-applied last Monday, on the 29th March, 2004, and was granted a trial for the 14th June next, when both his witnesses of fact and expert witnesses will be available.
	This Court is concerned that, in the circumstances, a retrial might have had to wait for four years from the applicant’s conviction being quashed.  However, it does not seem to me that the applicant was left in a state of uncertainty.  While the new trial date of the 14th June, 2004 is seven months earlier it is, nonetheless, a lengthy time, both for the defence as well as the prosecution, from the time of the murder, false imprisonment and possession of firearms with intent in February, 1996.  
	I have already held that delays until the quashing of the conviction could not be regarded as prosecutorial delays.  It is clear that the delays since the quashing of the conviction were contributed to the applicant and his legal representatives.  He is, of course, entitled to change representation and to the benefit of expert witnesses and to adduce fresh evidence.  Where an application had been made for a separate trial, it was reasonable for the prosecution to await the decision in that regard in relation to the co-accused.  It was also reasonable for the prosecution to await the amended appeal.
	In the circumstances, and given the resources of the Central Criminal Court, I refuse the application for leave for judicial review.

APPENDIX
RELIEFS SOUGHT
1.	An Order restraining the First Named Respondent from prosecuting the applicant in respect of Central Criminal Court Bill No. CCO045/1996 for the offences of Murder contrary to Common Law; possession of a firearm with intent contrary to Section 15 of the Firearms Act, 1925 as amended by Section 4 of the Firearms Act, 1971 and Section 21(4) of the Criminal Law (Jurisdiction) Act, 1976 and Section 14(1) of the Criminal Justice Act, 1984 and Section 4 of the Firearms and Offensive Weapons Act, 1990; False Imprisonment contrary to Section 11 of the Criminal Law (Amendment) Act, 1976 in respect of one Bridget Fanning; and False Imprisonment contrary to Section 11 of the Criminal Law (Amendment) Act, 1976 in respect of one Rosaleen Fanning.  Such offences currently pending before the Central Criminal Court.

2.	An Order restraining the Respondent from prosecuting the applicant by way of preferring further charges on the said Bill of Indictment in respect of any other offences arising from the matters alleged in the Book of Evidence thereto.

3.	An Interim Order pursuant to Order 84 Rule 20(7) of the Rules of the Superior Courts, 1986, staying any further proceedings against the applicant in respect of the offences referred to at paragraphs D(I) and D(2) hereof pending the determination of the within Judicial Review.

4.	A Declaration, pursuant to Section 3(1) of the European Convention on Human Rights Act, 2003, that the continued prosecution of the offences contained in Central Criminal Court Bill No. CCO045/1996 with regard to the applicant is incompatible with the obligations of the Respondents and each of them under the European Convention on Human Rights.  

5.	An injunction restraining the continued prosecution of the offences contained in Central Criminal Court Bill No. CCO045/1996.

6.	Damages pursuant to Section 3(2) of the European Convention on Human Rights Act, 2003 in respect of the matters complained of herein.  

7.	Judicial Review by way of a Declaration that the said proceedings have been brought in breach of the applicant’s right to a trial in due course of law and in breach of the applicant’s right to the expeditious initiation and disposal of criminal proceedings as required by law.  

8.	Judicial Review by way of a Declaration that the said proceedings have been brought in breach of the applicant’s right to the determination of any criminal charge against him within a reasonable time as required by the Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 6(1) thereof as contained at Schedule 1 of the European Convention on Human Rights Act, 2003.  

9.	Judicial Review by way of a Declaration that the said proceedings have been brought in breach of the applicant’s right to respect for private and family life as required by the Convention for the Protection of Human Rights and Fundamental Freedoms and in particular Article 8 thereof as contained at Schedule 1 of the European Convention on Human Rights Act, 2003.  

10.	If necessary, an extension of time within which to bring these proceedings.

11.	An Order providing for the costs of and incidental to the Application herein.  

12.	Such further or other Order as this Honourable Court shall deem just.