THE HIGH COURT 

RECORD NO. 84 JR 2002

BETWEEN/

J. H.

APPLICANT
AND

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Judgment of Mr. Justice Murphy dated the 2nd day of April, 2004.

1.	Outline of Case
	The applicant in this case was tried and convicted of certain sexual offences committed against his daughter in 1999 and appealed to the Court of Criminal Appeal on the 3rd December, 2001.  That court allowed the appeal and directed a re-trial. 
	On the 18th February, 2002, within the three month period, leave was granted by McKechnie J. at a time when the applicant had served two years in custody out of the nine years to which he was sentenced.
	The applicant was given leave for an injunction by way of application for judicial review restraining the respondent from prosecuting the applicant in proceedings entitled CC 113/98 The People of Ireland (D.P.P.) v. The Applicant.  

2.	Grounds upon which relief is sought
	The applicant says that the delay between the dates of the alleged offences (1st September, 1985 to 21st September, 1987) and the date of return for trial of the applicant on the 2nd October, 1998, amounts to a failure to vindicate the applicant’s constitutional entitlement to fairness of procedures, a breach of his rights to constitutional and natural justice and to an expeditious hearing.
	The applicant submitted that the Gardaí failed to investigate the matters with reasonable expedition after the initial complaint of the 4th May, 1990 and to carry out any step in the investigation whatsoever during the period between the taking of a statement from the complainant’s mother in December, 1990, up to the 27th February, 1998, when warrants for the arrest of the applicant were obtained by the Gardaí.  It was alleged that such a delay itself is of such magnitude as to amount to be a breach of the above mentioned rights.  The applicant had not been in a position to contact the children who are neighbours of the applicant, nor to remember their names, and has been greatly stressed by the making of the allegations.  The trial on those offences at such a remote time from the date of the alleged offences amounts to an abuse of the process of the court.

3.	Affidavit of the Applicant
	The applicant referred to the indictment in relation to a total of seven counts, one of rape, one of unlawful carnal knowledge, one of incest and four of indecent assault, alleged to have been committed against his daughter, between the dates 1st September, 1985 to the 21st September, 1987.  On the 27th February, 1998, eight warrants for his arrest were issued.  He was arrested in England on foot of those warrants and consented to being extradited on the 6th August, 1998 and returned for trial on the 2nd October, 1998.
	He said that he was not guilty of the offences and had maintained that position at all times.
	He referred to the relationship between his daughter’s mother and its deterioration and his subsequent emigration to England, where he maintained contact with his children.  He subsequently married in England.  
	In 1990, his daughter wrote asking him to come home for her confirmation and requested him to send her money.  When he came home her mother told him that she knew what he had been doing and told him that he should never see the children again and that she had taken their daughter to hospital on the 4th May, 1990, and that Garda Rita Walsh had taken a statement from the daughter.  
In December, 1990, a further short statement was taken from the daughter’s mother, regarding the daughter’s paternity.  As appeared from the book of evidence (p. 64) the next statement taken from the daughter was on the 20th September, 1996, almost six years later.
	On the 25th May, 1999, the applicant’s solicitor had written to the Chief State Solicitor seeking, inter alia, information as to the cause of the delay in prosecuting the matter.  No reply was received until the 14th July, 1999, which did not address the issue of the delay. 
	The trial commenced on the 19th July, 1999, before the Central Criminal Court.  During the course of the trial it emerged from the evidence of Garda Rita Walsh that she had forwarded her report to her superior officers and thereafter nothing had happened with the file between the end of 1990 and a phone call from the English Child Protection Agency in September, 1996.  No explanation was given for the inaction on the file – it was stated that two superior officers were since deceased.  When Garda Walsh was prompted to search through the archives, she found the original file with the statements and medical report.  It was accepted by the prosecution that “nothing happened” with the file in the intervening six years.
	The applicant averred that he was not advised of the possibility of applying to halt his trial on the ground of a breach of his constitutional rights and no application was made on his behalf.
	The Court of Criminal Appeal, heard his appeal on the 3rd December, 2001, and were of the opinion that the trial judge’s decision to give a warning on corroboration due to the delay, left an element of uneasiness in the case and remitted it to the Central Criminal Court, where it was re-listed on the 20th December, 2001, and a date fixed for trial on the 12th May, 2003.  The applicant was re-admitted to bail by the Court of Criminal Appeal.
	It was submitted on the applicant’s behalf that he has been prejudiced by the delay itself in prosecuting the offence, as is stated in the grounds referred to above.  He had served over two years in custody.  He had been prejudiced by his time in custody, which led to marital difficulties.  He and his wife became estranged and he had returned to live in this jurisdiction.  
	He maintained that there was gross delay on the part of the prosecution authorities in the conduct of the case from December, 1990 to September, 1996, during which time nothing happened.  This was inexcusable and culpable prosecutorial delay.  The delay was further compounded by the delay between his interview with the English police in April, 1997 and the issue of the warrants for his arrest in February, 1998.  There were further delays between February, 1998 and his arrest in July, 1998.

4.	Statement of Opposition
	The respondent submitted that the facts upon which the applicant was basing his claim were known to him either before or at the time of his trial in July, 1999.  He has not applied for judicial review within the appropriate time, nor had he sought an extension of time.  The court should, ordinarily, decline to grant the relief sought.  The delay was explained by reason of the dominion he exercised over the complainant prior to her making a complaint to her mother in May, 1990.  The subsequent delay was not blameworthy.  If such delay had occurred, it was regrettable, but not such as would violate any constitutional right or cause any prejudice in consequence of the lapse of time.  The applicant had failed to discharge the onus of proof upon him to establish that there was a real risk that he would be subjected to a trial which was other than fair and in due course of law.  
	Garda Rita Walsh substantiated the averments of the applicant with regard to the alleged prosecutorial delay in her affidavit.  

5.	Replying Affidavit 
	The applicant, in his replying affidavit, rejected any suggestion that his application was out of time in that he had applied for the relief sought as soon as possible following the quashing of his conviction in the Court of Criminal Appeal and the direction of a re-trial.  It was only then that the relevance of prosecutorial delay was explained to him and the issue was raised before the Court of Criminal Appeal.
	Mr. Anthony Collins S.C. made submissions on behalf of the applicant in relation to the time for applying for judicial review.  The applicant could not have brought prohibition proceedings while he was a convicted person and had to wait until his conviction had been set aside.  He then applied within the time specified by the Rules of Court.  The nature of prosecutorial delay due to unexplained Garda inactivity on the file had only been apparent during the course of his original trial.  However, it was not until he had obtained further legal advice during the course of the appeal that its relevance was raised.  
	The statement of opposition was not filed until the 10th February, 2003, virtually a year after leave was granted after the respondent had sought extensions (which were objected to) for the purpose of considering the papers.  There could be no prejudice to the respondent in any delay.  The applicant relied on the judgment of McGuinness J. in D.P.P. v. Judge Hamill and Michael Dighnan, Unreported, 23rd July, 1999.
	Counsel referred to The State (Healy) v. Donoghue [1976] I.R. 325, where the Supreme Court identified some of the rights guaranteed by Article 38 of the Constitution that no person be tried on any criminal charge save in due course of law and the right to reasonable expedition.
	The Supreme Court have since confirmed this discrete right to a trial with due expedition in P.C. v. D.P.P. and P.O’C. v. D.P.P. [2000] 3 I.R. 87 at 93.
	Mr. Collins distinguished delay referable to the complaint (in this case between September, 1987 and May, 1990) and prosecutorial delay (between 1990 and 1996).  
	D.P.P. v. Byrne [1994] 236 at 245, was relied on:

“. . . I am driven to the further conclusion that, of necessity, 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 of 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.”

 	In P.P. v. D.P.P. [2000] 1 I.R. 403 at 411, Geoghegan J. stated that if there was blameworthy delay on the part of either the guards or the D.P.P., “the court should not allow the case to proceed and additional actual prejudice need not be proved”.  Where a constitutional right had been clearly infringed, the trial should	not be permitted to proceed.  Procedurally it would be correct to grant relief by way of judicial review in the form of an injunction against the D.P.P. from further proceeding with the charges.
	In B.F. v. D.P.P. [2001] 1 I.R. 656, Geoghegan J., delivering the judgment of the court stated:
“I take the view that where there is culpable delay on the part of the State authorities, then having regard to all the circumstances of the case, the delay itself may entitle the accused to an order preventing the trial, irrespective of whether there is actual or presumptive prejudice.”

	In relation to prejudice, it was submitted that not alone has the applicant been greatly stressed by the allegations but he has already spent two years in custody.  The applicant submitted himself voluntarily to questioning in April, 1997.  He consented to extradition on 6th April, 1998.  
	In his closing submissions, counsel referred to the case being of gross prosecutorial delay, which was not excused and was inexcusable.  It was grossly negligent to mislay a file for six years, particularly in view of the seriousness of the allegations.  The gross delay amounts, of itself, to a violation of the applicant’s right to an expeditious hearing.

6.	Submissions on behalf of the respondent
	Mr. McDonagh S.C., counsel on behalf of the Director, distinguished between the complainant’s delay from the 21st September, 1987 to on the 4th May, 1990, and the delay between December 1990 and September, 1996.  Where one is dealing with post-complaint delay, as in this case, the court must first come to the conclusion that the delay is inordinate and inexcusable and that it must perform a balancing test such as propounded in Barker v. Wingo [1972] 407 U.S. 514, referred to by Finlay C.J. in D.P.P. v. Byrne [1994] 2 I.R. 236.  It was submitted that Finlay C.J. was not suggesting that all that had to be established was an inordinate delay.  He was emphasising that, having established such a delay, it was not necessary to establish prejudice to one’s defence or excessive pre-trial incarceration.  He was pointing out other factors may come into play, such as anxiety post-charge.  There must always be a balancing test save that, where one is concerned with prejudice to one’s defence, that balancing test may be pointing clearly in one direction.  
	He referred to the emphasis by Keane C.J. on the necessity for this balancing test in P.M. v. Judge Malone & Ors., (Unreported, Supreme Court, June 7th, 2002).  There Keane C.J.  stated that it did not follow that the impairment of the defendant to defend himself in a case such as this was a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial.  He added that where there had been a significant and culpable delay to which the applicant had not contributed in any way, the result may be 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.  The court held that this may not be the only consequence for the accused following from significant and culpable delay to which the accused has not contributed.  The loss of an accused’s liberty, the anxiety and concern of the accused resulting from the significant delay in his being brought to trial and the possibility that the defence will be impaired, are other interests of defendants which the right to a speedy trial is intended to protect.  
	P.M. v. Judge Malone & Ors. the Supreme Court, at pp. 24-25 of the unreported decision, made a distinction between the anxiety and concern of an accused after he had been charged and the position before he had been charged.  If the accused’s right to a reasonable, expeditious trial is violated by culpable delay which is so significant as, objectively considered, to cause him anxiety and concern, it would follow that that would be a ground for prohibiting his further trial where the delay occurred after he had been charged.  
It was submitted that the statement, at pp. 34 and 35 of P.M. v. Judge Malone & Ors. that, “it is now clear that delay of itself, even where neither actual nor presumptive prejudice to the accused was demonstrated, may be a ground for restraining the continuance of the trial” did not represent the law.  He referred to in the context of Mills v. Queen (1986) 29 D.L.R. and O’Flynn v. Clifford & Ors. [1988] 1 I.R. 740 and D.P.P. v. Byrne [1994] 2 I.R. 243.  Issues other than conventional prejudice needed to be considered in the balancing test.  
	Mr. McDonagh submitted that were the Supreme Court to intervene to prohibit or, more correctly, injunct, a criminal trial on the ground that there had been a breach of the right to reasonable expedition, absent any proof of prejudice as interpreted by the Supreme Court, an effective statute of limitations would be introduced into criminal proceedings, contrary to the repeated assertions of that court to the contrary (B. v. D.P.P. [1997]  3 I.R. 140 at 149 per Denham J. and P.O’C v. D.P.P. [2000] 3 I.R. 87 per Keane C.J. at 93 and Denham J. at 97.)  He submitted that the ground of an injunction merely on showing the lapse of time before complaint, would corrode trust in the system of criminal procedure.
	In addition, the applicant must prove that there had been excessive delay and that a fair trial was not possible.  The applicant must prove his case on the balance of probabilities in judicial review proceedings.  Counsel suggested that the dominion of the applicant over his daughter may have prevented her from making further complaints.
	It was submitted that the applicant suffered no actual prejudice.  To say he could not remember the names of the children who were his neighbours has to be assessed in the context of the uncontroverted evidence of the respondent that the applicant did not mix with his neighbours.  There are no particulars given of stress.  It would appear, from para. 12 of the applicant’s affidavit, that it was not until the 9th April, 1997, when he attended Sutton Police Station voluntarily, to answer complaints made by his daughter, that he was aware of the complaint.
	Garda Walsh, in para. 13 of her affidavit, said that it was likely that there would have been a delay arising in any prosecution of the applicant in that, following his being challenged by his daughter’s mother in respect of the allegation of the complainant, it appears that he broke off contact with his family.  It was not until 1994, when the complainant’s mother discovered a letter from the applicant to her son, that his address became known to her.  However, it would appear from the affidavits of the applicant’s sisters, that none of them were approached by the Gardaí with regard to his address.
	The applicable law in relation to the balancing test required to be conducted following a finding of post-complaint delay in criminal prosecutions was considered in a number of cases.  Kelly J. enumerated and reviewed these principles in McKenna v. Presiding Judge of the Dublin Circuit Criminal Court and D.P.P. (Unreported, January 14th, 2000) and affirmed by the Supreme Court.  These ten principles include:
1.	the delay in the case;
2.	the reason or reasons for the delay;
3.	the accused’s actions in relation to the events in issue;
4.	the accused’s assertion of his constitutional rights;
5.	the actual prejudice to the accused;
6.	the pre-trial incarceration of the accused;
7.	the length of time of pre-trial anxiety and concern of the accused;
8.	the limitations or impairments of defence;
9.	the circumstances which may render the case into a special category, and
10.	the community’s right to have the offences prosecuted.
Having applied the principles enumerated by Denham J. in B. v. D.P.P. [1997] 3 I.R. 140 at 195, Kelly J. concluded that whilst there had been, very regrettably, inordinate and inexcusable delay in the prosecution of the charges in that case, the applicant had not demonstrated that such delay had given rise to a real risk of an unfair trial, nor had they given rise to excessive anxiety nor was pre-trial incarceration involved.
Even if the court were to find that there had been inordinate and/or inexcusable delay, the applicant has not demonstrated that such delay has given rise to a real risk of an unfair trial.  No actual prejudice had been shown and the circumstances were not such as to give rise to an inference that the risk of an unfair trial had been established as a reality.  The applicant failed to raise other aspects of prejudice as would outweigh the public interest in ensuring that the trial proceeds.

7.	Decision
	The applicant is entitled to a presumption of innocence.  His conviction was quashed by the Court of Criminal Appeal and a re-trial was ordered which was set down and was adjourned pending the outcome of these judicial review proceedings.
	The alleged incidents had occurred between September, 1985 and September, 1987.  The initial complaint was made on the 4th May, 1990.  Sometime that year, according to para. 9 of the applicant’s grounding affidavit, his daughter wrote to him to come home for her Confirmation.  When he arrived back and called to the house he was approached by her mother and told that she knew what he was doing and that he would never see the children again.  There is no indication here of a complaint, much less of a charge in relation to a complaint.  
	The applicant says (para. 12 of his affidavit) that on the 9th April, 1997, he voluntarily attended at Sutton Police Station to answer questions regarding the complaints made by his daughter.  It was not until a further fifteen months later when he was arrested, that is July, 1998, and his trial commenced on the 19th July, 1999.
	It would seem to follow, assuming as I must, the innocence of the applicant which is clearly averred to in para. 6 of his grounding affidavit, that the concern and anxiety originated on the 9th April, 1997.  
With this in mind, the court must distinguish between three periods of delay: 
That between the two years range in which it was alleged the offences took place to the 4th May, 1990; between the 4th May, 1990 to the 9th April, 1997, during which period from the 14th June, 1990 to the 20th September, 1996, no action was taken by the Gardaí between the taking of statements from the complainant on those two dates to the 19th July, 1999, when the trial commenced.
	The applicant said that the delay of six and a half years between the two statements constituted inexcusable and inordinate delay on behalf of the prosecution.  He relies on the submissions culminating in P.M. v. Judge Malone & Ors., (Unreported, Supreme Court, June 7th 2002) at p. 38 where Keane C.J., having considered a number of cases, stated that “It is now clear that delay of itself, even where neither actual nor presumptive prejudice to the accused is demonstrated, may be a ground for restraining the continuance of the trial.
	The Chief Justice was satisfied that in determining whether the concern and anxiety caused to an accused person was such as to justify the prohibition of his trial on the ground that his constitutional right to a reasonably expeditious trial has been violated, the court, depending entirely on the circumstances of the particular case, may be entitled to take into account not merely delay subsequent to his being charged and brought to trial but also delay prior to the formal charge.
	I have no doubt that if there were evidence of an inordinate, even if excusable, delay between charge and prosecution, that an applicant would be entitled to an injunction.  While it is clear from the judgment in P.M., the court is entitled to take into account delay before charge it seems to me that such delay cannot commence before an applicant was aware of the complaint being made.  The length of delay between the last date of the alleged offences and the trial was almost twelve years which, in itself, though lengthy, would not necessarily lead to injunctive relief prohibiting the trial.  The applicant had left the jurisdiction and, though his sisters knew his address and were not approached by the Gardaí, his wife did not know his address until 1994.  The Court can only take into account delay from the 9th April, 1997 when the applicant attended Sutton Police Station and became aware of his daughter’s complaint to the Gardaí even if there had been some reference to him being told by the injured party’s mother that the injured party made a statement Garda Rita Walsh on 4th May, 1990.  
	However, the court must look not to the date of the original trial but to the date of the pending re-trial which would now probably take place more than five years after the original trial.  The court must also take into account the prejudice suffered by the applicant since April, 1997, which may well be over eight years after the complaints of the police were made known to him.  The circumstances of his acquittal and the order for re-trial made by the Court of Criminal Appeal does relate to the prosecutorial delay in that the judgment of the Court of Criminal Appeal that the unease felt by that court related to the inexcusable delay on the part of the prosecuting authorities.  I am satisfied that the applicant could not initiate judicial review proceedings while he was convicted by the Central Criminal Court.  The time to make that argument was before or at his trial.  I am satisfied that his solicitor did request the Chief State Solicitor for reasons for the delay by letter dated the 25th May, 1999.  No reply was received until the 14th July, 1999.  That reply did not give reasons for the delay.	
The applicant is now entitled to apply for judicial review which he has done promptly from the date of the judgment of the Court of Criminal Appeal.  This court must, accordingly, look at the matter from this time perspective and without having regard to the previous conviction.
	It seems extraordinary, in a serious case of this nature, that records were mislaid and that there was no system to track and date those records.  In this regard I should repeat what the Court of Criminal Appeal stated with regard to the diligent efforts made by Garda Rita Walsh to locate the file.
	The net issue relates to whether an applicant need show any prejudice with regard to prosecutorial delay.  It seems to me that the court has to balance the ten factors referred to by Kelly J. in McKenna v. Presiding Judge of Dublin Circuit Criminal Court and the D.P.P., Unreported, January 14th, 2000, and affirmed by the Supreme Court in an ex tempore judgment (see also Denham J. in B. v. D.P.P. [1997] 3 I.R. 140 at 195).
	While I am not very convinced of the reasons put forward by the applicant to substantiate actual prejudice; it was undoubtedly the case that, on the important assumption of innocence, that the applicant has suffered not alone anxiety but has already served a prison sentence.
	It seems to me, in these circumstances, that the applicant is entitled to the relief sought.  Accordingly, the court will grant an injunction by way of an application for judicial review restraining the respondent from prosecuting the applicant in proceedings entitled Bill No. CC 113/98, The People of Ireland (at the suit of the Director of Public Prosecutions) v. JH.