The Irish Times Law Report

 

In the absence of an explanation, 13-month delay will normally disqualify applicant for judicial review.

Al Manning (applicant) v Director of Public Prosecutions (respondent)

Judicial Review - Application for order of prohibition - Delay in prosecuting case - Delay in bringing judicial review proceedings - Whether new circumstances gave rise to new right to seek judicial review - Whether the interests of justice permit the court to overlook the Applicant's delay - O84, r21(1) Rules of the Superior Courts 1986.

The High Court (before Mr Justice O'Leary); judgment delivered July 29, 2004.

A delay of 13 months in seeking the protection of the court is far greater than allowable under the rules when applying for judicial review and, in the absence of an explanation, will normally disqualify the applicant from relief. The passing of the three-month time period within which to bring judicial review proceedings does not mean that the applicant is disbarred from applying at a later stage if new circumstances arose. Each new circumstance can, if the court considers them sufficiently important, give rise to a new right to apply and have an application for prohibition considered on its merits.

The High Court so held in refusing the application for the reliefs sought by way of judicial review.

Conor Devally SC with Ronan Munroe BL for the applicant; Anthony Collins SC with Conleth Bradley BL for the respondent.

Mr Justice O'Leary commenced by saying that the applicant is a businessman and was returned for trial on March 25, 2002, on the charge of conspiracy to defraud contrary to common law. The particulars of the offence were that the applicant, between April 10, 1995, and October 20, 1995, conspired together with two others to obtain money from Guardian/ PMPA. insurance company by falsely pretending that a genuine traffic accident had occurred on the April 10, 1994, and that arising from the circumstances of the accident there was an obligation on the part of the insurance company to make payment in respect of damage to vehicles.

The applicant sought reliefs inter alia, an order of prohibition or in the alternative an injunction restraining the respondents from taking any further steps in the criminal proceedings together with an extension of time within which to bring these proceedings.

The applicant claimed that he had been deprived of a trial in due course of law and with due expedition and in this regard there had been a breach of his Constitutional rights. The respondent had been guilty of excessive prosecutorial delay. In particular, the respondent had (a) caused or permitted a period in excess of eight years to elapse between the commission of an alleged offence and the trial of same, (b) caused and/or permitted a lapse of time of over 18 months between the arrest for questioning of the applicant and his arrest for the purpose of charging, (c) the matter remained in the District Court for a period of 15 months by way of preliminary examination and (d) no adequate details for the reason of the lengthy delay in prosecuting these proceedings have been furnished to the applicant. The applicant further claimed that his constitutional right to trial in accordance with law was breached in that his ability to properly defend himself had been severely prejudiced by the delay and omissions of the respondent in that, (a) the delay of eight years was excessive and constituted unconscionable delay in the circumstances, (b) the failure of the respondent to bring the within criminal proceedings to trial with due expedition, (c) the failure of the respondent to disclose material statements of evidence in a timely fashion, (d) the inability of the applicant to respond adequately or at all to the alleged memoranda of the interview of the applicant. Finally, the applicant claimed that his right to a fair trial has been prejudiced.

The respondent denied each of the claims being made by the applicant and opposed the reliefs being sought. The respondent submitted that the applicant had failed to act promptly in bringing these proceedings and was guilty of delay. Further, the applicant failed to show any reason as to why, having been returned for trial on the March 25, 2002, he did not bring an application for leave to apply for judicial review until April 25, 2003, when his trial was due to commence on April 28, 2003.

Having outlined the factual background to the application Mr Justice O'Leary stated that the basis of the applicant's claim centred on the alleged delay in coming to trial and, in that regard, Mr Justice O'Leary considered the following to be the timetable relating to the matter: (1) The alleged offence occurred in the period of time ending on the October 21, 1995. (2) The applicant was arrested on March 5, 1998, and questioned about the matters. (3) The case against the applicant commenced in the District Court on October 4, 2000. (4) The applicant was sent forward for trial on March 25, 2002. (5) A trial date was set for April 28, 2003. In preparation for the trial counsel advised during April 2003 that the respondent be requested to make further disclosure of material in his possession. On April 18, 2003, material was supplied consisting of memos of two interviews with gardai which took place on March 5, 1998, the date of the applicant's arrest. (6) Arising therefrom, an application was made for judicial review in the terms herein and the order of April 25, 2003, was granted. This was the last working day before the date fixed for the trial. (7) The trial was adjourned pending the outcome of these proceedings. Mr Justice O'Leary accepted for the purposes of the application that in 2001 the applicant did not physically receive the memoranda of two interviews with gardai which took place on March 5, 1998. However, the court also held that on a reasonable examination of the book of evidence their existence would have been apparent. Mr Justice O'Leary said that the applicant had submitted that the delays in the case were the responsibility of the prosecution for the most part and that he had suffered prejudice by reason of these delays in that his physical health had deteriorated and he had serious difficulties with his memory. He noted that in reply the respondent submitted that much of the delay was necessitated by the complex nature of the charges and their investigation was part of 80 linked suspected cases involving over 1,100 civilian witnesses and over 100 bank accounts. The respondent also pointed out (a fact not disputed) that the long periods 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.

Mr Justice O'Leary considered the timing of this application. He noted that Order 84, Rule 21(1) of the Rules of Superior Courts provides that 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. Mr Justice O'Leary found that 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 the March 25, 2002. Mr Justice O'Leary said that if the applicant 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 the court promptly and in any event not later than June 25, 2002. Mr Justice O'Leary felt that it was clear that the correct date to use as a "baseline" in a case such as this was the date of the return for trial i.e. March 25, 2002. The applicant made no application for judicial review for the 13 months from that date to his trial date. Mr Justice O'Leary said that even if one were to "start the clock" on the date at which the trial date was set, June 13, 2002, the applicant let a further ten months elapse without any effort to seek the protection of judicial review. Therefore he held that it was clear that a delay of 13 months in seeking the protection of the court was far greater than allowable under the rules and, in the absence of an explanation, would normally disqualify the applicant from relief.

Mr Justice O'Leary then considered whether in this case such an explanation has been tendered. He stated that once three months allowed under the Rules had passed the opportunity to seek judicial review was lost and the applicant was disbarred from applying based solely on the delay to return for trial date. This did not mean that the applicant was disbarred from applying at a later stage if new circumstances arose. Each new circumstance can, if the court considers them sufficiently important, give rise to a new right to apply and have an application for prohibition considered on its merits. The applicant submitted to the court that the discovery of the existence of previously unknown memoranda was of itself a new circumstance which gave rise to a new right to apply for judicial review. In addition the applicant maintained that he was unable to instruct his legal team as he had no recollection of portions of the documents. Mr Justice O'Leary said that he was satisfied that taken at their height the facts found by the court in respect of those matters fell far short of providing an explanation for the extraordinary delay in making the application for judicial review. The court was in no doubt that the reason advanced about the late delivery of the documents was trivial and the complaint re lack of recollection was unexplained in any detail by the applicant whilst his reason for lack of memory was unsupported by any medical evidence. The court was in no doubt that these "new" circumstances were not of such significance that the accused had a new and independent right to consider an application for judicial review. He reiterated, therefore, that the correct date which commenced the period laid down by Order 84, Rule 21(1) was March 25, 2002, the date of return for trial. Mr Justice O'Leary therefore decided that the application was outside the time laid down by the Rules of the Superior Court.

Notwithstanding his decision that the applicant is outside the time laid down under the Rules for the making of the application, Mr Justice O'Leary also considered the application on its merits to establish whether it was one of the very unusual cases where the interests of justice permit the court to overlook the delay of the applicant in making the application. Even in the context of the merits of the case, Mr Justice O'Leary held that the issue of the applicant's delay was relevant. Why did the applicant not seek the assistance of the court up to the period immediately before his trial? Had he any complaints of delay to that point? Mr Justice O'Leary pointed out that this was not only a theoretical question as it had real significance in legal terms. As set out in detail in the leading United States case of Barker v Wingo 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 do so can be a compelling indication of the absence of real prejudice. In this case, Mr Justice O'Leary found that no action was taken nor was a complaint made to the court alleging delay until just before the trial. In those circumstances he stated that it was not clear that the applicant was dissatisfied at the rate of progress of his case. Mr Justice O'Leary added that the right to relief may not be lost if there is tendered good reason for the delay in complaining. In this case, however, he found that no reason for delay in complaining has been tendered.

Notwithstanding the delay in applying for relief and the absence of any complaint, Mr Justice O'Leary, prior to his final assessment of this application, also considered the other merits of the application. Mr Justice O'Leary noted that the law in this matter has been set out in various ways, but that one of the clearest expositions was by Keane C.J. P.M. v Malone 2 IR 560 where he noted that the right to a reasonably expeditious trial seeks to ensure that three major consequences do not result. The first major consequence may be the loss of liberty while the trial is pending. The second is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial. The third consequence is the possibility that the ability to defend the charge would be impaired. In this latter regard Keane CJ stated that "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 the events are said to have occurred."

It was against this matrix that Mr Justice O'Leary held the present case could be assessed. On the matter of examining prosecutorial and other State delay in the process the court had been supplied with the book of evidence and it was clear that the evidence of the alleged co-conspirator, Gerard Smith, was a central part of the case against the applicant. He apparently denied any involvement until April 1998 and was not dealt with by the court until September 18, 2000. Proceedings were commenced against the applicant on October 4, 2000, and the applicant was returned for trial just short of 18 months later.

Mr Justice O'Leary found that this delay was not excessive in a case of this type. The period between March 2002 and the date of trial April 28, 2003, was necessitated by the requirement to separate the applicant's trial from the others accused of offences arising out of the same series of investigations. Mr Justice O'Leary accepted this period as reasonable on the basis of this explanation. The period between October 1995 and the date of the trial in April 2003 was regarded as substantial, but Mr. Justice O'Leary was satisfied that, while it may be considered excessive in some circumstances, in this case it was not, by reason of its length only, unfair to the accused. In this regard Mr Justice O'Leary noted the lack of any allegation of unfairness by the applicant until the eve of the date set for the trial. This, according to Mr Justice O'Leary, was a telling confirmation of the applicant's state of mind up to that point and weighed heavily in his assessment.

Notwithstanding that it appeared that the delay was neither the fault of the prosecution, nor considered unfair by the parties until the eleventh hour, Mr Justice O'Leary considered whether even if the delay was the fault of the prosecution or had been the subject of a complaint, it had in fact prejudiced the applicant's proposed trial.

The applicant makes three complaints of actual and presumptive prejudice namely, (1) his recollection of the circumstances of his detention has dimmed to such an extent as to interfere with his capacity to instruct counsel; (2) the failure to disclose the memoranda has affected the capacity of his legal team to defend him; (3) a general complaint of delay leading to presumptive prejudice. With regard to the first two complaints, Mr Justice O'Leary held that the applicant was not suffering from any medical condition which affected his capacity to recall events or instruct counsel. It is not unusual for an accused to have a less than perfect memory of his time in police custody but such a circumstance can hardly give rise to a successful application for prohibition, particularly where the facts at issue (the two interviews) were themselves referred to in the proposed evidence available to the defence. Mr Justice O'Leary also noted that the applicant made the point that the delay in his trial has caused him and his family worry anxiety and stress. Mr Justice O'Leary accepted this as likely. Mr Justice O'Leary was of the opinion that the true attitude of the applicant to the actual delay could be inferred from his failure to act until the eve of the trial. Upto the week before the trial date the applicant gave no indication that he believed there was any prejudice which would interfere with the process. Anxiety, stress and worry were the only factors identified by Mr Justice O'Leary as tending to support the application.

Mr Justice O'Leary concluded that the scale of the prejudice found by the court (limited in substance to stress anxiety and worry) over the period 1998 to 2003 was not, in this case, such as to be more important than the community's right to have the matter heard.

Having reached the conclusion on the absence of merit of the application as outlined above, Mr Justice O'Leary decided that it was self evident that these circumstances cannot found an application to vary the time limit set out in Order 84 rule 21(1). These time limits had been far exceeded in this case and accordingly, Mr Justice O'Leary refused the application.

Solicitors: John J. Quinn (Longford) for the applicant; Chief State Solicitors Office for the respondent.

Peter Shanley, barrister