M.W. v Director of Public Prosecutions [2017] IEHC 83 (14 February 2017)

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RECORD NO: 2016/862 JR

DIRECTOR OF PUBLIC PROSECUTIONS

JUDGMENT of Ms Justice Ní Raifeartaigh delivered on Tuesday 14th February, 2017

1. This is a case in which the applicant is facing trial in February, 2017, in respect of four

charges of indecent assault and seeks a number of reliefs, including (1) certiorari in

respect of a decision of the Circuit Court Judge refusing him second counsel under the

legal aid scheme for the purpose of defending the trial; (2) prohibition of the trial itself;

and (3) a declaration that the trial would be in breach of his right to trial with reasonable

expedition together with damages for such breach.

2. It is necessary to set out a brief chronology of matters relevant to this application, which

came before the Court for hearing on 13th January, 2016. The trial listed for February,

2017, concerns allegations of indecent assault made by one C.W, a niece of the applicant.

The offences are alleged to have taken place during the period 1980 -1991. A complaint

was made to the Gardai by C.W. for the first time on the 13th October, 2013. This arose

in circumstances where two other complainants, J.O'R and A.L, had previously made

complaints and the applicant had been sent forward for trial in the Circuit Court in respect

of those matters in 2013. Thus, there are two relevant timelines; that in respect of the

J.O'R. and A.L. matters, and that in respect of the C.W. matter.

3. As regards the J.O'R. and A.L. cases, the indictment was severed and two separate trials

took place. The applicant was convicted and sentenced in respect of both matters in

November, 2014 and the sentence was backdated to 24th February, 2014. His release

date in respect of those sentences was May, 2016.

4. Meanwhile the investigation in respect of the C.W. matter commenced with the taking of a

statement from C.W. herself in October, 2013. Statements were taken from two

witnesses in January, 2014, and a statement was taken from another witness in March,

2014. For reasons that have not been entirely explained (although they appear to be

connected with, in the first instance, an illness on the part of the Garda in charge of the

case, and, in the second, the same Garda taking maternity leave), the accused was not

interviewed in connection with this matter until November, 2014. There appears to have

been, therefore, a period of inactivity in the Garda investigation between March and

November, 2014. The accused denied the allegations of C.W. during this interview. There

appears to have been another period of inactivity in the Garda investigation until May

2015, during which time the Garda file was transferred to a second Garda (in March,

2015). In May, 2015, further statements were taken from C.W. and from another witness,

the relevance of whom had only then come to light. The file was sent to the DPP on the

8th June, 2015, and was apparently received by the relevant officer in the Director's

office on the 25th June 2015. Ten months then elapsed before the DPP's office issued

directions to charge the applicant in respect of the C.W. case in April 2016. At this stage,

he had served most of his sentence in respect of the J.O'R. and A.L. cases and was due

for release one month later. He was returned for trial on the 15th June 2006, and for

reasons that are not relevant to the present application, the proposed trial date ultimately

became February, 2017. There is no complaint regarding the period of time between

charge and trial date; the complaint in this case is confined to the delay between the

complaint of C.W. to An Garda Siochana (October, 2013) and the charging of the

applicant (April, 2016).

5. It should also be said that the applicant was granted bail in respect of the C.W. case, but

bail was revoked on the 14th June 2006. This was essentially his own fault. He failed to

communicate with the Gardai as to his living address, this having been a condition of his

bail. He had also failed to hand in his passport as required, and failed to comply with

signing on conditions. It seems that the applicant had difficulties finding a place to live

after his release from prison, but this should not have prevented him from keeping in

touch with the Gardai as to his whereabouts. Further, a complaint was made against him

that he had made a threatening approach to the father of C.W. in respect of the

allegations and this was brought to the attention of the court on the date of the

revocation of bail. He did not appeal the bail revocation. On the 28th July, 2007, bail was

granted a second time, but he has to date been unable to take up this bail. On this

occasion, one of the conditions of bail was one independent surety of €2,000 to lodge that

sum, or two independent sureties each to lodge €1,000.

6. It may be noted that Director of Public Prosecutions did not offer evidence or argument in

respect of this issue when the matter was dealt with in this Court. It is not the practice of

the Director to become involved in legal aid applications and, in accordance with this

normal practice, her representative did not play any role in relation to this issue in the

7. The Circuit Court Judge dealt with the issue of legal aid on two separate dates.

Unfortunately, there is no transcript of either hearing and the Court is entirely reliant

upon the affidavit of the applicant's solicitor for details of what was said by the Judge on

each of those occasions.

8. The applicant’s solicitor’s affidavit provided as follows:

“I am so informed and believe Counsel on behalf of the Applicant applied to His

Honour Judge O’Donnabháin on the 24th October for a certificate for second

Counsel. I say and believe that my Counsel indicated to the Court that the

prosecution’s case consisted of three counts of alleged indecent assault upon [C.W.]

at various locations in the 1980s. I say that Counsel outlined to the Court that the

prosecution’s case included allegations of grave indecent assault constituting oral

and vaginal rape. The Applicant is alleged to have forced his penis into the mouth

of the complainant when she was about 7 or 8 years of age, and further rub his

penis between her legs, on one occasion causing a burning sensation in her vagina

by placing his penis in her vagina. Counsel submitted that the charges as alleged

were of the utmost gravity. I say that my Counsel stated that this alone warranted

a second Counsel in the circumstances. I say and believe that Judge O’Donnabháin

questioned my Counsel as to what complexity was in the case. I say that my

Counsel replied stating that the seriousness of the allegations themselves alone

merited second Counsel. I say and am so informed that Judge O’Donnabháin

refused the application stating that he did not believe there was any great

complexity in the matter.”

The affidavit goes on to state the following under the heading “Reapplication for second

counsel for the [W] trial”:

“I say that on the 7th day of November 2016 that Counsel for the Applicant herein

reapplied before the [Judge] herein for a certificate for second Counsel. I say that

Counsel informed the [Judge] that he had previously applied for a certificate for

second Counsel on the 24th October 2014 and that he was making a renewed

application arising from new grounds. I say that Counsel for the Applicant stated

that he was now applying for second counsel in circumstances where the Defence

involved matters of exceptional difficulty. I say that Counsel outlined the following

a. That disclosure had disclosed intentional prosecutorial delay in circumstances

where the Applicant had been prosecuted and convicted previously and that

the complaint which grounded the current prosecution was made in and

around the same time as the previous prosecution but despite this the

prosecution delayed in bringing new charges until the end of the applicant’s

term of imprisonment and that same was an abuse of process. In the

circumstances this had a complicating effect on sentencing in the present

b. That the State were purporting to adduce evidence in the trial which offended

against the rule against narrative.

c. There was an exceptional difficulty in that there was a delay of 26 to 32 years

bringing the prosecution after the alleged commission of the offences. There

was a consequential difficulty in cross-examination arising from same.

d. That the case involved historical sexual offences involving a minor where the

allegation involved oral and vaginal rape of a young child. There was an

obvious difficulty in cross examination arising from same.

Ruling of the learned trial judge in respect of reapplication for second counsel

I say that the [Judge] stated that the fact of a previous trial should have initially

been brought to his attention on the 24th October 2016 and that it may be a

matter for another Court. I say that the [Judge] stated that there did not appear to

him to be anything new of any complexity or severity and that there was nothing

new in the renewed application other than the fact of the previous prosecution. I

say that the [Judge] stated that he was not disposed to vary matters. I say that

Counsel for the Applicant asked the [Judge] if he was refusing his application. I say

that the Judge did not reply. I say that Counsel for the Applicant asked the [Judge]

again if he was refusing his application. I say that the [Judge] did not reply. I say

that the [Judge] did not give any coherent reasons for his refusal.”

9. The applicant's complaint is that the Circuit Court Judge solely addressed his mind to the

issue of 'complexity', and failed to consider other relevant matters, such as the difficulty

of defending a case involving allegations relating to the period 1980-1991, and the

gravity of the offence, involving as it did allegations of indecent assault at the most

serious end of the scale. Indeed, the description of some of the incidents by C.W. in her

statement in effect amount to rape contrary to section 2 of the Criminal Law (Rape) Act,

1981, as well as rape contrary s.4 of the Criminal Law (Rape)(Amendment) Act, 1990,

although the offences actually charged were indecent assaults. The applicant also argues

that the interaction between the previous cases, those involving J.O’R. and A.L., and the

present case, involving C.W., creates extra difficulties, in particular as regards sentencing,

if the applicant were to be convicted. Further, reference was made to the fact that there

would likely be legal argument as to the 'rule against narrative' by reason of the contents

of the statements of C.W. as to what she told others about the events.

10. The issue of legal aid has both a statutory and constitutional dimension. The statutory

parameters in respect of a trial on indictment are established by section 3 of the Criminal

Justice (Legal Aid) Act 1962 (as amended by section 12(2) of the Criminal Justice Act,

1999), which provides as follows:

“3.—(1) Where—

(a) a person is sent forward for trial for an indictable offence, and

(b) a certificate for free legal aid (in this Act referred to as a legal aid (trial on

indictment) certificate) is granted in respect of him by the District Court,

upon his being sent forward for trial, or by the judge of the court before

which he is to be or is being tried,

the person shall be entitled to free legal aid in the preparation and conduct of his

defence at the trial and to have a solicitor and counsel assigned to him for that

purpose in such manner as may be prescribed by regulations under section 10 of

(2) A legal aid (trial on indictment) certificate shall be granted in respect of a person

sent forward for trial for an indictable offence if (but only if)—

(a) application is made therefor,

(b) it appears to the District Court or the judge of the court before which the

person is to be or is being tried that the means of the person are insufficient

to enable him to obtain legal aid, and

(i) the person is charged with murder, or

(ii) it appears to the District Court or the judge of the court before which

the person is to be or is being tried (as the case may be) that, having

regard to all the circumstances of the case (including the nature of

such defence (if any) as may have been set up), it is essential in the

interests of justice that the person should have legal aid in the

preparation and conduct of his defence at the trial.”

This area is further, regulated by the Criminal Justice (Legal Aid) Regulations, 1965, (S.I.

No. 12/1965), (as amended by Regulation 3 of the Criminal Justice (Legal Aid)

(Amendment) Regulations, 1975 (S.I. No. 100/1975)), Regulation 7 of which provides,

“7.—(1) Upon the grant of a certificate for free legal aid, the court granting the

certificate shall, having taken into consideration the representations (if any) of the

person to whom the certificate was granted, assign to him a solicitor from the

appropriate list kept pursuant to Regulation 4 of these Regulations to act for him in

the preparation and conduct of his case.

(2) The court granting a certificate (other than a legal aid (District Court) certificate)

for free legal aid may, if the person to whom it is granted is charged with murder or

the case concerning him appears to present exceptional difficulty and is not an

appeal to the Circuit Court and the court is of opinion that his case cannot be

conducted adequately without the assistance of two counsel, direct that two counsel

be assigned to the person to act for him in the preparation and conduct of his

case.” (emphasis added)

11. The constitutional dimensions of legal aid have been discussed by the Supreme Court on

a number of occasions, most famously in State (Healy) v. Donoghue [1976] 1 I.R. 325,

where the Supreme Court recognised the right to legal aid, and the right to be told of it,

as having a constitutional basis in the right to a fair trial. More recently, in Carmody v

the Minister for Justice, Equality and Law Reform and ors [2010] 1 IR 635, the issue was

the extent of legal representation to which an accused was entitled to in circumstances

where he was facing charges in the District Court of a more complex nature than the

norm. The plaintiff (the accused) had been charged with 42 offences contrary to

regulations relating to the protection of cattle from brucellosis. He sought legal aid to

include the assignment of junior counsel, but was granted legal aid in the form of a

solicitor only, in accordance with s.2 of the 1962 Act. He sought a declaration that s.2

was inconsistent with the Constitution. On appeal, the Supreme Court did not grant the

relief sought, but made an order prohibiting the trial from proceeding until the plaintiff

was afforded the right to apply for legal aid to include solicitor and counsel. It held that

the principles of constitutional justice required that a person charged with a serious

criminal offence, including an offence before the District Court, who could not afford legal

representation, be provided with such representation by the State as was essential in the

interests of justice, although the nature and extent of such representation could be

affected by the gravity and complexity of the charge and any exceptional circumstances.

In the course of delivering judgment, Murray CJ said:

“The right is a constitutional right. Everyone has a right to be represented in a

criminal trial but justice requires something more than the mere right to be

represented when a person, who cannot afford legal representation, is facing a

serious criminal charge. Such a person has a constitutional right to be granted legal

aid by the State to enable him or her to have legal representation at the trial. The

nature and extent of that right may be affected by the gravity and complexity of

the charge. In addition, although the Act does not require it, every unrepresented

defendant must be informed of his or her right to legal aid if they cannot afford it

themselves.” (emphasis added)

Murray CJ went on to discuss the respective roles and functions of the two professional

branches of the legal profession and continued:

“[75] There are many criminal cases which come before the District Court which are

serious and complex. Solicitors are professionally well qualified to represent and

conduct defences on behalf of defendants in such cases so as to meet the

requirements of constitutional justice. But the question, as properly raised by the

plaintiff, is whether that can be said of all cases where there is a confluence of the

gravity of the charges and particular complexity or other factors.

[76] As O'Higgins C.J., also stated in The State (Healy) v. Donoghue [1976] I.R. 325, at

‘However, criminal charges vary in seriousness. There are thousands of trivial

charges prosecuted in the District Courts throughout the State every day. In

respect of all of these there must be fairness and fair procedures, but there

may be other cases in which more is required and where justice may be a

more exacting task-master. The requirements of fairness and of justice must

be considered in relation to the seriousness of the charge brought against the

person and the consequences involved for him. Where a man's liberty is at

stake, or where he faces a very severe penalty which may affect his welfare

or livelihood, justice may require more than the application of normal and fair

procedures in relation to his trial.’

[77] Then in referring to a citizen unable to defend himself adequately O'Higgins C.J.,

‘In such circumstances his plight may require, if justice is to be done, that he

should have legal assistance. In such circumstances, if he cannot provide

such assistance by reason of lack of means, does justice under the

Constitution also require that he be aided in his defence? In my view it does.’

[78] The court reiterates the view that the principles of constitutional justice require that

a person who is charged with an offence before the District Court and who does not

have the means to pay for legal representation be provided by the State with legal

representation that is necessary to enable him or her to prepare and conduct the

defence to the charge. The legal representation provided must be that which is

essential in the interests of justice having regard to the gravity of the charge, the

complexity of the case, including the applicable law, and any exceptional

circumstances.” (emphasis added)

12. In Joyce v. Brady [2011] 3 IR 376, the issue was whether the Judge, in considering the

legal aid application on behalf of an accused in a theft case, had applied his mind to the

correct test when doing so. He had inquired of the prosecuting Garda whether the

accused was 'at risk', meaning at risk of a custodial sentence. The Garda replied that he

was not and the Judge refused legal aid. The Supreme Court made it clear that the Judge

had erred in confining his inquiry to the question of whether a conviction in the District

Court would result in a possible sentence of imprisonment. In the course of delivering

judgment, O'Donnell J. said of State (Healy) v. Donoghue as follows:

“[17] The fundamental importance of that justly celebrated case is that it made it clear

that the issue of legal aid was not simply a matter of statutory construction: it was

in certain circumstances a constitutional entitlement. This was well expressed in the

recent decision of this court in Carmody v. Minister for Justice [2009] IESC 71,

[2010] 1 IR 635, at p. 652, as follows:- "… the statements of principle in the

judgments delivered in [ The State (Healy) v. Donoghue [1976] I.R. 325] have

informed and governed the manner in which the Act of 1962 is implemented and

they explain why the right to legal aid for poor persons in criminal cases resides in

the Constitution and not just in the statute". It follows that even if the Act of 1962

had not existed, the result in The State (Healy) v. Donoghue would have been the

same. The constitutional right, from which an entitlement to legal aid for

impecunious defendants was deduced is, primarily, the right to a trial in due course

of law guaranteed by Article 38 of the Constitution. That is a right to a fair trial ; it

cannot be reduced to a right not to be deprived of liberty without legal aid. There is

something fundamentally incongruous in the contention that a trial for theft would

be unfair if the accused was convicted (perhaps having pleaded guilty) and sent to

jail for even a day, but that a trial of the selfsame offence including the same facts

and issue of law would become fair if the accused were only fined or required to do

community service if convicted, even though such conviction would brand him a

[18] The emphasis placed in the District Court on a prediction of the possibility of

imprisonment was, in my view, misplaced. Even on the words of the Act of 1962,

the issue is the gravity of the charge, which imports some objective assessment,

rather than some necessarily crude speculation about a future possible sentence of

an individual offender, in respect of which there might be a number of variable

features over which the accused had no control. The statute itself refers to the

"gravity of the charge" which directs attention to the intrinsic significance of the

charge (in this case theft), rather than an assessment of the seriousness with which

a court might view the offender if convicted.” (emphasis added)

He also said that the words of the Act must be approached in light of the Constitution:

“[23] It is clear therefore that the Act of 1962 does not merely confer a statutory right to

legal aid, it is the "practical implementation … [of] … a constitutional guarantee"

and must be interpreted accordingly. As O'Higgins C.J. observed at p. 352 of the

judgment, the provisions of the Act do not match exactly what the Constitution

requires. The words of the Act must always be approached therefore in light of the

Constitution. A restrictive approach to the language of the Act is therefore likely to

mislead. When the Act speaks of the "gravity of the charge" and "exceptional

circumstances" the words must be interpreted and applied to ensure that the

constitutional objective of a fair trial - a trial in due course of law - is achieved. If

the trial of a person in the District Court on a given charge, without legal aid, would

be unfair, then the charge is of sufficient gravity or the circumstances are

sufficiently exceptional so as to require legal aid. There is no doubt that the real

risk of imprisonment is one compelling indicator that a trial without legal aid would

be unfair, but the perceived absence of such a risk is not the sole or decisive test

justifying a refusal of legal aid. Furthermore, the refusal of legal aid following an

inquiry by one District Justice of one member of the gardaí as to whether that

member perceived the accused to be "at risk" (particularly when the trial may

proceed before another District Judge and be prosecuted by another garda) falls in

my view short of what the Constitution requires. In this regard it should be noted

that the decision in The State (Healy) v Donoghue [1976] I.R. 325 has stood the

test of time, and was an important foundation for the recent decision of this Court

in Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 IR 635. Both cases

not only explain that the right to legal aid resides in the Constitution, but also give

valuable guidance as to how that right should be applied in practice.” (emphasis

13. In the present case, the issue is not whether the accused was entitled to legal aid at all,

which was the issue in State (Healy) v. Donoghue, or whether he was entitled to counsel

in addition to a solicitor, as in Carmody, but rather whether he is entitled to a second

counsel in a trial on indictment, or more accurately, whether the Judge applied his mind

to the correct test in considering this issue. Section 3 of the 1962 Act does not set out

any test in this regard, saying merely that in the case of a person sent forward for trial for

an indictable offence (assuming he satisfies the financial criteria for entitlement to legal

aid), he is entitled to have a solicitor and counsel assigned to him "in such manner as

may be prescribed by regulations under section 10 of this Act". The relevant legal aid

regulation made under section 10 of the Act, is Regulation 7(2) of the Criminal Justice

(Legal Aid) Regulations, 1965 (S.I. No. 12/1965), (as amended by Regulation 3 of the

Criminal Justice (Legal Aid) (Amendment) Regulations, 1975 (S.I. No. 100/1975)), and

provides that the court may,

"if the person to whom it is granted is charged with murder or the case concerning

him appears to present exceptional difficulty....and the court is of opinion that his

case cannot be conducted adequately without the assistance of two counsel, direct

that two counsel be assigned to the person to act for him in the preparation and

conduct of his case".

14. It has been argued on behalf of the applicant in this Court that the word 'difficulty' in the

regulation has a meaning other than the term 'complexity', which was the test applied by

the Judge. It was argued that, for example, the cross-examination of a complainant in a

serious sexual offence case of considerable antiquity might be extremely “difficult”,

without it necessarily being “complex”. It was argued that the Circuit Court Judge

confined himself to the question of complexity to the exclusion of other relevant factors in

the case, such as the gravity and antiquity of the charges, and the complications arising

from the fact that there was a delay in the investigation in the C.W. case which would

interact (at least in terms of potential sentence) with the previous cases arising out of

J.O’R and A.L.’s complaints. Further, it was argued that he failed to have any regard to

the evidential complexities raised by the 'rule against narrative' issues in the case, which

had been drawn to his attention but did not feature at all in his ruling on legal aid.

15. I am not completely convinced that there is a substantial difference between the terms

'difficulty' and 'complexity' in this context, but I have carefully considered the remarks of

the Judge in the round, and I am persuaded that he may have taken an overly restrictive

view to the question of legal aid in this case by focussing on the term ‘complexity’ to the

exclusion of other matters. I note in this regard that his rejection of the application

appears to have been done in rather summary terms, and that there is no appeal from a

decision on legal aid.

16. In the first instance, there is no doubt that the issue of the gravity of the offence features

in all of the judgments of the Supreme Court discussed above as a matter centrally

relevant to the question of whether legal aid should be granted and what level of legal aid

is required. The present case is a case of indecent assault, but involves allegations

amounting effectively to allegations of rape under section 4 of the Criminal Law (Rape)

(Amendment) Act, 1990 and section 2 of the Criminal Law (Rape) Act, 1981. It is the

invariable practice of the courts to award second counsel in the case of rape allegations.

The maximum sentence in respect of these particular indecent assaults alleged by C.W.

is, the Court was informed, one of ten years, and it would have to be borne in mind that

the applicant, if convicted, would be facing a sentence in circumstances where he had

previously been convicted of sex offences in respect of J.O'R. and A.L. It seems to me

inescapable that the issue of the gravity of the alleged offences should be to the forefront

of any consideration of legal aid, be it the question of whether or not an accused should

be granted one counsel in the District Court or second counsel in a trial on indictment.

17. Secondly, the antiquity of the offences must be a factor relevant to the difficulty of

conducting the defence. The cross-examination of a complainant in a case involving a

sexual offence is always a difficult and delicate task for counsel, but it requires particular

skill when the events are alleged to have taken place decades before, at a time when the

adult now being cross-examined was a child. In the present case, the commencement

date of the period during which the offences are alleged to have taken place was January

1980, some 36 years before the date of charge. The end date of the period was January

1991, some 26 years before the date of charge.

18. Thirdly, it seems to me that evidential complexities in the case are a matter which should

be put into the balance. Here, the defence argued that the rule against narrative

introduced an element of evidential complexity into the case. The Judge does not appear

to have considered that matter at all. That is not to say that the Judge ought necessarily

to have reached the conclusion that the evidential issues were in fact complex in this

particular case, but he should at least have considered the matter as part of the decision-

19. Further, the case did have an extra layer of complication by reason of the fact that there

had been a delayed complaint by C.W., resulting in the applicant being charged one

month before his release date in respect of the J.O'R. and A.L. offences.

20. It is perhaps a straw in the wind in the overall context, but I also note that in the 'delay'

part of the case, discussed below, one of the arguments put forward on behalf of the

Director of Public Prosecutions was that the reason for the lapse of 10 months between

the submission of the Garda file to the Office and the issuing of directions to charge was:

“As this was a historical case where there had been a number of complainants with

different levels of offences alleged over a lengthy time period at a number of locations it

required extensive consideration and communications between the directing officer and

the state solicitor”, implying a degree of complexity in the case.

21. While I am reluctant to interfere with any decision made by a Circuit Court Judge

exercising discretion, it does seem to me, on balance, that he confined himself rather too

much to the issue of ‘complexity’ when reaching his decision, and did not sufficiently take

into account either the wording of Rule 7 of the Criminal Justice (Legal Aid) Regulations,

1965, (S.I. No. 12/1965) (as amended), or the general principles outlined in the Supreme

Court decisions referred to, which should inform a decision on legal aid. The ultimate

question to be posed is whether, in the absence of the level of legal representation

sought, there is a real risk of an unfair trial, having regard to all the relevant factors.

What factors are relevant may vary from case to case, and may include matters such as

the personal characteristics, age or circumstances of an accused person, but in the

present case the factors which warranted consideration certainly included the nature and

gravity of the charges, the fact that there was a period of up to 36 years between the

events alleged to have taken place and the forthcoming trial, the interaction between this

set of allegations and those in respect of which the accused had already been sentenced,

and any evidential complexities relied upon by the defence.

22. Accordingly, I will grant the relief of certiorari in respect of the decision of the Judge in

respect of the legal aid matter and remit this issue for a further consideration of whether

a second counsel is warranted on the facts of the present case, having regard to all the

relevant factors referred to.

23. The applicant seeks an order for prohibition of his trial, together with declaratory relief

and damages, for what he says is an inordinate and culpable delay on the part of the

prosecution in respect of the C.W. case. When these judicial review proceeding were

commenced, the pleadings asserted that the State authorities had intentionally delayed

the charging of the accused and that this constituted an abuse of process, but at the

hearing of the case it was indicated to the Court that this claim was not being pursued

and that the case was instead being presented on the narrower and more usual basis of

inordinate and culpable delay on the part of the prosecution.

24. As was set out in the chronology above, the period of time between C.W.'s complaint to

the Gardai (13th October, 2013) to the date of charge (21 April, 2016) was one of two

and a half years. This was in a context where the events the subject matter of her

complaint are alleged to have taken place during the period January, 1980, to January,

1991. The applicant argues that, against this background of complainant delay, it

behoved the State authorities to deal with the case in an expeditious fashion once her

complaint was made, particularly when there were ongoing cases (those of J.O’R. and

A.L.) arising out of the same period. I also note that the case was a relatively small

investigation, involving, in essence, the taking of statements from the complainant and a

small number of prosecution witnesses, and the interviewing of the accused on one

occasion. As noted above, there appear to have been periods of inactivity in the Garda

investigation (a) between March and November, 2014; (b) between November, 2014 and

May, 2015; and I also note (c) that the file was in the DPP's office for 10 months before

directions to charge were issued.

25. It is not necessary for present purposes to examine in detail the numerous authorities on

the issue of delay in cases involving sexual offences cited to me, including P.O'C v. DPP

[2000] 3 I.R. 87, J.M. v. DPP [2004] IESC 47, D.C. v. DPP [2005] 4 IR 281, P.M. v. DPP

[2006] 3 IR 172, S.H. v. DPP [2006] 3 IR 575, P.O'C [2006] 3 IR 238, Devoy v. DPP

[2008] 4 IR 235 , J.D. v. DPP [2009] IEHC 48, Cormack v. DPP [2009] 2 IR 208,

Kennedy v. DPP [2012] IESC 34, S.Ó 'C v. DPP [2014] IEHC 65, and M.S. v. DPP

[2015] IECA 309. The relevant principles are well-established, as set out by Kearns J in PM v.

DPP [2006] 3 IR 172. In a case of alleged prosecutorial delay, it is necessary for the

Court to take into account the length of the delay, the reason for the delay, the manner in

which the defendant asserted (or failed to assert) his right to trial with reasonable

expedition, and any prejudice caused to the defendant by reason of the delay. With

regard to the latter point, the Court must take into account the situation regarding pre-

trial incarceration; the anxiety and concern caused to the defendant and in particular

whether this goes over and above the levels one would normally associated with facing

into criminal proceedings of this nature; and whether there is any possibility that the

defence of the proceedings will be impaired. It was made clear in P.M. v. DPP, that if

there is a real and serious risk of an unfair trial by reason of lost evidence, prohibition

should be granted; but that if there is no such risk, the Court must engage in a balancing

exercise in order to ascertain whether the other interests of the defendant have been so

interfered with that it would be wrong to permit the trial to proceed.

26. In the present case, even if one were to assume that there was culpable delay on the part

of the prosecution, it does not appear to me to be a case which would warrant prohibition

in any event. In the first instance, it was not sought to be argued on behalf of the

applicant that there was any real risk of an unfair trial by reason of evidence having been

lost during the period of alleged prosecutorial delay. The applicant has referred to the

death of his twin brother in May 2015, which is a sad loss for him and in particular creates

a significant loss of personal support for him in respect of the trial. However, it was not

suggested that this death had led to the loss of any evidence. Secondly, as regards the

issue of pre-trial incarceration, the applicant was in fact granted bail and only lost it by

reason of his own conduct, and indeed, has again been granted bail which he is at liberty

to take up if he can satisfy the conditions. I note also that he did not appeal the

revocation of bail. Thirdly, the Court has heard of a number of medical conditions from

which the applicant suffers and also of the shock he experienced on being charged in

respect of the C.W. case one month before his release from prison. These were described

in the Supplemental Affidavit of the solicitor for the applicant, sworn on the 11th January,

2017, which provides as follows:

“3. I say and believe that the Applicant herein suffers from Chronic Obstructive Airways

(Pulmonary) Disease (COPD), Osteoarthritis, Gout, Umbilical Hernia (surgically

repaired in October 2016) and depression. I say that the Applicant is in poor health

and is on multiple medications including Cipramil (anti-depressants), Nexium and

4. I say and am instructed that the Applicant has and continues to suffer from reactive

depression in relation to previous and pending prosecutions.”

The Affidavit sworn by the applicant himself on the 19th December, 2016, states,

“3. I saw that I am currently on medication for depression and that in October 2016 I

underwent a hernia. I say that I generally do not enjoy good health and that my

health has deteriorated while I have been in custody over the past few years. I say

that I am also awaiting treatment for sleep apnea which has also become a serious

4. I say that my twin brother died on or about the 3rd May, 2015, while I was serving

a sentence for the [J.O’R. and A.L.] proceedings. I say that this upset me greatly. I

say that my brother supported me during the previous two trials and that I gave

him copies of the book of evidence. I say that I feel more isolated now that my

brother is dead, as he was the main family member with whom I still had good

relations and his loss has made the prospect of the [C.W.] trial even more stressful.

5. When I heard that I was being prosecuted for a third time, I felt as if I was going to

snap and that the news came as a terrible shock. I had thought the criminal

proceedings I was facing had come to an end, only for them to start all over again,

shortly before my release.”

I note that the medical report was dated the 9th October 2014, some twenty-six months

before the hearing of the case in this Court. Also, the applicant describes his shock on

being charged in April, 2016, but it must be said that, as he was interviewed in

connection with the CW allegations in November, 2014, he was on notice of them from

that date. While I accept that the applicant undoubtedly suffers from various physical

illnesses as well as stress, anxiety and depression arising out of the various charges he

has been facing, including the present set of charges, they do not amount, in my view, to

allegations of stress and anxiety the severity which would warrant the trial being

27. For completeness, I should say that the issue of his assertion of right to trial with

reasonable expedition does not arise in the case; the delay complained of relates to the

period between complaint and charge, over which he himself had no control.

28. Finally, even if there had been some culpable delay on the part of the State authorities in

the period of two and a half years between complaint and charge, this is not at the most

serious end of the scale of investigative delay that has arisen in cases of this nature.

29. In all of the circumstances, it would not seem to me to be appropriate to prohibit the trial

from going ahead. It must be borne in mind, in this regard, that inbuilt protections

against potential unfairness exist in the manner in which trial judges conduct proceedings

before them and give directions to the jury. The remedy of prohibition on the basis of

unfairness is only appropriate where such unfairness, established to the requisite level,

cannot be avoided by the rulings and directions of a trial judge. I therefore refuse the

relief of prohibition.

30. By reason of the imminence of the trial at the time of the present application, the Court

was invited to confine itself to the issues of legal aid and prohibition, and to hold over any

ruling on whether the plaintiff was entitled to declaratory relief or damages for breach of

his right to trial with reasonable expedition. For the avoidance of doubt, I wish to say

that while there were certainly periods of inactivity during the Garda investigation, and

also what seems like a rather long period of consideration of the Garda file by the DPP's

office, I do not at this point propose to rule on whether there was inordinate or culpable

delay on the part of the State authorities which would warrant any form of relief other

than prohibition and will leave that matter for argument on another day.

The Plaintiff subsequently informed the Court that it was not intended to pursue the

claims for declaratory relief or damages.

Result: The relief of certiorari was granted and the issue of whether a second counsel is warranted was remitted back for determination. An order for prohibition of trial was refused

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> M.W. v Director of Public Prosecutions [2017] IEHC 83 (14 February 2017) URL: http://www.bailii.org/ie/cases/IEHC/2017/2017_IEHC_83.html Cite as: [2017] IEHC 83

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