McCormack -v- DPP Ors and Farrell -v- DPP: Supreme Court,Judgment was delivered by Mr Justice Kearns on December 2nd, 2008, Mr Justice Geoghegan and Ms Justice Macken concurring
Judgment
In two cases of delay in prosecuting summary offences, there was blameworthy prosecutorial delay, especially in the execution of bench warrants. However, the delay was contributed to by the applicants, and their right to a fair trial was not prejudiced by the delay to an extent that would justify prohibiting the trial from going ahead.
Background
Two applicants had taken judicial review proceedings, seeking to prohibit their trials, both before the District Court, on the grounds of delay. They had both failed in the High Court and were appealing that decision to the Supreme Court.
Stephen McCormack had first been charged on July 28th, 2002, with two offences, one of intoxication in a public place and the other of being in possession of a lump hammer on the same date at about 3.30am. He appeared in court on July 31st and the matter was remanded until September 4th, when a date for the trial was fixed for February 10th, 2003. On this date he failed to appear and a bench warrant was issued for his arrest. In his affidavit supporting his judicial review he said he had been drinking heavily the previous day and did not remember he had to appear in court.
On February 9th, the day before the trial, he had been arrested and charged with the theft of a teddy bear in Blanchardstown shopping centre. He was due to appear in court on this charge on February 17th but failed to do so and another bench warrant was issued for his arrest. He said he had been under the influence of alcohol when given the date and forgot it.
The two gardaí involved in these separate cases called to his mother's house and were told he did not live there, but that a message would be passed on to him. According to the applicant, he attempted to make contact with one of the gardaí in April 2004, but was unsuccessful. A year later he received a letter from the Fines Office in relation to his bail, and he went to the Garda station to pay half of it, when he was told of the bench warrants. He was brought to court, but both gardaí required adjournments because the first was sick, and in the second case a witness had not turned up. The applicant then took the judicial review proceedings to prevent his trial.
In the High Court Mr Justice Feeney said that if the applicant had not absented himself from the court when the trials were listed, the cases would in all probability now be disposed of. He refused the application.
In the second case Keith Farrell was arrested in Lucan on July 26th, 2004, and charged with offences under the Road Traffic Acts. He gave as his address a house owned by his mother which was rented and where he did not live. His mother stated that two days later she visited the Garda station with the applicant and gave his correct address, but the Garda in the station said he had no record of such a visit.
Summonses against the applicant were served at the rented property, and he maintained he never received them. When the matter came before the court on March 31st, 2005, he did not appear and a bench warrant was issued for his arrest. Although he was arrested on an unrelated matter subsequently and appeared in court, the bench warrant was not executed until October 31st. He was given leave to apply for an injunction seeking to prevent his prosecution on the road traffic offences, claiming blameworthy prosecutorial delay and stress and anxiety arising out of the delay. He produced a report from a clinical psychologist outlining his feelings of depression in relation to the situation.
In the High Court Mr Justice Edwards refused the application, considering that the applicant was responsible for much of the delay because he had provided an incorrect address which prevented the summonses from reaching him in the first place. He also said that, to justify prohibiting a trial on the grounds of stress to the applicant, the effects "must exist on a level where they are impinging on a person's right to bodily integrity, in the sense of causing illness, physical or mental (or at least predisposing the person to development of such illness) or of causing significant depression."
The three issues raised in the Supreme Court were the consequences for the prosecution of failing to execute bench warrants expeditiously; whether the tests for delay in other court processes apply equally to summary prosecutions; and where the delay has caused stress, what degree of stress and anxiety justifies the prohibition of a trial.
Decision
Mr Justice Kearns said he was satisfied that various judgments emphasise the obligation on the gardaí to execute bench warrants promptly. However, the gardaí have other duties and obligations, and may encounter difficulties brought about by deceit and false information. There was no basis for applying a separate legal regime to summary prosecutions than that which arises in the case of indictable offences, he said, but delay will more rapidly become blameworthy where summary prosecutions are concerned.
Referring to stress and anxiety, while he agreed that an applicant must demonstrate something more than the predictable level of stress felt by anyone facing a trial, he did not think an applicant should have to meet the threshold of having to establish a form of psychiatric illness to make a case for stress and anxiety.
In relation to the case of Stephen McCormack, he said that the delay in executing the bench warrants until April 2005 is sufficient to trigger an inquiry. However, on examining the case, the applicant's case fell to pieces, as he had been responsible for his failure to appear in court when his cases were due to be heard, and he did nothing for 14 months to remedy his non-attendance. He upheld the decision of the High Court.
In the case of Keith Farrell, he said that the applicant was responsible for much of the delay as he provided an out-of-date address. However, he said that the gardaí did not do enough to execute the warrant. Nonetheless, the applicant did not contend that he suffered any prejudice in his ability to defend himself.
In relation to his stress, while he did not agree with the level of the bar set by Mr Justice Edwards, the psychologist's report in this case did not contain any evidence of value. He also affirmed the High Court decision in this case.
The full judgment is on www.courts.ie
Paul Anthony McDermott BL, and Siobhán Ní Chualachain, instructed by the chief prosecution solicitor, for the DPP; Mícheál P O'Higgins SC, David Staunton BL and Tony McGillicuddy BL instructed by Michael Staines and Kelleher O'Doherty Solicitors, for the plaintiffs