SUPREME COURT - Title:Devoy -v- DPP: Judgments were given by Mrs Justice Denham and Mr Justice Kearns on April 7th, 2008, Ms Justice Macken concurring.
JUDGMENT
The applicant could not point to any element of actual prejudice affecting his conduct of the defence, or produced evidence to show increased evidence or anxiety. He had also made admissions in relation to the offence which had not, to date, been challenged. Balancing the public interest in seeing crimes prosecuted, the interests of justice lie in allowing the trial to proceed.
BACKGROUND
The case came to the Supreme Court as an appeal from the DPP of a High Court decision to prohibit the trial of John Devoy on charges arising out of the firing of a gun into the window of an occupied house on the grounds of prosecutorial delay. Mr Devoy was arrested on October 18th 2001 and charged the following day with possession of a firearm and ammunition, discharging a firearm and criminal damage.
In a written statement after his arrest he made a full confession, although he also stated later he was pleading not guilty. He appeared in the District Court on October 20th, and was remanded.
He was remanded several times, and on September 17th, 2002 the charges were struck out because the Book of Evidence had not been served. The proceedings were re-entered on June 12th, 2003 and he was sent forward for trial to the Circuit Criminal Court. However, before the trial began, due for March 2004, the court was informed that the order returning him for trial in the District Court was defective, and so the trial date was vacated. In subsequent hearings, this order was vacated, and new order was issued in the District Court, and on June 13th, 2005 the trial date fixed for February 6th, 2006, four years and four months after his arrest.
On July 5th, 2005 he obtained leave in the High Court to seek an Order of Prohibition restraining the DPP from taking any further steps in the prosecution, on the grounds that there had been "inexcusable, unwarranted and unconscionable delay". He did not claim he had suffered prejudice as a result. The case was heard by Mr Justice O'Donovan in the High Court, who gave judgment in his favour on March 21st, 2006, stating "the authorities are not entitled to play 'ducks and drakes' with an accused person and that, to my mind, is what has happened in this case".
The DPP appealed this decision to the Supreme Court on 14 grounds, where Michael O'Higgins SC, for the DPP, argued that no specific prejudice had been suffered by the applicant, and the court had not put into the balance any other factor it might consider when considering if there had been blameworthy delay.
He referred to the Supreme Court decision in PM -v- DPP on this issue. He said the court was entitled to take into account that the accused had signed a written statement after caution, admitting the offences, and that there was a strong public and community interest in seeing crimes prosecuted.
DECISION
After examining the delays involved, Mr Justice Kearns said: "This court is satisfied that such delay must be seen as significant and blameworthy to such a degree as to warrant the application of the balancing test by reference to the legal principles identified by this court in PM -v- Malone and PM -v- DPP ."
He considered the seriousness of the offence, whether the delay was due to "gross carelessness" on the part of the prosecuting authorities and the length of the delay in the light of other Irish and US authorities and of the jurisprudence of the European Court of Human Rights.
He pointed out that under our jurisprudence "prohibition is a remedy to be granted only in exceptional circumstances".
Mrs Justice Denham pointed out that this case came before the High Court at a time of transition in the jurisprudence, when the law on delay was being clarified by the Supreme Court. The High Court did not apply the correct test, which was restated in PM -v- DPP . This test required that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the court in order to prohibit a trial. This was to show that one or more of the interests protected by the right to an expeditious trial was so interfered with as to entitle the applicant to relief. This second step was not taken in the High Court.
"Blameworthy delay by the prosecution, while it should be regretted and is not best practice, does not per se give rise to an order prohibiting a trial," she said.
In this case, the applicant was charged with serious offences, there are apparent admissions, the applicant took no steps to seek an expeditious trial before the judicial review proceedings, and there was no evidence of stress and anxiety such as to require the prohibition of a trial. There was no real or serious risk of an unfair trial, so the applicant would not be proportionate to prohibit the trial.
The decision of the High Court should therefore be reversed and the trial proceed.
The full text of this judgment is on www.courts.ie
Roger Sweetman SC and Garret Baker BL, instructed by Noel Smyth & Partners, for the applicant; Michael P O'Higgns BL, instructed by the Chief Prosecution solicitor, for the DPP