CASE OF McFARLANE v. IRELAND
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award
Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Elisabet Fura;Françoise Tulkens;Ineta Ziemele;Ireneu Cabral Barreto;Josep Casadevall;Ledi Bianku;Luis López Guerra;Nicolas Bratza;Peer Lorenzen
9. The applicant was imprisoned in Northern Ireland in 1975 for his involvement in a bombing for which the Irish Republican Army (“IRA”) was held responsible. On 25 September 1983 he escaped from prison. 10. In December 1983 a high profile kidnapping in Ireland ended in a gunfight with the security forces. The kidnapped man was released but a soldier and policeman were killed. A forensic report identified fingerprints found on items at the crime scene as those of the applicant. On 7 January 1984 an internal police circular was issued stating that the applicant was wanted on serious charges connected to the kidnapping. 11. In January 1986 the applicant was arrested in the Netherlands. In December 1986 he was extradited to Northern Ireland where he resumed serving his sentence. The Irish police did not interview the applicant about the kidnapping while in prison in Northern Ireland for the reasons later outlined by the Supreme Court (see paragraph 30 below). 12. From 1993 the applicant was granted periods of temporary release during which he visited Ireland. In January 1998 he was released on parole from prison in Northern Ireland. 13. On 5 January 1998 the applicant was arrested in Ireland by the Irish police under section 30 of the Offences Against the State Act 1939, as amended (“OASA”). He was questioned and charged before the Special Criminal Court (“SCC”) with offences relating to the kidnapping: false imprisonment, unlawful possession of firearms and kidnapping (a life sentence was the maximum prison term for the first and third charge). The SCC later noted (prior to dismissing the charges in 2008) that the evidence against the applicant was an admission he had made during his police interviews that he had been at the kidnap location (which admission he had denied in evidence before the SCC) as well as the fingerprint evidence. 14. On 5 January 1998 an official of the Department of Justice, Equality and Law Reform received a printed notice of the report of the applicant's arrest and he made handwritten notes thereon (“memorandum of 5January 1998”). The applicant submitted that those notes proved that the Irish police had been aware of his presence in Ireland prior to his arrest. 15. He applied for bail and on 13 January 1998 he was released on bail, subject to certain reporting conditions. The Supreme Court later noted that he had to sign on once a month at a police station in Ireland (a 160 km round trip from his home in Belfast) and that he had also to attend on approximately 40 occasions since 1998 at the SCC in Dublin (a round trip of 320 km) during the criminal proceedings against him. 16. On 14 July 1998 the Book of Evidence (statement of the evidence on which the prosecution proposed to rely) was served on the applicant. The Government maintained that the applicant informed the SCC on that date that he might bring judicial review proceedings to prohibit his trial on grounds of delay prior to his arrest. 17. Correspondence took place between the prosecution and the applicant from July 1998 to March 1999 on disclosure by the prosecution of any other relevant evidence not in the Book of Evidence: it concerned correspondence between the Irish and other authorities as regards his whereabouts prior to his arrest in 1998 and matters relating to the fingerprint issue. The case was put in for mention on the SCC list four times between October 1998 and 18 March 1999. On the latter date the disclosure issues were resolved with further disclosure by the prosecution. 18. It was through this disclosure process that the applicant was made aware of the loss (on a date between 1993 and 1998) of the items on which the original fingerprints had allegedly been found (“the original fingerprint evidence”). The forensic report (including photographs of the original fingerprints) was retained and available. The Government submitted that the applicant was informed of this loss on 15 January 1999. 19. A trial date was fixed for 23 November 1999. 20. The applicant then took expert advice as to the implications for his trial of the loss of the original fingerprint evidence. In October 1999 the expert advised that the fingerprint evidence could not be comprehensively evaluated from the forensic report retained. 21. On 1 November 1999 the applicant was granted leave to apply for judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. The relief sought by the applicant included a declaration that the delay until 1 November 1999 (mainly concerning the pre-arrest delay) was irreparably prejudicial to a fair trial, a declaration that the loss of the original fingerprint evidence limited his ability to contest the evidence against him as well as an order prohibiting his further prosecution on these bases. The return date for this application was 29 November 1999 and the trial date was vacated. The application was re-listed once a month (from December 1999 to March 2000) and on 5 April 2000 the prosecution filed its Statement of Opposition. 22. On 15 May 2000 the applicant requested voluntary discovery from the prosecution. No substantive response having been received, on 18 July 2000 he filed a notice of motion for such discovery. While the return date for the motion was in October 2000, the parties agreed to adjourn it to the first hearing date (12 January 2001). Neither party attended on that date, due to a misunderstanding, and the motion was struck out. The applicant submitted that he then sent several letters to the prosecution to obtain its consent to re-enter the motion: the Government accepted that one such letter from the applicant (of 29 May 2001) was on the file. 23. The applicant filed a fresh motion for discovery on 2 October 2001 and a return date was accorded (16 November 2001). On the latter date the prosecution agreed to make voluntary discovery and, on 8 February 2002, the prosecution filed an affidavit of discovery listing 93 documents in its schedule. This list included the memorandum of 5 January 1998 but the applicant did not request sight of that document at that point. On 1 March 2002 the applicant's motion for discovery was therefore struck out on a consent basis. 24. On 11 March 2002 the prosecution applied to re-enter the applicant's judicial review action and a hearing date was set for 14 March 2003. 25. The applicant then filed a motion for further and better discovery returnable before the Master of the High Court on 14 May 2002. The Master refused the order sought (11 June 2002) as did the High Court on appeal (on 22 July 2002). 26. When the prohibition action came on for hearing on 14 March 2003, a judge was not available to hear the case. It was adjourned to 11 July 2003, when it was heard. 27. On 18 July 2003 the High Court delivered an ex tempore judgment. The High Court made an order prohibiting the trial of the applicant on the basis that the loss of the original fingerprint evidence meant that there was a real or serious risk of an unfair trial. The High Court rejected the applicant's claim based on the delay: the decision to prosecute was a decision of the prosecuting authorities and depended on the sufficiency of evidence; there were no grounds to suggest that any delay was deliberate; and the decision to prosecute was prompted by new evidence (the applicant's alleged admission during questioning following his arrest in 1998). 28. On 19 August 2003 the prosecution appealed and the applicant lodged a cross-appeal. On 15 November 2004 the prosecution lodged the Books of Appeal. Since the High Court judge did not formally approve his judgment until 17 January 2005, the prosecution could not file a Certificate of Readiness (that the appeal was ready to be heard) until 27 January 2005. 29. On 2 February 2006 the applicant was granted leave to have his crossappeal heard with the prosecution's appeal. On 16 February 2006 the appeal hearing took place before the Supreme Court. 30. On 7 March 2006 the Supreme Court delivered its judgment allowing the prosecution's appeal and refusing the applicant's cross-appeal. As to the lost original fingerprint evidence, there had been a forensic examination of the fingerprints before they were lost and the results of that examination were preserved so that the applicant had not been deprived of the reasonable possibility of rebutting the evidence proffered against him and he had therefore not demonstrated that there was a real risk of an unfair trial. As to the impugned pre-arrest delay, all five judges of the Supreme Court considered that that lapse of time was not such as should give rise to a prohibition order. The court considered it legitimate for the Irish police to have waited for his release from prison to arrest him under section 30 of the OASA. There was insufficient evidence to initiate a prosecution prior to his being questioned. The parameters of any questioning while he was in prison in Northern Ireland would have been entirely different from those applicable to a person arrested under section 30 of the OASA. In this latter respect, he was obliged to at least listen to the questions; the structure and duration of the questioning (subject to the proper treatment of persons in custody) would have been under their control and not under that of other (Northern Irish) authorities or that of the applicant himself; and, in the end, he made some statements during questioning which provided additional evidence and, consequently, a basis to initiate a prosecution. Kearns J partly dissented as regards the loss of the original fingerprint evidence only: in doing so he referred to the advice on the issue of the applicant's expert. 31. Following this judgment, the stay on the criminal proceedings pending the first prohibition action was lifted. On 4 April 2006 the SCC fixed the applicant's trial for 3 October 2006. 32. On 15 May 2006 the applicant was granted leave by the High Court to seek judicial review and, further, a stay on the criminal proceedings against him pending the outcome of the judicial review proceedings. He sought a declaration and a prohibition order on the basis that the delay since 1 November 1999 (namely, during his first prohibition action) had delayed the criminal proceedings which had, inter alia, violated his constitutional right to a trial with reasonable expedition and exposed him to a real and serious risk of an unfair trial. 33. On 8 November 2006 the High Court refused the prohibition application. It considered that, at best, the evidence demonstrated at most three periods of unnecessary delay by the prosecution during the first judicial review action. However, any increased stress or culpable delay and impact on his right to an expeditious trial did not outweigh the community's considerable interest in having offences of such gravity prosecuted. 34. The applicant appealed by notice dated 22 February 2007. The Supreme Court heard the appeal on 24 January 2008. On 5 March 2008 judgment was delivered dismissing the appeal unanimously. Fennelly J., Kearns J. and Geoghegan J. delivered separate judgments, with Hardiman J. and Macken J. concurring. 35. Fennelly J. noted that, while the applicant had included in his motion a request for “any further and/or other relief as this Honourable Court deems meet and just”, the only substantive relief specifically and explicitly sought by him was the prohibition of his trial on grounds of delay. Such a prohibition could only be granted if there were a real risk that his trial would be unfair, and this had been rejected in the first judicial review proceedings as regards the delay prior to the preferment of charges and was undemonstrated as regards the length of the first judicial review proceedings. 36. However, Fennelly J. noted that the courts had also recognised the possibility of making a prohibition order for the quite distinct reason that there had been a breach of an accused's right to trial with “reasonable expedition”. Noting that the judgment of Powell J. in Barker v. Wingo ((1972) 407 U.S. 514) of the Supreme Court of the United States had been influential in the development of the case-law of the Irish courts on the right to reasonable expedition and the consequences of its breach, Fennelly J. stated that “we have now established a consistent approach, particularly in some recent cases”. 37. Referring to the approach of Keane CJ in P.M. v Malone ([2002] 2 I.R. 560) and to the reiteration of that approach by Kearns J. in P.M. v DPP ([2006] 3 I.R. 172), Fennelly J. considered that it was necessary to consider, firstly, whether the period that it took to dispose of the first judicial review proceedings constituted a violation of the applicant's right to a trial with due expedition and, secondly, assuming an affirmative answer to that question, whether, having regard to all the circumstances, the Court should make an order prohibiting the Director of Public Prosecutions (“DPP”) from continuing with his prosecution. As to the first question, Fennelly J. considered that the applicant might have had a legitimate complaint in respect of the delay in approving the High Court judgment (July 2003-January 2005). However, the applicant had taken no steps to expedite the appeal, probably because of the High Court prohibition order. While this delay was significant, in the entire context of the case it did not amount to a breach of his constitutional right to an expeditious hearing of the criminal charges against him. As to the second question, and even assuming there had been a breach of his constitutional right to an expeditious hearing, the circumstances did not warrant a prohibition order: any delay of 1-2 years was not significant in the trial for offences alleged to have been committed in 1983. As to his anxiety caused by delay, he was, during that period of delay, the holder of an order of the High Court prohibiting his trial and he had carriage of those judicial review proceedings and could have taken steps to accelerate them. In addition, the public interest in pursuing serious crime was crucial and the seriousness of the relevant charges outweighed the added anxiety and length of bail conditions caused by unnecessary delay on judicial review. 38. Finally, Fennelly J. noted that the right to a trial within “a reasonable time” and to a trial “with reasonable expedition” were “indistinguishable”. However, he differentiated between this Court's finding of unreasonable delay under Article 6 (with an award of just satisfaction), on the one hand, and the balancing exercise a domestic court had to carry out between delay and the public interest in pursuing crime in a prohibition action on grounds of delay (the domestic proceedings), on the other. This Court's role (and therefore the criteria used by it) was more analogous to the decision as to whether delay violated the constitutional right to expeditious proceedings. He noted the Government's submission to this Court in Barry v. Ireland (no. 18273/04, § 35, 15 December 2005) to the effect that judicial review was an effective domestic remedy and that “damages might have been available” on judicial review. Having noted this Court's response to that argument (paragraph 53 of the Barry judgment), he continued: “74. I made a similar observation in my own judgment in [T.H. v DPP]. These observations are relevant to the interpretation of the judgments of the Court of Human Rights. That court does not engage in the balancing exercise described in the Opinion of Powell J in Barker v Wingo and in the decisions of this Court (such as P.M. v Malone and [P.M. v DPP]. That exercise is neither necessary nor relevant to the decision as to whether to award just satisfaction. Consequently, the decisions of the Court of Human Rights provide useful guidance on the question of whether there has been a breach of the right of an accused person to a trial within a reasonable time or with reasonable expedition. For example, in its judgment in the case of Barry v Ireland ..., the Court restated its consistent approach to the assessment of a reasonable time as follows (paragraph 36 of the judgment; citations omitted): '....... On the latter point, what is at stake for the applicant in the litigation has to be taken into account.' 75. A further passage from the judgment of the Court also calls for observation. It appears that the representatives of Ireland had submitted to the Court that judicial review, which was available to the applicant in that case, provided an effective remedy in domestic law and that “damages might have been available as a remedy in the judicial review proceedings, if the applicant had sought them.” The Court's response to that argument (at paragraph [53]) was: 'There is no evidence that such proceedings would have been capable of providing damages and the Government accepted that there was no domestic legal provision for an award of damages in following proceedings. Although the Government argued that the common law might be flexible enough to provide such a remedy, they did not refer to one precedent even tending to support this argument. Moreover, the judgment of the Supreme Court made it clear that Convention case-law would not cause the domestic courts to fashion any remedies that would not otherwise have been available ... .' 76. ... in [the Barry] case, as in the present case, no claim for damages had been made. Nor, so far as I am aware, has any such claim ever been made in such a case. In every such case, the accused person, in practice, seeks the remedy of prohibition of his trial. It is clearly not possible for this Court, having an appellate function only, to pronounce in the abstract on whether damages would be available as a remedy, [if they were claimed]. Any such claim would have to be made in the High Court in the first instance. The [European Convention of Human Rights Act 2003] might be relevant. 77. I would also add that the Court may have somewhat misapprehended the remarks of Keane C.J. in the passage of his judgment in [Barry v DPP], which ... [the Court] also quoted. Keane C.J. was merely saying that a particular judgment of the Court of Human Rights did not have effect in domestic law. Whether these courts would “fashion remedies” in the light of the case-law of that Court is a quite different matter and would have to await an appropriate case. Again the [European Convention of Human Rights Act 2003] may or may not be relevant.” 39. Kearns J. agreed in the main with Fennelly J.'s judgment. He explained, in addition, the various forms of delay in criminal proceedings: “This appeal raises serious issues about the effects of delay on the entitlement of the State to prosecute criminal offences. It is an issue which has given rise to much anxious consideration by this Court in recent years, particularly in the context of offences relating to the sexual abuse of children. Evaluating reasons for delay and attributing blame for delay in reporting abuse (complainant delay or pre-charge delay) came to be seen as a far from simple exercise in those cases. ... That was one form of delay. Delay can also arise from the tardiness of the police, either in investigating an alleged crime after it has been reported, or on the part of the prosecuting authorities in bringing an alleged perpetrator before the courts and in taking the necessary steps to prepare a case for trial. The jurisprudence makes clear that this form of delay, called 'prosecutorial delay', may also entitle an applicant to relief in the form of prohibition in certain circumstances. This will arise because an applicant is also entitled to a trial with reasonable expedition as part of his constitutional rights under Article 38.1. Delay may also arise when the State, by its failure to provide adequate resources or facilities for the disposal of litigation, has itself contributed to delay. 'Systemic delay' of this nature may overlap to some degree with prosecutorial delay and run hand in hand with it. There may be prosecutorial delay within systemic delay. Equally there may be no blameworthy delay by the prosecution but there may yet be delays within the system to which an applicant has in no way contributed. There may also be judicial delay where the court fails to deliver its judgment or decision within an appropriate time frame. Where systemic delay is established it may amount to an infringement of a citizen's constitutional right to a trial with reasonable expedition. Such forms of delay may also amount to an omission or failure on the part of the State to comply with its obligations under the European Convention on Human Rights, in particular Article 6 thereof ... In the present case it is claimed that there was both prosecutorial delay and delays within the system which prevented an earlier set of judicial review proceedings being disposed of within a reasonable time. There is no suggestion that there was any form of judicial delay contributing to that alleged delay.....” 40. Kearns J. assessed the criteria by which prosecutorial delay would be measured (a test which he considered reflected that of this Court) and found those principles equally applicable to systemic delay (described as “failures of the criminal justice system”). Prior to applying the test, he made a number of preliminary comments, notably to the effect that degrees of dilatoriness which may have been acceptable in the past could no longer be tolerated since the European Convention of Human Rights Act 2003 (“the 2003 Act”) gave effect in Ireland to the provisions of the Convention: both the constitutional and Convention rights to trial with reasonable expedition had to be “vindicated by being given real effect”. 41. However, that did not mean that the prohibition of a criminal trial had to be resorted to more readily and Kearns J. pointed to the difference between the role of this Court under the reasonable time requirement of Article 6 § 1 and its award of just satisfaction and that of the domestic courts in prohibition proceedings where unreasonable expedition had to be balanced against the public interest in continuing with a prosecution. Given this added element in the domestic prohibition proceedings, prohibition should only be granted exceptionally and where there was an assessed serious breach of the rights under Article 38(1) of the Constitution and of Article 6 § 1 of the Convention. In so noting, Kearns J. referred to other domestic remedies as follows: “I would accept that a distinction may require to be drawn between breaches of the right which give rise to an entitlement to obtain prohibition and lesser transgressions which may conceivably give rise to some other remedy, such as one in damages. However, any entitlement to a remedy in damages for breach of a constitutional right to an expeditious trial is a matter that will require very full and careful consideration in an appropriate case.” 42. As to whether there was blameworthy delay, Kearns J. hesitated on the same period of delay (noted by Fennelly J.) in approving the High Court judgment but he did not consider that “blameworthy” given the absence of evidence that it deviated from the norm. Accordingly, even given the passage of time since the original alleged offence and a consequent “heightened degree of urgency in advancing this prosecution”, it was not considered that the applicant had established blameworthy prosecutorial or systemic delay. Even assuming he had, Kearns J. was satisfied that there was no demonstrated prejudice to the applicant or impairment of his other rights including the constitutional right to a trial in due course of law. As regards the motion struck out on 12 January 2001, Kearns J noted that the applicant had not done anything about re-entering it for four months and that it had taken eight months to re-enter the motion. As regards discovery by the prosecution in February 2002, Kearns J noted that this affidavit listed 93 documents and was clearly the result of “considerable effort”. 43. Geoghegan J. broadly agreed with those judgments. He considered that no important issue of “systemic delay” arose in the present case and he reserved his view on its nature and relevance for a future case, though noting that the rather new concept of systemic delay was not the same thing as prosecutorial delay. He suggested that an inadequate number of judges would, if anything, be a reason to assess a longer delay as reasonable in the circumstances, although he acknowledged that that view might not accord with the Convention. The Convention's jurisprudence in Irish cases was not sufficiently clear as to the correct approach to systemic delay and, notably, as to the blameworthiness of a State for systemic delay: could, for example, a State be blamed for diverting limited economic resources to a hospital as opposed to judicial institutions? In any event, the present case was not the appropriate one to examine systemic delay as none of the impugned periods of delay warranted a prohibition order. As to the lapse of time in approving the High Court judgment, he found it unnecessary to consider whether this delay should be taken into account in considering whether a trial should be prohibited because he was “quite satisfied that prohibition would not be appropriate in this case at any rate”. 44. Following this judgment, the stay on the criminal proceedings pending the second prohibition action was lifted. On 14 March 2008 the criminal proceedings were reinstated before the SCC when the trial date was fixed for 11 June 2008. The memorandum of 5 January 1998 (paragraph 14 above) was again disclosed as additional evidence on 16 June 2008. 45. On 26 June 2008, and following a ruling by the SCC that the principal evidence in the case (the alleged admission of the applicant during police questioning) was inadmissible, the prosecution indicated that they did not propose to adduce further evidence and the charges were dismissed. 46. The applicant introduced a second application to this Court in April 2008 in which he complained under, inter alia, Articles 6 and 13 about the length of the criminal proceedings against him and about the lack of an effective domestic remedy in this regard. Referring to the general time-line of events since 1983, he mainly complained about delay during the first prohibition action. That application has not been joined to the present one. 47. Article 35(2) of the Constitution reads as follows: “All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law”. 48. Article 38(1) of the Constitution provides that: “No person shall be tried on any criminal charge save in due course of law”. 49. Article 40(3)(1) of the Constitution also provides that: “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” 50. Section 46 of the 2002 Act provides that the Courts Service shall establish and maintain a register of judgments reserved by, inter alia, the High and Supreme Courts in civil proceedings and supervise the delivery of those judgments within prescribed periods. This Act entered into force on 31 March 2005. 51. The background and terms of reference of this Working Group were outlined in its Report as follows: “In recent years there have been significant changes in Irish society. Ireland's population has grown from 3.5 million in 1991 to over 4.2 million in 2006. There has been an increase in economic activity and demographic diversity. Changes in social and public policy have occurred. International developments now have a greater impact on Irish affairs and the courts. These changes have had important implications for the Irish legal system. In particular, the High Court and Supreme Court have experienced a significant expansion in litigation. Despite the relative success of the courts in introducing procedures to deal with these developments, the current Superior Court structure was not designed to cope with developments of such a profound nature. There has been a need for some time to conduct a strategic review of the current Superior Court structure. In December 2006 the Government decided to set up a Working Group to consider the question of establishing a Court of Appeal, with the following terms of reference: '(a) to review and consider the necessity for a general Court of Appeal for the purpose of processing certain categories of appeals from the High Court. (b) to address and consider such legal changes as are necessary for the purposes of establishing a Court of Appeal, and (c) to make such other recommendations as are appropriate for the purposes of ensuring greater efficiencies in the practices and procedures of the Superior Courts.' 52. The Report recommended the establishment of a Court of Appeal in order to, inter alia, eliminate undue delay in processing appeals before the Supreme Court. The Report described the increase in High and Supreme Court litigation and the backlog this had created particularly at the Supreme Court level: “The Supreme Court has seen a significant increase in the volume and complexity of its appellate caseload. Unsurprisingly, this greater volume of cases has created a backlog of appeals in the Supreme Court. This has led to longer delays in the Supreme Court, with some cases now taking as much as 30 months to get a hearing .... A delay in determining these appeals can cause uncertainty for individuals, for businesses and for government. It can put unnecessary emotional and financial pressure on litigants. It leaves others unsure about the law, which inhibits their ability to organise and plan their affairs. In short, delays create confusion and costs and are bad for business. This situation poses serious problems for the Irish legal system and for Irish society as a whole.” 53. The Report recorded the average delays in obtaining a hearing before the Supreme Court as follows: 2003 (4 months), 2004 (10 months), 2005 (14 months), 2006 (22 months), 2007 (26 months) and 2008 (30 months). 54. Chapter 4 of the Report is entitled “Time-limits and International Obligations” and noted that Ireland had been found in breach of Article 6 of the Convention (McMullen v. Ireland, no. 42297/98, 29 July 2004; Doran v. Ireland, no. 50389/99, ECHR 2003X (extracts); O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004; and Barry v. Ireland, cited above). It noted that a common feature of those cases was that they involved litigation in which the violations of Article 6 were, in large part, attributed to delays occurring as a result of a shortage of judges, relative to the caseload of the courts. This underlined the fact that any logistical difficulties encountered by the courts might result in a breach of Ireland's obligations under the ECHR. 55. As to Ireland's efforts to comply with its Convention obligations, the Report continued: “The increase in judicial appointments to the High Court has alleviated these difficulties at that level. As this chapter has already noted, however, the fact that the two-division Supreme Court is obliged to deal with all Superior Court civil appeals means that there is a significant risk of delays of the sort impugned in McMullen, Doran, O'Reilly and Barry occurring at appellate level. ... The European Court of Human Rights has identified delays caused by the courts themselves (as a result of logistical pressures) as the key factors offending the requirements of Article 6 in each case. Violations have been found, as in [Price and Lowe v. the United Kingdom, nos. 43185/98 and 43186/98, 29 July 2003], where the courts themselves were held to have acted reasonably in respect of the relevant proceedings. The State is obliged to organise its system to avoid the risk of parties unduly delaying their proceedings. It must also therefore be required to ensure that the structure of the legal system itself does not generate undue delays. The institutional bottleneck at Supreme Court level has just such an effect on our system.” 56. In the case of Ivor Sweetman v. the DPP, the Minister for Justice, Equality and Law Reform and the Attorney General ([2005] IEHC 435), the High Court granted a prohibition order to stop a prosecution concerning events which took place in 1966. In so finding, the High Court commented: “Despite the absence of any explanation for the delays already enumerated it is clear that some part at least of this delay was caused by the overwhelming pressure on the, then, inadequate facilities of the legal system. The government had an obligation to “organise [its] legal system so as to enable the courts to comply [with the requirements of Article 6 § 1] ... ... significant improvements have been made in court waiting times through better management and facilities and the systemic delays of that period are now, thankfully, a thing of the past.” 57. On an application for leave to apply for judicial review, the High Court (and on appeal, the Supreme Court) can prohibit a prosecution on the basis of delay considered to constitute a real and serious risk of an unfair trial. This does not exclude the inherent and constitutional duty of the trial court to ensure that there was a fair trial and to stop a trial if matters arose which rendered it unfair (DPP v. O'C [2006] IESC 54). 58. A trial can also be prohibited on the basis of a breach of the right of an accused to trial with “reasonable expedition” (State (Healy) v Donoghue [1976] I.R, Gannon J.). 59. In P.M. v. Malone (cited above) Keane C.J. reviewed recent Irish cases on the subject. He found that “in determining whether the concern and anxiety caused to an accused person is 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.” He went on to identify as the essential issue being whether, assuming a breach of the constitutional right to a reasonably expeditious trial, the prohibition of the trial was justified. He answered that question as follows: “Where, as here, the violation of the right has not jeopardised the right to a fair trial, but has caused unnecessary stress and anxiety to the applicant, the court must engage in a balancing process. On one side of the scales, there is the right of the accused to be protected from stress and anxiety caused by an unnecessary and inordinate delay. On the other side, there is the public interest in the prosecution and conviction of those guilty of criminal offences. In all such cases, the court will necessarily be concerned with the nature of the offence and the extent of the delay.” 60. The Supreme Court reiterated that approach in P.M. v DPP (cited above). Kearns J, speaking for a unanimous court, cited the above judgment of Keane C.J. Having done so, he continued: “I believe that the balancing exercise referred to by Keane C.J in P.M. v. Malone is the appropriate mechanism to be adopted by a court in determining whether blameworthy prosecutorial delay should result in an order of prohibition. It means that an applicant for such relief must put something more into the balance where prosecutorial delay arises to outweigh the public interest in having serious charges proceed to trial. In most cases, pre-trial incarceration will not be an element as an applicant will probably have obtained bail pending his trial. Secondly, while he may assert increased levels of stress and anxiety arising from prosecutorial delay, any balancing exercise will have to take into account the length of such blameworthy delay, because if it is a short delay rather than one of years, the mere fact that some blameworthy delay took place should not of itself justify the prohibition of a trial.” 61. In T.H. v. DPP ([2006] 3 IR 520) the applicant had been charged in 1996 with sexual assault alleged to have occurred in 1995. He was granted leave to seek judicial review as regards a number of issues arising from the prosecution of the case. The High Court dismissed his judicial review proceedings but nevertheless granted a prohibition order on the grounds that the blameworthy delay by the prosecution in conducting the judicial review proceedings had denied the applicant his right to a criminal trial with reasonable expedition. The DPP appealed to the Supreme Court which allowed the appeal finding that, where inordinate delay did not jeopardise the applicant's right to a fair trial but had caused unnecessary stress and anxiety, the court had to engage in a balancing process between the applicant's right to be protected from such stress and anxiety and the public interest in the prosecution and conviction of those guilty of criminal offences. Fennelly J., with whom the other judges of the Supreme Court concurred, stated: “It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. Such a conclusion would, in any legal system, call for some consideration of the public interest in the prosecution of crime. We know, of course, from other parts of the case-law of the Court that it does recognise the public interest in prosecuting crime (see Kostovski v Netherlands [1989] 12 EHRR; [Doorson] v Netherlands 22 EHRR 330). Thus, the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution. In brief, the decision in Barry v Ireland adds nothing to the applicant's claim to have his trial stopped. The applicant has not, at any stage, advanced a claim for damages as part of the relief sought in these proceedings. As in almost all such cases, the principal objective has been to seek to prevent his trial from proceeding.” 62. The later case of J.B. v. DPP ([2006] IESC 66) concerned the accused's application for an order prohibiting his criminal trial (on numerous charges of sexual assaults on his nieces between 1971 and 1987) on the basis of delay in the institution and prosecution of the charges. He was only partially successful before the High Court and he unsuccessfully appealed to the Supreme Court. Having reviewed the pre-conditions for an order of prohibition and noted that there “may be other remedies”, Judge Denham noted the above-quoted reference of Fennelly J. (in T.H. v. DPP) to Barry v. Ireland and, notably, the sum of money awarded in just satisfaction. Hardiman J. also stated that: “I do not consider that the arguments advanced on behalf of the defendant and based on the jurisprudence of the European Court of Human Rights, has any relevance in the circumstances of this case. I wish, therefore, to reserve my opinion on the effect of that jurisprudence in a case of this sort until a case arises where this material is of direct relevance.” 63. In Devoy v. DPP ([2008] IESC 13) the accused alleged prosecutorial delay in pursuing firearms and criminal damage charges against him. The High Court (in 2006) granted the prohibition order and the Supreme Court (delivering its judgment in the month following the judgment of the Supreme Court in the present case) allowed the DPP's appeal. Kearns J. recalled and summarised the principles governing prosecutorial delay in Irish law (laid down in the above-cited cases of P.M. v. Malone and P.M. v. DPP) as follows: “(a) Inordinate, blameworthy or unexplained prosecutorial delay may breach an applicant's constitutional entitlement to a trial with reasonable expedition. (b) Prosecutorial delay of this nature may be of such a degree that a court will presume prejudice and uphold the right to an expeditious trial by directing prohibition. (c) Where there is a period of significant blameworthy prosecutorial delay less than that envisaged at (b), and no actual prejudice is demonstrated, the court will engage in a balancing exercise between the community's entitlement to see crimes prosecuted and the applicant's right to an expeditious trial, but will not direct prohibition unless one or more of the elements referred to in [the above cited case of P.M. v. Malone and P.M. v. DPP] are demonstrated. (d) Actual prejudice caused by delay which is such as to preclude a fair trial will always entitle an applicant to prohibition. ... When applying the test, the court must, however, keep certain considerations in mind. On the one hand, the court must remember that degrees of dilatoriness which may have been acceptable in the past may no longer be tolerated since the European Convention on Human Rights Act 2003 gave effect in this jurisdiction to the provisions of the Convention, including the right under Article 6 to a trial with reasonable expedition. This right must be given real effect. In the context of prohibition this is not to say that an Irish court must readily or too easily resort to prohibition, whatever about other remedies, when vindicating rights under Article 38.1. Under our jurisprudence, ..., prohibition is a remedy to be granted only in exceptional circumstances. The Court does not adopt a punitive or disciplinary role in this context. Further, any court called upon to prohibit a trial must give due weight to the gravity and seriousness of the offence when exercising this jurisdiction. It must analyse the causes for delay with great care, weighing up and balancing the role of both the prosecution and the applicant and their respective contributions to delay. In this context not every delay is significant and not every delay warrants the description of being blameworthy to such a degree as to trigger an enquiry by the court under P.M. v. DPP or Barker v. Wingo. In my view an applicant should ordinarily adduce and place before the court some evidence of what is the norm in terms of time taken for the particular proceedings or the identified process or processes within it which are the subject matter of complaint. This is information which is readily available from the Courts Service with regard to various forms of proceedings.” Denham J began her judgment noting that the case, raising issues of delay in prosecuting criminal offences, was one of a number of cases which had been decided in the High Court (2006) at a time when the jurisprudence was being clarified by the Supreme Court. Finding that the High Court had not applied the correct test as regards prosecutorial delay, Denham J referred to the restatement of the law in P.M. v. DPP (cited above): “This test requires that in circumstances where there was blameworthy prosecutorial delay, a further step is required to be taken by the Court, this step was not taken by the High Court. To prohibit a trial, in addition to the finding of blameworthy prosecutorial delay one or more of the interests protected by the right to an expeditious trial must be shown to have been so interfered with as to entitle the applicant to relief. The bar of the test is high because this is a very significant relief - an order prohibiting the public prosecutor from prosecuting an accused. In this case the second step required by the test was not taken. Indeed the learned trial judge stated that the applicant did not complain of any specific prejudice, and that he did not complain that his right to a fair trial had been impaired by the delay.” 64. In Kemmy v. Ireland and the Attorney General ([2009] IEHC 178) the Court of Criminal Appeal set aside the applicant's conviction for rape and sexual assault on the grounds that the manner in which his trial had been conducted rendered his trial unfair. A retrial was not ordered. However, by that date the accused had served his sentence and had been released. Not being entitled to damages under section 9 of the Criminal Procedure Act 1993 (his conviction was not quashed on the grounds of a miscarriage of justice), he took proceedings against the State claiming essentially damages for a breach of his constitutional right to a fair trial. In dismissing the application, the High Court found that the State could not be vicariously liable for errors which a judge may commit in the administration of justice nor could a plaintiff sue the State on other grounds as regards the failure by the trial judge to ensure a fair trial. In addition, the High Court opined that, in any event, the immunity conferred by law on the judiciary also applied for the benefit of the State when an attempt was made to render the State liable for the wrongs of a judge. The High Court stated: “I am of the view that many of the reasons which support personal judicial immunity – the promotion of judicial independence, the desirability of finality in litigation, the existence of an appeal and other remedies as well as the public interest – can also support the argument for State immunity in cases such as those before this Court. Indeed it is my view that not to extend the immunity to the State in the present circumstances would represent an indirect and collateral assault on judicial immunity itself. To make the State liable in such a situation would indirectly inhibit the judge in the exercise of his judicial functions and this, in turn, would undermine his independence as guaranteed by the Constitution. It would introduce an unrelated and collateral consideration into the judge's thinking which could prevent him from determining the issue in a free unfettered manner. It might, for example, encourage the other organs of government to monitor the conduct of the judges in this regard, thereby resulting in “a chilling effect”. The fundamental reason for supporting this conclusion, however, is that when the judge is exercising judicial authority he is acting in an independent manner and not only is he not a servant of the State in these circumstances, he is not even acting on behalf of the State. He is not doing the State's business. He is acting at the behest of the people and his mission is to administer justice. ... ... The plaintiff's case might be advanced to another stage by arguing that the above line of reasoning, which recognises personal immunity for judges and State immunity for the majority of wrongs committed by judges in the administration of justice, does not apply when the constitutional rights of the individual are at stake. I cannot agree. If one were to accept that line of argument one would have to acknowledge that the immunity given to judges personally would also have to yield in such situations. ... In my view, the acceptance of personal immunity for the Judiciary must logically extend to the State when sued directly for judicial error even when a fundamental right is asserted. That this immunity is not specially recognised in the Constitution, is no impediment, since the State immunity in these circumstances is a corollary of the personal immunity conferred on the judges and the State immunity can be inferred from the personal immunity long since recognised by our courts, though not explicitly acknowledged in the Constitution.” 65. This Scheme provides payment for legal representation in cases not covered by the civil or criminal legal aid schemes. It is an ex gratia scheme set up with funds made available by Parliament. Special rules apply which are contained in the Scheme itself including, the following. 66. The Scheme applies to the following forms of litigation: (a) habeas corpus applications; (b) bail motions; (c) such judicial review application as consist of or include certiorari, mandamus or prohibition and are concerned with criminal matters or matters where the liberty of the applicant is at issue; and (d) applications under section 50 of the Extradition Act 1965, extradition applications and European Arrest Warrant applications. 67. The purpose of the Scheme is to provide legal representation for persons who need it but cannot afford it. It is not an alternative to costs. Accordingly, a person wishing to obtain from the court a non-binding recommendation to the Attorney General that the Scheme be applied must make his or her application, personally or through his or her lawyer, at the commencement of the proceedings and must obtain the recommendation at the commencement of the proceedings. 68. The applicant must satisfy the court that he or she does not have the means to pay for legal representation and that the case warrants the assignment of legal representation. 69. The Legal Aid Board provides legal advice and legal aid for non-criminal matters to those who satisfy the requirements of the Civil Legal Aid Act 1995. In order to obtain legal aid, a person must have limited means and merit to their case and their case must not be one of the categories excluded by section 28(9) of the 1995 Act. None of the categories listed excludes an action for damages for breach of the constitutional right to reasonable expedition. 70. During the preparation of its “Report on the Effectiveness of National Remedies in respect of Excessive Length of Proceedings”, the Venice Commission provided a questionnaire to Contracting States. The questions as well as the responses of the Irish Government, in so far as relevant, are set out below: “4. Is any statistical data available about the extent of this problem in your country? If so, please provide it in English or French. The Courts Service is responsible for the management of courts. Average waiting times in each court for 2005 are as set out below. Provision is made to accord early hearing dates to urgent and emergency matters. The average times are as follows: Supreme Court 14 months from lodgement of a certificate of readiness to hearing date (earlier hearing dates are allocated by the court for urgent cases). ... Judicial Review (excluding asylum) 15 months (cases taking less than 2 hours will be dealt with sooner). ...” “5. Does a remedy in respect of excessive delays in the proceedings exist in your country? If so, please describe it (who can lodge the complaint, before which authority, according to what - ordinary/special – procedure, within what deadline etc.). Please provide the texts of the relevant legal bases in English or French. Criminal In the criminal context an accused can take Judicial Review proceedings seeking an order for prohibition against the prosecution on the ground of delay. This application is to be made before the High Court by an accused and must be made 'promptly' [Connolly v DPP 15th March 2003, HC, Finlay Geoghegan J.]. The Court has an inherent jurisdiction to prohibit a prosecution where there is unreasonable delay. Civil In the civil context defendants may seek an order for dismissal for want of prosecution in circumstances where there has been delay on the part of the Plaintiff. This application is made to the courts. In O'Donoghue v Legal Aid Board [21st December 2004, High Court, Kelly J.] the High Court held that the applicant in family proceedings could obtain a declaration of breach of rights under Article 40.1.3 and be awarded damages for delay in the State providing her with legal aid. This case was not appealed to the Supreme Court. Under the [2003 Act] an applicant may apply to the High Court for damages if an organ of State has not fulfilled its obligations under the Convention. Under that legislation the courts are excluded from the definition of organ of State but delay by the DPP or other State agents or agencies might give rise to this remedy. Under the [2002 Act] section 46, if judgment has not been delivered within a prescribed period the Courts Service will list the matter before the relevant judge and at that time the Judge must fix a date by which time judgment will be delivered. According to a procedure initiated in 1996 any litigant who has a complaint in relation to delay must address it formally to the President of the High Court. However, the [ECHR] in [O'Reilly and Others v. Ireland, no. 54725/00, 29 July 2004] found that this did not constitute an adequate remedy. The Courts themselves employ a system of case management and judges seized of a case will set deadlines by which time the parties are required to have submitted or served documents. Legislation, including the Statute of Limitations 1957, stipulates the period in which applicants must take proceedings, before they become 'statute barred'.” “7. Is there a cost (ex. fixed fee ) for the use of this remedy? Generally, costs follow the event of the trial i.e. they are awarded to the winning party. However, awards may be made to a particular party in relation to specific interlocutory proceedings.” “10. What are the available forms of redress: - acknowledgement of the violation YES - pecuniary compensation o material damage YES o non-material damage YES - measures to speed up the proceedings, if they are still pending YES - possible reduction of sentence in criminal cases NO - other (specify what) In criminal proceedings if Article 38.1 is held to have been breached because of delay, an order of prohibition will be granted directing that the prosecution be restrained. Similarly, in a civil action if a Defendant successfully argues that Article 40.1.3 has been violated by reason of delay the claim will be dismissed for want of prosecution. In a judgment in the High Court a Plaintiff in a civil matter complain successfully about delay and declaration of breach of rights and damages were awarded. In the case of PP v DPP [2000] 1 IR 403] it was held that, although a breach of constitutional rights in the context of criminal proceedings had not been made out, any further delay would not be tolerated and the courts should not permit it to occur. In criminal proceedings if an accused has been in custody pending trial, the period spent in custody will be set off against a sentence imposed. 11. Are these forms of redress cumulative or alternative? Generally, proceedings will be restrained where unacceptable delay has been shown to exist. A declaration of breach of rights has been accompanied by an award of damages in a civil case. 12. If pecuniary compensation is available, according to what criteria? Are these criteria the same as, or linked with, those applied by the European Court of Human Rights? Is there a maximum amount of compensation to be awarded? In O'Donoghue v Legal Aid Board damages were calculated with regard to the loss suffered by the applicant ...and stress and upset caused. 13. If measures can be taken to speed up the proceedings in question, is there a link between these measures and the general case-management of the relevant courts? Is the taking of these measures co-ordinated at a central or higher level? On the basis of what criteria and what factual information concerning the court in question (workload, number of judges, nature of cases pending, specific problems etc.) does the competent authority order such measures? No” “18. Is there any statistical data available on the use of this remedy? If so, please provide them in English/French. Not applicable. 19. What is the general assessment of this remedy? Not applicable 20. Has this remedy had an impact on the number of cases possibly pending before the European Court of Human Rights? Please provide any available statistics in this connection. Not applicable 21. Has this remedy been assessed by the European Court of Human Rights in respect of Articles 13 or 35 ECHR? If so, please provide reference to the relevant case-law. The remedy available before this development was considered by the European Court of Human Rights in the cases of [Barry v Ireland, cited above, Doran v. Ireland, no. 50389/99, ECHR 2003X (extracts); O'Reilly v. Ireland, cited above; and McMullen v. Ireland, no. 42297/98, 29 July 2004]. In each of these decisions Ireland was found to be in breach of the Convention for failure to provide an adequate remedy for delay.”