Defendants able to sue over trial delays under new law

The Government is drafting legislation which will allow criminal defendants to apply for compensation for delayed trials.

Under the European Convention on Human Rights, suspects are entitled to a fair trial within a reasonable timeframe. The convention also requires European countries to provide a domestic remedy to citizens whose right to a fair trial is breached.

Lengthy waiting times for trials have long been a problem for the Irish criminal justice system. The average wait time for a murder or rape trial last year was 14 months, up from 11 months in 2018. Wait times for trials for other serious offences were up to two years in some parts of the country.

The suspension of most court hearings during the height of the Covid-19 pandemic is likely to exacerbate the issue. Between late March and June, only one jury trial proceeded, that of Aaron Brady who was later convicted of the capital murder of Det Garda Adrian Donohoe.

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Six-month backlog

A backlog of about half a year’s worth of criminal jury trials – amounting to well over 400 cases – built up during the lockdown. The courts came back for the summer vacation a month early to help clear some of the backlog.

Under the European Convention on Human Rights (Amendment Bill) which is currently being finalised by the Department of Justice, defendants will have a right to apply for compensation at a national level if there is a finding that their trial has been unduly delayed.

The legislation is a response to the 2010 European Court of Human Rights (ECHR) judgment in the MacFarlane v Ireland case. Brendan "Bik" McFarlane was accused of the IRA kidnapping of supermarket executive Don Tidy in 1983 but, for various reasons, did not go on trial until 2008.

Amending legislation

After the trial collapsed, Mr MacFarlane took a case to the ECHR which awarded him €5,400 in damages after ruling there had been an “unreasonably long” delay in bringing him to trial.

The Government’s failure to bring in amending legislation has been raised at the Council of Europe by the Committee of Ministers. Ireland has told the committee it will have a progress update by this December.

Government officials briefed Minister for Justice Helen McEntee in June that “it is likely that Ireland will be heavily criticised if no remedy has been put in place”.