David McKenna (applicant) v The Presiding Judge of the District Court and the Director of Public Prosecutions (respondents).

Constitutional Law - Criminal law - Prohibition - Prejudice - Rights of the applicant to an expeditious trial - Delay in prosecuting offences - Whether delay involved was inordinate and inexcusable - Whether applicant entitled to have prosecution of the alleged offences prohibited - Forgery Act 1913 - Larceny Act 1916 - Larceny Act 1990 - Bunreacht na hEireann, articles 38.1, 40, 41.

The High Court (before Mr Justice Kelly); judgment delivered 14 January 2000. There was an onus upon the state authorities to prosecute criminal offences as soon as practicable. Delays in prosecuting offences could result in infringement of the applicant's constitutional rights. But an accused person's right to an expeditious trial must be balanced against the community's right to have offences prosecuted.

The High Court so held in finding that, although some of the delays involved in the case were inexcusable, the overall prejudice resulting to the applicant was not so excessive as to entitle him to a declaration prohibiting the impending prosecution. Mr Justice Kelly therefore declined to grant the relief sought.

Rory MacCabe SC and Cormac O Dulachain BL for the applicant; Feichin McDonagh SC and Anthony Collins BL for the respondents.

Mr Justice Kelly outlined the facts of the case. The applicant had allegedly committed offences under the Forgery Act 1916 and under the Larceny Acts 1916 and 1990. These offences were alleged to have occurred in the years 1991 and 1992. An official complaint concerning the alleged activities had been made to the Garda in late December 1992. An investigation got under way and the applicant was arrested in 1994 for questioning. Later that same year the file concerning the case was submitted to the office of the Director of Public Prosecutions ("DPP") for directions.

Queries were then raised in respect of the file by the DPP's office in 1995. Reminders had also to be sent in respect of these queries. In February of 1996 a consultation was held in the DPP's office as a result of which the Garda were asked to obtain further information. In July of that same year the DPP briefed a senior counsel in respect of the case. A further delay resulted as the senior counsel in question was then appointed as a Circuit Court judge and another senior counsel was then briefed.

Nothing further seems to have occurred until the middle of 1997. At this point junior counsel was briefed and draft charges were submitted. Further queries were raised and it was not until May of 1998 that directions were issued by the DPP's office that a prosecution should take place. A month later the applicant was arrested and brought before the Dublin District Court.

The applicant then sought leave to bring the present proceedings and to have the impending prosecution prohibited principally on the grounds of delay.

Mr Justice Kelly outlined the principal delays that had occurred in the case and the arguments made in respect of them. Counsel on behalf of the applicant first drew attention to the delay that had occurred between the initial making of the complaint to the Garda and the initial arrest of the applicant, a delay of some 14 months. Counsel claimed, relying on the judgment of Mr Justice Geoghegan in P.P. v The Director of Public Prosecutions (5 October 1999, unreported), that the delay involved was excessive. The judge rejected this comparison as unlike the situation that had prevailed in P.P. v The Director of Public Prosecutions the charges in the present case were quite complex and various inquiries had been made.

Counsel for the applicant then highlighted the delay which had occurred from the applicant's initial arrest to his subsequent arrest some four years later. These delays had occurred during the preparation of the file in the DPP's office. Overall Mr Justice Kelly held that some of the delays that had arisen had been explained and could be attributed to the complexity of the case. This was particularly so in cases involving fraud. However in other instances the delays involved were excessive, inordinate and had not been satisfactorily explained. Mr Justice Kelly found that the period of five and a half years between the making of the first complaint and the direction to prefer charges could not be justified. Such a delay was inordinate and inexcusable.

Mr Justice Kelly then considered the legal implications in making such a finding. In this regard the judge laid emphasis on the dicta of Mrs Justice Denham in Director of Public Prosecutions v Byrne [1994] 2 IR 236. In this regard the judge held that it was of paramount importance to assess a number of factors. Mr Justice Kelly had already found that the delay involved in investigation the matter had been inordinate and inexcusable. The judge then turned to consider the actual prejudice that had been caused to the applicant by reason of the delay. The judge was of the view that no real anxiety or concern had been caused to the applicant during the lengthy period in question. This was particularly so in view of the fact that the applicant had himself averred that he was "firmly of the view that no prosecution was being proceeded with".

In regard to the issue of whether the delay involved had caused an impairment to the conduct of the defence of the accused the judge was of the view that no such impairment had been established. The primary evidence of the case would in fact rest upon documents and would not be reliant upon the recollection of witnesses, which undoubtedly dimmed with the passage of time. In addition Mr Justice Kelly looked at the factor outlined by Mrs Justice Denham in Director of Public Prosecutions v B [1997] 3 IR 140, namely that the accused's right to an expeditious trial must be balanced against the community's right to have offences prosecuted.

Mr Justice Kelly therefore held that, in spite of the regrettable inordinate and inexcusable delay which had occurred, the accused had not established a real risk that he would not receive a fair trial and therefore the application to have the impending prosecution prohibited must be dismissed.

Solicitors: Garrett Sheehan & Company (Dublin) for the applicant; Chief State Solicitor for the respondents.