The Supreme Court dismissed Brendan McFarlane’s appeal seeking to prohibit his trial because of alleged delay, with Mr Justice Geoghegan agreeing with the judgments of Mr Justice Fennelly and Mr Justice Kearns. Geoghegan said the case did not require the court to settle the meaning or reach of “systemic delay”.
The appeal concerned a High Court decision by Mr Justice Quirke. Geoghegan said counsel for McFarlane had identified four periods said to be unnecessary and relevant to the overall delay. Quirke rejected one period outright. He attributed delay concerning discovery to both parties, and found no evidence that a 14-month wait connected with an appeal to the Supreme Court was excessive. He attributed one period to the Director of Public Prosecutions: delay lodging a certificate of readiness for that appeal.
Geoghegan also discussed the delay between the DPP serving and filing a notice of appeal on 19 August 2003 and the lodging of appeal books on 15 November 2004. The explanation was difficulty obtaining a signed and approved transcript of a High Court judgment. He said the precise cause was unknown and found it unnecessary to decide whether that lapse should count in considering whether a trial ought to be prohibited. He was satisfied prohibition was not appropriate in any event.
A separate four-month period arose when a judge was unavailable on the scheduled hearing date for the original judicial review proceeding. Quirke rejected that period. Geoghegan said a single such occurrence would normally not be anyone’s fault, but repeated failures to provide a hearing because of a shortage of judges could raise systemic-failure concerns. He concluded that issue did not arise on the facts before the court.
Geoghegan described systemic delay as a developing issue and reserved his view on its nature and relevance. He distinguished it from prosecutorial delay, which he said could be one form of systemic delay but was not the same thing. He noted that the European Court of Human Rights’ case law required all circumstances to be considered in delay cases, and said the approach to systemic delay under the Convention was not yet settled. In his view, absent a firm ruling to the contrary, the concept should be kept within tight limits and largely confined to a positively negligent system or negligent failure within available resources. He agreed the appeal should be dismissed.