A Supreme Court judgment has discussed how courts should assess whether a long delay makes a criminal trial unfair, including where the accused cannot demonstrate actual prejudice.
Mr Justice Hardiman delivered his judgment on 22 June 2005 in an appeal by T.S. against the Director of Public Prosecutions and three judicial respondents. He said he had read Mr Justice McCracken’s judgment and agreed with it and the order McCracken proposed. The supplied judgment contains Hardiman’s reasons and discussion; it does not state the terms of the order.
Hardiman explained that in an earlier case, P.L. v Her Honour Judge Buttimer, he had referred to a passage from the Supreme Court’s 1999 decision in P.C. v DPP. That passage said that, depending on the charges, delay could be so serious that a trial should not proceed even if the accused’s ability to defend themselves had not been shown to be impaired.
He described that as the “first test”. He said the other considerations were whether the delay was attributable to the accused and whether actual prejudice to the accused could be shown.
Hardiman said he would have applied the first test in P.L. because the long delay, combined with the absence of other sources of information, created a real and serious risk of prejudice. He stressed that this was not based on an arbitrary number of years. In that earlier case, he referred to the lack of reliable third-party accounts and said the issue was beyond the reach of fair litigation.
He agreed with McCracken that longer delay increases the danger of prejudice and may make a court more willing to infer it, but does not make an unfair trial inevitable in every case. He also agreed that time limits on prosecutions are primarily for the legislature to set, and that the court’s role is to uphold the accused’s constitutional right to a fair trial.
Hardiman added that, in some cases, the ultimate prejudice may be an inability to demonstrate prejudice at all. He said the first test should therefore be preserved alongside consideration of actual prejudice.