The Supreme Court declined to halt a murder prosecution, despite condemning lengthy, unexplained delays by the Director of Public Prosecutions and prejudicial newspaper coverage. In a separate judgment delivered on 7 May 2008, Mr Justice Hardiman agreed with the order proposed by Mr Justice Geoghegan, while warning that the decision should not be treated as a general rule that such delay or publicity cannot prevent a trial.
The accused was first charged after the DPP directed a prosecution in September 2003, about 18 months after receiving the case file. The case was later struck out on 18 December 2003 after the Book of Evidence was not produced within the statutory period or the extensions granted. About 16 months passed before the accused was charged again. Hardiman J said no convincing reason was given for that further delay, and rejected “systemic failures” as an explanation.
He said the cumulative delay was “unforgivable and unexplained” and that, but for an exceptional feature, he would have favoured relief on that ground. He identified that feature as a bloody hand mark on a restaurant window, which he said had been forensically linked to the accused and remained unchallenged and unexplained in the application proceedings. He considered it capable of being assessed at trial independently of the delay and publicity. The judgment did not determine guilt.
Hardiman J also said the newspaper material complained of was lurid and of a kind that stated or necessarily implied the accused’s guilt. He described such publication as incompatible with a fair trial. But he agreed that the applicant had not established a right to relief on the grounds advanced, including the alleged prejudice from delay apart from the newspaper articles. He noted that contempt proceedings concerning the publications were pending and said it was premature to conclude that no remedy short of stopping the trial would be effective.
The judgment also addressed interviews that had not been recorded by gardaí. Hardiman J said no entitlement to relief on that basis had been established in the application and that the admissibility of interview contents would be for the trial judge. He said non-recording should normally lead to exclusion of alleged admissions, but this was a general observation, not an order in the case. The court’s disposition did not prohibit the trial.