The Supreme Court dismissed the Director of Public Prosecutions’ appeal against a High Court decision prohibiting further proceedings against an anonymised applicant, identified in the judgment only as PM. The judgment does not set out the underlying allegations or the High Court’s full reasoning, so the precise basis for the order cannot be established from this source alone.
Geoghegan J., delivering judgment on 5 April 2006, agreed with Kearns J. that the appeal should be dismissed. He endorsed the approach in P.M. v. Malone, which recognises the effects of prosecutorial delay, including loss of liberty while awaiting trial, anxiety and concern, and possible impairment of the defence.
The judgment distinguishes delay before a person is charged from delay after charge. For pre-charge delay relied on to stop a trial, Geoghegan J. said the issue is the risk of an unfair trial. For post-charge delay, the constitutional right to an expeditious trial also applies. Where fair-trial rights are at issue, courts will normally require evidence of probable actual prejudice to the defence. But in a case involving serious blameworthy prosecutorial delay and the right to an expeditious trial, actual prejudice need not always be proved for an injunction to be granted.
Anxiety caused by delay can be relevant to the balancing exercise, Geoghegan J. said, even though anxiety does not necessarily amount to prejudice to the defence. He noted that the nature of the offence and the extent of the delay must also be considered, and that sex-offence cases may call for particular consideration.
Geoghegan J. clarified his earlier High Court judgment in PP v. The DPP, saying blameworthy delay does not automatically entitle an applicant to an injunction. It is a factor the court must weigh alongside the offence and other circumstances. He said there was no real conflict between that case and BF v. The Director of Public Prosecutions or P.M. v. Malone.
The operative result in this appeal was dismissal of the DPP’s appeal, leaving the High Court prohibition in place. The judgment’s concluding summary was that serious blameworthy prosecutorial delay must be included in the balancing exercise.