The High Court ruled that a criminal court cannot order a third party to disclose material, and that inordinate prosecutorial delay alone did not justify dismissing a charge. It left the District Court to decide whether the prosecution against Thomas O’Malley should proceed, after considering the evidence and the law on delay.
Mr Justice Gilligan delivered the judgment on 1 May 2008 in a consultative case stated from Ballinrobe District Court. The underlying summons alleged that O’Malley drove at Frenchbrook, Kilmaine, County Mayo, on 13 June 2004, with alcohol in his body and that, within three hours, his breath alcohol concentration exceeded the legal threshold. Those allegations had not been determined in the proceedings described in the judgment.
The case stated arose from a defence request for material about the Lion Intoxilyser, including its software code, to investigate whether the machine could be unreliable. The District Judge found that the prosecutor did not possess or control the code. The original was held by Lion Laboratories Limited in the United Kingdom, while the Medical Bureau of Road Safety held a contingency copy and was contractually prohibited from disclosing it to a third party. The prosecution submitted that the code was not relevant and that the machine could be tested; the High Court did not decide the machine’s reliability.
The District Judge had found that the prosecution delay since March 2006 was inordinate. The High Court held that this finding by itself did not amount to an abuse of process warranting dismissal. Applying the Supreme Court’s recent decision in McFarlane v DPP, Mr Justice Gilligan said the District Judge must consider the length and reasons for the delay, the accused’s role in it, and prejudice, including any impairment of the right to a trial in due course of law.
The High Court declined to answer the third question, which asked whether delay-related prejudice required dismissal of this and related cases. It said that issue was for the District Judge to decide after hearing evidence and applying the law on prosecutorial delay. It also said this case could not determine the outcome of other related cases. The judgment therefore did not dismiss the charge or decide whether it would ultimately proceed.