The Supreme Court has dismissed Mark Nash’s appeal seeking damages for delay in the criminal process, finding that he had not established culpable delay by the State or those for whom it was responsible. The Court also dismissed the Director of Public Prosecutions’ cross-appeal against an order awarding Mr Nash part of his costs in the High Court.
The judgment, delivered by Mr Justice Clarke on 24 October 2016, concerns the damages and costs issues left over after the Court had earlier rejected Mr Nash’s appeal against the refusal to prohibit his trial. He was later convicted of murder and had appealed that conviction and the specification of his mandatory life sentence to the Court of Appeal. The Supreme Court said it would avoid commenting on matters that could affect that appeal.
The Court said damages may be available in principle for breach of the right to a timely trial under either the European Convention on Human Rights Act 2003 or the Constitution. But it said culpable delay by the State is a necessary, though not sufficient, condition for an award. It left the precise boundaries of such claims for a case with an appropriate factual basis.
Mr Nash’s case arose from the Grangegorman murders. The judgment records that a decision to charge him was made in July 1998, but the prosecution was not advanced before Dean Lyons, who had separately confessed to the murders, died in September 2000. The DPP considered the available evidence insufficient to justify prosecution while Mr Lyons was alive and, after his death, considered a prosecution unlikely to succeed without further evidence.
The judgment says later advances in forensic science enabled analysis of small samples found during a further examination of Mr Nash’s jacket. Testing produced DNA profiles matching the two murdered women. The DPP then considered there was sufficient evidence to prosecute. The Court concluded that the case had been periodically reviewed and that the additional samples were not previously known to be present. It found no culpable delay, including in the possibility that the samples might have been found and tested earlier.
Mr Nash also sought to introduce evidence about contamination and disclosure issues raised at his criminal trial. The Supreme Court refused to treat those matters as relevant to the delay appeal, noting that the issues at trial concerned possible contamination at an early stage, rather than contamination allegedly caused by the passage of time. Their relevance to his criminal appeal was for the Court of Appeal to decide.
The High Court had awarded Mr Nash one third of his costs. Although the Supreme Court said his claims had failed, it held that the trial judge’s order fell within the range of decisions open to the judge and dismissed the DPP’s cross-appeal.