A Supreme Court judge has proposed awarding €5,000 in damages to Michael O’Callaghan after concluding that systemic delays in hearing his criminal appeal breached his constitutional right to have the process conducted with due expedition.
In a judgment dated 30 September 2021, Mr Justice John MacMenamin said O’Callaghan’s appeal had been listed five times between December 2011 and March 2013 without a hearing date because judges were unavailable. O’Callaghan was in custody during the delay. The judge described the case as unusual and its constitutional threshold as narrowly crossed.
O’Callaghan was convicted in February 2011 of charges relating to a 2009 post office robbery in Cork and sentenced to 10 years’ imprisonment. In July 2013, the Court of Criminal Appeal quashed the conviction, finding that the evidence did not allow a properly directed jury to conclude beyond reasonable doubt that he had worn the balaclava connected to the robbery. It did not order a retrial.
He later brought High Court proceedings seeking damages, including for alleged infringement of his constitutional right to a timely appeal. The High Court dismissed the claim, and the Court of Appeal upheld that decision. Among the factors considered by the Court of Appeal were the timing of an application to amend the appeal grounds, the absence of a bail application, and a lack of comparator evidence.
MacMenamin said the State was responsible for the systemic delay. He concluded that the amendment and the lack of bail or priority applications did not outweigh the evidence of repeated adjournments and the shortage of judges available to hear appeals. He stressed that the claim concerned delay, not an unlawful detention: O’Callaghan’s custody was lawful, and the damages were not for a breach of his right to liberty.
The judge proposed a declaration that the delay infringed Article 38.1 of the Constitution and €5,000 in compensatory damages. He said damages should reflect the constitutional wrong and the period in which O’Callaghan was denied a timely appeal. The judgment concluded by proposing that counsel be heard on the wording of the declaration and order; it does not set out a final formal order.