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1. The issue that I have to try is comparatively clear-cut, however, in order to identify the issue it is necessary for me to shortly state the facts that have arisen in this case.

2. The Applicant is a businessman and has been involved over a number of years in the importation and distribution of veterinary pharmaceutical products. On the 27th March, 1992 Gardai and other officials in possession of a search warrant searched the Applicant's home and four days later on the 31st March, 1992 Gardai and other persons in possession of a search warrant searched his offices at No. 31 Lower Baggot Street, Dublin 4. A dispute arises as to what statements, if any, may have been made by the Applicant after these searches. However, over a period of approximately a month he remained in communication with the Garda Superintendent in charge of the case. Thereafter he heard nothing further about the matter until the 25th February, 1994 when five summonses were served upon the Applicant (hereinafter referred to as the 1994 summonses). These alleged possession of prohibited substances namely a veterinary medicine containing clenbuterol contrary to regulations made pursuant to Section 3 of the European Communities Act, 1972. This substance is otherwise known as "Angel Dust".

3. On the 14th March, 1994 the Applicant applied for leave to apply by way of Judicial Review for an order prohibiting the first and fourth named Respondents from proceeding with the prosecution of the summonses on six grounds. The sixth ground was that the first named Respondent had been guilty of unreasonable and unconscionable delay in the service of the proceedings.

4. By order of the 14th March, 1994 Geoghegan J. granted the Applicant leave to apply for orders of prohibition in accordance with the reliefs claimed.

5. Thereafter the Applicant's claim for Judicial Review stalled. I am satisfied that this happened because his was but one of a number of cases awaiting the result of a test case in the Supreme Court namely Frank Mallon -v- The Minister for Agriculture, Food and Forestry, Ireland and the Attorney General. Judgment was given in this matter by the Supreme Court on the 20th April, 1996 and as a consequence all the grounds upon which leave to seek Judicial Review other than delay in serving the summonses were ruled and were no longer open to the Applicant to be relied upon.

6. The progress of the summonses in the District Court was further set back by the fact that on the 17th April, 1996 (3 days before the Judgment of the Supreme Court in the Mallon case) the District Judge having grown weary of repeated adjournments struck out the five 1994 summonses. However, five new summonses (referred to the as the 1996 summonses) were issued on the 29th October, 1996 returnable for the 25th November, 1996. A second application was made seeking liberty to apply by way of Judicial Review to Mr. Justice Smith on the 18th November, 1996. The grounds relied upon in this application were inter alia that the matter was res judicata having been determined in the 1994 summonses.

7. The order made by Mr. Justice Smith is not before me. However, I am informed by Counsel that he directed that all matters arising on that application should be referred to the Court at this hearing and he made no specific order either granting or refusing the relief sought.

8. Having reviewed these facts and having heard Counsel's submissions it is clear to me that the one and only issue which is before me at the present time can be summarised as follows. Is the Applicant entitled to an order of prohibition on the grounds that the first named Respondent has been guilty of unreasonable and unconscionable delay in the application for summonses and in the service of the proceedings on the Applicant.

9. The proceedings in question are the five 1994 summonses.

10. The alleged offences are alleged to have occurred on the 27th/31st March, 1992. The summonses were served on the 25th February, 1994.

11. I am satisfied that the delay in service of the summonses on the Applicant was occasion in part by the fact that the first named Respondent was awaiting the outcome of proceedings, John Marr -v- The Minister of Agriculture, Food and Forestry in which issues relevant to the present proceedings were been considered by the High Court. Judgment in this matter was given by Mr. Justice Johnson on 1st April, 1993 and by the Supreme Court on appeal on 18th November, 1993.

12. I accept the submission of Counsel for the Respondents that it was reasonable for the prosecuting authorities to withhold the issue of the summons pending the clarification of the points at issue by the Courts since they had a direct bearing upon the summonses to be served on the Respondent. There was, accordingly, no more than a delay of three months between the delivery of the Judgment by the Supreme Court on 18th November, 1993 and the service of the summons on the 25th February, 1994.

13. Moreover, the nature of the offences with which the Applicant is charged do not in my view depend upon accuracy of recollection as they relate merely to the possession of the substance. No case is made out on behalf of the Applicant that a prejudice arises in this case. On the contrary the only case being made is that the delay amounts to a denial of the Applicant's constitutional rights of fair procedures and a trial in accordance with law by reason of the delay. Statutory Instrument 218 of 1988 by a Regulation 32.8 extends the time for the prosecution of offences of this nature from the six months provided for by the Petty Sessions Act to two years. No challenge has been mounted to the constitutionality of this Statutory Instrument. The prosecution is within the time limit set by the Statutory Instrument.

14. In her Judgment in B -v- Director of Public Prosecutions , Mrs. Justice Denham in delivering the judgment of the Supreme Court refers to the fact that it is not only the right of the accused which falls to be considered. In the course of her judgment she said:-

15. I am satisfied that there is no infringement of the Applicant's constitutional rights by the perceived delay in this case between the 27th/31st March, 1992 and the 25th February, 1994.

16. Since the progress of the case subsequent to that date is not a factor relevant to the leave given by Geoghegan J., which relates solely to the delay in the service of the 1994 summonses I do not find it necessary to consider in this case the progress of the Applicant's claim for Judicial Review thereafter.

17. Accordingly, I propose to make an order refusing the Applicant the relief claimed at paragraph D(6) which is the only relief that he now seeks.

18. I now turn to consider case Record No. 359 J.R., 1996.

19. This matter has been referred to this Court by order of Smith J. of the 18th November 1996. No submissions were made to me relevant to any relief claimed in that application. It is to be expected that issues may arise as to the status of either the 1994 or the 1996 summonses before the Rathfarnham District Court. These issues have not been addressed at the hearing before me and accordingly I am not prepared to make any order in relation to this matter.

20. If so advised the Applicant is free to re-apply for leave in the ordinary way.