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Maguire v. D.P.P. [2004] IEHC 49 (2 April 2004)

 
THE HIGH COURT

2004 308 SS

COLM MAGUIRE V THE DIRECTOR OF PUBLIC PROSECUTIONS

Judgment of Finnegan P. delivered on the 2^nd day of April 2004

On the 10^th October 2003 the Applicant was charged before the Special Criminal Court with an offence contrary to the Offences Against The State Act 1939 section 21. He applied for bail. The application was opposed by the Director of Public Prosecutions on the grounds:-

(1) That the Applicant represented a flight risk.

(2) Pursuant to the Bail Act 1997 section 2 that the refusal of bail was reasonably considered necessary to prevent the commission by him of a serious offence.

A further application for bail was made to the High Court on the 10^th November 2003 and was unsuccessful. Thereafter the Applicant was remanded from time to time to enable the Book of Evidence to be served upon him. In the context of the delay in the Book of Evidence being served the Applicant re-applied to the Special Criminal Court for bail on the 13^th January 2004: the Court considered that having regard to the application made to the High Court on the 10^th November 2003 the High Court was the proper forum to which the application should be made. On the 23^rd February 2004 an application for bail was made to the High Court and while it was indicated that the application would be opposed on the same two grounds as the original application the Court refused to hear the application on the basis that no evidence of a change in circumstances had been adduced on the first mentioned ground. On the 9^th March 2004 the Applicant was charged with further offences before the Special Criminal Court and applied for bail in respect of the new charges. This application was opposed solely on the basis that the refusal was reasonably considered necessary to prevent the commission of a serious offence by the Applicant. Notwithstanding the opposition the Applicant was admitted to bail.

The Applicant is now in custody in respect of one charge only that pursuant to the Offences Against The State Act 1939 section 31 and has been given a trial date in respect of that charge in June 2005. The Applicant renews his application in respect of that charge pursuant to the provisions of the Bail Act 1997 section 3.

The principles applicable where the jurisdiction to grant bail is invoked are those set out by the Supreme Court in The People (at the suit of the Attorney General) v O'Callaghan 1966 I.R. 501. The Applicant had been refused bail in the High Court by Murnaghan J. In giving judgment in the High Court Murnaghan J. said

"There are a number of matters which may be, and should be where appropriate, taken into account by the Court in considering whether or not it is likely that the prisoner may attempt to evade justice. These I enumerate as follows:-

1. The nature of the accusation or in other words the seriousness of the charge. It stands to reason that the more serious the charge the greater is the likelihood that the prisoner would not appear to answer it.

2. The nature of the evidence in support of the charge. The more cogent the evidence the greater the likelihood of conviction and consequently the greater the likelihood of the prisoner attempting to evade justice.

3. The likely sentence to be imposed on conviction. The greater the sentence is likely to be, the greater the likelihood of the prisoner trying to avoid it. The prisoner's previous record has a bearing on the probable sentence and consequently must be before this Court.

4. The likelihood of the commission of further offences while on bail. In this connection, a prisoner facing a heavy sentence has little to lose if he commits further offences. A prisoner may consider that he has to go to prison in any event and in an effort to get money to support his family may commit further offences.

5. The possibility of the disposal of illegally acquired property. Stolen property may be stored or cached away.

6. The possibility of interference with prospective witnesses and jurors.

7. The prisoner's failure to answer to bail on a previous occasion.

8. The fact that the prisoner was caught red-handed.

9. The objection of the Attorney General or of the police authorities.

10. The substance and reliability of the bailsmen offered. (This is primarily a matter for the District Justice).

11. The possibility of a speedy trial.

In certain cases the likelihood of personal danger to the prisoner – from the hands of persons injured or incensed by the crime – may in itself be a ground for refusing bail."

In the Supreme Court it was stressed that the object of bail is to secure the appearance of the accused person at his trial and that the object is neither punitive nor preventive. Walsh J. in his Judgment dealt with each of the matters enumerated by Murnaghan J. The proposition that in certain cases the likelihood of personal danger to the prisoner may be a ground for refusing bail he rejected as unsustainable. The matters enumerated at 1, 2, 3, 7 and 8 he held to be matters relevant to the fundamental test - the probability of the Applicant evading justice. With regard to ground number 4. at page 516 Walsh J. said –

"In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that."

He held that the likelihood of the commission of further offences while on bail is inadmissible on an application for bail. In addition it would be inappropriate to take into account the fact that the accused person had committed offences while on bail on a previous occasion as to do so would be to impose a system of preventive justice. As to no. 5 he held that this was relevant only insofar as the disposal constituted the destruction or concealment of evidence and so comes within the general heading of evasion of justice. Ground no. 6 likewise is relevant only on the same basis. Insofar as ground no. 9 is concerned the objections to be relevant must relate to one of the grounds upon which bail may validly be refused.

With regard to ground 11 at page 518 Walsh J. said –

"The possibility of a speedy trial is relevant to the extent that if there is no prospect of a speedy trial a Court may very well allow bail where it might not otherwise have allowed it. It cannot be too strongly emphasised, however, that the prospect of a speedy trial is not a ground for refusing bail where it ought otherwise be granted."

The foregoing represents the state of the law in relation to bail at the passing of the Sixteenth Amendment to the Constitution 12^th December 1996. This inserted the following provision into Article 40 at Article 40.4.7 –

"Provision may be made by law for the refusal of bail by a Court to a person charged with a serious offence where it is reasonably considered necessary to prevent the commission of a serious offence by that person."

Following the amendment of the Constitution the Bail Act 1997 was passed and this provides in sections 2 and 3 as follows –

2.—(1) Where an application for bail is made by a person charged with a serious offence, a court may refuse the application if the court is satisfied that such refusal is reasonably considered necessary to prevent the commission of a serious offence by that person.

     (2) In exercising its jurisdiction under subsection (1), a court shall take into account and may, where necessary, receive evidence or submissions concerning—

( a ) the nature and degree of seriousness of the offence with which the accused person is charged and the sentence likely to be imposed on conviction,

( b ) the nature and degree of seriousness of the offence apprehended and the sentence likely to be imposed on conviction,

( c ) the nature and strength of the evidence in support of the charge,

( d ) any conviction of the accused person for an offence committed while he or she was on bail,

( e ) any previous convictions of the accused person including any conviction the subject of an appeal (which has neither been determined nor withdrawn) to a court,

( f ) any other offence in respect of which the accused person is charged and is awaiting trial,

and, where it has taken account of one or more of the foregoing, it may also take into account the fact that the accused person is addicted to a controlled drug within the meaning of the Misuse of Drugs Act, 1977.

     (3) In determining whether the refusal of an application for bail is reasonably considered necessary to prevent the commission of a serious offence by a person, it shall not be necessary for a court to be satisfied that the commission of a specific offence by that person is apprehended.

3.—(1) Where an application by a person for bail—

( a ) has been refused by a court under section 2, and

( b ) the trial of the person for the offence concerned has not commenced within 4 months from the date of such refusal,

then, the person may renew his or her application for bail to that court on the ground of delay by the prosecutor in proceeding with his or her trial, and the court shall, if satisfied that the interests of justice so require, release the person on bail.

     (2) In determining whether to grant or refuse an application under subsection (1), a court may receive evidence or submissions concerning the delay in proceeding with the trial of the person concerned.

     (3) Nothing in this section shall affect the operation of section 24 of the Act of 1967.

"Serious offence" is defined in section 1 of the Act –

"'Serious offence' means an offence specified in the Schedule for which a person of full capacity and not previously convicted may be punished by a term of imprisonment for a term of five years or by a more severe penalty."

I might here observe that the Constitution does not define "Serious offence". It is accordingly possible that an offence coming within the statutory definition would not be a serious offence within the meaning of the Constitution although having regard to the severity of the penalty stipulated in the statutory definition this is unlikely.

In order to refuse bail on the statutory basis section 2(1) requires –

(1) That the Court receive evidence that it is considered necessary to prevent the commission of a serious offence by the person seeking bail that bail should be refused.

(2) That the Court be satisfied that there is a reasonable basis for it being so considered.

Section 2(2) enumerates matters that the Court shall take into account when exercising its jurisdiction under sub-section (1) and a further matter which the Court may take into account – the fact that the accused person was addicted to a controlled drug within the meaning of the Misuse of Drugs Act 1977. As section 2(2) is regulated in part by the word "shall" and in part by the word "may" this suggests that the Legislature intended the factors enumerated in the sub-section to be the only factors to which the Court should have regard where an objection to bail is raised in reliance of section 2. I am fortified in this view by the circumstance that the factors enumerated include some to which on the law prior to the passing of the Bail Act 1997 it is appropriate that the Court should have regard namely those at (a) and (c) and factors to which it is inappropriate that the Court should have regard namely (b), (d), (e), (f) and the circumstance of addiction to a controlled drug. On an application for bail other than one opposed under section 2 the matters dealt with at factors (a) and (c) in section 2(2) are relevant: their relevance is in relation to flight risk: see dicta of Walsh J. in O'Callaghan's case. However where the opposition to bail is on the basis of section 2 having regard to the view I take that the factors enumerated in section 2(2) are exclusive flight risk is not a matter to be taken into account: accordingly when the Court as it must takes into account the factors at (a) and (c) for the purposes of exercising its discretion it must do so in the context of section 2 only.

In considering section 3 of the Act it is relevant to note that the 11^th ground enumerated by Murnaghan J. in O'Callaghan's case is not a factor to be taken into account in exercising jurisdiction under section 2 of the Act. The Supreme Court in Director of Public Prosecutions v Stephen Doherty Unreported 30^th July 2001 considered the relevance of a delayed trial date on a renewed application for bail. On the original application for bail a trial date had not been fixed. When a trial date was fixed for April 2002 the application was renewed and refused on the grounds that there had been no change in circumstances. In giving the judgment of the Supreme Court Keane C.J. said –

"Mr. McGovern on behalf of the Applicant puts forward two changes of circumstances since that event. The first is that at the hearing in March a trial date had not been fixed whereas now there has been an indication of a trial date and that is not until April of next year. This is undoubtedly a lengthy time which if the Applicant is not given bail he will have to spend in custody but that is not a change of circumstance as this Court has interpreted that in many cases. It would have been obvious in March when the matter first came before the High Court that there would be a lengthy period of custody if the Applicant was not given bail and the fact that the delay is now of a more specific nature is not a ground for saying that there has been a change of circumstance. The circumstances remain the same, that there will be a relatively lengthy delay before trial."

In order to be entitled to renew an application for bail pursuant to section 3 the Applicant must establish delay by the prosecutor in proceeding with his or her trial. Thus delay in serving a Book of Evidence would be relevant. However not relevant is delay not attributable to the prosecutor. In the circumstances of this case delay resulting from the inability of the Special Criminal Court to afford a prompt hearing will not confer a right to renew an application for bail. Section 3 sub-section (2) permits the Court to receive evidence or submissions concerning the delay in proceeding with the trial. This suggests that the Court is not concerned exclusively with the lapse of time which has occurred but will have regard to the causes and circumstances giving rise to the same in order to determine if there has been delay by the prosecutor.

Once delay is established bail shall be granted if the interests of justice so require. This it seems to me raises three possibilities –

(1) The Court should have regard exclusively to the question of delay attributable to the prosecutor in determining the interests of justice or

(2) The Court should have regard to all the factors enumerated in section 2 sub-section (2) which are required to be taken into account on the original application and the delay attributable to the prosecutor or

(3) The Court should have regard to all the circumstances.

Having regard to my finding that section 2 creates a discrete jurisdiction in the exercise of which the Court is confined to the factors enumerated in section 2 sub-section (2) I am satisfied that on a renewed application pursuant to section 3 the Court should have regard only to those factors enumerated in section 2(2) and the delay which has occurred which is attributable to the prosecutor. This approach maintains consistency with the principles confirmed in Director of Public Prosecutions v Stephen Doherty that a delayed trial date is not a change of circumstance enabling an application to be renewed but gives effect to the underlying concern of section 3 that a hearing should not be delayed by the prosecutor. While it is possible to construe the phrase "interests of justice" narrowly so that the Court would consider only the delay relied upon it is I believe appropriate to give it a broader construction having regard to the serious restrictions which section 2 places on the traditional values which underlie the law of bail – the presumption of innocence and the attitude of the Courts to preventive detention. Accordingly I hold that on a renewed application the requirement of delay on the part of the prosecution having been established the Court should have regard to that delay and to any change that may have occurred in relation to the factors set out in section 2(2). Insofar as no change of circumstance can be shown in relation to such factors the principle of res judicata will apply.

In the present case having heard such evidence as was offered there was a delay on the part of the prosecutor. The Applicant was charged on the 10^th October 2003. The application to the High Court for bail was on the 10^th November 2003. The Book of Evidence was not served until the 10^th March 2004 the period which elapsed being four months a period considerably in excess of the 42 days provided for in the Criminal Procedure Act 1967. No evidence was tendered as to the cause or circumstances giving rise to the delay. However in the overall context of the delay which will be incurred which will be in the order of twenty months from the date of charge the significance of this delay is somewhat reduced. As I am required to determine on this application if the delay is attributable to the prosecutor before I proceed to consider the other section 2 factors I propose adjourning the application to afford the prosecutor the opportunity to adduce evidence as to the cause of the delay and the circumstances in which it occurred before determining the application.