THE SUPREME COURT
[Appeal Nos: 22/2013 and 24/2013]
Denham C.J.
O’Donnell J.
Clarke J.
Dunne J.
Charleton J.
Mark Nash
Applicant/Appellant
and
The Director of Public Prosecutions
Respondent
Judgment of Mr. Justice Clarke delivered the 24th October, 2016.
1. Introduction
1.1 The principal focus of this judgment concerns the question of whether it is possible in principle and appropriate in the circumstances of this case to award an accused in a criminal trial damages as a result of a significant delay in the criminal process. That question arises both in respect of the right to a timely trial conferred by the European Convention on Human Rights (“ECHR”) and also by the Constitution.
1.2 This judgment relates to a second leg of the appeal brought by the applicant/appellant (“Mr. Nash”) before this Court arising out of the failure of his claim before the High Court. Mr. Nash had brought proceedings before that Court in which he sought, on the basis of an allegation of delay, both to prohibit a criminal trial then pending and to claim damages. The proceedings before the High Court were the subject of two separate judgments dealing respectively with the prohibition issue (Nash v. Director of Public Prosecutions [2012] IEHC 359) and the damages issue (Nash v. Director of Public Prosecutions [2012] IEHC 598). Mr. Nash appealed both judgments to this Court. Mr. Nash was also awarded part of his costs in the High Court for the reasons set out by the trial judge in the latter of the above judgments. The respondent (“the D.P.P.”) has cross appealed against that costs order.
1.3 As the relevant criminal trial was due to commence in early course it was considered that the appeal on the issue of prohibition should be determined first with any question relating to damages or costs being left over. The Court, having heard the appeal in respect of prohibition, dismissed Mr. Nash’s appeal in that respect (Nash v. Director of Public Prosecutions [2015] IESC 32). Thereafter the criminal trial proceeded and Mr. Nash was convicted of murder. Mr. Nash has appealed to the Court of Appeal against both that conviction and the precise way in which the mandatory life sentence imposed was specified as applying. For that reason it is of particular importance that nothing is said in this judgment which might have an impact on the proper exercise by the Court of Appeal of its role to consider and determine the issues which arise on that appeal. It will be necessary to touch on that important consideration again later in the course of this judgment.
1.4 In any event the remaining aspects of this appeal, being the question of damages and costs, were subsequently listed for hearing. This judgment is directed to the issues which thereby arose. For the reasons set out in this judgment I have concluded that both Mr. Nash’s appeal on the damages question and the D.P.P.’s cross appeal on costs should be dismissed.
1.5 It also requires to be recorded that an additional matter was argued before the Court at the same hearing. It involved an application on the part of Mr. Nash to admit further evidence arising out of matters which transpired at and around his criminal trial. For reasons which I hope will become apparent, I propose dealing with the question of the possibility of admitting fresh evidence after dealing with the substantive issues which arose on the appeal in respect of the damages issue.
1.6 As the case made on behalf of Mr. Nash asserted a potential entitlement to damages for delay in the criminal process it is necessary to start by identifying the legal basis on which such a claim might be brought.
2. Damages for Delay – A Legal Basis?
2.1 Since the coming into force of the European Convention on Human Rights Act 2003 (“the 2003 Act”) it is clear that, at least at the level of principle and at least in many cases, a claim can be maintained in damages against an organ of the State (as defined in that Act) in respect of a breach of the rights conferred by the ECHR.
2.2 Section 3(2) of the 2003 Act provides that a person who suffers loss or damage as a result of a failure by an organ of the State to perform its functions in a manner compatible with the ECHR may “if no other remedy in damages is available” be awarded damages if a court of competent jurisdiction considers it appropriate.
2.3 There may be some questions about the precise parameters of the type of claim permitted under the 2003 Act. First it has been held in Dublin City Council v Fennell [2005] IESC 33, L.C. v Minister for Justice, Equality and Law Reform [2007] 2 IR 133 and Donegan v Dublin City Council & anor and Dublin City Council v Gallagher [2012] IESC 18 that the 2003 Act is not retrospective and there may well, therefore, be a question as to whether damages can be awarded in respect of any breach of rights which occurred prior to the Act coming into force which event happened on 31st December, 2003. In addition attention must be drawn to the provisions of s.3(5)(a) and (b) of the 2003 Act which provides a limitation period of one year which the court can extend if it appears to the court to be appropriate so to do in the interests of justice. That in turn may raise a question as to the precise parameters of damages available in the case of a continuing potential breach of rights (such as delay in a court process) some of which might be said to pre-date and some of which might be said to post-date the coming into force of the legislation or the limitation period. Likewise, in the same context, it is arguable that it may be necessary to identify the point in time at which a breach of rights caused by delay might be said to have first arisen for the purposes of placing some or all of the breach of rights in a timeframe which either pre or post-dates the legislation or the limitation period.
2.4 However, and subject to the possibility that there may be some limitations of the type just addressed or, indeed, of other types, there can be little doubt but that there is the possibility of the award of damages for breach by organs of the State of rights under the ECHR deriving from the provisions of the 2003 Act.
2.5 It might be considered, therefore, that the question of whether damages could also be awarded in the same circumstances under the Constitution, while potentially of theoretical significance, might be of little practical relevance given that damages might be available for breach of rights under the ECHR in any event.
2.6 However, it is clear that, in an appropriate case, damages for breach of constitutional rights by the State can be awarded (see for example, Kearney v Minister for Justice [1986] I.R. 116 and Kennedy v. Ireland [1987] I.R. 587). That position has, therefore, long since been clarified by this Court. It is again clear that the Constitution recognises the right to a timely trial and that this also has long since been recognised by the courts. Indeed, in my own judgment in respect of the prohibition aspect of this case, I noted, at para. 2.18, that there was an obligation on the State “to afford all litigants, criminal or civil, a timely trial”.
2.7 In G.C. v. Director of Public Prosecutions [2012] IEHC 430, Hogan J. in the High Court reviewed the relevant case law in this area. Reference was made to the judgment of Kearns J. in P.M. v. D.P.P. [2006] 3 IR 172, which noted that an order of prohibition may not be the only remedy available in circumstances of prosecutorial delay. Reference was also made to the earlier comments of Henchy J. in Hanrahan v Merck, Sharpe & Dohme Limited [1988] ILRM 629 at 636 where the right to maintain an action for damages for breach of constitutional rights was reaffirmed and where it was also stated that the right to claim damages was required to supply a remedy for such breach where no remedy had otherwise been provided either by the common law or by statute. It is true, of course, as Hogan J. pointed out, that, in the vast majority of cases, the focus of the claimant has been to seek to prohibit a criminal trial and, for that reason, it may well have been the case that few were anxious to focus on a claim for damages. But as pointed out in a number of the judgments of this Court in respect of the prohibition aspect of this appeal, the fact that there has been delay sufficient to breach the right to a timely trial does not, necessarily and in and of itself, give rise to a finding that a fair trial cannot be conducted. Thus there will inevitably be cases where there will be a breach of the right to a timely trial but nonetheless no remedy in prohibition will properly be available. It follows that, at least in some such cases, the requirement identified by Henchy J. in Hanrahan, to the effect that there must be some appropriate remedy, will come into play.
2.8 It is, therefore, clear that the constitutional right to a timely trial has been well established for many years. Given that it has also been clear that, in an appropriate case, damages can be awarded for the breach of a constitutional right, it has been clearly established for some time in our jurisprudence that there is, at least at the level of principle and in some circumstances, an entitlement to damages for breach of the constitutional right to a timely trial. However, just as in the case of a claim for damages for breach of the similar right guaranteed by the ECHR, there may well be questions as to the precise circumstances in which such an entitlement to damages may arise.
2.9 It is also important to note at least the possibility that the appropriate approach to the calculation of the quantum of damages in such cases might not necessarily be the same as and between a claim for damages arising out of a breach of rights guaranteed by the ECHR and a claim for damages arising out of a breach of similar rights guaranteed by the Constitution. This is a matter which may require a definitive determination in the future. It certainly appears to be the case that the level of damages typically awarded by the European Court of Human Rights (“ECtHR”) falls somewhat below the level of damages which might be awarded by an Irish court in respect of a claim for damages in similar circumstances arising in respect of a breach of rights under Irish law whether that law be the Constitution, an Irish statute or derived from the common law as it is understood in Ireland. It remains for determination whether, in a claim which was based solely on the breach of rights conferred by the ECHR, an Irish court should award damages broadly equivalent to those which it might be expected would be awarded by the ECtHR or should approach the question of damages by considering the quantum which would be awarded in a similar case involving a breach of rights under Irish law.
2.10 Furthermore, as damages for breach of rights guaranteed by the ECHR can only be awarded under the 2003 Act where no other remedy in damages is available, it is necessary to ascertain if damages under the Constitution may be awarded before going on to consider a claim in damages under the 2003 Act.
2.11 All of that analysis seems to me to lead to three conclusions.
2.12 First it may well be important to determine whether, and if so to what extent, damages can be awarded for breach of rights guaranteed by the Irish Constitution in particular circumstances even though the relevant claimant might also potentially have a claim to damages for breach of the ECHR.
2.13 Second, the quantum of damages may not necessarily be the same. It may, therefore, in practise, be important to determine whether the claim can properly be said to arise under the Constitution for the answer to that question may affect both the issue as to whether and on what basis damages can and should be awarded in the particular circumstances of the case and also, potentially, the amount of any damages to be awarded.
2.14 In addition it is clear that any analysis of whether damages can and should be awarded in a particular case necessarily requires a careful analysis of the facts to determine whether a breach of rights conferred by either the ECHR or the Constitution has occurred, if so whether the award of damages is, in principle, the appropriate remedy and finally as an aid to identifying the appropriate amount of damages to be awarded in the circumstances of the case. It follows that it is first necessary to address this appeal by reference to the facts.
3. The Facts
3.1 In differing ways each of the judgments delivered by the members of this Court on the question of whether Mr. Nash’s trial should be prohibited engaged to a greater or lesser extent with the facts. At para. 3.6 of my own judgment I indicated that there was, in my view, “a real question of whether there is, truly, any real culpability on the part of prosecuting authorities at all”. I also emphasised that “prosecuting authorities should only properly bring criminal proceedings where there is a prospect of success”. At para. 3.7, I indicated that I found it difficult to disagree with the case made on behalf of the prosecuting authorities that it was reasonable not to prosecute Mr. Nash without the forensic DNA evidence which had later become available. Like observations are to be found in some of the other judgments then delivered. The reasoning behind those conclusions is clear.
3.2 As is now well known, the great issue which arose in the investigation into the horrific Grangegorman murders was that two persons separately and independently confessed to the murders in a manner which suggested that both could not be telling the truth. In other words the confessions were not of any concerted effort between the two individuals but rather with entirely separate confessions of involvement which were wholly inconsistent with the guilt of the other party. Faced with that backdrop it would be obvious to any prosecuting authority that a cogent ground of defence would have been available to either party deriving from the separate confession to the same crime by another entirely unconnected individual. It would, of course, only be required for either party, as an accused, to raise a reasonable doubt as to their guilt. In the absence of some cogent reason explaining away the other confession in a manner which might remove any such reasonable doubt, it would have been extremely difficult if not impossible to persuade a jury of guilt beyond a reasonable doubt. As counsel for the D.P.P. argued on this aspect of the appeal, as long as the other confessor, Dean Lyons, was alive there was at least the possibility that he could have been called in evidence and that it might have been possible to persuade a jury that his confession should not be given any credibility and should not, thus, certainly of itself, raise any doubt as to the guilt of Mr. Nash provided that the balance of the evidence against Mr. Nash (including Mr. Nash’s own confession) were sufficient. But without being able to explain how Dean Lyons could have come to confess, a prosecution of Mr. Nash, on the evidence then available, was in all probability doomed to failure. When Mr. Lyons died it was no longer possible for the prosecution to call him to give evidence and thus, as least potentially, attempt to persuade a jury that it was safe to disregard his confession in the context of assessing whether Mr. Nash’s guilt had been proved to the criminal standard.
3.3 That sequence of events explains how a decision to charge and then prosecute Mr. Nash was made but had ultimately not been progressed to the point of charge when Mr. Lyons died. The decision to charge Mr. Nash was made on the 1st July, 1998. However, the D.P.P. directed that he should not be charged until the book of evidence was completed so that it could be served on him at the time of charging. Those measures had not been finalised when Mr. Lyons died on the 12th September, 2000. In those circumstances it was decided not to proceed to charge Mr. Nash. The position in respect of Mr. Nash thereafter was one where the evidence against him was considered insufficient to justify a prosecution but where he remained under suspicion and where the prosecuting authorities hoped that further evidence, sufficient to justify a prosecution, might arise.
3.4 In that context it needs to be recalled that Mr. Nash was, during the relevant period, imprisoned as a result of having been convicted of other serious crimes. It is true that he was, for a brief period, specifically and separately arrested as part of the investigation into the Grangegorman murders utilising the provisions of s.42 of the Criminal Justice Act, 1999. Under that legislation it is possible to arrest a person for the purposes of a particular investigation even though that person is already in custody for other reasons. The purpose of the legislation in question is to permit the regime which allows for the questioning of suspects in custody to be applied in respect of one offence even though the suspect concerned may already be in custody on another basis. It is also important, in that same context, to make clear the position in respect of investigation, arrest and charge in a common law system such as applies in this jurisdiction.
3.5 It must be emphasised that all aspects of the investigative process are conducted by the police or other investigating authorities. There is, of course, in Ireland no equivalent of the examining magistrate or other similar judicial office holder who plays a role, at a certain stage, in the investigation of criminal matters in the civil law system. Neither can it be said that the D.P.P., who is charged with bringing criminal prosecutions, carries out a role which is similar to the prosecutor in many civil law systems. The D.P.P. is an important independent statutory office holder with significant rights and duties. However, the D.P.P. is entirely separate from the courts and, of course, the police. Doubtless the advice of the D.P.P. and officers under her control may well be sought by the police in the context of a criminal investigation so as to ensure that evidence gathering and the like is conducted in a way which does not impair or put at risk any future prosecution. Furthermore, assistance can, doubtless, be given as to the type of evidence which might be required in order to sustain a prosecution of any particular type. If sufficient evidence to warrant a charge has been assembled, of course, the D.P.P. may give directions for the arrest of an accused and the bringing of that accused before a court.
3.6 It does also need to be recorded that there are certain circumstances in which it is legally permissible to arrest a person suspected of a crime for the purposes of questioning. It is unnecessary, for the purposes of this judgment, to detail the circumstances which give rise to that entitlement or, indeed, the complex set of provisions concerning the time during which a suspect can be held for such questioning and the possibility that such times can, in an appropriate case, be extended. Suffice it to say that, in the overall context, persons can only be held for relatively limited periods (often hours or a small number of days and rarely in excess of one week) after which it is required that they either be released or charged. If they are charged then they are required to be brought immediately before a court (normally the District Court) and the formal criminal court process begins. If a person is released without charge but, having considered the available evidence, the D.P.P. considers that a prosecution should be brought, then the suspect can be rearrested but on this occasion only for the purposes of being brought immediately before a court. There are also limited cases where a subsequent arrest for questioning is permitted due to changed circumstances but there are again strict rules requiring early release or charge and court appearance. Thus it is clear that a suspect can only be arrested either for a relatively brief period or periods of questioning or in the context of being immediately brought before a court for the purposes of facing the ordinary criminal process. A person who has been arrested for the purposes of questioning but has been released is not subject to any restraint as such, although they may, of course, remain a suspect and it may be the case that, at some future stage, a prosecution may be brought if the D.P.P. considers that there is sufficient evidence to justify taking that course of action.
3.7 I have outlined that regime to put in context the brief period when Mr. Nash can be said to have been in custody on foot of investigations into the Grangegorman murders as opposed to having been in custody for entirely unrelated matters. That leads to two connected questions. The first concerns the circumstances in which the forensic evidence which the DPP considered justified bringing a prosecution came to light. The second concerns applications which were made on Mr. Nash’s behalf to seek to invoke the possibility of him being transferred to the United Kingdom for the purposes of there serving the remainder of the sentences for which he was then imprisoned.
3.8 The reason why there is a connection between those matters stems from the fact that the reason given by the authorities for not being prepared to accede to Mr. Nash’s request for transfer was the fact that he remained under suspicion of the Grangegorman murders even though, as was made clear at the time in question, there was no then current intention to prosecute him for the very reasons which I have already set out being that it was not considered that there was, at that time, sufficient evidence to warrant such a prosecution. However, as a result of a number of applications for transfer made on Mr. Nash’s behalf, followed up by applications to the High Court seeking judicial review, it appears to have become clear that the position of the prosecuting authorities could not be maintained indefinitely. In other words, in the absence of some development in the investigation into the Grangegorman murders which would have permitted a responsible prosecution to be brought, the time was clearly rapidly approaching when it would no longer be tenable for the prosecuting authorities to maintain the position that the fact that Mr. Nash might remain a suspect for the Grangegorman murders could justify declining his request to invoke the procedures appropriate to allow for his transfer. In passing I should note that Irish law does not, as some civil law systems do, have a system of according a formal status to a suspect. The fact that an investigating officer genuinely suspects a person of committing certain offences can justify measures such as arrest or the granting of warrants but no formal status of being a suspect as such exists.
3.9 In any event the evidence clearly supports the conclusion that it was those concerns about the inability to maintain the prosecution position on prisoner transfer just described which triggered the final, and as it turns out successful, attempt to find new evidence. I should emphasise that in describing that attempt as “successful” I am not suggesting anything one way or the other about the merits of any point which Mr. Nash may wish to bring on his appeal concerning the evidence tendered at his trial. I simply use that term to describe the change in situation which came about and which, in the view of the DPP, justified a decision to prosecute when such a course of action had not been considered justified up to that point in time.
3.10 What the requests for transfer triggered was what was likely to be a final attempt to identify whether there might be further evidence. In that context it needs to be recalled that, as was noted in a number of the judgments in this case on the prohibition question, there had been significant advances in forensic science which permitted smaller samples to be capable of meaningful analysis than had previously been the case. In that context it does need to be noted that, in the early stages of the investigation into the Grangegorman murders, some blood samples found on clothing belonging to Mr. Nash had been sent for forensic analysis in accordance with the best methodology available at the time in question. On the evidence it would appear that not only were those samples insufficient to allow for results but also that, in the course of attempting to analyse the samples in question, same were necessarily destroyed so that the samples which had originally been taken were no longer available. It does require to be emphasised that, therefore, this was not a situation where there were samples already obtained sitting in a secure location and where, had someone thought to examine those samples in accordance with newly advanced forensic techniques, it was likely that results might be obtained. Rather this was a case where all known samples had been tested to destruction but where there remained a possibility that further small samples might be capable of being found which might be sufficient to achieve results given the advances in forensic science.
3.11 In those circumstances Mr. Nash’s relevant clothing items were subjected to further examination identifying some small samples which turned out to be capable of analysis and which suggested that they were blood from the scene of the crime. Since the time of the initial investigation into the Grangegorman murders, a button and thread had been retained by the forensic science laboratory but the jacket from which that button and thread had been obtained (being Mr. Nash’s jacket) had been separately retained by An Garda Síochána. In the context of a case review, the jacket was returned to the forensic science laboratory and tests involving new technology were applied both to the retained button and thread and to other aspects of the jacket. The buttons and thread yielded a DNA profile matching one of the murder victims. The jacket was then examined by seams being opened and inside the right sleeve a DNA profile was developed matching the other murdered woman. It was that new development which led to the DPP forming the view that there was now sufficient evidence to justify bringing a criminal prosecution. It is against that backdrop that it is necessary to consider the period of time which elapsed between the Grangegorman murders and Mr. Nash’s original confession, on the one hand, and the time when he was ultimately charged with those murders, on the other. In particular it is necessary to consider whether that period of time can be taken into account at all for the purposes of considering delay and, if so, to what extent. I propose to consider that question first in the context of the jurisprudence of the ECtHR.
4. The ECtHR Jurisprudence
4.1 It seems clear from the case law of the ECtHR that the primary focus of that jurisprudence is concerned with the length of time which the court process takes. It must be recalled that Art. 6 - 1 of the ECHR specifies that all persons are “entitled to a fair and public hearing within a reasonable time” in the determination of, amongst other things, any criminal charge against them. Thus the wording of the Article itself refers to a hearing of a charge.
4.2 In Deweer v Belgium (Application no. 6901/75), A/35, [1980] ECHR 1, the ECtHR noted, at para. 42, that “in criminal matters”, the “reasonable time” stipulated by Art. 6-1 necessarily begins with the day on which a person is charged. Referring to the judgment in Neumeister v Austria (1968) 1 EHRR 91, of the 27th June, 1968, however, the ECtHR also noted that the relevant reasonable time may start to run from a date prior to the seisin of the trial court by reference to the judgment in Golder v United Kingdom (Application no. 4451/70) (1975) 1 EHRR 524, of the 21st February, 1975. In addition, the Court in Deweer referred to the judgment in Wemhoff v Germany (Application no. 2122/64), A/7, [1968] ECHR 2, and Neumeister together with the judgment in Ringeisen v Austria (Application no.2614/65) [1971] ECHR 2, of the 16th July, 1971 which took as the starting point respectively the moment of arrest, the moment when the person was officially notified that he would be prosecuted and the moment when preliminary investigations were opened. However, it seems likely that the reference to the commencement of preliminary investigations relates to a judicial rather than a purely investigative process.
4.3 Similar comments were made in Eckle v. Germany (Application no. 8130/78) [1982] ECHR 4, in a judgment delivered on the 15th July, 1982 which reaffirmed the test identified in Deweer as being one where the Court needs to assess the point in time where the accused “has been substantially affected”. It is illustrative that in Eckle a date when a complaint was made to the public prosecutor’s office was not regarded as the date for the commencement of the process because no “formal measures of inquiry” were ordered and the relevant file was closed. Reference is also made to the fact that “a true preliminary investigation” only began at a later stage. In identifying whether a later process might mark the beginning of the “relevant period” it was regarded as important that certain interviews then instigated were not for the purposes of deciding whether a preliminary investigation would be carried out but rather formed part of that preliminary investigation itself.
4.4 As I understand that jurisprudence, the ECtHR is concerned to ensure that, notwithstanding the differing systems which exist across contracting states, there is a common or autonomous approach to the time when the criminal process can be said to be in being even though the application of that common approach may give rise to questions of interpretation in the context of its application to the legal systems of any particular state. It seems clear that the question of when the process can be said to have begun cannot be definitively determined solely by reference to what might be considered the point at which a person is “charged” in the meaning of the law of the state concerned or when the Court which will conduct any trial is first seised of the case. For example in Deweer a person who was told that he was to be prosecuted but was given the option of paying a fixed fine for the purposes of avoiding prosecution was held to have been the subject of the criminal process from that point onwards so that an assessment of whether his right to a timely trial had been complied with was to be assessed by reference to that date. It seems clear that it does not necessarily follow that the date of charge, in the sense in which that term may be defined in the law of the state concerned, is necessarily decisive. Likewise, the date of an arrest leading to a charge seems to have been regarded as appropriate. However, in this jurisdiction, given the very limited periods for which a person can be held without charge, it would not seem that an arrest immediately leading to a charge at the end of a period of questioning would make any great difference to an overall assessment of the length of time involved for it could not extend the relevant period by more than a week or so at most.
4.5 On the other hand there does not seem to me to be anything in the jurisprudence of the ECtHR which suggests that the process can be taken to have begun at a time when the person is simply a suspect who is no more than the subject of police investigation. The only complicating factor in the circumstances of this case is the fact that Mr. Nash, while in custody as a result of other offences, spent a brief period of time separately arrested for the purposes of questioning in respect of the Grangegorman murders. He was, however, released in the technical sense from that custody after a short period of time as a result of questioning which did not advance matters and returned to the custody from which he had come. I cannot see anything in the jurisprudence of the ECtHR which suggests that a short period of arrest for questioning followed by a release leads to the commencement of a process even in circumstances where, notwithstanding the questioning concerned, the prosecuting authorities formed the view that there was not, at that time, a sufficient basis for bringing a prosecution.
4.6 There may be some doubt as to precisely how the established jurisprudence of the ECtHR can fit into an assessment of when the criminal process can be said to have begun in a common law system. In such a system there is no formal investigation in the sense either of the matter being formally under investigation through a public prosecutor or an investigating magistrate or other judicial or quasi judicial figure. In the common law system there is simply evidence gathering, a consideration of the evidence so gathered by the D.P.P., and a decision on whether the evidence so gathered is sufficient to warrant a charge. It will be necessary to comment further on this process in due course.
4.7 For those reasons I am prepared to accept, simply for the purposes of argument and for a consideration of how such a principle might be applied on the facts of this case, that a delay on the part of investigating authorities might, in a suitably serious case, be taken into account even though that delay did not involve the arrest or imprisonment of the suspect or any other formal restraint being placed upon him and other than an arrest which pre-dated, by a material margin, the time at which the suspect was ultimately brought within the formal court process.
4.8 It is also possible that the fact that there were some practical consequences for Mr. Nash because of his status as a suspect might be considered to be a relevant factor. As already noted, Mr. Nash was not in custody on foot of the investigation into the Grangegorman murders save for one brief period long before he was the subject of any formal charge. It was the case, however, that his status as such a suspect was relied on for declining his application to be transferred to serve the balance of other sentences in his homeland. It is true that Mr. Nash did not have a legal right to such a transfer. It might, however, be said that he had the limited right to apply and to have his application properly and fairly considered. There was, however, no formal legal consequence deriving from his being considered a suspect. As noted earlier, persons in Ireland, unlike the position in some civil law systems, are not formally designated in any judicial or quasi-judicial process as a suspect. The term simply applies to persons whom investigating authorities may suspect have been guilty of a crime. The fact that relevant investigating authorities hold such a suspicion can, in an appropriate case, justify arrest and may also impose obligations on investigators. However, even in such circumstances, it is not so much that there is a formal legal status as a suspect but rather that the holding of a relevant suspicion is a necessary precondition to a lawful arrest or may create obligations on investigating authorities. It can certainly be said that there was no legal restraint on Mr. Nash at any relevant stage which derived from his status as a suspect other than during the very brief period during which he was arrested for questioning to which I have already referred to. The effect on his application to be transferred was indirect at best because the fact that he was, at the relevant time, suspected of an involvement in the Grangegorman murders did not provide a formal reason under law for refusing his application for transfer but rather was put forward by the relevant authorities as evidence that the decision not to facilitate his transfer was a reasoned one.
4.9 In any event it seems clear that the primary focus of the jurisprudence is on the period between the formal commencement of a criminal process and the trial. A date prior to such formal commencement may be relevant in limited circumstances but only where an aspect of a preliminary process is itself formally involved.
4.10 However, even if there is a legitimate basis for considering that time began to run at some stage before Mr. Nash was formally charged, it is necessary that it is established that there was some culpable failure on the part of some element of the State apparatus which occurred during the relevant period and which could be said to have deprived Mr. Nash of his entitlement under Art. 6-1 to a reasonably expeditious or timely trial.
4.11 For the reasons already advanced I am not satisfied that there is any basis for suggesting that there could have been any culpable delay on the part of the investigating authorities in this case at least until the time when there had been a sufficient advance in technology to enable smaller samples to produce usable DNA results. The evidence at the hearing in the High Court as to the time when that point was reached suggested, perhaps, that the relevant technology may have been available from 2005 in Dublin. That technology was available in certain other jurisdictions for approximately four years before that time. However, the availability of that technology was not, of itself, enough. It was also necessary to find a sufficient sample which was capable of analysis under that new technology. It is for that reason that I emphasised, in reviewing the facts, that no such sample had previously been identified and that it was only in the context of a potentially final review of the evidence, which arose in the light of Mr. Nash’s persistent requests for transfer, that the additional samples which proved productive were discovered.
4.12 This case seems, therefore, to fit very neatly into the common term of “cold case”. From time to time investigating authorities may choose to take a fresh look at such cases and, occasionally, fresh evidence may emerge which indicates new lines of inquiry. While there may be a sense in which such cases are never formally closed (certainly in the Irish system) it is not reasonable to expect that the cases concerned should continue to be the subject of weekly or monthly consideration. It is also important to record that, under Irish law, there is no such thing as a formally open or closed investigation in the criminal context. The police force and the D.P.P. simply conduct whatever inquiries or investigations are considered appropriate and bring whatever cases are considered warranted before the courts. There is no formal, in any legal sense, opening of a criminal investigation and, likewise, no formal closing. Any potential crime which has come to the attention of the authorities can always be the subject of further review and, if that review throws up sufficient evidence, give rise to criminal proceedings although the courts will always have to consider whether the lapse of time between the events and the matter coming before the court renders the continuation of a prosecution unfair.
4.13 It is important to emphasise that an analysis of the conduct of investigations, and in particular those involving cold cases, is not a time and motion study designed identify, with hindsight, some step which might have been taken more speedily.
4.14 In those circumstances I am satisfied that, even if the jurisprudence of the ECtHR is to be considered as extending the starting point to a time before the formal criminal process has commenced and can apply to significant culpable delay by investigative authorities at a purely investigative stage, same would not demonstrate a breach of any rights on the facts of this case. This was a cold case which was looked at again from time to time. On one such occasion it proved possible to find some additional, very small and hidden, samples of blood which, in the light of improved forensic science, proved capable of yielding results. I cannot see that any culpability can be placed on the prosecuting authorities in those circumstances.
4.15 For those reasons it does not seem to me that even an extended view of the period of time which can be considered in the context of delay for the purposes of the right to a timely trial under the ECHR could lead to any conclusion of culpable delay in this case. For much of the time since the Grangegorman murders there was an entirely reasonable basis for there being no prosecution for there was not sufficient evidence to justify action being taken. There were periodic reviews and one such review threw up additional evidence which, as it happened, was capable of forensic analysis because of advances in science. It might, of course, have been possible that such a review might have occurred three or four years earlier or, indeed, at an even earlier time if the materials had been sent outside the jurisdiction for investigation and might have given rise to the same results but it cannot be said that any of the investigating authorities or, indeed, prosecuting authorities, were in any way culpable in that regard.
4.16 For those reasons I am not satisfied that any delay has been established which would warrant a finding of a breach of Mr. Nash’s rights under the ECHR. On that basis I now turn to the position under the Constitution.
5. The Constitution
5.1 The same factual backdrop is highly material to a consideration of whether Mr. Nash could be entitled to damages for breach of his rights under the Constitution. For the reasons already addressed it has been clear for some time that, at the level of principle, a potential claim for damages for breach of a right to a timely trial arises under the Constitution. For the reasons identified in the case law to which reference has already been made, I am satisfied that the Constitution does guarantee a right to a timely trial. There may, of course, be questions as to whether there has been a breach of that right in the circumstances of a particular case and also as to what person or body may be regarded as having contributed to the breach of the right concerned. In the party led courts system which applies in common law countries, the principal obligation for progressing proceedings lies on the parties themselves. However, the courts system provides mechanisms to enable any party who is dissatisfied with the pace of litigation to seek an appropriate intervention by the court to ensure that the litigation progresses at an appropriate pace.
5.2 In that context it may, of course, be necessary to identify the extent to which a party or the parties may be responsible for the failure of the process to be conducted and concluded in a timely fashion. It will, of course, be necessary to assess the role of the accused in any possible delay. In a party led litigation system it will always be necessary to assess the extent to which any party has made use of available mechanisms (such as appropriate procedural motions or applications for priority) which are designed to accelerate the process or prevent excessive delay. However, in the context of criminal proceedings, one of the parties will almost invariably be the State in some guise or other being most commonly the D.P.P. A failure on the part of the prosecuting authorities to progress criminal proceedings in a timely fashion is likely to derive from a failure on the part of the prosecuting authorities themselves or on the part of those investigating authorities, such as the police, on whom the prosecuting authorities rely for the finding and presentation of much of the evidence. In addition it may be necessary to consider the extent to which it may be possible to award damages in respect of delay caused by a failure within the courts system itself. The immunity traditionally attaching to the courts or judges would require careful consideration. However, in addition to that it may be that there could be cases where, on a proper analysis, any delay within the courts system might properly be attributed to a failure on the part of the State itself to provide adequate resources to enable the courts system to deliver trials which met the constitutional requirement of timeliness. I note all of these points for three purposes.
5.3 The first is to emphasise that there is, in principle, an entitlement to damages for breach of the constitutional right to a timely trial.
5.4 The second is to indicate that the precise parameters of the circumstances in which it may be appropriate to award such damages would require very careful consideration in the light of a proper analysis of all material facts connected with the litigation in question. The issues noted earlier in this judgment are, doubtless, but some of the issues which might require to be determined in an appropriate case.
5.5 But the third point is that a proper consideration of the question of whether damages for breach of the constitutional right to a timely trial should be awarded would require a detailed consideration as to the reasons why there was a lapse of time between when it might be said that the process began and the final decision of the Court. In the criminal context that would require a detailed consideration of the reason for the lapse of time between the beginning of the criminal process (however that might be defined) and the trial of the accused. In order for there to be even a potential claim in damages for breach of the constitutional right to a timely trial it would be necessary that there be evidence to demonstrate a sufficient level of culpability on the part of the State or persons or entitles for whom the State might be regarded as answerable. The question of whether damages for breach of the constitutional right to a timely trial should be awarded is not a matter which can be considered in a vacuum. It necessarily is highly dependant on all the circumstances of the case.
5.6 It should also be noted that there may well be a range of further considerations which it may be appropriate for the court to take into account. The primary remedy for delay is to seek an appropriate order requiring that the matter be speeded up or, if the delay creates a sufficient risk to the right to a fair trial, to prohibit that trial. Furthermore, it is necessary to have regard to a range of rights including the right of the community in respect of the prosecution of criminal offences but also, importantly, the rights of victims of crime or those who assert that they are victims. It may well also be necessary to consider in detail the precise level of delay which might legitimately give rise to a claim in damages and the extent to which it might be necessary to establish significant consequences of the delay for the accused in question in order that damages would be considered to be a necessary remedy for the purposes of meeting in an appropriate fashion any breach of constitutional rights established. For these, and doubtless other, reasons, it should not be assumed that every case of delay must necessarily convert into a claim in damages. While the parameters will require to be worked out on a case by case basis it may well be that the circumstances in which damages can actually be recovered may turn out to be relatively rare although it is impossible at this stage to give any true assessment on that question.
5.7 I have already set out the reasons why I am not satisfied that there is any evidence of significant and material prosecutorial delay in the bringing of Mr. Nash’s prosecution for the Grangegorman murders. Whatever may have been the prospects of prosecuting Mr. Nash at a time when Dean Lyons was still alive (and where Mr. Lyons could have been called to give evidence which might potentially have persuaded the jury that the fact of his confession should not raise a doubt as to Mr. Nash’s guilt) that possibility disappeared with Mr. Lyons’ death. Thereafter the D.P.P. was entitled to consider that it would have been entirely inappropriate to prosecute Mr. Nash given the reasonable view of the D.P.P. that the prosecution would have little or no chance of success. Until new forensic evidence became available that situation persisted and a prosecution would have been inappropriate. There has been no suggestion of any inappropriate delay on the part of the State or any authorities for which the State is responsible in the period after Mr. Nash was charged with the Grangegorman murders.
5.8 In that whole timeline the only possible question which arises in respect of which delay might be attributed to the prosecuting authorities stems from the fact that it is conceivable that the samples which ultimately provided important DNA evidence might have been found and sent for the more advanced form of forensic analysis by then available, at a slightly earlier time (perhaps three years or so). However, that possibility needs to be seen in the context of this being a cold case which was subject to periodic review and where the samples which ultimately proved capable of yielding DNA evidence were not known to be present and were only found after a further thorough review.
5.9 It follows that the factual basis on which it might be possible to consider the appropriate parameters of any claim for damages for breach of the constitutional right to a timely trial cannot be said to exist in the circumstances of this case and, that being so, it does not seem to me that it would be appropriate or safe to attempt to define such parameters in the abstract.
5.10 Before reaching a final conclusion on the damages question it is necessary to say something about the application to admit fresh evidence.
6. The Fresh Evidence
6.1 What was sought to be admitted as fresh evidence said to be relevant to this appeal was an account of certain matters which transpired in and around Mr. Nash’s criminal trial which ultimately went ahead after the refusal of this Court to prohibit same. For the reasons already identified earlier in this judgment it is important that very considerable care indeed is exercised not to say anything which might prejudice the issues which are currently before the Court of Appeal in the context of Mr. Nash’s appeal to that Court from his conviction and sentence. At a very general level it can be said that some issues apparently arose at the trial relating to a contention of contamination of relevant samples and disclosure by prosecuting authorities of matters connected with such possible contamination. However, having heard counsel, it seems clear that the issues concerned related to the possibility of contamination at a very early stage in the process. Whether there is any merit to those issues and what action, if any, it would be appropriate for the Court of Appeal to take is a matter for that Court.
6.2 But for the purposes of this appeal it is important to emphasise that, while a contamination issue was raised in these prohibition and damages proceedings, the contamination risk relied on related to the possibility that the relevant period of time could itself have been the cause of, or created a risk of, contamination. In other words the suggestion was that leaving evidential materials together over a long period of time ran the risk of some form of cross-contamination which might lead to false results. But the possible contamination which appears to have been the subject of debate at Mr. Nash’s trial was not of that type at all.
6.3 It is hard to see, therefore, how the issues concerning contamination which arose at Mr. Nash’s trial could have any bearing on the delay issues which are now before this Court. It is equally hard to see how any questions concerning disclosure relevant to those contamination questions could likewise have a bearing on these proceedings. This case, whether in its prohibition or its damages context, was concerned with lapse of time and delay. The contamination which was raised at Mr. Nash’s trial had nothing to do with lapse of time or delay. Questions about the merits of that issue and any disclosure issues relating to it are not, therefore, in my view, relevant to these proceedings. Whether, and if so to what extent, they have any relevance to Mr. Nash’s criminal appeal is a matter to be considered by the Court of Appeal.
6.4 For those reasons it does not seem to me that the new evidence question has any bearing on the proper outcome of the damages appeal. For the reasons already analysed I am not satisfied that there is a sufficient factual basis established to raise the possibility of damages either for breach of the ECHR or for breach of the Constitution. In those circumstances it does not appear to me that this is an appropriate case in which to attempt to define the appropriate parameters of any claim to damages for breach of a right to a timely trial which might be made on either of those bases.
6.5 In that context it should be emphasised that there is no right to be immediately prosecuted as such. As already noted, the primary focus must be on the right to ensure that a criminal process once commenced is brought to a timely conclusion. In addition the primary remedy must be either to speed up the process or to prohibit a trial (or have the trial discontinued by the trial judge) if it can be demonstrated that a sufficient level of constitutional unfairness has been established. Furthermore, it should be noted that it may well be that, in the context of a claim for damages arising out of a delayed criminal trial, the alleged victim of the relevant crime or, where that person is deceased, the relatives of that victim within the meaning of the Civil Liability Act, 1961, may need to be put on notice and, if required, be heard in order that their interests be protected. Where, for example, it is not considered appropriate to prohibit a trial or have it terminated by the trial judge, then the result of the trial which ultimately goes ahead may be of some materiality. If the accused is convicted then it will almost always follow as a matter of practicality that the victim or the family of a deceased victim would be entitled to damages under an appropriate heading of civil liability. Those damages would, in the ordinary way, be awarded against the accused. The question of whether any damages for delay to which the accused might be entitled should be paid over in whole or in part to the victim as compensation for the underlying offence may well arise. I note these matters simply for the purposes of identifying that they are amongst the significant issues which may need to be addressed in working out the precise parameters of a claim for damages in respect of a breach of the right to timely trial under the Constitution. I would leave a final resolution of these and, doubtless, other questions until a case in which the facts were sufficient to warrant at least a prima facie view that there had been a sufficient culpable delay on the part of the State or persons for whom the State is responsible.
6.6 For the reasons already analysed in some detail in this judgment I am not satisfied that this is such a case. While accepting that damages are, in principle, available for breach of the right to a timely trial under both of the ECHR and the Constitution, I would leave to a case in which there was an appropriate factual backdrop, a decision on how to approach defining the parameters of any such claim to damages. For those reasons it seems to me that Mr. Nash’s appeal against the failure of the High Court to award him damages should be dismissed. That leaves only the question of costs.
7. Costs
7.1 The trial judge awarded Mr. Nash one third of his costs to reflect, it would appear, the fact that there was at least a matter which bore investigation, that being the circumstances in which it took some time for the prosecuting authorities to feel in a position to charge Mr. Nash. The D.P.P. has appealed against that decision.
7.2 I have some sympathy with the position of the D.P.P. Ultimately Mr. Nash’s claim both in respect of prohibiting his trial and in respect of a claim for damages has failed completely. For the reasons identified in this judgment I am not satisfied that there was any culpable delay on the part of investigation or prosecution authorities. That being said a trial judge must be afforded a reasonable margin of appreciation in respect of the circumstances in which it may be appropriate to depart from the default position of all costs being awarded against the loser and costs, thus, following the event. An appellate court should not simply substitute its own assessment of what the appropriate order ought to have been but should afford an appropriate deference to the view of the trial judge who will have been much closer to the nuts and bolts of “the event” itself. That is not, of course, to say that an appellate court should not allow an appeal where an error of principle is identified in the approach of the trial court to the question of costs or where the appellate court feels that the exercise by the trial judge of an assessment in relation to costs has gone outside of the parameters of that margin of appreciation which the trial judge enjoys.
7.3 With some hesitation I have come to the view that the assessment of the trial judge in this case is not outside the parameters of that margin of appreciation in all the circumstances of this case and would, for that reason, dismiss the cross-appeal on costs brought on behalf of the D.P.P.
7.4 Lest it go unrecorded I should, in that context, finally note that there is, in effect, a system of legal aid available in relation to many judicial review applications which arise in the context of the criminal process. It is, of course, open to any party, and that party’s legal advisors, to decline to apply for the scheme concerned and to take their chances on being awarded costs by the court in the event that they are successful. In such an eventuality the costs recovered may be greater than the costs which would be paid under the scheme. But the other side of that same coin requires that a party who has chosen to be represented outside the scope of the scheme in question runs the same risk as any private party in litigation being that the costs of an unsuccessful claim may be awarded against them. Mr. Nash did not avail of the scheme. He is entitled to no greater consideration than any other private litigant. If, therefore, the trial judge had not awarded him costs or even awarded costs against him in a manner which would have been within his margin of appreciation, I would not have seen any basis for disturbing that decision of the trial judge either.
8. Conclusions
8.1 For the reasons set out in this judgment I have come to the conclusion that, at least at the level of general principle, it is clear that damages may be available for the breach of a right to a timely trial under either the 2003 Act or the Constitution. However, I have sought to explore at least some of the complex issues which will need to be resolved in order that the precise parameters of any such claims may be defined. Many, if not most, of those issues will be at least in part specific to the facts of the case in question. It would not, in those circumstances, be appropriate to attempt to define those parameters with any precision outside the context of the facts of a particular case.
8.2 On that basis I have concluded that it is necessary to start any analysis of a claim, such as that brought by Mr. Nash in these proceedings, by reference to the facts for the purposes of determining whether any case has been made out for culpable delay on the part of the State or persons or entities for whom the State may be responsible. It is only if such culpable delay is established that it will become necessary to decide whether it is appropriate to award damages in all the circumstances of the case. Culpable delay is a necessary, but by no means a sufficient, condition to the award of damages.
8.3 For the reasons identified in this judgment I am not satisfied that any culpable delay on the part of the State or persons or entities for whom the State is responsible has been established in all the circumstances of this case. It follows, in my view, that Mr. Nash’s appeal on the damages question must be dismissed. I would leave it to a case in which culpable delay was established to reach a definitive conclusion on relevant parameters to the jurisdiction to award damages either under the 2003 Act or in respect of the Constitution. It does not seem to be appropriate to address those issues in the abstract in a case in which culpable delay has not been established.
8.4 Finally I have come to the view, somewhat reluctantly, that the decision of the trial judge to award partial costs to Mr. Nash was within the range of costs orders which were open to the trial judge within the margin of appreciation which must be afforded to a High Court judge in a case such as this. For those reasons I would also dismiss the cross appeal by the D.P.P. in respect of that costs order.
