E2 - Trial Delay 38.1 Flashcards
The original constitutional position
The original constitutional position with regard to delay of this kind was enunciated succinctly in the case of B
v DPP where it was stated that the test is whether, by reason of delay, there is a real risk that
an accused person cannot obtain a fair trial. Denham J listed 10 factors which a court should consider before
answering this seminal question which include actual prejudice to the accused, reasons for the delay, length of
pre-trial anxiety, and certain special considerations which pertain to child-sex cases. These indicators are
whether the parties’ relationship was based upon trust, whether dominion/control was exercised over the
complainant to prevent a complaint from being made, whether the State has contributed to the delay in the
case, whether the length of time has rendered a nullity the ability of the accused to raise alibi evidence in his
defence, and whether or not the accused has admitted his own guilt.
Two subsequent decisions however have attempted to revert the balance back to the question of prejudice to
the accused away from the actual effects and reasons for delay
Two subsequent decisions however have attempted to revert the balance back to the question of prejudice to
the accused away from the actual effects and reasons for delay, JOC v DPP [2000] & JL v DPP [2003] 3 IR 123. In
the former case, Hardiman J stated that in the absence of physical or forensic evidence the strength of a case
will depend on the surrounding circumstances which a ‘significant lapse of time’ can have disastrous effects
upon. The learned Judge opined that the death of the accused’s wife meant that the fact that the alleged
abuse occurred at all was severely in doubt in the absence of ‘hard’ evidence in support of the allegation. In
the latter decision of JL three factors were taken into account by the court; the passage of time and its effects
on alibi evidence, the potential misperception of the complainant as to what actually took place in the past
and evidential doubts over the existence of certain material facts at the time of the alleged inciden
This case reflects a move
in the caselaw away from ‘dominance’ towards ‘inhibition’.
With regard to the issue of any delay in the complainant making his/her complaint a stronger focus was placed
on the burden on a complainant to act and illustrate that any failure to instigate a complaint was due to an
inhibition acting on them throughout the period of delay in DD v DPP
H v DPP
H v DPP which saw a shift away from the reasons for delay as enunciated in the B case towards actual prejudice
caused to the accused. Murray CJ held that an inquiry must be made into the circumstances of every case as to
whether by reason of the delay there is a real risk of an unfair trial under Article 38.1.
the B decision is more pro-complainant as it focused on effects of
delay as regards the complainants the themselves and not the accused. The H case shifts this focus back to the
accused and his/her right to a fair trial.
Braddish v DPP
in Braddish v DPP it was stated ‘It is the duty of the Gardaí, arising from their unique
investigative role, to seek out and preserve all evidence having a bearing or potential bearing on the issue of
guilt or innocence. This is so whether the prosecution proposes to rely on the evidence or not, and regardless of
whether it assists the case the prosecution is advancing or not’. The police had returned vital CCTV evidence
after the accused had made a confession
Dunne v DPP
the duty to seek out evidence in
particular was focused on as a crucial determining role of the police and hence a failure by the authorities to
actually seek out CCTV evidence resulted in the trial being prohibited for Article 38.1 due process reasons
