McFarlane v DPP McFarlane v DPP

Factual and Procedural Background

The Appellant is charged with offences connected to the 1983 abduction of a well-known businessman. Evidence said to link the Appellant to the hide-out (fingerprints on utensils and alleged admissions made during Garda questioning) was gathered, but the physical exhibits were later lost. The Appellant, who had escaped from custody in Northern Ireland in 1983, was arrested in The State in January 1998 and served with a Book of Evidence in July 1998.

Key procedural milestones:

• November 1999 – The Appellant obtained leave for judicial review (“first JR”) seeking to prohibit his trial on grounds of delay and missing evidence; an automatic stay on the criminal proceedings issued.
• July 2003 – The High Court prohibited the trial solely because exhibits were missing; it rejected the delay claim.
• March 2006 – The Supreme Court (first JR appeal) reversed the High Court on the exhibits issue and upheld the finding that delay did not justify prohibition. The stay on the prosecution consequently lifted.
• May 2006 – The Appellant commenced these “second JR” proceedings, alleging that the six-plus years taken to dispose of the first JR amounted to unconstitutional and Convention-level delay. The High Court (November 2006) refused relief; the present decision concerns the Appellant’s appeal from that refusal.

Legal Issues Presented

1. Whether the length of time taken to complete the first judicial review (including asserted “prosecutorial” and “systemic” delay) breached the Appellant’s right under Article 38.1 of the Constitution to a trial with reasonable expedition.
2. Whether the same delay breached Article 6(1) of the European Convention on Human Rights, thereby entitling the Appellant to declaratory relief and prohibition of his pending criminal trial.
3. Whether the rule in Henderson v Henderson barred the Appellant from raising “systemic delay” arguments that could have been advanced in the first JR.

Arguments of the Parties

Appellant's Arguments

• The six-year lifespan of the first JR, much of which he attributes to court-system inefficiencies and a delay in progressing the State’s appeal, violates his constitutional and Convention rights.
• Periods of delay include: (a) a 13-month discovery impasse; (b) an 18-month interval before lodging a certificate of readiness in the Supreme Court; and (c) a 14-month wait between that certificate and judgment.
• Stress, anxiety, monthly reporting to Law-Enforcement, and frequent court attendances constitute prejudice sufficient to outweigh the public interest in prosecution.
• The doctrine in Henderson v Henderson should not preclude his arguments because the most serious delay occurred after the High Court stage of the first JR.

Respondent's Arguments

• Most of the elapsed time resulted from the Appellant’s own litigation strategy (his first JR and related discovery motions) rather than State delay.
• Any court-processing backlog is a matter of neutral, systemic factors for which the Respondent is not responsible; the Appellant never applied for expedition or to strike out the appeal.
• No concrete prejudice to trial fairness is shown; admissions and photographic fingerprint evidence remain available.
• The present proceedings constitute an abuse of process because the delay points could and should have been raised (by amendment) in the first JR.

Table of Precedents Cited

Court's Reasoning and Analysis

1. Preliminary objection. The Respondent invoked Henderson v Henderson to argue that “systemic delay” could not be raised. The Court accepted that the rule is rooted in public policy but found “special circumstances” because much of the challenged delay occurred after the High Court stage of the first JR, rendering rigid application unfair.

2. Definition of Delay Types. The Court distinguished between (a) complainant/pre-charge delay, (b) prosecutorial delay, and (c) systemic delay (court or State-infrastructure related). It held that systemic delay is assessed using the same balancing methodology as prosecutorial delay.

3. Assessment of Alleged Delay.

• The 13-month discovery episode involved fault by both parties; much of the interval flowed from the Appellant’s own motions and re-filings.
• The four-month adjournment caused by unavailability of a High Court judge was treated as an isolated scheduling contingency, not systemic failure.
• The 18-month gap before lodging a certificate of readiness in the Supreme Court was unexplained and constituted some State-side delay, but no evidence was given about normal timeframes.
• The ensuing 14-month wait to hearing was consistent with the Supreme Court’s ordinary list and could not be classed as blameworthy.

4. Prejudice Analysis. The Court reiterated that mere passage of time is insufficient; an applicant must show either actual trial prejudice or additional factors (e.g., oppressive incarceration). The Appellant was on bail throughout, and no concrete impairment of defence was demonstrated. Assertions of stress and inconvenience, while acknowledged, were not weighty enough to outweigh society’s interest in trying serious firearms-related offences.

5. European Convention Considerations. The Court reviewed Barry v Ireland and other Strasbourg cases, noting that ECHR findings of excessive delay usually result in damages, not orders terminating prosecutions. Domestic prohibition therefore remained an exceptional remedy.

6. Outcome of Balancing Exercise. Even assuming modest blameworthy delay, the combination of minimal prejudice to the Appellant, the seriousness of the charges, and the Appellant’s own contribution to elapsed time led the Court to refuse prohibition.

Holding and Implications

Appeal Dismissed. The Supreme Court affirmed the High Court’s refusal to prohibit the pending criminal trial.

Implications: The judgment re-states that:

• Blameworthy delay—whether prosecutorial or systemic—must be significant and tied to concrete or presumptive prejudice before prohibition will be granted.
• The balancing test from P.M. v Malone/P.M. v DPP remains the controlling standard in Ireland, with Barker v Wingo offering helpful structure.
• Strasbourg findings of “unreasonable time” do not compel Irish courts to halt prosecutions; domestic remedies continue to focus on fairness and proportionality.
• Litigants who secure a stay through judicial review bear a particular onus to progress those proceedings expeditiously.