Nash v Director of Public Prosecutions

Factual and Procedural Background

The appeal arises from a notorious double-murder investigation in The City during the late 1990s. Two unconnected individuals—one of them the present Appellant and the other “Individual A”—gave mutually inconsistent confessions. Because either confession could, on its face, exonerate the other person, the prosecuting authorities deemed further evidence indispensable before a charge could responsibly proceed.

On 1 July 1998 the Director of Public Prosecutions (Respondent) decided that the Appellant should be charged, but postponed service of the book of evidence. When Individual A died in 2000, the State considered that a prosecution without additional corroboration was unlikely to succeed, and no charge issued.

The Appellant was meanwhile serving sentences for unrelated offences. In 2005 he sought to be transferred to a prison in the United Kingdom. Those requests were refused on the ground that he remained a suspect in the murders. The impending exhaustion of that explanation prompted investigators to re-examine retained clothing with newly-developed DNA technology. Minute blood traces—unavailable to earlier science—were found inside a jacket sleeve and on a button. Matching the victims’ DNA, these discoveries led to the Appellant’s formal charge in 2009.

The Appellant then initiated High Court proceedings seeking (i) an order prohibiting his trial and (ii) damages for unconstitutional and Convention-based delay. The High Court rejected both claims but awarded the Appellant one-third of his costs. The prohibition issue was fast-tracked to the Supreme Court and dismissed in 2015, whereupon the murder trial proceeded and ended in conviction. The present judgment concerns the residual appeals on damages and costs, and an ancillary application to adduce fresh evidence.

Legal Issues Presented

1. Whether, as a matter of principle and on the facts, an accused can obtain damages for delay in the criminal process under (a) the European Convention on Human Rights Act 2003 and/or (b) the Constitution.
2. Whether any culpable delay attributable to the State occurred in the investigation and prosecution of the Appellant.
3. Whether the High Court erred in awarding the Appellant a portion of his costs despite the failure of his substantive claims.
4. Whether fresh evidence said to emerge during the criminal trial should be admitted in this civil appeal.

Arguments of the Parties

Appellant's Arguments

• The interval between the murders and his eventual trial was sufficiently prolonged to breach his right to a timely hearing under both the Constitution and the ECHR.
• The delay was attributable to investigative and prosecutorial inertia, not to the Appellant.
• Because prohibition had already been refused, damages were the appropriate remedy.
• Fresh evidence relating to alleged DNA-sample contamination and disclosure failings rendered the High Court’s analysis incomplete.

Respondent's Arguments

• No culpable delay existed: until improved DNA methods revealed new evidence, a prosecution would have been irresponsible and futile.
• The brief 1998 statutory arrest for questioning did not commence the “criminal process” for Article 6 purposes.
• The Appellant suffered no legal restraint or prejudice arising from mere suspicion during the intervening years.
• The High Court’s partial cost order represented an unwarranted departure from the “costs-follow-the-event” principle.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Clarke, writing for the majority, undertook a two-stage inquiry:

1. Existence of culpable delay. The Court accepted that investigative and prosecutorial bodies cannot justly be faulted for refraining from a prosecution that lacked realistic prospects of success. After Individual A’s death, the Respondent could no longer test his confession in court, making prosecution untenable until scientific advances supplied stronger evidence. The intermittent “cold-case” reviews culminating in the 2009 DNA breakthrough were characterised as reasonable and diligent.
2. Entitlement to damages. While both the Constitution and the 2003 Act empower courts to award compensation for breach of the right to a timely trial, such relief presupposes proven culpable delay. Because no such delay was found, discussion of quantum or methodology would have been advisory only, and the Court declined to set general parameters in the abstract.

The Court furthermore ruled that the fresh-evidence application—concerning laboratory contamination issues raised at the later criminal trial—had “no bearing” on the civil delay claim, as those contamination allegations were unrelated to the passage of time.

Turning to costs, the Court recognised that the Appellant had wholly failed on the merits yet deferred to the High Court’s discretion in awarding him one-third of his costs, finding that decision to fall within the trial judge’s margin of appreciation.

Holding and Implications

Appeal on damages DISMISSED; cross-appeal on costs DISMISSED.

Consequences:

• The Appellant receives no compensation for delay.
• The partial costs order in his favour remains undisturbed.
• The judgment confirms, in principle, the availability of damages for untimely trials under both domestic constitutional law and the ECHR but stresses that culpable State delay is a prerequisite, leaving broader parameters to future, fact-sensitive cases.