Nash v DPP

Factual and Procedural Background

This judgment arises from a judicial review application in which the Appellant sought an injunction to restrain the Respondent from proceeding with murder charges related to a double killing that occurred in The City in March 1997. The primary injunction was refused by the Court in an earlier judgment delivered on 10th August 2012. Following that, the Appellant sought ancillary relief, including damages for alleged breaches of constitutional and European Convention on Human Rights (ECHR) rights, specifically the right to a trial with due expedition, as well as costs. The hearing on these ancillary claims took place on 4th October 2012, with judgment delivered on 17th December 2012.

Legal Issues Presented

1. Whether the Appellant’s right to a trial with due expedition under Article 38 of the Constitution and Articles 6 and 13 of the ECHR was breached.
2. Whether damages are an available remedy for breach of the right to trial with due expedition in circumstances where prohibition of trial was refused.
3. Whether the Appellant is entitled to recover costs despite the refusal of the primary relief.

Arguments of the Parties

Appellant's Arguments

• The Appellant claimed damages for breach of the constitutional right to a trial with due expedition (Article 38) and alternatively under Articles 6 and 13 of the ECHR via the European Convention on Human Rights Act 2003.
• He relied on section 3 of the 2003 Act, which mandates State organs to perform their functions compatibly with the ECHR and allows for damages where no other remedy is available.
• The Appellant cited McFarlane v. D.P.P. and Barry v. Ireland to support the proposition that damages may be available for delay in criminal proceedings, though acknowledging that damages claims had not been made in those cases.
• He contended that damages would be appropriate due to heightened anxiety, difficulties in mounting a defence, and prolonged detention as a foreign national in an Irish prison.
• The Appellant also sought costs regardless of success on damages, relying on authority permitting costs awards where points of public importance are raised.

Respondent's Arguments

• The Respondent argued that no breach of constitutional or ECHR rights was found in the substantive judgment, so damages cannot be awarded.
• The Respondent distinguished this case from McFarlane and Barry, asserting that delay should be calculated from the date of charging (October 2009), not from earlier events.
• The alleged stress and anxiety were not pleaded or supported by evidence; the Appellant was already serving life sentences and pre-trial incarceration was not a factor.
• Decisions refusing prison transfer were beyond challenge and prejudicial publicity was largely outside the Respondent’s control.
• Costs should follow the event, meaning the Appellant should bear costs if unsuccessful.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by noting that no finding of breach of constitutional or ECHR rights was made in the earlier substantive judgment. Although the Court acknowledged the delay was substantial, it was not so unreasonable or unexplained as to justify prohibiting the trial. The Court emphasized that a prosecution requires credible evidence, which only emerged in October 2009, shortly before the Appellant was charged. The Court accepted the Respondent’s argument that the relevant period for assessing delay under Article 6 ECHR began at the date of charging, not earlier.

Consequently, the Court found no breach of the Appellant’s rights to a trial with due expedition. Without such a breach, the claim for damages lacked foundation. On costs, the Court recognized its discretionary jurisdiction to depart from the normal rule that costs follow the event. Given the public importance of the issues raised and the regrettable delay in using available forensic technology, the Court found it just to award the Appellant one-third of his costs, despite his overall unsuccessful claim for damages.

Holding and Implications

The Court refused the Appellant’s claim for damages and awarded a limited costs recovery.

The direct effect of this decision is that the Appellant’s prosecution will proceed without damages awarded for delay or breach of rights, as no such breach was found. The Court’s partial costs award reflects recognition of the public importance of the issues and some procedural delay, but no new legal precedent on damages for delay in criminal proceedings was established.