Nash v DPP: In principle, State can be liable in damages for breach of constitutional right to a timely trial

In this judgment (unapproved judgment), the Supreme Court found that, at the level of principle, the State can be liable in damages for breach of a defendants right to a timely trial under the European Convention on Human Rights Act 2003 and the Constitution, where there is culpable delay on the part of the State.

Background

This judgment stems from the 2015 conviction of Mark Nash for the double murder of Mary Callanan and Sylvia Shiels in Grangegorman in 1997.

Independently to the original investigation, another man, Dean Lyons, confessed to the two murders. However, his involvement was ruled out. In July 1998, the DPP made the decision to charge Mark Nash. However, the DPP directed that Nash not be charged until the book of evidence was complete, so that it could be served on him at the time of charging. Dean Lyons died in September 2000. Thereafter, the DPP considered that the evidence against Nash was not sufficient to secure a conviction. Lyons had confessed to the murders and was no longer available to give evidence refuting that confession. That, the DPP believed, may have been sufficient to raise a reasonable doubt of Nash’s innocence.

In 2007, the Forensic Science Laboratory re-examined the forensic evidence. In the intervening years, sufficient scientific progress had been made to allow for evidence to be extracted from smaller samples, leading to the recovery of DNA evidence linking Nash to the murders. The DPP decided to charge and prosecute Nash.

Nash issued two sets of High Court proceedings. One seeking a prohibition on prosecution. The other seeking damages. The High Court rejected both of those applications in 2012. And the Supreme Court rejected his appeal regarding prohibition of trial in 2015, allowing for his subsequent conviction. The appeal on the point of damages remained.

Judgment

Clarke J reviewed the ECtHR and the domestic case law on the right to a timely trial. He found that both the ECHR and the Constitution guaranteed that right (Art 6. 1 of the ECHR, all persons are “entitled to a fair and public hearing within a reasonable time”). And there is jurisprudence that, at least at the level of principle, there is the right to damages for a breach of that right by the Statewhere there is a culpable delay by the State.

Clarke J noted that, the ECHR is applicable across, and must adopt to, both civil and common law systems. In our legal system, a suspect is detained for a short period (of days) and there is no legal status to being a suspect to a crime. Therefore, the “reasonable time” does not necessarily begin from when a suspect is first questioned.

Dismissing Nash’s appeal, Clarke J held that there was no culpable delay by the State in this case. The prosecution could not proceed until the scientific developments that allowed for the DNA evidence to be recovered.

Denham CJ, O’Donnell J,  Charleton J and Dunne J concurred.

Clarke J also made a number of general observations on the right to a timely trial and the right to damages for breach:

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.

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