A man whose armed robbery conviction was overturned in 2013 has been awarded €5,000 damages by the Supreme Court against the State over breach of his constitutional right to a trial “with reasonable expedition”.
Four years and four months elapsed between the 2009 arrest of Michael O’Callaghan and the quashing of his conviction on appeal in 2013. He was in custody all that time.
Mr Justice John MacMenamin said the evidence showed the “dominant” cause of the delay was deficiencies in the system at that time, of which the State was aware and for which it was responsible, and not any conduct by Mr O’Callaghan’s lawyers as the State argued.
This “highly unusual” case related to a court structure since altered with the intention of eliminating systemic delays, he added.
The “clear evidence” of systemic delay affecting the hearing of appeals was known to the State at that time, including from decisions of the European Court of Human Rights back to 2005 and because judges publicly repeatedly identified the backlog of appeals in the system.
A May 2009 report of a Court of Appeal Working Group noted an “institutional bottle neck” at Supreme Court level had generated undue delays impacting on the Court of Criminal Appeal (CCA) when appeal numbers were increasing.
By the time the Court of Appeal (COA) was set up in 2014, there was a backlog of 3,000 civil appeals and 600 criminal appeals. The acute systemic delay problem in the CCA at the time caused Mr O’Callaghan’s appeal not to be heard within a reasonable timeframe, the judge said.
His appeal had to be adjourned five times over a 17 month period because, for systemic reasons, it proved impossible to empanel judges to deal with it or many hundreds of other appeals then pending before the CCA.
In holding Mr O’Callaghan was entitled to €5,000 damages, the judge stressed that was intended “to deal with the justice of this one case, and not other hypothetical cases”.
The “marginal” evidence crossed the threshold for a finding of “a violation of his constitutional right to a trial and appeal process conducted in accordance with Article 38.1 of the Constitution”.
He was giving the five judge court’s judgment allowing Mr O’Callaghan’s appeal against the COA’s dismissal of his claim for damages.
Now aged in his 50s, Mr O’Callaghan, of Ardcullen, Holyhill, Cork, won an appeal in 2013 against his 2011 conviction for a March 2009 robbery of Blackpool Post Office in Cork, during which €20,000 was taken by two masked raiders. The CCA held there was insufficient evidence for the case against him to have gone to a jury.
After the High Court in 2019 dismissed his claim for damages, he appealed. The COA rejected his appeal but he secured a further appeal to the Supreme Court.
Mr Justice MacMenamin said the substantial lapse of time here “can only be a cause of real concern” and was a result of defects in the system for which the State was responsible.
Under the Constitution, the responsibility lies with the State to provide adequate resources to allow a judiciary to conduct its work in a timely way as a service to the public and the State itself, he said.
He was not persuaded a simple declaration would be sufficient to reflect the justice of this case, particularly bearing in mind Mr O’Callaghan’s period in custody.
Damages must also be commensurate with the constitutional wrong found and limited to that arising directly as a result of the denial of the Article 38 right. That right had particularly consequences, accepting Mr O’Callaghan was entitled to a timely order ultimately granted by the CCA.
Had the appeal been completed within a reasonable and proportionate period to the trial time involved, there could have been no breach of Mr O’Callaghan’s constitutional right, he said.
Mr O’Callaghan was convicted in due course of law and his conviction was quashed in due course of law and this judgment was intended to deal with the justice of this one case.
In concluding €5,000 damages was appropriate, he said that must be seen in the context that the issue is the vindication of a constitutional right, rather than a proper tort, and without any evidence of misconduct or bad faith by the State.
Delay, the judge noted, “can deny even a judgment of its value”. The progress of this case, initiated in the High Court in 2015, itself illustrated the fact “it will be necessary in the future to adopt new practices necessary to uphold the letter and spirit of the Constitution”.
While some of his judgment may make “uncomfortable reading”, substantial work has been done improving court procedures, both in criminal and civil proceedings, and that process is continuing, he added.
