Cosgrave v DPP and Another

• Jurisdiction: Ireland
• Court: Supreme Court
• Judge: Denham C.J.,Mr. Justice Hardiman,O'Donnell J.
• Judgment Date: 26 April 2012
• Neutral Citation: [2012] IESC 24
• Date: 26 April 2012

Cosgrave v DPP & Ors

Between/

Liam Cosgrave

Applicant/Appellant

and

The Director of Public Prosecutions, Ireland and the Attorney General

Respondents

[2012] IESC 24

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O'Donnell J.

No. 322/2011

THE SUPREME COURT

CRIMINAL LAW

Trial

Criminal process - Criminal trial - Prosecution of offences - Trial in due course of law - Role of Director of Public Prosecutions - Abuse of process - Duty to bring all prosecutions at first opportunity - Obligation to inform of potential prosecution - Accomplice - Corroboration warning - Whether prosecution abuse of process, oppressive or unfair - Whether duty to bring all prosecutions at first opportunity - Whether charges based on substantially same set of facts or similar offences - Whether real risk of unfair trial - Whether court should prohibit trial proceeding - Whether court could review decision of prosecutor - AA v Medical Council [2003] 4 IR 302; Arklow Holidays Ltd v An Bord Pleanála [2007] IEHC 327, (Unrep, Clarke J., 5/10/2007); Attorney General for Gibraltar v Leoni (Unrep, Court of Appeal for Gibraltar, 19/3/1999); Attorney General v Linehan [1929] IR 19; Barker v Wingo (1972) 407 US 514; DC v Director of Public Prosecutions [2005] IESC 77, [2005] 4 IR 281; Carlin v Director of Public Prosecutions [2010] IESC 14, [2010] 3 IR 547; Connelly v Director of Public Prosecutions [1964] AC 1254; Cox v Dublin City Distillery (No 2) [1915] 1 IR 345; D v Director of Public Prosecutions [1994] 2 IR 465; Davies v Director of Public Prosecutions [1954] AC 378; Dental Board v O'Callaghan [1969] IR 181; Eviston v Director of Public Prosecutions [2002] IESC 62, [2002] 3 IR 260; Glencar Exploration plc v Mayo County Council (No 2) [2002] 1 IR 84; Henderson v Henderson (1843) 3 Hare 100; Johnson v Gore Wood & Co [2002] 2 AC 1. PM v Malone [2002] 2 IR 560; SM v Ireland [2007] IESC 11, [2007] 3 IR 283; McFarlane v. Director of Public Prosecutions [2008] IESC 7, [2008] 4 IR 117; McNee v Kay [1953] VLR 520; O'Flynn v District Justice Clifford [1988] IR 740; R v Baskerville [1916] 2 KB 658; R v Beedie [1998] QB 356; R v Elrington (1861) 1 B & S 688; R v Green (1825) 1 Craw and Dix 158; R v Mattu [2009] EWCA Crim 1483, [2010] Crim LR 229; R v Riebold [1967] 1 WLR 674; State (McCormack) v Curran [1987] ILRM 225; Woodhouse v Consigna plc [2002] EWCA Civ 275, [2002] 1 WLR 2558 and Z v Director of Public Prosecutions [1994] 2 IR 476 considered - Appeal dismissed (322/2011 - SC - 26/4/2012) [2012] IESC 24

Cosgrave v Director of Public Prosecutions

RSC O.84 r20

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 4 PROTOCOL 7

PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1(1)

PREVENTION OF CORRUPTION ACT 1916 S4(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S38

ELECTORAL ACT 1997 S24(1)(A)

ELECTORAL ACT 1997 S25(1)(D)

ELECTORAL ACT 1997 S25(2)(B)

GLENCAR EXPLORATION PLC v MAYO CO COUNCIL 2002 1 ILRM 481

EUROPEAN CONVENTION ON HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS ART 6

HENDERSON v HENDERSON 1843 3 HARE 100

PROSECUTION OF OFFENCES ACT 1974 S2(5)

EVISTON v DPP 2002 3 IR 260

MCCORMACK, STATE v CURRAN 1987 ILRM 225

D v DPP 1994 2 IR 465 1994 1 ILRM 435 1993/11/3372

Z v DPP 1994 2 IR 476

CARLIN v DPP 2010 IESC 14 2010 2 ILRM 145 2010 3 IR 547

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005 IESC 77 2005/8/ 1599

R v ELRINGTON 1861 1 B & S 688

CONNOLLY v DPP 1964 AC 1254

ELECTORAL ACT 1997 S22

R v BEEDLE 1998 QB 356

DOUBLE JEOPARDY & PROSECUTION APPEALS LAW COM NO. 267 2001

AG FOR GIBRALTAR v LEONI CA NO.4 1998

M (S) v IRELAND 2007 4 IR 369

MCFARLANE v DPP 2008 4 IR 117

WOODHOUSE v CONSIGNA 2002 1 WLR 25

A(A) v MEDICAL COUNCIL 2003 4 IR 302

ARKLOW HOLIDAYS LTD v BORD PLEANALA UNREP CLARKE 5.10.2007 2007/4/618 2007 2007 IEHC 327

COX v DUBLIN CITY DISTILLERY (NO2) 1915 1 IR 345

DAVIES v DPP 1954 AC 378

AG v LINEHAN 1929 IR 19

MCGRATH ACCOMPLICE CORROBORATION WARNING 1999 IR JUR 170

MCNEE v KAY 1953 VLR 520

DENTAL BOARD v O'CALLAGHAN 1969 IR 181

R v GREEN 1825 1 CRAW & DIX CIRCUIT CASES 158

R v BASKERVILLE 1916 2 KB 658

INDICTMENTS ACT 1915 (UK) SCHED 1

R v MATTU 2009 EWCA CRIM 1483

O'FLYNN v DISTRICT JUSTICE CLIFFORD 1988 IR 740

M (P) v MALONE 2002 2 IR 561

BARKER v WINGO 1972 407 US 514

1 Judgment delivered on the 26th day of April 2012 by Denham C.J.

2 JUDGMENTS DELIVERED BY DENHAM CJ [MURRAY J & FENNELLY J CONCUR.] & HARDIMAN J & O'DONNELLJ

3 1. At issue in this appeal is whether the Court should prohibit a criminal trial proceeding. Such an application may succeed only in exceptional circumstances. The burden rests upon the person seeking such a remedy to show that on the facts of the case there has been an abuse of process so as to give rise to a real risk of an unfair trial.

4 2. Liam Cosgrave, the applicant/appellant, referred to in this judgment as "the appellant" has brought an appeal from the order and judgment of the High Court (Hedigan J.) which was given on the 28 ^th July, 2011, and which refused the reliefs sought by the appellant.

Notice of Motion

5 3. The appellant sought an order permanently restraining the Director of Public Prosecutions from prosecuting him on the current charges. By Notice of Motion dated the 9 ^th March, 2011, the appellant had sought by way of judicial review the following reliefs in the High Court:-

6 i "(i) An Order permanently restraining the first named respondent herein from continuing to prosecute [the appellant] in respect of the charges alleged against him in Bill Number 1216/2010 at present pending before the Dublin Circuit Criminal Court;

7 (ii) A Declaration that the initiation and continuation of the prosecution of the appellant on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate [the appellant's] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where [the appellant] has already been prosecuted, has pleaded guilty, has been convicted and sentenced on Bill No. DU 430/2005 for an offence arising from the same factual matrix grounding the instant prosecution on Bill No. DU 1216/2010;

8 (iii) An order against the first named respondent pursuant to Order 84, Rule 20, of the Rules of the Superior Courts staying the further prosecution of [the appellant] herein on the charges complained of herein until the determination of these proceedings."

9 The reliefs were sought against the Director of Public Prosecutions, referred to as "the DPP", Ireland and the Attorney General, the respondents, who are referred to collectively as "the respondents".

Grounds

10 4. The appellant sought the relief generally on the grounds that the prosecution was an abuse of process. The specific grounds upon which this relief was sought were set out in the statement grounding the application for judicial review and were as follows:-

11 i "(i) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant's] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances here the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Statement of Witness Frank Dunlop dated 16 ^th day of March 2004 which forms the evidential basis to the current charges.

12 ii (ii)The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill Number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant's] constitutional right to trial in due course of law, and his rights under the European Convention of Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities prosecuted the [appellant] on Bill No. DU 430/2005 while having been then, in 2005, in possession of the Memo of Interview of Liam Cosgrave dated 3 ^rd day of March 2004 which now forms Exhibit 22 of the book of evidence in Bill Number 1216/2010.

13 iii (iii)The initiation and continuation of the prosecution of the [appellant] on Charge 20 alleged in Bill number 1216/2010 amounts to an abuse of process, is oppressive and unfair, amounts to a violation and failure to vindicate the [appellant's] constitutional right to trial in due course of law, and his rights under the European Convention on Human Rights and its conventions and protocols, and is in breach of his legitimate expectations in circumstances where the investigating and prosecuting authorities in 2005 prosecuted the [appellant] on a book of evidence with regard to Bill Number 430/2005 containing the following statement of evidence from Witness Frank Dunlop:

14 'I confirm that at the recent sittings of the Flood Tribunal (now the Mahon Tribunal) at Dublin Castle in the course of the "Carrickmines 1 Module", I gave on oath the following evidence in relation to payments made to Liam Cosgrave Esq:-

15 …

16 2. IR £2,000 cash between the 12 ^th of June, 1992 and the 29 ^th of June, 1992.'

17 iv (iv)The initiation and continuation of the prosecution of the [appellant] on Charges 21, 22, 23 and 24...