Kennedy -v- D.P.P. & Anor, [2007] IEHC 3 (2007)

Docket Number:2006 245 JR
Party Name:Kennedy, D.P.P. & Anor
Judge:Mac Menamin J.
 
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THE HIGH COURTJUDICIAL REVIEW[2006 No. 245 J.R.]BETWEENJOHN KENNEDYAPPLICANT ANDTHE DIRECTOR OF PUBLIC PROSECUTIONS AND THE ATTORNEY GENERALRESPONDENTSJUDGMENT of Mr. Justice John MacMenamin dated the 11th day of January 2007.1. At the time relevant to these proceedings the applicant was a Clerical Officer in the Department of Justice Equality and Law Reform, working in the Immigration Section. In the course of that employment he is alleged to have committed a number of offences between the months of November 2002 and January 2003. In outline the charges against him are that he corruptly accepted gifts of money in the sum of 500, bottles of wine, or meal vouchers, as an inducement to showing favour to four different persons who had recourse to the Immigration Section, and that the applicant, who had responsibility for issuing certain residency permits to foreign nationals, did so in a corrupt manner.2. ChronologyBecause one issue raised by the respondents herein is delay, it is necessary to set out a chronology of events.The applicant was returned for trial on 16th March, 2004. The case was first mentioned in the Circuit Criminal court on 2nd April of that year. It was also mentioned on 18th May, 2004 and 13th July, 2004. An issue of disclosure of documents arose. Thereafter the matter was listed for mention on five occasions between 16th July, 2004 and 4th February, 2005.3. On the latter date, submissions were made to the Circuit Court in respect of this outstanding issue of disclosure. That matter was again adjourned to the 11th February, 2005. There were four further adjournments between the 11th March, 2005 and 11th July, 2005 inclusive. The case was then adjourned to 3rd October, 2005 for arraignment, when, five months in advance, a trial date was set for 9th March, 2006. Between October 2005 and March 2006 there were two interim dates that is 17th and 24th February, 2006 where the matter was listed for mention.4. On 6th March, 2006, at a time when as seen the trial date had been fixed for five months, and just three days before the trial date, the applicant sought leave to bring judicial review proceedings. It does not appear from the High Court order made on that day whether an extension of time for leave was sought or granted.5. While the actual offences with which the applicant is charged are under s. 1(1) and (4) of the Prevention of Corruption Act 1906, as inserted by s. 2 of the Prevention of Corruption Act, 2001, the declaration sought relates to s. 4 of the latter Act.6. The applicant seeks a declaration that s. 4 of the Act of 2001 is invalid, having regard to the provisions of the Constitution of Ireland. He also seeks a declaration that the aforesaid section is incompatible with the State's obligations under the European Convention on Human Rights, for reasons discussed below.However the issues which arise for consideration herein are not confined to these reliefs; in that other issues, raised by the respondents also arise for consideration. These include the appropriateness of judicial review proceedings in seeking relief of the type sought; whether the application is premature or moot in that the matters in contention have not been the subject matter of a ruling from the trial judge in the Circuit Court; and whether the applicant has been guilty of delay in the initiation of these proceedings.7. The Section sought to be impugnedSection 4 of the Prevention of Corruption (Amendment) Act 2001 provides:-4-(1) "Where in any proceedings against a person referred to in subs. (5)(b) of s. 1 (inserted by s. 2 of this Act) of the Act of 1906, as amended, it is proved that-(a) any gift consideration or advantage has been received by any person(b) the person who gave the gift, consideration or advantage or on whose behalf the gift consideration or advantage was given had an interest in the discharge by the person of any of the functions specified in this section,the gift or consideration or advantage shall be deemed to have been given and received corruptly as an inducement to or reward for the person performing or omitting to perform any of the functions aforesaid unless the contrary is proved." (emphasis added).8. The applicant seeks declarations that the section in question is invalid having regard to Article 38(1) of the Constitution of Ireland (which generates a trial in due course of law) and that the section is incompatible with the State's obligations under the European Convention on Human rights as provided for under the European Convention of Human Rights Act 2003 (ECHRA). Inter alia these contentions are made upon the basis of an alleged shifting of the legal burden of proof to an accused, and an alleged abrogation of the right to silence by virtue of the terms of s.4 of the Act of 2001 which emphasis has been added.9. The Procedural IssuesA number of procedural issues are raised by the respondents including allegations of delay in bringing these proceedings, and prematurity or mootness by reason of the fact that the issues are raised herein appropriately lie in the domain of the trial judge. The court must consider whether if, a sustainable allegation of delay has occurred, should it then nonetheless proceed to deliver judgment on the remainder of the substantial constitutional or convention issues? Similar questions arise were the court to conclude that the issue is hypothetical or premature, or if the court were to hold that the application should have been brought by way of plenary proceedings seeking declarations under the Constitution and the ECHRA.10. Procedural and Substantive IssuesRecent authority, discussed below, shows the guarded approach the Supreme Court has adopted in dealing with substantive issues when important procedural questions also arise.In C.C v. Ireland and the Attorney General and the Director of Public Prosecutions (12th July 2005, Unreported), in view of the importance of the issues raised, and in the light of a decision on constitutionality and statutory interpretation having been made by the trial judge in High Court judicial review proceedings, the Supreme Court considered it necessary to deal with the constitutionality of the provision impugned, in that case the availability of the defences of mistake of age on a charge of unlawful carnal knowledge of a minor, under s. (1) of the Criminal Amendment Act 1935 and the proper interpretation of that provision.For the applicant herein just as for the applicant in C.C. the issue raised is of importance. The question here also, appertains to the interpretation of the section in issue, its constitutional validity or compatibility with the Convention. If this court were to deal with the constitutional and legal substance of the application it may be suggested that, an exception has been made to a general principle where the Supreme Court has stated that such applications should not normally be entertained. If on the other hand this court declines to entertain the "points of substance" on procedural grounds the consequence will be that on an appeal to the Supreme Court issues which maybe of importance will not have been considered in the High Court judgment.To the practitioner to these issues also pose a challenge, in identifying precisely whether an application to challenge the constitutionality of a section may pre-emptively be initiated if an applicant is being charged before a criminal court. Must an applicant be exposed to a trial prior to raising the constitutionality of a section or may pre-emptive applications be made pre-trial? As a separate issue should issues of procedure in judicial review be dealt with prior to a substantive hearing by way of motion for directions brought after the filing of a statement of opposition? In view of the significance of the issues this judgment will seek to address sequentially these interlinked issues and thereafter apply the relevant principles.11. The C.C. Case (12th July, 2005) delay, prematurity, mootness, and 'exceptional circumstances'.In C.C. v. Ireland and Others (the Supreme Court 12th July, 2005) very similar procedural issues arose as apply here. It must be considered in some detail.At first instance the trial judge had ruled that while there was delay in initiating proceedings, the issue was too important to be determined simply on procedural grounds. He therefore made findings on the constitutionality of the section impugned, and precluded the potential defences. On appeal to the Supreme Court the discrete questions of delay and prematurity were also considered, which are relevant here.Denham J., (although in the minority on other issues), Geoghegan J. and Fennelly J. each addressed the issue. It is important to consider the rationale adopted by each judge in their ruling to ultimately entertain the substantive questions.In the course of her judgment Denham J. stated on the issue of delay:"The learned High Court judge held that the applicant's application for judicial review was out of time and had not been made promptly. However, he determined that the issues in the instant case were far too important to permit the judicial review application to be decided on a time point only unless some serious prejudice has or is likely to be caused. He held that prejudice in this context is not confined to the parties but is to be considered in the context of a fair and efficient justice system to the whole community. Further, he relied on the public policy that proceedings relating to public domain law should take place promptly, except where...

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