Kennedy v DPP

• Jurisdiction: Ireland
• Judge: Denham C.J.,Mr. Justice Fennelly,Mr. Justice Clarke,Mr. Justice Hardiman,O'Donnell J.
• Judgment Date: 07 June 2012
• Neutral Citation: [2012] IESC 34
• Court: Supreme Court
• Date: 07 June 2012

[2012] IESC 34

THE SUPREME COURT

Denham C.J.

Hardiman J.

Fennelly J.

O'Donnell J.

Clarke J.

[Appeal No: 315/2011]

Kennedy v DPP

[2012] IESC 34

Between/

James Kennedy

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1(2) (UK)

PREVENTION OF CORRUPTION ACT 1916 S4(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S38

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 S3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EDWARDS & LEWIS v UNITED KINGDOM 2005 40 EHRR 24

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

HOLLANDER DOCUMENTARY EVIDENCE 10ED 2009 PARA 18.11

DUBLIN WELLWOMAN CENTRE v IRELAND 1995 1 ILRM 408

BULA LTD & ORS v TARA MINES & ORS 2000 4 IR 412 2000 3 925

KENNY v TRINITY COLLEGE DUBLIN 2008 2 IR 40

CONSTITUTION ART 38.1

O'CONNELL, STATE v FAWSITT 1986 IR 362

P (M) v MALONE 2002 2 IR 560

BARKER v WINGO 1972 407 US 514

COSGRAVE v DPP DENHAM UNREP SUPREME 26.4.2012 2012 IESC 24

T(P) v DPP 2008 1 IR 701

D v DPP 1994 2 IR 465

M (P) v MALONE & DPP 2002 2 IR 560

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22

EUROPEAN CONEVENTION ON HUMAN RIGHTS ACT 2003 S3

BYRNE, STATE v FRAWLEY 1978 IR 326

CORRIGAN v IRISH LAND CMSN 1977 IR 317

BULA LTD v TARA MINES (NO 6) 2000 4 IR 412

ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMS (NO 2) 2000 4 IR 159

AMBIORIX LTD v MIN FOR THE ENVIRONMENT (NO 1) 1992 IR 277

MURPHY v DUBLIN CORP 1972 IR 215

H (T) v DPP & SMITHWICK 2006 3 IR 520

RAINSFORT v LIMERICK CORP 1995 2 ILRM 561

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 542

FITZPATRICK v SHIELDS & DPP 1989 ILRM 243

O DOMHNNAILL v MERRICK 1984 IR 151

O'C (J) v DPP 2000 3 IR 478

BYRNE v DPP UNREP FENNELLY SUPREME 17.11.2010 2010/6/1371 2010 IESC 54

CRIMINAL LAW

Delay

Right to fair trial - Right to expeditious trial - Prohibition of trial - Prejudice - Prosecutorial delay - Test to be applied - Whether "real and substantial risk to fair trial" correct test - Whether delay inordinate - Whether delay inexcusable - Whether balance of justice lay in favour of prohibition of trial - Whether prosecutor culpable in delay - Whether permissible for prosecutor to await successful prosecution of witness for related charges - Whether medical evidence necessary to prohibit trial due to stress and anxiety - Whether claim for damages necessary to prohibit trial for breach of European Convention on Human Rights - The State (O'Connell) v Fawsitt [1986] IR 362 doubted; PM v Malone [2002] 2 IR 560 approved; Cosgrave v DPP [2012] IESC 24, (Unrep, SC, 26/4/2012) approved - Constitution of Ireland 1937, Article 38.1 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 3 and 6 - Appeal dismissed (315/2011 - SC - 7/6/2012) [2012] IESC 34

Kennedy v DPP

Facts The appellant who was sent forward for trial on sixteen counts of corruptly giving certain sums of money to named County Council members on various dates between 1992 and 1997 sought to prohibit his trial on the grounds of delay. The respondent directed in June 2010 that the appellant be charged with corruption and the appellant was duly arrested and the book of evidence was served on him in October 2010. Mr Justice Hedigan in the High Court refused the appellant's application for judicial review on the basis that the delay was excusable. In the statement of grounds the appellant also sought damages pursuant to s. 3 of the European Convention on Human Rights Act 2003. The appellant objected to the delay by the respondent in advancing the prosecution against him and he relied on his Constitutional right to a trial in due course of law and submitted also that he had a personal right under the Constitution to an expeditious trial. The appellant also relied on his rights pursuant to the European Convention on Human Rights. In addition, counsel on behalf of the appellant submitted that an unfair procedure was adopted by the learned High Court judge whereby he viewed certain documents over which the respondent had claimed privilege and the appellant also submitted that as the learned trial judge had examined documents which he held to be inadmissible, referred to some of those documents as 'highly prejudicial' to the defendant and then proceeded to determine the judicial review application there was objective bias on the part of the trial judge. In support of his submissions regarding the disclosure procedure, the appellant relied on the case of Edwards and Lewis v. The United Kingdom (2005) 40 E.H.R.R. 24.

Held by the Supreme Court; Denham C.J.(Hardiman, Fennelly, O'Donnell JJ concurring): 1. That the Edwards case relied on by the appellant concerned a criminal trial. However, the case before this court was a civil process arising on an application for judicial review. The learned High Court judge did not apply the Edwards case and this court would not intervene in that determination. The issue of objective bias could not be raised in this court as the law governing that area was not opened to the High Court judge, no application was made to the learned trial judge to recuse himself on the basis of objective bias and consequently no decision regarding this issue was made in the High Court.

2. That the right to an expeditious trial has been recognised as a personal right of an accused person. There was delay in bringing the prosecution against the appellant. However, the reason for that delay was excusable, namely that the respondent decided to wait until a key witness had been prosecuted and a decision of conviction or acquittal in respect of that person was obtained prior to prosecuting the appellant. Consequently there was no blameworthy prosecutorial delay in this case. In any event the prejudice alleged by the appellant was not sufficient to prohibit the trial.

3. The appellants claim for damages pursuant to s. 3 of the 2003 Act was abandoned in the High Court and consequently could not be considered by this court on appeal.

Per Clarke J.: That it was fundamentally mistaken to view the jurisprudence of the European Court of Human Rights on the right to a reasonably expeditious trial as implying that any case in which a failure to provide for such a trial is established necessarily gives rise to an entitlement on the part of an accused to avoid a trial on the merits. In a case such as this the court should consider three questions, firstly is a fair trial possible, secondly, if so has there been culpable prosecutorial delay and thirdly, if so where does the balance of justice lie. In this case the court could not conclude that it was not possible for the appellant to receive a fair trial. However, the delay was not fully explained by the respondent. Consequently, there was culpable prosecutorial delay albeit that some of the delay was explained. However, having regard to all the circumstances and in particular the absence of specific prejudice and the lack of evidence of stress and anxiety the balance of justice clearly favoured the continuance of the trial.

1 Judgment delivered on the 7th day of June, 2012 by Denham C.J.

2 JUDGMENTS DELIVERED BY ALL MEMBERS OF THE COURT

3 1. This appeal is brought seeking an injunction prohibiting or restraining a criminal trial. The decision to prosecute has been made by the Director of Public Prosecutions, the respondent, referred to as "the DPP", which is an independent statutory office. The Court will intervene in a decision to prosecute, and will prohibit a trial, only in exceptional circumstances. Thus, the issue on this appeal is whether there are exceptional circumstances such that the Court should intervene, in the decision of the DPP to prosecute, and prohibit a criminal trial proceeding.

4 2. James Kennedy, the applicant/appellant, referred to as "the appellant", was sent forward for trial on sixteen charges in the Dublin Circuit Criminal Court. The charges allege instances of corruptly giving sums of money to named members of Dublin County Council, or to office holders or directors of Dún Laoghaire Rathdown County Council.

Issues

5 3. On this appeal counsel stressed several specific issues, as follows:-

6 (a) A disclosure matter;

7 (b) The right to an expeditious trial; and

8 (c) The European Convention on Human Rights.

9 Before considering each of these issues in detail, I will set out background facts to this appeal.

Charges

10 4. The appellant was brought before the Dublin District Criminal Court on the 22 ^nd October, 2010, and charged with sixteen offences, as follows:-

11 i "(i) Charge Sheet No, 10882572

12 For that you the said accused did, on the 11 ^th day of June 1992 at the offices of Frank Dunlop and Associates Limited, 25 Upper Mount Street, Dublin 2 in the County of the City of Dublin, corruptly give a sum of money as a gift to Sean Gilbride, for the benefit of the said Sean Gilbride, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Sean Gilbride, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines comprising approximately 108 acres be zoned 'E' (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said Dublin County Council was concerned.

13 Contrary to Section 1(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption Act, 1916.

14 (ii) Charge Sheet No. 10882637

15 For that you the said accused did, on a date unknown between the 12 ^th day of June 1992 and the 29 ^th day of June 1992, both dates inclusive, at Conway's Public House, Parnell Street, Dublin 1 in the County of the City of Dublin, corruptly give a sum of...