Kennedy v DPP

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hedigan
• Judgment Date: 28 July 2011
• Neutral Citation: [2011] IEHC 311
• Date: 28 July 2011

[2011] IEHC 311

THE HIGH COURT

[No. 217 J.R/2011]

Kennedy v DPP

BETWEEN:

JAMES KENNEDY

APPLICANT

V.

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

RSC O.84 r20(7)(A)

RSC O.84 r21

EUROPEAN CONVENTION OF HUMAN RIGHTS ACT 2003 S3

PUBLIC BODIES CORRUPT PRACTICES ACT 1889 S1(2)

PREVENTION OF CORRUPTION ACT 1916 S4(2)

ETHICS IN PUBLIC OFFICE ACT 1995 S38

CONSTITUTION ART 38(1)

F (B) v DPP 2001 1 IR 656

M (P) v MALONE 2002 2 IR 560

FITZPATRICK v SHIELDS 1989 ILRM 243

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

O'MALLEY THE CRIMINAL PROCESS PARA 17.47

MCFARLANE v IRELAND 2011 52 EHRR 20 2010 ECHR 1272

BARKER v WINGO 1972 407 US 514

M (P) v DPP 2006 3 IR 172

CORMACK v DPP 2009 2 IR 208

H (S) v DPP 2006 3 IR 575

K (C) v DPP UNREP SUPREME 31.1.2007 2007/30/6173 2007 IESC 5

BARRY v IRELAND 2005 ECHR 865

H (T) v DPP 2006 3 IR 520

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

B v DPP 1997 3 IR 140

CRIMINAL LAW

Delay

Corruption charges - Inordinate delay - Events occurring 14 to 19 years ago - Difficulty locating applicant - Unavailability of key witness - Effects of delay - Prejudice - Right to fair trial - Right to prosecute - Entitlement to fair hearing within reasonable time - Balancing exercise - Public interest - Whether real or probable risk of unfair trial - Whether stress and anxiety caused as a result of delay justified prohibition of trial proceeding - Whether effects of prosecutorial delay outweighed public interest - Whether prejudice could be overcome by appropriate directions from trial judge - Whether delay inordinate - Whether delay excusable - M(P) v Malone [2002] 2 IR 560 followed - F(B) v DPP [2001] 1 IR 656; People (DPP) v Byrne [1994] 2 IR 236; State (O'Connell) v Fawsitt [1986] IR 362; D v DPP [1994] 2 IR 465; Fitzpatrick v Shields [1989] ILRM 243; McFarlane v Ireland [2010] ECHR 1272; M(P) v DPP [2006] IESC 22, [2006] 3 IR 172; Barker v Wingo (1972) 407 US 514; Cormack v DPP [2008] IESC 63, [2009] 2 IR 208; H v DPP [2006] IESC 65, [2007] 3 IR 395; K(C) v DPP v [2007] IESC 5, (Unrep, SC, 31/1/2007); H(T) v DPP [2006] IESC 48, [2006] 3 IR 520; Barry v Ireland [2005] ECHR 865 and B v DPP [1997] 3 IR 140 considered - European Convention of Human Rights Act 2003 (No 20), s 3 - Public Bodies Corrupt Practices Act 1889 (52 & 53 Vict, c 39), s 1(2) - Prevention of Corruption Act 1916 (c 64), s 4(2) - Rules of the Superior Courts 1986 (SI 15/1986), O 84, r 20(7)(a) - Constitution of Ireland 1937, Art 38(1) - European Convention of Human Rights, art 6(1) - Relief refused (2011/217JR - Hedigan J - 28/7/2011) [2011] IEHC 311

Kennedy v DPP

1 Judgment of Mr. Justice Hedigandelivered the 28th day of July 2011.

2 1. The applicant resides at 13 Comorant Wharf, Queensway Quay, Gibraltar. The respondent is the person charged with the direction, control and supervision of prosecutions in the State and his office is located at Chapter House, 26-30 Upper Abbey Street, Dublin.

3 2. The applicant seeks the following relief's:-

4 (a) An injunction, by way of application for judicial review, prohibiting the Respondent from proceeding with the trial of the Applicant in the Dublin Circuit Court on the 16 charges set forth in a Statement of Charges dated 28 ^th October, 2010 in proceedings entitled "The Director of Public Prosecutions v. JamesKennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox"

5 (b) An injunction restraining the Respondent from taking any or any further steps to prosecute the Applicant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28 ^th October, 2010 in proceedings entitled "The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox."

6 (c) A stay pursuant to Order 84, rule 20(7) (a) of the Rules of the Superior Courts restraining the Respondent from taking any or further steps to prosecute the Applicant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28 ^th October, 2010 in proceedings entitled "The Director of Public Prosecutions v. James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox."

7 (d) In the alternative, and if necessary, an injunction (including an interlocutory or interim injunction) restraining the Respondent from taking any or any further steps to prosecute the Applicant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28 ^th October, 2010 in proceedings entitled The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox" pending the determination of the within proceedings.

8 (e) If necessary, an Order pursuant to Order 84, rule 21, extending the time for bringing this application.

9 (f) Damages pursuant to section 3 of the European Convention of Human Rights Act 2003.

10 (g) Liberty to serve such other parties as this Honourable Court may direct.

11 (h) Liberty to file further affidavits.

12 (i) Liberty to apply.

13 (j) Such further or other reliefs as this Honourable Court may direct.

14 (k) The costs of and incidental to these proceedings.

Background Facts

15 2 3.1 These proceedings arise out of the prosecution of the applicant on indictment in the Dublin Circuit Criminal Court on sixteen charges set forth in a Statement of Charges dated 28 ^th October, 2010. The charges relate to allegations that the applicant corruptly gave sums of money to certain county councillors as an inducement or reward for voting in favour of motions to rezone certain lands at Carrickmines, County Dublin in 1992 and 1997. Those lands were owned in 1992 by a company called Paisley Park Investments Limited (which was liquidated that year) and were owned in 1997 and are still owned by Jackson Way Properties Limited, an English registered company of which the applicant is a director.

16 3 3.2 The first eight charges relate to alleged offences under section 1(2) of the Public Bodies Corrupt Practices Act, 1889 (as amended by section 4 (2) of the Prevention of Corruption Act 1916) allegedly committed in 1992. It is alleged in charges 1-8 that, on various dates between 4 ^th May 1992 and 29 ^th June 1992, the applicant corruptly gave sums of money as gifts to members of Dublin County Council, as an inducement to orreward for, or otherwise on account of each of them voting in favour of a motion to rezone as 'E' (Industrial) in the Dublin County Development Plan 1993, approximately 108 acres of lands at Carrickmines. The second set of eight charges relate to alleged offences under section 1 (2) of the Public Bodies Corrupt Practices Act, 1889 (as amended by section 4(2) of the Prevention of Corruption Act 1916 and section 38 of the Ethics in Public Office Act 1995) allegedly committed in 1997. It is alleged in charges 9-12, that on the 30 ^th October 1997 and 23 ^rd December 1997, the applicant corruptly gave sums of money as gifts to a member of Dublin City Council, namely Liam Cosgrave, as an inducement to or reward for, or otherwise on account of him voting in favour of two motions relating to lands at Carrickmines in the course of the making of the Dun Laoghaire Rathdown County Development Plan. It is further alleged in charges 13-16, that on the 30 ^th October 1997, and on a date unknown between the 30 ^th October, 1997 and the 25 ^th December 1997, the applicant corruptly gave sums of money as gifts to a member of Dublin County Council, namely Tony Fox, as inducement to or reward for, or otherwise on account of him voting in favour of the said two motions.

17 4 3.3 On the 16 ^th December, 1997 one of the motions to rezone part of the Jackson Way Lands was passed. On the 15 ^th November, 1999 the applicant met with the Criminal Assets Bureau. On the 19 ^th October, 2000 Frank Dunlop gave evidence at the Tribunal of Inquiry into Certain Planning Matters and Payments, he admitted making corrupt payments to Councillors. In December 2001 CAB commenced an investigation following receipt of information from Dun Laoighaire Rathdown County Council on 17 ^th December, 2001. On the 7 ^th March, 2002 CAB searched the amusement arcade atWestmoreland Street. On the 16 ^th March, 2004 Frank Dunlop made a statement to the CAB. On the 22 ^nd October, 2004 a file was sent to the DPP. On the 26 ^th July 2006, the CAB initiated proceedings against Jackson Way entitled Criminal Assets Bureau, Plaintiff v Jackson Way Properties Ltd, Defendant. On the 13 ^th of July, 2008 the DPP directed that Frank Dunlop be charged with 16 charges of corruption. On the 21 ^st November 2008, Frank Dunlop was arrested and charged with offences. On the 16 ^th January, 2009 Frank Dunlop pleaded guilty to 5 charges. On the 26 ^th May, 2009 Frank Dunlop was convicted and sentenced. On the 2 ^nd October, 2009 the applicant swore an affidavit in the CAB proceedings. On the 24 ^th June, 2010 the DPP directed that six persons including the applicant be charged. On the 9 ^th July, 2009 directions from the DPP were received by CAB. On the 19 ^th October, 2010 the CAB proceedings commenced and the applicant was arrested at 4:15 pm shortly after leaving the Four Courts. On the 22 ^nd October, 2010 the book of evidence was served. In the within proceedings the applicant seeks an order staying the proceedings on grounds that he has been prejudiced by the delay in these proceedings.

Applicants Submissions

18 2 4.1 The applicant submits that the facts of this case demonstrate that there has been a very considerable delay on the part of the prosecution authorities in prosecuting the charges against the applicant. The charges against him relate to events that are alleged to have occurred some 19 years ago in respect of the first 8 charges and close to 14 years ago in...