Kennedy v DPP

• Jurisdiction: Ireland
• Judgment Date: 07 June 2012
• Docket Number: [S.C. No. 315 of 2011]
• Date: 07 June 2012
• Court: Supreme Court

Kennedy v. Director of Public Prosecutions

James Kennedy

Applicant

and

The Director of Public Prosecutions

Respondent

[2012] IESC 34,

[S.C. No. 315 of 2011]

Supreme Court

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 on 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 - Constitution of Ireland 1937, Article 38.1 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 3 and 6.

Practice and procedure - Judicial review - Discovery - Privilege - Public interest privilege - Whether unfair to refuse discovery of documents over which public interest privilege claimed - Objective bias - Trial judge - Whether trial judge should have recused himself - Whether comments of trial judge gave rise to reasonable apprehension of bias.

The applicant was charged with certain corruption offences. The applicant initiated judicial review proceedings seeking to have his trial prohibited on the grounds of delay. The High Court (Hedigan J.), refused to grant an order of prohibition and held that the delay on the part of the prosecution was excusable on the grounds, inter alia, that a key witness for the prosecution was unavailable due to being a witness in a related tribunal of inquiry and also due to the desire of the prosecution to obtain a conviction against that witness on related charges [see [2011] IEHC 311]. Immediately prior to the hearing of the proceedings in the High Court, the trial judge refused, ex tempore, to order the discovery of certain documents to the applicant on the grounds of public interest privilege. The trial judge had viewed the said documents and described them as "highly prejudicial" to the applicant.

The applicant appealed to the Supreme Court on the grounds that,inter alia, the trial judge erred in refusing discovery of the documents, the trial judge erred in failing to recuse himself on the ground of objective bias following his viewing of the documents, and the trial judge had erred in his findings regarding the applicant's right to an expeditious trial and prosecutorial delay.

Held by the Supreme Court (Denham C.J., Fennelly, O'Donnell and Clarke JJ.; Hardiman J. dissenting), in dismissing the appeal, 1, that the court should only prohibit criminal proceedings where prosecutorial delay infringed a person's constitutional right to an expeditious trial where the delay was inordinate, inexcusable and the balance of justice lay in favour of prohibition.

Per Clarke J.: The court should first ask whether a fair trial is possible, second, if so, whether there was culpable prosecutorial delay, and thirdly, if so, whether the balance of justice lay in favour of prohibition.

Quaere per O'Donnell J.: Whether the test of "real and substantial risk to a fair trial" in cases seeking prohibition of criminal proceedings was correct.

State (O'Connell) v. Fawsitt [1986] I.R. 362doubted.

2. That in order to prohibit criminal proceedings on the basis of delay causing stress and anxiety, it was necessary to provide an evidential basis of the stress and anxiety allegedly suffered.

• P.M. v. Malone [2002] 2 I.R. 560 approved.

3. That delay in bringing a prosecution was reasonable in circumstances where the prosecution was awaiting the conviction of a key witness on related charges.

Cosgrave v. Director of Public Prosecutions [2012] IESC 24, [2012] 3 I.R. 666 approved.

Per Hardiman J. (dissenting): Where it was not legally necessary to await the prosecution of a key witness, the delay was inexcusable.

4. That there was very significant public interest in permitting allegations of corruption against public officials to proceed to trial.

Cosgrave v. Director of Public Prosecutions [2012] IESC 24, [2012] 3 I.R. 666 approved.

Per Hardiman J. (dissenting): It would be wrong if people accused of a particular class of offence were treated either more, or less, favourably by the law. The permissive attitude to delay from child sexual abuse cases should not spread to other offences merely because those offences attracted particular opprobrium in the public mind.

5. That it was not unfair to a party in civil proceedings to refuse the disclosure of documents over which public interest privilege was claimed.

Edwards and Lewis v. United Kingdom (App. Nos. 39647 & 40461/98) (2005) 40 E.H.R.R. 24 distinguished.

6. That where the issue of objective bias arising out of a comment of trial judge was not raised before that trial judge, it could not be raised on appeal.

Per Fennelly J. (dissenting): A party might not knowingly waive a ground of objection by failing to raise the matter of objective bias with the trial judge, although the failure to so raise was strongly indicative of there having been no reasonable apprehension of bias.

Corrigan v. Irish Land Commission [1977] I.R. 317distinguished.

Per Clarke J. (obiter): There was nothing, in principle, wrong in a trial judge examining documents for the purposes of determining whether public interest privilege should be upheld. However, if a significant prejudice occurred as a result thereof, it could warrant the trial judge declining to hear the case further.

7. That proceedings seeking to prohibit a criminal trial due to breach of the European Convention on Human Rights 1950 could not be pursued in the absence of a claim for damages for breach of such rights.

Cases mentioned in this report:-

Ambiorix Ltd. v. Minister for the Environment (No. 1) [1992] 1 I.R. 277; [1992] I.L.R.M. 209.

B. v. Director of Public Prosecutions [1997] 3 I.R. 140.

Barker v. Wingo (1972) 407 U.S. 514.

Barry v. Ireland (App. No. 18273/04) [2005] E.C.H.R. 865, (Unreported, European Court of Human Rights, 15th December, 2005).

Bell v. Director of Public Prosecutions [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585.

Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412.

Byrne v. Director of Public Prosecutions [2010] IESC 54, [2011] 1 I.R. 346.

Corrigan v. Irish Land Commission [1977] I.R. 317.

Cosgrave v. Director of Public Prosecutions [2012] IESC 24, [2012] 3 I.R. 666.

D. v. Director of Public Prosecutions [1994] 2 I.R. 465.

Director of Public Prosections v. Byrne [1994] 2 I.R. 236; [1994] 2 I.L.R.M. 91.

Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408.

Edwards and Lewis v. United Kingdom (App. Nos. 39647 & 40461/98) (2005) 40 E.H.R.R. 24; [2004] E.C.H.R. 560.

Fitzpatrick v. Shields [1989] I.L.R.M. 243.

Goodman International v. Mr. Justice Hamilton (No. 1) [1992] 2 I.R. 542; [1992] I.L.R.M. 144.

T.H. v. Director of Public Prosecutions [2006] IESC 48, [2006] 3 I.R. 520.

Kenny v. Trinity College Dublin [2007] IESC 42, [2008] 2 I.R. 40.

P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 I.R. 172; [2006] 2 I.L.R.M. 361.

P.M. v. Malone [2002] 2 I.R. 560.

Murphy v. Corporation of Dublin [1972] I.R. 215; (1971) 107 I.L.T.R. 65.

J. O'C . v. Director of Public Prosecutions [2000] 3 I.R. 478.

O Domhnaill v. Merrick [1984] I.R. 151; [1985] I.L.R.M. 40.

Orange Ltd. v. Director of Telecoms (No. 2) [2000] 4 I.R. 159.

Rainsfort v. Limerick Corporation [1995] 2 I.L.R.M. 561.

The State (Byrne) v. Frawley [1978] I.R. 326.

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

P.T. v. Director of Public Prosecutions [2007] IESC 39, [2008] 1 I.R. 701.

Appeal from the High Court

The facts are summarised in the headnote and are more fully set out in the judgments of Denham C.J., Hardiman, Fennelly, O'Donnell and Clarke JJ., infra.

The applicant was granted leave to seek judicial review by the High Court (Peart J.) on the 7th March, 2011. By notice of motion dated the 6th March, 2011, the applicant sought to prohibit his trial on criminal charges. An application for discovery and the judicial review proceedings were heard together by the High Court (Hedigan J.) on the 20th July, 2011. The reliefs sought were refused by order of the High Court (Hedigan J.) dated the 28th July, 2011 [see [2011] IEHC 311] .

By notice of appeal dated the 28th July, 2011, the applicant appealed to the Supreme Court.

The appeal was heard by the Supreme Court (Denham C.J., Hardiman, Fennelly, O'Donnell and Clarke JJ.) on the 17th and 18th April, 2012.

Cur. adv. vult.

Denham C.J. 7th June, 2012

Denham C.J.

[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, 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 respondent to prosecute, and prohibit a criminal trial proceeding.

[2] James Kennedy, the applicant, 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

[3] On this appeal counsel stressed several specific issues, as follows:-

(a) a disclosure matter;

(b) the right to an expeditious trial; and,

(c) the European Convention on Human Rights 1950.

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