Supreme Court dismisses abuse of process appeal, upholding prosecution despite delay and witness issues.

THE SUPREME COURT

No.322/2011

Denham C.J.

Murray J.

Hardiman J.

Fennelly J.

O’Donnell J.

Between/

Liam Cosgrave

Applicant/Appellant

and

The Director of Public Prosecutions

Ireland and the Attorney General

Respondents

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

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.

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 28th July, 2011, and which refused the reliefs sought by the

appellant.

Notice of Motion

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 9th March, 2011, the appellant had sought by way of judicial review the following reliefs in

the High Court:-

“(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;

(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;

(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.”

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

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:-

“(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

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 Statement of Witness Frank Dunlop dated 16th day of March 2004 which

forms the evidential basis to the current charges.

(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 3rd day of March 2004 which

now forms Exhibit 22 of the book of evidence in Bill Number 1216/2010.

(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:

‘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:-

… 2. IR £2,000 cash between the 12th of June, 1992 and the 29th of June, 1992.’

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

‘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:-

…9. IR £2,500 cash on or about 30th October, 1997;

10. IR £4,500 cash on or about 23rd December, 1997;

…

In 1997 I made a number of payments to Mr. Cosgrave detailed as follows:

…

4. On the 30th October 1997 I gave in cash to Liam Cosgrave the sum of IR £2,500 at a meeting in the

Davenport Hotel (Dublin). This payment had nothing to do with election expenses or political

contributions.

5. On the 23rd of December I gave in cash to Liam Cosgrave the sum of IR £4,500 at a meeting in

Buswell’s Hotel (Dublin). This payment had nothing to do with election expenses or political

contributions.’

(v) 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

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.

(vi) 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

where the prosecuting authorities failed to disclose all statements of Frank Dunlop, including those the subject

matter of this prosecution, when requested to do so in the context of the prior prosecution in Bill Number 430/2005.

(vii) The [appellant] who denies the allegations is now being asked to meet charges which date back to 1997 and

as far back as 1992 in circumstances where there are little if any islands of fact or documentation which would aid

recollection of events that far back.

(viii) The initiation and continuation of the prosecution of the [appellant] on the charges alleged in Bill No. DU

1216/2010 amounts to a breach of the first and second named respondents duty under section 3 of the European

Convention on Human Rights Act 2003 by failing to perform their functions in a manner compatible with Article 4 of

Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms done at Strasbourg

on the 22nd day of November 1984 and in particular, the second named respondent is thereby in breach of its

obligations under the said protocol and under the European Convention on Human Rights.

(ix) The cumulative and combined effect of the above factors brings the instant case within the category of cases

in which it is unfair or unjust to put the accused on trial.”

Notice of Opposition

5. The respondents filed a notice of opposition denying the grounds pleaded. The statement of opposition stated:-

“(i) It is denied that the [appellant] is entitled to the relief sought or to any relief.

(ii) The [appellant] has not established that there is a real risk that he will not obtain a fair trial on the charges out

of which this application arises.

(iii) The [appellant]’s trial on the charges out of which this application arises will not breach the [appellant’s] right

to a fair trial either under the Constitution or under the European Convention on Human Rights.

(iv) The initiation and continuation of the prosecution of the said charges against the [appellant] does not amount

to an abuse of process and is neither oppressive nor unfair.

(v) There has been no inordinate or inexcusable delay in prosecuting the offences with which the [appellant] is

charged.

(vi) Further or in the alternative there has been no blameworthy or culpable delay in the prosecution of the

offences with which the [appellant] is charged for which the respondents, their servants or agents, are responsible.

(vii) Without prejudice to the above, it is denied that the elapse of time in this case (regardless of its case [sic]) is

sufficient to give rise to a real risk of an unfair trial.

(viii) It is denied that, in 2005, there was sufficient evidence to put the [appellant] on trial for the offences with

which he is now charged.

(ix) The respondents have not failed in any duties they may owe to the [appellant] pursuant to section 3 of the

European Convention on Human Rights Act 2003, either as alleged or at all.

(x) In particular it is denied that the initiation and continuation of the prosecution of the [appellant] amounts to a

failure by the first and second named respondents to perform their functions in a manner compatible with Article 4

of Protocol No. 7 to the European Convention on Human Rights. The [appellant] is not being tried or punished again

in criminal proceedings for which he has finally been acquitted or convicted in accordance with law. The [appellant]

has not previously been tried or punished in respect of the offences that he now faces.

(xi) It is denied that it would be oppressive, unfair or unjust to put the [appellant] on trial.

(xii) In so far as the [appellant] is seeking to make some sort of double jeopardy argument in paragraph E(5) of the

Statement of Grounds it is denied that the [appellant’s] prosecution on the earlier matters bars his current

prosecution. It is further denied that the offences have the same factual matrix.

(xiii) It is denied that the earlier prosecution of the [appellant] in respect of a distinct matter in any way detracted

from the duty of the first named respondent and An Garda Síochána to investigate and prosecute the subject

matter of the charges laid against the [appellant].

(xiv) At all material times the [appellant] was aware that the first prosecution was not the end of the matter and

that further investigations were being carried out.

(xv) In all the circumstances the [appellant] did not have any legitimate expectation that he would not be

prosecuted in respect of the charges that he now faces.

(xvi) Any complaint as regards inadequate disclosure in the first prosecution (which is denied) has no impact on the

right and duty of the first named respondent to proceed with the prosecution out of which these proceedings arise.

Any issues as regards disclosure in the first prosecution were a matter for the trial judge in that case.

(xvii) Should his trial proceed the [appellant] will not suffer any prejudice, either as alleged or at all.

(xviii) The cumulative or combined effect of any of the matters to which the [appellant] has referred does not

operate so as to bring his trial within the category of cases that are inherently unfair or unjust.

(xix) In all of the circumstances of the case the [appellant] is not entitled to the relief sought or any relief.”

Charges

6. The appellant was arrested and charged on the current charges on the 26th October, 2010. On the 28th October, 2010, the

appellant was returned for trial on five charges, charges 20 to 24, of the Book of Evidence, in Bill Number 1216/2010, which are

pending before the Dublin Circuit Criminal Court.

7. It is alleged that the appellant, in his role as a County Councillor, corruptly received sums of money from Frank Dunlop as

inducements or rewards for voting in a particular way on motions before Dublin City Council and Dun Laoghaire Rathdown County

Council relating to lands at Carrickmines in Dublin, contrary to s. 1(1) of the Public Bodies Corrupt Practices Act, 1889 as amended by

s. 4(2) of the Prevention of Corruption Act, 1916, and s. 38 of the Ethics in Public Office Act, 1995.

8. The charges are:-

Charge Sheet No. 10903486

For that you the said accused did, on a date unknown between the 12th day of June 1992 and 29th day of June 1992,

both dates inclusive, within the State, being a member of Dublin County Council, a public body, corruptly receive a sum of

money, as an inducement to or reward for 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.

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

of Corruption Act, 1916.

Charge Sheet No. 10903453

For that you the said accused did, on the 30th day of October 1997 at the Davenport Hotel, within the County of the

City of Dublin, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly

receive a sum of money, as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown

County Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’

(Industrial) in the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(1) 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.

Charge Sheet No. 10903501

For that you the said accused did on the 30th day of October 1997 at the Davenport Hotel, within the County of the City

of Dublin, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive

a sum of money as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown County

Council resolves that lands located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the

Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(1) 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.

Charge Sheet No. 10903526

For that you the said accused on the 23rd day of December 1997 at Buswells Hotel, within the County of the City of

Dublin being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a

sum of money, as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown County

Council resolves that lands located at Carrickmines Great comprising approximately 36.85 acres be zoned ‘E’ (Industrial) in

the Development Plan, a matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(1) 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.

Charge Sheet No. 10903534

For that you the said accused did on the 23rd day of December 1997 at Buswells Hotel, within the City of Dublin, being an

Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public body, corruptly receive a sum of money,

as an inducement to or reward for, voting in favour of a motion that Dun Laoghaire/Rathdown Council resolves that lands

located at Carrickmines Great comprising approximately 88 acres be zoned ‘E’ (Industrial) in the Development Plan, a

matter in which the said Dun Laoghaire/Rathdown County Council was concerned.

Contrary to Section 1(1) 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.

These charges are referred to as “the current charges”.

Statements of Frank Dunlop

9. On the 15th October, 2003, Frank Dunlop gave a statement to the Garda National Bureau of Criminal Investigation (NBCI) stating

that he made 10 payments to the appellant between 1991 and 1997. These payments include the sums on the current charges in

relation to £2,000 in June, 1992; £2,500 on 30th October, 1997; and £4,500 on 23rd December, 1997. On the 20th November, 2003,

Frank Dunlop gave a further statement to Gardaí giving further details of payments. These two statements, together with a letter

from Frank Dunlop to a manager of AIB Bank on 26th February, 2004, were in the Book of Evidence in Bill No. 430/2005 relating to the

non declaration of an electoral donation received by the appellant. Details of these statements are set out later in the judgment.

Previous Charges

10. Previously the appellant was charged with offences under the Electoral Act, 1997. the two charges were:-

“Charge Sheet No. 369580

1. For that you the said accused on or about the 14th day of January 1998 at Lower Ormond Quay, Dublin 1 in the

Dublin Metropolitan District, at a time when you were a member of Seanad Eireann, knowingly made a statutory

declaration before William Egan which was false or misleading in a material respect, namely that you declared that a

donation statement made by you pursuant to section 24(1)(a) of the Electoral Act, 1997 was to the best of your

knowledge and belief, correct in every material respect and that you took all reasonable action in order to be

satisfied as to its accuracy, whereas the said statement was incorrect in that it failed to declare that you had

received any single donation exceeding a value of £500 received between the 15th day of May 1997 and the 31st

day of December 1997, both dates included in the circumstances where you had received such a donation or

donations.

Contrary to section 25(1)(d) and 25(2)(b) of the Electoral Act, 1997.

Charge Sheet No. 369581

2. For that you the said accused on or about the 29th day of January 1998 at The Public Office Commission, 52 St.

Stephen’s Green, Dublin 2 in the Dublin Metropolitan District at a time when you were a member of Seanad Eireann

knowingly furnished a donation statement pursuant to section 24(1)(a) of the Electoral Act, 1997 which was false or

misleading in a material respect, namely that you failed to declare therein that you had received any single donation

exceeding a value of £500 or donations from the same person with an aggregate value exceeding £500, received between

the 15th day of May 1997 and the 31st day of December 1997, both dates included, in circumstances where you had

received such a donation or donations.

Contrary to sections 25(1) and 25(2)(b) of the Electoral Act, 1997.”

These charges are referred to as “the Electoral Act charges”.

11. On the 17th October, 2005, the appellant pleaded guilty in Dublin Circuit Criminal Court to a single count of knowingly making a

false or misleading declaration on the 29th January, 1998, in relation to donations in excess of £500 received between the 15th May

and the 31st December 1997, inclusive, contrary to s. 25 of the Electoral Act, 1997. On the 6th May, 2006, the appellant was

sentenced to 75 hours community service in lieu of 6 months imprisonment.

12. Judgment of the High Court on previous charges:-

On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment, and stated in relation to the Electoral Act charges:-

“6.1 On 15th and 21st of October, 2003, Frank Dunlop gave statements to the Garda NCBI [sic], alleging that he

paid the [appellant] IR£ 2,000 in June 1992, IR £2,500 in October 1997 and IR £4,500 in December 1997. On 16th

March, 2004, Mr. Dunlop made a further statement to gardaí, alleging that the above payments were made to the

[appellant] in return for voting in favour of rezoning lands at Carrickmines. Shortly before this, on 3rd March, 2004,

the [appellant] was interviewed by Garda CAB. During the course of that interview, he was asked whether the

payments in question were corrupt payments. He denied receiving any corrupt payments. On 22nd October, 2004, a

file was sent to the DPP. This file included evidence gathered by gardaí attached to both the NCBI [sic] and the

CAB. On 11th April, 2005, the [appellant] was charged with knowingly making false or misleading declarations on two

dates in January 1998, contrary to section 25 of the Electoral Act 1997. The [appellant]’s solicitors wrote to the

respondents in relation to these charges on 27th April, 2005, seeking disclosure of all statements made by Mr. Frank

Dunlop. The respondents disclosed the statements of 15th and 21st October, 2003, but not the statement of 16th

March 2004, and a draft statement of 24th September, 2004. On 17th October, 2005, the [appellant] pleaded guilty

to a single count of knowingly making a false or misleading declaration contrary to section 25 of the Electoral Act

1997. He was subsequently sentenced to 75 hours community service.”

13. Judgment of the High Court on current charges

In relation to the current charges the learned High Court judge held:-

“Approximately five years later, on 26th October, 2010, the [appellant] was charged with five offences of receiving

corrupt payments from Frank Dunlop in June 1992, October 1997 and December 1997 in relation to zoning of lands at

Carrickmines contrary to s. 1 of the Public Bodies Corrupt Practices Act 1889, as amended. The Book of Evidence included

the statements of Frank Dunlop on 16th March 2004, and 24th September, 2004. The Book of Evidence contained no

further evidence additional to what was in the possession of the authorities when a file was sent to the DPP in October

2004.

6.2 The [appellant] submits that considering the deficiencies in disclosure and the passage of time, his continued

prosecution amounts to an abuse of process and is in breach of his legitimate expectations. It seems to me that there are

two distinct aspects to the [appellant’s] case. First, the issue of non-disclosure, and second, the issue of legitimate

expectation. I propose to deal with each of these issues in turn. It is common case between the parties that two

statements made by Frank Dunlop were not disclosed. The second of the statements that was made on 24th September

2004, was a draft statement, therefore, there was no obligation to disclose it. The first statement was made on 16th

March, 2004. In this statement, Frank Dunlop alleged that the payments, which are the subject matter of these

proceedings, were corrupt payments. The [appellant] submits that if this statement was disclosed, he would have been

put on notice that he was likely to face further proceedings, and as a result, may not have pleaded guilty to the Electoral

Act offence. The consequences of entering this plea are that the [appellant] is now effectively precluded from arguing

that he received no monies.

6.3 In adjudicating upon this submission, it seems to me that it is necessary to consider the context in which disclosure

was sought by the [appellant’s] solicitors. On 27th April 2005, the [appellant’s] solicitors, Garrett Sheehan & Partners,

were seeking disclosure in order to deal with an offence under the Electoral Act. The charge the [appellant] was facing

was of knowingly making false or misleading declarations in relation to donations exceeding £500 in value received

between May and December of 1997. The statement made by Frank Dunlop on 16th March, 2004, was not relevant as the

[appellant] was not facing corruption charges. I am therefore not satisfied that this statement was disclosable at that

time. The fact that the obligation to disclose is ongoing is also not relevant since at the time when the [appellant’s]

criminal case was heard and concluded, the same situation pertained.

6.4 I will now turn to the [appellant’s] arguments based on legitimate expectation. In Glencar Exploration plc v. Mayo

County Council. [2002] 1 ILRM 481, it was held that to succeed in a claim based on legitimate expectation, it was

necessary to establish three matters. Fennelly J. held at paragraph 168:-

‘Firstly, the public authority must have made a statement or adopted a position amounting to a promise or

representation, express or implied, as to how it will act in respect of an identifiable area of its activity. I will call this

the representation. Secondly, the representation must be addressed or conveyed, either directly or indirectly, to an

identifiable person or group of persons, affected actually or potentially, in such a way that it forms part of a

transaction definitively entered into or a relationship between that person and group and the public authority or

that the person or group has acted on the faith of the representation. Thirdly, it must be such as to create an

expectation reasonably entertained by the person or group that the public authority will abide by the representation

to the extent that it would be unjust to permit the public authority to resile from it.’

The [appellant] seeks to argue that the non-disclosure of the statement in 2005 amounted to a representation that

further charges would not be made against the [appellant]. This failure cannot, in my view, amount to the adoption

of a position, a promise or a representation. The statement that was not disclosed in 2005 was not going to be

used against the [appellant] in his trial at that time because it was not necessary to prove the case against him. It

seems to me that to suggest that this non-disclosure amounted to a representation would be to stretch the

meaning of Glencar far beyond its true meaning.

6.5 While the statement of 16th March 2004, was not disclosed to the [appellant] prior to his trial in 2005, it is,

nevertheless, clear that he was well aware of the allegations contained therein. In the interview on 3rd March,

2004, all of the matters referred to in the statement of 16th March, 2004, were put to the [appellant]. In the

memorandum of the interview contained at Tab 5, the [appellant] answers one of the questions put to him by the

gardaí in the following terms:-

“I never received a corrupt payment from Frank Dunlop.”

Thus, it is not sustainable for the [appellant] to argue that he was unaware that the gardaí were investigating

matters of corruption and had he known that they were he might not have pleaded guilty to the Electoral Act

Offence. Moreover, there is a considerable difference between failing to disclose a donation, on the one hand, and

corruptly receiving a payment, on the other. While the former offence may simply involve inadvertently failing to

disclose a bona fide donation, the latter offence clearly involves dishonesty and is a much more serious offence, as

reflected by the more severe penalties provided for in the legislation. The Electoral Act 1997 offences on which the

[appellant] was prosecuted in 2005, carry a penalty of up to three years imprisonment and/or a fine of up to

£20,000. The charges that the [appellant] now faces under the Public Bodies Corrupt Practices Act 1889, as

amended, carry penalties of up to seven years imprisonment and/or fines of up to £50,000. The [appellant] knew

that the gardaí were investigating serious charges of corruption. In these circumstances, it is difficult to understand

how the [appellant] could have reasonably believed that a plea in respect of the Electoral Act charges would

conclude all criminal proceedings against him concerning all the allegations made by Frank Dunlop. To obtain such

immunity would be highly unusual. The very least one would expect would have been some formal communication of

that fact from the prosecuting authorities. In Glencar, it was held that in order to succeed in a claim based on

legitimate expectation, the first element required is a representation. Such representation must be of a nature as to

create an expectation reasonably entertained by the person that the public authority will abide by the

representation. No such representation was made herein.

6.7 [sic] In relation to the [appellant’s] complaint of delay, the respondents have argued that significant delay was

caused by the necessity that Frank Dunlop would give evidence in the case against the [appellant]. This case could

therefore not proceed until the Tribunal had concluded its work. It seems to me that had there been an attempt to

initiate proceedings while the Tribunal was still sitting, this would have resulted in an application to the High Court

on the basis that the accused would be prejudiced by the continuance of the Tribunal. This is the unfortunate

consequence of the establishment and continuance of the tribunal of inquiry into the matters in question. Whilst

this may well not be in accordance with Ireland’s obligations under Article 6 of the European Convention on Human

Rights, that would not, of itself, require the prohibition of the trial. In the context of Irish law, it seems to me that

the delay occasioned thereby was an excusable reason for inordinate delay. It cannot therefore give rise to an

order of prohibition.

6.8 The [appellant] bears the name of a family who have given service of the highest distinction to this country. I

can well accept that the decision to plead in 2005 was a very difficult one for him and his family. I can accept that

it must have taken some measure of moral courage to do so. He may well have held the honest belief that this was

the end of matters. This, however, was not in my view, absent some clear indication from the DPP, a reasonable

belief for either him or his advisers to hold, nor was it nor could it be such that could constitute a representation.”

The learned High Court judge refused the relief sought by the appellant. It is against that judgment that the appellant brings this

appeal.

Grounds of Appeal

14. The appellant has appealed to this Court, having filed the following grounds of appeal:

“(i) The learned High Court judge erred in fact and law in refusing to grant the relief sought.

(ii) The learned High Court judge erred in law in holding that as the statement made by Frank Dunlop to Gardaí on

the 24th September 2004 was a draft statement, there therefore was no obligation to disclose it to the [appellant]

at the time of his prosecution in 2005.

(iii) The learned High Court judge erred in fact and law in finding that the statement of Frank Dunlop of the 16th

March 2004 was not relevant as the [appellant] was not facing corruption charges in 2005 and therefore did not fall

to be disclosable. This was in circumstances where the respondents never made the argument that this statement

was not relevant.

(iv) The learned High Court judge failed to advert to the ongoing obligation on the prosecution to make disclosure in

the context of the statement of Frank Dunlop of the 28th July 2005

(v) The learned High Court judge misconstrued the [appellant’s] argument in relation to disclosure and the

respondent’s response to it.

(vi) The learned High Court judge misconstrued the argument put forward in relation to legitimate expectation by

the [appellant].

(vii) The learned High Court judge misconstrued the argument of the [appellant] in relation to the failure to disclose

the statement of Frank Dunlop dated the 16th March 2004.

(viii) The learned High Court judge erred in law and fact in failing to differentiate between the civil and criminal

investigation functions of the Criminal Assets Bureau.

(ix) The learned High Court judge erred in law and fact in construing the [appellant’s] arguments for relief as being

principally in relation to the doctrine of legitimate expectation or the issue of immunity.

(x) The learned High Court judge erred in law and fact in misconstruing the [appellant’s] argument on delay and the

respondent’s response to this.

(xi) The learned High Court judge misconstrued the respondent’s argument on delay in relation to this [appellant’s]

case.

(xii) The learned High Court judge erred in law and fact by failing to deal with the [appellant’s] central argument

that his position had been prejudiced by an admitted failure to disclose relevant statements by the prosecution at

the time of his first trial in 2005.

(xiii) The learned High Court judge erred in law and fact in failing to deal with the [appellant’s] argument that the

present prosecution in the context of the admitted failure of relevant disclosure in 2005 amounted to an abuse of

process.

(xiv) The learned High Court judge erred in law and fact in failing in his duty to protect due process and the right to

a fair trial of the [appellant] which rights were interfered with by the prosecution’s failure to make relevant

disclosure in his original trial in 2005.

(xv) The learned High Court judge failed to deal with the [appellant’s] submission in relation to the principle in

Henderson v. Henderson [1843] 3 Hare 100 as followed and applied by the Superior Courts in this jurisdiction.

(xvi) The learned High Court judge erred in fact and law in finding that although the [appellant] may well have held

an honest belief that his original trial in 2005 was ‘the end of matters’ in relation to allegations by Frank Dunlop

against him, that this was not a reasonable belief in all of the circumstances absent some clear indication from the

DPP.

(xvii) The learned High Court judge erred in law and fact in failing in his duty to protect due process and the right to

a fair trial of the [appellant].”

Submissions on behalf of the appellant

15. Counsel on behalf of the appellant filed written submissions and made oral submissions. Counsel stressed certain matters in oral

submissions, including that the prosecution had all the evidence on 22nd October, 2004, upon which to bring these current charges,

and that full disclosure was not made in 2005. Counsel did not dispute that the appellant was aware, in 2004, that Frank Dunlop had

made allegations of corruption against him, but, it was submitted, they did not know whether Frank Dunlop had made a statement or

statements alleging corruption by the appellant outside the Tribunal of Inquiry into Certain Planning Matters and Payments. While the

appellant was charged with electoral offences in 2005, it was submitted that it was considered that that was all he was going to be

charged with. Counsel submitted that at that time the appellant and his legal advisers believed that Frank Dunlop had not made

allegations of corruption in writing to An Garda Síochána of the appellant. It was submitted that this was a legitimate belief at that

time, and that the appellant was misled. It was submitted that correspondence in 2004 and 2005 from the Criminal Assets Bureau was

indicative that there would not be a criminal prosecution. The interviews with the appellant by the Criminal Assets Bureau were

referred to, and, it was submitted, that there was no suggestion that the appellant was being pursued over allegations of corruption.

It was submitted that, in accordance with fair procedures, the appellant should have been made aware at that time that Frank Dunlop

had made statements in writing against the appellant on issues of corruption. It was submitted that the appellant was entitled to

know when he was being prosecuted under the Electoral Acts that there were other matters which he would have to deal with.

Further, it was submitted that the appellant pleaded guilty to the Electoral Act charges, and faced up to the consequences. Counsel

submitted that they were led to believe that if the appellant pleaded guilty to the Electoral Act charges that there were no further

statements by Frank Dunlop suggesting that the money he referred to were corrupt statements. Counsel argued that the appellant

had an entitlement, before pleading guilty to the first set of charges, to know what other statements were in the possession of the

State. It was submitted that there was abuse of process, that there was a risk of an unfair trial, that the misconduct by the

prosecution was so grave that the Court should intervene, that as a matter of principle there should not be succeeding prosecutions,

that the charges should all be in one indictment. Counsel submitted that it was not open to the DPP to sit on the evidence he had

about corruption and then bring it forward five years later. A key argument to which counsel returned several times was that two

written statements of Frank Dunlop were not disclosed in 2005, and that if the appellant had had that information he might not have

pleaded guilty. Counsel accepted for argument’s sake that Frank Dunlop had to be prosecuted before others were prosecuted, but

asked why Frank Dunlop was not prosecuted in 2004. Counsel referred to the issue of delay, and submitted that the DPP had all the

evidence in 2004. Counsel stated that there was no claim of mala fides by the DPP but it was submitted that there had been no

explanation from the DPP, especially as to the non-disclosure of the statements in 2005. In essence, counsel submitted that there

should be no sequential trials on an ascending level of gravity; that while there may be exceptions, it was for the DPP to prove this

was an exception.

Submissions on behalf of the Respondents

16. Counsel on behalf of the respondents also filed written submissions and made oral submissions. Counsel submitted that this was a

case raising the issue of abuse of process and that legitimate expectation had been an issue in the High Court. Counsel accepted that

the nub of the case was that in the circumstances it was for the respondents to show the special circumstances which apply. In

essence, counsel argued that the prosecution could not bring forward the corruption charges in 2004 because the witness they

depended upon, Frank Dunlop, had not been prosecuted before the courts, and his evidence could not have been relied upon safely.

The prosecution for corruption could not be brought without Frank Dunlop’s evidence. Until Frank Dunlop had been tried, convicted

and assented to give evidence, the evidence of Frank Dunlop could not be the basis for a prosecution against the appellant. Prior to

his conviction, Frank Dunlop might have declined to give evidence on the grounds that it would incriminate him. Also, he might have

been cross-examined to the effect that he was giving evidence against the appellant in the hope that the State would perhaps not

prosecute him or would go easy on him. The DPP did not give a statement of the reasons for prosecuting as he did, but counsel

argued that the situation was clear from the documents before the Court. Counsel accepted that the onus was on the respondents to

explain why there was no prosecution for corruption brought in 2005.

As to the submission that the appellant was not aware that Frank Dunlop had made written statements, that he was entitled to

assume that there would be no more prosecutions, and that thus the appellant submitted that this prosecution was an abuse of

process, counsel relied on paragraph 13 of the written submissions on behalf of the respondents. The said paragraph 13 stated:-

“All the appellant had to do if he had the slightest doubt about the position with regard to the corruption investigation

was to ask the DPP as to whether that investigation was now closed and whether any decision had been made in respect

of it. It is submitted that the appellant was not entitled to allegedly reach that conclusion in his own mind, without

communicating it to the DPP, and then seek to rely upon that conclusion as against the DPP. This failure to make any

specific inquiry of the DPP is all the more remarkable when one considers the communications between the appellant's

solicitors and An Garda Síochána at the relevant time. For example, Garrett Sheehan & Partners wrote to D/Chief

Superintendent McKenna on 5 April 2005 (exhibit RE4), which correspondence refers to the suggestion that the appellant

had received payments and had taken various steps on foot of those payments in relation to the rezoning of lands at

Carrickmines, Co. Dublin. Garrett Sheehan & Partners pointed out that the appellant had denied in the interview

conducted on 3 March 2004 that he had ever received a corrupt payment from Frank Dunlop. The correspondence goes

on to say that in any event the DPP had directed that charges under the Electoral Act be preferred against the appellant

and that that would take place on 11 April 2005. The letter goes on to say that ‘in those circumstances it is not

appropriate for Mr. Cosgrave to meet with you at this time.’ It is submitted that the text of this letter makes it crystal

clear that, at the time when the appellant was dealing with the Electoral Act charges, he was fully aware of the

existence of the outstanding investigation into corruption. Had the appellant been of the belief that, as a consequence of

the fact that he was to be charged with two offences under the 1997 Acts, he would never be prosecuted in respect of

whatever emerged from the corruption investigation that is surely something in respect of which one might have

anticipated clarification would have been sought from the DPP.”

Further, it was submitted that the payments charged under these set of charges are not the same set of payments as charged under

the Electoral Acts. Counsel submitted that this case was an exception to the general rule that all the charges be brought on the

same indictment. It was submitted that the charges in issue on this occasion are not a separate set of charges on the same set of

facts.

Decision to prosecute

17. The decision to prosecute the appellant on the current charges was made by the DPP, who provides an independent prosecution

service. Pursuant to s. 2(5) of the Prosecution of Offences Act, 1974, “the Act of 1974”: “The Director shall be independent in the

performance of his functions”.

18. The effect of the Act of 1974 was described by Keane C.J. in Eviston v. Director of Public Prosecutions [2002] IESC 62; [2002] 3

I.R. 260 at 290 as:-

“The effect of the Act of 1974, was thus to vest in the [DPP] the function of prosecuting all crimes and offences, in

courts other than those of summary jurisdiction, in the name of the people. It was clearly envisaged by the Oireachtas

that the [DPP] in performing those functions, would exercise the same role as had historically been performed by the

Attorney General. In contrast to the systems in many civil law jurisdictions, the courts play no role in the prosecution of

offences and both the decision to initiate a prosecution and the subsequent conduct of that prosecution are functions

exclusively assigned (with limited exceptions) to the [DPP] under the Constitution and the relevant statutory provisions.”

He noted further:

“Undoubtedly, the [DPP] remains subject to the Constitution and the law in the exercise of his functions and it has been

made clear in decisions of this court that, while the nature of his role renders him immune to the judicial review process to

a greater extent than is normally the case with quasi-judicial tribunals properly so described, he will be restrained by the

courts where he acts otherwise than in accordance with the Constitution and the law.”

19. Thus, fundamentally, the DPP is an independent prosecutor, who makes the decision as to when there should be a prosecution.

The courts will interfere with the decision of the DPP rarely, when applying the Constitution and the law.

20. In State (McCormack) v. Curran [1987] ILRM 225, the Supreme Court held that the decision of the DPP may be reviewed in

certain circumstances. Finlay C.J. stated at p. 237:-

“If, of course, it can be demonstrated that he reached a decision mala fide or influenced by an improper motive or

improper policy then his decision would be reviewable by a court. To that extent I reject the contention again made on

behalf of the [DPP] that his decisions were not as a matter of public policy ever reviewable by a court.”

21. An accused may claim that to continue with his prosecution would be unjust, for reasons such as delay or prejudicial publicity.

Where such a person establishes that there is a real risk that he could not obtain a fair trial, an order of prohibition will be granted: D

v. D.P.P. [1994] 2 I.R. 465; Z v. D.P.P. [1994] 2 I.R. 476.

22. In Carlin v. D.P.P. [2010] IESC 14; [2010] 3 I.R. 547; [2010] 2 I.L.R.M. 145, the appellant claimed that the decision of the DPP in

changing his mind and proceeding to prosecute would be unfair and unjust. The Court dismissed the appeal. The role of the DPP was

discussed at paragraphs 7, 9 and 10 :

“The Director is an important independent office in the State and independent in the performance of his functions:

Prosecution of Offences Act, 1974. A clear policy of non-intervention by the courts in the exercise of the discretion of

the prosecutor, except in particular circumstances, has been stated in cases over the last few decades. An independent

prosecutor is an important part of the fabric of a fair justice system. The prosecutor must not only be independent but be

seen to be independent. If the Director is seen to change his decision where there are no new factors but simply after

representations by a victim or his family, it raises issues as to the integrity of the initial decision and the process, and

thus may impinge on confidence in the system. It is important that a prosecutor retain the confidence of society in his

process of decision making. […]

It is essential that the Director remain independent. However, he is subject to the constitutional requirement of fair

procedures. While the fair procedures appropriate at the investigation stage of a prosecution are not equivalent to those

at trial in a court of law the process requires to be constitutionally firm.

In a situation where there is no statute of limitations on the prosecution of the offence, and where there are no statutory

time limits on the duration of a prosecution process, it is important that such process be fair, and be seen to be fair.”

23. It is not the function of the Court to review the prosecution’s case. An application to prohibit a trial will be acceded to only in

exceptional circumstances where it is necessary to protect a fair trial process, such as where there has been abuse of process. The

intervention by a court in the prosecution process was referred to in D.C. v. DPP [2005] 4 I.R. 281 at 283 where it was stated:-

“Such an application [for the prohibition of a trial] may only succeed in exceptional circumstances. The Constitution and

the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining

whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a

decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to

determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional

rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial. In general such a step is

not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic

assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge.

However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a

defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial

commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.

It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply

where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of

difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular

circumstances that the applicant could not obtain a fair trial.”

24. Thus, the Court will grant an order prohibiting a pending trial only in exceptional circumstances to protect a fair trial process.

Analysis of the process includes the question as to whether or not there has been an abuse of process by prosecuting on one set of

charges in 2005 and another in 2010.

25. As to whether or not there is unfairness will depend on all the circumstances of the case. Each case requires to be determined on

its own facts. Thus, it is necessary to consider the facts of this case.

Facts

26. The appellant is charged with corruptly receiving money as inducements or rewards for voting in a particular way in 1992 and

1997. On the 19th October, 2000, Frank Dunlop gave evidence at the Tribunal of Inquiry into Certain Planning Matters and Payments,

referred to as “the Tribunal”, alleging that he made corrupt payments to councillors. On the 3rd July, 2003, the Standards in Public

Office Commission wrote a letter of complaint to the DPP in relation to suspected offences of the appellant under the Electoral Acts.

On the 15th October, 2003, and 20th November, 2003, Frank Dunlop made statements and provided documents to the Garda

Síochána in relation to alleged payments made to the appellant between 1991 and 1997. On the 3rd March, 2004, the appellant was

interviewed by members of the Criminal Assets Bureau in relation to the allegation of corruption. On the 8th June, 2004, the appellant

was interviewed by members of the National Bureau of Criminal Investigation for suspected offences under the Electoral Acts. On the

22nd October, 2004, a file was sent to the DPP. On the 11th April, 2005, the appellant was charged and returned for trial on offences

under the Electoral Acts. The appellant pleaded guilty and on the 6th May, 2006, the appellant was convicted of offences under the

Electoral Acts. On the 13th July, 2008, the DPP directed that Frank Dunlop be charged with 16 offences of corruption. On the 21st

November, 2008, Frank Dunlop was arrested and charged with the offences. On the 16th January, 2009, Frank Dunlop formally

pleaded guilty to five charges, being charges 1, 5, 7, 12 and 16 on the Bill of Indictment. On the 26th May, 2009, Frank Dunlop was

convicted and sentenced in Dublin Circuit Criminal Court. On the 24th June, 2010, the DPP directed that six persons, including the

appellant, be charged with offences of corruption. On the 26th October, 2010, the appellant was arrested and charged. On the 28th

October, 2010, the appellant was returned for trial on the charges in issue. On the 10th December, 2010, the appellant and his co-

accused appeared in the Circuit Criminal Court. An adjournment was sought to deal with the matters of disclosure and legal aid. The

case was adjourned until the 10th February, 2011, with a trial date fixed for the 5th October, 2011. On the 10th February, 2011, the

trial date of the 5th October, 2011 was fixed for the appellant and his co-accused. The case was adjourned for mention to the 31st

March, 2011. On the 7th March, 2011, the appellant sought leave to apply by way of judicial review, which was granted by the High

Court (Peart J.). These proceedings were heard and determined by Hedigan J. on the 28th July, 2011, from which decision the

appellant has brought this appeal.

Statements of Frank Dunlop - details

27. Frank Dunlop made a series of statements in which he referred to the appellant.

28. On the 15th October, 2003, Frank Dunlop gave a statement, stating:-

“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:-

(i) IR £2,000 in cash at the time of the 1991 local elections;

(ii) IR £2,000 cash between the 12th of June, 1992 and the 29th of June, 1992;

(iii) IR £5,000 cash on the 11th November, 1992;

(iv) IR £1,000 by cheque dated the 12th of January, 1993, at the time of the 1993 Seanad

elections;

(v) IR £2,000 cash at the time of the 1993 Seanad elections;

(vi) IR £2,500 by cheque at the time of the Seanad elections of 1997;

(vii) IR £1,000 cash on or about 16th September, 1997;

(viii) Cheque in the sum of €1,815 payable to Messrs. Egan Cosgrave Muldowney, 16th

September, 1997;

(ix) IR £2,500 cash on or about 30th October, 1997;

(x) IR £4,500 cash on or about 23rd December, 1997.”

These payments referred to by Frank Dunlop included payments giving rise to the current corruption charges. The relevant payments

being £2,000 in June, 1992; £2,500 on 30th October, 1997; and £4,500 on 23rd December, 1997.

29. On the 20th November, 2003 Frank Dunlop made a further statement, which included the following:-

“I have known Liam Cosgrave for many years and whilst I came across him in the course of various occupations over the

years he was also a friend with whom I socialised on occasion. I was aware of his political career and know that he stood

in local, general and senate elections. I am specifically aware that he contested the senate elections in 1997.

In 1997 I made a number of payments to Mr. Cosgrave detailed as follows:

(i) Cheque No. 502767 dated 2/7/97 in the sum of IR £2,500; payable to Liam Cosgrave. This was

entirely an election expenses contribution. On foot of the said cheque IR £2,500 was debited from my

company’s bank account on 7/7/97.

(ii) On the 16th of September IR £1,000 in cash was given to Liam Cosgrave as an election expenses

contribution.

(iii) Cheque No. 502838 dated 16/9/97 in the sum of IR £1,815 made payable to Messrs. Egan Cosgrave

& Assocs was an election expenses contribution payable in that manner at the behest of Liam Cosgrave.

On foot of the said cheque IR £1,815 was debited from my company’s bank account on 17/9/97.

(iv) On the 30th of October 1997 I gave in cash to Liam Cosgrave the sum of IR £2,500 at a meeting in

the Davenport Hotel (Dublin). This payment had nothing to do with election expenses or political

contributions.

(v) On the 23rd of December I gave in cash to Liam Cosgrave the sum of IR £4,500 at a meeting in

Buswell’s Hotel (Dublin). This payment had nothing to do with election expenses or political

contributions.

The said cheques referred to above are identifiable in the relevant statements of account generated by my company’s bank and I

attach relevant redacted copies, together with copies of the said cheques.”

Thus, both statements include information relevant to both the earlier and current charges. Both of these statements, and the letter

from Frank Dunlop to a manager of AIB Bank of 26th February, 2004, were in the composite statement of evidence of Frank Dunlop in

the Book of Evidence on the previous, electoral charges. They are also relevant to the current charges.

30. On the 16th March, 2004, Frank Dunlop made a statement alleging that he made payments to the appellant in return for the

appellant voting in favour of rezoning certain lands in Carrickmines. The sums were: a) £2,000 in June 1992, b) £2,500 on the 30th

October, 1997, and c) £4,500 on the 23rd December, 1997. Attached to the statement were exhibits. These exhibits are exhibits in

the Book of Evidence on the current corruption charges.

31. On the 24th September, 2004, the Garda Síochána had in their possession a further draft statement of Frank Dunlop, which was

subsequently signed on the 28th July, 2005.

32. Arising from the Electoral Act charges against the appellant, his solicitors sought disclosure on the 27th April, 2005, of all

statements made to the Garda Síochána by Frank Dunlop. While the statements of 15th October, 2003, and the 20th November,

2003, were furnished to the appellant’s solicitors, the statement of the 16th March, 2004, and the draft statement of the 24th

September, 2004, were not given to the solicitors for the appellant.

33. The appellant knew of allegations of corruption made against him at the time of the prosecution for the Electoral offences. These

allegations were put to him by members of the Criminal Assets Bureau during an interview on the 3rd March, 2004. In the memorandum

of the interview the applicant answered three of the questions put to him by the Garda Síochána in the following terms:-

“I have never received a corrupt payment from Frank Dunlop.”

Thus, the appellant was aware of allegations of corruption against him, although he did not know of written statements alleging

corruption.

Correspondence

34. Also, there was ongoing correspondence between the solicitors for the appellant and the Criminal Assets Bureau, referred to as

“CAB”. For example, on the 8th December, 2004, the solicitors for the appellant wrote to CAB, including the following:-

“We understand from that conversation that as Chief Bureau Officer you would like to meet personally with the individuals

who are alleged to have received money from Frank Dunlop to assist you in forming your own opinion of the evidence

gathered during the course of the investigation in relation to the re-zoning of lands in Carrickmines, Co. Dublin.

We would be obliged if you would be able to indicate a sample of the questions you would be seeking to ask our client in relation to

this matter. Would our client be cautioned?”

CAB replied on the 14th December, 2004, including the following:-

“I would not propose that Mr. Cosgrave be cautioned for the interview which I wish to have with him. Broadly, although it

is not impossible that the interview might broaden its scope, I would like to focus on ascertaining Mr. Cosgrave’s

understanding at the time he received payments, and at the time he took various steps in relation to the rezonings, of

why he was receiving payments or taking those steps.”

In a letter dated the 5th April, 2005, in reply the solicitors for the appellant stated, inter alia:-

“It appears to me that the second paragraph of your letter of the 14th of December 2004 does open the suggestion that

Mr. Cosgrave received payments and took various steps on foot of payments in relation to the rezoning of lands in

Carrickmines.

As you are aware Mr. Cosgrave in his interview with D/Sgt. Richardson and D/Garda Harrington on the 3rd of March 2004

indicated that he had never received a corrupt payment from Frank Dunlop.

However, in any event the Director of Public Prosecutions has directed that charges under the Electoral Act be preferred

against Mr. Cosgrave and Mr. Cosgrave is due to be charged in this regard on Monday the 11th of April 2005.

In those circumstances it is not appropriate for Mr. Cosgrave to meet with you at this time.”

Thus, it is clear that the issue of corrupt payments was under consideration by representatives of the appellant at that time.

Abuse of Process

35. The learned High Court judge considered the issue of an abuse of process from two distinct aspects; (a) the issue of the non-

disclosure of statements by the prosecution at the time of the earlier prosecutions; and (b) the legitimate expectation of the

appellant. On this appeal counsel for the appellant, in submitting that there had been an abuse of process, stressed that the DPP had

all the evidence in 2005 to prosecute the appellant on the corruption charges when the appellant was charged on the Electoral Act

offences. Further, that full disclosure was not made of the statements relevant to the corruption charges in 2004. It was submitted

that no evidence was adduced to explain why the appellant was not charged with the current corruption charges when he was

prosecuted on the Electoral Act charges in 2005. It was submitted that the current prosecution amounts to an abuse of process.

Consequently, the fundamental issue before this Court, is whether the prosecution of the current charges, in all the circumstances of

the case, including the previous Electoral Act charges, amounts to an abuse of process.

Sequential Trials – General Rule

36. There is a general rule at common law that the Court should stay an indictment when it is satisfied that new charges are

grounded on the same facts as charges on a previous indictment on which an accused had been tried and convicted or acquitted.

37. In Reg. v. Elrington (1861) 1 B. & S. 688 the Court considered a second indictment founded on the same facts as an earlier

indictment. Cockburn L.J. stated at 696:-

“The defendants are entitled to our judgment. We cannot deal with hypothetical cases [696] when we are considering

what is the law with reference to pleas which have been demurred to. On the facts, as stated here, a complaint for a

common assault was preferred before two justices of the peace, who adjudicated upon it. In respect to the very same

assault this indictment is now preferred, and to that these pleas are pleaded. The statute is express, and says that,

where a complaint for a common assault is made before two justices of the peace, they may either convict the party

accused or dismiss the charge, and give him a certificate which shall be a bar to further proceedings. Here they have

given such a certificate: and now an indictment is preferred against the same party, charging him, not merely with a

common assault, but with two assaults of an aggravated character, arising out of the same transaction. In the cases

referred to, of Regina v. Walker (2 Moo & R. 446) and Regina v. Stanton (5 Cox, Cr. Cas. 324), it was held that this

statute intended in all cases to make the certificate of the justices a bar to all further proceedings or charges arising out

of the same matter. Those decisions are perfectly right. It may be that in some extraordinary cases, of occasional

occurrence, the inconvenience pointed out by Mr. Ribton may arise, but in the ordinary administration of the law we must

not suppose such an outrageous thing as that justices of the peace would act in the manner he has suggested; and, on

the other hand, we must bear in mind the well established principle of our criminal law that a series of charges shall not be

preferred, and, whether a party accused of a minor offence is acquitted or convicted, he shall not be charged again on

the same facts in a more aggravated form. The words of the statute are express, and the present case is brought within

[697] it by the pleadings. The defendant, therefore, having received this certificate from the justices before whom the

case was heard, may now plead it in bar to this indictment.”

[Emphasis added]

The decision is grounded on the principle that sequential charges may not be brought on the same set of facts. Such a situation does

not arise in this case.

38. The general principal was described by Lord Devlin in Connelly v. D.P.P. [1964] AC 1254 at p. 1359 – 1360:-

“As a general rule a judge should stay an indictment (that is, order that it remain on the file not to be proceeded with)

when he is satisfied that the charges therein are founded on the same facts as the charges in a previous indictment on

which the accused has been tried, or form or are a part of a series of offences of the same or a similar character as the

offences charged in the previous indictment. He will do this because as a general rule it is oppressive to an accused for

the prosecution not to use rule 3 where it can properly be used. But a second trial on the same or similar facts is not

always and necessarily oppressive, and there may be a particular case be special circumstances which make it just and

convenient in that case. The judge must then, in all the circumstances of the particular case, exercise his discretion as to

whether or not he applies the general rule.”

39. There are thus two aspects of the general rule. First, where the second set of charges is founded on the same set of facts as

the charges in a previous indictment. This aspect of the rule does not apply to this case as the current set of charges is not founded

on the same facts as the Electoral Act charges.

40. This may be seen by contrasting the charges in the current case (which are set out earlier in the judgment) with the indictment

of the Electoral Act charges.

41. The indictment of the Electoral Act charges had two counts, as follows:

“Count No. 1

Statement of Offence

Making a False Statutory Declaration, contrary to Sections 25(1)(d) and 25(2)(b) of the Electoral Act, 1997

Particulars of Offence

Liam Cosgrave, on or about the 14th day of January 1998 at Lower Ormond Quay, Dublin 1 in the County of the City of Dublin, at a

time when he was a member of Seanad Eireann, knowingly made a statutory declaration before William Egan which was false or

misleading in a material respect, namely that he declared that a donation statement, made by him pursuant to Section 24(1)(a) of the

Electoral Act, 1997, was, to the best of his knowledge and belief, correct in every material respect and that he took all reasonable

action in order to be satisfied as to its accuracy, whereas the said statement was incorrect in that it failed to declare that he had

received any single donation exceeding a value of £500, received between the 15th day of May 1997 and the 31st day of December

1997, both dates included, in circumstances where he had received such a donation or donations.”

“Count No. 2

Statement of Offence

Furnishing a False Donation Statement, contrary to Sections 25(1)(d) and 25(2)(b) of the Electoral Act, 1997.

Particulars of Offence

Liam Cosgrave, on or about the 29th day of January 1998 at the Public Offices Commission, 52 St. Stephen’s green, Dublin 2 in the

County of the City of Dublin, at a time when he was a member of Seanad Eireann, knowingly furnished a donation statement, pursuant

to Section 24(1)(a) of the Electoral Act, 1997, which was false or misleading in a material respect, namely that he failed to declare

therein that he had received any single donation exceeding a value of £500, or donations from the same person with an aggregate

value exceeding £500, received between the 15th day of May 1997 and the 31st day of December 1997, both dates included, in

circumstances where he had received such a donation or donations.”

42. Thus, in the indictment in 2005, the second charge to which the appellant pleaded guilty, alleged that on the 29th January, 1998,

when he was a member of Seanad Eireann, the appellant knowingly furnished a donation statement pursuant to s. 24(1)(a) of the

Electoral Act, 1997, which was false or misleading, namely that he failed to declare that he had received any single donation

exceeding £500, or donations from the same person with an aggregate exceeding £500, between the 1st May, 1997, and the 31st

December, 1997. The offence was the failure to make a declaration as to donations received.

43. The Electoral Act, 1997, s. 25(1)(d) creates an offence relating to designated persons, if he or she knowingly furnishes a donation

statement or makes a statutory declaration which is false or misleading in any material respect. Donations are defined in s. 22 of the

Electoral Act, 1997, and include contributions given for political purposes by designated persons and include money, property, goods,

or services, given “for political purposes”. There was evidence in the statements of Frank Dunlop of payments to the appellant. In

relation to payments for political purposes that, if not disclosed, would constitute an offence under the Electoral Act, 1997, Frank

Dunlop stated that the cheque dated the 2nd July, 1997, in the sum of £2,500, was an election expenses contribution, as were,

according to Frank Dunlop, £1,000 given on the 16th September, and £1,815 on the 17th September, 1997. Frank Dunlop’s statement

also refers to other payments, which had “nothing to do with election expenses or political contributions”. On that statement, these

payments could not fall within the definition that is required to ground the obligation to disclose receipt under the Electoral Act, 1997,

and it is these payments that ground corruption charges against the appellant.

44. Ultimately, the Electoral Act case did not proceed to trial and the actual payment of sums was not required to be proved, as the

appellant pleaded guilty to the second charge on the indictment. However, it is clear that the current charges are not founded on the

same facts as the Electoral Act charges.

45. The second aspect of the general rule arises where the charges form or are part of a series of offences of the same or similar

character as the offences charged in the previous indictment. This aspect of the general rule, as described, also does not apply to

this appeal as the offences charged on the current charge sheets are not the same or of a similar character as the offences charged

on the Electoral Act indictment. The offence of failing to declare on a donation statement that he had received a donation exceeding

£500 is neither the same nor of a similar character as a charge that he corruptly received a sum of money as an inducement to or a

reward for voting in favour of a specific motion before Dublin City Council or Dun Laoghaire Rathdown County Council. The offences

are different in nature, degree and moral turpitude. As the learned High Court judge stated at paragraph 6.5 of his judgment:

”there is a considerable difference between failing to disclose a donation on the one hand and corruptly receiving a

payment on the other. While the former offence may simply involve inadvertently failing to disclose a bona fide donation

the latter offence clearly involves dishonesty and is a much more serious offence as reflected by the more severe

penalties provided for in the legislation.”

I agree with the learned High Court judge’s assessment of the differences between the two offences. Consequently, the second

aspect of the general rule does not apply either to the appellant’s case. Thus, this general rule at common law does not apply to this

appeal.

Broader Principle

46. I approach the case from a broader and more fundamental aspect, and make an analysis as to whether in all the circumstances

there was an abuse of process, and if so whether there is a real or serious risk of an unfair trial. This is a principle distinct from the

rules in relation to autrefois acquit and autrefois convict.

47. The discretion to guard against an abuse of process lies within the jurisdiction of the court. In Reg v. Beedie [1998] QB 356, Rose

L.J., giving the judgment of the Court, stated at 361/362:-

“We turn to Mr. Smith’s second submission in relation to the nature of a judge’s discretion. From the speeches in Connelly

v. Director of Public Prosecutions he identified two principles wider than the narrow principle of autrefois. First, that no

man should be punished twice for an offence arising out of the same, or substantially the same, set of facts. He relied on

the speech of Lord Devlin, at p. 1347, where he referred to the inherent jurisdiction to declare that the prosecution must

‘as a general rule join in the same indictment’ charges founded on the same facts by staying a second indictment if

satisfied that its subject matter ought to have been included in the first. A similar passage appears in his speech at p.

1360, where he adds:

‘But a second trial on the same or similar facts is not always and necessarily oppressive, and there may in a

particular case be special circumstances which make it just and convenient in that case. The judge must then, in all

the circumstances of the particular case, exercise his discretion as to whether or not he applies the general rule.’

Lord Pearce referred, at p. 1364, to the narrow view of autrefois as not comprehending:

‘the whole of the power on which the court acts in considering whether a second trial can properly follow an

acquittal or conviction. A man ought not to be tried for a second offence which is manifestly inconsistent on the

facts with either a previous conviction or a previous acquittal …. the courts should apply to such cases an avowed

judicial discretion …’

Lord Reid said, at p. 1296:

‘the general rule must be that the prosecutor should combine in one indictment all the charges which he intends to

prefer …. there must always be a residual discretion to prevent anything which savours of abuse of process.’”

Thus, while there is a general rule, as described, that a prosecutor should combine in one indictment all the charges he intends to

prosecute, and that there should be no sequential trials for offences on an ascending scale of gravity, the Court also retains a

discretion to protect the fair trial process against an abuse of process in all the circumstances.

48. While the general rule as to sequential trials, as described in the Connelly case, does not apply to this case, as discussed above,

even the general rule has exceptions, and the courts retain a discretion to protect an accused against an abuse of process.

49. Exceptions were outlined in the Law Commission of England and Wales’ report, Double Jeopardy and Prosecution Appeals [Law Com

No. 267 (2001)], where it stated at paragraphs 2.18 and 2.19:-

“the recent decision of three former judges of the Court of Appeal, sitting as the Court of Appeal for Gibraltar, in Attorney

General for Gibraltar v Leoni Criminal Appeal No 4 of 1998, judgment given 19 March 1999; unreported. The defendants

were seen jettisoning cargo from their boat on the approach of a police launch. The police suspected that the cargo was

cannabis, but could not prove this until the cargo was recovered; and by that time the defendants had already pleaded

guilty to an offence of jettisoning cargo. The Court of Appeal held that this was not enough to bring the Connelly principle

into play, because the charges of possessing and importing cannabis did not arise out of the same facts as the charges of

jettisoning cargo. The court went on to express the view that the recovery of the cannabis, after the defendants had

been dealt with on the jettisoning charge, would in any event have amounted to special circumstances. It has long been

established that the occurrence of some new event after a conviction for a lesser offence is no bar to a later prosecution

for an aggravated offence: for instance, a defendant convicted of an assault can be prosecuted for manslaughter if the

victim of the assault dies after the conviction. The court drew an analogy between the occurrence of a new event and

the discovery of new evidence.

This tends to support the view that the discovery of new evidence may amount to a special circumstance for the

purposes of the Connelly principle. It is noteworthy that the court took this view although the prosecution had been

aware, at the time when the jettisoning charges were dealt with, that evidence of cannabis offences might yet be

discovered. The argument for treating the discovery of new evidence as special circumstances must be all the stronger

where, at the time of the first trial, the prosecution has no reason to suppose that evidence of another offence might

become available.”

The Court of Appeal found that the Connelly general rule was not brought into play by the facts of the case, as I have found in this

case, but the Court of Appeal also considered that the additional evidence would have constituted special circumstances to the

general rule.

Burden

50. Under the Connelly principles the burden lies upon the respondents to prove that the general rule does not apply, when the facts

grounding the general rule have been established. Thus, if the facts in this case came under the Connelly general rule, the burden

would lie on the respondents to prove that this case is an exception to the general rule. However, I have approached the case from a

wider perspective, and have considered whether the DPP has established that there is good reason for the sequential trials and

whether these current charges are an abuse of process. The same facts and arguments that would have established special

circumstances, if the Connelly general rule was established, would also have a bearing on the Court’s consideration of whether an

abuse of process has been established and in the consequent exercise of discretion.

Discretion

51. On the respondents’ submissions in this case it is submitted that this is an exception to the general rule and that the Court should

exercise its discretion in favour of permitting the prosecution to proceed. From whatever aspect one addresses the case, the Court

retains a discretion to protect a person against an abuse of process such as to give rise to a real risk of an unfair trial.

Conclusion on the issue of sequential trials

52. It is a general rule at common law that the prosecution should join in the same indictment charges founded on the same, or

similar, or substantially the same, facts. However, there are exceptions to this rule. A second trial on the same, or similar, or

substantially the same, facts is not necessarily oppressive. There may be particular circumstances which make it appropriate in that

case.

53. In this case the current charges are not based on the same facts as the earlier charges. Thus, the first aspect of the rule as

described in case law does not apply.

54. Nor does the second aspect of the rule apply as the Electoral Act charges are not of the same or similar character as the current

charges of corruption.

55. However, as the prosecution of the Electoral Act charges and the current corruption charges arise out of a series of statements

made by Frank Dunlop in 2003 and 2004, I consider that there are circumstances which require to be considered to determine whether

the current charges are an abuse of process or are oppressive to the appellant so as to give rise to a real risk of an unfair trial.

56. In analysing whether the current charges are an abuse of process I consider the following to be relevant matters:-

(i) In all the circumstances of the case the State had a valid reason for not prosecuting the appellant for corruption

in 2004. It had justifiable reasons for not calling Frank Dunlop as a witness until Frank Dunlop himself was

prosecuted and convicted for corruption offences. In the Electoral Act charges Frank Dunlop was a witness, in the

matter of the corruption charges Frank Dunlop was an accused. Thus, both sets of charges could not be dealt with

identically. Before the DPP could rely on Frank Dunlop’s evidence in the prosecution of the appellant for corruption

charges, the criminal liability of Frank Dunlop under the corruption allegations had to be determined. It was only

after Frank Dunlop’s criminal trial had been determined that he could be a prosecution witness in the current

charges.

(ii) There is no duty on the DPP to inform a person of a potential prosecution. Nor is there a duty on the DPP to

disclose information to a potential accused which is relevant to a future potential prosecution.

(iii) The facts upon which the Electoral Act offences and the corruption offences are based are different.

(iv) The Electoral Act offences and the current charges are different in nature, degree and moral turpitude. As

discussed earlier, the failure to declare on a donation statement that he had received a donation exceeding €500 is

not the same or of a similar character as a charge that he corruptly received a payment.

(v) The appellant knew of corruption allegations made against him at the time of the prosecution for the Electoral

Act offences. These allegations were put to him by members of the Criminal Assets Bureau during an interview on

the 3rd March, 2004. In the memorandum of the interview the applicant answered three of the questions put to him

by the Garda Síochána in the following terms:-

“I never received a corrupt payment from Frank Dunlop.”

Thus, the appellant was aware of corruption allegations against him, although he did not know of written

statements alleging corruption.

57. I am satisfied that it is not an abuse of process to prosecute the appellant on the current charges. In the special circumstances

it was just and appropriate for the DPP to await the prosecution and conviction of Frank Dunlop before prosecuting the appellant on

the current charges, upon which Frank Dunlop will be a key witness. In all the circumstances there is no real risk of an unfair trial.

Thus, I would not prohibit the trial of the appellant on the current charges.

Delay

58. It was submitted on behalf of the appellant that the learned High Court judge erred in misconstruing the argument on delay. It

was submitted that the investigating and prosecuting authorities had in their possession all the proposed evidence forming the

content of the book of evidence in relation to the current charges when prosecuting the Electoral Act charges, but that the DPP had

held off for nearly five years before charging him in the current prosecution.

59. There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that

the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of

Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left

the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is

subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.

However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only

which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the

charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of

corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.

Stress and Anxiety

60. Clearly there was stress and anxiety in the earlier prosecution, as there would be in the current prosecution. However, on the

facts of this case, there is no evidential basis to prohibit the prosecution on this submission.

Legitimate Expectation

61. Insofar as the issue of legitimate expectation was before the Court, it was a submission as to an abuse of process. I would affirm

the analysis of the learned High Court judge. For the reasons given previously, I would not allow an appeal on the submissions as to

an abuse of process.

Disclosure

62. Insofar as there was a lack of disclosure by the State of the statement of Frank Dunlop to Gardai (CAB) on the 16th March, 2004,

and the draft statement of Frank Dunlop of the 24th September, 2004, these statements were not relevant to the prosecution for the

Electoral Act charges and did not require to be disclosed in that prosecution. In addition, I am not satisfied, in all the circumstances,

and for the reasons discussed earlier, that the non disclosure established an abuse of process such as to ground an order prohibiting

the trial of the appellant on the current corruption charges.

63. For the reasons given, I would not prohibit the prosecution of the appellant on the current charges, I would dismiss the appeal

and affirm the judgment and order of the High Court.