Court allows appeal where redacted accomplice evidence was revived years later without special justification.

[2012] IESC 24

THE SUPREME COURT

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 of Mr. Justice Hardiman delivered the 26th day of April, 2012.

1. This is the appeal of the applicant, Mr. Cosgrave, from the judgment of the High Court (Hedigan J.) of the 28th July, 2011, whereby

the learned judge refused the reliefs sought by way of judicial review. These were directed at restraining his prosecution on charges

of receiving corrupt payments.

2. The charges and relevant pleadings have been so fully exerted and expounded in the judgment of the learned Chief Justice in this

case that it would be otiose to repeat what she says.

Overview.

3. As a result of legislation passed in 1997 the applicant, as an elected representative and a candidate for office, was required to file

a statement of all political donations received by him which exceeded £500. In April 2005 he was charged with two offences contrary

to the 1997 Act, of making a donation statement which was false or misleading in that it failed to disclose donations received by him

between the 15th May, 1997 and the 31st December, 1997, seven to eight years previously. By agreement with the prosecution, he

pleaded guilty to one of the charges and received a sentence of community service in lieu of six months imprisonment. The offence in

relation to donation statements is agreed by the parties in the present action to be of a regulatory nature. It seems however that

they were merely a curtain-raiser to much more serious charges.

4. Some 5½ years later, in October 2010, the applicant was again brought before the Courts but charged on this occasion with much

more serious offences, that of corruptly receiving certain sums of money, contrary to the Public Bodies Corrupt Practices Act, 1889,

twelve to seventeen years previously. There were five such charges. On examining the Statements of Evidence served on the

applicant in respect of the 2005 proceedings, it transpires that each of the sums of money alleged to have been corruptly received

was set out in the statement of the principal prosecution witness, a Mr. Frank Dunlop as having been given by him to Mr. Cosgrave, in

1992 in one case and in the remaining cases in 1997. It has since transpired that, at the time the 2005 charges were preferred, Mr.

Dunlop already had alleged to the gardaí that the five relevant payments were corrupt payments.

5. Mr. Cosgrave claims that this conduct on the part of the prosecution - bring forward in 2005 a relatively minor count only and

then, when a plea to that count had been secured waiting some additional five years for bringing forward, on the basis of the same

statements - the much more serious counts which the applicant now faces - offends a long established common law rule which is part

of the concept of a “trial in due course of law” which is required by the Constitution. This is based on a requirement, as it was put in

a recent Irish case, that “in the interest of justice defendants are not exposed to successive suits where one would do”. He says

that this rule applies to criminal prosecutors as well as civil litigants and has been fragrantly breached in this case.

Salient relevant facts.

6. I consider that the salient facts relevant to the present proceedings are as follows:

(a) The projected criminal case turns essentially on the statements and allegations of Mr. Frank Dunlop. There would be

no case without him. Mr. Dunlop has become extremely well known nationally by reason of his appearances before the

Flood Tribunal, before that body was transposed into the Mahon Tribunal. The Tribunal, which was established in 1997,

has recently published its final report. Mr. Dunlop was previously well known in various occupations which included those

of RTE journalist, employed official of the Fianna Fáil party, Government Press Secretary, and lobbyist. On his own

account of events, and in the course of this latter occupation, at various stages in the 1990s he purveyed payments to

elected officials, mainly County Councillors, in the Dublin area. Some of these payments, according to Mr. Dunlop, were

bona fide political contributions but others (he says) were payments designed to influence the votes of the public

officials. The legal status of payments of each kind, insofar as relevant to the present proceedings, will be considered

below. Mr. Dunlop’s present narrative is at variance with his own previous statements.

(b) In relation to the applicant, Mr. Dunlop told the gardaí that he was a “friend” of Mr. Cosgrave.

(c) In the course of his evidence at the Flood Tribunal, Mr. Dunlop executed a remarkable volte face.

In the teeth of his own previous evidence he gave evidence that he had made various payments to public officials at

different times over a period of about a decade, some as bona fide political contributions and some as corrupt payments

i.e. payments designed to influence their decisions on certain planning issues. These payments were often made at or

about the time of elections, when the politicians in question had elections expenses. There were local elections in 1991, a

general election in 1992, Seanad elections in 1993 and a general election in 1997, with Seanad elections later the same

year.

(d) Because of the enactment of the Electoral Act, 1997, members of the Oireachtas, the European Parliament (or

candidates at Dáil Seanad and European elections who were not elected) had to notify the Public Office Commission of

certain donations received by them. This was to be done by means of a “donation statement”. The Act made it a criminal

offence to furnish a donation statement which was false or misleading in any material respect.

(e) On the 11th April, 2005, Mr. Cosgrave was charged with and returned for trial on charges which became Bill No.

430/2005, containing two counts of knowingly making false and misleading donation statements in January 1998 in relation

to donations exceeding £500 in value received between May and December of 1997 contrary to s.25 of the Electoral Act,

1997.

(f) To anticipate for a moment, some 5½ years later on the 26th October, 2010 Mr. Cosgrave was again arrested and

charged with five offences of receiving corrupt payments from Frank Dunlop, in June 1992 and between the 30th October,

1997 and the 23rd December, 1997 in respect of the zoning of lands at Carrickmines, contrary to s.1 of the Public Bodies

Corrupt Practices Act, 1989 as amended.

(g) It is now necessary to go back to the first set of charges, those preferred in 2005. The following crucial features

emerge.

(i) At the time the first, or “donation statement”, charges came before the Circuit Court, the gardaí were already in

possession of the evidential material which is the basis of the second “corruption” charges which were eventually

preferred against Mr. Cosgrave in 2010. There can be no dispute about this fact because, at para. 3.6 of his

judgment, the learned High Court Judge held as follows:

“The [2010] Book of Evidence contains no further evidence additional to what was in the possession of

the investigating and prosecuting authorities when a file was sent to the D.P.P. in October 2004 and

when the applicant was prosecuted in 2005”.

There has been no appeal from this finding.

(ii) Substantially the whole of the evidence against Mr. Cosgrave on both the first and the second set of charges

consists of statements and allegations made by Mr. Dunlop to the gardaí. He had previously made similar statements

to the Flood Tribunal in October 2000.

(iii) The corruption charges are of a much more serious nature than the “donation statement” charges. The

penalties available, in terms of fine or imprisonment are more than twice as severe. Moreover, it is common case

that the “donation statement” charges are capable of being regarded as regulatory offences only whereas the

corruption charges are undoubtedly true criminal offences.

(iv) After the applicant was charged with the “donation statement” offences in 2005 his solicitors sought disclosure

from the gardaí of “all statements” made by Mr. Dunlop. Their entitlement to do this has not been challenged, nor

has the relevance of the material they sought. But they received partial disclosure only. In substance, they

received only statements which, if believed, established simply that Mr. Dunlop had made donations to Mr. Cosgrave

which would have required to be disclosed to the Public Offices Commission. However the gardaí withheld the

allegations which (if believed) established that certain payments were made for the purpose of influencing

Mr.Cosgrave’s vote in his capacity as a County Councillor on certain planning issues, and were therefore corrupt

payments.

(v) On the 17th October, 2005, the applicant, after discussions between his counsel and counsel for the Director of

Public Prosecutions, pleaded guilty to a single count which was as follows:

“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 s.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”.

(Emphasis added)

This charge became Count 2 on the indictment and, in an affidavit of Detective Garda Martin Harrington, it is said

that “the plea to Count 2 is acceptable to the prosecution in Bill No. 430/2005”.

The applicant received a sentence of 75 hours of community service in lieu of six months imprisonment.

(h) It will be noted, from the form of the “donation statement” charge that it does not specify the number or the amount

of “any” donation or donations actually received, merely that it or they exceeds £500, alone or in aggregate with others.

Nor does it specify the person from whom such donation was received, where it was received or for what purpose it was

given. It is capable of covering any number of donations within the stated period. Mr. Dunlop says there were five such

donations, four of which are the subject, also, of the later, 2010, charges.

(i) When the “corruption” charges were brought forth in 2010 they were also in notably vague form. For example, Charge

21 on the “Corruption” charge sheet alleges:

“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… corruptly received a sum of money as an inducement to or an award for

voting in favour of a motion [rezoning the ‘Carrickmines Great’ lands as industrial]”.

(Emphasis supplied)

This imprecision in the charges gives rise to certain issues which may be necessary to address later in this judgment. But

it does not appear to me to be directly relevant to the substantive legal issue in the case, considered below. But it is of

crucial relevance to a vital preliminary issue which is this: were the 2005 charges, and the 2010 charges, based on the

same, or substantially the same set of facts?

(j) In the course of the written and oral submissions of the parties, certain issues were raised which do not appear to me

to have been pressed in the end. For example, it was at one time contended that a possible reason for the non-disclosure

to Mr. Cosgrave, prior to the first court hearing, of the “corruption” statements made by Mr. Dunlop was that certain of

them were still in draft form at that time. This was not in the end pressed as a reason for non-disclosure. Equally a

submission that the Rule in the case of Henderson v. Henderson (1843) 3 Hare 100 had no application to criminal cases

was not pursued.

(k) It is of considerable importance that Mr. Dunlop was the principal witness (“witness No. 1”) in both the 2005 and the

2010 proceedings. Still more important, his Statement of Evidence in the earlier proceedings sets out the exact same

alleged payments in regard to which the applicant has now been charged with corruption.

It is important to be precise about this. On the 2010 charge sheets the allegations of corruption against Mr. Cosgrave are

five in number and are set out at charges 20 - 24 inclusive. It is important to note that no amounts are given in the

charges so that comparison with the statements made for the purpose of the 2005 proceedings has to be on the basis of

dates and (where given) locations alone. Thus, Charge 20 relates to a payment of an unspecified amount but said to have

been paid “on a date unknown” between the 12th June, 1992 and the 29th June, 1992. This corresponds precisely to the

payment alleged at reference 2 on the first page of Mr. Dunlop’s statement in the 2005 Book of Evidence: a payment of

£2,000 cash between the 12th June, 1992 and the 29th June, 1992.

Charge 21, relates to a payment, again of an unspecified amount (“a sum of money”) but allegedly made on the 30th

October, 1997 at the Davenport Hotel. This corresponds exactly with the payment set out at reference 4 on the second

page of Mr. Dunlop’s statement for the purpose of the 2005 proceedings.

Charge 22 relates to a payment, of an unspecified amount made on the same date in the same place. The difference

between this and the preceding charge is that this charge relates to the rezoning of 88 acres at Carrickmines Great

whereas the former charge relates to the rezoning of 36.85 acres in the same townland. It appears that this is one and

the same transaction and corresponds to that described in the 2000 statement at reference 4 on the second page as a

payment of £2,500 cash on the 30th October, 1997 in the Davenport Hotel.

Charge 23 relates to a payment, of an unspecified amount, but paid on the 23rd December, 1997 at Buswells Hotel. This

corresponds precisely to the payment described at reference 5 on the second page of Mr. Dunlop’s statement in the 2005

Book of Evidence. This describes a payment of £4,500 cash “at a meeting in Buswells Hotel” on the 23rd December, 1997.

Finally, Charge 24 again relates to a payment of an unspecified amount on the 23rd December in Buswells Hotel. This

charge is distinguished from Charge 23 in the same way as Charge 22 is distinguished from 21.

Accordingly, as far as the Statement of Evidence in the 2005 proceedings is concerned, it shows a 100% overlap between

the payments alleged, in the 2010 charges, to be corrupt payments and the payments described in Mr. Dunlop’s

statement in the Book of Evidence for the 2005 proceedings. If, instead of comparing the Statement of Evidence in the

2005 proceedings with the charges in the 2010 proceedings, one compares the earlier and the later charges, an almost

equally striking situation results.

(l) Although (as seen above) the “donation statement” charges were extremely vaguely phrased it is apparent that the

evidence relied upon to prove receipt of a donation (which should have been included in the donation statement) was

that of Mr. Dunlop, who was witness No. 1 on that Book of Evidence, and his Statement of Evidence of 2005 (being a

composite of earlier statements) listed the payments alleged in 2010 to be corrupt payments.

(m) The charges in the present (2010) Book of Evidence against Mr. Cosgrave are set out at reference nos. 20 - 24

(inclusive) in the Book of Evidence. The first of these alleges a receipt of money “on a date unknown” but said to be

between the 12th and 29th June, 1992. The other four charges relate to counts of receiving money corruptly on four

dates between the 30th October, 1997 and the 23rd December, 1997. It has been observed that all of these dates are

within the dates on which monies which should have been, but which were not, included in the donation statement were

alleged to have been received. It is not possible to work out the precise degree of overlap from the charges alone

because of the vague way in which they are phrased. But the allegation of receipt of money in 1992 clearly does not

overlap specifically with the 2005 charges because the count to which Mr. Cosgrave pleaded guilty relates entirely to

1997.

The 2005 Charges.

(n) The 2005 indictment does not specify any payment at all. The charge was furnishing a false declaration which was

alleged to be false because it did not declare any specific donation at all received between May and December, 1997, nor

did it say how many donations are alleged. But this period is also capable of capturing both payments of £2,500 and

indeed the other three payments specified in Mr. Dunlop’s statement of the 20th November. It appears from count 2 of

the 2005 indictment that the prosecution was making the case that all of the payments mentioned in Mr. Dunlop’s

statement ought to have been disclosed so that the declaration was false if any one of them was proved.

It thus appears that the prosecution deliberately drafted the 2005 indictment so widely that it is capable of extending to

all but one of the payments now alleged to be corrupt payments. If this is so then it appears that the two prosecutions

do indeed arise out of the same, or substantially the same, set of facts. To be precise, there is a 100% overlap between

the 2005 statement of Frank Dunlop and the 2010 charges relating to payments alleged to be corrupt. If, instead of

making that comparison, one compares the 2005 charges with the 2010 charges it appears that four out of the five

payments alleged in 2010 are within the terms of count 2 on the 2005 indictment, an overlap of 80%. The legal relevance

of this will be considered below.

Summary.

7. It thus appears that in 2004 the gardaí were in possession of statements from Frank Dunlop which are the basis both of the

charges they brought against Mr. Cosgrave in 2005 and of the charges they did not bring against him until 2010. Moreover, they

failed to disclose the material grounding 2010 charges when asked for “all” statements of Mr. Dunlop, before Mr. Cosgrave pleaded

guilty to one of the 2005 charges. The 2010 charges are of an altogether more serious nature both in terms of penalty and in terms of

reputational damage, than the 2005 charges were. The applicant says that he was in effect finessed into pleading guilty, in 2005, to

an offence of a regulatory nature but one which, nonetheless, necessarily implied that he had received relevant donations from Mr.

Dunlop in the latter part of 1997. He is thus severely constrained in the defences available to the present charges.

8. It will be manifest from the foregoing that the engine of each set of charges against the applicant is the evidence of Mr. Dunlop

and that that gentleman’s credibility would be the central issue at any trial.

9. Mr. Cosgrave denies, and has always denied, receiving any corrupt payments.

Legal aspects of the foregoing.

10. The applicant says that there is a well established rule of common law that there should be no sequential trials for offences on an

ascending scale of gravity. He says that, as a corollary of this, there is a rule of common law that a prosecutor must “ as a general

rule join in the same indictment charges founded on the same facts” and that a court should stay a second indictment “if satisfied

that its subject matter ought to have been included in the first”. These matters, he says, are aspects of the trial “in due course of

law” which is the only form of trial permitted under the Constitution.

11. The applicant says that these propositions arise from a more fundamental rule, which applies both to civil and to criminal litigation,

that no party is allowed to bring two actions where one would do, or to divide up a complaint so that different parts of it can be

brought forward incrementally at different times (five years later, in this case). It follows from this, of course, that it would be quite

wrong to prefer, on the basis of the same statements of the complainant, relatively minor charges to which a defendant might be

advised to plead guilty, for the purpose of, or with the result of, permitting much more serious charges to be brought forward half a

decade later, when, by reason of his original plea, the defendant would be less well able to meet them.

12. The applicant relies in this regard on the venerable case of R.v. Elrington (1861) 1B and S at p.70, where the principal judgment

was given by Cockburn C.J. There, the two defendants had been charged with common assault before two Justices of the Peace.

They were acquitted. The prosecutor next charged them, in respect of the same incident, with assault occasioning actual bodily harm

and assault occasioning grievous bodily harm which were much more serious offences, triable on Indictment. The prisoners moved to

stay the Indictment preferred against them and were upheld in this by Cockburn C.J. and Blackburn J. Cockburn C.J. said:

“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 this very same assault this indictment is now preferred, and to that these pleas are

pleaded 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 charged of a minor offence is acquitted or convicted, he shall not be charged again on

the same facts in a more aggravated form”.

(Emphasis supplied)

13. A number of other cases to the same effect are cited in the judgments.

14. This case, of course, is one of some antiquity, but this merely suggests that “well established principle of our criminal law”

referred to is a very long established one.

15. The case was approved in the neighbouring jurisdiction in much more recent times in the case of R. v. Beedie [1998] Q.B. 356, in

the Court of Appeal in England. The facts of this case are very instructive. The defendant was a landlord of a rental property in which

a young woman tenant died of carbon monoxide poisoning caused by a defective gas fire. He was prosecuted before the magistrates

by the Health and Safety Executive and pleaded guilty to an offence under the Health and Safety at Work Act, 1974 consisting of a

breach of a duty to ensure that the appliance was maintained and repaired. He was fined. Subsequently there was an inquest into the

young lady’s death and the coroner required the defendant to give evidence saying that he could not possibly be prejudiced by

answering questions tending to incriminate him because he had already been convicted. A verdict of unlawful killing was returned.

Some months later, the Crown Prosecution Service charged him with manslaughter. He moved to stay the Indictment, which was the

proper procedure in the United Kingdom. The trial judge ruled against him but the defendant was successful in his appeal to the Court

of Appeal.

16. In those circumstances, the defendant relied on what he said was a general principle “that no man should be punished twice for

an offence arising out of the same, or substantially the same, set of facts” and that to do so would offend the established principle

that a defendant is not to be tried again on the same facts for more serious offences on an ascending scale of gravity.

17. A second general principle which the defendant in the English case identified was that there “should be no sequential trials for

offences on an ascending scale of gravity”. He relied on the judgment in Elrington, cited above. He pointed out that the dictum of

Chief Justice Cockburn had previously been approved in Connelly v. Director of Public Prosecutions [1964] AC 1254.

18. It appears from the report (p. 362, para. E) that the prosecution in the Beedie case accepted that the Elrington principle is good

law.

19. The Beedie case is also authority for the proposition that, despite the general rule, there may be circumstances in which charges

founded on the same or similar facts need not be joined in the same indictment; this required proof of special circumstances, the

proof of which lay on the prosecution. The judgment referred to a case of R.v. Riebold [1967] 1 WLR 647 where it was held that there

were no “special circumstances” because there were no new facts which had emerged between the first and the second set of

charges. The learned trial judge’s finding that this is the situation in the present case as well has been quoted above. The Court of

Appeal said (page 366):

“In our judgment there being, as we have indicated, no special circumstances in the present case, it is one where the

general rule should have prevailed. A stay should have been ordered because the manslaughter allegation was based on

substantially the same facts as the earlier summary prosecutions and gave rise to a prosecution for an offence of greater

gravity, no new facts having occurred, in breach of the principle of R. v. Elrington”.

20. Importantly, Lord Devlin in Connelly, declared that a prosecutor must: “as a general rule join in the same Indictment charges

founded on the same facts” and that a court should stay a second Indictment “if satisfied that its subject matter ought to have been

included in the first”. It is this statement, rather than the mere broadly-framed one which gives rise to it, upon which the appellant

relies.

21. Lord Pearce held, in the same case, that the defence of autrefois acquit did not comprehend:

“ 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 Court should apply to such cases an avowed judicial discretion”.

22. Equally, Lord Reid said that:

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

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

Ratio of the above principle.

23. There is, of course, a rule to the same effect as that quoted above in relation to criminal prosecutions, which developed in

relation to civil proceedings. As it happens, the rationale of this rule is perhaps better expressed in the civil cases. There is no doubt

that this rule, often referred to as the Rule in Henderson v. Henderson is both a common law principle of considerable antiquity and

one which has been frequently applied and often examined in recent times in this jurisdiction.

24. The rule in Henderson v. Henderson [1843] 3 Hare 100 means that a litigant may not make a case in legal proceedings, which

might have been, but was not, brought forward in previous litigation. The rule was thus characterised in SM v. Ireland [2007] 3 IR 238

by Kearns P. and he cited the Victorian case as follows, from the judgment of Vice-Chancellor Wigram:

“I believe I state the rule of the court correctly when I say that where a given matter becomes the subject of litigation

in, and of the judication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring

forward their whole case, and will not (except under special circumstances) permit the same parties to open the same

subject matter of litigation in respect of a matter which might have been brought forward as part of the subject in

contest, but which was not brought forward, only because they have from negligence, inadvertence or even accident,

omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the

court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which

properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought

forward at the time.”

25. The appellant complains that, in this case, the prosecution quite deliberately did not bring forward their whole case in 2005, and

that there was no good reason for this, simply a desire to pursue tactical advantage.

26. The applicant in the present cases relies on this principle, and says that it applies to criminal cases also. He cites the case of

McFarlane v. D.P.P. [1008 4 IR 2117] and quotes from the judgment of Fennelly J. therein as follows:

“The purpose of the rule is to uphold an important principle of public policy which demands, in the interest of justice, that

the defendants are not exposed to successive suits where one would do”.

27. I agree with this dictum and I believe that it applies to civil as well as criminal cases. There is no reason of policy or otherwise

why it should not. The degree of distress and harassment caused to an individual who was subjected to multiple litigation in criminal

cases is, to say the least, not less than that suffered by a person similarly treated in civil proceedings.

28. Fennelly J. cited the English case of Woodhouse v. Consigna [2002] 1 WLR 25 58 where Brooke L.J. characterised the public

interest requirement as follows, at p. 2575:

“ at least as important as the general need, in the interests of justice, to protect the respondents to successive

applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson that, in the

absence of special circumstances, parties should bring their whole case before the Court so that all aspect of it may be

decided (subject to appeal) once and for all is a rule of public policy based on the desirability in the general interest as

well as that of the parties themselves, that litigation should not drag on forever, and that a defendant should not be

oppressed by successive suits where one would do”.

29. The case of AA v. the Medical Council [2003] 4 IR 302 is a recent Irish case where the rule was applied. The applicant in that

case, who was a medical practitioner not registered in Ireland, was acquitted of charges of sexual assault in the Circuit Court and

later sought temporary registration as a medical practitioner in Ireland. The Medical Council held however that there was a prima

facie case for holding an inquiry into his conduct arising out of the incidents which led to criminal charges. The applicant then

unsuccessfully sought to restrain the inquiry on the ground of double jeopardy. This took a considerable time. A new date was fixed

for holding the inquiry. The applicant then commenced a separate set of proceedings also aimed at restraining the holding of the

inquiry, this time on the ground that the Medical Council had failed to provide him with legal aid. This Court held, on the basis of

Henderson, that a party to previous litigation as against the other party in a second action was bound not only be any defences

which it raised in the first action but also by any defence which it might have raised but did not raise. Speaking of the points (in

relation to legal aid) sought to be raised in the second proceedings, I said:

“No reason has been advanced, and none appears on the evidence, as to why these points could not have been raised

two years previously. The applicant’s financial position had not worsened in the interval, he was impecunious at all

material times. He had first raised the question of legal aid less than a month before the institution of the present

proceedings, and no reason has been advance for not raising it earlier. The information he received in reply cannot have

come as a surprise to any lawyer or doctor and no case has been made to the contrary. The issues in relation to legal aid

are, therefore, to adapt the language of Henderson and Henderson, issues ‘which properly belonged to the subject of

litigation and which the parties, exercising reasonable diligence, might have brought forward at the time’ of the first

proceedings. In the language of Johnson v. Gore Wood and Company [2002] 2 AC 1, they are issues which might ‘sensibly’

have been brought forward in the previous litigation. The present litigation in my view runs foul of the rule of public policy

‘based on the desirability, in the general interests as well as that of the parties themselves, that litigation should not drag

on for ever and that a defendant should not be oppressed by successive suits where one would do’.”

30. This case was followed in Arklow Holidays Ltd. v. An Bord Pleanála [2007] IEHC 327. There, Mr. Justice Clarke in the High Court

considered the application of the rule to public law litigation in the context of judicial review proceedings. He found that there was no

reason why the rule in Henderson should not apply with at least equal force in the exercise by public or quasi public bodies of a public

law role:

“As a matter of domestic law there does not, therefore, it seems to me, appear to be any reason why the rule in

Henderson v. Henderson should not apply with at least equal force in relation to judicial review proceedings. Such

proceedings involve the exercise of public or quasi public bodies of a public law role. There were almost invariably be

similar considerations to those identified by Hardiman J., in respect of the Medical Council, which mandate that that public

role be carried out in an expeditious way in the interest of the public generally and those persons whose rights and

obligations may fall to be governed by the public body concerned. It seems to me that the principles apply with equal

force, if not greater, in relation to the planning process.”

31. Accordingly, the existence and authority of the Henderson rule in modern Irish law is beyond doubt. Indeed, it has even been

relied upon by the Director of Public Prosecutions himself in judicial review proceedings. It is of historical interest to note that a

variant of the rule was devised and applied in the pre-independence Irish courts, without citation of Henderson v. Henderson: see

Cox v. Dublin City Distillery (No. 2) [1915] 1 IR345.

Exceptions.

32. It is perfectly clear from the cases cited that a moving party, whether plaintiff or prosecutor, must bring forth in the first piece of

litigation all the complaints he intends to raise. But this is not intended to be an overly rigid rule or one which applies without

exceptions. In Connelly v. D.P.P. that rule is described as “the general rule” and there is also reference to the fact that there “may in

a particular case be special circumstances which make it just and convenient in that case” [that a second Indictment be permitted].

33. In the present case however no evidence has been brought forward to explain why the applicant was not charged with corruption

charges when he was prosecuted in 2005. Hearsay statements and legal submissions have been addressed to this point, considered

below. This omission appears to rule out the application of any exception to the general rule. Moreover, it is clear from a citation from

the learned trial judge’s judgment given above that it has been affirmatively found that the prosecutors were in possession of all the

evidence relied on in support of the charges in the 2010 Indictment at the time the applicant was prosecuted in 2005. Specifically, in

Mr. Dunlop’s statement to the gardaí of the 15th October, 2003, it is alleged that he had made ten payments to the applicant

between 1992 and 1997. These payments include all the payments giving rise to the current charges of corruptly receiving payments

(including the payment of £2,500 cash said to have been made on the 30th October, 1997) other than the 1992 allegation. But the

£2,500 appears to be the very payment to which the sample count on the first Indictment related in the mind of the prosecution. It

also appears to be a payment in respect of which Detective Garda Harrington has sworn, in his affidavit of the 2nd May, 2011, that it

was NOT a corrupt payment. To this extent, and especially if this averment may be taken as relying to the other allegations of which

this was a sample, there is an apparent factual inconsistency between the first and the second Indictments.

34. I have already commented, at para. (n) above, on the fact that the charge to which Mr. Cosgrave pleaded guilty in 2005 was so

vaguely drawn as to be capable of including four of the five payments in respect of which he is now charged with corruption. The

prosecution in effect invite us to infer that the payment they had in mind as falsifying the “donation statement” was a payment in

July of 1997 and not any of the later payments. I am not prepared to draw that inference. Firstly, I do not believe that the facts

grounding the 2005 charge is a matter which should be determined by inference, as opposed to by a consideration of the wording of

the charge itself. The prosecution have the sole power to formulate the charge and if they have drawn one so vaguely as to be

capable of including four of the five payments alleged in the 2010 charges to be corrupt payments, that is entirely their responsibility.

Secondly, all of the 1997 payments now alleged to be corrupt were recited in Mr. Dunlop’s statement for the purpose of the 2005

prosecution, and that fact is manifestly inconsistent with the proposition that count 2 on the 2005 indictment related solely to a

payment in July and not to the other payments allegedly made in the time period which the prosecution elected to specify. Moreover,

the evidence of those payments was included in the 2005 Statement of Evidence and that, as I have said before, is sufficient to

establish the proposition that the two prosecutions are grounded on substantially the same facts. Thus, for example, the payments

(now alleged to be corrupt), which were made in the Davenport Hotel and in Buswell’s Hotel respectively in October and December,

1997 were within the evidence adduced to support the 2005 charges. The represent four of the five grounds of complaint in the

present indictment.

The Respondents’ case.

35. The respondents’ case on this aspect has varied somewhat as between that made in the High Court and in this Court. In the

written submissions before the High Court it is baldly stated, at para. 18:

“It is further submitted that the Henderson v. Henderson principle applies to civil law and has nothing to do with the pleas

in Bar that exist in criminal law”.

36. This contention is considerably nuanced in the submissions on appeal as follows:

“Traditionally Henderson v. Henderson has applied to civil law only and in this jurisdiction has not been applied in criminal

cases”.

37. In the following paragraph, however, the point is nuanced still more:

“even if one were to apply the rule in Henderson v. Henderson its application is:

(i) Dependent on the question as to whether all of the issues it is sought to litigate in the second case could have been

included as part of the first case;

and

(ii) Is subject to a special circumstance exception”.

(Emphasis added)

38. In practise, the bulk of the submissions were directed at the first of the points just mentioned. Detective Garda Harrington in his

affidavit states, at para. 132:

“it’s simply not the case that the within prosecution could have been brought at the same time as the Electoral Acts

prosecution”.

39. Having recited this, the respondents put their case as follows:

“As we know at the time the Electoral Acts charges were directed Mr. Frank Dunlop had not made any signed statements

suggesting that any of the payments were corrupt. Even when he made such statements, as he was criminally liable

himself, he had to be brought before the courts and dealt with. Thus this was never a case where the corruption charges

could have been brought before the Courts in 2005/2006 at which time the Electoral Acts charges were before the court.

It is submitted that this disposes of any argument based on Henderson and Henderson.”

40. That, indeed, is the whole of the respondents’ case on this point. The case thus made appears to me to be fatally undermined by

the fact that Mr. Frank Dunlop was the first and principal witness in the 2005 Book of Evidence. He was required as a witness to

prove the payments allegedly made to Mr. Cosgrave. But he had, prior to Mr. Cosgrave being charged with the Electoral Act offences,

made a statement to gardaí in which he alleged and admitted that he had himself made corrupt payments to Mr. Cosgrave.

Accordingly, in the respondents’ phrase “he was criminally liable himself”. But the D.P.P. did not then take the view that before he

could be called as a witness he had first to be brought before the Courts and dealt with. This did not occur until 2009. The State

thus made use of him as a witness in 2005 even though he had not been brought before the Courts and dealt with. Therefore they

could have used him as a witness in 2005 in a corruption charge.

41. I do not accept the prosecution contention that there is a valid distinction between the 2005 charges and the 2010 charges

because, on Mr. Dunlop’s account, he was an accomplice to the offences charged in 2010 but not to the offences charged in 2005. I

must reiterate what seems to me to be the central fact, that the prosecution were in possession of Mr. Dunlop’s statement portraying

himself as an accomplice in the corruption charges eventually brought forth in 2010, before the 2005 case. Yet, despite the fact that,

as the prosecution put it, “he was criminally liable himself”, he was not merely deployed as a witness but his statement of proposed

evidence included the very payments in respect of which he had admitted accomplice status. It has not been submitted that there

was any rule of law whereby an accomplice could not be deployed as witness unless he had first been charged himself. Therefore, the

decision to defer the bringing of charges until Mr. Dunlop had been charged and convicted was a tactical one and nothing more.

42. My reasoning on this point requires a relatively detailed analysis of the law relating to accomplices. Since this tends to break the

continuity of the judgment, I have relegated it to an appendix below.

43. Moreover, the inclusion of the payments relied on in 2010 in Mr. Dunlop’s 2005 Statement of proposed Evidence manifestly

demonstrates the prosecution’s willingness to rely on them in the 2005 case for some purpose, whether in aggravation of sentence or

otherwise.

44. Accordingly, I cannot accept the proposition that corruption charges were not capable of being preferred in 2005 because Mr.

Dunlop had not then himself been prosecuted. No legal authority is cited for this proposition. Detective Garda Harrington’s affidavit,

however, at para. 92 says that the D.P.P. told the gardaí that he would only consider prosecuting James Kennedy and the other

councillors if Frank Dunlop was convicted of the related charge and then only upon receipt of confirmation that Frank Dunlop would be

prepared to give evidence in the Criminal Court in any prosecution that the D.P.P. might consider bringing against James Kennedy and

the councillors.

45. This of course is hearsay and the unfairness (quite apart from admissibility issues) of including hearsay in an affidavit is that it is

impossible to challenge by cross-examination. But, altogether apart even from this, the material in question is no more than a

statement of the view of the then Director of Public Prosecutions. It does not explain why, if that was indeed his view at the relevant

time, he authorised a prosecution for offences under the Electoral Acts with Mr. Dunlop as a witness, indeed the principal witness,

and in whose Statement of Evidence the payments to which the present changes relate were rehearsed.

46. Another point forcibly made by the respondents is that although the State were, prior to the initiation of the 2005 prosecution, in

possession of a statement of Mr. Dunlop alleging that he had made corrupt payments to various persons, including the applicant, this

was an unsigned statement and did not exist in signed form until after the 2005 prosecution had concluded. This cannot in any way

affect the rule that “a prosecutor should combine in one indictment all of the charges which he intends to prefer”. It was not, in the

end, submitted that it could.

47. There is no doubt that the prosecution did not provide, by way of disclosure in the 2005 case, those statements of Mr. Dunlop

alleging corrupt payments. This fact, however, does not appear to me to be in itself directly relevant to the present point. But it is of

course the case that, had the applicant’s solicitors been aware of the statements alleging corruption, they would have been alerted

to a manifest risk to their client which they might have sought to address in the discussions which preceded the plea to one count on

the 2005 indictment.

48. Detective Garda Harrington sets out a good deal of material in his affidavit suggesting that the substance of Mr. Dunlop’s

undisclosed statements had been put to Mr. Cosgrave in interviews, and no doubt this is perfectly true. But it is one thing for a garda

to canvass a topic in interviews with a suspect, perhaps in the hope of an admission. But that does not suggest either that the

prosecutor is in possession of evidence to support a particular allegation or that a witness has made a statement about it. The

allegation about corrupt payments was put to Mr. Cosgrave, and he denied it. Subsequently, he was charged with offences which

made no reference to corruption, and not until more than five years later did a corruption charge come forth.

49. In fairness to the prosecutors, it should be said that no undue emphasis was placed in the end on the fact that Mr. Dunlop’s 2004

statement alleging corruption was unsigned. At para. 18 of their written submissions, the respondents say:

“The D.P.P. accepts that the fact that a statement is in draft form does not make what would otherwise be a disclosable

statement non-disclosable. However it is submitted that the focus of this appeal is not on the scope of disclosure in

criminal cases.”

50. I agree with what has been quoted above and indeed consider the defective disclosure in the 2005 case as logically tangential, if

suggestive, in its relevance to the nub of the present case. It is not without significance, in considering the facts, that the material

making it clear that Mr. Dunlop was alleging an offence contrary to the Act of 1889 was not disclosed to Mr. Dunlop’s advisers even

though it was in the possession of the prosecution. The disclosure material must have been carefully edited to exclude it. If, as the

submission quoted above appears to accept, the fact that it was in unsigned form is not a central point, then it is hard to know why

it was not disclosed. If it had been disclosed the subsequent development of the case against Mr. Cosgrave might have been very

different. Mr. Cosgrave might have been advised that the charges which he faced in 2005 were merely a curtain raiser to much more

serious charges in whose defence he would be severely prejudiced if he pleaded guilty to one of the 2005 charges.

51. It is clear from the affidavit of Mr. Robert Eager, Solicitor, in the present case that Mr. Cosgrave was meticulously and more than

competently advised by solicitors well known for their expertise in criminal law, and by counsel retained by them. Such advisers would

be fully aware of the distinction between a particular allegation being canvassed by a guard in an interview on the one hand, and that

guard having an intention, based on the availability of evidence, to pursue such an allegation to the point of prosecution on the

other. It was manifestly in full knowledge of that distinction that the solicitors very advisedly wrote seeking all the statements of Mr.

Dunlop. The letter in response, which is that of the 17th June, 2005, does not suggest that the solicitors are not entitled to “copies

of all statements made to the gardaí by Mr. Frank Dunlop” but includes the “donation statements” only. It was not stated or apparent

that there were in being other statements which were being withheld.

52. By contrast, when the statement of Mr. Dunlop contained in the Book of Evidence in the 2010 case came to hand, it appears that

this statement was a composite of two statements made by Mr. Dunlop before the 2005 case, being firstly a witness statement of

Frank Dunlop of the 16th March, 2004 made to Detective Inspector Denis O’Leary and Detective Garda Martin Harrington and secondly

a witness statement of Frank Dunlop made on the 28th July, 2005 made to Inspector O’Leary and Detective Sergeant Richardson.

53. It is thus apparent that these statements were available before Mr. Cosgrave pleaded guilty to the 2005 charge in October of

that year, but that neither of them was disclosed to the applicant.

54. As we have seen above, the substantial reason given for this is that it was not possible then to proceed with the corruption

charges because Mr. Dunlop himself had not been dealt with by the Courts. As I have said, I reject this as being plainly not the actual

reason for the non-disclosure, or for the failure to bring forward corruption charges in 2005. This is clearly so because Mr. Dunlop was

in fact deployed as the principal prosecution witness in the 2005 charges, and this was done on the direction of the same holder of

the Office of Director or Public Prosecutions.

55. It is not necessary for present purposes to say more than this: no credible particular or special reason has been advanced by the

State as to why the general rule applying to all proceedings, outlined above, was not complied with in the present case. The 2005

case has turned out to be merely a curtain raiser for a much more serious one brought forward more than five years later. I believe

that this was the intention of the prosecution at the time the first charges were preferred. The careful non-disclosure of Mr. Dunlop’s

corruption allegation was, I believe, unfair to Mr. Cosgrave and was seen as an important feature in procuring the plea to a single

count in 2005. It seems to me manifest that the editing of Mr. Dunlop’s statements prior to the plea of guilty was not done in Mr.

Cosgrave’s interest, to say the least. Cui bono?

56. The effect of the non-preferring of corruption charges in 2005, combined with Mr. Cosgrave’s plea to the single count in that year

is significantly to worsen his position in relation to the corruption charges he now faces. It must have been manifest to any lawyer in

possession of the material which the prosecution redacted in 2005 that this would be so.

57. I further believe that the contents of the single count in respect of which the guilty plea was recorded in 2005, and the

statement of Mr. Dunlop in the Book of Evidence served in that year, amply demonstrate that the 2005 and the 2010 charges are

based on the same, or substantially the same, facts. They should therefore have been charged in the same indictment, some seven

years ago.

Two further points.

58. I wish briefly to make two further points, both arising out of the penetrating judgment of O’Donnell J. in this matter.

59. Firstly, para. 17 of his judgment, O’Donnell J. raises the possibility that the observations of Detective Garda Harrington as to what

he was told by or on behalf of the Director of Public Prosecutions may not be hearsay. Since, like O’Donnell J., I have not decided the

case, wholly or partly, on this issue, I am reluctant to write extensively on a point that is not central. But I can quite see the

argument for thinking that the direction of the D.P.P. to the gardaí, if the latter are regarded as his agents, may not be hearsay. But I

consider that, even if this is so, the reasons given by him, as retailed by Detective Garda Harrington, are indeed in the nature of the

hearsay. This is not a mere technical point: by putting these matters before the Court in the affidavit of a person who cannot

effectively be cross-examined on them, the applicant is placed at a considerable disadvantage. I would simply stress that, in the

future, material of this sort should be provided by a witness who can speak of it from his own knowledge, so that the evidence can be

challenged by cross-examination if desired. Precisely the same observation, of course, would apply to the affidavit evidence of an

applicant.

60. Secondly, I want to express my agreement with what is said at para.18 of the judgment of O’Donnell J. to the effect that the

bringing forth of the corruption charges so long after the first set of charges means that they come “at a time when he [the

applicant], and anyone connected with him, would have been entitled to believe that at least as far as the criminal law was

concerned, he could attempt to the task of rebuilding his life”. I agree with this. The late preferring of the corruption charges, after

Mr. Cosgrave has undergone not merely a trial but a ritual humiliation quite a number of years ago is a nonsense from a penological

point of view. It is also, I believe, seriously oppressive of the applicant and his family. The avoidance of such an oppression is one of

the main reasons for the rule that, in the absence of a special reason, all charges against a person should be brought forth at the

same time. I do not consider that the procedures adopted in this case have been just to Mr. Cosgrave or to those connected with

him, i.e. his family. I am not aware of any case where original charges have been followed at so long an interval with much more

serious ones and I do not see why Mr. Cosgrave has been singled out in this respect.

61. For these reasons I would set aside the order of the High Court and substitute an order prohibiting the further prosecution of Mr.

Cosgrave on the 2010 charges.

Appendix

Legal status of an Accomplice.

1. The term “accomplice” is derived from substantive criminal law and, in that context, denotes a person who is chargeable either as

principal or accessory, with the principal offender. English authority in the main has stuck closely to this definition and in a leading

case of Davies v. Director of Public Prosecutions [1954] AC 378, it is said that a person who is particeps criminis in respect of the

offence charged is a classic accomplice.

2. There is no doubt that a person of this sort is indeed an accomplice. But Irish authority has over a long period of time taken a

broader view of who else is included in that category at least for the purpose of attracting a corroboration warning. Thus in A.G. v.

Linehan [1929] IR 19 Kennedy C.J. said:

“We do not think that in the case of a rule of caution concerned with the credit of accomplice witnesses and the weight

of their uncorroborated evidence, a narrow or precise definition of ‘accomplice’ should be or indeed can be laid down”.

3. This echoed criticism of what was seen as an unduly strict English rule in other jurisdictions, on the basis that it focussed on the

liability of the witness to prosecution for the very offence with which the accused is charged. This seems unduly narrow and seeks to

apply a concept which evolved to deal with the question of culpability to the very different problem of credibility. See The Accomplice

Corroboration Warning by Declan McGrath (1999) Ir. Jur. 170.

4. This article identifies the best known of the common law judgments which advocate a broader and more purposive approach to the

definition of an accomplice as McNee v. Kay [1952] VLR 520. There, Sholl J. preferred the view that:

“[A person] who is chargeable, in relation to the same events as those founding the charge against the accused with an

offence (whether the same offence or not)”. was an accomplice.

5. As it happens, McNee v. Kay is a judgment particularly interesting to an Irish lawyer. It adopts the “penetrating comments” of Joy

C.B. of the Old Court of Exchequer in Ireland, made in his 1844 treatise, Evidence of Accomplices. Indeed, I do not know if I would

endorse that work so completely. Sholl J. points out that Joy’s work is cited by the great American authority on Evidence, Wigmore,

and goes on to observe:

“In Victoria, by virtue, I have ventured to think, of the retention of some at least of that good sense which informed the

comments of Joy C.B., and by virtue also, perhaps, of the fact that the early practice, procedure, and traditions of the

Courts of this State were much influenced by Irish lawyers who came to the colony, we have declined to go so far.” [So

far, that is, as the English Courts have].

6. In the present case, Mr. Dunlop is undoubtedly an accomplice, even in the most narrowly technical sense, in relation to part of

what he describes in his statements to the gardaí in 2004 and 2005, and indeed earlier. The question that emerges is as to whether

the prosecution are entitled to edit out of these statements the material which renders him a self proclaimed accomplice and

therefore to proceed on the basis that he is not an accomplice at all, to certain offences, here the Electoral Act offences.

Accomplice status.

7. To say that a witness’s statements which, if read in their entirety, plainly render the witness a self proclaimed accomplice, may be

edited in such a way so as to exclude this aspect and permit the prosecution to proceed to trial on other charges, without

communicating the witness’s declaration that he is an accomplice, seems to me to ignore the legal consequence of accomplice status

and the rationale for it.

8. If Mr. Dunlop was seen as an accomplice a Judge at any trial in which he was proffered as a prosecution witness would have to

give the jury a “corroboration warning”. In Dental Board v. O’Callaghan [1969] IR 181, Butler J. distinguished firmly between a

requirement for a corroboration warning and a mandatory requirement for corroboration itself. He said;

“The rule is that that the tribunal of fact, be it District Justice or jury, must clearly bear in mind and be warned that it is

dangerous to convict upon the evidence of an accomplice unless it be corroborated”.

9. This statement indeed is supported by passages in all of the leading Irish text books on Evidence, many of which also attempt to

state the rationale behind the rule. Reference may be made to Fennell, at para. 6.24; Cannon and Nelligan at para. 9.3.1; Heffernan,

at p.254 where a witness of this sort is described as “both self interested and infamous”; Healy, at para. 5.21 and McGrath at para.

4.18.

Rationale for the Rule.

10. A number of different rationales for the rule just cited from the often approved dictum of Butler J. are offered, and most of them

arise from commonsense. An accomplice who is giving evidence for the prosecution is, by that very fact, a person of compromised

character and a person, it may very well be, who has a material reason of self interest for behaving as he does in giving evidence

against an alleged confederate.

11. In Mr. McGrath’s text book in particular the rule is traced to its Irish historical origins, in the early 19th century, when it was a

rule of practice only, though it has since come to approximate to a rule of law.

12. In R. v. Green (1825) 1 Craw and Dix Circuit Cases 158, a case later approved by the Irish Court of Crown Cases Reserved, the

following rationale was offered: corroboration was required:

“ because he [the accomplice] stands in so degraded a state, from the crimes of which he confesses himself guilty, that

but little credit is due to him unless corroborated in some material circumstances”.

13. The same rationale is expressed in more contemporary language in Mr. Healy’s book mentioned above, at p.150:

“accomplices are already morally culpable, so that they are more likely to lie and deceive the Court”.

14. This, indeed, is in accordance with the judgment of Lord Reading C.J. in the leading English case of R. v. Baskerville [1916] 2KB

658. There, at p. 665 it is said:

“The Rule of Practice as to corroborative evidence has arisen in consequence of the danger of convicting a person upon

the unconfirmed testimony of one who is admittedly a criminal.”

15. If this is so, it makes no sense to say that for entirely technical reasons the ruling will be confined to someone who is admittedly

one particular type of criminal or to say that his status as a criminal requires a warning to be given, but for part only of his evidence

or statement and not for another part. To quote Sholl J. again in McNee v. Kay, at p. 530 of the Report:

“Such reasoning would seem to be equally applicable whether a witness who has taken part in activities which infringe the

law is chargeable in connection therewith with the same offence as the accused, either as principal or as accessory, or

with a different and distinct offence.”

16. It is of course manifest that anyone put forward as an accomplice witness for the prosecution is of necessary someone of

compromised character. His Statement of Evidence is either true, or it is false. If it is false, that very fact demonstrates his bad

character and unreliability; if it is true then his own confession to involvement in a crime is sufficient to establish that “but little credit

is due to him”.

17. Although a jury or other Tribunal of Fact must be warned of the dangers of relying on accomplice evidence it is of course well

established law that, if they are so warned they may nevertheless act upon it if they are satisfied it is safe to do so.

18. It appears to me that the rationale for the rule requiring a corroboration warning relates, at least in part, to the character of a

person who is an accomplice, and not to his precise degree of participation in any particular crime which he alleges. If the character

of the witness is an indication for caution in regard to his evidence, that character is a permanent attribute of the witness and does

not vary from one part of his statement to the other. Accordingly it appears to me that, once a person has been identified as an

accomplice in any crime (or at least in any crime arising out of the same sequence of facts of which he gives evidence) he is a

witness whose evidence requires a corroboration warning and that this requirement cannot be avoided by editing his statement to

suggest that he is not, in fact, an accomplice, at all. Accordingly, I do not accept either that it was proper to edit Mr. Dunlop’s

Statements of Evidence by redacting the material which made his true status evident, or that the material so redacted could, at least

without a special reason, be revived 5½ years later and made the subject of a new indictment. I do not consider that any special

reason which might justify this course of conduct has been established. In particular I do not consider that his status as an

accomplice constitutes such special reason.