Supreme Court dismisses appeal to stop criminal trial due to lack of exceptional circumstances and no damages claim.

THE SUPREME COURT

[Appeal No: 315/2011]

Denham C.J.

Hardiman J.

Fennelly J.

O’Donnell J.

Clarke J.

Between/

James Kennedy

Applicant/Appellant

and

The Director of Public Prosecutions

Respondent

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

1. This appeal is brought seeking an injunction prohibiting or restraining a criminal trial. The decision to prosecute has been made by

the Director of Public Prosecutions, the respondent, referred to as “the DPP”, which is an independent statutory office. The Court will

intervene in a decision to prosecute, and will prohibit a trial, only in exceptional circumstances. Thus, the issue on this appeal is

whether there are exceptional circumstances such that the Court should intervene, in the decision of the DPP to prosecute, and

prohibit a criminal trial proceeding.

2. James Kennedy, the applicant/appellant, referred to as “the appellant”, was sent forward for trial on sixteen charges in the Dublin

Circuit Criminal Court. The charges allege instances of corruptly giving sums of money to named members of Dublin County Council, or

to office holders or directors of Dún Laoghaire Rathdown County Council.

Issues

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

(a) A disclosure matter;

(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

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

Charges

4. The appellant was brought before the Dublin District Criminal Court on the 22nd October, 2010, and charged with sixteen offences,

as follows:-

“(i) Charge Sheet No. 10882572

For that you the said accused did, on the 11th day of June 1992 at the offices of Frank Dunlop and Associates Limited, 25 Upper

Mount Street, Dublin 2 in the County of the City of Dublin, corruptly give a sum of money as a gift to Sean Gilbride, for the benefit of

the said Sean Gilbride, being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on

account of the said Sean Gilbride, voting in favour of a motion that Dublin County Council resolves that lands at Carrickmines

comprising approximately 108 acres be zoned ‘E’ (Industrial) in the 1993 Dublin County Development Plan, a matter in which the said

Dublin County Council was concerned.

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

Act, 1916.

(ii) Charge Sheet No. 10882637

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

dates inclusive, at Conway’s Public House, Parnell Street, Dublin 1 in the County of the City of Dublin, corruptly give a sum of money

as a gift to Jack Larkin, for the benefit of the said Jack Larkin, being a member of Dublin County Council, a public body, as an

inducement to or reward for, or otherwise on account of the said Jack Larkin, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(iii) Charge Sheet No. 10882686

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

dates inclusive, within the State, corruptly give a sum of money as a gift to Cyril Gallagher, for the benefit of the said Cyril Gallagher,

being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Cyril

Gallagher, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(iv) Charge Sheet No. 10882718

For that you the said accused did, on the 4th day of May 1992 at the reception area of Dublin County Council, in the County of the

City of Dublin, corruptly give a sum of money as a gift to Tom Hand, for the benefit of the said Tom Hand, being a member of Dublin

County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tom Hand, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(v) Charge Sheet No. 10882759

For that you the said accused did, on the 4th day of May 1992 at St. John of Gods, within the County of the City of Dublin, corruptly

give a sum of money as a gift to Don Lydon, for the benefit of the said Don Lydon, being a member of Dublin County Council, a public

body, as an inducement to or reward for, or otherwise on account of the said Don Lydon, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(vi) Charge Sheet No. 10882694

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

dates inclusive, within the State, corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being a

member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox,

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

Act, 1916.

(vii) Charge Sheet No. 10882904

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

dates inclusive, at the offices of Colm McGrath, Clondalkin, in the County of the City of Dublin, corruptly give a sum of money as a gift

to Colm McGrath, for the benefit of the said Colm McGrath, being a member of Dublin County Council, a public body, as an inducement

to or reward for, or otherwise on account of the said Colm McGrath, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(viii) Charge Sheet No. 10883025

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

dates inclusive, within the State corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave,

being a member of Dublin County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Liam

Cosgrave, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916.

(ix) Charge Sheet No. 10883082

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,

corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a

Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the

said Liam Cosgrave, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

Act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(x) Charge Sheet No. 10883171

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,

corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a

Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the

said Liam Cosgrave, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xi) Charge Sheet No. 10882889

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

corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a

Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the

said Liam Cosgrave, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xii) Charge Sheet No. 10882864

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

corruptly give a sum of money as a gift to Liam Cosgrave, for the benefit of the said Liam Cosgrave, being an Office Holder or a

Director of Dun Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the

said Liam Cosgrave, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiii) Charge Sheet No. 10883017

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,

corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun

Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox,

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

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xiv) Charge Sheet No. 10883203

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,

corruptly give a sum of money as a gift to Tony Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun

Laoghaire/Rathdown County Council, a public body, as an inducement to or reward for, or otherwise on account of the said Tony Fox,

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

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xv) Charge Sheet No. 10883244

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997,

both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony

Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public

body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.

(xvi) Charge Sheet No. 10883269

For that you the said accused did, on a date unknown between the 30th day of October 1997 and the 25th day of December 1997,

both dates inclusive, at the Davenport Hotel, within the County of the City of Dublin, corruptly give a sum of money as a gift to Tony

Fox, for the benefit of the said Tony Fox, being an Office Holder or a Director of Dun Laoghaire/Rathdown County Council, a public

body, as an inducement to or reward for, or otherwise on account of the said Tony Fox, 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(2) of the Public Bodies Corrupt Practices Act, 1889 as amended by Section 4(2) of the Prevention of Corruption

act, 1916 and Section 38 of the Ethics in Public Office Act 1995.”

Facts

5. A significant person in this case is Frank Dunlop. 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 pleaded guilty to five charges on the Bill of Indictment. On the 29th May, 2009, Frank Dunlop was convicted and

sentenced in the Dublin Circuit Criminal Court.

6. On the 24th June, 2010, the DPP directed that six persons, including the appellant, be brought before the courts on charges of

corruption.

7. On the 19th October, 2010, separate Criminal Asset Bureau proceedings commenced and were at hearing all day. After leaving the

Four Courts building the appellant was arrested on Inns Quay at 4.15 p.m. In the early hours of the 20th October, 2010 the appellant

was hospitalised and received cardiac care; on the 22nd October, 2010, two days later, he was discharged from hospital. At 3 p.m.

on the 22nd October, 2010, the appellant attended at Donnybrook Garda Station, by arrangement, for the purpose of arrest. The

appellant was then brought before the Dublin District Court, charged with the offences in issue, and bail was set. Bail conditions were

met and he was released from prison.

8. On the 28th October, 2010, the Book of Evidence was served.

9. The date for trial was set for the 5th October, 2011.

Judicial Review

10. However, the appellant applied to the High Court for leave to apply for judicial review, which was granted by the High Court

(Peart J.) on the 7th March, 2011.

11. In the statement of grounds the appellant sought: inter alia, an injunction prohibiting the DPP from proceeding with the trial of the

appellant on the said sixteen charges; if necessary an order extending the time for the bringing of the application; and damages

pursuant to s. 3 of the European Convention on Human Rights Act, 2003.

12. The grounds upon which the relief was sought included the right to an expeditious trial. It was also pleaded that pursuant to s. 3

of the European Convention on Human Rights Act, 2003, the DPP and the Garda Síochána are obliged to perform their functions in a

manner compatible with the State’s obligations under the European Convention on Human Rights, which obligations include the duty to

comply with Article 6.

High Court Judgment

13. On the 28th July, 2011, the High Court (Hedigan J.) delivered judgment on the application. The learned High Court judge accepted

that there had been delay in bringing the prosecution, but held that that of itself was not a basis to prohibit the trial. The learned

trial judge held that the delay was excusable: (a) he accepted that the appellant could not be contacted so as to progress the

matter; (b) he accepted that Frank Dunlop was not available as a witness until the proceedings of the Tribunal of Inquiry into Certain

Planning Matters and Payments, referred to as “the Tribunal”, and the criminal proceedings involving Frank Dunlop had been

concluded.

14. While the High Court’s decision on delay disposed of the matter, the learned High Court judge also stated as follows:-

“While the above finding is dispositive of this case, I feel that I should express my view that even if the delay was not

excusable, I would find that the balance of justice lies very much in favour of the community’s right to have these alleged

criminal charges prosecuted. In B v DPP [1997] 3 I.R. 140 Denham J. stated at 195 that:-

‘It is necessary to balance the applicant’s right to reasonable expedition in the prosecution of the offence with the community’s

right to have a criminal offence prosecuted.’

The case herein arises from allegations of corruption of public officials. There is an overwhelming public interest in

permitting allegations of this nature to proceed to trial before a jury. The state has invested significant resources in terms

of time and money in Tribunals to investigate these allegations of corruption of public officials. Corruption of state officials

is an attack on the integrity of the state itself and the whole apparatus of state governance. As such it is a crime of

great gravity. Taking the entire history of this case into account including the difficulty in ascertaining where the

[appellant] resided at any given time as exemplified by the contradictions contained on the affidavits and considering also

the unavailability until recently of Frank Dunlop as a witness, I am satisfied that the delay herein is excusable. Even were

this not the case, I am satisfied that the balance of justice would demand that these proceedings be allowed to take

place. Finally in relation to any prejudice the [appellant] may encounter, there is ample judicial authority for the

proposition that such prejudice may be overcome or countered by means of appropriate directions or warnings from the

trial judge. In these circumstances I must refuse the relief sought.”

15. As to the claim made on the European Convention on Human Rights, the High Court held:-

“The [appellant] has argued that as a result of the delay which has occurred in this case the State is in violation of its

obligations under Article 6 of the Convention which provides, inter alia, as follows:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to

a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

It is possible that the State could be found to have acted in contravention of Article 6 due to the duration of the Tribunal

and the consequent unavailability of the main witness. However, violation of Article 6 does not ipso facto result in a

prohibition of the trial in question. In TH v DPP [2006] 3 IR 520 the applicant sought to prohibit his trial on a charge of

sexual assault by relying on the finding of the Court of Human Rights in Barry v Ireland. Fennelly J. speaking for a

unanimous Supreme Court addressed this in the following passage:-

‘It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human

Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be

most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely

responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. .. the

decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.’

I am satisfied that while there has been an inordinate delay in these criminal proceedings, that delay is excusable by

virtue of the difficulty in locating the [appellant] and the unavailability of the key witness.”

16. The learned High Court judge also refused to prohibit the trial on grounds of stress and anxiety to the appellant, stating that the

appellant had failed to support such a claim with medical evidence.

Notice of Appeal

17. Twenty four specific grounds of appeal were filed on behalf of the appellant, as follows:-

(i) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege,

despite the objection of the appellant.

(ii) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege,

despite the objection of the appellant, notwithstanding the real and serious risk that justice would not be seen to be done

when the finding by the learned trial judge in refusing the appellant inspection of them was that the documents

considered were seriously prejudicial to the appellant.

(iii) The learned trial judge erred in law and/or fact in dismissing the appellant’s application for judicial review.

(iv) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to relief prohibiting

and/or staying the DPP from proceeding with the trial of the appellant in the Dublin Circuit Criminal Court on the 16

charges set forth in a Statement of Charges dated 28th October 2010 in proceedings entitled “The Director of Public

Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox.”

(v) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to damages pursuant

to section 3 of the European Convention on Human Rights Act 2003.

(vi) The learned trial judge erred in law and/or fact in holding that the delay in prosecution of the 16 charges set forth in

the Statement of Charges was not of itself sufficient to jeopardise the appellant’s right to a trial in due course of law

and/or his right to a fair trial and/or his right to a trial with reasonable expedition.

(vii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth

in the Statement of Charges was not such as to constitute prosecutorial delay.

(viii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth

in the Statement of Charges was not deliberate on the part of the DPP.

(ix) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth

in the Statement of Charges was not such as to constitute blameworthy prosecutorial delay.

(x) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth

in the Statement of Charges was attributable, in whole or in part, to the appellant’s conduct.

(xi) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress

his file.

(xii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress

his file, when the DPP directed that the appellant be charged without any contact having been made with the appellant.

(xiii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress

his file, when the evidence did not disclose any attempt by the DPP or the investigating authorities to locate or contact

the appellant with regard to the allegations the subject matter of the instant proceedings.

(xiv) The learned trial judge erred in law and/or in fact in holding that alleged difficulty in contacting the appellant

excused the inordinate delay in his prosecution, when the evidence disclosed that the investigating authorities were in

possession of contact information for the appellant through which no efforts were made to locate or contact the

appellant.

(xv) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed

until the Tribunal had concluded its work.

(xvi) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed

until the Tribunal had concluded its work when (a) Liam Cosgrave and Frank Dunlop have been so prosecuted and/or (b)

when the said Tribunal has yet to conclude its work.

(xvii) The learned trial judge erred in law and/or in fact in holding that Frank Dunlop was not available as a witness in the

prosecution of the appellant until the proceedings of the Tribunal and/or the prosecution of Frank Dunlop were concluded.

(xviii) The learned trial judge erred in law and/or in fact in holding that the DPP had discharged the onus of excusing the

inordinate delay in the prosecution of the appellant.

(xix) The learned trial judge erred in law and/or in fact in failing to hold that the death of material witnesses was such as

to severely prejudice the appellant’s ability to properly defend the charges against him.

(xx) The learned trial judge erred in law and/or in fact in holding that the unavailability of material documents was not

such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxi) The learned trial judge erred in law and/or in fact in holding that the diminished recollection of witnesses including

the appellant attributable to the efflux of time was not such as to severely prejudice the appellant’s ability to properly

defend the charges against him.

(xxii) The learned trial judge erred in law and/or in fact in holding that the long period that has elapsed from the date of

commission of the alleged offences did not give rise to presumptive prejudice to the appellant.

(xxiii) The learned trial judge erred in law and/or in fact in holding that the delay in the prosecution of the offences

alleged against the appellant has not caused excessive stress and anxiety to him.

(xxiv) The learned trial judge erred in law and/or in fact in holding that the balance of justice lay in favour of the

prosecution of the appellant.

Submissions

18. Oral and written submissions were made, on behalf of the appellant and of the DPP, to the Court. In oral submissions counsel for

the appellant indicated that the core issue on the appeal was the delay by the DPP in advancing the prosecution, under the

Constitution of Ireland and under the European Convention on Human Rights. However, before addressing those matters, counsel

advanced a submission on a matter of disclosure.

19. I shall address the three core issues in the following order:-

(a) Disclosure;

(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

(a) Disclosure

20. The matter of disclosure was the first specific issue raised by counsel for the appellant on the appeal.

21. The issue arose because after the papers were filed in the judicial review proceedings in the High Court, including affidavits by

members of An Garda Síochána, an application for discovery was made by the appellant seeking documents, including correspondence

referred to but not exhibited in the affidavits of Detective Garda Martin Harrington and Detective Sergeant Michael V. Byrne.

22. The application for discovery was heard by Hedigan J., who gave judgment on the 12th July, 2011. Most of the discovery sought

was refused, but the learned High Court judge ordered the DPP to make discovery of the correspondence referred to but not exhibited

in paragraph 92 of the affidavit of Detective Garda Martin Harrington of the 2nd June, 2011, and paragraph 15 of the affidavit of

Detective Sergeant Michael V. Byrne of the 1st June, 2011.

23. Privilege over this correspondence was claimed by the DPP, on the basis of legal professional privilege and/or public interest

privilege. The appellant obtained leave to issue a motion seeking inspection of the documents, and this motion was considered and

ruled upon by Hedigan J. before the commencement of the application for judicial review.

24. When the judicial review came before the High Court on the 21st July, 2011, counsel for the appellant said:-

“Just to let the Court know the running order. There is an issue on disclosure which we request the Court perhaps to deal

with first and then our judicial review application itself to proceed, because part of our issues is in that context

compliance with the order and that question of disclosure.”

The learned High Court judge acceded to this request.

25. During the hearing of the motion on privilege, counsel for the DPP suggested that the learned High Court judge view the

documents so that he could decide whether they should be produced for inspection. The appellant objected to the procedure.

However, the learned High Court judge viewed the documents.

26. The learned High Court judge then ruled on the application. He refused the application on the basis that the public interest in

maintaining the confidentiality of the documents outweighed the interest of the appellant.

27. It was submitted on behalf of the appellant that the procedure adopted by the learned High Court judge was unfair to the

appellant. It was submitted that the practice generally adopted, when a claim of privilege is challenged, is that the documents are

examined by a judge other than the judge hearing the substantive proceedings. It was submitted that justice should not only be done

but be seen to be done and that in this case the learned trial judge had examined the documents, which he held to be inadmissible.

Also, during the case the learned trial judge had referred to some of the documents stating that they were “highly prejudicial” to the

appellant.

28. On the issue of disclosure two aspects arose:-

(a) a question of law, arising on the submissions of counsel for the appellant on the decision in Edwards and Lewis

v. The United Kingdom (2005) 40 E.H.R.R. 24, referred to as “The Edwards Case”; and

(b) a question of objective bias, raised by counsel for the appellant.

(a) The Edwards Case

29. It was submitted by counsel for the appellant that the procedure adopted by the High Court was unfair to the appellant, and

reliance was placed on the Edwards case.

30. Counsel for the appellant stated, on the 21st July, 2011, at pp. 76 to 77 of the transcript, on the application for privilege on the

documents discovered:-

“MR. O’BRAONÁIN: There is an issue as to whether or not the Court should inspect the documents at this stage, and the

issue is this: Certainly in the case – Mr. Hayden very helpfully drew my attention to it – in the case of Edwards and

Lewis in the United Kingdom, which is a decision of the European Court of Human Rights. It is reported at 2005 40 EHRR

page 24. I am referring to Mr. Hollander’s text on documentary evidence. The Court held that the procedure that had

been adopted in that case was inadequate to protect the Defendants. And, in my respectful submission, the procedure

that is being suggested here suffers from the same inadequacy, and it is this: There the “Defendants complained that

they had been entrapped into committing the offence by undercover police officers or informers and asked the trial judge

to consider whether certain prosecution evidence should be excluded for that reason.

”The Defendants were denied access to the undisclosed evidence. The judge, who rejected the Defence submissions, had

himself seen the undisclosed Prosecution evidence and ruled it irrelevant. The Court was concerned that the judge might

have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the

evidence that he had seen but which the Defence were not permitted to see. The European Court of Human Rights held

that the procedure deployed to determine the issues of disclosure of evidence and entrapment did not incorporate

adequate safeguards to protect the interests of the accused.”

And the Court could see that in the ordinary course of things --

MR. JUSTICE HEDIGAN: But the rationale of that would, in effect, bar me from being the Trial Judge in the criminal case.

MR. O’BRAONÁIN: No, the rationale from that would bar you from being the Trial Judge in the judicial review proceedings.”

31. On the 22nd July, 2011, the High Court ruled on the application for privilege, which is to be found on the transcript at pp. 1 to 3:-

“MR. JUSTICE HEDIGAN: In these proceedings on the 12th of July, 2011, I made an Order of Discovery pursuant to Order

31 of the Rules of the Superior Courts in respect of the correspondence referred to in paragraph 92 of Garda Martin

Harrington’s affidavit and paragraph 15 of Garda Michael Byrne’s affidavit.

Owing to the shortness of time, I stated in that decision that any claim to privilege over this documentation might be

decided when the case came on for hearing.

Privilege is claimed over the correspondence on the basis of either legal professional privilege or public interest privilege.

I have inspected the documentation, as I believe that a judge hearing such an application as this ought to satisfy himself

that there is nothing contained therein which privilege duly considered ought in the interests of justice be inspected by

the [appellant], even on certain terms, as to preserving confidentiality.

On the basis of this inspection, it is clear the correspondence referred to by Garda Harrington involves letters between

the DPP and investigating Gardaí as to the ongoing investigation and details of a confidential nature of interviews with

Frank Dunlop. I can find nothing in these letters which advances or diminishes the case of either side. They are exactly as

described in paragraph 92. There is an important public interest in the confidentiality of correspondence of this nature. A

frank assessment of the strength of a case and of the credibility of the proposed witnesses is contained therein

inevitably. That is so in this case. This public interest might well be outweighed by the [appellant’s] right to a fair trial of

the issue before the Court. However, I could find nothing in my inspection of this correspondence that could outweigh the

public interest in their confidentiality. I refuse inspection of this category of documentation.

As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my

reading of it. It is very tangential to the charges faced by the [appellant] and to the case being made in this application.

Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the

[appellant]. Their production, in my opinion, could only damage the [appellant’s] case herein. There is clearly a public

interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries. It

must be an important aspect of the international fight against crime of all nature, including corruption. As there is no

interest of the [appellant] that I can find to balance against the public interest, I will refuse inspection of this category

also.

Needless to say, as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any

of its content into account in my consideration of this application.

That is the decision.”

32. The facts in the Edwards case included the following. Mr. Edwards was arrested following a surveillance and undercover

operation. He was in a van with an undercover police officer and a briefcase containing heroin. He was convicted of possessing a

Class A drug with intent to supply and sentenced to nine years’ imprisonment. He unsuccessfully appealed this decision in the United

Kingdom.

Mr. Lewis was arrested in a separate incident by uniformed police officers in a pub car park after he had shown two undercover police

officers some counterfeit bank notes. More counterfeit notes were found in his house. He pleaded guilty to three charges of

possession of counterfeit notes with the intention of delivering them to another. He was sentenced to four and a half years’

imprisonment.

In both cases an application by the prosecution to withhold material evidence had been granted on the ground that it would not

assist the defence and that there were genuine public interest reasons for not disclosing it. The judge also refused a request to

exclude the evidence of the undercover officers.

In its Chamber judgment of the 22nd July, 2003, the European Court of Human Rights, referred to as “the ECtHR”, held unanimously

that there had been a violation of Article 6.1 and that the finding of a violation constituted in itself just satisfaction for any non-

pecuniary damages sustained. In finding this violation, the Court stated that this did not entail that the applicants were wrongly

convicted.

33. Thus in the Edwards case the ECtHR held that the procedure adopted in that case was inadequate to protect the defendants.

The facts of that case included that it was a criminal trial and that the defendants had claimed that they had been entrapped into

committing the offences by undercover police officers. An issue arose as to whether certain documents should be disclosed. The trial

judge saw the documents and denied the defendants access to the documents on the grounds that they were irrelevant, would not

assist the defence, and that there were genuine public interest reasons for not disclosing the material.

34. As was pointed out in Hollander, Documentary Evidence [10th Ed., Sweet & Maxwell, Thompson Reuters, 2009] para 18-11, p.

395:-

“The ECtHR was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect

that no entrapment had occurred by the evidence that he had seen but which the defence were not permitted to see. The

ECtHR held that the procedure employed to determine the issues of disclosure of evidence and entrapment did not incorporate

adequate safeguards to protect the interests of the accused.”

It is also an interesting factor, as pointed out by Hollander, at p. 395, that:-

“Whilst granting a declaration of violation of Art. 6 rights, the ECtHR expressly found that the violation of Art. 6 rights did

not entail that the defendants were wrongly convicted.”

35. The procedure of inspection of documents by a court of trial is a very useful one and is often very much in the interest of the

party challenging the privilege claimed. The Edwards case relied on by the appellants, refers to a criminal trial. The case before this

Court is a civil process, arising on an application for judicial review. The Court was referred to no authority, either in a legal text or in

a case of the ECtHR, which has applied the Edwards case outside the criminal law. It would be pure speculation to consider whether

the Edwards case would apply to a civil case, such as is before the Court. The High Court did not apply the Edwards case and, in

all the circumstances, I would not intervene in the determination of the learned High Court judge on this issue.

(b) Objective bias

36. The second aspect of the submission on behalf of the appellant in relation to the issue of disclosure was a claim of objective bias.

Counsel for the appellant submitted, in essence, that the learned trial judge should not have proceeded to hear the application for

judicial review on the grounds of objective bias, that he should have recused himself.

37. Counsel argued that the application made by counsel in relation to the Edwards case covered this aspect of the law also,

covered an application in relation to objective bias, and that the learned trial judge ought to have recused himself.

38. There are a number of factors to be considered.

39. The learned High Court judge’s ruling, in relation to the request for the documents relating to the Isle of Man authorities, stated

that it was “very tangential” to the charges faced by the appellant. Obviously documents that are very tangential are of at least

questionable relevance.

40. The learned trial judge continued and stated:-

“Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the

applicant. Their production, in my opinion, could only damage the applicant’s case herein.”

This passage was drawn to the attention of this Court by counsel for the appellant. However, this was an ex tempore ruling of the

learned High Court judge and must be considered as such and while he states that the documents seem “highly prejudicial” to the

appellant, he stated also that they “could only damage the [appellant’s] case herein”. Such reference appears to be to the

appellant’s application for judicial review, and to it being damaged.

41. The learned trial judge then stated:-

“I will not take any of its content into account in my consideration of this application.”

In those circumstances I am satisfied that it is entirely appropriate to rely on the High Court’s ruling that the content would not be

taken into consideration on the hearing of the application

42. As the application before the High Court on the issue of disclosure drew to a close, there were exchanges on the issue of costs,

and the High Court ordered “no order as to costs” in these circumstances on that application. Counsel for the State indicated that he

was obliged.

43. The High Court judge said at page 4 of the transcript for the 22nd July, 2011:-

“Very good. Then we will continue.”

Counsel for the appellant then stated:

“Judge, I’m dealing with the substantive application, and I mean, the Court has between the Discovery and,

obviously, the associated case and the application relating to Discovery a fair idea and background as to what is at

issue. And subject to the Court, I will go through the affidavits in general form, but unless the Court wishes and My

Friend …”

And so the application by way of Judicial Review for an injunction of the criminal trial commenced, and there was no request to the

learned trial judge to recuse himself on the grounds of objective bias.

Law on objective bias

No law as to objective bias was opened to the High Court. There was no reference to cases such as Dublin Wellwoman

Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408; Bula Ltd. v. Tara Mines Ltd (No. 6.) 4 I.R. 412, and Kenny v. Trinity College

Dublin [2008] 2 l.R. 40. Neither the general principles nor the case-law were opened to the High Court.

Circumstances

45. The circumstances of this case include the following:-

(i) the issue of objective bias did not, and could not, arise until after the learned trial judge had given his ruling on

the issue of the Edwards case;

(ii) the law on objective bias was not opened to the High Court;

(iii) there was no application to the learned trial judge to recuse himself on the basis of objective bias;

(iv) there was no decision on the issue of objective bias in the High Court;

(v) an issue not raised or determined in a trial court may not be an issue in a subsequent appellate court.

Thus the issue of objective bias may not be raised in this Court.

46. Even if the issue of objective bias had been raised and determined in the High Court, which it was not, I am satisfied that,

applying the test as set down in our case-law, there was no objective bias in this case.

47. Consequently, I am satisfied that the appellant has not established a basis upon which his appeal could succeed on the first

issue, i.e. the issue of disclosure, and I would dismiss this aspect of the appeal.

Right to an expeditious trial

48. I shall now consider the second issue on this appeal. Under this rubric the appellant has raised: (i) the right to an expeditious

trial; (ii) prosecutorial delay; (iii) stress and anxiety.

49. Counsel for the appellant raised the issue of delay in prosecuting the appellant and referred to several articles of the Constitution.

The Constitution does not expressly state that there is a right to an expeditious trial, but counsel referred the Court to Article 38.1 of

the Constitution which provides:-

“No person shall be tried on any criminal charge save in due course of law”.

Reference was made also to Article 40.3.1° of the Constitution which states:-

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal

rights of the citizen”.

It was submitted that the appellant has a personal right to an expeditious trial.

50. A personal right to a trial with reasonable expedition has been recognised by this Court. In State (O’Connell) v. Fawsitt [1986]

I.R. 362, Finlay C.J. at p. 378, with whom Walsh J.,Henchy J., Griffin J., and McCarthy J. agreed, stated that:

“…a person charged with a criminal offence is entitled, as part of his right to be tried in due course of law, to a trial with

reasonable expedition”.

At p. 379 he stated further:-

“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then

the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of

prohibition.

[…]

A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should

not be put to the risk of being arraigned and pleading before a jury.”

51. This right was considered recently in P.M. v. Malone [2002] 2 I.R. 560 where Keane C.J. held, at pp. 572 to 573:-

“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a

reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial

process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may

die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The

defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are

said to have occurred.

That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it

does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by

him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he

has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or

presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his

ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only

consequence for the accused of significant and culpable delay to which he has not contributed.

The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and,

where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major

consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the

possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme

Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of

Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy

Council in Bell v. D.P.P. [1985] A.C. 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”

52. The three interests protected were set out in Barker v. Wingo (1972) 407 U.S. 514 at p. 532 as:-

(i) to prevent oppressive pretrial incarceration;

(ii) to minimize anxiety and concern of the accused; and

(iii) to limit the possibility that the defense will be impaired.

53. Thus, while the right to an expeditious trial is not expressly stated in the Constitution, it has been recognised as a personal right

of an accused. The question then arises as to whether the appellant’s right has been impaired. Therefore, the circumstances of a

case require to be analysed to enable a determination as to whether the personal right of an accused has been breached.

Pre-trial incarceration

54. As the appellant has been on bail there is no pre-trial incarceration issue in this case. Thus, this aspect of an infringement of the

right does not arise.

Stress and anxiety

55. The appellant did raise the issue of stress and anxiety. However, no evidence was before the Court to establish this ground. As

has been stated previously, it is necessary to provide an evidential basis to establish this ground so as to prohibit the trial.

56. There is well established jurisprudence that such a claim may not succeed where an appellant is suffering from normal stress and

anxiety from a pending prosecution. Evidence is required to ground any exercise of discretion by the Court in favour of an applicant:

P.M. v. Malone [2002] 2 I.R. 560. In this case the appellant has laid no such foundation, and hence may not succeed on this

submission.

57. Further, even if evidence was before the Court as to specific stress and anxiety, the Court is then required to engage in a

balancing process between an accused’s right to be protected from such stress and anxiety and the public’s interest in the

prosecution and conviction of those guilty of criminal offences.

58. Thus, this aspect of an infringement of the right does not arise.

Delay – impairment of trial?

59. Counsel for the appellant submitted that there had been delay in the prosecution of the appellant such that the prosecution

should be prohibited.

Prosecutorial Delay

60. There has been delay in bringing these prosecutions. However, that is not the test, as this is a criminal trial, the issue is that of

prosecutorial delay. Thus, it is necessary to analyse the prosecutorial delay and all the circumstances of the case.

61. The chronology of the investigation is set out in the affidavits of Detective Garda Harrington sworn on the 2nd June, 2011, and

the 19th July, 2011, and the affidavit of Detective Sergeant Michael V. Byrne sworn on the 1st June, 2011. It was an extensive

investigation. Many people had to be interviewed regarding the serious allegations which had been made.

62. While there was some evidence of difficulty in contacting the appellant, who seeks to maintain a residence outside the State, and

the learned High Court judge gave some weight to that factor, the core reason for the delay in the prosecution of the appellant

appears to have been the decision of the DPP in relation to Frank Dunlop. It is apparent that the DPP decided not to prosecute the

appellant until a key witness in any trial of the appellant, Frank Dunlop, had been prosecuted and decision of conviction or acquittal

obtained.

63. I am satisfied that it was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop on corruption charges before

prosecuting the appellant. It was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop before calling him as a

witness in a prosecution against the appellant. For, amongst other factors, if Frank Dunlop had been called as a prosecution witness,

in circumstances where he had not already been convicted and sentenced, there could be a perception that he was simply giving

evidence to secure some benefit for himself and his status as a witness could have been undermined.

64. I reach the same conclusions as in Cosgrave v. Director of Public Prosecutions [2012] IESC 24, where I stated in paragraph

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.”

I adapt and apply the same reasoning in this case.

65. I am satisfied that while there was delay, the reasons given by the DPP for the delay, including the unavailability of the key

witness, Frank Dunlop, to give evidence, are reasonable.

66. Consequently, I do not find that there is blameworthy prosecutorial delay in this case. Therefore, there is no need to take any

further step to analyse and balance conflicting interests on this aspect of the case as blameworthy prosecutorial delay is not of itself

sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious

trial has been interfered with: P.T. v. Director of Public Prosecutions [2007] 1 I.R. 701; D. v. Director of Public Prosecutions

[1994] 2 I.R. 465; P.M. v. Malone [2002] 2 I.R. 560; P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 I.R. 172.

67. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP, a further analysis would be required to

determine if there had been consequential prejudice to the appellant. While it is not necessary to take this further step, in the

circumstances, I do address the matter.

Prejudice

68. Counsel on behalf of the appellant submitted that as a consequence of the delay in the prosecution the trial of the appellant

would be prejudiced.

69. Counsel on behalf of the appellant has submitted that his trial would be prejudiced by the deaths of a number of potential

witnesses, being (i) Councillor Sean Gilbride on the 1st January, 2011, who was also charged with the appellant; (ii) Councillor Frank

Smyth on the 24th May, 2003, (iii) Philip Monahan on the 3rd August, 2003; (iv) Dr. Brian Meehan on the 13th June, 2004 and (v)

Liam Lawlor on the 22nd October, 2005. Other potential witnesses had died prior to Frank Dunlop’s evidence to the Tribunal and the

beginning of the criminal investigation arising as a result; these were Councillor Tom Hand who died in 1996; Fintan Gunne on the 9th

October, 1997; Councillor Jack Larkin in May 1998 and Councillor Cyril Gallagher in March, 2000.

70. In written submissions the appellant referred to nine potential witnesses who have died and who might have corroborated his

version of events surrounding the charges against him. However, during the Supreme Court hearing, questions from the Court to

counsel for the appellant highlighted that four of these witnesses had died before the allegations of Mr. Dunlop were aired in the

Tribunal and the Garda investigation into offences of corruption began. Also, O’Donnell J. pointed out the inconsistency between the

appellant’s written submissions and his affidavit regarding the death of Mr. Fintan Gunne, who died on the 9th October, 1997, as

opposed to 2007, which was the date referred to in the written submissions. Thus, it was open to the appellant to say that five

witnesses have died since the Garda investigation began.

71. However, having heard the submissions on this issue, I am not satisfied that the prejudice alleged is such as to prohibit a trial, as

the deaths of witnesses referred to relates to evidence, the essence of which can be obtained from other sources. In fact, when this

matter was addressed during the hearing it became clear that there was insufficient engagement with the facts so as to show that

there was a real risk of an unfair trial. Indeed the argument fell apart and the prejudice was not established.

72. This case is unlike a situation where many years after an event, without prior notice, an accused is charged with an offence from

many years ago. The matters raised in this trial have been known to the appellant throughout the intervening years as they have

been raised in other fora. Therefore, it is not a case where issues may have lain dormant for many years and then unexpectedly been

raised out of the blue.

European Convention on Human Rights

73. The appellant, in his Notice of Motion applying for judicial review, claimed the following relief:-

“Damages pursuant to section 3 of the European Convention on Human Rights Act 2003”.

This was repeated in the statement of grounds grounding the application for judicial review.

74. However, such damages were not sought in the High Court.

75. Counsel for the appellant informed this Court that he had not made and did not make a claim for damages. He stated that no

order for damages was sought in the High Court nor was it advanced in this Court.

76. Therefore, the issue of damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003, was not, and could not

be, an issue before this Court. Clearly, a decision was taken by and on behalf of the appellant not to pursue this remedy. In other

words, the claim for damages was abandoned. Therefore no such issue falls to be determined in this Court

In written submissions on behalf of the appellant reference was made to Article 6(1) of the European Convention on Human Rights,

which provides, inter alia,:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair

and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

78. Reference was made also to s. 3 of the European Convention on Human Rights Act, 2003, which provides:-

“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its

functions in a manner compatible with the State’s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other

remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High

Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any)

as it considers appropriate.”

79. However, as the appellant did not advance his claim for damages, it was not an issue determined in the High Court and was not

an issue advanced in this Court.

80. The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under

Irish jurisprudence. I have had no case open to me where a decision of the ECHR determined that as a consequence of delay a trial

shall be prohibited. Consequently, as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not

apparently under the ECHR, consequently this claim has been determined on Irish law.

81. The fundamental facts in this case are that the appellant was charged with 16 charges on the 22nd October, 2010, the Book of

Evidence was served on the 28th October, 2010, and the trial date was set for the 5th October, 2011. However, that trial date had

to be vacated as the appellant brought these proceedings by way of judicial review, which he initiated on the 7th March, 2011. His

application was dismissed by the High Court on the 28th July, 2011, and he exercised his right of appeal to this Court.

82. On his appeal to this Court he sought to prohibit his trial as set out earlier in the judgment.

83. For the reasons given, I would dismiss the appeal and affirm the order of the High Court. Thus, the trial of the appellant may

proceed.