Supreme Court dismisses appeal against DPP's decision to delay prosecution, finding no unfair trial risk or prejudice.

THE SUPREME COURT

[S.C. No. 315 of 2011]

Denham C.J.

Hardiman J.

Fennelly J.

O’Donnell J.

Clarke J.

Between:

James Kennedy

Appellant

And

The Director of Public Prosecutions

Respondent

JUDGMENT of O’Donnell J. delivered the 7th day of June, 2012.

1 I have had the benefit of reading the draft judgments prepared by my colleagues in this matter. There is a wide range of agreement

as to the order that should be made in this case, and indeed as to the analysis to be applied. However, some divergent views are

expressed about the precise approach to certain individual issues which arose in the case, and since these types of issues are

capable of recurring it is necessary for me to set out my views upon them.

2 First, I agree with the Chief Justice that the appeal should be dismissed. I also agree with her judgment on the approach to the

decision of the European Court of Human Rights in Edwards and Lewis v. U.K. (2005) 40 E.H.R.R. 24. Furthermore, I agree with her

that the decision to await the prosecution of Frank Dunlop was one which the Director of Public Prosecutions was entitled to take,

and furthermore, that the plaintiff has neither established any risk of an unfair trial, nor has he shown prejudice. Accordingly the

balance lies in favour of permitting the prosecution to proceed. While I joined Hardiman J. in dissenting in the closely related case of

Liam Cosgrave v. The Director of Public Prosecutions and Ors. [2012] I.E.S.C. 25 (unreported, Supreme Court, 26th April, 2012), I

indicated in that case that I respectfully differed from him on the approach to the decision to seek to prosecute Frank Dunlop before

proceeding with the prosecution of the relevant councillors and James Kennedy. The logic of that position leads me to differ from him

also on the outcome of this case.

3 I also fully agree with Fennelly J.’s analysis of the statement made by the trial judge. As he demonstrates, any argument in relation

to that statement, relies heavily, and in my view unrealistically, on the word “herein”. I do not think any reasonable bystander hearing

the judge and observing him, and hearing his further statement that he would disregard the material, and perhaps just as importantly

observing his further conduct of the trial and the judgment he delivered, could have any reasonable apprehension that he was

actuated by bias. Since however, I am also of the view that counsel should take a point such as this firmly and explicitly, albeit

courteously, I would reserve the question of whether the failure to do so precludes the making of any challenge thereafter. It is

entirely desirable that the matter be raised at the time of the statement or shortly thereafter. Not only is the failure to do so itself a

potent indicator that no bystander reasonable or otherwise had indeed any apprehensions about the fairness of the approach of the

trial judge, but the raising of the issue may permit a judge to clarify his statement, provide reassurance if that is possible, consider if

indeed it is necessary to recuse himself, or at the other extreme conceivably provide further material which may lead any reasonable

bystander to have reasonable concerns about the impartiality of the adjudication.

4 In the judgment which he delivers, Clarke J. makes certain observations of a more general nature on a number of the issues which

arise in applications to prohibit a trial. I fully agree with him as to the difficulties posed by the indiscriminate nature of challenges, and

the desirability of greater precision in the way in which such cases are presented, and the necessity for such precision and the way

they are analysed. I also agree with his observations on the practice of trial courts considering documents and material over which

privilege is claimed. In particular Clarke J. makes certain observations on the question of the test to be applied before a trial is

prohibited. I expressed similar views in Byrne v. The Director of Public Prosecutions [2010] I.E.S.C. 54 (unreported, Supreme Court,

17th November, 2010). The test of real and substantial risk can be traced to a single statement in The State (O’Connell) v. Fawsitt

[1986] I.R. 362 which does not appear to have been the product of any detailed argument in that case, and even more remarkably, of

any sustained scrutiny thereafter either, notwithstanding the fact that it must be one of the most regularly applied tests in the

Superior Courts. Accordingly, it is certainly an issue which deserves consideration not just by the courts, but by the legal profession

as well as those involved in the academic study of law. From a purely functional perspective, the very considerations which make it

desirable in at least some cases that decisions on challenges to privileged material be determined by the trial court might be thought

to point to the desirability of issues of fairness being decided there as well at least in the first instance, rather than by pre-emptive

judicial review.

5 I also tend to agree with Clarke J.’s approach to the question of prosecutorial delay. I think it is important to recall that the right to

a speedy trial is a separate component of the overall right to a fair trial. The right to a speedy trial, like its comparable rights in the

jurisprudence of the United States Supreme Court and the European Court of Human Rights, is focussed primarily on the period

between charge and trial. While investigatory delay cannot be entirely divorced from the impact of post-charge delay, it is in my view

important that it be recognised that there is no right to be speedily, or necessarily efficiently, investigated. The fact that an efficient

investigation is extremely desirable as a matter of public policy does not mean that it has a status of a right enforceable by any court

in other than exceptional circumstances, still less if that enforcement results in the prohibition of any trial. In my judgment in

Cosgrave, I expressed views as to the extent to which the court should by judicial review, seek to assess the manner in which the

prosecution authorities have proceeded with their functions. In this case, the evidence is scanty. In particular what has emerged as

the central question, namely the speed with which Mr. Dunlop’s prosecution was advanced, was only one, and a lesser part of the

fusillade of points directed by the applicant. Accordingly, I do not wish to express any concluded view on the particular facts of this

case since it is apparent that on the approach both of Clarke J. and Denham C.J. the result is that the trial would not be prohibited on

this ground. Accordingly I too would dismiss the appeal.