Supreme Court dismisses appeal regarding prosecutorial delay, finding insufficient prejudice to warrant staying proceedings.

THE SUPREME COURT

[Appeal No: 315/11]

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 of Mr. Justice Clarke delivered the 7th June, 2012.

1. Introduction

1.1 I agree with the Chief Justice that this appeal should be dismissed and the order of the High Court affirmed. However, my reasons

for coming to that conclusion differ in some respects from those of the Chief Justice and those reasons might be thought, at least to

some extent, to suggest a possible evolution of the jurisprudence in this area.

1.2 Therefore I set out in this judgment some observations on the legal principles behind some of the issues which arise in this case.

However, given that, on the facts of this case, the evolution in the jurisprudence which those observations might suggest may not be

decisive, my suggestions should be regarded as tentative. The one point of substance on the facts of this case on which I

respectfully disagree with the Chief Justice arises equally if the existing jurisprudence is applied unchanged.

1.3 In addition it is, in my view, important to keep clear the distinction between the different rights asserted as being applicable in

this case and also to keep clear the implications and consequences which arise from possible breaches of, on the one hand, the

Constitution and, on the other hand, rights guaranteed under the European Convention on Human Rights ("ECHR"). I also include,

therefore, some observation on the relevance of those distinctions to this case.

1.4 Those distinctions are of particular importance when a challenge is brought on a wide range of grounds invoking different rights or

different aspects of rights deriving from both the Constitution and the ECHR. I do not think it would be unfair to characterise the

challenge initiated on behalf of the applicant/appellant ("Mr. Kennedy") as involving something of a scattergun approach. While it is, of

course, the right of any litigant to place before the Court argument based on any proposition where the raising of the issue concerned

does not amount to an abuse of process, it nonetheless remains the case that a court, when faced with a scattergun approach, has

to exercise significant care in identifying with some precision the issues that fall for determination and the precise rights invoked

which are relevant to each specific issue. Against that background I now turn to the facts and issues of the case.

2. Facts and issues

2.1 The background facts are fully set out in the judgment of the Chief Justice and it is unnecessary to repeat them here. In addition

the three issues raised by counsel for Mr. Kennedy in this appeal are also identified in that judgment.

2.2 However, at this stage I should also record that there was, it seemed to me, a tendency on the part of counsel for Mr. Kennedy

to conflate the issues which arose under the ECHR with those which arise under the delay jurisprudence of the Irish courts. Therefore

before going on to consider those issues it does seem to me to be important to set out in clear terms the respective applications of

both the Constitution and the ECHR to the issues which arise in this case. However, before turning to those questions I propose to

add some observations on the disclosure issue noted in the judgment of the Chief Justice.

3. The Disclosure Issue

3.1 As appears from the facts set out in the judgment of the Chief Justice the central underlying issue under this heading is as to

whether it was appropriate for the trial judge to look at the documents in respect of which public interest or executive privilege was

asserted while at the same time retaining seisin over the substantive judicial review proceedings. In addition to that underlying issue

there is a second question as to what precise issues remain properly before this Court by virtue of the events which occurred at the

trial in the High Court and the issues raised on the notice of appeal. However, before addressing that latter question it seems to me

to be important to analyse the situation which arises when public interest privilege is asserted.

3.2 The overall legal principles are now well settled. As is clear from Ambiorix Ltd & Ors v. Minister for Environment (No. 1) [1992]

I.R. 277 and Murphy v. Dublin Corporation of Dublin [1972] I.R. 215 the Court must conduct a balancing exercise between the

asserted public interest in the non-disclosure of the materials concerned on the basis of confidentiality attaching to the exercise of

the executive power of the State, on the one hand, as against the public interest in the relevant materials being adduced in evidence

before the Court at trial so as to assist in the administration of justice and so as to contribute to the fairness of the trial process, on

the other. It is also well established that, in an appropriate case, in seeking to exercise that balance, a judge may review the

documents or materials concerned so as to form an opinion as to the weight to be attached to the confidentiality asserted on behalf

of the executive and to balance that weight against the importance of the relevant materials to the issues which are likely to arise at

the trial.

3.3 It is against that background that, as a matter of Irish constitutional jurisprudence, a determination has to be made as to which

judge should review the documents in question for the purposes of engaging in such a balancing exercise. The argument in favour of

the trial judge reviewing the documents stems from the fact that the trial judge will have a much better understanding of the issues

which are likely to arise in the case and thus may be able to assess, with much greater precision, the importance of the documents to

the case. As that is an important part of the balancing exercise which must be engaged in, it clearly is a factor to which appropriate

weight should be attached in deciding which judge should examine the documents in question. On the other hand the argument in

favour of a judge different from the trial judge reviewing the documents or materials stems from the possibility that the trial judge will,

in reviewing the materials, become aware of matters which have not been established in evidence and which will not, in the event

that disclosure is not directed, be available to one side of the litigation.

3.4 It seems to me that the decision as to whether it is appropriate that the exercise of scrutinising documents in respect of which

public interest privilege has been claimed is to be conducted by the trial judge or by another judge is one which must be conducted

on a case by case basis. As pointed out it may well be to the advantage of the party in opposition to the State (obviously in the

criminal context the accused) to have that exercise carried out by the trial judge rather than a judge who will, necessarily, have a

more limited understanding of the potential importance of any documents to the case which the accused might wish to make. It must

be remembered that, precisely because the party in opposition to the State does not get to see the documents and does not, save in

the most general way, get to address the importance which the documents might have to his case, the judge is left to form an

assessment of the importance of the relevant documents to that party’s case largely on the basis of the judge’s own understanding

of the issues. In that context there can be little doubt but that an accused might be disadvantaged by having a judge who is not

fully familiar with the issues carry out that assessment.

3.5 It seems to me that there is nothing, therefore, in principle wrong with the trial judge looking at documents for the purposes of

determining whether public interest privilege should be upheld. It may be that there will be cases where, having reviewed those

documents, the trial judge unfortunately realises that a potential and significant prejudice has occurred which would warrant the trial

judge declining to hear the case further. It is for that reason that it is to be strongly recommended that issues of this type are

decided in advance of the hearing date so that, in the event that the trial judge does have to recuse, another judge can take over

the trial without any difficulty. However, for understandable reasons, such a course of action did not prove possible in this case.

3.6 So far as the analysis of Edwards and Lewis v. United Kingdom [2005] 40 E.H.R.R. 24 is concerned and its application (or rather

non application) to the facts of this case is concerned, I agree fully with the judgment of the Chief Justice.

3.7 So far as the claim of objective bias is concerned I have come to the view that that issue does arise under the notice of appeal in

this case even if not very clearly expressed. Ground of Appeal (ii), as cited in the judgment of the Chief Justice, does seem to me to

amount, in substance, to a contention that, in the light of the comments made by the trial judge when he had reviewed the

documents (and in particular his reference to same being highly prejudicial) objective bias arises. I would not be prepared to shut Mr.

Kennedy out from making the objective bias argument because the ground of appeal concerned may be ambiguous.

3.8 However it seems to me that there is a difficulty with Mr. Kennedy raising that ground at this stage. Without the comment made

by the trial judge concerning the documents being highly prejudicial to Mr. Kennedy’s case it is difficult to see how there would be any

case in objective bias. Shorn of those comments all that would have occurred is that the trial judge would have looked at documents

and found them to be only tangentially relevant. The trial judge would also have declared that he would not take the documents in

question into account. If that was all that happened it is difficult to see how there would be any case for objective bias. For the

reasons already set out it seems to me that there is nothing wrong in principle with the trial judge viewing documents for the

purposes of assessing whether a claim to public interest privilege should be maintained. If, having reviewed such documents, the

judge indicates that some are of only marginal relevance to the case and that he will not take them into account, it is hard to see

how the notional objective and informed bystander could have any legitimate concerns. The only possible problem that emerges in this

case stems, therefore, from the comment of the trial judge to the effect that the documents were highly prejudicial. It was only when

that comment was made that, in my view, a stateable case for recusal could be have been raised on behalf of Mr. Kennedy. The

problem is that no such case was made on the occasion in question. It would have been open to counsel to argue that, at that

stage, and in the light of the fact that the trial judge considered the documents to be highly prejudicial, the trial judge should no

longer continue to hear the case. No such submission was made and in those circumstances I agree with the judgment of the Chief

Justice to the effect that no such case can now be made.

3.9 I appreciate that in coming to that conclusion I differ to some extent from the views expressed by Fennelly J. in his concurring

judgment in this case (a copy of which I have had the opportunity to read in advance). Fennelly J., in that judgment, comes to the

conclusion that, properly construed and taken in context, the words of the trial judge could not reasonably be taken by the notional

impartial and informed observer to have a meaning sufficient to support the view that the trial judge’s ruling exhibited objective bias. I

agree with that analysis of Fennelly J. In those circumstances, even if I had not been satisfied, contrary to the views expressed in

the judgment of Fennelly J., that Mr. Kennedy was precluded from raising an argument based on objective bias at this stage, I would

nonetheless have held, for the same reasons as are set out in the judgment of Fennelly J., that no objective bias arises. As indicated

earlier I propose, before turning to the precise delay issues which arise in this case, to make some observations on the interaction of

both the Constitution and the ECHR with the issues which arise in this case.

4. The Constitution and the ECHR

4.1 The ECHR provides an express entitlement to a trial within a reasonable time (Article 6(1)). It does, of course, need to be noted in

that context that the relevant obligation in International Law to which Ireland subscribed by ratifying the Convention, is one which

rests on the State as a whole so that the State may be found to be in breach of the obligations in question by virtue of actions or

inaction on the part of the Executive, the Legislature, the Courts and any other relevant agencies of the state including all persons

employed in the process. From the perspective of the European Court of Human Rights ("ECtHR") it is not particularly relevant to

identify or apportion blame between various State actors. Obviously significant contribution to delay by the complainant can be

material. However from the perspective of the ECtHR it does not matter whether the delay was caused by prosecuting authorities or

by the courts and if by the courts whether the cause or blame for that delay might rest on individual judges, on systemic failures, on

the government for failing to resource the system or introduce appropriate legislative or quasi legislative measures to improve

efficiency or any of the many other possible causes on which the delay in an individual case might be blamed. The judgments of the

ECtHR need to be seen in that light. If, making all allowance for the complexity of the case and any other factors which could

legitimately lengthen the time within which the case might expect to be concluded, and paying appropriate regard to any material

contribution by the complainant to the lapse of time concerned, the case is nonetheless not finished in a timely fashion then a breach

of the Convention will be established and the complainant will be entitled to an appropriate award of damages.

4.2 However it does not seem to me to follow that every case in which the ECtHR determines that there has been a breach of a right

to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial, whether for the

purposes of the ECHR or under the Constitution (to the extent that there might be any difference in the relevant jurisprudence).

Counsel for Mr. Kennedy seemed to suggest that the fact that ECtHR only had jurisdiction to award damages in the event that a

breach was established was the only reason why the ECtHR confined itself, in many of the cases, to making a finding of a breach of

the right to a reasonably expeditious trial coupled with an award of damages.

4.3 However it seems to me that the distinction between the right to a reasonably expeditious trial and the right to a fair trial, under

the jurisprudence of the ECtHR, is much wider than conceded by counsel. The fact that, in either case, the ECtHR is confined to

awarding damages, cannot be doubted. However it does not follow that every case in which the ECtHR finds a breach of the right to

a reasonably expeditious trial also involves a finding by that court to the effect that the trial was unfair. It further does not follow

that it would, necessarily, be a breach of the right to a fair trial under the ECHR to allow a trial to go ahead after a lapse of time

which amounts to a breach of the right to a reasonably expeditious trial. The appropriate response to a finding of a breach of the

right to a reasonably expeditious trial does not necessarily require that there can be no trial but rather can involve a range of

measures including, if appropriate under the law of the relevant contracting State, the award of damages, amelioration of the

sentence imposed on conviction in criminal proceedings, or any other measure which the ECtHR might consider to be a proper

proportionate and appropriate response to the breach established. It does not, therefore, follow that the ECHR requires, for the

avoidance of a breach of its provisions, that a trial be prohibited in every case where there has been a breach of the right to a

reasonably expeditious trial.

4.4 As pointed out by the Chief Justice in her judgment, while there was a claim for damages under the provisions of the European

Convention on Human Rights Act, 2003 originally made in these proceedings, that claim was not pursued in the High Court and must

be now taken to have been abandoned. Therefore the question of whether there has being a breach of the right to a reasonably

expeditious trial per se (as recognised by the ECHR) does not arise. Further even if there is such a breach it does not follow that the

trial must be prohibited. The only relief sought by Mr. Kennedy is to prevent his trial going ahead. The question of whether there is a

breach of his right to a trial with reasonable expedition is not, therefore, of itself, relevant to that question. In that context it seems

to me that the trial judge was correct when he cited the judgment of Fennelly J. (speaking for this court) in TH v. D.P.P. [2006] 3 I.R.

520 where the following is stated:-

“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.”

4.5 It is, therefore, fundamentally mistaken to view the jurisprudence of the ECtHR on the right to a reasonably expeditious trial as

implying that any case in which a failure to provide for such a trial is established necessarily gives rise to an entitlement on the part

of the accused to avoid a trial on the merits. I would leave to a case in which a claim for damages for breach of a right to an

expeditious trial was pursued, a decision as to whether Irish constitutional law or the ECHR, insofar as it is applicable in Irish domestic

law, can give rise to such a claim. I would not rule out such a possibility. There are, however, difficulties which would need to be

addressed not least the extent to which such a claim could be maintained where the breach of a right to a reasonably expeditious

trial was wholly or substantially attributable to problems encountered in the courts. As pointed out, however, the claim for damages in

this case was not pursued and it is not, therefore, appropriate to express any definitive views on that issue.

5. The Irish Delay Jurisprudence

5.1 Turning to the Irish constitutional jurisprudence on delay I am mindful of the fact that this court, and indeed the High Court, has

had to deal with a very large number of cases in recent times in which accused persons have sought to prevent a trial on the merits

by placing reliance on the lapse of time between the alleged criminal conduct and the trial. I am also mindful of the fact that, in

particular in relation to offences involving sexual abuse of minors, the relevant jurisprudence may be said to have undergone a

significant evolution. The existing jurisprudence is analysed in the judgment of the Chief Justice. However it seems to me that some

analysis of the current state of the jurisprudence is warranted. Given that I agree with the overall conclusion of the Chief Justice it

may be that it is unnecessary to express a concluded view on some of these questions. However I do feel that some tentative

comment is appropriate.

5.2 First it is important to recall that there is a difference between the right to a fair trial (and the factors which may render a trial

unfair) on the one hand and the right to a trial with reasonable expedition on the other hand. There is, of course, a connection. Lapse

of time (to use a neutral term) can have an obvious effect on the ability of parties to present their case. But it does need to be

noted that the factors which can affect the ability of a party to present its case are not necessarily time dependent. While it is much

more likely that witnesses will be missing, documentary evidence be unavailable or forensic investigation and evidence gathering

impaired or impossible, where there is a significant lapse of time between the relevant events and a trial, it nonetheless remains the

case that any or all of such problems can occur over a short time scale as well. Where a trial comes on for hearing with expedition it

may, nonetheless, be the case that witnesses have unfortunately died or become unavailable, that documentary evidence has been

misplaced or destroyed or that forensic investigation that might have been useful may have become impossible by, for example, the

destruction or alteration of buildings or equipment. While all of these things are much more likely to occur where there is a significant

lapse of time it is important to have regard to the fact that such adverse occurrences are not necessarily time dependent.

5.3 Second it also needs to be noted that the fact that there has been some impairment (again to use a neutral term) in the ability,

in criminal matters, of an accused to present his defence, does not of itself render a trial unfair. If it were otherwise then there would

be very few fair trials for it will always be possible to point to some aspect of the case that an accused wishes or might wish to

present which has been impaired even if there is no significant lapse of time. Some impairment in the conduct of litigation is almost

inevitable. That impairment may, as a general rule, be expected to increase as time passes. However the fact that there is some

impairment could not, in my view, render a trial unfair as such. There may, however, be a threshold where the degree of impairment is

such that it can have a decisive effect on the fairness of the trial process.

5.4 I have used the neutral terms “lapse of time” and “impairment” so as to avoid any possible confusion with the terms “delay” and

“prejudice” which have come to have a fairly precise meaning in the jurisprudence. That being said I would wish to make clear that I

fully agree with the jurisprudence relating to prejudice which requires any allegation of specific prejudice to engage with the facts of

the case so as to demonstrate that there is a real impairment, by virtue of the problem relied on, in the ability to present a defence

rather than a theoretical possibility which might loosely be summed up under the phrase “you never know what might have turned

up”. Likewise I fully agree with the jurisprudence that places reliance on the fact that any impairment in the ability of an accused to

present a defence may be reduced, or even completely cured, by other appropriate measures such as directions from the trial judge.

It seems to me that the degree of impairment must be assessed by reference to such considerations. Finally, I agree that there are

many cases where the best place to identify impairment and to weigh it with any competing factors will often be before the trial judge

who will have a much clearer view of the real issues likely to be material. There is, in my view, an excessive tendency to seek to

prohibit trials in advance rather than allow the trial judge to decide on impairment or fairness issues.

5.5 In the light of those observations it seems to me that any case made by an accused in which an order is sought preventing a trial

going ahead based on an allegation of delay or prejudice needs to take into account two separate types of question although there

may, in many cases, be at least some connection between the two. First there is the question of whether the accused can have a

fair trial at all. It seems to me that that question is not necessarily dependant on there being any significant lapse of time although,

for the reasons already analysed, it is much more likely that the sort of factors which can give rise to a situation where a fair trial is

not possible will be present after a significant lapse of time. If, however, the absence of evidence of a particular type is so extreme

so as to make a fair trial impossible then that situation exists whether or not the reason for the absence of the evidence concerned is

lapse of time, deliberate action by the prosecuting authorities or just bad luck. It seems to me, therefore, that there is an argument

for the proposition that an assessment as to whether a fair trial is possible is not dependent either on lapse of time or on culpable

prosecutorial delay but rather requires an assessment as to whether, in the light of the evidence that is no longer available and its

materiality, a fair trial has become impossible. In passing I should note that this case is not concerned with a situation where material

evidence is said to be unavailable, and thus the ability of the accused to defend impaired, by reason of culpable prosecutorial action

or inaction separate from delay. In considering, on the facts of any individual case, whether a situation can be said to exist where a

fair trial has become impossible the court might, of course, have to assess the extent to which any evidence no longer available might

be truly material by reference to the sort of engagement with the facts noted in the jurisprudence and also by reference to other

factors identified in the jurisprudence such as the extent to which the absence of the evidence or materials concerned can be

partially or wholly cured by measures such as an appropriate direction by the judge to the jury.

5.6 However it seems to me that, in balancing the public interest in stateable criminal prosecutions being tried on the merits with the

entitlement of the accused to due process, it is at least arguable that a trial should only be prohibited on the basis of what I might

call “no fault impossibility of fair trial” if it is clear to the court which is invited to prohibit the trial that a fair trial is not possible. My

reason for suggesting that high threshold is that, in a case where the problems which the accused faces do not derive from any

culpable prosecutorial delay, the public interest requires that there be a trial unless the level of impairment of the accused’s ability to

mount a defence is so great that the court is satisfied that a fair trial is not possible. It seems to me that it is only at that threshold

that prohibition, in the absence of culpable prosecutorial delay, is a proportionate response to the difficulties of the accused.

5.7 Where the degree of impairment falls short of that standard then it seems to me that the court may have to engage in a

proportionate balancing exercise of the public interest in prosecution and the rights of the accused. If that be so it seems to me that

the first issue which must be addressed is to determine whether there has been culpable prosecutorial delay for in the absence of

such blameworthy activity it seems to me that a trial cannot be prohibited unless it meets the high threshold earlier described. Where

impairment falls below that threshold then a trial should not be prohibited in the absence of culpable prosecutorial delay. Where,

however, such culpable action or inaction is established, it seems to me that the court must take into account all relevant factors in

assessing where the balance of justice lies. The Court must fashion a proportionate response to each of the rights involved. The

extent of the culpable prosecutorial delay and the effect of any such delay on the impairment of the ability of the accused to mount

his defence seems to me to be an important factor. The extent to which culpable prosecutorial delay may have caused or contributed

to the other factors identified in the jurisprudence (by reference to Barker v. Wingo [1972] 407 U.S. 514) must also be assessed.

Clearly the extent, if any, to which the accused may himself have contributed to the delay needs also to be weighed in the balance.

Where the ability of the accused to mount his defence has been impaired by lapse of time not caused by prosecutorial delay then

that too should be taken into account but it seems to me that the weight to be attributable to any such impairment must be

significantly less than the weight to be attributable to an impairment in the accused’s ability to mount his defence which can be

attributable to prosecutorial delay. Finally, and for reasons which I hope will become apparent, of particular relevance to this case it

seems to me that culpable prosecutorial delay itself must be weighted in the light of any explanation or excuse given.

5.8 There will be cases where the reason given for the time taken will, in the court’s view, render any lapse of time excusable and

thus bring the case outside the scope of those where it can be said that there was culpable prosecutorial delay at all. There may, at

the other end of the spectrum, be cases where there is no real explanation at all or none which the court regards as acceptable.

However in between those extremes there may be cases (and for reasons which I hope to set out this is one), where it is appropriate

to regard the explanation given as going someway towards providing an excuse but not an excuse which is sufficient to provide a

complete explanation. In such cases it seems to me that the court should weigh in the balance the extent, if any, to which any

prosecutorial delay may be excused. It may well be that such an approach, if ultimately finding favour, would, at least in many cases,

not lead to any different result to that which would occur under the existing jurisprudence.

5.9 It seems to me, therefore, that it is arguable that the first question which a court should ask in a delay case is as to whether a

fair trial is possible. In other words has the impairment of the accused’s ability to defend himself been so significant that it can no

longer be said that the accused can have a fair trial. If the answer to that question is yes then the trial cannot go ahead. It seems

to me, at the level of principle, that it is arguable that that question can arise even if there is no culpable or indeed any delay at all

for if there cannot be a fair trial then it is hard to see how the court, in vindicating the constitutional right of the accused concerned,

can allow the trial to go ahead even if it is no one’s fault. However in order for the threshold necessary to establish that the accused

cannot have a fair trial to be met it seems to me that the court would have to be satisfied that the impairment caused by the

absence of an ability to present evidence or materials to the court which might otherwise have been available must be so significant

that there is, in truth, no real ability to present a defence at all rather than an inability to present as good a defence as might

otherwise have been available. I would reiterate that such an assessment is one which is more easily reached by a trial judge rather

than a court addressing a prohibition application. It is, however, the possibility that impairment can arise without either fault or delay

that leads me to tentatively suggest that a high threshold must be met where it is sought to prohibit a trial without culpable

prosecutorial delay.

5.10 Where, however, the degree of impairment is not such as renders a fair trial impossible but where there has been culpable

prosecutorial delay such as has significantly impaired the ability of the accused to present his case or caused any of the other

adverse consequences identified in Barker v. Wingo then the court must determine where the balance of justice lies. In carrying out

that exercise a proportionate response is required. It may well be that such an exercise will be the same, or at least very similar, to

that mandated by the existing jurisprudence.

5.11 It seems to me, therefore, that it may well be that the three questions which a court must ask itself in a case such as this are:-

(a) is a fair trial possible; (b) if so has there been culpable prosecutorial delay; and (c) if so where does the balance of justice lie. In

the light of those observations I next propose to consider the application of those principles to the facts of this case.

6. Is A Fair Trial Possible?

6.1 It is true that some of the persons who might have been able to give evidence which, on one view, might be favourable to Mr.

Kennedy, are deceased. However it remains the case that there are other witnesses who can, if their account be helpful to Mr.

Kennedy, be called to give evidence directed to at least many of the possible bases on which Mr. Kennedy might seek to defend. As

pointed out by the Chief Justice the prosecution case against Mr. Kennedy is very significantly dependent on the evidence of Frank

Dunlop.

6.2 Doubtless the credibility of Mr. Dunlop as a witness will be a significant feature at the trial. It is possible to say that Mr. Kennedy

may have somewhat less ammunition with which to challenge the credibility of Mr. Dunlop than might have been the case had there

been a trial soon after the events alleged to constitute the offences with which Mr. Kennedy is charged. However it seems to me that

any impairment which Mr. Kennedy may suffer from in the presentation of his defence falls a long way short of the standard which

would allow a court to conclude that it was not possible for him to get a fair trial. In those circumstances it seems to me that the

court must next turn to the question of whether there has been culpable prosecutorial delay.

7. Has There Being Prosecutorial Delay?

7.1 The facts relevant to this issue are again fully set out in the judgment of the Chief Justice. I agree with the views expressed in

that judgment to the effect that it was reasonable for the D.P.P. to delay prosecuting Mr. Kennedy until such time as Mr. Dunlop had

been convicted. It was accepted that there was no rule of law which would have precluded Mr. Dunlop being called as a prosecution

witness against Mr. Kennedy. However it does have to be noted that Mr. Dunlop’s evidence, for it to be useful to the prosecution,

would necessarily have involved an admission of serious wrongdoing on Mr. Dunlop’s own part. Mr. Dunlop would have been entitled, in

those circumstances, to decline to give incriminating evidence. While it might be said that the evidence suggests that Mr. Dunlop was

being cooperative at all material times, nonetheless the difficulty in successfully mounting of a prosecution against Mr. Kennedy at a

time when Mr. Dunlop would not, in practice, have been a compellable witness (at least so far as much of the evidence sought to be

relied on by the prosecution against Mr. Kennedy was concerned), is, in my view, a factor which any reasonable prosecuting authority

is entitled to take into account. I am, therefore, satisfied that a decision to defer prosecuting Mr. Kennedy until after Mr. Dunlop had

been convicted was not unreasonable.

7.2 However I respectfully disagree with the view of the Chief Justice that that state of affairs provides a full explanation for the

lapse of time in this case. A file was sent to the D.P.P. seeking directions in relation to alleged corruption offences relating to Mr.

Dunlop, Mr. Kennedy, and certain other persons on 22nd October 2004. While it may be that some additional investigations could have

been necessary to ensure that the case against or all of those accused was in a position to be brought to trial, no specific evidence

was tendered on behalf of the D.P.P. in that regard. In the absence of any specific difficulty being established in evidence it would, in

my view, in the ordinary way have been reasonable to suggest that a prosecution might be brought, even in a complex case, within a

number of months of the file being forwarded to the D.P.P. The direction by the D.P.P. that six persons including Mr. Kennedy be

charged did not occur until 24th June 2010. There is, in substance, therefore, a lapse of time of the order of five years which needs

to be explained. In passing, in that context, I should note that I am not satisfied that there is any culpable prosecutorial delay

established for the period after the decision to prosecute was taken up to the arrest and charge of Mr. Kennedy. There was some

debate both in the High Court and before this court as to whether efforts could have been made to effect the arrest of Mr. Kennedy

on foot of a European Arrest Warrant. However given the difficulties that might well have been encountered with any such process

and the fact that delay might well have occurred in attempting to pursue such a course of action in any event, it seems to me that

the actions of the prosecuting authorities after a decision was made to prosecute Mr. Kennedy were reasonable.

7.3 The question of culpable prosecutorial delay turns, therefore, on whether there is an adequate explanation for the period of

approximately five years which elapsed from the time when it might have been reasonable to expect a prosecution to be brought and

when it was actually brought. The question really turns on whether the decision to await the conviction of Mr. Dunlop (which, as I

have already indicated, was in itself a not unreasonable position to adopt) amounts to a sufficient explanation for that five year

period.

7.4 Where the reason relied on by a prosecuting authority for delaying the commencement of criminal proceedings is the necessity to

complete some other process prior to the commencement of those proceedings and where that other process is within the hands of

the prosecuting authority itself, it seems to me that the court must assess whether that other process was conducted expeditiously.

If it were not so then a prosecuting authority could unfairly delay a criminal prosecution by reference to a factor which, although

legitimate in itself, would not justify the lapse of time concerned. I am not satisfied that any adequate explanation has been placed

before the court as to why it took so long to actually bring the prosecution against Mr. Dunlop to conclusion. If there be such an

explanation it was not one which the court was given an opportunity to analyse. On the face of it the position is that Mr. Dunlop

made inculpatory statements at an early stage in the process and would appear, on all the evidence, to have been co-operative with

the prosecuting authorities. There is nothing in the evidence to suggest that there was a good reason for waiting until 21st November

2008 to arrest and charge Mr. Dunlop. While I accept, therefore, that the need to improve the position of the prosecution by ensuring

that Mr. Dunlop had been convicted before mounting a prosecution against Mr. Kennedy provides, at the level of principle, a legitimate

explanation, I am not satisfied that that explanation goes far enough to excuse the lapse of time of five years which I have already

identified.

7.5 On that basis I am satisfied that there is a partial but not complete explanation for the lapse of time in bringing the prosecution

against Mr. Kennedy in this case. In passing I should note that there is sometimes a tendency to conflate the terminology adopted in

the jurisprudence in relation to delay in civil proceedings with the terminology used in relation to criminal proceedings. The term

culpable prosecutorial delay is the one most commonly used in the criminal delay jurisprudence. The test in civil delay cases remain

that identified in Rainsfort v. Limerick Corporation [1995] 2 ILRM 561 which requires the court, before going on to consider the

balance of justice, to determine as to whether there has been “inordinate and inexcusable” delay. However it does not seem to me

that there is, in reality, any difference between the two concepts. Inordinate delay implies that the case has taken longer to come to

trial than might reasonably be expected for a case of its complexity and having regard to any other legitimate factors that might

influence how long it might reasonably take a case of that type to be able to come to trial. “Inexcusable” implies that no adequate

excuse has been tendered for any inordinate delay that has been established. Thus the test in civil proceedings involves analysing

whether the length of time it has taken for the case to come to trial is too long in all the circumstances and, if so, subject to the

extent to which blame may attach to the defendant, whether the plaintiff has put forward a sufficient excuse.

7.6 In truth culpable prosecutorial delay seems to me to raise exactly the same questions. Has the case taken too long to come to

trial? If so, can the accused be blamed for any of that lapse of time? To the extent that the accused cannot be blamed has the

prosecuting authority put forward an adequate explanation or excuse. If there is too great a lapse of time which cannot be attributed

to the accused and for which an adequate explanation or excuse cannot be given then it seems to me that such a situation can

properly be described as one where there has been culpable prosecutorial delay.

7.7 As was, in my view quite properly, conceded by counsel for the D.P.P. in this case there is a lapse of time which requires

explanation. In the ordinary way it would not be acceptable for a period of over 5 years to elapse from the time when Garda

investigations were complete to the time when a trial might take place. I take that view while acknowledging, as pointed out earlier,

that in certain types of cases it is likely that the investigations leading to the file being submitted to the D.P.P., no matter how

competently conducted by An Garda Síochána, may not be the end of the evidence gathering route from the prosecution’s point of

view. It may well be that, when the ubiquitous “Garda file” is sent to the D.P.P. and reviewed by officials in the D.P.P.’s office, An

Garda Síochána will be directed to carry out further enquiries for the purposes of supplementing the evidence that might be required

in order to present the prosecution case to its best advantage. Some lapse of time for such further enquires might well be reasonable

although, in the absence of any specific explanation or evidence, it is hard to see how factors such as that could explain anything

other than a relatively brief part of the lapse of time in this case. Taking that factor into account together with what I might call the

Dunlop factor provides, in my view, a partial explanation. It seems to me that there has, therefore, being culpable prosecutorial delay

but that the degree of that culpability must be assessed by reference to the fact that a partial legitimate explanation has been given

for at least a material portion of the lapse of time concerned. Against that background it is necessary to turn to the balancing

exercise which must then be conducted.

8. The Balancing Exercise

8.1 I fully agree with the views expressed by the Chief Justice as to the absence of significant specific prejudice caused by culpable

prosecutorial delay in this case. As pointed out by the Chief Justice a careful analysis of the witnesses said to be relevant but no

longer available makes clear that no potentially important witness would have been available even if a prosecution had been mounted

immediately after the Garda file was submitted to the D.P.P.

8.2 The extent to which Mr. Kennedy has been able to demonstrate any significant impairment resulting from prosecutorial delay is,

therefore, slight in the extreme. There is a somewhat greater amount of impairment which arises from lapse of time, independent of

prosecutorial delay, but for the reasons already analysed in Section 6 of this judgment, that impairment is not at a very high level and

in any event, for the reasons already analysed, it is not, in my view, appropriate to place the same weight on any impairment which

cannot be attributed to culpable prosecutorial delay. The overall assessment of the impairment to Mr. Kennedy must therefore be

towards the lower end of the scale having regard to the virtual non existence of specific impairment attributable to prosecutorial

delay, the limited nature of any general impairment caused by lapse of time and, indeed, the fact that any general impairment is

significantly reduced by the fact that the issues which are likely to be at the heart of the criminal trial have been a matter of

controversy, to Mr. Kennedy’s knowledge, for much of the period between those events and today. This is not the sort of case where

a knock comes to the door many years after an event leading the accused (and indeed any other relevant witnesses) with the

difficult task of having to recollect events, which occurred a very long time ago, for the first time in many years. It would be

surprising in the extreme if any of the participants in the events likely to be of any relevance to this trial have not had ample

opportunity to turn their minds to those events regularly over the last number of years.

8.3 Turning to the question of stress and anxiety it seems to me that no real evidence was presented to suggest a significant level of

additional stress and anxiety attributable to delay in criminal prosecution in this case. There was, of course, no significant pre-trial

incarceration.

8.4 On the other hand there is a very significant public interest in ensuring that a trial of the serious issues concerning public life

which are at the heart of the allegations in this case is conducted on the merits. When taken in conjunction with the fact that the

prosecutorial delay in this case is partly explained, although remaining culpable to some extent, it seems to me that the balance of

justice clearly favours the trial going ahead.

8.5 It follows that, whether applying the existing jurisprudence noted by the Chief Justice or the possible slight refinement of it

tentatively suggested in this judgment, the result is the same. Even on the basis of the existing jurisprudence my view that there was

some culpable prosecutorial delay would not alter the result.

9. Conclusion

9.1 For those reasons, I would, although not fully agreeing with the judgment of the Chief Justice, agree with the order which she

proposes.