Supreme Court allows appeal against prosecution delay, dissenting judge argues delay was inordinate and unfair.

[2012] IESC 34

THE SUPREME COURT

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 of Mr. Justice Hardiman delivered the 7th day of June, 2012,

1. The nature of this appeal and the issues arising on it are so fully set out in the judgment of the Chief Justice that it is unnecessary

for me to rehearse them further. But I am unable to agree with the learned Chief Justice on a significant aspect of the case, that

related to delay on the part of the prosecution, so that it is appropriate that I should briefly explain the grounds of my dissent. I also

wish to comment on certain dicta of the learned Trial judge.

2. The facts of this case demonstrate beyond doubt that there has been very considerable delay on the part of the prosecution in

prosecuting the charges against the applicant. These charges relate to periods as early as May, 1992 (now twenty years ago) and as

lately as December, 1997, (now almost fifteen years ago). Delay of this order is, as the learned trial judge found, “clearly inordinate”.

But the prosecution claims to be entitled to proceed with the charges notwithstanding this clearly inordinate delay on the ground that

the period of time involved, though inordinate, is nevertheless “excusable”.

3. This case overlaps in certain of its facts the case of DPP v. Liam Cosgrave, in which this Court gave judgment on the 26th day of

April, 2012.

4. As in that case, the underlying prosecution in this case depends on the testimony of a single witness, described by the learned trial

judge as “the key witness”, Frank Dunlop. Mr. Dunlop’s background and relevant activities are summarised in my judgment in Cosgrave

and it is unnecessary to repeat that material here. Without him, there would be no case at all.

5. Mr. Dunlop, under some pressure, notoriously and very publicly claimed to the Flood Tribunal as long ago as October, 2000, that he

made corrupt payments to councillors, which are the payments in relation to which the appellant here is charged. Notwithstanding

that these allegations were made almost twelve years ago, and made in a public forum, the applicant was not charged until October,

2010, a decade later.

6. The nature of the case against Mr. Kennedy clearly emerges from the affidavit of a Detective Garda Martin Harrington, sworn on

behalf of the respondent in these proceedings. At para. 12 he says that the charges against Mr. Kennedy arise “out of the allegation

that he corruptly gave sums of money to certain County councillors as an inducement or a reward for voting in favour of motions to

rezone certain lands at Carrickmines, Co. Dublin in 1992 and 1997”.

7. In the following paragraph he says:

“It is alleged that the money was given by James Kennedy to Frank Dunlop who made the corrupt payments to the named

councillors as set out in the charge sheets”.

Excusable delay?

8. As the learned Chief Justice has held, the “key reason why there was such delay was because the D.P.P. had decided not to

prosecute the appellant until Frank Dunlop had been himself prosecuted”. This occurred in May, 2009. The direction to charge the

appellant was given in June, 2009.

9. For the reasons set out in my judgment in Cosgrave, I do not consider that it was legally necessary for the Director of Public

Prosecutions to wait until after the prosecution of Mr. Dunlop had been concluded before commencing proceedings against the

appellant. Equally, for the reasons separately out in that judgment, I do not believe that the alleged necessity to wait until Mr. Dunlop

had been tried was the real or actual reason for the D.P.P.’s delay in charging Mr. Cosgrave, or Mr. Kennedy either. On the contrary, I

believe, for the reasons set out in my earlier judgment that the decision to defer the bringing of charges until Mr. Dunlop had been

charged and convicted was a ploy to gain tactical advantage, and nothing more.

10. The nature of this tactical decision can be tersely described. The D.P.P. did not wish to present the witness Frank Dunlop as an

unconvicted accomplice, because that might tend to undermine his credibility, on which the whole case against Mr. Kennedy depends.

But neither was he in a position to proceed to prosecute Mr. Dunlop earlier than 2009, because the State wanted his cooperation in

other matters, including other prosecutions. This is why, I believe, a period of ten years elapsed between these allegations first being

made in a public forum and charges being brought against the applicant in respect of them.

11. If this reason, which I believe to be the actual reason for the delay, had been advanced as the factor rendering the admittedly

inordinate delay “excusable”, the Court would have had to form a view on that issue. But it was not advanced as the factor rendering

the delay excusable but rather a quite different reason was relied on.

12. It is therefore incumbent on me, consistent with the reasoning of the judgment which I delivered in Cosgrave to find that the

“key” reason for delay was not accurately stated and that the reason which was advanced is inadequate to explain or excuse the

delay which the learned trial judge rightly found to be “clearly inordinate”.

Second hand evidence.

13. The affidavit of Detective Garda Harrington, referred to above, did not contain, and could not have contained, first hand evidence

of the reason for the delay in prosecuting Mr. Kennedy because the decision that gave rise to that inordinate delay was not taken by

Garda Harrington. He can only therefore speak of it at second hand which he does at para. 92 of his affidavit:

“Directions were not received to charge Frank Dunlop until 31st July, 2008. The DPP made it clear to the investigating

members that it [sic] would only consider prosecuting James Kennedy and the councillors if Frank Dunlop was convicted of

the related charges and then only upon receipt of confirmation that Frank Dunlop would be prepared to give evidence in

the criminal court in any prosecution that the DPP might consider bringing against James Kennedy and the councillors.

Following the conviction of Frank Dunlop enquiries were carried out by the investigating members with him through his

solicitors LK Shields and it was confirmed again that Frank Dunlop was prepared to give evidence in any proceedings

arising out of the statements he had made to CAB”.

14. In my judgment in the Cosgrave case, I have made clear my very strong view of the unfairness that arises out of the decision to

put centrally important material before the Court in this second hand fashion. Material put before the Court by way of affidavit can

only be challenged or further explored by a cross examination of the deponent. In this case, there is no point in cross examining Mr.

Harrington because, while he knows that “directions were not received to charge Frank Dunlop until the 31st July, 2008”, he does not

know why that was so or why it did not take place years earlier. Equally, while he may (it is not clear) know of his own knowledge

what the DPP said to the investigating members, he does not know the reasons for the attitude allegedly communicated to them.

15. The interposition of Garda Harrington between the Court and those who actually made the prosecutorial decisions in this case has

in my view worked a grave unfairness to the applicant. But it has assisted the prosecution by shielding the real decision makers from

scrutiny in cross-examination.

The balance of justice.

16. In his decision in this matter the learned trial judge, Hedigan J, whose judgment is also very fully exerted in the judgment of the

learned Chief Justice, held that the delay in this case, though “clearly inordinate” is excusable. He went on to say:

“Even if this were not the case, I am satisfied that the balance of justice would demand that these proceedings be

allowed to take place”.

17. This is apparently because:

“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”.

18. No-one could doubt that the corruption of County Councillors, if it occurred as alleged, is a grave matter and one requiring to be

pursued by all lawful means. The same could be said of any allegation of crime. I do not agree with any suggestion, if one can be

found in the passages I have quoted, that because the allegations arise out of a hugely expensive and almost incredibly prolonged

Tribunal, there can be a specially lenient attitude towards delay in prosecuting them.

19. A Tribunal of Inquiry is not a method of gathering evidence for a criminal prosecution and should not be regarded as such. On the

contrary, it is a special form of inquiry in which the rights of citizens are very gravely abrogated and is purely for the purpose of

allowing a non-binding opinion to be expressed on “definite matters of urgent public importance”. See the judgment of this Court in

Goodman International v. Hamilton (No. 1) [1992] 2 I.R. 542.

20. From time to time, certain offences arise which attract a particular opprobrium in the public mind. In our time these offences have

included offences of terrorist mass murder, sexual offences against children, and financial offences, especially those involving

corruption.

21. It is, as the learned trial judge said, important that these and other crimes should be pursued by all means within the limits of the

law. It is also important to bear in mind that there is a particular risk of miscarriages of justice in precisely those cases where it is

very strongly felt that there is a great public interest in the conviction of malefactors.

22. The mass murder which took place at the hands of those who bombed the city of Birmingham in 1974 was a classic example of an

offence where there was “an overwhelming public interest” in convicting those responsible. Unfortunately this entirely natural and

legitimate public interest, and an investigation and trial insufficiently constrained by the laws of the time, led to the conviction of six

innocent people and their incarceration for more than two decades. This occurred due to an excess of an anger undoubtedly

righteous in itself.

23. Most of the defendants in this case and in the earlier case to which I have referred are elected public officials, or people

connected with such officials. It would be very wrong if people in this class were treated with special favouritism by the law. But it

would equally be very wrong if they were treated less favourably than another person who could make the same points. If the rights

of defendants are more coarsely vindicated because, in a particular case, they belong to a particular class of person or are charged

with offences regarded as particularly outrageous, it will not be long before the coarsening of the vindication of the rights of the

defendants will affect all citizens. Experience shows that when civil rights are trenched upon in relation to one category of the

person, or one category of crime, a similar diminution in the rights of citizens generally tends very soon to follow. Levelling, in such

cases, tends to be levelling down rather than levelling up.

24. This trend is precisely illustrated in delay cases. There was a fairly recent time, characterised in cases like The State (O’Connell)

v. Fawsitt and the D.P.P. [1986] 1 I.R. 362 and Joan Fitzpatrick v. District Justice Daniel Shields and the D.P.P. [1989] I.L.R.M. 243

not to mention civil cases such as Ó’Dómhnaill v. Merrick [1984] 1 I.R. 151, when delays of a much shorter order than the delay in

question in this case, would have led to the prohibition of a trial. This changed, at first only in the restricted category of cases of

alleged child sexual abuse where prosecutions were permitted, ultimately, after astonishingly long periods. I am concerned that this

present case illustrates a spreading of this permissive attitude to delay from child sexual abuse cases, which were arguably in a

special category, to cases of a quite different sort, such as this. To my mind, a prosecution for a twenty year old offence might be

permitted, exceptionally, if the delay were genuinely excusable and the Court was sure that a fair trial could be had. But in the

present case, as it appears, I do not consider the delay excusable and do not consider even that the true reason for delay has been

accurately stated.

25. I wish to add that a long delayed trial is gravely unfair to a defendant and carries a greatly enhanced risk of a miscarriage of

justice. This is so for the reasons extensively discussed in my judgment in JO’C v. D.P.P. [2000] 3 I.R. 478. I wish to record my alarm

at the tendency, which this case illustrates, to permit a trial of a twenty year old allegation, after prosecutorial delay expressly found

to be “inordinate”, and to emphasise my view of the grave risk of miscarriage of justice which this poses. The gravity of that risk will

vary with the extent to which the case depends on bare assertion by a prosecution witness.

Conclusion.

26. I would allow the appeal and grant the appellant the relief sought.