THE COURT OF CRIMINAL APPEAL Hardiman J. CCA 1CPA/00
Hanna J.
Hogan J.
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
MARTIN CONMEY
Applicant
JUDGMENT of the Court delivered the 27th day of July, 2012 by Hardiman J.
This is the third judgment which the Court has delivered in this matter. One was an ordinary judgment, necessitated by the nature of the case: the other two are judgments on special and very unusual applications by the prosecution. All three must be put in context in order to make sense of the present application.
On the 22nd November, 2010, the Court quashed the conviction of the applicant, Mr. Conmey, pursuant to s.2(1) of the Criminal Procedure Act, 1993. The conviction was an old one: Mr. Conmey had been convicted as long ago as the 14th July, 1972 of the manslaughter of Una Lynskey. Convicted with him was a co-accused, Dick Donnelly, whose conviction was however set aside on appeal shortly afterwards. There was also a third person originally charged with the murder of Ms. Lynskey, a Mr. Martin Kerrigan. He, most unfortunately, was kidnapped and killed during the course of the garda investigation, by relatives of the deceased lady.
The case against Mr. Conmey is summarised in the judgment of this Court delivered the 22nd November, 2010. From this it appears that the case against him was entirely circumstantial. For the reasons set out there, it was absolutely necessary for the prosecution to place Mr. Conmey at or near the scene of the crime in a place called Porterstown Lane, during an extremely tight and short time frame of about fifteen minutes, established by the circumstantial evidence. This was done most directly by the evidence of two witnesses, Mr. Martin Madden and Mr. Séan Reilly. The evidence of a third witness, a youth called John Shevlin, was also used to this end. Only Mr. Séan Reilly survives of the three.
The judgment of the Court of Criminal Appeal of November, 2010, contained, at p.34 a summary of its factual findings:
(a) That the gardaí were at all material times in possession of original statements, presumably in handwritten form, and typed versions of the initial account of the witnesses, Séan Reilly, Martin Madden and John Shevlin,
(b) That these original statements were radically inconsistent with later statements of the same witnesses and with the evidence given at the trial,
(c) That neither on the hearing of this application, nor at the trial, did the State offer any explanation of the changes in the statements of these witnesses,
(e) That significant use was made of the subsequent statements (including depositions) of these witnesses or certain of them and that the later statements also played a significant role in the investigation, specifically in causing the applicant and the two others to be brought to Trim Garda Station.
(f) There is evidence (quoted elsewhere) that it was the later versions of these witnesses account that led to the taking of the applicant and his colleagues to Trim Garda Station and their retention there, admittedly without sleep, for some forty-five hours,
(g) That the survivor of the three relevant witnesses, Séan Reilly, now gives an account of having been severely and unlawfully pressurised by the gardaí to make the altered statement. This account includes allegations of physical assaults.
The Procedure.
It was also established in evidence that Mr. Conmey had consistently protested his innocence of this crime. However, as the law stood at the time, once his appeal was dismissed there was no further legal recourse open to him. However, the Criminal Procedure Act, 1993 contained a mechanism whereby a person who had been convicted of an offence and who alleged that a new or newly discovered fact showed that there had been a miscarriage of justice in relation to the conviction could apply to the Court for an order quashing it.
This was an entirely new jurisdiction at the time. It was described by the learned authors of the Annual Review of Irish Law for 1993 as “the legislative reaction to the fall out from recent well publicised cases of miscarriages of justice, including the Guilford Four and the Birmingham Six cases in Britain and, in Ireland, the Nicky Kelly case”. The learned authors expressed the opinion that the Statute “resulted in enormous changes to the Irish Criminal Justice system”.
New or newly discovered facts.
In this s.2 application, Mr. Conmey alleged that there were ten categories of newly discovered facts. These are listed at p. 16 of the judgment already referred to. The first category is “the undisclosed statements of Séan Reilly, Martin Madden and John Shevlin”. This category was entirely documentary. At the hearing of the s.2 application it was conceded by the Director of Public Prosecutions that the first category referred to documents which were capable of being “newly discovered facts” for the purposes of s.2. For this reason, and for other reasons set out in the judgment, the Court decided first to consider this category of newly discovered fact. In the event, it transpired to be unnecessary to go beyond that category.
Nature of the newly discovered evidence.
The newly discovered evidence was entirely documentary. Messrs. Reilly, Madden and Shevlin had made initial statements to the gardaí which tended to favour the defence in that they did not put Martin Conmey at the scene at any relevant time and which, the applicant claimed, and the Court held, were not disclosed to him or to his advisers. He claimed that this non-disclosure continued even though the witnesses in question gave evidence at variance with the contents of the undisclosed statements. He further claimed that the statements continued to be undisclosed even when one of the witnesses, as summarised above, was cross-examined in relation to another prior statement of his, for the purpose of rendering him a hostile witness. Even then, he said, the original garda statements, which supported the evidence first given by that witness, Mr. Madden, were withheld.
The contents of the undisclosed statements and the manner in which they varied from the later statements, and from the evidence given by the witnesses, is set out at pages 17 - 30 of the judgment of November, 2010.
Importance of the evidence of Messrs. Madden and Reilly.
The applicant was tried in 1974 in the Central Criminal Court before the late Mr. Justice Henchy and a jury. Speaking of the evidence of Mr. Madden, the learned trial judge told the jury that it:
“… is a crucial piece of evidence. I do not suggest to you that you should act upon it or not act upon it: it is a matter entirely for you”.
Referring to Mr. Madden’s evidence and that of Séan Reilly the learned trial judge said:
“These two pieces of evidence are much relied on by the prosecution as proving that Richard Donnelly, Martin Conmey and the late Martin Kerrigan were in the car that went from Barrons’ shop up Porterstown Lane; met Una Lynskey; something happened which had fatal results; that the car turned back and came down Porterstown Lane towards the Navan Road. If that is not proved to your satisfaction, much of the prosecution case goes. It is essential for the prosecution case to show that Richard Donnelly’s car met Una Lynskey and took Una Lynskey into the car and that something fatal happened.”
The emphasis in the two last quotations is supplied. The entire of both quotations is set out at p.12 of the judgment of November, 2010.
On the hearing of this Appeal, the prosecution submitted that Henchy J’s remarks related solely and only to the case against Dick Donnelly, and not at all to that against Mr. Conmey. This is quite impossible to reconcile with the express mention of Mr. Conmey, by name, in the second extract.
Based on the foregoing, the Court in that judgment quashed the conviction.
The Costs application.
The second judgment delivered by this Court in the present case was delivered on the 18th October, 2011. This arose in the following circumstances: the applicant had indicated that he wished to apply for the costs of the s.2 hearing. The respondent, the Director of Public Prosecutions took a preliminary jurisdictional point:
“There would be power to award the costs of the appeal if a retrial were directed but, since no retrial was directed there is no power to award costs.”
In fact, no retrial was sought since the sentence had been served more than thirty years previously.
“Not simply a clever Argument”.
This was a somewhat surprising point to be raised for the first time some seventeen years after the s.2 jurisdiction had come into being. Ms. Walley S.C. for the Director did not contend that the result, if her argument succeeded, was either a logical or just result but said that it was enjoined on the Court by the Statute itself. Ms. Walley felt a need specifically to assert that the submission she was making was “not simply a clever argument dreamed up to defeat a successful applicant”.
Be that as it may, of course, the effect of Ms. Walley’s submission on behalf of the Director, if it were successful, would be that a person who had his forty year old conviction quashed because he was able to establish that documents bearing on a “crucial” piece of evidence had been withheld from him would be required to bear the costs of the years of investigation and eight days of hearing before the Court of Criminal Appeal which were necessary to establish his case against the trenchant opposition of the Director of Public Prosecutions. (27-30 April 2010;
17-19 May 2010; 23rd July 2010). Judgment delivered 22nd November 2010.
In the judgment mentioned of October, 2011, this Court rejected the Director’s submission. Mr. Hartnett S.C. then indicated that his application would be for solicitor and client costs.
The third issue.
Subsequent to this, the Director of Public Prosecutions indicated an intention to make an application that Mr. Justice Hardiman be recused from the hearing either of the costs application mentioned above or of the subsequent application, which Mr. Conmey had also intimated from the beginning of the proceedings, for a declaration pursuant to s.9 of the Act that his conviction was a miscarriage of justice.
This application which led to this judgment, the third judgment the Court has been required to make in this matter, was itself heard over a period of three days on the 14th May, 28th June and 2nd July, 2012.
The initial grounds of this unusual application arose from the fact that, in September, 1999 Mr. Justice Hardiman, then a Senior Counsel in private practice, was sent a brief in the proposed s.2 application by the Solicitors for the applicant, with a very brief letter which indicated that the balance of the papers would be forwarded when they were available. The applicant’s solicitors had no further dealings with Mr. Hardiman S.C. because the latter’s appointment to the Supreme Court was announced in January, 2000. In the course of the hearing of the Director’s application it transpired that, prior to the transmission of the brief, Mr. Hardiman had been approached in the Law Library by the junior counsel instructed in the matter, Mr. Michael O’Higgins (now S.C.) who asked him whether he would accept the brief. This was revealed by Mr. O’Higgins himself, and is in no way unusual or surprising.
These matters were first raised before the Court at an administrative hearing conducted by Mr. Justice Hardiman sitting alone on the 25th February, 2011. The Judge indicated that he had no recollection of being sent the brief and would not recuse himself of his own motion. But he stated that if either party would prefer that he would not sit to hear and determine the case, then he would not do so.
The significance of this latter part of the history requires emphasis. No judge will sit in a case in which there could be any reasonable apprehension of objective bias. It is a matter of indifference to a judge what case he sits in since, if he is not working on one case, he will be working on another. The great majority of judges, no doubt, have on occasion recused themselves from cases where, for example, they have a personal relationship with a litigant or a financial interest, however indirect, in the outcome. But a judge will not normally recuse himself simply because he has, for example, dealt in a judicial capacity with other cases involving a litigant or because of acquaintance with a lawyer involved in the case in a purely professional capacity.
In April, 2010, Mr. Justice Hardiman made it perfectly clear that he did not consider that any facts existed which would make it incumbent upon him to recuse himself from the hearing of the case. But he stated that he would nonetheless not participate in the case if either party would prefer that he did not do so. In other words he empowered either party, by the simple expression of a preference, without the necessity to establish by evidence or argument a strictly legal ground for recusal, to procure his withdrawal from the case if that was desired. Nothing could have been easier.
Faced with this opportunity neither party expressed a wish that the judge should withdraw. Indeed, Ms. Walley S.C. on behalf of the Director stated that the Director’s attitude was that it was a question of public perception, which was a matter for the Court. She said this after it had been made quite clear that the judge did not consider that he had any legal obligation to recuse himself.
The matter rested there and the case proceeded through eight days of hearing of the s.2 application, the reservation of judgment on that application, the delivery of the Court’s reserved judgment in November 2010, the making of the costs application and the hearing of the Director’s jurisdictional objection to the award of costs. At no time during the proceedings thus summarised was the recusal application renewed.
Legal considerations.
The law relevant to these issues will, as far as is necessary, be considered below. But it may be important for the understanding of what follows to mention at this stage the general features of that law, for the present without citing authority.
A judge ought to recuse himself or herself from the hearing of a particular case, either alone, or as a member of a collegiate court, or with a jury, if an ordinary reasonable member of the public, who knows all relevant facts, would have a reasonable apprehension that the litigants would not have a fair hearing before an impartial tribunal.
To procure the withdrawal of a judge, therefore, it is not necessary to show actual bias, but only to establish the objective proposition summarised above.
But where a party, knowing the relevant facts, has an opportunity to object to a particular judge on the ground of objective bias, but does not then do so he will be estopped by his conduct from later questioning the competence of the tribunal. A fortiori, if he declines an express offer by a judge to withdraw.
Thus, a judge may be disqualified from the hearing of a case, although actually quite unbiased, if the facts are such that a reasonable member of the public, who is aware of all the facts, would reasonably apprehend that there would not be an impartial hearing. It is a well established principle that judges do not interpret this rule too narrowly. Thus, a judge will offer to step aside even though he himself is aware of no impression of bias or prejudgement simply because a litigant, reasonably or otherwise, would be happier with a different tribunal. This is what Mr. Justice Hardiman did in the present case: when the authorities are explored below another example of a judge offering to withdraw will be revealed.
But if a judge will not scrutinise too strictly an application for his withdrawal, the Courts will very strictly scrutinise an application based on the proposition that a judge should withdraw after his jurisdiction has been initially accepted in knowledge of all relevant facts. Thus, in Bloomer v. The Law Society, considered below, a litigant who had declined a judge’s offer to withdraw in the High Court was not permitted, on appeal, to argue the proposition that the Judge should, nonetheless, not have heard the case. In other words, the Courts, though properly sensitive to any genuine apprehension of objective bias, will not permit the assertion of such an apprehension to become a vehicle for forum shopping in the hands of a misguided or unscrupulous disappointed litigant.
The nature of the Applicant’s case.
Mr. Conmey’s application was formulated as long ago as the year 2000. Until 1993 no such jurisdiction as that exercised here existed at all and even after that date Mr. Conmey had great difficulty in getting from the authorities the documents he needed to make his case: these difficulties are examined at some length in the judgment of November 2010. They are so examined because one of the grounds on which Mr. Conmey’s s.2 application was opposed was alleged unreasonable delay in bringing it forward.
In Mr. Conmey’s application as originally formulated more than a decade ago it was clear that he wished to have his conviction quashed, pursuant to s.2 of the Act of 1993, and also, to have the conviction, quite separately, declared to have been a miscarriage of justice, pursuant to s.9 of the same Act, and furthermore to be awarded the costs of the proceedings. The significance of this is that when the Director declined Mr. Justice Hardiman’s offer to step aside from the case, even if it were not legally necessary for him to do so, the State was on notice that both the application for costs and the s.9 application were outstanding. The Director emphasises that he was not aware that the application for costs would be on a solicitor and client basis but it is normally quite impossible to formulate such an application until after the judgment in the case has been considered. Even after this, the prosecution’s jurisdictional point had to be considered.
The nature of the application.
On the hearing of the s.2 application, Ms. Walley S.C. and her junior counsel were led by Mr. Brendan Grehan S.C. who thus became leading counsel for the Director.
The formulation of the recusal application thus devolved upon him, a task he accomplished with no little vigour, subtlety and finesse.
Firstly, Mr. Grehan emphasised that his application for recusal related to the costs application and the s.9 application. It did not extend to the (already completed) s.2 application. This was a wise concession on Mr. Grehan’s part since there could be no conceivable basis on which a judge could be disqualified, at the suit of a party who had been unsuccessful in a significant stage of litigation, when that party had already declined an unambiguous offer by the judge to withdraw if that were desired by either party. But it gives rise to the very odd situation where it is conceded that the judge could not be disqualified in respect of the s.2 application, but is nevertheless disqualified in respect of the subsequent parts of the same application initiated in the year 2000. This is a radical inconsistency.
Mr. Grehan next made it clear that the application was made on the basis of objective or perceptual bias, and not on the basis of actual bias. He then said that his application was grounded on two separate grounds:
(a) That the judge had been “the advocate of choice” of the applicant’s solicitor, as manifested in the transmission to him of a brief in the case and
(b) That the judge had been a member of the Court which delivered the judgment in s.2 application.
The way in which these matters are said to be relevant is as follows:
It was claimed that the applicant’s solicitor and counsel had a financial interest in the outcome of the costs application because the costs recoverable on a solicitor and client basis were much more ample than those which would be recovered on a party and party basis. Having regard to the fact the judge had been the “advocate of choice” of the solicitor it was felt that he might therefore be seen to favour a more, rather than a less, satisfactory outcome from the solicitor’s point of view. Needless to say, the quantification of costs awarded is not a matter for the Court, but for a Taxing Master.
This argument, apart from anything else, appears to ignore the status of an award of costs as a total or partial indemnity to the successful party in relation to his obligations to his own lawyers. If this is the entire nature of an award of costs then clearly no benefit can accrue to solicitor or counsel, but only to the client himself from such an award. In discussing this argument Mr. Grehan said that his side had no reason to believe that Mr. Conmey was a man of means. If this was intended as a suggestion that Mr. Conmey’s lawyers would receive no remuneration other than that which they recovered from the State, then it was obliquely expressed and was wholly unsupported by evidence. However, I would not wish to dismiss the application on that ground, if it were found to have any merits.
Legal Authorities.
The modern locus classicus of Irish jurisprudence on the topics of bias, estoppel and waiver is Bula Ltd. and Ors. v. Tara Mines Ltd. and Ors. [2000] 4 IR 412.
The background to this case was that Bula appealed to the Supreme Court against a High Court Order. The appeal was heard and dismissed by Hamilton C.J., Barrington and Keane JJ. Subsequently Bula applied by Notice of Motion to have the judgment of the Supreme Court set aside on grounds of objective bias. They alleged that Barrington J. and Keane J. (as he then was) had links with Tara, which were of such a character as to give rise to a perception of bias. Prior to his appointment to the Bench Barrington J. had acted for a connected entity in two sets of proceedings relating, in one case, to Tara. He had also advised on legislative reform in the area of mineral mining. He had acted against the Tara respondents in a case and had prepared two sets of advices for Tara. Keane C.J. (as he had become) had, prior to his appointment to the Bench, advised Tara on an issue of exempted development and had undertaken to appear for it in an anticipated hearing before An Bord Pleanála but in the end he did not do so since he was appointed to the Bench. Bula had been aware of some of these links prior to the hearing of the appeal and having this knowledge had not objected to Barrington and Keane JJ hearing the appeal.
It will be observed that Keane C.J. had actually advised the opposing party and had agreed to act for it. This is in contrast with the present case where the judge whose recusal is sought had given no advice and had received only an incomplete brief, of which he retains no memory at all.
A number of relevant findings were made in the judgment of Denham J. in the Supreme Court on the motion to set aside the order of the Court for bias.
At para. 7.2 of the judgment she held:
“In argument before this Court the applicants have been compelled to describe this aspect of Mr. Barrington S.C.’s involvement with the first respondent as ‘minor’ and have stated that, on its own, it provided no proper basis for objecting to Barrington J. That being so it follows that the applicants acknowledge that the fact that an appellate judge has previously advised a party to an appeal before him, in relation to a dispute that was an issue in the Court below, but was not an issue on appeal, is not a ground for disqualification. It is respectfully submitted that this acknowledgement makes unreal the applicants other complaints and totally undermines their reliance on a concept such as ‘historically animus’, ‘kindred causes’, ‘special relationships’ and ‘special associations’ and other such formulae repeated so frequently by the applicants.”
The general rule.
Bula v. Tara is the source of the general rule in our law that in order to disqualify a judge it is not necessary to show that there would be a real danger of actual bias, but only that an ordinary reasonable member of the public, who knew all relevant facts, would have a reasonable apprehension that the applicants would not have a fair hearing before an impartial judge.
The Courts specifically rejected the view that disqualification arose from having acted as for one party or another as a barrister. The reason for this is the nature of an independent Bar: a significant section of the judgment between pages 442 and 446 is so headed. There it is said:
“A barrister in his or her work is an independent sole practitioner. He or she is a legal adviser and advocate. The professional services rendered by the barrister do not establish an affiliation to the client or a sharing of kindred causes or objectives as submitted on behalf of the applicants. The work does not espouse him or her to the litigant’s cause, no matter how controversial emotional or hostile the litigation; nor does he or she espouse the ambitions of the client, as [was] submitted by the applicants.
The work done by barristers is of the nature of a professional service. By advising or advocating for a client, a barrister does not become ‘associated’ with a client’s cause. Barristers operate what is colloquially called ‘the cab rank’ principle. Having completed a case they move on to the next client - who may have been on the opposing side of the previous case. Thus, for example, having acted for the Director of Public Prosecutions in prosecuting a case, counsel may the next day defend the defendant in a case prosecuted by the Director, or, having completed a persona injuries case on behalf of a plaintiff in which case the defendant was covered by an insurance company, counsel may then represent a defendant covered by the insurance company. Indeed, a person who has been on the receiving end of a barrister’s skill (whether by advices or cross-examination or whatever) often decides that the next time he or she will need counsel he or she will ask his or her solicitor to seek out that particular barrister. Choice of counsel is an important matter.
The barrister is a source of legal advice and services and is approached, not by clients, but by solicitors for professional expertise. In giving that expertise barristers do not become ‘associated’ or establish ‘a prior special relationship to the client’.
If the fact of actually acting for a person is not in itself a disqualifying factor, then, a fortiori merely being requested to act for him or agreeing to do so, cannot be a disqualifying factor. If acting for a litigant does not establish a special relationship with a person whose liberty or property is actually at issue, it is impossible to see how it establishes such a relationship with the solicitor who offers a brief. There is no doubt, as Denham J. said, that additional factors such as “a long, recent and varied connection” may disqualify a judge, but there is no question of that here where the judge in question had no previous connection whatever with the solicitors and the single letter which passed between them is about thirteen years in the past. The onus is on a party seeking to disqualify a judge to establish “a cogent and rational link between the association and its capacity to influence the decision to be made in a particular case”.
It is important to be aware that the nature of the independent Bar and the consequences which flow from the existence of an independent Bar in terms of non-disqualification is not peculiar to Ireland but exists wherever there is an independent Bar. This was asserted, in Australia, in a case cited by Denham J. in Bula where it was held that:
“In accepting a brief to act for a client… the barrister does not become part of, or identified with, the client and has no direct or indirect financial interest in the outcome of the case.
Waiver.
What is the position if a litigant, being aware of a past connection (however nebulous) between the judge and the other party does nothing about it and actually declines an offer by the judge to withdraw? Can such a litigant, having received an unfavourable ruling in a part of multi-part litigation then seek to disqualify the judge from the later parts?
In Corrigan v. Irish Land Commission [1977] IR 317, two lay Commissioners of the Land Commission were involved in the preparation of a provisional list of lands to be acquired by the Commission. The land owner was entitled to object and the objection was to be heard by the lay Commissioners. Dr. Corrigan’s objection to a provisional list affecting his land was heard and disallowed by the same two lay Commissioners who had certified that the appellant’s land was required for a statutory purpose. Dr. Corrigan, who was represented by solicitor and counsel at the hearing of the objection took no objection to the membership of the Tribunal. He appealed from the dismissal of his appeal to the Appeal Tribunal. In that Tribunal he changed his counsel from those who had represented him before the Commissioners, abandoned his notified grounds of appeal and confined himself to the point that the Commissioners should not have heard the objections when they had signed the provisional list.
Dr. Corrigan was held disentitled by his conduct at the hearing of objections to disqualify the Commissioners at the Appeal Tribunal.
In so holding, Henchy J. said:
“I consider it to be settled law that, whatever, may be the effect of a complaining party’s conduct after the impugned decision has been given, if, with full knowledge of the facts alleged to constitute disqualification of a member of the Tribunal, he expressly or by implication acquiesces at the time in that member taking part in the hearing and in the decision, he will be held to have waived the objection on the ground of disqualification which he might otherwise have had. The rule was bluntly and pithily expressed as follows in R. v. Cheltenham Commissioners (1841) 1 QB 467:
‘… if all parties know that he [a magistrate] is interested, and make no objection, at any rate if there by anything like a consent… or if he takes apart upon being desired to do so by all parties, in all these cases it would be monstrous to say that the presence of the Magistrate vitiated the proceedings’.”
Henchy J. referred to ample Irish authority on this point and quoted with approval from the Second Edition of Spencer Bower on Estoppel by Representation:
“So, too, where a party litigant, being in a position to object that the matter in difference is outside the local pecuniary or other limits of jurisdiction of the Tribunal, deliberately elects to waive the objection, and to proceed to the end as if no objection existed, in the expectation of obtaining a decision in his favour, he cannot be allowed, when this expectation is not realised, to set up that the Tribunal had no jurisdiction over the cause or parties… the like estoppel is raised by a party’s attendance at the hearing and taking part in the proceedings with raising any objection to the personal disqualification of a member of the Tribunal. (Emphasis supplied)
In the same case, Griffin J., citing Lord O’Brien LCJ in
R (Taverner) v. Justices of Tyrone [1909] 2 IR 763, emphasised the need for evidence as opposed to mere assertion or inference when bias is alleged. O’Brien LCJ said, in the case cited:
“‘bias’ I understand to mean a real likelihood of an operative prejudice, whether conscious or unconscious. There must, in my opinion be reasonable evidence to satisfy us that there was a real likelihood of bias”.
Similarly, in the very well known international text book, de Smith Judicial Review of Administrative Action, the learned author says under the title “Waiver” at para. 12 - 036:
“A party may waive his objection to a decision maker who would otherwise be disqualified on the ground of bias. Objection is generally deemed to have been waived if the party or his legal representative knew of the disqualification and acquiesced in the proceedings by failing to take objection at the earliest practicable opportunity”.
This general rule does not apply in three situations: if the disqualified adjudicator failed to make a disclosure of his interests; or if the challenging party was prevented by the surprise from taking the objection at the appropriate time; or if he was unrepresented by counsel and did not know of his right to object. It is manifest that none of these exceptions apply in the present case.
There is, however, little authority about the situation that will arise where a party acquiesces in an adjudicator sitting and hearing a case and later in the same proceedings (for example, on appeal) seeks to take the point. In Bloomer & Ors. v. The Incorporated Law Society of Ireland, a High Court judge was hearing an appeal from a decision of the Taxing Master. Before embarking on the hearing of the appeal he pointed out that his wife had been counsel for the opponent of the party challenging the taxation in the underlying litigation which gave rise to the Bill of Costs. The Judge specifically asked whether either party objected to his trying the case on that account. He was happy to transfer the case to another judge. He was assured by all parties that no such objection arose. On appeal however counsel for the appellant sought to take an objection based on the judge’s alleged disqualification. McGuinness J. said at p.205 of the Report:
“In the circumstances, the making of such totally unfounded allegations against the trial judge must attract the strongest disapproval from this Court. The situations rendered even more distasteful by the fact that, while counsel for the plaintiff in this Court accepted the first-named defendant’s account of what had transpired in the Court below, he went on to argue that his clients were not bound by their then senior counsel’s failure to object to the trial judge. In the circumstances where the trial judge had expressly asked counsel if there was any objection to his trying the case, and where counsel for the plaintiffs indicated that no such objection existed, it was extraordinary conduct on behalf of counsel for the plaintiff to raise the matter on the appeal. There is no question of the trial judge being compromised.”
Accordingly, the first ground for recusal fails. It is in fact unstatable, since the connection between the judge and the solicitor is much less than between the judges and the parties in Bula. No rational and reasonable person, fully aware of the facts, could reasonably apprehend partiality.
At the outset of this issue, the judge offered to withdraw and was not taken up on it. Mr. Grehan declined to say if the Director at that time would actually have preferred the judge not to sit. If so, counsel did not say so. Why would that be unless the Director was then quite happy to proceed? That question was not addressed.
No party - and least of all one who is herself a professional lawyer - can be allowed to decline a judge’s offer to step aside, fight an issue tooth and nail for eight days and only then, having lost that issue, decide to take exception to the judge. It requires no imagination to know precisely what the Director would say if the boot were on the other foot - if Mr. Conmey had lost the s.2 application and then tried to set aside that result on the basis that the judge had sometimes acted for the D.P.P. while in practice.
There is no conceivable basis on which a judge could be qualified to hear one stage of a case (here, the s.2 application) but disqualified from hearing the costs application about that stage, or the s.9 application. The judge is either disqualified or he is not.
The objection based on the judgment of the Court on the s.2 application can be more briefly dismissed. That judgment is available for all to read. Mr. Grehan did not point to anything in it which represents a pre-judgment of the s.9 issue. It deals with one only of the ten items alleged to constitute new or newly discovered evidence. It does not espouse the applicant’s version of any disputed factual issue. I refrain from any further discussion of the judgment, which speaks for itself and is, of course, the judgment of the Court not an individual.
Conclusion.
The recusal Application will be dismissed.
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