Supreme Court of Ireland Decisions

Between/

“The [appellant] has argued that as a result of the delay which has occurred in this case the State is in violation of its obligations under Article 6 of the Convention which provides, inter alia, as follows:

‘In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’

It is possible that the State could be found to have acted in contravention of Article 6 due to the duration of the Tribunal and the consequent unavailability of the main witness. However, violation of Article 6 does not ipso facto result in a prohibition of the trial in question. In TH v DPP [2006] 3 IR 520 the applicant sought to prohibit his trial on a charge of sexual assault by relying on the finding of the Court of Human Rights in Barry v Ireland. Fennelly J. speaking for a unanimous Supreme Court addressed this in the following passage:-

‘It is important to clear up any misunderstanding concerning the import of such decisions of the Court of Human Rights. The Court does not and did not, in that case, hold that the prosecution had to be stopped. It would be most surprising if a judgment of that Court holding that the prosecuting authorities were “partially or completely responsible” for certain periods of delay had the automatic consequence that a prosecution had to be halted. .. the decision of the Court leads to a monetary award. It has no consequence for the pending prosecution.’

I am satisfied that while there has been an inordinate delay in these criminal proceedings, that delay is excusable by virtue of the difficulty in locating the [appellant] and the unavailability of the key witness.”

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

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

(ii) The learned trial judge erred in law and/or fact in considering documents over which the DPP had asserted privilege, despite the objection of the appellant, notwithstanding the real and serious risk that justice would not be seen to be done when the finding by the learned trial judge in refusing the appellant inspection of them was that the documents considered were seriously prejudicial to the appellant.

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

(iv) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to relief prohibiting and/or staying the DPP from proceeding with the trial of the appellant in the Dublin Circuit Criminal Court on the 16 charges set forth in a Statement of Charges dated 28th October 2010 in proceedings entitled “The Director of Public Prosecutions v James Kennedy, Sean Gilbride, Donal Lydon, Colm McGrath, Liam Cosgrave, Tony Fox.”

(v) The learned trial judge erred in law and/or in fact in holding that the appellant was not entitled to damages pursuant to section 3 of the European Convention on Human Rights Act 2003.

(vi) The learned trial judge erred in law and/or fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not of itself sufficient to jeopardise the appellant’s right to a trial in due course of law and/or his right to a fair trial and/or his right to a trial with reasonable expedition.

(vii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute prosecutorial delay.

(viii) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not deliberate on the part of the DPP.

(ix) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was not such as to constitute blameworthy prosecutorial delay.

(x) The learned trial judge erred in law and/or in fact in holding that the delay in prosecution of the 16 charges set forth in the Statement of Charges was attributable, in whole or in part, to the appellant’s conduct.

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

(xii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the DPP directed that the appellant be charged without any contact having been made with the appellant.

(xiii) The learned trial judge erred in law and/or in fact in holding that contact with the appellant was required to progress his file, when the evidence did not disclose any attempt by the DPP or the investigating authorities to locate or contact the appellant with regard to the allegations the subject matter of the instant proceedings.

(xiv) The learned trial judge erred in law and/or in fact in holding that alleged difficulty in contacting the appellant excused the inordinate delay in his prosecution, when the evidence disclosed that the investigating authorities were in possession of contact information for the appellant through which no efforts were made to locate or contact the appellant.

(xv) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work.

(xvi) The learned trial judge erred in law and/or in fact in holding that the prosecution of the appellant could not proceed until the Tribunal had concluded its work when (a) Liam Cosgrave and Frank Dunlop have been so prosecuted and/or (b) when the said Tribunal has yet to conclude its work.

(xvii) The learned trial judge erred in law and/or in fact in holding that Frank Dunlop was not available as a witness in the prosecution of the appellant until the proceedings of the Tribunal and/or the prosecution of Frank Dunlop were concluded.

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

(xix) The learned trial judge erred in law and/or in fact in failing to hold that the death of material witnesses was such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xx) The learned trial judge erred in law and/or in fact in holding that the unavailability of material documents was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxi) The learned trial judge erred in law and/or in fact in holding that the diminished recollection of witnesses including the appellant attributable to the efflux of time was not such as to severely prejudice the appellant’s ability to properly defend the charges against him.

(xxii) The learned trial judge erred in law and/or in fact in holding that the long period that has elapsed from the date of commission of the alleged offences did not give rise to presumptive prejudice to the appellant.

(xxiii) The learned trial judge erred in law and/or in fact in holding that the delay in the prosecution of the offences alleged against the appellant has not caused excessive stress and anxiety to him.

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

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

(a) Disclosure;

(b) The right to an expeditious trial; and

(c) The European Convention on Human Rights.

21. The issue arose because after the papers were filed in the judicial review proceedings in the High Court, including affidavits by members of An Garda Síochána, an application for discovery was made by the appellant seeking documents, including correspondence referred to but not exhibited in the affidavits of Detective Garda Martin Harrington and Detective Sergeant Michael V. Byrne.

22. The application for discovery was heard by Hedigan J., who gave judgment on the 12th July, 2011. Most of the discovery sought was refused, but the learned High Court judge ordered the DPP to make discovery of the correspondence referred to but not exhibited in paragraph 92 of the affidavit of Detective Garda Martin Harrington of the 2nd June, 2011, and paragraph 15 of the affidavit of Detective Sergeant Michael V. Byrne of the 1st June, 2011.

23. Privilege over this correspondence was claimed by the DPP, on the basis of legal professional privilege and/or public interest privilege. The appellant obtained leave to issue a motion seeking inspection of the documents, and this motion was considered and ruled upon by Hedigan J. before the commencement of the application for judicial review.

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

“Just to let the Court know the running order. There is an issue on disclosure which we request the Court perhaps to deal with first and then our judicial review application itself to proceed, because part of our issues is in that context compliance with the order and that question of disclosure.”

25. During the hearing of the motion on privilege, counsel for the DPP suggested that the learned High Court judge view the documents so that he could decide whether they should be produced for inspection. The appellant objected to the procedure. However, the learned High Court judge viewed the documents.

26. The learned High Court judge then ruled on the application. He refused the application on the basis that the public interest in maintaining the confidentiality of the documents outweighed the interest of the appellant.

27. It was submitted on behalf of the appellant that the procedure adopted by the learned High Court judge was unfair to the appellant. It was submitted that the practice generally adopted, when a claim of privilege is challenged, is that the documents are examined by a judge other than the judge hearing the substantive proceedings. It was submitted that justice should not only be done but be seen to be done and that in this case the learned trial judge had examined the documents, which he held to be inadmissible. Also, during the case the learned trial judge had referred to some of the documents stating that they were “highly prejudicial” to the appellant.

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

(a) a question of law, arising on the submissions of counsel for the appellant on the decision in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24, referred to as “The Edwards Case”; and

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

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

“MR. O’BRAONÁIN: There is an issue as to whether or not the Court should inspect the documents at this stage, and the issue is this: Certainly in the case – Mr. Hayden very helpfully drew my attention to it – in the case of Edwards and Lewis in the United Kingdom, which is a decision of the European Court of Human Rights. It is reported at 2005 40 EHRR page 24. I am referring to Mr. Hollander’s text on documentary evidence. The Court held that the procedure that had been adopted in that case was inadequate to protect the Defendants. And, in my respectful submission, the procedure that is being suggested here suffers from the same inadequacy, and it is this: There the “Defendants complained that they had been entrapped into committing the offence by undercover police officers or informers and asked the trial judge to consider whether certain prosecution evidence should be excluded for that reason.

”The Defendants were denied access to the undisclosed evidence. The judge, who rejected the Defence submissions, had himself seen the undisclosed Prosecution evidence and ruled it irrelevant. The Court was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the Defence were not permitted to see. The European Court of Human Rights held that the procedure deployed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

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

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

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

“MR. JUSTICE HEDIGAN: In these proceedings on the 12th of July, 2011, I made an Order of Discovery pursuant to Order 31 of the Rules of the Superior Courts in respect of the correspondence referred to in paragraph 92 of Garda Martin Harrington’s affidavit and paragraph 15 of Garda Michael Byrne’s affidavit.

Owing to the shortness of time, I stated in that decision that any claim to privilege over this documentation might be decided when the case came on for hearing.

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

I have inspected the documentation, as I believe that a judge hearing such an application as this ought to satisfy himself that there is nothing contained therein which privilege duly considered ought in the interests of justice be inspected by the [appellant], even on certain terms, as to preserving confidentiality.

On the basis of this inspection, it is clear the correspondence referred to by Garda Harrington involves letters between the DPP and investigating Gardaí as to the ongoing investigation and details of a confidential nature of interviews with Frank Dunlop. I can find nothing in these letters which advances or diminishes the case of either side. They are exactly as described in paragraph 92. There is an important public interest in the confidentiality of correspondence of this nature. A frank assessment of the strength of a case and of the credibility of the proposed witnesses is contained therein inevitably. That is so in this case. This public interest might well be outweighed by the [appellant’s] right to a fair trial of the issue before the Court. However, I could find nothing in my inspection of this correspondence that could outweigh the public interest in their confidentiality. I refuse inspection of this category of documentation.

As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is very tangential to the charges faced by the [appellant] and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the [appellant]. Their production, in my opinion, could only damage the [appellant’s] case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries. It must be an important aspect of the international fight against crime of all nature, including corruption. As there is no interest of the [appellant] that I can find to balance against the public interest, I will refuse inspection of this category also.

Needless to say, as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.

That is the decision.”

Mr. Lewis was arrested in a separate incident by uniformed police officers in a pub car park after he had shown two undercover police officers some counterfeit bank notes. More counterfeit notes were found in his house. He pleaded guilty to three charges of possession of counterfeit notes with the intention of delivering them to another. He was sentenced to four and a half years’ imprisonment.

In both cases an application by the prosecution to withhold material evidence had been granted on the ground that it would not assist the defence and that there were genuine public interest reasons for not disclosing it. The judge also refused a request to exclude the evidence of the undercover officers.

In its Chamber judgment of the 22nd July, 2003, the European Court of Human Rights, referred to as “the ECtHR”, held unanimously that there had been a violation of Article 6.1 and that the finding of a violation constituted in itself just satisfaction for any non-pecuniary damages sustained. In finding this violation, the Court stated that this did not entail that the applicants were wrongly convicted.

33. Thus in the Edwards case the ECtHR held that the procedure adopted in that case was inadequate to protect the defendants. The facts of that case included that it was a criminal trial and that the defendants had claimed that they had been entrapped into committing the offences by undercover police officers. An issue arose as to whether certain documents should be disclosed. The trial judge saw the documents and denied the defendants access to the documents on the grounds that they were irrelevant, would not assist the defence, and that there were genuine public interest reasons for not disclosing the material.

34. As was pointed out in Hollander, Documentary Evidence [10th Ed., Sweet & Maxwell, Thompson Reuters, 2009] para 18-11, p. 395:-

“The ECtHR was concerned that the judge might have been influenced in his subsequent rulings on the voir dire to the effect that no entrapment had occurred by the evidence that he had seen but which the defence were not permitted to see. The ECtHR held that the procedure employed to determine the issues of disclosure of evidence and entrapment did not incorporate adequate safeguards to protect the interests of the accused.”

“Whilst granting a declaration of violation of Art. 6 rights, the ECtHR expressly found that the violation of Art. 6 rights did not entail that the defendants were wrongly convicted.”

(b) Objective bias
36. The second aspect of the submission on behalf of the appellant in relation to the issue of disclosure was a claim of objective bias. Counsel for the appellant submitted, in essence, that the learned trial judge should not have proceeded to hear the application for judicial review on the grounds of objective bias, that he should have recused himself.

37. Counsel argued that the application made by counsel in relation to the Edwards case covered this aspect of the law also, covered an application in relation to objective bias, and that the learned trial judge ought to have recused himself.

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

39. The learned High Court judge’s ruling, in relation to the request for the documents relating to the Isle of Man authorities, stated that it was “very tangential” to the charges faced by the appellant. Obviously documents that are very tangential are of at least questionable relevance.

40. The learned trial judge continued and stated:-

“Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the applicant. Their production, in my opinion, could only damage the applicant’s case herein.”

41. The learned trial judge then stated:-

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

42. As the application before the High Court on the issue of disclosure drew to a close, there were exchanges on the issue of costs, and the High Court ordered “no order as to costs” in these circumstances on that application. Counsel for the State indicated that he was obliged.

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

“Very good. Then we will continue.”

“Judge, I’m dealing with the substantive application, and I mean, the Court has between the Discovery and, obviously, the associated case and the application relating to Discovery a fair idea and background as to what is at issue. And subject to the Court, I will go through the affidavits in general form, but unless the Court wishes and My Friend …”

Law on objective bias

No law as to objective bias was opened to the High Court. There was no reference to cases such as Dublin Wellwoman Centre Ltd v. Ireland [1995] 1 I.L.R.M. 408; Bula Ltd. v. Tara Mines Ltd (No. 6.) 4 I.R. 412, and Kenny v. Trinity College Dublin [2008] 2 l.R. 40. Neither the general principles nor the case-law were opened to the High Court.

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

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

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

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

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

46. Even if the issue of objective bias had been raised and determined in the High Court, which it was not, I am satisfied that, applying the test as set down in our case-law, there was no objective bias in this case.

47. Consequently, I am satisfied that the appellant has not established a basis upon which his appeal could succeed on the first issue, i.e. the issue of disclosure, and I would dismiss this aspect of the appeal.

Right to an expeditious trial
48. I shall now consider the second issue on this appeal. Under this rubric the appellant has raised: (i) the right to an expeditious trial; (ii) prosecutorial delay; (iii) stress and anxiety.

49. Counsel for the appellant raised the issue of delay in prosecuting the appellant and referred to several articles of the Constitution. The Constitution does not expressly state that there is a right to an expeditious trial, but counsel referred the Court to Article 38.1 of the Constitution which provides:-

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

“The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.

50. A personal right to a trial with reasonable expedition has been recognised by this Court. In State (O’Connell) v. Fawsitt [1986] I.R. 362, Finlay C.J. at p. 378, with whom Walsh J.,Henchy J., Griffin J., and McCarthy J. agreed, stated that:

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

“I am satisfied that if a person’s trial has been excessively delayed so as to prejudice his chance of obtaining a fair trial, then the appropriate remedy by which the constitutional rights of such an individual can be defended and protected is by an order of prohibition.

[…]

A person charged with an indictable offence and whose chances of a fair trial have been prejudiced by excessive delay should not be put to the risk of being arraigned and pleading before a jury.”

“It must be acknowledged that a reading of some of the Irish authorities in this area might suggest that the right to a reasonably expeditious trial is recognised and protected by the law solely in order to ensure the fairness of the trial process itself. As it is sometimes put, it is not the delay, but the effects of the delay, which are crucial. Witnesses may die or disappear or, where they are available, their memories of events in the past may be clouded and unreliable. The defendant may experience difficulty in establishing an alibi because of vagueness and imprecision as to when events are said to have occurred.

That such consequences may flow from a failure, however caused, to bring the accused promptly to trial is obvious. But it does not follow that impairment of his ability to defend himself is a necessary precondition to the successful invocation by him of the discrete constitutional right to a speedy trial. Where there has been significant and culpable delay to which he has not contributed in any way, the result may be either actual prejudice (the loss of otherwise available evidence) or presumptive prejudice (the difficulties necessarily inherent in giving evidence after a lengthy period) which may affect his ability to defend himself and, hence, fatally compromise the fairness of the trial. That, however, may not be the only consequence for the accused of significant and culpable delay to which he has not contributed.

The first major consequence may be the loss of his liberty while the trial is pending. That does not arise in this case and, where it does arise, is capable of remedy through the machinery of bail and habeas corpus. The second major consequence is the anxiety and concern of the accused resulting from a significant delay in his being brought to trial.

There are thus three interests of defendants which the right to a speedy trial is intended to protect, the third being the possibility that the defence will be impaired. These were identified by Powell J. in his opinion in the United States Supreme Court decision of Barker v. Wingo (1972) 407 U.S. 514 in a passage which was approved of in this court in Director of Public Prosecutions v. Byrne [1994] 2 I.R. 236, having previously been endorsed by the Judicial Committee of the Privy Council in Bell v. D.P.P. [1985] AC 937 and by Murphy J. in The State (O’Connell) v. Fawsitt [1986] I.R. 362.”

(i) to prevent oppressive pretrial incarceration;

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

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

Pre-trial incarceration
54. As the appellant has been on bail there is no pre-trial incarceration issue in this case. Thus, this aspect of an infringement of the right does not arise.

Stress and anxiety
55. The appellant did raise the issue of stress and anxiety. However, no evidence was before the Court to establish this ground. As has been stated previously, it is necessary to provide an evidential basis to establish this ground so as to prohibit the trial.

56. There is well established jurisprudence that such a claim may not succeed where an appellant is suffering from normal stress and anxiety from a pending prosecution. Evidence is required to ground any exercise of discretion by the Court in favour of an applicant: P.M. v. Malone [2002] 2 IR 560. In this case the appellant has laid no such foundation, and hence may not succeed on this submission.

57. Further, even if evidence was before the Court as to specific stress and anxiety, the Court is then required to engage in a balancing process between an accused’s right to be protected from such stress and anxiety and the public’s interest in the prosecution and conviction of those guilty of criminal offences.

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

Delay – impairment of trial?
59. Counsel for the appellant submitted that there had been delay in the prosecution of the appellant such that the prosecution should be prohibited.

Prosecutorial Delay
60. There has been delay in bringing these prosecutions. However, that is not the test, as this is a criminal trial, the issue is that of prosecutorial delay. Thus, it is necessary to analyse the prosecutorial delay and all the circumstances of the case.

61. The chronology of the investigation is set out in the affidavits of Detective Garda Harrington sworn on the 2nd June, 2011, and the 19th July, 2011, and the affidavit of Detective Sergeant Michael V. Byrne sworn on the 1st June, 2011. It was an extensive investigation. Many people had to be interviewed regarding the serious allegations which had been made.

62. While there was some evidence of difficulty in contacting the appellant, who seeks to maintain a residence outside the State, and the learned High Court judge gave some weight to that factor, the core reason for the delay in the prosecution of the appellant appears to have been the decision of the DPP in relation to Frank Dunlop. It is apparent that the DPP decided not to prosecute the appellant until a key witness in any trial of the appellant, Frank Dunlop, had been prosecuted and decision of conviction or acquittal obtained.

63. I am satisfied that it was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop on corruption charges before prosecuting the appellant. It was reasonable for the DPP to await the conclusion of the trial of Frank Dunlop before calling him as a witness in a prosecution against the appellant. For, amongst other factors, if Frank Dunlop had been called as a prosecution witness, in circumstances where he had not already been convicted and sentenced, there could be a perception that he was simply giving evidence to secure some benefit for himself and his status as a witness could have been undermined.

64. I reach the same conclusions as in Cosgrave v. Director of Public Prosecutions [2012] IESC 24, where I stated in paragraph 59:-

“There has been delay in the prosecution of the current charges on corruption. However, the reason for the delay, the fact that the DPP waited until Frank Dunlop was prosecuted and convicted before he brought these charges, grounded on the evidence of Frank Dunlop, is reasonable. Indeed, if this prosecution had been brought prior to the prosecution of Frank Dunlop it would have left the prosecution open to challenge as to the status of Frank Dunlop as a witness. In fact, in this appeal the issue of delay is subsumed in the issue of abuse of process, upon which I have reached a decision as stated previously.

However, it is also a factor, which it is not necessary to weigh in the balance in this case, that it is not the appellant’s interests only which have to be considered. It is necessary to balance the appellant’s right to reasonable expedition in the prosecution of the charges with the community’s right to have the criminal offences prosecuted. In cases such as this, where there are charges of corruption of public officials, there is a very significant public interest in permitting such allegations to proceed to trial.”

65. I am satisfied that while there was delay, the reasons given by the DPP for the delay, including the unavailability of the key witness, Frank Dunlop, to give evidence, are reasonable.

66. Consequently, I do not find that there is blameworthy prosecutorial delay in this case. Therefore, there is no need to take any further step to analyse and balance conflicting interests on this aspect of the case as blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with: P.T. v. Director of Public Prosecutions [2007] 1 I.R. 701; D. v. Director of Public Prosecutions [1994] 2 I.R. 465; P.M. v. Malone [2002] 2 IR 560; P.M. v. Director of Public Prosecutions [2006] IESC 22, [2006] 3 IR 172.

67. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP, a further analysis would be required to determine if there had been consequential prejudice to the appellant. While it is not necessary to take this further step, in the circumstances, I do address the matter.

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

69. Counsel on behalf of the appellant has submitted that his trial would be prejudiced by the deaths of a number of potential witnesses, being (i) Councillor Sean Gilbride on the 1st January, 2011, who was also charged with the appellant; (ii) Councillor Frank Smyth on the 24th May, 2003, (iii) Philip Monahan on the 3rd August, 2003; (iv) Dr. Brian Meehan on the 13th June, 2004 and (v) Liam Lawlor on the 22nd October, 2005. Other potential witnesses had died prior to Frank Dunlop’s evidence to the Tribunal and the beginning of the criminal investigation arising as a result; these were Councillor Tom Hand who died in 1996; Fintan Gunne on the 9th October, 1997; Councillor Jack Larkin in May 1998 and Councillor Cyril Gallagher in March, 2000.

70. In written submissions the appellant referred to nine potential witnesses who have died and who might have corroborated his version of events surrounding the charges against him. However, during the Supreme Court hearing, questions from the Court to counsel for the appellant highlighted that four of these witnesses had died before the allegations of Mr. Dunlop were aired in the Tribunal and the Garda investigation into offences of corruption began. Also, O’Donnell J. pointed out the inconsistency between the appellant’s written submissions and his affidavit regarding the death of Mr. Fintan Gunne, who died on the 9th October, 1997, as opposed to 2007, which was the date referred to in the written submissions. Thus, it was open to the appellant to say that five witnesses have died since the Garda investigation began.

71. However, having heard the submissions on this issue, I am not satisfied that the prejudice alleged is such as to prohibit a trial, as the deaths of witnesses referred to relates to evidence, the essence of which can be obtained from other sources. In fact, when this matter was addressed during the hearing it became clear that there was insufficient engagement with the facts so as to show that there was a real risk of an unfair trial. Indeed the argument fell apart and the prejudice was not established.

72. This case is unlike a situation where many years after an event, without prior notice, an accused is charged with an offence from many years ago. The matters raised in this trial have been known to the appellant throughout the intervening years as they have been raised in other fora. Therefore, it is not a case where issues may have lain dormant for many years and then unexpectedly been raised out of the blue.

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

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

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

75. Counsel for the appellant informed this Court that he had not made and did not make a claim for damages. He stated that no order for damages was sought in the High Court nor was it advanced in this Court.

76. Therefore, the issue of damages pursuant to s. 3 of the European Convention on Human Rights Act, 2003, was not, and could not be, an issue before this Court. Clearly, a decision was taken by and on behalf of the appellant not to pursue this remedy. In other words, the claim for damages was abandoned. Therefore no such issue falls to be determined in this Court

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

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

“(1) Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.

(2) A person who has suffered injury, loss or damage as a result of a contravention of subsection (1), may, if no other remedy in damages is available, institute proceedings to recover damages in respect of the contravention in the High Court (or, subject to subsection (3), in the Circuit Court) and the Court may award to the person such damages (if any) as it considers appropriate.”

80. The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under Irish jurisprudence. I have had no case open to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited. Consequently, as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not apparently under the ECHR, consequently this claim has been determined on Irish law.

81. The fundamental facts in this case are that the appellant was charged with 16 charges on the 22nd October, 2010, the Book of Evidence was served on the 28th October, 2010, and the trial date was set for the 5th October, 2011. However, that trial date had to be vacated as the appellant brought these proceedings by way of judicial review, which he initiated on the 7th March, 2011. His application was dismissed by the High Court on the 28th July, 2011, and he exercised his right of appeal to this Court.

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

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

JUDGMENT of Mr. Justice Fennelly delivered the 7^th day of June 2012.

1. I agree that this appeal should be dismissed. I agree with the judgment which has been delivered by the Chief Justice on the issue of delay. The Chief Justice has given an outline of the facts and history of the case which I gratefully adopt. I write separately only on the issue of objective bias.

2. Counsel for the appellant submitted at the hearing that the learned High Court judge should not have heard the case. The reason was that the judge had seen evidence, not disclosed to the parties, which he described as being “highly prejudicial to the applicant.” Consequently, it is argued, he should have recused himself.

3. The procedural background is as follows. The respondent claimed to be entitled to refuse to produce certain documents whose existence was disclosed in the affidavit of discovery sworn on his behalf, based on legal professional privilege and/or public interest privilege. The appellant issued a motion seeking inspection of the documents over which privilege was claimed, to be heard at the commencement of the hearing of the application for judicial review.

4. Counsel for the appellant objected to the proposal made by counsel for the respondent that the learned judge should himself view the documents to enable him to decide whether they should be produced for inspection. The objection was that this would be an unfair procedure because, if the judge were to rule that the appellant was not entitled to see the documents, the judge would himself have seen them and that there was a risk that he could be influenced by his inspection of the documents. The objection was overruled and the learned judge proceeded to view the documents. As the Chief Justice has explained in her judgment the objection was based on the decision of the European Court of Human Rights in Edwards and Lewis v. The United Kingdom (2005) 40 EHRR 24.

5. In the course of making his objection, counsel for the appellant submitted that the rationale of that decision was, not that it would bar the judge from subsequently being the trial judge in ensuing criminal proceedings, but, as counsel specifically objected, it would bar him from being the judge in these very judicial review proceedings. He submitted that, although a judge might inspect documents in private for the purpose of determining a disputed issue of privilege, a different judge should then hear the substantive proceedings.

6. The learned judge decided that he would inspect the documents. He did so and then made the ruling which is the gravamen of the allegation of objective bias. He ruled that the public interest in not disclosing the documents outweighed any interest of the appellant. Indeed he could find nothing in the latter respect which could outweigh that public interest. He then proceeded to make the remarks to which objection has been taken:

“As to the documentation concerning the request to the Isle of Man authorities, it is difficult to see its relevance on my reading of it. It is a very tangential to the charges faced by the Applicant and to the case being made in this application. Moreover, it seems on the basis of the allegations that are dealt with therein in great detail to be highly prejudicial to the Applicant. Their production, in my opinion, could only damage the Applicant’s case herein. There is clearly a public interest in the confidentiality of communication between the prosecution authorities of Ireland and other countries….”

The learned judge added: “as I have ruled this documentation to be privileged and therefore not to be produced, I will not take any of its content into account in my consideration of this application.”

7. Counsel for the appellant then proceeded, without any break in the hearing, to present the application for judicial review. No objection was taken to the above remarks, although it is now contended that they exhibit objective bias on the part of the trial judge. Specifically, it is said that the judge acknowledged having seen documentation which was “highly prejudicial” to the appellant and that it was such that it, in his opinion, “could only damage the Applicant’s case herein.”

8. In response to the appellant’s argument that the learned judge was obliged to recuse himself so as to permit a different judge to hear the application for judicial review, the respondent lays particular emphasis on the absence of any objection to that effect. Counsel relied on the decisions of this Court in State (Byrne) v. Frawley [1978] IR 326; Corrigan v. Irish Land Commission [1977] IR 317). The effect of those decisions is that, by virtue of estoppel or waiver, a person may be precluded from relying on a ground of objection which was not made at the appropriate time.

9. Before considering any authority, I propose to examine the remarks of the trial judge to which objection was taken. It must be remembered that these remarks were made ex tempore and cannot be expected to have the coherence and logic of a written text. The first point to note is that the learned judge found it difficult to see any relevance in the documentation. It was, he said, “tangential” both to the criminal charges the appellant was facing and to the case he was making in the very judicial review application itself. Taken on its own, therefore, the judge's remark that the documents were “highly prejudicial” cannot, in logic, give rise to any prejudice related to the issues in the present case. It is only the ensuing remark that the documentation, if produced, “could only damage the Applicant’s case herein,” which is problematic. It is inconsistent with what went before and a great deal of meaning has to be placed on the single word “herein.”

10. I am prepared to accept, however, that, read literally, this part of the judge's remarks could be read as indicating that what he had seen documentation which would be prejudicial to the appellant. Whether the words meet the standard of the reasonable objective bystander seems, however, to be doubtful. The test has been restated many times in recent years and is usefully encapsulated in the judgment of Denham J (as she then was) in Bula Ltd. v Tara Mines (No. 6) [2000] I.R. 412 at page 441:

“However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person”.

11. Keane C. J. expressed the matter in very similar terms Orange Communications Ltd. v Director of Telecoms (No. 2) [2000] 4 IR 159 at 186 as follows:

“While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom, there is, in the light of the two [Irish] authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.”

12. It is not unfair to test the matter in this case by reference to the reaction of counsel for the appellant, who might be expected to be astute to raise an objection of bias, having regard to the submissions they had made to the learned judge before he gave his ruling. The fact that no objection was made must lead to the inference that it did not appear to counsel listening to the judge’s ruling that he was exhibiting signs of objective bias. The situation is analogous to that which not infrequently presents itself to the Court of Criminal Appeal, where counsel advances an objection which was not made at trial. The court is sceptical as to the merits of any objection of which it did not occur to counsel to make at the time and, in particular, discourages the practice of “trawling” through the transcripts in search of possible grounds of complaint.

13. Corrigan v. Irish Land Commission concerned an objection made by way of appeal on a point of law to the Appeal Tribunal of the Land Commission and thence to this Court to the fact that the two land commissioners who had certified that the land proposed to be acquired was necessary for the relief of congestion also sat as the Lay Commissioners to determine the landowner’s objection. No objection was made to the lay commissioners themselves when they sat to hear the objection. Henchy J considered that two experienced counsel who appeared for the objector had consciously and knowingly accepted the composition of the tribunal. Writing for the majority of this Court (Kenny J dissenting) said, at page 324, that he considered “it to be settled law that………………if [a party] 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.” In the particular case, Henchy J held that any objection to the participation of a particular commissioner had been “knowingly waived by counsel for the appellant when they elected to accept the tribunal as they found it composed o the day of the hearing.”

14. Griffin J, who agreed with Henchy J, cited authority to the effect that a waiver must be intentional and emphasised the need for knowledge of what was being waived. For my part, I would be slow to hold that counsel had knowingly waived a ground of objection available to his or her client in the course of a hearing and without the opportunity for consultation. In Corrigan Henchy J went to great lengths to infer from the status of counsel and their advance knowledge of the composition and procedures of the Land Commission that they had knowingly and deliberately waived any objection by their acquiescence.

15. The present case is, I think different. There can be no suggestion, nor has one been made, that counsel made the sort of calculated decision which arose in Corrigan. On the other hand, I do not think the words used by the learned High Court judge, when considered in context, are capable of being interpreted as exhibiting bias on his part. He said, in effect, that he had seen material which was highly prejudicial to the appellant, but it was tangential to any issue in the judicial review proceedings and he had difficulty in seeing its relevance. The fact that counsel did not object is itself strongly indicative of the fact that no “reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue.”

16. It would be possible to rule against the objection simply on the ground that there is no ground of appeal related to it. The first two grounds of appeal repeat the objection made in the High Court to the judge inspecting documents, despite the objection of the appellant, over which the respondent had asserted privilege. There is no ground expressly covering the distinct complaint that the learned judge had, in the course of his ruling on the first issue, shown bias by saying that he had seen material which was “highly prejudicial” to the appellant. Like Clarke J, I would be slow to rule against the appellant on that ground alone. However, it seems to me that the absence of any such ground of appeal provides further confirmation of the fact that it did not appear to the parties at the time that there was any ground for asserting objective bias.

17. I have had the opportunity of reading in draft the judgment which Clarke J is about to deliver. I full agree with his treatment of the procedural issue of examination of documents by a trial judge of documents over which privilege is claimed. I also agree with his treatment of the issue of delay considered in the context of the European Convention of Human Rights. I would prefer to reserve for another occasion consideration of the correct burden to be imposed on an application for prohibition of a criminal trial on the ground of delay generally. For the present case, the test of a real risk of an unfair trial suffices.

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 EHRR 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 IR 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.”

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.

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

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”.

This case overlaps in certain of its facts the case of DPP v. Liam Cosgrave, in which this Court gave judgment on the 26^th day of April, 2012.

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.

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.

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”.

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”.