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Kennedy v DPP
Factual and Procedural Background
The Appellant, a property developer, was charged in The City Circuit Criminal Court with sixteen counts of corruptly giving money to various elected members of a local authority between 1992 and 1997. The prosecution relies heavily on the testimony of Witness A, a former lobbyist who pleaded guilty to separate corruption offences in 2009.
After service of the book of evidence in October 2010, the trial was listed for 5 October 2011. Before that date the Appellant obtained leave in the High Court to seek judicial review, seeking, inter alia, an injunction restraining the trial, disclosure of certain privileged documents, and damages under the European Convention on Human Rights Act 2003.
On 28 July 2011 Judge Hedigan refused relief. He held that (i) the delay in prosecution was excusable, (ii) any stress or anxiety was unsupported by medical evidence, and (iii) alleged Convention breaches did not automatically prohibit a criminal trial. The Appellant appealed to the Supreme Court. A five-judge court (Judge Denham C.J. delivering the principal judgment, with separate concurring and dissenting opinions) heard the matter and delivered judgment on 7 June 2012.
Legal Issues Presented
- Whether exceptional circumstances existed to justify the grant of an injunction prohibiting the criminal trial.
- Whether the Respondent’s refusal to disclose correspondence over which privilege was asserted violated the Appellant’s right to a fair hearing.
- Whether prosecutorial delay infringed the Appellant’s constitutional right to a trial with reasonable expedition and/or Article 6 of the European Convention on Human Rights.
- Whether the trial judge’s prior inspection of privileged material gave rise to objective bias.
Arguments of the Parties
Appellant's Arguments
- The Respondent’s ten-year delay in commencing the prosecution was deliberate, blameworthy and rendered a fair trial impossible.
- The High Court adopted an unfair procedure by inspecting privileged documents itself; under Edwards & Lewis v United Kingdom such a procedure violated Article 6.
- Because the trial judge saw “highly prejudicial” material, there was an appearance of objective bias and he should have recused himself.
- Stress, anxiety and the death or unavailability of witnesses constituted further prejudice warranting prohibition.
- In any event, the delay constituted a breach of Article 6 entitling the Appellant to a stay or damages.
Respondent's Arguments
- Delay was excusable: the prosecution could not proceed until Witness A had been convicted and confirmed willingness to testify.
- The trial judge was entitled to inspect the disputed documents; public-interest privilege outweighed any benefit to the defence.
- The Appellant never sought the judge’s recusal at trial; objective-bias arguments were waived and unfounded.
- No specific prejudice was shown: potential witnesses had died before the investigation began, and any recollection issues could be addressed by trial directions.
- Article 6 violations, if any, lead to damages not prohibition (TH v DPP).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| B v DPP [1997] 3 IR 140 | Need to balance an accused’s right to expedition against the public interest in prosecution. | High Court relied on this balance to refuse prohibition; Supreme Court agreed. |
| TH v DPP [2006] 3 IR 520 | ECHR delay does not automatically require a stay; monetary redress is the usual remedy. | Used to reject the argument that Article 6 required prohibition of the trial. |
| Edwards & Lewis v UK (2005) 40 EHRR 24 | Safeguards where judges inspect undisclosed material. | Distinguished; held to concern criminal trials, not civil judicial-review proceedings. |
| State (O’Connell) v Fawsitt [1986] IR 362 | Recognition of a constitutional right to trial with reasonable expedition. | Cited as the foundation of the speedy-trial right. |
| P.M. v Malone [2002] 2 IR 560 | Three interests protected by the speedy-trial right (incarceration, anxiety, impairment). | Applied to assess alleged stress/anxiety; no evidence produced. |
| Barker v Wingo 407 US 514 (1972) | Analytical framework for delay claims. | Referenced in discussing factors relevant to prosecutorial delay. |
| P.T. v DPP [2007] 1 IR 701; D. v DPP [1994] 2 IR 465; P.M. v DPP [2006] 3 IR 172 | Need to show both culpable delay and resulting prejudice. | Used to conclude that, even if delay were blameworthy, prejudice was not established. |
| Cosgrave v DPP [2012] IESC 24 | Reasonableness of delaying prosecutions pending conviction of a key witness. | Majority imported same reasoning to current case. |
| Dublin Wellwoman Centre v Ireland [1995] 1 ILRM 408; Bula Ltd v Tara Mines (No. 6) 4 IR 412 | Objective-bias test: reasonable apprehension of bias. | Supreme Court found no objective bias on the facts. |
Court's Reasoning and Analysis
Disclosure: The Court held that it was permissible for Judge Hedigan to examine the privileged correspondence himself. The Edwards & Lewis safeguard applied to criminal trials, not to a civil judicial-review motion. Moreover, the Appellant never sought the judge’s recusal after the inspection, thereby waiving any objection.
Objective Bias: No application for recusal was made at first instance; an appellate challenge was therefore barred. Even if considered, a reasonable observer would not fear bias because the judge expressly stated he would disregard the material.
Prosecutorial Delay: The majority accepted that the elapsed time was substantial but found the core reason—awaiting the conviction and availability of Witness A—reasonable. Any remaining delay was partly attributable to difficulty locating the Appellant and did not amount to blameworthy conduct. The Appellant showed no tangible prejudice: he was on bail, provided no medical evidence of anxiety, and the death of certain councillors did not impede access to essential evidence.
European Convention on Human Rights: The Appellant had abandoned his damages claim, and case-law confirms that Article 6 delays normally lead to compensation, not prohibition. Consequently, Convention arguments did not assist the application.
Balancing Exercise: Even assuming some prosecutorial delay, the community’s interest in trying serious corruption allegations outweighed the limited prejudice asserted. Appropriate trial directions could address any residual fairness concerns.
Holding and Implications
HOLDING: APPEAL DISMISSED; INJUNCTION REFUSED.
The Supreme Court affirmed the High Court order. The criminal trial may proceed. The judgment confirms that Irish courts will intervene in pending prosecutions only where delay is both culpable and demonstrably prejudicial, and reiterates that Article 6 breaches do not automatically warrant a stay. No new legal test was created, but the decision underscores the high threshold required to prohibit trials involving alleged public-office corruption.
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