A Supreme Court judge has concluded that James Kennedy's criminal trial should proceed despite finding that prosecutors had not fully explained a delay of about five years in bringing the case forward.
Mr Justice Clarke agreed with the Chief Justice that Kennedy's appeal should be dismissed and the High Court order affirmed. His reasoning differed on the issue of delay, however.
A Garda file seeking directions concerning alleged corruption offences involving Kennedy, Frank Dunlop and others had been sent to the Director of Public Prosecutions on October 22, 2004. The DPP did not direct that Kennedy and five others be charged until June 24, 2010.
The judge accepted that prosecutors were reasonably entitled to wait until Dunlop had been convicted before proceeding against Kennedy. Dunlop's evidence was expected to be central to the prosecution case and would involve admissions of wrongdoing on his own part.
But Mr Justice Clarke held that this did not completely explain the time taken. No adequate evidence had been given as to why Dunlop himself was not arrested and charged until November 2008. He therefore found some culpable prosecutorial delay, although partly mitigated by the legitimate decision to await Dunlop's conviction.
That finding did not justify stopping Kennedy's trial. The court found that any specific prejudice caused by prosecutorial delay was virtually non-existent. Some potential witnesses had died, but none who might have been important to the defence would have been available even if proceedings had begun promptly after the Garda file was submitted.
Mr Justice Clarke also rejected an attempt to rely on alleged objective bias arising from the High Court judge having examined documents over which public-interest privilege was claimed. No recusal application had been made when the issue arose, and in any event he agreed with Mr Justice Fennelly that objective bias had not been established.
Balancing the limited prejudice against the public interest in having serious allegations concerning public life tried on their merits, Mr Justice Clarke concluded that the prosecution should continue.