The Court of Criminal Appeal dismissed an application by the Director of Public Prosecutions to have Mr Justice Hardiman recuse himself from later proceedings brought by Martin Conmey, including an outstanding costs application and a separate application for a declaration that his conviction was a miscarriage of justice.
The judgment, delivered by Mr Justice Hardiman on behalf of the court on 27 July 2012, concerned perceived or objective bias, not an allegation of actual bias. The DPP relied on two matters: that Mr Justice Hardiman had received an incomplete brief about Conmey’s case while practising as a senior counsel in 1999, and that he had sat on the court that quashed Conmey’s conviction in 2010.
The court said the judge had offered in 2010 to withdraw if either party preferred that he not sit. Neither party asked him to do so, and the DPP did not renew the recusal application during the eight days of hearings on Conmey’s application to quash his conviction or before judgment was delivered. The court held that a party who knew the relevant facts and declined an offer to withdraw could not wait until after an unfavourable ruling to challenge the judge’s participation.
Conmey’s 1972 manslaughter conviction was quashed in November 2010 under section 2 of the Criminal Procedure Act 1993. That decision followed an application based on newly discovered material, including undisclosed initial statements by witnesses. The present judgment did not reconsider the quashing of the conviction or decide the outstanding costs and section 9 applications; it dealt with whether Mr Justice Hardiman should hear those later matters.
The court also rejected the argument based on the judge’s earlier receipt of the brief. It said the brief was incomplete, the judge had no recollection of it, and the professional connection was insufficient to give rise to a reasonable apprehension of partiality. It found no basis to conclude that the earlier judgment had prejudged the section 9 application.
The court dismissed the recusal application. On 25 October 2012, it clarified that counsel’s arguments had been advanced on the DPP’s instructions and that a passage criticising a party for waiting until after an adverse decision to object referred solely to the DPP.