A Supreme Court judge said a prosecution against James Kennedy should not proceed after a delay he regarded as inordinate and inadequately explained. Mr Justice Hardiman dissented in a judgment delivered on 7 June 2012, saying he would allow Kennedy’s appeal and grant the relief sought.
The charges concerned alleged payments made in connection with votes on rezoning lands at Carrickmines, Co Dublin, in 1992 and 1997. The prosecution’s case, as described in an affidavit by Detective Garda Martin Harrington, was that Kennedy allegedly gave money to Frank Dunlop, who then made corrupt payments to named councillors. Those are allegations recorded in the judgment, not findings of guilt.
Hardiman said the charges related to periods from May 1992 to December 1997, but Kennedy was not charged until October 2010. He noted that Dunlop had publicly told the Flood Tribunal in October 2000 that he had made corrupt payments to councillors. Hardiman described the delay as “clearly inordinate”, a finding also made by the trial judge, Hedigan J.
The trial judge had held that the delay was excusable and said the balance of justice required the proceedings to go to trial. The Supreme Court’s Chief Justice set out the appeal and issues in a separate judgment. Hardiman disagreed on the prosecution-delay issue. He said the Director of Public Prosecutions had decided to wait until Dunlop was prosecuted, and argued that it was not legally necessary to do so. In Hardiman’s view, the stated reason did not explain the delay; he believed the actual reason was a tactical decision to avoid presenting Dunlop as an unconvicted accomplice while the State sought his cooperation in other matters.
Hardiman also criticised the prosecution’s explanation as being conveyed through Harrington’s affidavit rather than first-hand evidence from the decision-makers. He said this prevented meaningful scrutiny of why the charging decisions had been made and caused unfairness to Kennedy.
He rejected the idea that the public importance of corruption allegations or the resources spent on tribunals justified a more permissive approach to delay. He warned that a trial of allegations dating back about 20 years, particularly one depending on a single key witness, carried a grave risk of a miscarriage of justice.
The source provides Hardiman’s dissent and conclusion only. It does not set out the Supreme Court’s overall disposition of the appeal or the relief, if any, ultimately granted.