The High Court declined John Kennedy’s application for judicial review challenging a statutory presumption in corruption cases, finding that the issues were premature and had not yet arisen on the evidence in his pending criminal trial.
In a judgment dated 11 January 2007, Mr Justice John MacMenamin said Kennedy was charged with offences alleged to have occurred between November 2002 and January 2003, while he worked as a clerical officer in the Department of Justice’s Immigration Section. The allegations were that he corruptly accepted money, wine or meal vouchers in return for favouring four people who had dealings with the section. They remain allegations; the judgment does not determine the criminal charges.
The charges were brought under provisions of the Prevention of Corruption Act 1906, as amended. Kennedy’s judicial review application challenged section 4 of the Prevention of Corruption (Amendment) Act 2001, which can deem a gift to have been given and received corruptly if specified facts are proved, unless the contrary is proved. He argued that the provision was unconstitutional and incompatible with the European Convention on Human Rights, including because it allegedly shifted the legal burden of proof and affected the right to silence.
The court said the trial judge had not been asked to rule on how the provision should be interpreted, and no presumption under it had been invoked. Whether the prosecution would prove the facts that trigger the presumption, and whether it would need to rely on the provision at all, remained uncertain. Kennedy had not put the statements in the book of evidence in issue or identified which facts would be contested. The High Court therefore said it was being asked to decide a hypothetical question that might never arise at trial.
The judge also said the criminal trial was the proper forum to address legal issues arising from the evidence, subject to appeal. He distinguished the case from an earlier Supreme Court decision in which the High Court had already issued a substantive ruling, creating exceptional circumstances for the Supreme Court to consider the issue. No comparable ruling had been made here.
Although the respondents argued that Kennedy had delayed, the court said it was bound by the Supreme Court’s approach in that earlier case: time ran from service of the indictment, which had not yet occurred. It therefore made no finding of delay. The judge had refused Kennedy’s late request to file a supplemental affidavit about delay, citing its timing and fair-procedure concerns.
The court also considered the Convention claim premature because there had been no factual determination establishing prejudice or a breach. Its order was to decline the application for judicial review and for directions. It did not rule on the constitutional validity or Convention compatibility of section 4, or decide Kennedy’s guilt or innocence.