The Supreme Court dismissed James Kennedy’s appeal in proceedings against the Director of Public Prosecutions, rejecting his complaint that a High Court judge showed objective bias after privately reviewing documents claimed to be privileged.
In a judgment delivered on 7 June 2012, Mr Justice Fennelly addressed the bias issue separately. He said he agreed with the Chief Justice’s judgment on delay and with the appeal’s dismissal. His judgment records that the appeal also concerned the judge’s inspection of documents over which the prosecution claimed legal professional privilege and/or public interest privilege.
Kennedy had sought inspection of the documents during his judicial review application. His counsel objected to the same judge reviewing them, arguing that if disclosure were refused, the judge’s exposure to material withheld from the parties could influence his decision. The objection was overruled. After examining the documents, the High Court judge refused inspection, ruling that the public interest in confidentiality outweighed Kennedy’s interest in disclosure.
The judge described material concerning a request to the Isle of Man authorities as tangential to both the criminal charges and the judicial review case, but also said it appeared highly prejudicial to Kennedy and could damage his case. He added that he would not take its contents into account in deciding the application. Kennedy’s counsel continued with the hearing without objecting to those remarks. The Supreme Court judgment notes that no appeal ground expressly raised the distinct complaint that the remarks themselves showed bias.
Fennelly J said the remarks, read in context, were not capable of being interpreted as exhibiting bias. The judge had described the material as having little relevance to the judicial review issues, and counsel’s failure to object at the time strongly indicated that a reasonable person would not apprehend that Kennedy would be denied a fair hearing before an impartial judge. Fennelly J was reluctant to dismiss the complaint solely because it was not expressly included in the grounds of appeal.
He also discussed waiver, noting that a party may in some circumstances be precluded from relying on an objection not raised at the proper time. But he was slow to conclude that counsel had knowingly waived an objection during a hearing without an opportunity to consult. He distinguished the circumstances from an earlier case in which counsel were found to have knowingly accepted a tribunal’s composition.
Fennelly J agreed with the treatment of the document-inspection procedure and the delay issue under the European Convention on Human Rights. He reserved for another occasion the question of the correct burden for stopping a criminal trial on general delay grounds, saying the test of a real risk of an unfair trial was sufficient for this case. The judgment does not set out the full orders of the Court.