The High Court has refused James Kennedy’s application to stop a prosecution involving 16 alleged corruption offences connected to motions to rezone lands at Carrickmines, County Dublin.
In a judgment delivered on 28 July 2011, Mr Justice Hedigan accepted that there had been inordinate delay but found it excusable. He dismissed the requested relief, which included orders prohibiting or staying the prosecution. The judgment did not decide whether the corruption allegations were true; it allowed the criminal proceedings to go ahead.
The charges alleged that Kennedy made corrupt payments to councillors as an inducement or reward for votes on rezoning motions in 1992 and 1997. The first eight charges concerned alleged payments between May and June 1992 relating to about 108 acres. The remaining charges concerned alleged payments in October and December 1997 to councillors Liam Cosgrave and Tony Fox. One motion to rezone part of the lands passed in December 1997.
Kennedy argued that the authorities had taken too long to prosecute him and that the delay prejudiced his defence, including because several potential witnesses had died. He also relied on stress and anxiety, and on the right to a hearing within a reasonable time under the European Convention on Human Rights.
The Director of Public Prosecutions argued that the investigation was extensive and that delay alone did not justify stopping a trial. The State also relied on difficulties locating Kennedy and the unavailability of Frank Dunlop, whom it said was a key witness, while a planning tribunal and Dunlop’s own criminal proceedings were ongoing.
The judge said delay by itself was not a separate basis for halting the trial. He was not satisfied that Kennedy could not defend himself because of stress and anxiety, noting that no medical evidence had been provided. On the competing accounts of Kennedy’s whereabouts, the judge found his evidence not credible and accepted that authorities had been unable to contact him to progress the case. He also accepted that Dunlop was unavailable as a witness until the tribunal and criminal proceedings involving him had concluded.
The judgment said a possible breach of the Convention’s reasonable-time requirement would not automatically require a prosecution to be stopped. The judge concluded that the delay was excusable. He added that, even if it were not, the balance of justice favoured allowing the allegations of corruption of public officials to be tried. He said any prejudice could be addressed through directions or warnings from the trial judge.