Cosgrave -v- DPP Ors
Neutral Citation IEHC 312
High Court
Judgment was delivered on July 28th, 2011, by Mr Justice Hedigan
Judgment
A delay of almost six years in bringing a prosecution on planning corruption charges was caused by the continuation of the planning tribunal, and was therefore an excusable delay; the applicant in this case had no legitimate expectation that no further prosecution would be brought on such charges when he pleaded guilty in 2005 to a failure to declare a political donation.
Background
Liam Cosgrave sought to judicially review a decision of the DPP to bring a prosecution against him on charges of corruptly receiving payments from Frank Dunlop. He sought a declaration that continuing the prosecution was an abuse of process and sought an order staying the prosecution.
The case arose from a series of interviews in 2003 between lobbyist Frank Dunlop and the gardaí, in which he alleged he made 10 payments to the applicant, Liam Cosgrave, including sums of £2,000 in June 1992, of £2,500 in October 1997 and £4,500 in December that year. In March 2004 Mr Dunlop alleged the payments were made in return for the applicant voting for the rezoning of land in Carrickmines.
Mr Cosgrave was interviewed by gardaí from the Criminal Assets Bureau, where he denied receiving any payments from Mr Dunlop in 1997. He admitted receiving a political donation in 1992, but denied it was a corrupt payment. In April 2005 he was charged with two charges of making false or misleading declarations in relation to receiving donations exceeding £500 in 1997, contrary to the Electoral Act 1997.
His solicitors wrote to the DPP seeking disclosure of all statements made by to gardaí by Mr Dunlop. Three statements were disclosed, but a statement made on March 16th, 2004, and a draft statement made on September 24th, 2004, were not disclosed.
In October 2005 Mr Cosgrave pleaded guilty to making a false declaration in relation to donations exceeding £500. He was sentenced to 75 hours of community service in lieu of six months’ imprisonment.
Five years later, in October 2010, Mr Cosgrave was charged with receiving corrupt payments from Mr Dunlop. Two statements from Mr Dunlop, which had not been disclosed in 2004, were in the book of evidence. The applicant said that when he entered his plea he had been advised by his solicitors on the understanding that the entirety of the prosecution case arising out of the allegations of Mr Dunlop were contained in the charge he faced in 2005, and that, in entering a plea, all criminal proceedings were concluded. He maintained this prosecution was oppressive and an abuse of process.
He said that the prosecuting authorities had all the evidence they were using in this case in their possession in 2004 when they brought the earlier prosecution. They had not disclosed two statements from Mr Dunlop, including his allegation that the payments made were corrupt, prior to the 2005 case.
While this case did not involve the issue of double jeopardy directly, the Supreme Court and the High Court had ruled that there must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive, according to the applicant.
The DPP responded that one of the documents which had been sought in disclosure was a draft statement from Mr Dunlop, and therefore not subject to disclosure. The other related to the allegation of corruption, not the charge of making a false declaration, and was therefore not relevant to the charge. The DPP also said that Mr Cosgrave was aware of the issues at stake, as he had said in response to a question posed by gardaí: “I never received a corrupt payment from Frank Dunlop”.
In relation to his claim that he had a legitimate expectation that there would be no further prosecution, he said that the essential elements of legitimate expectation were not present, and he had no reason for such an expectation. If he considered that by pleading guilty to the false declaration of political donations he would not be prosecuted, he could have asked the DPP to clarify the matter.
Decision
Mr Justice Hedigan said there were two separate issues in the case. The first was that the continued prosecution amounted to an abuse of process and the second that he had a legitimate expectation that the prosecution would not proceed. He said that his solicitors were seeking disclosure in 2005 in relation to a charge of false statements concerning political donations, not corruption. The documents sought related to an allegation of corruption, and were not relevant to the 2005 trial. Mr Justice Hedigan said the statement was therefore not disclosable at that time.
Referring to his claim of legitimate expectation, he cited the case of Glencar Exploration plc -v- Mayo County Council , which outlined the three conditions for legitimate expectation. The non-disclosure of the statement in 2005 did not meet these conditions and did not amount to a representation that further charges would not be brought.
He said the applicant was also well aware of the allegation of political corruption, and had denied receiving any corrupt payment from Frank Dunlop, so it was not sustainable to argue that he was unaware that the gardaí were conducting such an allegation.
In relation to the complaint of delay, because of the need for Mr Dunlop to give evidence to the tribunal the case could not proceed until it had concluded its work. While this may not be in accordance with Irelands obligations under the European Convention on Human Rights, that would not, in itself, justify a prohibition of the trial. The delay was excusable.
He said the applicant bore the name of a family that that given service of the highest distinction to the country, and the decision to plead would have been a very difficult one, requiring some measure of moral courage. He may well have honestly believed that would be an end to the matter, but absent some clear indication from the DPP, this was not a reasonable belief. In these circumstances, he must refuse the relief sought.
The full judgment is on www.courts.ie
Brendan Grehan SC and Philipp Rahn, instructed by Sheehan and Partners, for the applicant; Tony Collins SC and Paul Anthony McDermott, instructed by the Chief State Solicitor, for the State