DPP fails to stop judge from being part of appeal court

THE DIRECTOR of Public Prosecutions has lost a bid to stop Mr Justice Adrian Hardiman from being part of an appeal court that will decide whether a man’s conviction 40 years ago for the manslaughter of a young woman was a miscarriage of justice.

The three-judge Court of Criminal Appeal dismissed the “special and unusual” application by the DPP for Mr Justice Hardiman to recuse himself from further hearing the case of Martin Conmey. His conviction for the manslaughter of Una Lynskey (19) was overturned two years ago and he wants a declaration of a miscarriage of justice.

Mr Conmey, who served a three-year sentence for manslaughter years before he won his appeal, was convicted on what the Court of Criminal Appeal described as “entirely circumstantial” evidence. His conviction was quashed on grounds including that important witness statements, which Mr Conmey argued proved his innocence, were not disclosed to the defence.

Mr Conmey (61), Porterstown Lane, Ratoath, Co Meath, has always maintained he was not responsible for the death of Ms Lynskey, who vanished while returning home from work to her family home at Porterstown Lane in October 1971.

Her body was discovered in a remote part of the Dublin mountains two months later but a post-mortem examination failed to reveal exactly how she died.

In November 2010, Mr Justice Hardiman was part of the Court of Criminal Appeal that overturned Mr Conmey’s conviction and the DPP had not objected to his being on that court. The DPP later objected to his hearing Mr Conmey’s applications for costs of his successful appeal and for a declaration of a miscarriage of justice.

The DPP, represented by Brenda Grehan SC and Pauline Walley SC, argued objective bias on the judge’s part arising from his being offered a brief in September 1999 for Mr Conmey’s appeal. He did not take up that brief as he was appointed to the Supreme Court just months later and he said he had no recollection of being offered it.

Objective bias was also argued on the ground he was a member of the three-judge Court of Criminal Appeal CCA that overturned Mr Conmey’s conviction.

Giving the Court of Criminal Appeal judgment dismissing the DPP’s application for recusal, Mr Justice Hardiman said he had previously offered, before the appeal was heard, to step aside from hearing the case if either side expressed a preference, despite his own view there was no legal reason for him to step aside.

When he made that offer, neither side expressed such a preference and Ms Walley had said it was a matter for the court, he said.

No party, “least of all one who is herself a professional lawyer”, could be allowed to decline a judge’s offer to step aside, fight an issue “tooth and nail” for eight days and only then, having lost that issue, take exception to the judge, he said. No reasonable or rational person, fully aware of the facts in this case, could reasonably apprehend partiality on grounds related to his having been offered a brief in 1999, he added.

The judge also noted Mr Conmey’s application for costs of his successful appeal was strongly contested by Ms Walley on the “somewhat surprising” preliminary point that there was no power to award costs because no retrial was directed. No retrial was sought since the three-year sentence was served more than 30 years earlier, the judge observed.

If the preliminary point had succeeded, it would have meant Mr Conmey, having had his 40-year- old conviction quashed, would have had to pay the costs of years of investigation and an eight-day hearing before the Court of Criminal Appeal against the DPP’s “trenchant opposition”.

After the court rejected the preliminary point, counsel for Mr Conmey applied for costs on the highest level against the DPP.

At that stage, the DPP sought for Mr Justice Hardiman to be recused from further hearing either the costs or miscarriage of justice applications and that application was heard over three days.

Mr Conmey and Dick Donnelly were convicted of Ms Lynskey’s manslaughter in 1972. A third man, Martin Kerrigan, who was also suspected of having been involved in Ms Lynskey’s death, was abducted and killed a short time after her body was discovered.

Mr Donnelly won his appeal against his conviction in 1973 but Mr Conmey lost his appeal. He brought a further appeal against his conviction under section 2 of the Criminal Procedure Act 1993, which allows an appeal to be brought on grounds of newly discovered facts. That appeal was allowed in November 2010.