Supreme Court says Cosgrave can be tried

Fri, Apr 27, 2012, 01:00

FORMER FINE Gael TD Liam Cosgrave has lost his attempt to halt his trial in connection with alleged corrupt payments for land rezonings.

The Supreme Court, by a 3-2 majority yesterday, cleared the way for Mr Cosgrave’s trial on charges relating to votes in 1992 on the rezoning of lands in Carrickmines, Dublin, owned by Jackson Way Properties, and the successful rezoning of part of these lands in 1997.

Mr Cosgrave, Merrion Park, Blackrock, Co Dublin, has denied the charges, brought in October 2010. In judicial review proceedings, Mr Cosgrave claimed there was a real risk of an unfair trial on grounds of unjustifiable delay and alleged the DPP’s decision to prosecute him involved an abuse of process.

A majority Supreme Court, comprising the Chief Justice, Mrs Justice Susan Denham, Mr Justice Nial Fennelly and Mr Justice John Murray, found there was no abuse of process and no real risk of an unfair trial and dismissed Mr Cosgrave’s appeal against the High Court’s rejection of his case.

In separate judgments, Mr Justice Adrian Hardiman and Mr Justice Donal O’Donnell disagreed.

The abuse of process claim centred on the fact Mr Cosgrave received a community service sentence in 2005 after pleading guilty to knowingly making a false or misleading declaration in relation to receiving political donations in excess of £500 in 1997, contrary to the 1997 Electoral Act.

The bringing of new charges of corruption in 2010 under the Prevention of Corruption Act 1916 and the Ethics in Public Office Act 1995 amounted to abuse of process, he argued.

Mrs Justice Denham said that while there was a general rule of common law a person should not be tried on new charges grounded on the same facts on which they were previously tried, that did not apply here because the 2010 charges were not founded on the same set of facts as the 2005 charges and were not “of similar character” While both prosecutions arose from statements made by former lobbyist Frank Dunlop, who paid councillors for rezoning votes, the DPP had a valid reason for not prosecuting Mr Cosgrave for corruption as far back as 2004, she said.

Mr Dunlop, who would be a key witness for the State in any corruption trial, was sentenced to two years in prison, with six months suspended, after pleading guilty to corruption in May 2009; the State had valid reasons for not calling Mr Dunlop as a witness until Mr Dunlop had been dealt with by the courts, the judge said.

In the special circumstances of this case, it was just and appropriate for the DPP to await the conviction of Mr Dunlop before bringing the charges against Mr Cosgrave in 2010 and the delay in bringing the prosecution was reasonable.

The court had to strike a balance between Mr Cosgrave’s right to an expeditious trial and the community’s right to have offences prosecuted. In cases such as this, involving alleged corruption by public officials, there was a “very significant public interest” in allowing the allegations proceed to trial.

Disagreeing, Mr Justice Hardiman said the late preferring of corruption charges after Mr Cosgrave had undergone “not merely a trial but a ritual humiliation” several years earlier was “a nonsense from a penological point of view”.

This was “seriously oppressive” of Mr Cosgrave and his family and the avoidance of such oppression was one of the main reasons for the rule, in the absence of a special reason, all charges against a person should be brought at the same time.

He was unaware of any other case where one set of charges was followed after such a long interval with more serious charges and did not see why Mr Cosgrave had been “singled out”.

Mr Justice O’Donnell said the values of the criminal justice system, where a person was convicted, sentenced, rehabilitated and resumed their place in society, were subverted if that person was subjected to repeated or sequential prosecutions.