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1. By Order of Keane J. dated the 25th day of January, 1996 the Applicant was granted leave to apply for two forms of relief against the Respondents by way of Judicial Review that is to say:-

2. At the commencement of the proceedings herein Counsel on behalf of the Applicant announced that the Applicant was no longer seeking the relief described in paragraph (b) above (an Order by way of Certiorari) since the issues which gave rise to that application have now been resolved between the parties and was confining his application and seeking solely an Order of Prohibition permanently restraining the Second-named Respondent from taking any further step in the prosecution of the charge against the Applicant in the proceedings entitled DPP -v- Peter Keely & Anor. (Bill No. 663/94).

3. Stg. £2,340,000 which he was paid by way of a series of payments.

4. Stg. £50,000 from Barclays Bank, Piccadilly, London to Barclays Bank, Ramsey, Isle of Man for the account of Delmont Investments Limited t/a Harskin Properties purported to be signed in terms

5. Mr. Peter Noone for the purchase of the La Penita apartments and the Las Vegas apartments were made in the manner described in the second, third and fourth pages of the statement of Maurice Harskin and payments in respect of the Los Hibiscos Apartment Complex were made in the manner described on the fifth and sixth pages of the statement of Mr. Harskin.

6. The Applicant claims an Order of Prohibition permanently restraining the Second-named Respondent from taking any steps in the prosecution of the charge which is being preferred against him in the proceedings entitled DPP -v- Peter Keely & Another

7. Certain legal principles must be applied by the Courts during the consideration of applications for relief of the type which has been sought herein.

8. In the light of the observations of Finlay C.J. in D.P.P. -v- Byrne [1994] 2 I.R. 236 (at p. 245) to the intent that these interests represented

9. Having confirmed the right of the community to have criminal offences prosecuted and emphasised the need to balance that right with the (greater) right of an accused person to receive a fair trial, the Court went on to deal with the special factors which affected the case then under consideration.

10. Applying the foregoing principles to the instant case, it follows that I must determine whether, on the evidence, the defence of the Applicant " ... has been explicitly prejudiced by the State's delay ... by the non-availability of a material witness ... " in which case he would be entitled " ... on the delay being unreasonable and prejudicial ... " to the relief which he seeks.

11. In addition, I have concluded that I must assess the Applicant's right to trial with reasonable expedition " ... in light of the particular circumstances ... " of this case.

12. It is also very clear that I must investigate the reason for the delay in considerable detail and that I should have regard to the interests of the Applicant and of the community including the ten factors identified by the Supreme Court in B. -v- D.P.P. as outlined above.

13. Finally, although this is not an appellate Court, I take the view that I should have regard for the observations of Finlay C.J. in The Director of Public Prosecutions -v- Byrne [1994] 2 I.R. 236 at p. 247, warning that the Court

14. Having regard to the positive constitutional right of the Applicant to have the trial of this criminal offence heard "with reasonable expedition" and having further regard to the obligation of the second named Respondent to provide for and protect that right it is necessary for me to determine, on the evidence, whether

15. A. there has been a significant delay in the trial of the charge against the Applicant and if so whether

16. B. that delay has been unreasonable having regard to the particular circumstances of this case or indeed has been of the kind which ".....has crossed the border-line into the area of unconscionable delay which calls for an explanation from the State ... " (see Cahalane v Judge Murphy [1994] 2 I.R. 262), and whether

17. C. the Applicant's defence has been explicitly prejudiced by delay on the part of the second named Respondent or otherwise (this will require me to determine, on the evidence, whether the unavailability of Mr Maurice Harskin will prejudice the Applicant's capacity to adduce vital evidence in his defence and thereby work an injustice upon him).

18. A. Has there been a significant delay in the trial of the charge against the Applicant?

19. As I have indicated earlier the complaint was first made to the Garda Commissioner on 15th May, 1990 relative to events which were said to have occurred between March of 1987 and November of 1988. The Applicant was arrested and charged on the 5th day of January, 1994, was returned for trial on the 23rd November, 1994 and was arraigned on the 9th December, 1994 when his trial was fixed for the 19th day of June, 1995. It is now more than two years since the date when the Applicant's trial was first due to be heard during which time the Applicant has been greatly disadvantaged in his personal and professional life and has become restricted severely in his capacity to earn his livelihood. Manifestly, there has been a significant delay in the trial of the charge which has been preferred against the Applicant and accordingly it follows that I should go on to consider the second question outlined above, that is to say:

20. B. Whether the delay involved has been unreasonable in the light of the particular circumstances of this case, or of such a character as to have " .....crossed the border-line into the area of unconscionable delay which calls for an explanation from the State..... "?

21. Reviewing the facts of this case, I am satisfied as follows:

22. The evidence adduced on affidavit by Detective Sergeant John McCann discloses the exhaustive investigation and enquiries which were necessary between May 1990 and January 1994, in order to gather and assemble the very large volume of documentary and other evidence which was necessary in order to enable the second named Respondent to competently discharge his statutory and other obligations and to protect and vindicate the right of the Community to have criminal offences prosecuted early and properly. Counsel on behalf of the Applicant pointed to the fact that for a substantial period throughout 1992 and 1993 the investigation was taken up with consultation between the investigating officers and legal advisors retained by the second named Respondent but when all of the evidence adduced by Detective McCann is taken together with the evidence adduced on behalf of the Applicant, it is clear that the whole of the period between May of 1990 and January of 1994 was taken up with necessary work undertaken by the investigating officers directed towards the thorough investigation associated with the charge which has been preferred and that these investigations could not have been reasonably undertaken and completed within a lesser period.

23. It is also possibly of some significance that at all stages between May of 1990 and January of 1994 the Applicant was represented by experienced and highly competent legal advisors and that whilst Counsel on behalf of the Applicant clearly indicated in May and June of 1995 that the Applicant was anxious that his trial should proceed there was no complaint made by or on behalf of the Applicant of unreasonable or other delay on the part of the second named Respondent of the type which is alleged herein until the institution of the proceedings herein and indeed, the Applicant did not himself apply for Discovery of documentation which he believed to be vital to his defence until March of 1995 and then adjourned that application by agreement on a number of occasions. It was finally heard and determined by the first named Respondent in November of 1995.

24. On the 25th January, 1996 the Applicant sought and obtained an Order giving him liberty to seek the relief which has been sought herein and this resulted in further adjournment of the trial which cannot proceed until the determination of the proceedings herein.

25. I think that it is important to note that on the 25th January, 1996 the application made on behalf of the Applicant to Keane J. appeared to place particular emphasis upon the need for leave to seek relief by way of Certiorari in respect of the order of the first named Respondent made on the 23rd day of November, 1995 (refusing an Order for Discovery of various documents). Indeed, the Order of Keane J. appears on its face to give the Applicant liberty to apply for an Order of Prohibition restraining the trial until further Order .... "or in the alternative..." an Order by Certiorari in respect of the Order refusing Discovery. Accordingly the form of the Order suggests that the Applicant's principal concern in January of 1996 was that he should obtain the Order for Discovery which he had earlier sought and the grounds which appear to have been relied upon by the Applicant and which are set out in the Order of Keane J. lay greater emphasis upon alleged prejudice to the Applicant in his defence by reason of the failure to discover documents, than by reason of the grounds relied upon herein.

26. I am satisfied that between the 25th January, 1996 and the 8th November, 1996 a substantial amount of time was spent by the investigating officers and legal advisors of the second named Respondent in seeking to resolve what then appeared to be the substantive complaint which was then being advanced on behalf of the Applicant, that is to say the alleged prejudice to the Applicant arising out of the frustration of his requirement to inspect documents in the possession or power of procurement of the second named Respondent and Aer Lingus PLC. I am satisfied further that the time spent by the second named Respondent and others in seeking to resolve this matter was spent in an attempt to expedite the trial of the charge preferred against the Applicant and that it was eminently reasonable that the second named Respondent should take this course of action with the object of expediting of the trial.

27. I am further satisfied that the resolution of the application for Discovery of documents sought by the Applicant was a long and tedious matter which was not achieved until a full hearing and determination by O'Sullivan J. on an issue of privilege on the 27th June and the 1st and 2nd July, 1997.

28. I am further satisfied that during the period between the 25th January, 1996 and the 8th November, 1996 a concurrent application was made to the Circuit Criminal Court for relief virtually identical to the relief which has been sought herein on the same grounds which have been advanced herein and that after a full hearing on the 17th day of June 1996 the relief was refused by the Circuit Criminal Court (Kelly J.) on the 21st June, 1996.

29. Accordingly, during the period concerned a judge of the trial court in the course of considering an application made upon the same grounds which have been advanced herein seeking relief similar to the relief which has been sought herein was enabled to consider all steps taken by the second named Respondent in the Prosecution of the charge against the Applicant up to and including the 21st June 1996 and held that there had been no unreasonable delay on the part of the second named Respondent.

30. In the light of the foregoing I am satisfied that whilst there has been a significant delay in the trial of the charge preferred against the Applicant, this delay has not been unreasonable having regard to the circumstances which gave rise to it. Analysis of the reason for the delay - that is to say the circumstances which gave rise to it - discloses that at no time between the date when a complaint was first made to the Garda Commissioner on the 15th May, 1990 and the date of hearing of the proceedings herein has the second named Respondent, by himself or by any investigating officer or agency of state, failed in his obligation to bring the charge preferred against the Applicant to trial with reasonable expedition and to provide for and protect the right of the Applicant to an expeditious trial. I am satisfied that the second named Respondent and the State authorities acted with reasonable expedition having regard to all of the circumstances which affected the investigation of the complaint and the prosecution of the proceedings against the Applicant up to and including the date of the hearing of the proceedings herein.

31. It follows from the foregoing that I do not find this to be a case which " .... has crossed the border-line into the area of unconscionable delay which calls for an explanation from the State " although as I have indicated I fully accept the comprehensive and convincing explanation which has been offered.

32. The question raised at C. above now falls to be determined, that is to say whether or not the Applicant's defence has been explicitly prejudiced either

33. Since I have found that there has been no unreasonable delay on the part of the second named

34. Respondent (or anyone acting on his behalf) in the prosecution of the charge against the

35. Applicant, it follows that the Applicant's defence has not been prejudiced by any

36. Applicant. Accordingly, if the Applicant has suffered prejudice in his capacity to adduce

37. It is important that I should state quite clearly, at this point, that the case advanced on behalf of the Applicant alleging that he had been prejudiced in his capacity to adduce vital evidence in his defence has been confined to the allegation that the prejudice arises by reason of the fact that Mr Maurice Harskin will not now be available to testify at the trial and that his absence will work an injustice upon the Applicant. No other prejudice of any nature of kind has been alleged to have arisen which will affect the Applicant's capacity to defend himself against the charge levelled against him. Although other grounds were alleged at paragraph (e) in the Statement which grounded the Application for Judicial Review (see paragraphs (2), (3) and (4) thereof) they were expressly abandoned on behalf of the Applicant at the hearing of these proceedings and no additional grounds were substituted therefor.

38. Notwithstanding the foregoing it falls to me to consider whether the Applicant suffered prejudice by reason solely of the duration of time which has occurred between the complaint which was made on the 15th day of May, 1990 and the date hereof, that is to say by reason of the length of the delay which has occurred in the prosecution of the charge.

39. Bearing in mind that the prejudice which has been alleged is the fact that Mr Maurice Harskin will not be available to testify at the trial, it is important to consider precisely when Mr Harskin became unavailable. It is clear from the evidence that Counsel on behalf of the second named Respondent notified the first named Respondent on the 22nd May, 1995 as he had just been informed of the fact that Mr Harskin would be unable by reason of advanced years and ill-health to attend at the trial of the case which was listed for the 19th June, 1995.

40. I appreciate that a period of five years elapsed between the date of the making of the complaint and the date when Mr Harskin became unavailable, but as I have already indicated I do not believe that this was an inordinately lengthy period having regard to the complexity of the issues involved in the case and the amount of investigation which was required. It is of significance that on the 22nd May, 1995 the Applicant was himself not ready or in a position to proceed with his own defence since he was in the process of a lengthy Discovery application, which in fact, further delayed the trial for a very substantial further period.

41. The Applicant's contention must of necessity be based upon the proposition that the trial of the charge preferred against him should have been heard in full on or before the 22nd May, 1995 (when Mr Harskin became unavailable) and that because it was not so heard he has been prejudiced by reason of delay. It is difficult to accept that contention in the light of the fact (as I have already pointed out) that the Applicant was not himself in a position to present his case in May 1995, but on the evidence I am satisfied that having regard to the nature and complexity of the investigation to be undertaken by the State, to the "Community's Right" recognised in B. -v- D.P.P. (above) and to the necessity recognised by Gannon J. in O'Flynn v Clifford [1988] I.R. 740 that the public interest and good sense require that every crime be properly investigated, the events which occurred in the prosecution of the charge preferred against the Applicant between May of 1990 and May of 1995 do not disclose acts or omissions which could reasonably be described as "delay". On the evidence, the significant "delay" in the prosecution of the charge against the Applicant occurred after May of 1995 and largely arose as a result of a strongly contested Motion for Discovery followed by the initiation of the proceedings herein.

42. Amongst the "factors" recognised and identified by the Supreme Court in B. -v- D.P.P. [1997] 2 I.L.R.M. 118 (and Barker -v- Wingo ) are the "length of time of pre-trial anxiety and concern of the accused" and whilst I accept that the Applicant has suffered considerable anxiety and concern arising out of the charge which has been preferred against him and, as I have already acknowledged, he has been disadvantaged in his personal and professional life and become restricted in his capacity to earn his livelihood, I am satisfied that

43. No further or additional "factors" have been advanced on behalf of the Applicant which should be taken into account in determining whether the delay was by virtue of its duration alone sufficient to cause explicit prejudice and accordingly I have concluded that the duration of the delay has not by itself alone been sufficient to cause prejudice to the Applicant sufficient to deprive him of a fair and reasonably expeditious trial.

44. It has been contended on behalf of the Applicant that since Mr. Maurice Harskin will not now be available to testify on behalf of the prosecution at the trial of the charge preferred against the Applicant, that the Applicant's defence has been explicitly prejudiced and that his absence will work an injustice upon the Applicant in that it will prejudice his capacity to adduce vital evidence in his defence and deprive him of his constitutional right to a fair trial. In support of that contention, the Applicant relies inter alia upon the decisions of the Supreme Court in The People (The Director of Public Prosecutions) -v- Christopher Quilligan and Patrick O'Reilly (No. 3) [1993] 2 I.R. 305 and The People (The Director of Public Prosecutions) -v- Gerard Tuite (1982) 2 Frewen 175.

45. With regard to the latter authority, I accept that it is the obligation of the prosecution under Irish Law to procure the attendance of all relevant witnesses insofar as that is reasonably possible. On the evidence, I am satisfied that in the instant case, the second named Respondent has discharged that obligation conscientiously.

46. With regard to the former authority, I similarly accept without question that where it is determined by a Court of law that prejudice will undoubtedly potentially exist as a result of the non-availability of a particular witness (in the Quilligan case, a potential alibi witness became unavailable by reason of decease) then it will almost certainly be appropriate for the Court to prohibit the trial in order to prevent a possible injustice to the accused.

47. What has to be determined in the instant case is whether the fact that Mr. Maurice Harskin will not now be available to testify on behalf of the prosecution will cause explicit prejudice to the capacity of the Applicant to adduce vital evidence in his defence, thereby working an injustice upon him.

48. I have already indicated herein (see para. 13(a) to (d) under the heading "The Facts") the testimony which I believe Mr. Harskin would have been in a position to adduce, were he available to testify at the trial.

49. In addition, the second named Respondent has openly offered (through his Counsel at the trial of the proceedings herein) to admit the entire of the Statement of Evidence of Maurice Harskin pursuant to Section 21 of the Criminal Justice Act, 1984 together with the exhibits referred to therein. Further, or in the alternative, the second named Respondent through his Counsel in the proceedings herein openly offered to make specific admissions pursuant to Section 22 of the 1984 Act, many of which were favourable to the Applicant.

50. It was explained on behalf of the Applicant that the presence of Mr. Harskin was vitally necessary in the interest of the Applicant in order to enable the Applicant to adduce evidence on the part of the Mr. Harskin by way of cross-examination. It is contended on behalf of the Applicant that it may be possible to elicit answers from Mr. Harskin in the course of cross-examination which will raise doubts in the minds of jurors in such a manner as to potentially implicate Mr. Harskin himself in possible irregular dealings involving the officers and directors of ALH and Aer Lingus Plc. Reliance was placed upon reference within the statement of Mr. Harskin to three bank drafts dated 13th October, 1988 and it was suggested that in the course of cross-examination this reference and others could be used to discredit other officers and directors of ALH and Aer Lingus Plc and possibly Mr. Harskin himself raising potential doubts in the minds of prospective jurors.

51. I should say that, having reviewed the very large volume of documentation which came before me at the trial of this action, I cannot find within it a shred of support for the suggestion that Mr. Harskin could be implicated in some way with the directors or officers of ALH or Aer Lingus Plc.

52. The absence of Mr.Harskin will deprive the prosecution of potential testimony suggesting that the signature of Mr.Harskin was forged by some person on a bank draft and, furthermore, that Mr. Harskin did not authorise the use of the business name "Harskin Properties" by Delmont Investments Limited (which appears to have been partly owned by the Applicant) but the absence of that testimony could hardly be said to work an injustice on the Applicant and rather the contrary would appear to be the case.

53. I am satisfied on the evidence that a substantial amount of what is contained within the statement of Maurice Harskin can be adduced on behalf of the second named Respondent by other means without causing any disadvantage to the Applicant and I cannot discover within that statement any evidence (other than evidence which is clearly unfavourable to the interests of the Applicant) which is not capable of being adduced by other means on behalf of the Applicant himself.

54. It is not without significance that, by letter dated the 3rd January, 1991, the legal advisers on behalf of the Applicant wrote to the Senior Legal Assistant of the second named Respondent setting out in some detail the matters which would be raised on behalf of the Applicant in defence of the charge which was then being considered against him. Whilst I appreciate that the letter was sent at an early stage in the investigation of the events which gave rise to the proceedings against the Applicant, it is nonetheless of significance that whilst the second named Respondent was expressly required to investigate a number of matters he was never requested to interview Mr. Harskin nor was it indicated that Mr. Harskin was in any way relevant to the charges then being considered against the Applicant.

55. What has been eloquently argued on behalf of the Applicant amounts really to the assertion that if Mr. Harskin were to testify on behalf of the prosecution then during the course of cross-examination he might either consciously or inadvertently let slip some observation or make some admission which would give rise to doubt within the minds of potential jurors. The existence of such a possibility does not, in my opinion, place Mr. Harskin in such a category that his testimony at the trial is essential in the interests of providing the Applicant with a fair trial and I do not believe that the fact that he will not now be available to testify at the trial of the charge which has been preferred against the Applicant will work an injustice upon the Applicant or that it will prejudice his capacity to adduce vital evidence in his defence.

56. In summary then, I am satisfied that the Applicant's defence has not been prejudiced either by unreasonable delay on the part of the second named Respondent or by any other delay or by reason of the fact that Mr. Harskin will not now be available to testify.

57. In the circumstances, the relief sought by the Applicant is refused.