S50 Director of Public Prosecutions -v- J.C. (No. 2) [2015] IESC 50 (22 June 2015)

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Cite as: [2015] IESC 50

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Judgment
Title:
Director of Public Prosecutions -v- J.C. (No. 2)
Neutral Citation:
[2015] IESC 50
Supreme Court Record Number:
398/12
High Court Record Number:
WD/DP0009/2012
Date of Delivery:
22/06/2015
Court:
Supreme Court
Composition of Court:
Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J.
Judgment by:
McKechnie J.
Status:
Approved
Details:
Dismiss. Affirm acquittal - No retrial ordered.
Clarke J concurred with the Judgment of MacMenamin J subject to the minor reservations set out in Clarke Js judgment.
Judgments by
Link to Judgment
Concurring
Denham C.J.
O'Donnell Donal J., Clarke J., MacMenamin J.
Murray J.
Hardiman J.
O'Donnell Donal J.
Clarke J., MacMenamin J.
McKechnie J.
Clarke J.
O'Donnell Donal J., MacMenamin J.
MacMenamin J.
Clarke J.



THE SUPREME COURT

IN THE MATTER OF THE CRIMINAL PROCEDURE ACT 2010,

SECTION 23

[Appeal No. 398/2012]

Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.
      Between /
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Appellant
-and-

MR. C.

Respondent

Judgment delivered on the 22nd day of June, 2015, by Denham C.J.

1. This matter returns to the Court on a single issue, for a decision on the interpretation and application of s. 23(11) and (12) of the Criminal Procedure Act, “the Act of 2010”, as to whether, in the circumstances of the case, the acquittal of J.C., the respondent, referred to as “the respondent”, should be quashed.

Background
2. This appeal raised several issues, including:- (a) the scope of the appeals which can be brought to this Court by the D.P.P. under s. 23 of the Act of 2010, and (b) the exclusionary rule.

3. This Court gave its decision on these issues on the 15th April, 2015.

4. At issue was whether an appeal lay under s. 23 of the Act of 2010, and whether the issue of the exclusionary rule could be raised under s. 23 of the Act of 2010.

5. A majority of the Court (Denham C.J., O’Donnell J., Clarke J. and MacMenamin J.) considered that an appeal in relation to the exclusionary rule of evidence could be raised under section 23 of the Act of 2010.

6. The issue of the exclusion of unconstitutionally obtained evidence from a trial, insofar as it related to search warrants, was reviewed by the Court. In essence the question was whether The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110, “Kenny”, was correctly decided.

7. A majority of the Court held that Kenny had been wrongly decided, and set out a new test. Thus, Kenny represented the law for just over two decades in this jurisdiction.

8. Applying the new test to the facts of the case, the majority of the Court was satisfied that the evidence should be admitted. Thus, it was held that, while the learned trial judge was bound by Kenny, nevertheless she erred in her decision to exclude the evidence in the sense of the term in s. 23 of the Act of 2010.

9. In fact, counsel for both parties agreed that it could be said that a trial judge had erroneously excluded evidence, even though the trial judge had applied properly the Kenny test, the case law by which that court was bound.

10. The issue as to whether there should be a retrial of the respondent was left over until after the decision on the above matters.

11. Thus, the Court is required to consider s. 23 of the Act of 2010.

12. Counsel for the appellant submitted that it was in the interests of justice, in all the circumstances of the case, that there be a retrial of the respondent. Counsel for the respondent submitted that it is not in the interests of justice to quash the acquittal and direct a retrial in this case.

13. The relevant portions of s. 23 of the Act of 2010 provide as follows:-

      “(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24 , appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.”
Thus, in this case, the D.P.P. appealed the acquittal of the respondent to this Court.

14. Section 23 provides as follows:-

        “(11) On hearing an appeal under this section the Supreme Court may—

        (a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied—

        (i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

        (ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

        or

        (b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.

        (12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to—

        (a) whether or not it is likely that any re-trial could be conducted fairly,

        (b) the amount of time that has passed since the act or omission that gave rise to the indictment,

        (c) the interest of any victim of the offence concerned, and

        (d) any other matter which it considers relevant to the appeal.

        (13) (a) The Supreme Court may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.

        (b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.”

15. In essence the issue is whether, applying the above section of the statute, the Court should quash the acquittal and order that the respondent be retried, if satisfied that the relevant provisions of s. 23(3) are met, and that, having regard to the matters referred to in ss. (12), it is, in all the circumstances, in the interests of justice to do so; or, if it is not so satisfied, affirm the acquittal. In determining whether to make an order under s. 23(11) the statute provides, in s. 23(12), that the Supreme Court shall have regard to the four factors set out above.

16. While the appellant has won the appeal on the substantive issues, the Court now has to decide on the order to be made under s. 23(11) and (12).

17. Thus, at the core of the issue is the consideration of “the interests of justice”.

18. In considering “the interests of justice” the list of factors in s. 23(12) is not exhaustive, as emphasised in s. 23(12)(d) which refers to “any other matters which [the Court] considers relevant to the appeal”.

19. While s. 23 alters the previous rule on double jeopardy, such a fundamental principle nevertheless remains a factor in interpreting s. 23 of the Act of 2010.

20. There are several specific factors to be considered under s. 23(12). The first factor is “the amount of time that has passed since the act or omission that gave rise to the indictment”. The jurisprudence relating to prohibiting trials on grounds of delay is not relevant in construing and applying this section. This is a “time” issue to be considered by the Court in all the circumstances of the case. In this case four years has elapsed since the alleged offences, and three years since the appellant’s acquittal in the Circuit Court.

21. Section 23(12)(c) refers to the interests of any victim concerned. As is pointed out in the submissions on behalf of the respondent, while the offence of robbery is a grave offence, the circumstances may vary. In this case, while it is alleged that three persons are identified as injured parties, there is nothing before the Court to indicate the impact of the offences on those persons.

22. It is necessary also to consider whether there are any other relevant matters. There is no doubt that a factor is that the Court has overturned a previously binding precedent: Kenny. Kenny had represented the law for over twenty years. This is a significant factor in the circumstances of the case.

23. Counsel on behalf of the respondent referred to s. 34 of the Criminal Procedure Act, 1967, which provides for the reference of a question of law to this Court “without prejudice” to the verdict of acquittal in the case. Counsel submitted that this procedure would have been eminently suitable for determining the point of law raised on this appeal. The Court was referred to the statement of Henchy J. in The People (D.P.P.) v. Quilligan (No. 2) [1989] I.R. 46 at p. 56

      “It would be neither fair nor constitutional if the right of a person acquitted by direction to escape a retrial depended on the mode of appeal chosen by the prosecution”.
24. However, s. 23 of the Act of 2010 enjoys the presumption of constitutionality. This modifies rights previously enjoyed under the principle of double jeopardy.

25. It was submitted on behalf of the respondent that persons who have been acquitted at trial ought not to be exposed to a possible retrial simply because of the mode of appeal chosen by the prosecution. It was submitted that s. 23(11) and (12) properly interpreted must provide an appropriate safeguard against the possibility of cases being selected for retrial on an arbitrary basis, as s. 34 of the Criminal Procedure Act, 1967 remains in force, and is an option for the D.P.P., and indeed has been invoked since s. 23 of the Act of 2010 came into force.

26. Counsel for the respondent submitted that in considering whether “it is in the interests of justice” to quash the acquittal, the appellant must demonstrate good reason, based on the circumstances, to quash the acquittal. This might include matters such as the nature of the offence, the circumstances of its committal, any aggravating factors, and the impact of the alleged offence on victims.

Decision
27. The Court is given a specific discretion under s. 23 of the Act of 2010, to decide whether there should be a retrial. The Court should be satisfied that, having regard to the matters referred to in s. 23(12) of the Act of 2010, it is, in all the circumstances of the case, in the interests of justice, that there be a retrial.

28. It may be assumed that the respondent would receive a fair trial, in the sense of the procedures of the trial. However, the specific factors referred to in the Act of 2010, and all the circumstances of the case, should be considered when exercising the discretion given to the Court in the statute.

29. Given the fact that:-

        (i) This case has changed the law, as previously stated in Kenny;

        (ii) if the respondent were re-tried, he would be subject to the new legal principles relating to the exclusion of evidence in search warrant cases, contrary to the situation on his earlier trial;

        (iii) three years have passed since the respondent was acquitted;

        (iv) there is no specific evidence before the Court as to impact on victims of crime; and

        (v) the fact that the appellant chose this mode of appeal should not and does not give rise automatically to a re-trial on the success of the substantive issues raised;

        In all the circumstances, in the interests of justice, I would affirm the acquittal of the respondent, and consequently I would not order that the respondent be re-tried for the offences.



JUDGMENT (No., 2) of Mr. Justice John Murray delivered the 22nd day of June, 2015

1. The Court today, in a unanimous decision, decides that the respondent’s acquittal by a jury be affirmed, and no retrial ordered, because it would not be “in the interests of justice” to do so. It never was.

2. The reason is not complex - rather quite simple. It would in all cases be manifestly unjust to retry a citizen duly acquitted by a jury in accordance with the law, for the purpose of putting him or her on trial again for the same offence under a law that has been changed to his or her prejudice, when that law is changed subsequent to the trial.

3. What was applied at the trial was the known law, and the only principle known to the law. It was never in issue that the trial judge applied the law as it was known and as it could only be known at the time of the trial. There is nothing more definitive as to what the law is than a clear statement of a Supreme Court.

4. The majority of this Court, in the first stage of this appeal in which judgments were given, accepted that the trial judge applied the law as it was known and as she was bound to do so, in accordance with her constitutional duty as a judge. Nonetheless it was decided that her correct ruling should be treated, retrospectively, as one which had been made “erroneously” for the purpose of s.23 of the Criminal Procedure Act, 2010. That is, as I have said, a contradiction in terms.

5. To order a citizen who has been tried and acquitted in due course of law to be tried again for the same offences because after the trial a rule of law laid down by this Court is subsequently changed, is, in those circumstances, to make a precedent of this Court an ignis fatuus.

6. I may not comprehend, but I apprehend and respect the decision of the majority in the judgments given in the first stage of this case. The Court, more important the citizens of this country, must cope with that interpretation of the section. It remains nonetheless an objective fact that to subject a citizen in those circumstances to the setting side of his acquittal and his retrial under a new rule of law would be manifestly contrary to the fundamental interests of justice and the rule of law. I appreciate that this is one of the reasons why I concluded that the Oireachtas did not intend the word “erroneously” in s.23 to be interpreted as the majority of this Court have done. Independent of the interpretation issue, which has been decided, the objective facts of the situation remain. A retrial in such circumstances could not be considered to be consistent with the interests of justice in any sense, including the phrase as used in s.23(11) of the Act itself.

7. The reasons why I consider this to be an objective fact are set out in my judgment in the first stage of these proceedings, on the interpretation issue.

8. As I concluded in my earlier judgment that majority decision led to a gross departure from the hallowed rule against double jeopardy, breached the principle of legal certainty, and risked undermining respect for the judicial process and public confidence in it.

9. At paragraph 97, I concluded:

      “97. If a citizen cannot, with full confidence, rely upon a rule of law as laid down and defined by the Supreme Court, and applicable at the trial, in the conduct of his or her defence to a criminal charge, that is to say, without the risk that a verdict will be set aside because the law is changed by the Supreme Court after the trial, then the integrity of the judicial process is undermined.”
10. Of course, this Court has jurisdiction to revise and overrule its precedents in certain circumstances. Indeed, the DPP could have raised exactly the same point of law for consideration by this Court by bringing an appeal pursuant to s.34 of the Criminal Procedure Act, 1967, as explained clearly in the earlier judgments of this Court. Such an appeal would, of course, have been without prejudice to the verdict of acquittal.

11. In the circumstances outlined, to overrule a well established rule of law laid down by this Court so that a citizen can be retried in accordance with new law created by precedent after his acquittal must always, in my view, be contrary to the interests of justice within the meaning of s.23(1) of the Act. I consider this to be manifestly so, and the only view consistent with respect for the integrity of a trial conducted in due course of law and in accordance with the “applicable law” referred to by O’Higgins C.J. in The People v. O’Shea [1982] I.R. 384 at 403.

12. In the event, the appeal must be dismissed because, in the unanimous view of the Court, it would be an injustice to do otherwise. The appeal has failed and proved pointless as regards the whole purpose of s.23, which is to enable the DPP to seek to have an otherwise final acquittal set aside and a new trial ordered. It is not a right of the DPP under the section to appeal solely for the purpose of having a precedent of this Court reviewed and possibly overturned. To have used s.23 solely for the purpose of bringing that issue before the Court, it is not disputed, would have been an abuse of the section. This is not what the DPP did, but in the event the appeal has failed because it is necessary to avoid an injustice which, setting aside the verdict and retrying the respondent would entail. That is not to say that he has not been the subject of an injustice. His acquittal by a jury in due course of law has been put in jeopardy with a risk of retrial on the same offence. The burden of having to await with uncertainty to know whether his acquittal counts for nought and may have to face a retrial on the same charges is one which has weighed with him since the trial. That is an injustice given the particular circumstances of his acquittal.

13. I share the doubts expressed by MacMenamin J. concerning the constitutionality of this section, as it is now interpreted and falls to be applied in this kind of case. Heretofore this Court has consistently applied the principle of constitutional construction, whereby an Act of the Oireachtas must be interpreted in a manner which is consistent with the Constitution, when such an interpretation is reasonably open on its terms. This, in turn, is based on the principle that the Oireachtas was presumed to intend its Acts to be consistent with the Constitution (see, for example, McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 and DPP v. MS [2003] 1 I.R. 606). An ordinary, and certainly reasonable, interpretation of the word ‘erroneously’ would mean, as I have previously held, that when the trial judge made a ruling, which she is bound to make, she was not by any reasonable connotation of the word making an erroneous ruling. That would have been an interpretation of the section consistent with the principles of constitutional justice and a trial in due course of law and eliminated any question of constitutional frailty.

14. The situation creates a dichotomy for the Court. As Clarke J. points out in his current judgment “If there were no circumstances in which it would be permissible to direct a retrial where this Court had overruled a previous decision by which the trial judge was bound then it is hard to see how the section could properly be interpreted as encompassing such a type of appeal in the first place”.

15. He later goes on to conclude that such a factor is “far from decisive but must weigh heavily in the balance. I take the view that such a factor cannot be decisive for if, in truth, as I have already suggested, no successful appeal could be brought in those circumstances, then it is hard to see how it would have been proper to interpret the section as a line for an appeal in a case where the law as it was then understood to be was accepted as having been properly applied.”

16. Where I part from the judgment of Clarke J. is that I consider it to be manifest that in all such cases it would be contrary to the interests of justice to order a retrial. I leave to others to conclude what in truth flows from that.

17. It has also been stated that this nonetheless may be considered a factor in deciding not to set aside the acquittal and order a retrial because the respondent in this case has in some way been singularly marked out from all those who have gone before him who had the benefit of the Kenny decision, or the Kenny decision in which the Damache case was also applied (both cited in the earlier judgments of the Court). I find it difficult to comprehend how this could be a reason for considering a retrial to involve an injustice distinct from the fact that it would always be an injustice in this type of case. If an established precedent of this Court which has consistently been applied by trial judges is overruled so as to result in an acquittal based on such a precedent being retrospectively set aside, then it will invariably be the case that the accused concerned is in a singular position as being the first to be subject to the new rule of law. In short, I do not see any basis for attributing some level of singularity to this case that will separate it in principle from what will objectively happen in every case of this nature.

18. Consequently, in my view, the fact that the respondent’s retrial would be governed by a rule of law adopted by the Court subsequent to his acquittal is not only a relevant factor in deciding whether it would be in the interests of justice to order a retrial, but is always a decisive factor against it. While I agree with the now consensus that it may be a reason for not ordering a retrial, I think the truth is that it must always be such a reason.

19. I too have wrestled with the possibility that there might be found in the various factors referred to in s.12 of the Act some other separate grounds for holding that it would not be in the interests of justice to order a retrial and set aside the acquittal.

20. Paragraph (a) of subsection 12 of s.23 refers to the likelihood that any retrial “would be conducted fairly”. There is no suggestion, and it is not even argued, that a retrial would be “conducted” other than fairly.

21. Paragraph (b) refers to the amount of time that has passed since the Act or provision that gave rise to the indictment. It is 4 years since he was charged, and 3 years since the trial. In the order of delays in bringing people to trial which have been considered by this Court, such a passage of time would not, of itself, be a ground for prohibiting a trial going ahead. It can be said that the respondent here has had a trial, but if he has already been acquitted on the basis of an erroneous ruling at the trial within the meaning of s.23 the Oireachtas contemplates that there should be a retrial in the public interest. There is no suggestion that the passage of time since the trial and the determination of this appeal was due to any delay on the part of the DPP. The delay was systemic. Unfortunately, it is not unusual. While I would consider the passage of time involved to be a factor to be taken into account in deciding whether or not to order a retrial in the interests of justice, there is nothing about it which suggests that it is a decisive one in this case.

22. Finally, the section, at (c), says that a factor which must be taken into account is the interest of any victim of the offence concerned. The offences concerned were the offences of robbery, which are serious public order offences involving the use, or the threat of the use, of violence. No evidence was tendered by the DPP concerning the interests of any victim of the offences concerned. Therefore, no such factor militates in favour of a retrial. It is impossible, in my view, to logically treat the mere absence of such evidence as a material consideration against ordering a retrial having regard to the terms of the section.

23. Accordingly, I feel bound to conclude that there is manifestly no persuasive reason to refuse a retrial based on the expressly specified grounds in the section. It follows, however uncomfortable a truth it may be, that the correct and only basis for refusing a retrial in this case, in the interests of justice, is because it would always be unjust to retry an acquitted person in a case of these circumstances.

24. My fundamental conclusion accordingly is that to order the retrial of a person following an appeal in a case where the law, as it was then understood to be, was accepted as having been properly applied at his trial, would be contrary to the essential principles of constitutional justice and the rule of law. For that reason alone, and in every such case, the ordering of a retrial would be, in the words of the section, contrary to the interests of justice. The ineluctable conclusion is that any appeal in such circumstances pursuant to s.23 will always be pointless and doomed to failure. Any other view, as I indicated in my earlier judgment, would be an appalling prospect from the perspective of the rule of law.




J.C. (No. 2)


Judgment delivered on the 22nd of June, 2015, by O’Donnell J.

1 Consistent with the views I tentatively expressed in my judgment in the main case, I agree that there should be no retrial in this case. Furthermore I agree with the reasons given by the Chief Justice and Clarke J. I wish to add some short observations on a factor that carried weight with me.

2 Prior to 2010 the only appeal generally available to the prosecution (I say generally because there were some isolated specific incidences) was a “without prejudice” appeal pursuant to the provisions of s. 34 of the Criminal Procedure Act 1967 (“the 1967 Act”), as amended. It was, I think, accepted, and perhaps necessarily flowed from the nature of that section, that it was appropriate to cases where the issue of law which it had been sought to appeal had some systemic importance extending significantly beyond the individual case. Indeed, since a successful appeal could have no impact on the conviction in the particular case, the only purpose of a “without prejudice” appeal would be to clarify the law for all future cases. In those circumstances, the fact that the vehicle for the appeal was an individual case was an incidental, and almost unwelcome feature of the procedure. However, if the issue was to be decided then an appeal in a specific case with concrete facts presented the best circumstance in which the legal argument could be analysed. In such appeals the respondent was not identified, as indeed is the case in appeals under the Criminal Procedure Act 2010 (“the 2010 Act”). The fact that a successful appeal would, as a matter of logic, cast some retrospective shadow over an acquittal was an incidental, undesirable, but possibly an unavoidable consequence of this procedure, which sought to mitigate that consequence by providing for anonymity. It would clearly not have been proper, in my view, to have invoked the 1967 Act procedure to achieve this object in an individual case and somehow cast doubt on the individual conviction. The focus therefore of the 1967 Act was on general issues of law and not the individual case.

3 It follows from the fact that the 1967 Act was not repealed that the Oireachtas considers that it is still an appropriate procedure to be invoked in certain cases. That amounts to a legislative judgment that there are cases in which the interests of justice are served by the clarification of an important legal point without individual consequences in the particular case. The 2010 Act procedure applies in all cases. Thus in principle, it is available in cases which might previously have been brought under the 1967 Act. The further fact that the 2010 Act does not require a court to order a retrial, but expressly provides that it should not order a retrial if it does not consider it in the interests to do so, makes it clear that the Oireachtas considers that there are a number of factors which may mean that justice is served by the decision of the court on the point of law, but without requiring the retrial of a person who has received the benefit of an acquittal, which in the vast majority of cases is a final and binding determination of status. The decision of the court that a ruling made was erroneous but not to order a retrial, and to affirm the acquittal, makes the outcome of the appeal the functional equivalent of a successful appeal under the 1967 procedure,

4 It is clear that the court’s power to order a retrial or not, is very broad, and it can apply in cases where the significance of the point of law extends no further than the individual case. Even in such cases there may be individual factors which tend against a retrial. However, one of the relevant factors in my view is whether the case is one in which any clarification of the law is incidental to the order overturning the conviction in an individual case, or whether the clarification of the point of law is the most important feature of the case, and individual circumstances are incidental to that. Of course, it is likely that in many cases it could be said that both features are present. However, in the decision as to whether there should be a retrial, I consider that one of the factors a court should take into account is where on that spectrum an individual case lies.

5 I fully agree that this question cannot be concluded, or perhaps even affected, by the decision of the Director of Public Prosecutions not to adopt the 1967 Act procedure. In this case, I consider that the case is close to what might be described as the “systemic” rather than the “individual error” end of the spectrum. I fully accept the submissions of counsel for the respondent that without in any way depreciating the significance or seriousness of these offences, there is nothing in the individual circumstances of the case which would favour a retrial over and above the fact, which must be present in any case, that the acquittal has been determined by an appellate court to be erroneous. On the other hand, the systemic importance of this case is undoubted. It is also clear now that there have been a very significant number of cases where acquittals have followed the application of the decision in The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 (“Kenny”), and a smaller but not insignificant number where the decision resulted from the combined application of the decisions in Kenny and Damache v. The Director of Public Prosecutions & Ors [2012] 2 I.R. 266 as occurred in this case, some indeed close in time to the trial and ruling in this case. The fact that others have had the benefit of the Kenny decision in almost precisely similar circumstances, and will not face any retrial, adds an element of arbitrariness to a retrial which is in my view an important fact in this case. I see no reason to single out the respondent in this case for a retrial. That fact, together with the matters addressed by the Chief Justice and Clarke J., would lead me to the conclusion that no retrial should be ordered, and accordingly the acquittal affirmed. Accordingly, since I consider it is possible to resolve this matter on these grounds I do not consider it necessary to express an opinion on the interesting issues canvassed in the judgment of MacMenamin J, and I would reserve consideration of such matters until another case requires it.

6 I have only recently received the lengthy concurring judgment of McKechnie J. Time does not permit any extended consideration. For the reasons set out above I agree that the 1967 Act procedure would have been preferable. But to my mind the effect of that procedure would have had exactly the same legal consequence as the decision of the court under section 23 in this case which McKechnie J criticises. The acquittal would remain in place but it would follow from the ruling that it had been arrived at erroneously. It is because of those consequences that both procedures provide for anonymity. I do not understand what implications a ruling has for the good name of a citizen, when that person’s name is not used and they are not otherwise identified or identifiable, but if there are, then I would not assume a remedy is not available should it be considered wise to seek it. But the position both under the law and the Constitution would be the same if a determination is made under the 1967 Act, or under the 2010 Act, and no retrial ordered. This, at least, is not a valid reason in my view to distinguish between them.




Judgment of Mr. Justice Clarke delivered the 22nd June, 2015.

1. Introduction
1.1 The Court has already given judgment on a number of important aspects of this appeal brought by the prosecutor/appellant (“the D.P.P.”) against the acquittal of the accused/respondent (“Mr. C.”). By a majority of four to three this Court concluded both that an appeal lay in the circumstances this case and that, so far as the first issue on that appeal was concerned, the D.P.P. should succeed. As noted in a number of the judgments of the members of the Court then delivered, the structure of s.23 of the Criminal Procedure Act 2010 (“the 2010 Act”) is clear. In order that an appeal with prejudice, taken by the D.P.P., can be successful, it is necessary that the Court be satisfied of two things. The first is that there was an error in the trial either by the erroneous exclusion of compelling evidence or in the course of the judge’s directions to the jury. The second is that it be in the interests of justice that there be a retrial. Unless both elements are established, the acquittal must be affirmed. In substance, the majority was of the view that the first element of the requirement thus identified had been met in that evidence, which was compelling within the meaning of the section, was found to have been erroneously excluded.

1.2 However, it is clear that such a conclusion, while necessary to a successful appeal on behalf of the D.P.P., is not sufficient to allow for the acquittal concerned to be overturned and a retrial directed. In order for such a result properly to occur, it is necessary that the Court also conclude that it is in the interest of justice that a retrial be ordered. If the Court is not so satisfied then it is clear that the acquittal should be confirmed.

1.3 Subsequent to the delivery of the previous judgments by the Court, further written submissions were directed and a further oral hearing occurred. That process was directed towards determining whether the interests of justice required that there be a retrial. For the reasons just identified it is on the answer to that question that the final outcome of the appeal now turns, for the options open to the Court are to direct a retrial (if that is what the interests of justice require) or to affirm the acquittal of Mr. C. (if the Court is not satisfied that the interests of justice require a retrial).

1.4 There was, in my view, quite a significant degree of common ground between counsel for the D.P.P. and counsel for Mr. C. as to the factors which ought properly be taken into account in reaching an assessment as to where the interests of justice lie in the circumstances of this case. It might well, of course, be the situation that different factors might potentially be relevant in different types of cases so that the factors thus identified may not apply, or apply in some way, in other cases. However, for the purposes of this case, the difference between counsel stemmed largely from their submissions as to the weight to be attached to many of those factors in the circumstances of this case and, as a result, as to where the overall balance lay. I will shortly turn to the factors thus identified, to the submissions of counsel as to the weight to be attached to them and to an overall assessment of where the balance of justice lies. However, before so doing, I should make some brief general observations.

2. Some General Observations
2.1 In the course of debate between the Court and counsel it was suggested that there might be a lack of legal certainty as to the test which is now to be applied in relation to the admission or exclusion of evidence where the gathering of that evidence may have occurred in illegal or unconstitutional circumstances. In fairness, the issue was one raised more by the Court than by counsel. Also, it must be acknowledged that there are two ways in which such a question might, depending on one’s view, arise in the circumstances of this case.

2.2 It is important to recall that the ultimate decision of the majority was to the effect that D.P.P. v. Kenny [1990] 2 I.R. 110 had been wrongly decided and to indicate that the appropriate test to be applied was that identified in the majority judgments in this case. One of the issues which necessarily fell for debate was as to the test by reference to which the evidence in controversy in this case would be considered for admission in the event of a retrial. It might be argued that there is a potential uncertainty as to which test (i.e. the Kenny test or the J.C. test) should be applied. For reasons which I will shortly address, I do not believe that there could be any question about that issue.

2.3 A second possible question surrounding legal certainty might stem from the fact that there were three majority judgments in this case. It is true that there can be circumstances in which some doubt can arise as to the precise test to be applied in the future where there are a number of judgments of this Court (particularly where, in the event of a divided court, there are a number of majority judgments) and where it may be possible to argue that the precise approach to the key question differs as and between those majority judgments.

2.4 However, while such a situation may unfortunately arise in some cases, I frankly find it impossible to see how there could be any question as to the precise test to be applied in the future as a result of the majority judgments in this case. It is important to recall that both O’Donnell J. (at paragraph 99) and MacMenamin J. (at paragraph 26) went to some pains to point out that they adopted the test set out in my judgment (which is to be found at paragraph 7.2). Indeed, both O’Donnell J. and MacMenamin J. went further and indicated that the very reason why they did not include any commentary on that test in their own judgments was precisely to prevent any risk of such commentary being seen to be a gloss on the test. Their judgments were directed towards explaining why it was considered appropriate to depart from Kenny and adopt the new test proposed. Nothing said could reasonably be interpreted as a qualification of that new test as set out at paragraph 7.2. The Chief Justice agreed with all of the majority judgments.

2.5 I can readily understand that the application of the test thus identified may well, in the circumstances of different types of cases, give rise to legitimate debate. But the law in all sorts of areas (and not least the criminal law) is full of debate about how a particular test may be applied in different circumstances. The fact that it may take a number of decisions of the courts (and, indeed, the higher appellate courts) to define with some precision how a test is to be applied in a range of different circumstances does not take away from the fact that the test is clearly set out.

2.6 I cannot, therefore, see that there is any basis for the suggestion that the test approved by the majority in this Court lacks certainty. The majority went to considerable lengths to ensure that the text of one paragraph of one judgment represented the test. While that test is, undoubtedly, more nuanced than the quasi-absolute position which was identified in Kenny, nonetheless it is no more nuanced than many tests which the courts are required to apply in a whole range of circumstances and there is, therefore, in my view no basis for the suggestion that the test thus identified lacks legal certainty.

2.7 Furthermore, I can see no basis for the suggestion that anything other than that test, as thus identified, should be applied in the event that a retrial were to be ordered. There was, of course, a vigorous debate and a significant disagreement between members of the Court on the question of whether a with prejudice appeal under s.23 of the 2010 Act actually arose in the circumstances of this case. The argument which found favour with the minority was that a trial judge, properly applying a test which that judge was required to apply as a result of binding precedent, could not be said to have erroneously excluded evidence. The majority took the opposite view. But it inevitably follows from the view of the majority, to the effect that the relevant evidence was erroneously excluded by reason of the application of a test which this Court, by that majority, held to be erroneous, that any retrial must necessarily be conducted on the basis of the application of what this Court found to be the correct test.

2.8 For reasons which I will address shortly, it was common case between counsel (and I agree) that one of the factors which can properly be taken into account in determining where the interest of justice lies, for the purposes of deciding whether to direct a retrial, is the fact that the original ruling of the trial judge was accepted as being correct on the basis of the application of Kenny. But if there is to be a retrial then it would make a nonsense of the legislation to suggest that such a retrial should be conducted by applying the test in Kenny. To so require would be direct that a retrial be conducted on the basis of the application of a test which this Court has held to be erroneous.

2.9 I should also add that it seems to me to follow from the decision of the majority that there must be at least a possibility that there are some circumstances in which a retrial would and could be directed after a successful appeal by the D.P.P. under s.23 in which a test, other than the one which appeared to represent the law at the time of the original trial, was applied. If there were no circumstances in which it could be permissible to direct a retrial where this Court had overruled a previous decision by which the trial judge was bound then it is hard to see how the section could properly be interpreted as encompassing such a type of appeal in the first place. To the extent that, on one reading, the judgment of MacMenamin J. might suggest otherwise then I, like O’Donnell J., would leave over further consideration of this issue to a case where it turned out to be decisive.

2.10 At the end of the day, s.23 of the 2010 Act is ultimately about the question of whether there should be a retrial. The final order which the Court is required to make is as to whether such a retrial should be directed. A decision on whether a ruling of the trial judge, whether on the question of the admission of evidence or in the course of a direction to the jury, was in error is only a means to that end. If there could never be a retrial in circumstances where this Court overturned a relevant previous ruling which bound the trial judge, then it is hard to see how there could ever be a proper with prejudice appeal in which this Court was invited to so overrule such a previous decision for, in those circumstances, and notwithstanding this Court taking the view that the previous decision was wrong, the Court could never allow the appeal.

2.11 It seems to me to follow that, at least of the level of high principle, it must be possible that there may be circumstances where there can be a retrial where the Court conducting that retrial would be required to apply a new and different test (either to the admissibility of evidence or, indeed, to directions given to a jury), because this Court has overturned a previous ruling which had bound and been properly applied by the trial judge at the original trial. However, and importantly, it seems to me that the fact that a retrial would be so conducted on a basis different from that on which the original trial was conducted, while not precluding a retrial, is nonetheless, a factor of some significant weight to be taken into account by the Court in deciding whether it is in the interests of justice that such a retrial be ordered. I will return to this question at a later stage in this judgment.

2.12 Having made those preliminary observations I now move on to note the factors which might be said to be potentially relevant to the overall assessment of whether it is, in the circumstances of this case, in the interests of justice to order a retrial.

3. The Relevant Factors
3.1 The starting point has, of course, to be the relevant provisions of the legislation itself. These are to be found in s.23(11) and s.23(12) of the 2010 Act. Those sections are in the following terms:-

      “(11) On hearing an appeal under this section the Supreme Court may—

        (a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied—
            (i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

            (ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

      or

        (b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.

      (12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to—

        (a) whether or not it is likely that any re-trial could be conducted fairly,

        (b) the amount of time that has passed since the act or omission that gave rise to the indictment,

        (c) the interest of any victim of the offence concerned, and

        (d) any other matter which it considers relevant to the appeal.”

3.2 In the context of those legislative provisions, and in the circumstances of this case, counsel for the D.P.P. suggested that there were three factors which favoured the proposition that it was in the interests of justice that a retrial be awarded. I propose dealing with each in turn and setting out the position taken by counsel for Mr. C. in respect of each factor identified.

3.3 The first factor referred to by counsel for the D.P.P. was the suggestion that Mr. C. can and will receive a fair trial should a retrial be ordered. I think it would be fair to say that counsel placed particular emphasis on this factor in his argument to suggest that the overall balance of all relevant factors led to the conclusion that there should be a retrial. Counsel for Mr. C. accepted that there was no reason why the conduct of any retrial would itself be unfair.

3.4 In passing, it should be noted that there might well be other cases where positions had been adopted by an accused at a trial, subsequent to the ruling which was the subject of the appeal and placing reliance on that ruling, which might act to the prejudice of the relevant accused in the event of a retrial. Furthermore, events may have moved on so that evidence which was available at the original trial may no longer be available, or the like. For these, and doubtless other reasons, there may well be cases where the relevant accused could argue either that he could not get a fair retrial at all or that the conduct of his defence had been materially prejudiced by the events which happened to the extent that it would be unjust to order a retrial. However, no such case has been made in the circumstances of these proceedings. It is accepted that the question of the admissibility of the confession evidence which was at the heart of this case can and should be assessed by reference to the test identified by the majority in its previous judgments but also by reference to any other points which might legitimately be raised at any retrial. This Court is not aware of whether any such additional points arise but it was not suggested that the course of events to date will prevent Mr. C. from relying on any other points which might legitimately arise.

3.5 However, counsel for Mr. C. did make what seems to me to be a relatively significant point under this heading. While fully accepting that the question of whether a fair retrial could be conducted was relevant, counsel suggested that it was either exclusively, or at least mainly, a negative point in the sense that this Court could never regard it as being in the interests of justice to direct a retrial if a fair trial could not be conducted at all, and the Court would have, it was suggested, to lean heavily against directing a retrial if by so doing the overall situation was one where the accused had suffered material prejudice. Thus, counsel for Mr. C. suggested that no great positive weight should be placed on the fact that a fair retrial could be conducted but rather that it was a factor, if absent, which might necessarily exclude any possibility of a retrial or, at a very minimum in some cases, lean very heavily against it.

3.6 The second factor identified by counsel for the D.P.P. was the seriousness of the offences and, by implication, the interests of the victims of those alleged offences. It is fair, I think, to characterise the charges on which Mr. C. faced trial as relating to multiple offences involving robbery. There were six offences in all involving three incidents, and it is alleged that an imitation firearm was used. It is in the nature of the offence of robbery that it involves either violence or the threat of violence, although, of course, the degree of violence used or the extent of the violence threatened can vary significantly from case to case.

3.7 I did not understand counsel for Mr. C. to contest that a charge of robbery involves a serious offence and that it might be reasonably inferred that an offence involving at least the threat of violence would have a potentially significant effect on any victims. However, counsel pointed to the fact that no materials had been placed before the Court to enable any more considered a view to be taken as to the seriousness of the alleged offences or the effect which they might have had on the relevant victims. In those circumstances, counsel argued that while the undoubtedly serious nature of the offences was a factor which could properly be taken into account, the weight to be attached to that factor must necessarily be informed by the absence of any particular knowledge about the specifics of these offences, their effect on the relevant victims and on any other aspect of the interests of those victims.

3.8 The third point relied on by counsel for the D.P.P. was to suggest that the Court should have regard, in its overall assessment, to the fact that the very point which led the trial judge to exclude the evidence in question (being the fact that the form of warrant which was used to enter the premises on which Mr. C. was arrested was a form of warrant which was found to be unconstitutional in Damache v. D.P.P. [2012] 2 I.R. 266) was a point which had not been decided at the time when the events which give rise to the alleged offences in this case or, indeed, the evidence gathering concerned, occurred. In one sense, while not putting it like this, counsel suggested that an evolution in the law can cut both ways. If Mr. C. had been tried at an earlier stage (e.g. after the High Court had given its decision in Damache v. D.P.P. [2011] IEHC 197 but before this Court had allowed the appeal) then the trial judge would have been bound by the decision of the High Court to have rejected the objection to the admission of the relevant evidence at least insofar as it was based on a combined Kenny/Damache type ground. On that basis, counsel suggested that if Mr. C. was now to have the benefit of Damache (even though it did not form part of the law as it was understood at the time at which the alleged offences may have been committed or at the time when the relevant evidence was gathered), then equally justice permitted that he be retried on the basis of a new view of the test to be applied in considering the admissibility of evidence which has resulted from the decision of the majority in this case.

3.9 On this aspect of the argument put forward by the D.P.P., counsel for Mr. C. disagreed in principle and suggested that the Kenny/Damache point should not form part of the Court’s assessment.

3.10 Next it is necessary to identify some further factors which counsel for Mr. C. suggested ought properly be taken into account.

3.11 Counsel suggested that the Court should place significant weight on the fact that other accused persons had obtained the benefit of a Kenny/Damache point to secure their acquittal in the period after Damache had been decided by this Court and before the earlier ruling of this Court in this case. That much is certainly true. There may have been limitations on the extent to which persons who did not raise the relevant point at their trial may have been permitted to raise the point on appeal and there were, undoubtedly, very significant limitations on the extent to which it would have been permissible for someone to seek to reopen a case finally decided. However, that being said, there can be little doubt but that a number of persons successfully invoked a combined Kenny/Damache point and were thereby acquitted in circumstances where the D.P.P. does not appear to have sought to invoke a s.23 appeal to reverse that process.

3.12 In those circumstances, it is argued that it is unfair that Mr. C. should be, as it were, the only person who does not ultimately obtain the benefit of the point. It is suggested that that issue is of particular strength in this case given that no particular reason was advanced to suggest why it was Mr. C.’s case which was chosen as a vehicle to seek to bring the issue before this Court.

3.13 I did not understand counsel for the D.P.P. to dispute that some weight might be attached to the point, but counsel did suggest that it is almost inevitable in the context of the evolution of case law that some case will be the first case in which a point is successfully made. Furthermore, counsel noted that there will inevitably be people who benefit or fail to benefit by particular points simply by reason of the happenstance of time. Indeed, in that context, it is apposite to note the partially retrospective effect of some important, successful appeals brought by accused persons which also had the effect of changing the law as it was understood to be.

3.14 A recent example can be found in D.P.P. v. Gormley & White [2014] IESC 17. In that case, one of the relevant accused successfully appealed to this Court from a conviction which was significantly influenced by the admission of confession evidence which had been taken at a time after the relevant accused had sought legal advice, but before that legal advice had become available. There can be little doubt but that the trial in question was properly conducted on the basis of the law as it was understood to be at the time of the trial. Nonetheless this court, on final appeal, came to the view that previous authority, which had declined to go so far as recognising a right to prevent questioning in those circumstances, was insufficient to protect the rights of accused persons in custody. Despite the fact that the relevant evidence was admitted on the basis of the law as it was understood to be at the time of the trial in question, this court nonetheless upheld the appeal (on the basis that the trial judge was wrong to admit the evidence) and directed an acquittal. In that context, timing worked on favour of the accused.

3.15 The next point on which counsel for Mr. C. placed reliance was the fact that any retrial was likely to take place more than four years after the events giving rise to the alleged offences and three years after the decision of the Circuit Court to acquit. While it was not suggested that this would impact on the trial as such, nonetheless it was suggested that a significant lapse of time between an acquittal and a retrial was itself an unfairness or potential unfairness which should be taken into account. In that context, counsel placed reliance on the jurisprudence in respect of appeals against allegedly unduly lenient sentences which may now be brought by the D.P.P., such as D.P.P. v. Connolly (Court of Criminal Appeal, Blayney J., ex tempore, 25th November, 1996). It has been accepted in such cases that the fact that an accused either had not been sentenced to prison at all or had been subsequently sentenced but had been released, as a result of a sentence which was found to have been unduly lenient, was a factor which the Court can properly take into account in deciding what alternative sentence is to be imposed. It is, of course, the case that such a factor can rarely be decisive, for the Court is obliged to impose an appropriate sentence in all the circumstances of the case in the event that the sentence imposed by the trial judge is found to be unduly lenient. If that means committing someone to prison who was not initially sentenced to an immediate custodial period or requiring someone to be re-imprisoned who has been released then so be it. However, it is now established that such a factor can, at least, properly be taken into account.

3.16 Furthermore, it was urged by counsel for Mr. C., and accepted by counsel for the D.P.P., that the lapse of time with which the Court is concerned in determining whether to direct a retrial needs to be considered on a different basis to the type of lapse of time and prejudicial consequences which form the subject of the delay jurisprudence of the courts. Lapse of time for the purposes of considering a retrial is but one factor to be taken into account in an overall assessment of where the interests of justice lie. A lapse of time which would not be sufficient, in all the circumstances of a particular case, to justify either the prohibition of a criminal trial or the withdrawal of a trial from a jury by reason of prejudice established at the trial, is quite a different thing from lapse of time, falling far short of that, which might nonetheless properly be taken into account as part of an overall assessment of where justice lies in the context of considering whether to direct a retrial. It seems to me that counsel were correct in their submissions in this regard. There could never be any question of this Court ordering a retrial if the criteria for prohibition were met. If that sort of lapse of time and potential prejudice were established, in accordance with the jurisprudence of the courts and having regard to all the circumstances of the case, no retrial could be directed irrespective of any other factors. However, lapse of time which falls short of that level may nonetheless be taken into account in deciding whether the interests of justice favour a retrial.

3.17 Thirdly, counsel for Mr. C. placed particular weight on the fact that any retrial would require to be conducted on a different basis to the original trial. The reason why this is so has already been set out in the course of this judgment. It is argued that significant regard must be had, in the context of determining where the interests of justice lie, to the fact that Mr. C. was tried in accordance with the law as it was considered to be at the time in question and was properly acquitted on that basis. While counsel accepted that the fact that there would be a retrial on a different basis in those circumstances was not necessarily decisive, it was urged that this point was one to which significant weight should be attached. In particular, counsel suggested that there was a significant difference between a case of this type and a case where, for example, an accused was acquitted by reason of a ruling of a trial judge which simply involved a misapplication of well established law to the facts of a particular case and where, therefore, any retrial would be conducted on exactly the same basis as the original trial but without the error which formed the subject of the successful with prejudice appeal by the D.P.P.

3.18 I think it is fair the characterise the submissions of counsel for the D.P.P. as accepting that this was a factor which ought properly to be taken into account, but suggesting that the weight to be attached to it was significantly less than that urged on behalf of Mr. C. As I understand it, counsel argued that the fact that the section contemplates a retrial in circumstances such as this suggests that it should not be an overriding or dominant factor in the Court’s assessment of where the interests of justice lie.

3.19 To a significant extent, therefore, counsel were agreed as to the factors to be taken in to account although differing as to the weight to be attached to them. However, before going on to assess those factors, it is important to touch on one issue which also divided counsel. That question concerns whether, either formally or informally, it can be said that there is a presumption either way. The question is concerned with whether it might be said that there is a default position either in favour of a retrial or against a retrial which would require to be displaced by the presence of sufficiently weighty factors pointing in the other direction. In substance, the question is as to the appropriate starting point for any assessment of where the interests of justice lie.

4. The Starting Point
4.1 It is necessary to commence with the wording of the legislation itself. Shorn of language which is not material to this issue, the legislation provides that the Court may allow an appeal and quash an acquittal “if it is satisfied … that … it is, in all the circumstances, in the interests of justice to do so”. In considering whether it is in the interests of justice to quash the relevant acquittal, the Court is required to have regard to the factors set out in subsection (12). Furthermore, subsection (11) goes on to state that, if the Court is “not so satisfied”, the acquittal must be affirmed.

4.2 The overarching requirement is, therefore, that the Court is not entitled to allow the appeal and direct a retrial unless satisfied that it is in the interests of justice so to do. I do not consider it helpful or useful to speak, in that context, of an onus of proof. I, and other members of the Court, have commented in the course of our earlier judgments in this case on the problems which seem to arise in the practical application of this legislation. One of the problems thus noted is the question of identifying the evidence or materials by reference to which the factual judgments which the Court is required to make are to be determined. No evidence, as such, is placed before this Court on a s.23 appeal other than such evidence as may have been led at the trial.

4.3 Be that as it may, the legislation does require that the Court actually be satisfied of where the interests of justice lie and, in particular, be satisfied that the interests of justice favour a retrial before the appeal can be allowed. It seems to me to follow that the Court must do the best it can in forming such a judgment on the basis of all materials properly before it, but there may well be circumstances where the absence of sufficient materials might legitimately lead the Court to conclude that it could not be satisfied that the interests of justice favoured a retrial, and that it followed that the acquittal had be affirmed.

4.4 Counsel for the D.P.P. suggested that the section was neutral, neither favouring, on a presumptive basis, a retrial or an affirmation of the acquittal. I would put the matter somewhat further. Given that this Court is required to be satisfied as to where the interests of justice lie in order to direct a retrial, I do not think that it can be said that the section is entirely neutral. Rather it seems to me that, as I have suggested, the absence of adequate materials to enable the Court to form an overall judgment on important aspects of the question could only lead to an affirmation of the acquittal. Against that background, I now propose to turn to an assessment of the factors which require to be taken into account in this case.

5. Assessment
5.1 In the context of the criteria by reference to which the interests of justice are to be considered as set out in subs. (12), it is important to note that the Court is given a very wide brief in that subs.(12)(d) allows the Court to have regard to “any other matters which it considers relevant to the appeal”. While the Court is, of course, required to take into account the other matters expressly mentioned in subs.(12), the Court is, nonetheless, in no way confined to those matters, nor, in my view, is the Court confined in assessing the weight to be attached to those and any other relevant matters in the context of a particular case. I propose to commence by considering the express factors referred to in the subsection itself.

5.2 Subsection (12)(a) refers to the “conduct” of a retrial and whether such a retrial could be conducted fairly. There was, at the hearing, some debate about whether it was fundamentally fair that a person might be required to be retried on the basis of an application of a law which differed from the law as it might have been understood at the time when the original trial was conducted. That is a point to which I will return. However, it is clear that subs.(12)(a) is not concerned with fairness in that sense, but rather with whether the conduct of the trial itself can be fair. It was not suggested that a retrial in the circumstances of this case would be unfair as to its conduct, and therefore, subject to the question of the weight to be attached to that consideration, the criterion identified at subs.(12)(a) favours a retrial.

5.3 It should be noted that the factor which is required to be taken into account under subs.(12)(b) is the length of time which has elapsed from the events giving rise to the alleged offence. In the context of this case that length of time is four years. I would not place a very significant weight on a lapse of time of that extent although some regard should be paid to it. In that context, I am also satisfied that it is appropriate for the Court, as one of the additional factors which can be taken into account under subs.(12)(b), to have regard to the length of time which has elapsed since the acquittal of the accused. In this case that period is three years, and for the reasons already advanced in this judgment, I am satisfied that some regard should be given to that fact. A person who has had the benefit of an acquittal but has had the possibility of a retrial hanging over them for a period of three years is entitled to have that fact taken into account. It should be emphasised that neither party can be said to have been at fault in any way in the context of the length of time which it has taken for this matter to come to final determination. It was inevitable that a case of this type would take some significant period of time to determine. First, there is the fact that this was the first occasion when the legislation in question was utilised. For the reasons already addressed in a number of previous judgments in this case and in this judgment, there are, at a minimum, difficulties with the legislation which made it inevitable that questions would be raised as to whether the legislation can be applied at all in the circumstances of this case, and how, even if it can, it is to operate in practice. It should be said that the difficulties with the legislation which have already been identified made those questions significantly more complex and necessarily added to the length of the process.

5.4 Furthermore, the fact that it was sought to invite this Court to reconsider an important issue in the law of evidence with significant constitutional considerations inevitably added to the length and complexity of the process. While the length of time which it has taken was, perhaps, inevitable, it nonetheless seems to me that the Court must have some regard (although I would not place the weight to be attached to this factor at a very high level) to the fact that Mr. C. was acquitted three years ago and has had, through no fault of his own, this issue hanging over him since.

5.5 The third specific matter which the Court is required to have regard to is the interests of the victims of the alleged crimes. Obviously any victim has an interest in seeing that there be a trial on the merits of any person in respect of whom there may be sufficient evidence to suggest a possible and sustainable verdict of guilty. Insofar as the Court may be required to consider the interests of the particular victims concerned in these proceedings, it is, as has been pointed out earlier, impossible to go beyond a general view of the type of effect which crimes of this type generally might have on victims, for the Court has not the benefit of any detailed information which would allow it to take any more considered view.

5.6 That deals with the specific factors mentioned from (a) to (c) in the subsection. However, I agree that the additional factors identified by counsel on both sides are also, potentially, matters to which the Court should have regard under subs.(12)(d). In that context it is necessary to make an overall assessment.

5.7 In my view, the fact, as urged by his counsel, that Mr. C. would transpire to be somewhat unique in not having the benefit of a Kenny/Damache type argument is a factor which, while far from decisive, must weigh heavily in the balance. I take the view that such a factor could not be decisive, for if, in truth, as I have already suggested, no successful appeal could be brought in those circumstances, then it is hard to see how it would have been proper to interpret the section as allowing for an appeal in a case where the law as it was then understood to be was accepted as having been properly applied. That being said, I do, however, think that it is a weighty factor on the side of not directing a retrial. I am also inclined to agree with counsel for Mr. C. on the question of the weight to be attached to the fact that it is accepted that a retrial could be conducted fairly. Some weight must be attached to that factor which, of course, favours directing a retrial, but I consider that the factor concerned is more likely to weigh against a retrial where the accused may be able to point to some impairment in his ability to fairly defend. It may be that in some cases such prejudice may be sufficiently significant that the Court would, on that basis alone, be required to decline to order a retrial. The extent to which a fair trial can be conducted is, perhaps, properly characterised as being more of a negative factor whose absence would tend to weigh heavily against directing a retrial but whose presence may not carry quite the same weight in favour of allowing the appeal.

5.8 Likewise, for the reasons already advanced, I would not place too great a weight on lapse of time, although it is a factor to be taken into account and it does, for what it is worth, lie against directing a retrial. On a similar basis, and again for the reasons already advanced, I am satisfied that some weight in favour of a retrial must be attached to the interests of the victims even though it is not possible to assess the extent of the interests of those victims with any precision due to the absence of any materials relevant to that question.

5.9 Next, I should say that I do not consider that the fact that Mr. C., at his trial, obtained the benefit of the Kenny/Damache point by luck in timing is a factor to which any particular weight should be attached. It may, however, be proper to consider that factor as somewhat mitigating Mr. C.’s point concerning the fact that he alone may be deprived of the benefit of the Kenny/Damache point, for that too is largely a question of timing.

5.10 The final point relied upon on behalf of Mr. C., being that any retrial would necessarily be conducted on a basis different to that which would have been understood to have been the correct basis when he was originally tried is, in my view, to a large extent, much the same point as the one which suggests that Mr. C. alone would be deprived of the benefit of the Kenny/Damache point. In reality, the suggestion is that significant weight should be attached to the fact that the interests of justice would not be served, in the absence of some weighty countervailing factor, by Mr. C. being, as it were, singled out for a retrial which, while it would undoubtedly be conducted in the same way as any trial which took place after this Court’s earlier judgments in this case had been delivered, would undoubtedly be conducted on a different basis to that which would have been considered to be the correct basis of the law as it was then understood at the time when Mr. C. first came to trial. In that context, it is, in my view, correctly argued that much greater weight against a retrial lies in a case such as this as opposed to a case where the retrial would be conducted on exactly the same basis as the original trial but correcting for an error identified in the manner in which that trial was conducted by reference to the law as it was then understood.

5.11 I do not, for the reasons which I have sought to set out in respect of each of the factors which might favour a retrial, take the view that any of those factors are sufficiently weighty to countervail, in the circumstances of this case, that factor. It seems to me that the balance, therefore, favours not directing a retrial, for I am not satisfied that the interests of justice so require. Before concluding I propose to make some final observations.

6. Some Observations
6.1 In the circumstances identified in my earlier judgment in this case, the Court accepted that this appeal would proceed in two phases. Having seen the process to its conclusion I have come to the view that, speaking for myself, I would not favour such a modular approach were any further appeals under s.23 to come before the Court. In this second module, each of the judges has been invited to consider whether a retrial should be directed. However, a significant minority of the Court was of the view that either or both of the issues decided earlier should have been found in favour of Mr. C. so that, on that view, there either was no jurisdiction to entertain an appeal of this type at all, or even if there were, this Court should not have departed from Kenny. On that basis, and in the context of a unitary hearing of the appeal, it would have been unnecessary for those judges to have expressed any view on the question of whether a retrial would have been appropriate. Even if those judges wished to make some observations on that general question, same could not conceivably have been in the context of actually directing a retrial, but only by way of observation as to the views which would have been taken in the event that it was felt that an appeal lay and the first leg of the test (being that there was an error) was met.

6.2 It clearly could never be the case that the ultimate result of an appeal could depend on whether it was conducted in a unitary or a modular fashion. It is in that context that I cannot fully agree with the view of MacMenamin J. that there may be a justification for a different approach to the interpretation of the legislation in this module than that which was applied in the previous module. Notwithstanding that it does, however, seem to me that the process has, with the benefit of hindsight, turned out to be less than satisfactory. I would not favour a modular trial of a s.23 appeal in the future.

6.3 I should finally add that I agree with the judgments of the Chief Justice and O’Donnell J. I also agree, subject to the minor reservations addressed earlier, with the judgment of MacMenamin J.

7. Conclusions
7.1 For the reasons set out in this judgment I am not satisfied that, in the words of s.23(11) of the 2010 Act, it is in the interests of justice to direct a retrial.

7.2 It follows that, in my view, Mr. C.’s acquittal must be affirmed.



Second Judgment of Mr. Justice John MacMenamin dated the 22nd day of June, 2015.

1. This judgment is to be read in conjunction with my prior judgment herein wherein I expressed my full agreement with the judgments of O’Donnell J. and Clarke J.

2. When the respondent herein, J.C., walked from the courthouse, having been acquitted by direction, he was entitled to be considered as having the same status as if he had been acquitted by a jury after a full trial. The trial process was complete. The entire trial had been conducted in due course of law, as the law then stood. There is no suggestion that the decision of the court was tainted by any consideration which would vitiate the trial. To the objective observer, the trial was over.

The Invocation of Section 23 of Criminal Procedures Act, 2010
3. However, in this instance circumstances dictated otherwise. The Director of Public Prosecutions chose this case in order to bring an appeal to this Court under s.23 of the Criminal Procedure Act 2010. But the question, to which there has been no satisfactory answer is, why, for this particular purpose did the Director decide to invoke s.23 of the 2010 Act, rather than s.34 of the Criminal Procedure Act 1967 (as amended), which allows for a reference of a question of law to this Court “without prejudice” to the verdict of acquittal in the case? Such a procedure, under s.34 of the 1967 Act, would have been entirely suitable for determining the point of law raised in this appeal. What the Director was seeking to achieve was to ask this Court to review the law, not correct some misdirection by a trial judge (see, by way of contrast, the judgment of this Court in DPP v. RD, The Supreme Court, Dunne J. 16th June, 2015).

4. It is to be noted that s.28 of the 2010 Act provides that “nothing … shall affect any right of Appeal or review provided by this Act or any other enactment of rule of law”. Thus, by its own terms, the Act of 2010 does not preclude the invocation of s.34 of the Criminal Procedure Act 1967. This situation raises a matter which can only cause concern. The earlier, 1967 procedure allows for a “without prejudice” appeal to a verdict of not guilty. The 2010 Act involves the possibility of such a verdict being quashed and a retrial ordered, but under a new and different legal framework, when the law had been reviewed. Could it be fair or just that an accused, having been acquitted by direction, could be exposed to a retrial, but this time subject to altered evidential rules brought about by an appeal in his, or her, own case?

5. Counsel for the respondent has correctly drawn attention to observations made by Henchy J. in The People (D.P.P.) v. Quilligan (No. 2) [1989] I.R. 46. These were in the context of whether this Court then had jurisdiction to order a retrial where it had allowed an appeal from an acquittal in the Central Criminal Court. In the course of his judgment Henchy J. referred to the existence of the appeal procedure under s.34 of the Act of 1967. He observed:-

      “Were this Court to purport to take onto itself such a jurisdiction, it would in my respectful opinion, thereby be effecting an unconstitutional subversion of the duly expressed legislative will as disclosed by s.34 as well as unconstitutionally discriminating between persons acquitted by direction in the Central Criminal Court. It would be neither fair nor constitutional if the right of a person acquitted by direction to escape a retrial depended on the mode of appeal chosen by the prosecution.” (emphasis added)
6. Even though s.23 of the 2010 Act differs from s.34 of the 1967 Act, the question remains, why was s.23 invoked? It follows from Henchy J.’s observation that this Court should very closely scrutinise the existence of a parallel jurisdiction which might, variously, expose a person to retrial, or no retrial (dependent on which statute is invoked), but in circumstances where the law might have changed as a consequence of an appeal.

7. It is inescapable that s.23 seeks to operate so as to modify or reduce rights previously enjoyed under the principle of double jeopardy. But s.34 of the Criminal Procedure Act 1967 remains on the Statute Book. In fact, it has recently been invoked and relied on by the Director in this Court. In The Director of Public Prosecutions v. M.C. [2015] 1 I.L.R.M. 131 this Court had to consider the interpretation of s.30(3A) of the Offences Against the State Act 1939 in the context of a charge of possession of explosives. That case is worth examining in a little more detail.

DPP v. M.C.
8. The defendant, M.C. had been arrested on suspicion of membership of an illegal organisation. That arrest followed from the search of his home, where explosive manufacturing equipment and ingredients had been found. During custody, the respondent was informed that questioning would turn from membership of an illegal organisation to the explosives. Subsequently, the respondent admitted responsibility for the items. Through this evidence of admission, the respondent was charged with possession of explosives. The trial came before the Special Criminal Court, where it was held that the continued detention, subject to the change in questioning, was unlawful under the Offences Against the State Act 1939, s.30(3A); the admissions were made when Mr. C. was in unlawful custody, thereby making them inadmissible. As a consequence Mr. M.C. was acquitted. However the Director of Public Prosecutions referred a question of law under s.34 of the Criminal Procedure Act 1967 to the Supreme Court concerning the manner in which the Special Criminal Court had interpreted subs. 3A which allows continued detention where there are reasonable grounds for believing that continued detention is necessary for the proper investigation of an offence other than the one to which the suspect’s detention relates. In holding that the argument of the Director of Public Prosecutions was correct, and that the Special Criminal Court had been incorrect in the approach which it had adopted regarding the lawfulness of Mr. C.’s detention, this Court was acting without prejudice to the acquittal of the respondent. As can be seen, therefore, the issue which arose in that case was subtly, but crucially distinct from the question which the Director sought to have reviewed in the instant case. What was in question in M.C., just as in R.D., was, simply, an incorrect application of the law. In such a circumstance there is clearly a rationale for ordering a retrial; as a court misdirected itself. But the law remains unchanged. The situation here is distinct. It raises in a more stark form the question of double jeopardy when the law which has been reviewed, changed, and then applied to the same accused at a retrial for the same offences. In fact, there would have been a far stronger rationale for invoking s.23 of the 2010 Act in the M.C. case than here.

Interpretation of Section 23

9. It is necessary also to have regard to the fact that what is in question, now, in this application consequent upon the decision of the majority, is one in which the respondent’s liberty is truly at stake. Thus there can be no doubt now that the relevant sections of the Act to which I will refer later, and which are now sought to be relied on, now fall to be strictly construed for the reason that to accede to the Director’s application would necessitate a retrial. Because of this critical distinction, I imparted a broad interpretation to the ‘error’ provision of s.23 of the 2010 Act, but must now adopt a strict interpretation of the “retrial” provision.

10. Having achieved a favourable outcome on the “exclusionary rule” issue counsel for the Director has been instructed to seek a retrial of the respondent. It would follow that at such retrial the issue as to the admissibility of any excluded evidence would be determined by applying the principles outlined in the judgment of the majority to which I subscribed.

Is Section 23 Operable in Different Circumstances?
11. As well as the more general, principled, concerns which I have expressed, it seems to me that were s.23 to be invoked in the future, the question might arise as to whether it places the court hearing the appeal in the position of a court of first instance, rather than an appeal court. Fortuitously, from the Director’s viewpoint, there was no disagreement between the parties in this appeal as to how the requirements of s.23 had been complied with. But what might have been the position if there had been no such consensus between the parties? I am well aware that similar observations have been made in dissenting judgments regarding the operability of this section. I hope not to repeat those concerns here. For convenience however, it will be of assistance to again quote s.23(14) as follows:-

      “(14) In this section “compelling evidence”, in relation to a person, means evidence which—

      (a) is reliable,

      (b) is of significant probative value, and

      (c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.”

12. Using the present case as a template, it is useful to recollect that the respondent is alleged to have admitted guilt in the final thee of six interviews which he gave to member of An Garda Síochána in the relevant garda station. What would have been the position if the requirements as to the three factors (a), (b), and (c), above, had been put truly put in issue?

“(a) is reliable
13. I am unclear as to how an appeal court would approach the issue of “reliability”, were a hypothetical respondent to deny making statements of admission, or were he to say that the statements were incorrect in some particulars, but correct in others. Questions such as these arise very frequently in trials. The question of “reliability” could hardly be resolved on affidavit. Is it thought that the “reliability” would be tested by way of the service of a notice to cross examine? And then before which court? The “court” must be the court considering the s.23 application. Absent cross-examination, how is it envisaged that an appeal court could, possibly, resolve issues which are directly in conflict on affidavit? This court, or any appeal court, is not a court of first instance. It is not generally designated to carry out fact finding tasks under the Constitution, save in the most exceptional cases. The question of determining whether evidence is “reliable” is a value judgment where, quite conceivably, there could be room for genuine disagreement among different members of a court. By what standard of proof would this be assessed? How then would the court proceed? Might the question of reliability be determined by a bare majority of the court? What might be the position where, (as also frequently happens), a number of different statements or admissions were allegedly made in different circumstances, or in different places, where different members of An Garda Síochána were present? Is it thought that each person involved would swear affidavits, and be cross examined upon them?

“(b) of significant probative value”
14. The question of whether evidence is probative arises all the time in the courts. But judges frequently conclude that the determination of the extent to which evidence is probative is to be seen in the light of the entirety of the evidence at the trial. Such an exercise simply could not have worked in the present case, where the judge granted a direction on the voir dire. As in the case of “reliability” there also could be room for legitimate disagreement as to the “probative” value of evidence.

“(c) taken together with all the other evidence adduced in the proceedings concerned …”
15. Test (c) assumes that the evidence will be assessed in the light of all the other evidence. But it is to be noted that this evidence is to be “adduced in the proceedings concerned”.

16. Again, taking this appeal as a template, it will be noted that all the evidence certainly was not “adduced”. What was referred to this Court was largely a transcript of the voir dire. But there was no evidence before this Court regarding the alleged substantive offences. How then would the evidence in question be “adduced in the proceedings concerned”? This clearly goes further than a statement in a book of evidence. “Adduced” must necessitate that a witness testified and was available for cross examination.

17. A consideration of s.23 as a whole makes clear that the tasks envisaged are to be performed by the court before which the appeal is heard, and no other court. Throughout the section, as drafted, the “court” referred to is “The Supreme Court”. Yet this must be reconciled with the provision contained in subs. (c) (referred to above) that the evidence is to be viewed “when taken together with all the other evidence adduced in the proceedings concerned …” (emphasis added). Is it then envisaged that, perhaps, all the evidence should be adduced, in circumstances where what might be in question is a large Book of Evidence? In a voir dire the trial court need only examine evidence relating to arrest charge caution and the interviews. And I should add what is in a Book of Evidence is not “evidence” until adduced in a Court.

Application of the Requirements in the Section
18. I turn now to the further provisions which require consideration in determining, having regard to the provisions of the Constitution, whether a retrial should be ordered.

Discretion
19. Section 23(11) provides:-

      “(11) On hearing an appeal under this section the Supreme Court may

        (a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied
            (i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

            (ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

        or

        (b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.” (emphasis added)

20. The Director of Public Prosecution brings this appeal. The onus therefore lies on the Director to satisfy the Court in relation to the matters to be satisfied under the section in order for the appeal to be quashed and a retrial ordered. The onus is on the Director, therefore, positively to satisfy the Court that “in all the circumstances” it is in the interests of justice to quash the acquittal.

21. I reject the proposition that once the point of law has been determined in favour of the appellant (as here), the default position is that a retrial should be ordered, unless there is some particular reason for not doing so. The emphasised portions of subs. 11 (above) indicate very clearly that the court dealing with the matter is exercising a discretion. Eliminating superfluous words, therefore, the court may order a retrial if it is satisfied that it is in the interests of justice to do so. The subsection decidedly does not provide that the court “shall order a retrial”, nor is there any other phraseology to that effect. The overarching consideration in subs.(11), therefore, is whether or not such retrial would be “in the interests of justice” (s.23)(11)(ii). The interests of justice must necessarily fall to be considered in a constitutional manner. It follows, therefore, that among considerations to be borne in mind by the Court (although not all are necessarily individually determinative) are questions of double jeopardy, legal certainty and retroactivity. The Court must necessarily conduct an assessment, having regard both to legal considerations (dealt with here), and also factual considerations which will be dealt with below in considering section 23(12).

Double jeopardy
22. It is indisputable that, at minimum, the question of double jeopardy forms a significant backdrop to this case. The Act of 2010 seeks to create exceptions to that very long established constitutional principle. The judgments of the minority, in the first module, have considered the question of double jeopardy in detail, and any reiteration would be surplus. As Murray J. points out: “… for there to be exceptions to the rule it would be necessary that they be clearly identified and would require a high threshold, by reference to express criteria. These would have to be provided for by the legislature in the clearest of terms.” I do not consider I have to go so far as to find that to order a retrial would, necessarily offend against the principle of double jeopardy. It is sufficient merely to reiterate that it looms large as a consideration to be placed in the assessment. It is necessary also to bear in mind the circumstances, and law of evidence under which a retrial would take place.

Legal certainty
23. Similar considerations arise in relation to the principle of legal certainty. Again it would be superfluous to reiterate earlier observations on the matter in the other judgments. It is noteworthy that the Court has not been referred to any authority from the common law world which would allow for a retrial in circumstances such as these.

24. Counsel for the Director, in the course of his able submissions, submits that, because of the fact that the acquittal has been quashed herein it is thereby nullified (see D.P.P. v. Foley (Unreported, Supreme Court, 23rd January, 2014); D.P.P. v. Quilligan (No.3) [1993] 2 I.R. 305). Counsel has also referred us to the preamble to the 2010 Act which states, in terms, that it is intended to make “provision for exceptions to the rule against double jeopardy” and “to extend the circumstances in which the Director of Public Prosecutions … may take an appeal in criminal proceedings …”. But no exact precedent for ordering a retrial, in circumstances such as the present, has come to light. We can be sure that this is not due to inadvertence or lack of research. The closest authority found, and now relied on by the Director, was on the facts arising in the judgment of the European Court of Human Rights in S.W. v. United Kingdom [1995] 21 E.H.R.R. 363. There, the court held that a trial complied with Article 6 ECHR, even in circumstances where, between the time of committing a rape upon his wife and the trial of the applicant, the law in the United Kingdom with regard to marital rape had changed. The European Court of Human Rights held that compliance with Article 6 was engaged in circumstances where it was to be anticipated that changes in the law might take place, but that it was reasonably foreseeable that a person, such as the applicant might be subject to such change. This is quite distinct from the present case. The court observed:-

      “36. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law making is a well entrenched and necessary part of legal tradition. Article 7(art.7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”
The law is always open to gradual clarification through judicial interpretation on a case by case basis.

The Requirements Under Sub-section 12
25. I turn then specifically to the further requirements, set out in s.23(12). This provides:-

      “(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to -

        (a) whether or not it is likely that any re-trial could be conducted fairly,

        (b) the amount of time that has passed since the act or omission that gave rise to the indictment,

        (c) the interest of any victim of the offence concerned and

        (d) any other matter which it considers relevant to the appeal.” (emphasis added)

26. What is necessary under subsection 12, therefore, is to determine whether or not a retrial can be conducted fairly having regard to specific factors which are to be seen cumulatively, that is to say passage of time, the interests of any victim of the offence, and any other matters relevant to the appeal. Insofar as the subsection is ambiguous at all, in interpreting strictly, I consider that the usage of the word “and” at the end of (c) must indicate that each of the factors (a), (b), (c), (d) are to be considered cumulatively, and, therefore, it follows that a defect in the proofs under any heading will, in itself, be fatal to the application for a retrial.

“(a) fairly
27. The question of “(a)” fairly has been largely considered under the heading of “interests of justice” earlier. I need not add to this judgment by repetition.

“(b) amount of time”
28. Counsel for the Director has fairly observed that there is a question mark in relation to whether or not a witness will be available. The matter goes no further than that, but it is nonetheless a consideration.

29. Additionally, it is the case that four years have passed since the date of the alleged offences. Three years have elapsed since the respondent’s acquittal in the Circuit Criminal Court. The notice of appeal herein was dated the 10th August 2012. As a consequence, the respondent has had to undergo uncertainty arising from this appeal remaining in being. In the circumstances of the case I consider that this is a factor to which the Court may have regard, although it is obviously not a determinative one. Such a factor was considered in the determinative judgment of the Court of Criminal Appeal in D.P.P. v. Connolly (ex tempore Court of Appeal, 25th November, 1996, Blayney J.) (see also Howarth v. United Kingdom ECHR [2000] 31 EHRR 681), where the Court of Human Rights determined that Article 6.1 rights were violated where a period of two years elapsed between the date of the imposition of an original non-custodial sentence of the court of trial and the substitution of a custodial sentence by the Court of Appeal on foot of a prosecution appeal against sentence. But I do not consider that the passage of time puts the issue beyond doubt. Much of the time elapse was inevitable and derived from the exigencies of the listing system. It is to be borne in mind that this Court is obliged “insofar as possible”, and through the prism of decided ECtHR jurisprudence, to interpret and apply provisions of s. 23 of the 2010 Act in a manner compatible with the State’s obligations under the Convention.

“(c) the interests of any victim of the offence concerned”
30. Undoubtedly the impact on a victim is a factor which might weigh heavily in favour of directing a retrial; in a hypothetical case. But under the Act of 2010 a court must look specifically at the interests of “any victim” rather than taking this into account indirectly as part of a wider public interest in the prosecution of offences. This again is consistent with strict interpretation which is applicable. There is no such evidence before this Court. The requirement cannot weigh heavily, or at all. No affidavit evidence has been adduced from any victim. Nor has any material been referred to which in any way would indicate that there had been a specific impact on any victim. One must accept that the offence of robbery or attempted robbery has an inherent gravity. However, the circumstances of the commission of an offence may vary quite considerably as can the sentence which such an offence might attract. Nothing in the transcript of the voir dire at the trial deals with victim impact. Thus, because of this absence, even taken in isolation, I am of the view that the application for a retrial must fail.

“(d) any other relevant matters”
31. In consideration of whether or not there are other “relevant matters” I bear in mind specifically the considerations which are to be found in the introductory section of this judgment. I will not repeat them.

32. I would bear in mind too the Director’s submissions, viz. the fact that the evidence excluded by the trial judge was obtained in circumstances in which the gardai invoked a provision in an Act of the Oireachtas subsequently declared by this Court to be invalid having regard to the provisions of the Constitution, but enjoying the presumption of constitutionality when the warrant was issued; the consideration that if a retrial was ordered the respondent would be free to test the admissibility of the evidence obtained by reference to the test formulated by this Court; the seriousness of the charges in question; and the fact that a judge would undoubtedly apply the law in accordance with the Constitution. But none of these (no matter how well argued) can outweigh the considerations outlined earlier.

33. On the facts of this case, the balance overwhelmingly stands against the order of a retrial. I., therefore, agree with the order proposed by my colleagues. I would reserve any further consideration as the constitutional status of s. 23 until an appropriate case arose, if it is thought fit to invoke the section again in the future.


JUDGMENT (No.2) of Mr. Justice William M. McKechnie delivered on the 22nd day of June, 2015

Introduction
1. As explained in my judgment delivered on the 15th April, 2015 (“the main judgment”), the Director of Public Prosecutions (“the DPP”) has for many years expressed dissatisfaction with the decision of this Court in The People (DPP) v. Kenny [1990] 2 I.R. 110 (“Kenny”). Occasionally in the intervening period she has sought to have the principles outlined in that judgment stood down by this Court (see, for example, DPP (Garda Walsh) v. Cash [2010] 1 I.R. 609), with the latest such occasion being the instant case. For this purpose the statutory vehicle which she has used is section 23 of the Criminal Procedure Act 2010 (“section 23 of the 2010 Act”).

2. Arising out of the Notice of Appeal served under that section, a number of issues were raised which gave rise to the judgments previously delivered by several members of the Court in April of this year ([2015] IESC 31). The first related to the validity of the respondent’s arrest in the circumstances in which that occurred; this can be considered as a discrete point and is not material to the remaining issue which forms the subject matter of this, the second judgment in the case. The second ground of appeal was the launching of a frontal assault on Kenny, with this Court being invited, if it should agree with the submissions advanced in support thereof, to replace the Kenny principles with some new form of test more accommodating to her wishes. This was considered to be the most substantive basis of the DPP’s appeal. To achieve this end, however, it was necessary for her to establish that the provisions of section 23 of the 2010 Act applied to the circumstances of the case. That issue, as it turned out, took on an importance of its own and became the focus of quite a significant debate and a searching analysis involving both individual and collective components of the section.

An Error of Some Significance
3. For the reasons set out in the main judgment, which are again briefly referred to in this judgment, I took the view that as the key purpose of the section was to secure a re-trial of the respondent, who previously had been acquitted of all charges laid against him, it was not possible for this Court to resolve the Kenny controversy without being satisfied that such a re-trial was appropriate. Therefore, it self-evidently followed that both issues would have to be determined at the same time.

4. Unfortunately, however, prior to the commencement of the substantive hearing, it was agreed – without much, if indeed any, debate – that the question of a re-trial would be left standing until the other issues had been determined. As the hearing progressed and certainly as I began to deliberate on matters for the purposes of the main judgment, it became clear to me that this was a significant error. In light of the Court’s view on the question of a re-trial, the major concerns with the section which I envisaged even at that stage, as set out in the main judgment, have become a reality. In my view, the resulting situation should never have been permitted to occur, much less have been accommodated, even if inadvertently so, by the approach of this Court.

Section 23 of the 2010 Act
5. In the main judgment I concluded, after a detailed examination of Part 3 and Part 4 of the 2010 Act, that section 23 of the Act, in both its terms and its practical application, is dysfunctional. In light of the submissions made, and having regard to the exchanges had during the hearing on the re-trial aspect of this appeal, I am satisfied to the highest level of certainty that the section is functionally unworkable, utterly inoperable and entirely misguided in both its conception and placement. Despite this view, for so long as the section remains on the statute book, the courts may be constrained by necessity to give it some utility, as the type of forensic examination conducted in this and in the main judgment may not be requested in all cases.

6. Subject to subsection (3) and section 24, the DPP (or the Attorney General, as may be appropriate) may appeal to the Supreme Court under section 23 of the 2010 Act on a question of law arising out of the acquittal of a person tried on indictment before any court of competent jurisdiction. That subsection is of significance, as are subsections (11) and (12), and they thus require to be outlined. Such provisions read as follows:

        “23.—(3) An appeal under this section shall lie only where—
            (a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or

            (b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—


              (i) the direction was wrong in law, and

              (ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.

        (11) On hearing an appeal under this subsection the Supreme Court may—
            (a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied—

              (i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

              (ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to so do,

        or
            (b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.
        (12) In determining whether to make an order under subsection (11)(a) the Supreme Court shall have regard to—
            (a) whether or not it is likely that any re-trial could be conducted fairly,

            (b) the amount of time that has passed since the act or omission that gave rise to the indictment,

            (c) the interest of any victim of the offence concerned, and

            (d) any other matter which it considers relevant to the appeal.” (Emphasis added)

7. As pointed out in the main judgment, the interpretation of section 23(11) of the 2010 Act is of the first importance: such in its entire application must be strictly construed. I can see no scope whatsoever for applying a different standard of construction to some of its requirements, in particular those mentioned at subpara (a)(i), as distinct from certain other elements of the section. Its true meaning, in my view, must be ascertained by the context in which it sits and by reference to other provisions of the Act which can be regarded as truly being in pari materia with it. This means that some provisions of Part 3 of the 2010 Act are also relevant.

8. Part 3 of the 2010 Act, which is headed “Exceptions to rule against double jeopardy”, contains sections 8 to 10 inclusive. Under section 8, the DPP may seek a re-trial of a person acquitted by jury verdict, either on the merits or by direction, of a “relevant offence” if it appears to her that there exists “new and compelling evidence” and that it is in the public interest to so do. A similar application may be made, under section 9, where a person has been convicted of an offence against the administration of justice, which offence is referable to the trial from which the acquittal resulted and where it is in the public interest to do so. Both applications must be made to the Court of Criminal Appeal (pre-2014); if the Court, on the hearing thereof, is satisfied as to such matters, it “… shall make a re-trial order quashing the person’s acquittal and directing that the person be re-tried …” if it is in the interests of justice to do so. (section 10(1) and (2) of the 2010 Act).

9. In deciding whether or not to make the order as applied for, that is, a re-trial order, the Court must have regard to certain matters outlined in section 10(3) of the Act, such as whether or not any re-trial could be conducted fairly, the amount of time that has passed since the act or omission that gave rise to the indictment, and the interests of any victim of the offence concerned. Such matters, incidentally, are identical to those mentioned in section 23(12) of the Act.

10. The provisions of subsections 10(1) and 10(2) of the 2010 Act, which relate to applications under section 8 and section 9, respectively, envisage the making of one order only: not two orders. No distinction is made or provided for between the court being satisfied as to the existence of the matters specified in section 8 or 9, as the case may be, on the one hand, and being satisfied to quash the acquittal and order a re-trial, on the other. There is but one composite order involved and no more. This makes perfect sense, as the pivotal purpose of sections 8-10 of the Act is the seeking of a re-trial, which if granted would inevitably involve quashing the conviction. There would be no point whatsoever in the court declaring that “new and compelling evidence” exists (section 8), or in finding that “compelling evidence” exists and that a conviction against the administration of justice has been secured (section 9), whilst at the same time not being satisfied that a re-trial should be ordered. All such matters are inherently interlinked and each must be regarded as an essential part of the overall exercise. Therefore, unless satisfied that all of the requirements exist, the Court should simply dismiss the application. To do otherwise would be abusive of the provisions. In my view, similar reasoning applies to section 23 of the 2010 Act.

11. Section 23 of the 2010 Act is in Chapter 1 (“With prejudice prosecution appeals”) of Part 4 (“Appeals and Matters Relating to Appeals”). In the main judgment I have set out what I believe is the correct interpretation of the section; in particular, I have argued:

        (a) that, much like sections 8–10 of the Act, subsection (11) envisages one order only where the application is successful, which is to quash the acquittal and order a re-trial;

        (b) that such an order can only be made if the requirements of subsection (11)(a)(i) and (ii) are met (para. 6, supra); and

        (c) that these are cumulative conditions and not disjunctive; unless both are satisfied, the Court must not only refuse to make the order applied for but must affirm the acquittal (subsection (11)(b)).

12. It follows from this analysis that the issue raised by the erroneous ruling of the trial judge, as found by the majority, which is the Kenny issue, should never have been considered in isolation from or prior to the re-trial issue. As matters now stand the use of section 23 of the 2010 Act has been utterly futile in that no re-trial is being ordered, which relief is at the heart of the section. Every success, if one can call it that, which the DPP has gained from the majority judgment could have equally been obtained if the opinion of this Court was sought pursuant to section 34 of the Criminal Procedure Act 1967, as amended (“the 1967 Act”). That section not only remains on the statute book but every right of appeal provided for “by [the 2010 Act] or any other enactment or rule of law” has been expressly preserved by section 28 of the 2010 Act. It is therefore a matter of the utmost regret that the DPP has decided to pursue a “with prejudice” appeal to obtain the same result, when in fact another and entirely more appropriate process was available via the provisions of section 34 of the 1967 Act.

13. There is, however, another consequence arising out of the outcome of this appeal which is even of greater significance. One is now left in a situation whereby the majority of this Court is satisfied that section 23(3)(a) of the Act has been satisfied but that no re-trial will take place. The former means that the trial judge erroneously excluded “compelling evidence”: such, by statutory definition, is described as being “reliable”, “of significant probative value” and is such “that when taken together with all of the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned” (section 23(14) of the 2010 Act). Again, as pointed out in the main judgment, this conclusion is a public declaration by the Supreme Court that, but for the ruling, there was in fact adduced at the trial sufficient evidence that a jury might reasonably have convicted the respondent. Such is now part of the public record and preserving the anonymity of Mr. C is hardly sufficient to mitigate the seriousness of this finding. And yet the Court must, according to subsection (11)(b) of the section, “affirm the acquittal”: not simply dismiss the appeal but uphold the innocence of the respondent. This positioning is entirely irreconcilable; with great respect, therefore, I believe the outcome to be illogical, irrational and bordering on being farcical.

14. Furthermore, there is no judicial or other avenue by which the respondent, if he so wishes, could take any steps to challenge the obvious implication of this Court’s conclusion, as above set out, with a view to re-establishing his good name. Therefore, although effectively declared an innocent man, he must suffer this major stain on his character and good name for life. This, even intuitively, offends against both common sense and also, more importantly, against elementary principles of justice. This could hardly have been envisaged by the section; I am entirely perplexed by such result.

15. So the Kenny issue should never have been determined unless, in conjunction with it, the Court had considered and concluded that a retrial would be appropriate, which would inherently involve quashing the acquittal. In my view, the section does not permit a separation of such matters; subsection (3) issues should not have been pronounced upon unless and until the Court was also satisfied on the re-trial issue. If the appeal had been processed in his way, I am not at all certain that the outcome would be as it is.

16. A further point to consider: operating the section in the manner in which it has been in effect incorporates into it the facility provided for by section 34 of the 1967 Act. If by the use of section 23 of the 2010 Act, the DPP can obtain the opinion of this Court (pre-2014) in precisely the same way as she can by utilising section 34 of the 1967 Act, but with the added advantage of getting a re-trial if all goes well, what is the incentive to seriously choose between one and the other? This may not be of real importance to the prosecuting agencies but it has great significance for an acquitted person who can rest with finality in one situation, but who must survive in an atmosphere of hostile aggression and uncertainty in the other. This Court, in my view, should not permit the interchangeable use of these provisions. It should establish, as definitively as may be, the parameters between both sections and should also specify the limited and exceptional circumstances in which section 23 could be invoked, even if the necessary evidential base could otherwise be established, which I very much doubt.

Legal Certainty
17. It had not been my intention to add to what I have previously stated in the main judgment regarding this question of legal certainty arising out of the test substituted for the Kenny principles. However, in light of the remarks make by Clarke J. in his judgment in this regard, I should make some observations.

18. First, I do not recall that the discussion regarding legal certainty had during the present application raised either of the two concerns identified by Clarke J. at para. 2.1 et seq. of his judgment. I believe that each member of the Court, or at least the vast majority of its members, is satisfied that if a re-trial was in fact to be ordered, it would have to be conducted in accordance with the new test and not its predecessor. Whatever about the debate as to whether the effect of the majority judgment is to declare what the law has always been or is to establish new law, what is clear is that as and from April, 2015, Kenny no longer represents the applicable law, but rather has been replaced by the decision in this case. So, in my view, no question could arise that Kenny could somehow be re-instated so as to complete the legal process involving Mr. C.

19. Secondly, again I do not recall any debate questioning the authority of the majority view simply because there were three dissenting judgments from what that view proclaimed. That majority view suffers no less because of this; likewise for Kenny itself, which was also a majority view. This very point has been discussed at some length in the main judgment at para. 85 thereof.

20. Rather, the remarks about legal certainty arose from the very wording of the substituted test itself, which surely cannot be immune from such debate simply because it was contained in one paragraph of one judgment. It was in this particular context that concerns were expressed regarding legal certainty and the factual operability of the test. In this regard, I remain entirely satisfied with the observations I have previously outlined in the main judgment (para. 261).

Re-trial or No Re-trial
21. As is self-evident from the main judgment, I have concluded that, in accordance with the principles set out in Attorney General & Anor v. Ryan's Car Hire Limited [1965] I.R. 642, Mogul of Ireland Limited v. Tipperary (North Riding) County Council [1976] I.R. 260 and other similar cases, the DPP has failed to establish that Kenny was plainly and conclusively wrongly decided, and thus should be set aside. On that basis it inevitably followed, in my view, that the trial judge was absolutely correct in the decision which she made following the voir dire application held in July, 2012. Accordingly, as the appeal had to be dismissed in such circumstances, there could be no question of a re-trial. However, strictly without prejudice to this view, I would like to make some observations on this question, even though clearly it must follow that such are purely obiter.

22. In The People (DPP) v. O’Shea [1982] I.R. 384, this Court decided that arising out the plain and unambiguous wording of Article 34.4.3° of the Constitution there was a right of appeal to the Supreme Court from every decision of the High Court, including the Central Criminal Court, which is of course the High Court exercising criminal jurisdiction (section 11 of the Courts (Supplemental Provisions) Act 1961). This included a prosecutor’s right to appeal an acquittal, even one resulting from a jury verdict. The consequences of that decision, as demonstrated through a series of later cases, led to the emergence of an issue as to whether or not the Supreme Court had the power to order a re-trial if an appeal against an acquittal was successful.

23. The point arose in The People (DPP) v. Quilligan (No.2) [1989] I.R. 46, where this Court had to confront that issue having previously allowed such an appeal. Both Henchy and Griffin JJ. took the view that the constitutional right of appeal under Article 34.4.3° of the Constitution did not carry with it a “concomitant or ancillary jurisdiction to order a retrial”. Such, in their view, could only be legislatively conferred. Both Walsh J. and McCarthy J., on the other hand, felt that such a right was part of the inherent jurisdiction of the Court to give effect to its order allowing the appeal. The fifth member of the Court, Hederman J., reserved his position on the issue of principle.

24. That case and the views of the individual members of the Court are not, I think, directly germane to the issue of a re-trial in this case. Apart from any potential constitutional challenge, Henchy J. seemed to suggest that if legislatively based, such a power, at least at a prima facie level, could be conferred. Unquestionably, at that level of understanding, section 23 of the 2010 Act has so provided. Accordingly, on its face there would appear to be a power on the Court to order a re-trial, if it determines that the statutory requirements to that effect have been satisfied. Such a power, however, would have to yield if in conflict with any constitutional norm.

25. It is important to point out that no issue with regard to the constitutionality of section 23 of the 2010 Act has been raised in the present proceedings. Therefore, I should refrain from further comment about the outcome of any such application until the same is made, and obviously until the precise grounds thereof have been identified and established.

26. In light of the statutory requirement, which reflects a constitutional obligation, that a re-trial should only be ordered if it is in the interests of justice to so do, it is not altogether clear what the specified matters identified in section 23(12) of the 2010 Act add to the Court’s evaluation of this issue for, even in their absence, no re-trial could be ordered unless justice-driven and of course unless such could be conducted in accordance with Article 38(1) of the Constitution. Therefore, all relevant matters are available for consideration, with some being more important than others, depending on circumstances. That being so, I do not consider it necessary to analyse in any great depth the factors specified in the subsection (12), although I will briefly comment on them later in this judgment. In any event, my decision that there should be no re-trial stands at a higher level.

27. At the submission stage of the voir dire the DPP took no objection to the Kenny principles being applied to the circumstances of the case as then established. It has never since been disputed but that the trial judge was compelled by constitutional obligation to follow and apply Kenny. In the main judgment, I have stated that there was no other course open to her and pointed out with particular concern that it would have been beyond the feat of any human to apply the substituted test which had not, at that point, being conceived, formulated, established or even urged. Of telling significance is the fact that during the current application counsel on behalf of the DPP agreed, and rightly so, that this was the case. And yet notwithstanding this, the majority have decided that the judge erred within the meaning of section 23 of the 2010 Act. Logically one would have thought that before such a conclusion could have been reached there must have been some way in which she could have avoided committing this error. The only way, if one is to follow through on this, is to say that she should have pursued the impossible. Whilst I have no desire to re-examine the issues previously dealt with in the judgments of this Court given in April, 2015, I remain convinced that the Oireachtas could never have contemplated such a scenario.

28. Leaving aside that last observation, however, it would seem reasonable to suggest that in the circumstances outlined, the trial conducted in July, 2012 was one which should be regarded as having been conducted in accordance with constitutional requirements and having regard to the only rule of law which could then have applied. To force the respondent to engage with the perils of a re-trial, when to every actor involved in the process the acquittal previously ordered was as a result of a trial conducted impeccably in due course of law, would be utterly unjust. If there were to be a re-trial, it would now have to be conducted in a different legal regime which came about solely at the express request of the prosecutor. I know of no authority, and none has been cited, which could even remotely support such a proposition. Accordingly, at that high level of principle, I would decline to make such an order.

29. If, however, one were to engage with each of the matters specified in section 23(12) of the 2010 Act, I would still reach the conclusion that no re-trial should take place, albeit only by reference to section 23(12)(d). The matters mentioned in section 23(12) are:

        “(a) Whether or not it is likely that any re-trial could be conducted fairly,

        (b) The amount of time that has passed since the act or omission that gave rise to the indictment,

        (c) The interest of any victim of the offence concerned, and

        (d) Any other matter which [the Court] considers relevant to the appeal.”

30. As can be seen, the first such matter is whether or not a re-trial could be conducted fairly: I have no doubt but that the fairness of the process could and would be ensured by the trial judge. The second point relates to the lapse of time from the date of the commission of the offences. In such context one should not disregard the period which has also expired from the date of the acquittal. Whichever is looked at, it could not be said, considering the overall jurisprudence in this area of the law, that the timeframe is such as to be a significant factor in deciding this issue. In the context of the third aspect as set out, no specific evidence was advanced by the DPP which would elevate the interests of the victim to such an extent as would justify a re-trial. Whilst I readily acknowledge that robbery and attempted robbery committed with the display of an imitation firearm are very serious offences, nonetheless this specific requirement of subsection (12) of section 23 must relate to the individual facts of any given case. Thus the matters mentioned at 23(12)(a) and (b) would tend to favour a re-trial, and that listed at 23(12)(c) is neutral. However, it is by reference to “other matters” (section 23(12)(d)), which have been articulated throughout this and indeed the main judgment, that I have come to the conclusion that no re-trial should occur. Thus while in a sense my conclusion on the re-trial issue stands at a higher and more general level, the same result is reached by reference to the section itself also.

31. For the reasons advanced in the main judgment and supplemented by this second judgment, I would dismiss the appeal, affirm the acquittal of the respondent and, in the process, express a view that no re-trial should be ordered.




JUDGMENT of Mr. Justice Hardiman delivered the 22nd day of June, 2015.

1. I would dismiss the Appeal. It is unnecessary to go beyond the reasons set out in my judgment of 15 April, 2015.

2. I would not direct a retrial. I consider that there is no jurisdiction to do so. I note that there is no precedent, even in countries that permit retrial after a successful appeal against acquittal, for a retrial after an acquittal and after the law has been changed to favour the prosecution.

3. I do not consider that any retrial would be a trial “in due course of law” as required by Article 38 of the Constitution. I am not confident that the procedural rules needed to ensure constitutional justice at any retrial are sufficiently clear to provide both parties with legal certainty as to the terms of engagement at any retrial.

4. Accordingly, pursuant to s.23(11)(b) of the Criminal Procedure Act 2010 I would affirm the acquittal of J.C. pronounced on the 19th July, 2012.


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