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)  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:-
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.
“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)
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.  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:-
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?
“(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.”
“(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.
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.
19. Section 23(11) provides:-
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).
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.
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)  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  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:-
The law is always open to gradual clarification through judicial interpretation on a case by case basis.
“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 Requirements Under Sub-section 12
25. I turn then specifically to the further requirements, set out in s.23(12). This provides:-
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.
“(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)
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  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
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  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  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 ( 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:
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.
“23.—(3) An appeal under this section shall lie only where—
(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,
(12) In determining whether to make an order under subsection (11)(a) the Supreme Court shall have regard to—
(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.
(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)
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:
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.
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  I.R. 642, Mogul of Ireland Limited v. Tipperary (North Riding) County Council  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  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)  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:
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.
“(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.”
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.