Supreme Court dismisses appeal for retrial when conviction is quashed and retrial ordered by lower court.

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Fennelly J.

93/04

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROESECUTIONS

Respondent

And

LIAM CAMPBELL

Applicant / Appellant

Judgment delivered the 23rd day of April 2004 by Keane, C.J.

Introduction

The applicant was prosecuted in the Special Criminal Court on a charge of membership of an unlawful organisation, i.e., an

organisation styling itself The Irish Republican Army, otherwise Oglaigh na hÉireann, otherwise the I.R.A. contrary to s. 21 of the

Offences Against the State Act, 1939 as amended by s. 2(6) of the Criminal Law Act, 1976. He was convicted of that offence and

sentenced to a term of five years imprisonment, the last three months being suspended. Leave to appeal both the conviction and the

sentence having been refused by the court of trial, he applied to the Court of Criminal Appeal for leave to appeal both as regards

conviction and sentence.

A number of grounds of appeal were relied on before the Court of Criminal Appeal. Some of them related to rulings made by the

Special Criminal Court during the course of the trial. In the judgment of the court delivered by

McGuinness, J. on the 19th December, 2003, one of these grounds – that a particular line of cross-examination of the applicant

should not have been permitted – was upheld. On that ground, accordingly, the applicant’s appeal was allowed and his conviction

quashed. The court, however, in the exercise of its jurisdiction under s. 5(1)(b) of the Courts of Justice Act, 1928 ordered a retrial.

The applicant had also relied before the Court of Criminal Appeal on the following ground of appeal: -

“[The Special Criminal Court] erred in holding that the ‘Real I.R.A.’ was a proscribed organisation within the terms of the

Suppression Order published pursuant to s. 19 of the Offences Against the State Act, 1939.”

In its judgment the court concluded that this ground had not been established. The applicant thereupon applied to the court for a

certificate pursuant to s. 29 of the Courts of Justice Act, 1924 that its decision of the 19th December, 2003 involved a point of law

for exceptional public importance, i.e.

“does the Unlawful Organisation (Suppression) Order (S.R.& O. No. 162 of 1939) issued in 1939, pursuant to s. 19 of the

Offence against the State Act, 1939, have application to an organisation which came into existence in or about the year 1997?

”

and that it was desirable in the public interest that an appeal should be taken to this court from that decision. That application was

granted by the Court of Criminal Appeal on the 23rd February 2004. It appears from the ex-tempore judgment of the court, again

delivered by McGuinness, J. on that occasion, that the respondent opposed the application, principally on the ground that in a

situation where the applicant’s conviction was quashed it was not open to him to seek a certificate pursuant to s. 29. It also appears

that the court was informed on that occasion that the retrial was listed for next May, that the applicant was also facing an additional

charge of membership of the Real I.R.A. and that the trial on that charge was listed for July.

It was submitted on behalf of the applicant that he was entitled to know what the law was when he was facing a retrial. While the

court accepted that it would be functus officio if no retrial had been ordered, it was of the view that the situation was somewhat

different where the applicant was facing a retrial. Since the court was satisfied that the point of law relied on by the applicant was of

exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court on that

point, it granted the certificate sought by the applicant.

In the written submissions lodged on behalf of the respondent to this court, this preliminary objection to this court’s jurisdiction to

hear the appeal was renewed. The court decided to hear oral submissions from both parties on this preliminary issue as to its

jurisdiction to hear the appeal and, having heard the submissions, reserved its judgment.

Submissions of the parties

On behalf of the respondent, Mr George Birmingham SC submitted that the determination of the Court of Criminal Appeal was ordinarily

final and that it was only in limited circumstances that an appeal could be brought to this court. No such appeal could be brought

save in the case of a convicted person, and the applicant’s conviction having being quashed by the Court of Criminal Appeal and a

retrial ordered, he could not be regarded as a convicted person. He said that it was clear from the recent decision of this court in

D.P.P. –v- O’Callaghan (unreported; judgment delivered 16th January, 2004) that, if the court purported to decide an appeal under s.

29 where the conviction had been quashed and a retrial ordered, it would, in effect, be no longer acting as a court of appeal but

would be exercising a form of consultative jurisdiction which it did not possess. He said that doubts had also been expressed by the

Court of Criminal Appeal in D.P.P. –v- Sweetman (unreported; judgment delivered 30th July, 2002) as to whether it had any

jurisdiction to grant a certificate pursuant to s. 29 where a conviction had been quashed and a retrial ordered.

On behalf of the applicant, Mr Michael O’Higgins S.C. submitted that it would clearly be unjust for an applicant to be subjected a

retrial, where the Court of Criminal Appeal was satisfied that the state of the law on which the prosecution relied as justifying his

conviction was so uncertain as to require authoritative resolution by this court, without any determination of the specific issue by this

court. He said that penal provisions of this nature should be construed so as to avoid injustice to accused persons and that this

would not be achieved if the applicant was compelled to undergo a retrial while the law was in a state of uncertainty, thus

necessitating, in the event of his being convicted, a further appeal to the Court of Criminal Appeal and, in the event of this being the

only point arising on the appeal, a further appeal under s. 29 to this court. He submitted that D.P.P. –v- O’Callaghan, dealing as it did

exclusively with the question of whether the Director of Public Prosecutions could appeal from the quashing of a conviction to this

court, was not an authority for the proposition contended for by the respondent in this case.

The applicable law

Section 29 of the Courts of Justice Act, 1924 provides that: -

“The determination by the Court of Criminal Appeal of any appeal or other matter which it has power to determine shall be

final, and no appeal shall lie from that court to the Supreme Court, unless that court or the Attorney-General shall certify that

the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal

should be taken to the Supreme Court, in which case an appeal may be brought to the Supreme Court, the decision of which

shall be final and conclusive.”

It was held by a majority of the former Supreme Court in Attorney General –v- Kennedy [1946] I.R. 517 that no appeal lay by the

Attorney General from an order of the Court of Criminal Appeal which simply quashed a conviction without ordering a retrial. More

recently, in Director of Public Prosecutions –v- Keith O’Callaghan, this court held that the same principle applied where a retrial was

ordered.

In that case, the Court of Criminal Appeal had allowed the appeal, quashed the conviction and directed a retrial on another ground in

respect of which the Director of Public Prosecutions did not apply for a certificate under s. 29. In the course of my judgment in that

case (with which the other members of the court, Denham, J. Murray, J. McGuinness, J. and McCracken, J. agreed), I said: -

“In the present case, the additional difficulty arises that the Court of Criminal Appeal has in any event ordered a retrial on

another ground not the subject of the appeal and it can hardly be said that the appeal purportedly brought on behalf of the

D.P.P. is from the ‘determination’ or ‘decision’ of the Court of Criminal Appeal. He is in fact inviting this court to affirm rather

than reverse that order but to direct the Circuit Court when the retrial takes place to resolve the res judicata issue in a

particular manner. Were this court to adopt that approach on the hearing of an appeal under s. 29, it would, in effect, be no

longer acting as a court of appeal but exercising a form of consultative jurisdiction with which it has not been endowed by the

Oireachtas. I am satisfied that it enjoys no such jurisdiction.”

While there is no authority dealing directly with the point which has arisen in this case, the Court of Criminal Appeal in D.P.P. –v- Ivor

Sweetman expressed serious doubts as to whether any appeal lay under s. 29 to the Supreme Court in a case where the court was in

any event quashing the conviction and ordering a retrial. However, the court in that case was satisfied that the point of law relied on

was not of exceptional public importance and pointed out in its ex-tempore judgment that the question as to whether an appeal lay

under s. 29 had not been fully argued before them.

Conclusion

The appeal permitted by s. 29 to this court is from the “determination” by the Court of Criminal Appeal of an appeal or other matter.

It is only permitted where the “decision” involves a point of law of exceptional public importance. The word “determination” clearly

connotes the result of the appeal to the Court of Criminal Appeal, i.e. in this case the allowing of the appeal, the quashing of the

conviction and the ordering of a retrial. If the words in the section are given their ordinary and natural meaning, as they should be, it

is difficult to infer from them an intention on the part of the Oireachtas that an accused person was being given a right of “appeal” to

this court from a determination by the Court of Criminal Appeal which was in his favour. Thus, the applicant in this case does not

challenge the decision of the Court of Criminal Appeal to quash the conviction and order a retrial on another ground, a posture which

it is wholly impossible to reconcile with what normally happens, and must have been envisaged by the legislature to happen, on the

hearing of an appeal. The applicant, in effect, seeks to obtain from this court a finding that the law on the certified point is not as

stated in the judgment of the Court of Criminal Appeal now purportedly under appeal. The Special Criminal Court would then be bound

to apply the law as so found by this court in the retrial already ordered.

That, however, is precisely the course which, in the passage I have already cited from my judgment in D.P.P. –v- Keith O’Callaghan,

was described as the exercise by this court of a form of consultative jurisdiction with which it had not been endowed by the

Oireachtas. It is clear that this also applies to the course urged upon us by the applicant in this case.

The legal advisors of the applicant were undoubtedly confronted with a dilemma in this case; had they confined themselves in the

Court of Criminal Appeal to arguing the ground which is now the subject of the certified point and failed to persuade this court that

the Court of Criminal Appeal were wrong in the conclusion they reached, they would have been deprived of the retrial to which the

Court of Criminal Appeal held them entitled on one of the other grounds actually argued. It is understandable that they should have

sought in this court to argue the certified point while maintaining at the same time the applicant’s right to a retrial, whether or not

they succeeded in the appeal to this court. One can indeed have some sympathy with the position of an applicant who faces a retrial

in the knowledge that the Court of Criminal Appeal have taken the view that the law is sufficiently uncertain to require an

authoritative decision by this court without the uncertainty being resolved at that level. Those considerations, however, cannot

justify the court in attributing to the legislature an intention to confer a right of appeal by section 29 which is plainly outside the

ambit of the section as enacted.

I am satisfied that s. 29 of the Courts of Justice Act, 1924 conferred no such right of appeal on an applicant where his conviction had

been quashed and a retrial ordered by the Court of Criminal Appeal. I would resolve the preliminary issue as to jurisdiction accordingly.