Court certifies appeal to Supreme Court on whether s.16 Criminal Justice Act 2006 applies to pre-Act statements.

COURT OF CRIMINAL APPEAL

12/10

O’Donnell J.

Moriarty J.

White J.

Application pursuant to Section 29 of the Courts of Justice Act 1924 as amended

Between/

The People at the Suit of the

Director of Public Prosecutions

Respondent

v.

Brian Rattigan

Applicant

Judgment of the Court delivered on the 29th of July 2015, by O’Donnell J.

1 The applicant herein applies for a certificate pursuant to s.29 of the Courts of Justice Act 1924 as substituted by s.22 of the

Criminal Justice Act 2006 and as amended by s.59 of the Criminal Justice Act 2007 and s.31 of the Criminal Procedure Act 2010, that

the decision of this Court of the 19th of February 2013 involved a point of law of exceptional public importance and that it is desirable

in the public interest that the applicant should take an appeal to the Supreme Court. It was necessary to rehear this application due

to the serious illness of one of the members of the Court. There are three points identified by the applicant, two relate to s.16 of the

Criminal Justice Act 2006 and one relates to the trial judge’s charge to the jury.

Section 16 of the Criminal Justice Act 2006 (“the 2006 Act”)

2 This section introduced a significant statutory exception to the hearsay rule and provided for the admission in evidence of certain

out of court statements in certain circumstances and in particular where the witness “although available for cross-examination”

refused to give evidence, denied making the statement, or gave evidence which was materially inconsistent with it. As was observed

by this Court in The People (Director of Public Prosecutions) v. Murphy, [2013] IECCA 1:

“Moreover, under its provisions a person could be convicted of the most serious crimes known to law, on an out of court

statement which is subsequently disallowed on oath by its maker, despite the fact that he and his story may be subject

to rigorous scrutiny under strictly controlled court conditions. Consequently s.16 is a fundamental departure from

traditional common law principles which for good reason, have always placed such high regard on sworn evidence given

directly, immediately, and spontaneously before the fact adjudicator. Such principles have their foundation, not solely in

the rule against hearsay, but far more deeply rooted in our criminal law system.

The preceding events said to have given rise to the enactment of Part 3 of the 2003 Act, of which s.16 forms part, are

well known and do not require repetition in this judgment. It can be said however that its provisions were largely intended

to deal with gangland or organised criminality and criminals, many of whom prided themselves on being beyond the laws

reach: in this regard recourse to the most violent means available so as to intimidate witnesses against doing their civic

duty in giving evidence was common place. The Legislature, as is its right, responded inter alia with the section in

question.” (paras. 21 and 22)

3 Much of the applicant’s argument in relation to s.16 relies on what was described as fundamental constitutional principles. It should

be noted therefore at the outset, that this Court has no jurisdiction to declare an act of the Oireachtas to be unconstitutional. No

separate challenge to the provisions of s.16 has been commenced. The Court is bound to approach the 2006 Act on the basis that it

is both consistent with the Constitution and is part of the law which the Court is bound to uphold. In interpreting this or any other

section, the Court must however have regard to constitutional principles if applicable. In particular, the double construction rule

requires that if there is more than one interpretation available of a section, and one interpretation would offend the Constitution, then

the Court must give to the provision the interpretation which would make it consistent with the Constitution even if that

interpretation is neither the primary nor most natural interpretation of the provision. There are however limits on the process; there

must be more than one interpretation plausibly available and there must be a clear unconstitutionality leading the Court to adopt a

constitutional interpretation.

4 The first point sought to be certified by the applicant is derived from the fact that in this case, the relevant statements admitted

under s.16 were made prior to the coming into force of the 2006 Act. Accordingly, the applicant asks the Court to certify the

following question:

“Does s.16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the

said Act?”

5 This matter was considered by the Court at paragraphs 11-16 of its judgment. It is undoubtedly a significant issue of law. However,

the respondent contends that it is not a point of law of exceptional public importance, and it is in the public interest that it should

not be brought to the Supreme Court because it is self-evidently time limited. It is only capable of applying to statements made

before the coming into force of the 2006 Act. There can be few such cases, and they are very unlikely to arise in the future. That is

so, in the case of the specific provisions of the 2006 Act, but the argument made by the applicant raises underlying issues as to the

manner in which the Court should approach changes to criminal procedure and evidence. That is an issue of enduring importance.

Accordingly the Court will certify the point raised by the applicant.

6 The second question proposed by the applicant in relation to s.16 is as follows:

“Does the requirement in s.16 of the Criminal Justice Act 2006 that the witness be “available for cross-examination”

require anything further than the mere physical presence of the witness in court?”

7 This point relates to a fundamental complaint repeated in various ways by the applicant, that he was not able to “cross-examine

the statement” which was introduced in evidence and relied on against him. The concept of cross-examining a statement is of course

an impossibility. It can be said that when any statement is admitted into evidence, most notably as an exception to the hearsay rule,

that statement cannot be cross-examined, and unlike other exceptions to the hearsay rule, the statute requires that the maker of

the statement sought to be admitted in evidence should be a person “although available for cross-examination” who refuses to give

evidence, or denies making such statement, or gives evidence which is materially inconsistent with it. Thus the 2006 Act only applies

in circumstances where the witness who made the statement sought to be admitted in evidence is present, can be called to give

evidence and is thus “available for cross-examination”.

8 The concept of making someone available for cross-examination is well understood in law: it means that a witness is present, and

can be called and cross-examined if desired. Whether any such cross-examination takes place, or is useful, is normally a matter for

the cross-examining party. It is in truth difficult to see what other interpretation can be given to the words “available for cross-

examination” than that the witness is present and in Court, and can be called, and is therefore available. Perhaps more importantly,

while the applicant complains about this process – and the Court does not in any way seek to underestimate the significance of the

section, its impact on the trial, or the strength of the applicant’s objections – the applicant does not offer any other interpretation of

the provision. The applicant’s contention appears to be that a witness to whom s.16 applies, and thus who does not give evidence or

denies making the statement, or gives evidence which is materially inconsistent with it, and thus does not give oral evidence in

accordance with the terms of the written statements sought to be admitted under s.16, is not “really” available for cross-

examination. But this in fact amounts to a contention that either s.16 is unconstitutional, or should be interpreted in such a way as to

be of no effect. It does not appear to this Court that any point of law arises from the Court’s decision in this regard, which could be

certified under s.29 as substituted and amended. The applicant or anyone else affected by the section can seek to contend in

properly constituted proceedings that the effect of s.16 on the trial process is such a departure from fundamental conceptions of

justice in the adversarial system as to render it unconstitutional, but that is not a point of law arising on appeal in this case, which is

capable of being certified under s.29.

The Trial Judge’s Charge

9 The third point sought to be certified relates to certain portions of the trial judge’s charge to the jury. The question sought to be

certified is as follows:

“Is a trial judge, when charging a jury, entitled to advocate for a conviction without informing the jury in terms that he is

not giving a direction in law which is binding upon them but is merely giving his views of the facts, which they are entitled

to disregard?”

This is, with respect, a somewhat tendentious and question begging formulation. It is clear that the decision of the Court applied the

law accepted by the applicant in relation to the trial judge’s entitlement to comment on the evidence. The only question for the Court

was the fairness of the overall charge to the jury in this case. The Court concluded that in the context of what was a difficult and

complex trial, and in the specific context of the charge, the trial judge’s charge did not render the trial unfair. This was a decision

made in a particular context, and involved no new ruling of law and cannot be taken out of that context, or treated as a precedent.

Rather it was the application of accepted law to particular and somewhat unique circumstances. Although the argument on this

application for a certificate under s.29 did come close to suggesting that the law had now reached a point where a trial judge could

not comment in any way upon the facts, (which would arguably have raised a point of law) that argument was not made as part of

the appeal proper. The issue in the appeal involved application of settled principles to particular facts. Since that is a matter of

judgment, it is of course possible that others may take a different view of the merits, but it is not possible to consider that it raises

any issue of law sufficient to certify a point under s.29. Accordingly, the Court will certify that its decision of the 19th February 2013

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

should be taken to the Supreme Court. That point of law is:

“Does s.16 of the Criminal Justice Act 2006 apply to statements of evidence made prior to the coming into force of the

said Act?”