Supreme Court dismisses appeal under s.23 because trial judge applied binding constitutional law correctly.

THE SUPREME COURT

[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 DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

J.C.

RESPONDENT

JUDGMENT of Mr. Justice John Murray delivered the 15th day of April, 2015

Introduction

1. Justice Owen Roberts of the United States Supreme Court warned that the then stance of his court in overturning contemporary

constitutional precedent tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for

this day and train only. I have no assurance … that the opinion announced today may not be shortly repudiated and overruled by

justices who deem they have new light on the subject”. (Smyth v. Allwright, 321, U.S. 649, 669 [1944]).

2. This statement has a resonance in the present case, even if from a different perspective. In this case the respondent and his

counsel relied at the trial in which he was acquitted on the law as laid down by this Court in DPP v. Kenny concerning the exclusion of

evidence obtained in breach of the accused’s constitutional rights. Under our constitutional structure the Supreme Court is the final

interpreter of the law, statutes and the Constitution. Citizens rely on such definitive statements or interpretations of the law. That is

what the respondent did in this case in the conduct of his, successful, defence to the charges against him. The trial judge relied and

applied the law precisely as the Supreme Court said she should. She was bound to do so. At the trial the DPP did not take issue with

the correctness of her decision, and accepts in this appeal, as she was bound to do so, that the trial judge applied the law correctly

and as she was bound to apply it during the trial.

3. A consequence of a successful appeal by the DPP in this case means that the established law, or if you like the ticket, on which

the accused relied upon in this case, may have lasted the day but it is to be deemed, retrospectively, not even valid for the journey,

since the prosecution seeks to obliterate the fact that the accused’s destination, an acquittal in a jury trial, was reached in

accordance with that established law at the trial, and to return the respondent to the starting point of his journey in a new trial, with

a new ticket with new restrictive conditions imposed retrospectively. This is the consequence of the DPP relying successfully on s.23

of the Criminal Procedure Act, 2010 by characterising the ruling of the trial judge in this case as retrospectively “erroneous”, because

the majority of the Court today considers that the rule in the Kenny case should have a different ‘calibration’. Overruling established

law, as set out in The People v. Kenny, of this Court is only incidental to that consequence.

4. A citizen who is tried and acquitted on a criminal charge tried before a judge and jury in accordance with established principles of

law, which the trial judge applied and was bound to apply, could well expect that he could not be tried again for the same offence,

least of all because the trial judge made an allegedly “erroneous” ruling on the law in the course of the trial. Yet this is what the DPP

argued the Oireachtas intended to happen.

5. Such a citizen might be reinforced in that expectation (and perhaps have a sense of frustration and even bitterness) because at

his or her trial the People, in whose name the prosecution is brought by the DPP, accepted and approved of the trial judge’s ruling in

law, and that it was one which the trial judge was bound to make. Yet the DPP argues in this case says that such a ruling by a trial

judge may nonetheless be retrospectively characterised as “erroneous” and thus expose a citizen to being tried again for the same

offence.

6. It is one thing for the prosecution to have a right of appeal where a trial judge, in making a ruling at a trial on the admissibility of

evidence, acted erroneously where it is claimed that the trial judge during a trial misinterpreted or misapplied the applicable law.

7. It is altogether another matter when the trial judge has correctly applied the applicable law at the trial. This is what makes this

case special.

8. The entitlement of the DPP to appeal against an acquittal, a verdict of not guilty, in a trial on indictment is a break from the

centuries old common law prohibition against double jeopardy, as applied to the prosecution for serious criminal offences.

9. The legislature, within the limits of the Constitution and the principles of constitutional justice deriving from it, may provide for

exceptions to the double jeopardy principle. But such statutory exceptions to fundamental principles must be stated clearly as

explained later in this judgment.

Background Facts

10. The facts and circumstances of the case are not in controversy. I would just set out succinctly the salient elements of the case.

The respondent, J.C., was tried for certain robbery offences before a judge and jury at the Circuit Criminal Court. During the course of

the trial, evidence which the prosecution sought to introduce, was excluded on the basis of an application of the exclusionary rule, as

laid down by this Court in DPP v. Kenny [1990] 2 I.R. 110. In an uncontroversial application of the law as laid down by this Court in

the Kenny case, the trial judge excluded six statements made by the accused, three of which were inculpatory, because the accused

at the time when the statements were made was unlawfully detained in custody by the gardai. It is not disputed by the DPP (and was

not at the trial) that the trial judge was bound, as a matter of law, as laid down by this Court in Kenny, to exclude the evidence in

question as inadmissible. Following the ruling of the trial judge the case proceeded without the prosecution offering any further

evidence. There being insufficient evidence at the conclusion of the prosecution case on foot of which a jury could reasonably

convict, the jury were directed by the trial judge to bring in a verdict of not guilty. No issue is raised concerning the correctness in

law of the direction to the jury at that point, or the consequential verdict of acquittal of the respondent.

11. That verdict of not guilty, by a court of competent jurisdiction in full accord with the law as applicable at the trial, is final and

conclusive, or at least it would be if the rule against double jeopardy, which has been a fundamental principle of the common law, and

other legal systems, for centuries (see below), continues to apply.

12. The DPP, being dissatisfied with the existing rule of law, as laid down in Kenny, applied at the time by the trial judge, could have

appealed to this Court on that question of law without prejudice to the verdict of not guilty, pursuant to s.34 of the Criminal

Procedure Act, 1967 (as amended). This is considered further at paragraph 101 of this judgment.

13. Instead, the DPP has appealed pursuant to s.23 of the Criminal Procedure Act, 2010. This permits, as an exception to the rule

against double jeopardy, a ‘with prejudice’ appeal by the DPP to set aside a verdict of not guilty where, inter alia, the trial judge made

an “erroneous” ruling “during the course of a trial”, excluding “compelling evidence” as specifically defined in that section.

14. In this case, in seeking to rely on s.23, the DPP seeks to have the rule of law on the admissibility of certain evidence, as laid

down in DPP v. Kenny 15 years ago, overruled or limited in its application, so as to provide a basis upon which the evidence excluded

by the trial judge at the first trial could be admitted at a second trial of the respondent on the same charges.

15. Thus, the DPP asks the Court to retrospectively deem the correct ruling in law of the trial judge to be nonetheless an “erroneous”

ruling.

The First Fundamental Issue

16. The fundamental issue which first arises in this case is whether s.23 of the Act of 2010 can properly be interpreted as giving the

DPP a right of appeal in the circumstances of this case, where the trial judge is not alleged to have erroneously applied a rule of law

which she was required by judicial decision to apply during the course of the trial, but the rule of law was subsequently changed by a

judicial decision of this Court.

17. The relevant provisions of s.23 of the Criminal Procedure Act, 2010 are as follows:

“23.-(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an

offence, the Director, … 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.

…

(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) … which

erroneously excluded compelling evidence …” (emphasis added)

18. The interpretative issue is whether the Oireachtas, in enacting s.23, creating a right of appeal on the basis of an erroneous ruling

at the trial, intended it to apply to a case, such as this, where the trial judge made no error at the trial by applying the law as she

was bound to do so. The DPP did not, and does not, argue that during the trial the judge misinterpreted or misapplied the applicable

law governing the admissibility of evidence.

19. As appears from s.23, an appeal under this section shall “only” lie where, inter alia, the ruling made by the judge “during the

course of the trial” “erroneously excluded” the evidence in issue.

20. The question is, therefore, whether the trial judge can in the circumstances of this case be deemed to have “erroneously

excluded” evidence at the trial within the meaning of s.23.

Compelling Evidence

21. Apart from the issue as to whether there truly was an erroneous decision excluding evidence on the part of the trial judge within

the meaning of s.23 the Court must also be satisfied that the evidence was of a “compelling” nature. This is a question of fact based

on an assessment of the quality of the evidence. Because the evidence was excluded as a matter of law it was not placed before the

trial judge. Neither is any of that evidence before this Court. The term compelling evidence is defined in the section, although I do not

consider it necessary to refer to it, since the Court has not been asked to evaluate the nature of that evidence for the purpose of

determining whether or not it is compelling within the meaning of the section. However, counsel for the respondent in this appeal

conceded as a matter of fact that the evidence excluded was indeed compelling evidence, and had effectively so acknowledged that

fact in the course of argument at the trial. The reason for this was apparently that some of the admissions made by the respondent

in statements while in custody was, on any factual assessment, objectively compelling within the meaning of the section. While I

entertained some doubts about the matter, I am persuaded by the arguments of counsel for the DPP that in the circumstances of this

particular case that the concession of fact made by counsel on this point is sufficient to fulfil the criterion of compelling evidence for

present purposes.

22. However, whether, as a matter of law, there was an erroneous ruling within the meaning of s.23 by the trial judge is a different

matter. Insofar as counsel for the respondent conceded that the trial judge’s ruling could be treated as erroneous if this Court should

decide to alter the rule of law laid down by Kenny this is not at all sufficient to dispose of the primary interpretative issue. It is purely

a question of law, and it is for the Court to be satisfied that an appeal lies, as a matter of law, under the section, and cannot avoid

this judicial responsibility, or set aside the verdict of a court, by relying on a concession on a point of law made by a party.

The Second Fundamental Issue

23. The rule of law laid down in DPP v. Kenny is, of course, the one which applies a near absolute exclusionary rule to the admissibility

at a criminal trial of evidence which has been obtained in breach of the constitutional rights of the accused, to put it simply. Here the

evidence was excluded by the trial judge on a proper application of the law in Kenny. The issue is whether the statement of law laid

down by this Court in Kenny should now be restated or amended, or simply overruled, in a way that would accord to a trial judge

greater discretion in admitting evidence obtained in breach of the constitutional rights of an accused, and to the extent that would

permit a judge in a retrial of the accused in this case to exercise a discretion in favour of admitting at a second trial the evidence

excluded at the first trial.

24. If an appeal does not lie under s.23 of the 2010 Act because the trial judge’s ruling in accordance with law, and as she was bound

to rule at the trial, could not be considered an erroneous ruling within the meaning of the section, then the second issue does not

arise at all.

Context of First Issue

25. There is no doubt that s.23 creates for the DPP a right of appeal which breaches the principle of protection against double

jeopardy. Indeed, the long title to the Act itself speaks of providing “for exceptions to the rule against double jeopardy”. The first

issue concerns not the existence of an exception, but the extent to which the Oireachtas intended that such exceptions to the rule

against double jeopardy should apply.

26. In my view, the interpretation of s.23 for which the DPP argues involves an extreme and wholly exceptional inroads to that

centuries old and hallowed principle.

27. The intention of the Oireachtas in this provision falls to be determined, as any provision of an Act does, by having regard to the

ordinary and natural meaning of the words used, the nature and context of the body of law which it impacts upon, canons of

construction, and the Constitution.

28. As part of that context it is, I feel, important to have regard to the historical and venerated status of the rule against double

jeopardy as embedded for centuries in the common law, and indeed other systems.

29. I will, therefore, turn to consider the nature, status and role of that rule to which s.23 creates and exception, in order to place

the first issue in its particular context, before going on to consider how the section should be interpreted for the purpose of this case.

The Double Jeopardy Rule

30. The principle of double jeopardy whereby a person cannot be prosecuted twice for the same offence, particularly following an

acquittal, stretches back beyond the common law and is one which is at the heart of every system of justice based on the rule of

law, and also expressed as the principle of non bis idem.

31. “The rule against double jeopardy has traditionally been thought of as a hallowed canon of the common law, a golden rule which

sits at the heart of all English common law systems. Double jeopardy is a revered principle “vital to the protection of personal

freedom”. It is claimed that the rule underpins the legitimacy of the legal system because it recognises the incontrovertibility of

verdicts, which are transformed, via the declared judgment, into a record of a “high nature”.” (M. Edgely, “Truth or Justice?”; VOL 7

No. 1 Queensland TLJJ 108, the author citing, inter alia, Lord Justice Auld of the U.K. Court of Appeal, and the Australian High Court)

32. Palles C.B. in his judgment in G.S.W. Railway Company v. Gooding [1908] 2 I.R. 429 approved the description which Colridge LCJ

gave to the rule against double jeopardy (in R v. Duncan [1881] 7 QPD 198) which was as follows:

“The practice of the courts has been settled for centuries and is that in all cases of a criminal kind where a prisoner or

defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that

danger, has been acquitted.”

33. Palles C.B. himself stated in the Gooding case (at 431):

“Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is

contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in

a criminal case, that is, if he be once tried before a court having jurisdiction to hear and determine, then if there be a

determination of acquittal, the matter cannot be brought up a second time for adjudication.”

34. The protection against double jeopardy is enshrined in International instruments such as the United Nations International

Covenant on Civil & Political Rights [1966] and the European Convention on Human Rights.

35. It is a concept which is to be found in all legal systems and goes back in time to the early embryonic notions of justice. Many

commentators point out that it was part of the judeo-christian tradition, and the passage in the old testament Book of Nahum was

interpreted as sustaining a common law maxim “not even God judges twice for the same act”. Double jeopardy has been identified as

one of the oldest legal concepts in Western civilisation. In 355 B.C. the Athenean Demosthenes said “[T]he law forbids the same man

to be tried twice on the same issues.” (cf. Hunter “The Development of the Rule Against Double Jeopardy” 1984 Journal of Legal

History). The principle was observed in Greek law and the law of the Roman Republic (cf. Bartkus v. Illinois 359 US 121 at 151-152

(1959).

36. The principle or rule against double jeopardy, while not unique to the common law, is one which has been entrenched for many

centuries with its own quality and parameters in the common law.

37. In Bartkus v. Illinois 359 US 121 (1959) Justice Black of the U.S. Supreme Court had this to say about the protection against

double jeopardy:

“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found

in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other

principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon

law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established

in England, where it came to be considered as a "universal maxim of the common law." It is not surprising, therefore,

that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it

has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal

Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact,

been described as a part of all advanced systems of law and as one of those universal principles "of reason, justice, and

conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future,

but among all nations it is the same.’” (emphasis added)

38. By the end of the 18th Century, Blackstone referred to the right of a person to defend a second prosecution on the basis of a

former acquittal as being “grounded on this universal maxim of the common law of England, that no man is to be brought into

jeopardy of his life more than once for the same offence. An hence it is allowed as a consequence, that when a man is once fairly

found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may

plead such acquittal in bar of any subsequent accusation for the same crime”. [Commentaries, 8th Edition, Part IV, CH. 26]

39. Mr. Justice Michael Kirby, former justice of the highest court of Australia, summed up the nature and status of the rule against

double jeopardy “… as a principle of justice and a feature which civilised legal systems strive to uphold”.

Underlying Reasons for the Rule

40. In Green v. United States (355 U.S. 184: 1957), the U.S. Supreme Court summarised some of the policies underlying the notion of

double jeopardy protection is stating:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the

State, with all its resources and power, should not make repeated attempts to convict an individual for an alleged

offence, thereby [1] subjecting him to embarrassment, expense and ordeal and [2] compelling him to live in a continuing

state of anxiety and insecurity, as well as [3] enhancing the possibility that, even though innocent, he may be found

guilty.”

41. As one can imagine there is a great deal of literature on the values underpinning the rule against double jeopardy. These have

been well summed up by Mr. Justice Kirby in his paper ‘Carroll, Double Jeopardy & International Human Rights Law’ (2003, 27 Crim. L.J.

231). He referred to a range of separate grounds or explanations offered by the law for upholding the rule against double jeopardy.

Leaving aside those specific to an Australian context, I consider it useful, with emphasis added, to cite the most salient of those

considerations:

“(1)Controlling state power: It necessary to keep the power and resources of the state in proper check, given that, in

every case, they will be greater than those of an individual accused of crime. Unless such controls are maintained by

the law, there will be a risk that state power will be deployed to subject an accused "to embarrassment, expense and

ordeal … compelling him to live in a continuing state of anxiety and insecurity". Thus, the principle of double jeopardy is

one that helps to define the kind of society that our law defends. In that sense, it is for the benefit of all people, not just

the accused;

(2) Upholding accusatorial trial: One of the "fundamental underpinnings" of the criminal trial process in common law

countries is its accusatorial character. It is not, as such, a search for the truth of what occurred so much as a search

for a conclusion on whether the prosecution, representing the state, has proved the guilt of the accused to the requisite

standard. Many of the proponents of weakening the common law principle against double jeopardy, or providing an

exceptional legislative basis for doing so, justify their contention on the footing that such modifications will ensure that,

in the end, the courts get to the truth of particular events. Notions of this kind tend to undermine, and certainly to

qualify, the basal accusatorial character of our criminal process. That feature is one that continues to give effect to

Blackstone's precept that "It is better that ten guilty persons escape, than that one innocent suffer".

…

(4) Desirability of finality: A criminal trial is a kind of public drama. It is intended to bring closure to a serious and

potentially disruptive social event endangering the peace and order of society. This is why, especially in criminal trials

before juries, great importance is attached to finality. Ordinarily, finality will be as much for the protection of victims or

their families as of the accused and desirable from the point of view of society. The law embraces finality in this respect

with open eyes, accepting its imperfections. In the Ampthill Peerage case, Lord Wilberforce explained:

"Any determination of disputable facts may, the law recognises, be imperfect: the law aims at providing the best

and safest solution compatible with human fallibility and having reached that solution it closes the book. The law

knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different

result, but in the interests of peace, certainty and security, it prevents further enquiry. It is said that in doing

this, the law is preferring justice to truth. That may be so: these values cannot always coincide …".

(5) Confidence in judicial outcomes: To the extent that convictions, but even more so acquittals, are effectively

reopened and resubmitted to a fresh trial, community confidence in the outcomes of jury trial and judicial determination

may be weakened or even undermined. This is why "orders and other solemn acts of the courts (unless set aside or

quashed) [are] to be treated as incontrovertibly correct". Sometimes this rule will seem intolerable to those who

continue to contest the correctness of the determination. They may have opportunities for appeal and possibly judicial

review. Increasingly, they may have further opportunities for executive and judicial reconsideration. But when all these

opportunities have been exhausted, continuing the challenges by reopening the orders solemnly arrived at in an earlier

trial, weakens public confidence in the justice system. It also undermines the proper conservation of judicial resources

and court facilities.

…

(9) Increasing conviction chances: Self-evidently, the larger the number of prosecutions permitted by law, the greater

"the possibility that even though innocent [the accused] may be found guilty". With each new prosecution, dealing in

substance with the same alleged criminal deed, the Crown, with all of its resources, secures an increased chance of

obtaining a conviction. Not only might this be a form of unjust harassment. It could tip the scales in a way inappropriate

to the conventional role of the prosecution in our form of society.

(10)Denial of basic rights: To allow a second proceeding that cast in doubt an earlier acquittal would also undermine the

social acceptance of acquittals more generally. It would represent a departure from the fundamental rights hitherto

enjoyed by Australian citizens. Although, subject to the Constitution, legislatures can so provide, they must do so, if they

are to be successful, in clear terms .” (emphasis added)

Principal Reasons for the Rule

42. It may in any event be adduced from the authorities and the literature that there are at least three essential principles or policies

underlying the rule:

(a) Respect for the finality of decisions of a court,

(b) Protection against oppressive prosecutorial system,

(c) The integrity of the judicial process, and public confidence in it.

Exceptions

43. There are exceptions to the double jeopardy protection principle, including modern exceptions, but they are clearly identified and

invariably require the prosecution to meet a high threshold, by reference to express criteria, before being entitled to bring an appeal.

As Kirby J. pointed out, they do so, must do so, in clear terms. Such exceptions are, of course, different from a retrial arising from

some fundamental flaw vitiating a first trial (such as an issue going to the jurisdiction of a court), so that the first trial cannot be

considered to have been a trial at all.

44. Among the exceptions to that principle is where the trial process has been factually tainted, such as by bribery or corruption of

witnesses or jurors. Recently, the law changed in the 2010 Act to allow a retrial in clearly expressed circumstances, notwithstanding

an acquittal, if subsequent to the acquittal verdict new evidence comes to light which would justify placing the accused on trial

again. As acknowledgement of the importance of the principle this is clearly expressed and circumscribed by specifying a high

threshold, such as that the evidence is new and must be cogent or compelling, of such a nature that, if accepted by a jury, they

would be entitled to convict.

45. An important aspect of the first interpretative issue in this case is not whether there ought to be exceptions to the double

jeopardy principle, or even to the extent to which such exceptions are constitutionally permissible (since that has not been raised),

but whether the exception created by s.23 of the Act of 2010 is sufficiently precise and clear as to apply in the circumstances of this

particular case. It cannot be ignored that the rule against double jeopardy is regarded worldwide as a hallowed principle fundamental

to the rule of law, and that exceptions which have been made to it have been clearly defined and clearly limited. All of this is material

to any interpretation of s.23, and the extent of its reach as an exception to that rule. It counters any notion that a statute could be

considered to implicitly whittle away the rule.

Interpretation of Section 23 of the Act of 2010

46. As has been explained, the rule against double jeopardy is a hallowed and long evolved due process of protection of the citizen in

a society based on the rule of law, and any whittling away of that protection should be approached with caution. More important, in

the context of this case, any exception to that rule made by statute, including the ambit of any such exception, should be clearly

defined so that the exception is not extended beyond that which is clearly and unambiguously intended.

47. There is no doubt that s.23 expressly provides for exceptions to the rule against double jeopardy. There is equally no doubt, as

one might expect, that it seeks to limit the circumstances in which such an exception can arise.

48. To recall, the relevant provisions of s.23, are as follows:

“23.-(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an

offence, the Director, … 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.

…

(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) … which erroneously

excluded compelling evidence …” (emphasis added)

49. The key interpretative question is whether the Oireachtas intended that the correct ruling at the trial made in this case on the

admissibility of evidence should retrospectively be treated as an “erroneous” ruling.

50. The exception to the rule against double jeopardy is strictly limited, and such an appeal shall lie “only” where certain criteria are

met. Those set out in sub-paragraph (a) of s.23 are the relevant ones for the purposes of this appeal, namely, whether the trial

judge’s ruling was made “erroneously”.

51. The criteria set out in sub-paragraph (a) is that:

(i) a ruling was made by a court,

(ii) during the course of the trial, which

(iii) was erroneous.

Ordinary and Natural Meaning

51. It strikes me as being rather evident that when one speaks of a trial judge making a “ruling” “during the course of a trial” as being

erroneous in law, one is speaking of a trial judge who has misinterpreted the law or misapplied the law during a particular trial. In

short, an erroneous interpretation or application of the applicable law during the time of the trial.

53. It is clear that the Oireachtas intended that where a verdict of not guilty was arrived at by a jury following the exclusion at a trial

by the trial judge of “compelling evidence” (as specially defined), and that exclusion arose from such a misinterpretation of the

existing or applicable law, then the DPP should, as an exception to a fundamental principle, have a right of appeal against that

verdict.

54. Such an erroneous ruling during a trial can arise in various circumstances. The trial judge may just get the applicable law wrong.

The law governing a particular issue or ruling may not always be clear or settled. It may also occur that the trial judge gives an

interpretation to a provision of a statute not previously the subject of judicial interpretation, to which the DPP takes exception, and

seeks to appeal on the grounds of an erroneous ruling. (Invariably, one would expect that the DPP in the course of the trial would

have argued for a particular interpretation, not accepted by the trial judge, which is then pursued on such an appeal). On an appeal

under the section, this Court may hold that the interpretation given to the law by the trial judge in his or her ruling, while not wholly

unreasonable or was understandable, was nonetheless wrong and erroneous. That is not, however, to say that the ruling was not in

error. It is only to say that it was an understandable error.

55. The circumstances in this case are both different and special. This was not even a case of the trial judge applying some generally

received understanding of the meaning of a law or statute, but involved the direct application of a rule of law as judicially defined by

the Supreme Court.

56. The ruling with which the DPP now takes issue is one where the trial judge ruled as inadmissible six statements made by the

respondent to the investigating gardai while he was unlawfully detained in custody, in breach of his constitutional right to liberty. It is

not in issue that at the time when the statements were made he was detained in unlawful custody. The ruling of the trial judge that

the statements in question were not admissible in evidence at the trial was one which she was bound to make on the basis of

established and settled law, as set out in The People (AG) v. O’Brien [1965] I.R., and in particular DPP v. Kenny [1990] 2 I.R. 110.

Both are decisions of this Court. They contain statements of the law as judicially determined by the highest court in the land. The

trial judge was bound, as a matter of law, indeed as a matter of constitutional law, to make the ruling which she did. The accused

person relied on that law and his counsel conducted his defence accordingly. The DPP did not contest, does not contest, and could

not contest, that the trial judge was bound, as a matter of law, to make the ruling she did.

57. Moreover, if she made any other ruling, that is a ruling to admit the evidence in issue, it would have been then considered

erroneous in law. That is only one of the ironies arising from the decision of the majority in this case.

58. To assert, as the DPP now does, that during the course of the trial the trial judge made a ruling, which she was constitutionally

bound to make, was an erroneous ruling seems to me to be a self-defeating assertion.

59. Another irony in this case is that according to the criteria laid down by the majority for the admissibility of evidence obtained in

breach of a citizen’s constitutional rights, such breach may be ignored where it “derives from subsequent legal developments”. Thus,

the prosecution are to be excused for tendering unconstitutionally obtained evidence, as Mr. Justice Hardiman points out, in effect

due to ignorance of the law. But a citizen is to be treated as having been erroneously acquitted notwithstanding that the trial court

applied the law at the time of the trial as it was known and as it was bound to do so.

60. More important is the question whether the Oireachtas, in enacting s.23, intended that the section should encompass an appeal

by the prosecutor from an acquittal, on the basis of the law on which (i) the citizen was entitled to rely, and could not but rely upon,

(ii) the prosecution were bound to accept, and did accept, and (iii) the trial judge was bound to apply and did apply, should

nonetheless be the subject of an appeal whereby the verdict of acquittal given by the jury should be set aside and a retrial ordered.

61. Synonyms for “error” include “mistake” and “incorrect”. Having applied the law at the trial, as she was bound to do, the trial

judge could not, by reference to any ordinary meaning of the word “erroneously”, be said to have made a ruling which was in law

mistaken, incorrect or in error.

62. What the Court is required to do is to examine the quality of the ruling made at the trial. It is not whether the trial judge’s ruling

could be labelled “erroneous” in the abstract, let alone whether it was “erroneous” from any selected point of view. The question is

whether it was “erroneous” within the meaning of s.23 of the Act. In looking at the quality of the ruling as “made by a court during

the course of a trial”, one must look at the quality of the decision as then made by the trial judge. Given that those rulings were

made in a manner which the trial judge was legally and constitutionally bound to do, I cannot read into s.23 an intent by the

Oireachtas that it should be treated as erroneous for the purposes of providing an exception to the protection against double

jeopardy. I emphasise again that the trial judge was applying a principle of law as judicially determined by a higher court. I do not

think that the Oireachtas at all had in mind that the quality of such a decision at a trial should be deemed to have changed because

of a subsequent decision of the Supreme Court to change the law as declared in its earlier judgments, and as was applied at trial.

63. Moreover, quite independent of the foregoing, it cannot be ignored that the provision of the section speaks clearly of an

erroneous ruling of the trial judge “during the course of the trial”. That formulation, in my view, adds real strength to the

interpretation which I consider flows from the ordinary and natural meaning of the words used in the section. In making reference to

an erroneous ruling “in the course of a trial” the Oireachtas is envisaging the kind of error referred to earlier above, an error in the

interpretation of the applicable law at the time of and during the trial. I do not consider that treating a ruling of law during a trial

which the trial judge was, as a matter of law, bound to make, as retrospectively erroneous is consistent with what the Oireachtas

had in mind.

64. In short, the ruling made by the court “during the course of the trial” was correct. Nothing in the section suggests that

parliament intended that such a ruling could be treated as erroneous by virtue of a later change in the law.

Constitutional Considerations

65. I would add, that Article 38 of the Constitution provides that: “No person shall be tried on any criminal charge save in due course

of law.” When a citizen is tried, as in this case, before a judge and jury, and this Court has laid down a rule of law which the trial

judge is bound to follow, and does follow faithfully, I do not think it can be said that the citizen has received a trial other than “in due

course of law”. This objective fact cannot, to my mind, be set aside or diluted by a subsequent decision of this Court to adopt a

different view in contemporary circumstances, some 25 years after its earlier declaration in an earlier case, as to what the law should

now be henceforth.

66. The Oireachtas is entitled by virtue of Article 34.4.3, and Article 34.3.4, to make provision by law for appeals from the High Court

to the Supreme Court, and from the District Court to the Circuit Court against acquittals in criminal cases (pace, recent amendments

to Article 34 making provision for appeals to the Court of Appeal, enacted subsequent to the fact of this case). (See The People v.

O’Shea [1982] I.R. 384 and Considine v. Shannon Regional Fisheries Trust [1997] 2 I.R. 404, at 422). Such legislation must, of course,

conform with the Constitution as a whole and the principles of constitutional justice derived from it.

67. In The People v. O’Shea, O’Higgins C.J. (at 403) stated that “The phrase ‘in due course of law’ denotes fair and just procedures in

the conduct of the trial and the due application of the relevant law; it denotes no more.” (emphasis added)

68. In this case, the DPP prosecuted a trial – that it was conducted by the trial judge in accordance with fair and just procedure is

not in doubt – but more important it was conducted “in the due application of the relevant law”, namely, as already emphasised, the

law as declared by this Court which the trial judge was bound to apply. The trial judge, having duly applied the relevant law, cannot,

in the light of Article 38, be said to have acted erroneously in the application of that law. Certainly, not unless a special, or artificial,

meaning was given by the Act to the term “erroneously”. And even such a special meaning would be constitutionally questionable.

There is no such definition in the Act. I think it would give an extraordinary meaning to an ordinary word to characterise the trial

judge’s ruling in this case as “erroneous” within the meaning of s.23 of the Act of 2010. Such an interpretation would conflict with the

constitutional notion of trial “in due course of law”, as explained by O’Higgins J., absent some clear and special meaning attributed by

the Act itself to the word and phrase “erroneously” and “during the course of the trial”.

69. In short, in looking at s.23, and in particular sub-section (3)(a), from the perception of its ordinary and natural meaning, I do not

consider that the Oireachtas intended the limited application to “erroneous” rulings of that section to cover cases where the ruling of

the trial judge during the course of the trial was precisely what the trial judge was bound in law and constitutionally to rule.

70. I do not think that the Oireachtas intended to imply such an exception to the hallowed rule against double jeopardy “which

civilised legal systems strive to uphold” (see Kirby J. above). Indeed, if the Oireachtas was to change the law after a trial and then

seek to have a citizen retried on the basis of some new rule of law with a view to possibly getting a different verdict, it would not

stand constitutional muster. Can anything different be said of a subsequent judicial change of a rule of law followed by a retrial of the

same accused on the same charges under new and different rules? No issue has been raised in these proceedings concerning the

constitutionality of s.23, an interpretation conforming with the Constitution and its principles is a factor to be taken into account in

interpreting section 23.

71. To my mind, an acquittal by a jury in due course of law is a final verdict.

Legal [Un]Certainty

72. It is universally recognised that one of the fundamental aspects of the rule of law is legal certainty (see for example the judgment

of the European Court of Human Rights in Bujnita v. Moldova, cited below). The legal uncertainty, which I believe will be created by

adopting the interpretation of s.23 argued for by the DPP, is another reason for concluding that in the absence of clear words saying

so the Oireachtas did not intend a judicial ruling that was correct at the trial should be treated as erroneous by virtue of a

subsequent change to an existing rule of law, as defined by a higher court. This uncertainty will arise both in relation to the issues of

law during a trial as well as the status of what has always been considered as a final verdict of acquittal by a jury.

Uncertainty at a Trial

73. If the DPP is correct as to the scope of s.23, as regards a case such as this, one may well ask how a citizen, or his counsel,

would conduct a defence to a serious criminal charge before a judge and jury if they have to provide for the contingency that any

ruling of the trial judge excluding evidence in accordance with well settled law as declared by this Court, might yet result in an

acquittal being called in question and potentially set aside if the DPP thought it might be a good idea to ask this Court, in an appeal

under s.23, to review the meaning of that law, which the trial judge had been bound to apply. The concept of due process requires

that trials be conducted in accordance with law. That is to say, the law as it is known and understood, and as the trial judge is

bound to apply.

74. As already pointed out, that is quite a different situation to where a trial judge makes a ruling, invariably contrary to what the

DPP actually submits, which is found to be in error in itself. Interpreting s.23 in the manner advocated by the DPP, even where a trial

has been conducted in accordance with the constitutional imperative of “due course of law”, will give rise inevitably to speculation

from time to time by defence counsel as to whether some accepted rule of law, perhaps debated in academic circles, might be

subject of an appeal by the DPP against an acquittal, even though the DPP at the trial would accept that the law as it then was had

to be applied by the trial judge. For example, in a case such as this, where statements made by the accused are excluded because

he was held in unlawful custody, could, at least in principle, give rise also to a number of other grounds for excluding the evidence,

but which it would not be necessary and, indeed perhaps not even possible, to pursue at the trial. For example, where the evidence is

excluded because the person is in unlawful custody, or due to some breach of constitutional rights a defence might also be in a

position to challenge the admissibility on other and additional grounds, such as that the continuation of a person’s detention (as

opposed to the initial arrest) for a period in excess of 24 or 48 hours was done deliberately and unlawfully and that it was during this

period that the statements were taken and, therefore, had to be excluded. Alternatively, a defence may have grounds for impugning

the admissibility of the evidence on the basis that either the accused was denied access to a solicitor, or that there was no solicitor

present when the statements were taken. Again, the admissibility might be opposed on the grounds that they were involuntary,

having been obtained by oppressive means, inducement or the like.

75. The trial never reaches a point where these issues need to be raised by the defence, because law settled by this Court compels

the trial judge to exclude the evidence at an earlier point. If a citizen has valid grounds, on the basis of judicially settled law, for

excluding evidence being tendered by the prosecution, and that resolves the issue of admissibility on the basis of such law, the

defence is nonetheless in a dilemma as to whether it should, or could, at the trial raise other entirely valid grounds for excluding the

evidence, if the trial ever got that far. In such circumstances, a citizen could find him or herself in the situation that they had several

valid grounds for excluding the evidence as inadmissible, but the trial never got to the point where they could rely on them, but

nonetheless the trial judge’s ruling excluding the evidence is challenged by the DPP after the trial is over. In such a case he or she

would have to wait a second trial to raise those other valid grounds and have the evidence then excluded.

76. Moreover, although I do not think it affects the foregoing considerations, but underscores them, the DPP is under no obligation to

give any notice or advance information of any possible appeal against a ruling which he does not contend at the trial was unlawful,

and as far as one can see, none was given to the defence in this case. In any event, without raising any issue at the trial itself, the

DPP may well post-trial decide that it would be just a good idea, or on the basis of some internal agenda, to circumvent an

unsuccessful outcome by seeking to test the established law by way of appeal and claim that the trial judge had acted erroneously.

How does a defence provide for such a contingency? The citizen must rely on the law as the judge is bound to apply it.

77. It seems to me that a citizen who is put on trial before a judge and jury, who relies on a principle of law laid down by this Court

(by which he or she is bound at the trial) and which the trial judge is bound to apply, and does apply faithfully, that citizen is entitled

to expect that there will be a definitive ruling as concerns any verdict of acquittal. Only that is consistent with the “sacrosanct” and

“hallowed” principle of protection against double jeopardy and trial in due course of law.

78. I do not think it can be said from the language of the section that the Oireachtas intended to create such unfairness and

uncertainties for a citizen when conducting his defence in a serious criminal charge on indictment.

Uncertainty of the Verdict

79. A citizen who is acquitted following a correct application of the law during a trial – in which prosecution evidence was excluded,

and there are routinely many such cases, has, in principle, been accorded a final verdict. That is the end of the prosecution.

80. Now, as a result of the interpretation being given to s.23, in such a case the finality of that verdict will depend on the discretion

of the DPP, and whether the DPP feels that it might be worth having a go at persuading a higher court to change the established

case law and thus win an opportunity to prosecute the accused again. Although s.2 of the European Convention on Human Rights

Act, 2003 requires statutes to be interpreted in the light of the obligations created by the Convention, no issue or submission has

been made in this case on behalf of the respondent in this respect. Therefore, I do not propose to consider whether, and to what

extent, the Convention would, pursuant to s.2 of the Act of 2003, mandate a particular interpretation. However, while there is no

case precisely in point with the special circumstances of this case, there are cases which have been decided by the European Court

of Human Rights which highlight the importance of the finality of verdicts of acquittal and the need to have due respect for such

finality in order to avoid a breach of the principle of legal certainty as guaranteed by Article 6(1) of the Convention. Accordingly, I

propose to cite from one of the judgments of the Court of Human Rights, if only for the purpose of highlighting the kind of

considerations which might arise in the exercise of the right of appeal argued for by the DPP and the special circumstances of this

case would have for the legal certainty and respect for verdicts of acquittal given in accordance with “due course of law”.

81. In Bujnita v. Moldova (36492/02; 16/1/2007) the following passages usefully highlight the kind of issues that can arise when the

prosecution is given a wide discretion as to the grounds upon which it may appeal against a verdict of acquittal:

“II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

18. The applicant complained under Article 6 § 1 of the Convention about the quashing by the Supreme Court of Justice

of the final judgment of the Court of Appeal of 30 October 2001 following a request for annulment lodged by the

Prosecutor General's Office.

19. The Government pointed out that the request for annulment in the present case had been made in accordance with

the procedure prescribed by law. They further maintained that the applicant had had the necessary procedural

safeguards during the request for annulment proceedings. Therefore, in the Government's opinion, there had been no

violation of Article 6 § 1 of the Convention.

20. The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention presumes respect for the

principle of the rule of law. One of the fundamental aspects of the rule of law is legal certainty, which requires that

where the courts' judgments have become final their ruling should not be called into question (see Brumãrescu v. Romania [GC], no.

28342/95, § 61, ECHR 1999-VII). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the

purpose of obtaining a rehearing and a fresh determination of the case. Higher courts' power of review should be exercised

to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be

treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-

examination. A departure from that principle is justified only when made necessary by circumstances of a substantial

and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX).

21. However, although a mere possibility to re-open a criminal case is prima facie compatible with the Convention,

including the guarantees of Article 6, certain special circumstances may reveal that the actual manner in which such a

review was used impaired the very essence of the right to a fair trial. In particular, the Court has to assess whether, in

a given case, the power to launch and conduct the request for annulment proceedings were exercised by the authorities

so as to strike, as far as possible, a fair balance between the interests of the individual and the need to ensure the

effectiveness of the system of criminal justice (see, mutatis mutandis, Nikitin, cited above, §§ 54-57).

22. In the instant case, the request for annulment was initiated by the Deputy Prosecutor General. In the opinion of the

Prosecutor General's Office, the first-instance and cassation courts had not observed the provisions of the CCP and had

wrongly assessed the evidence and thereby reached the conclusion that the applicant had not had forcible intercourse

with the victim.

23. The Court notes that the grounds for the re-opening of the proceedings were based neither on new facts nor on

serious procedural defects, but rather on the disagreement of the Deputy Prosecutor General with the assessment of

the facts and the classification of the applicant's actions by the lower instances. The Court observes that the latter had

examined all the parties' statements and evidence and their original conclusions do not appear to have been manifestly

unreasonable. In the Court's view, the grounds for the request for annulment given by the Deputy Prosecutor General in

the present case were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy

to that end. The Court, therefore considers, as it has found in similar circumstances (see, for instance, Savinskiy v.

Ukraine, no. 6965/02, § 25-27, 28 February 2006), that the State authorities failed to strike a fair balance between the

interests of the applicant and the need to ensure the effectiveness of the criminal justice system.

24. There has, accordingly, been a violation of Article 6 § 1 of the Convention.” (emphasis added)

82. While the circumstances giving rise to an appeal against a verdict of an acquittal in that case were different from those arising in

this particular case, the passages cited do highlight the need for a balanced approach in limiting any legitimate exception which

permits an appeal against a verdict of acquittal at a trial.

83. It seems to me that these considerations are other grounds for concluding that if the Oireachtas intended that an appeal should

lie under s.23 against a correct ruling of a trial judge, but which was to be subsequently treated as erroneous if the Supreme Court

changed the law on which the ruling was based, it would have carefully and clearly said so. It is also a reason why, in my view, s.23,

apart from its ordinary and natural meaning, should in any event be given a strict interpretation. There are also other reasons why

is.23 should be given a strict interpretation.

Strict Construction

84. As is self-evident, the statutory provision is one which relates to an acquittal of a citizen before a judge and jury in a criminal

trial, and permits, in specified limited circumstances, a with prejudice appeal against such a verdict as an exception to the principle of

protection against double jeopardy. As such, it is not in issue that this provision falls to be viewed as penal legislation and subject to

the long established canon of strict construction. The principle or canon of strict construction applies to the provision as a whole and

not simply to whether it permits or provides for an exception to the protection against double jeopardy (which it does). To approach

it otherwise would be to artificially truncate the application of the canon of construction. It must also apply to the intended scope

and ambit of the exception which the Oireachtas intended to create. To view it otherwise would simply avoid the issue.

85. In DPP (Broderick) v. Flanagan [1979] I.R. 256, at 276, Henchey J. underlined the importance of using clear and direct words in

penal legislation, stating:

“… a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not be held to

have been statutorily extended except by clear, direct and unambiguous words. If the lawmakers wish to trench on

personal liberty by extending the range of the criminal law, they may do so, within constitutional limitations; but an

intention to do so should not be imputed to them when the statute has not used clear words to that effect. …”

86. In Mullins v. Harnett [1998] 2 ILRM 304 O’Higgins J. quoted the following passage from Maxwell on the Interpretation of Statutes

(12th edition):

“… The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express

language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring

the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a

strict observance of technical provisions concerning criminal procedure and jurisdiction.” (emphasis added)

87. Although those passages related largely, but not entirely, to penal provisions creating criminal offences, it is clear that these

considerations are of equal relevance and importance to penal provisions seriously detrimental to an accused and the trial process

which he or she may have to undergo. To provide for an appeal against an acquittal, where that resulted from the exclusion of

evidence of a ruling made in accordance with the law which the trial judge was bound by precedent of this Court to apply, on the

grounds that it was somehow erroneous, would be to create an egregious exception to a principle and trial process that has been

embedded in the jury trial process of this country since the foundation of the State. If the Oireachtas intended to create such an

exception, I would have expect it to say so in certain clear and direct terms. It does not.

88. At the very least, a limitation on appeals against an acquittal to cases where a ruling of the trial judge “during the course of a

trial” was “erroneous” could hardly be said to clearly, directly or unambiguously convey that it applies to a ruling which the trial judge

made in a manner which was constitutionally required at that trial.

89. In Considine v. Shannon Regional Fisheries Board, Hamilton C.J. when considering exceptions to the double jeopardy principle,

cited with approval a passage from the judgment of Halsbury L.J. in Cox v. Hakes [1890] 15 A.C. 506 at 522, in the following terms:

“Your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It

is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it

was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal

freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of

ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal

…

In the light of the above pronouncements, very clear statutory language would be needed to establish, by way of

exception to the general rule, a right of appeal from a decision dismissing a criminal charge …”

90. Hamilton C.J. then went on to cite a statement of Palles C.B. made in the course of his judgment in G.S. & W. Railway Co. v.

Gooding [1908] 2 I.R. 429 at 431 that:

“Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is

contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in

a criminal case, that is, if he be once tried before a Court having jurisdiction to hear and determine, then if there be a

determination of acquittal, the matter cannot be brought up a second time for adjudication.”

91. Hamilton C.J. also referred to the citation with approval of Palles C.B. of a statement of Coleridge L.C.J. in another case, to the

effect:

“If the legislature thinks fit to declare that the new trials shall be granted after acquittals for felonies, misdemeanours,

or both, it may of course do so.”

92. Hamilton C.J. confirmed the view, previously expressed in The People v. O’Shea (cited above), that a trial in due course of law did

not necessarily involve the preclusion of a right of appeal in the event of an acquittal. However, he emphasised (at 421):

“It is clear from the foregoing, and many other, authorities that the common law rule that there should be no appeal

from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided

that such right was given in clear and unambiguous language …” (emphasis added)

93. Again, putting it at its lowest, I do not think it can be assumed or simply inferred that when the Oireachtas limited with prejudice

appeals against acquittals to cases in which the court had, during the trial, made an erroneous ruling that it intended the DPP’s right

of appeal to apply to a ruling which the trial judge was bound constitutionally to make and which was binding on, and necessarily

accepted at the trial, by the prosecution and the defence. Certainly, the principles cited above do not, in my view, permit allowing for

such an appeal under some extended umbrella of broad interpretation.

Appalling Prospect

94. The consequences of interpreting s.23(3)(a) as argued by the DPP are as follows:

(a) A citizen relies in his defence to a criminal charge on the law as laid down by the Supreme Court;

(b) The trial judge applies that law as she is constitutionally bound to do so, and excludes inadmissible evidence;

(c) The DPP, who is prosecuting in the name of the People, acknowledges at all times that the trial judge was bound to

apply that law and the accused entitled to rely upon it;

(d) The citizen is then acquitted after a trial in due course of law, the trial judge not having made any ruling on the

admissibility of evidence contested by the prosecution as erroneous and it had no basis in law for so contesting.

95. Following such a verdict of acquittal, heretofore always considered final, the DPP appeals against that verdict under s.23 and

seeks to set it aside on the grounds that although the trial judge applied the law, as declared by the Supreme Court, the Supreme

Court should set aside its earlier declaration, which in this case was the law for 25 years, as to what the applicable law is. The

Supreme Court should change the meaning or ambit or nuance of that law. Once changed, the ruling at the trial by the trial judge

should retrospectively be considered “erroneous” in order to bring s.23 into play and allow the verdict to be set aside and a retrial

ordered on the basis of the new law.

96. This is to change the goalposts, not during the game, but after the game is over, except it is not about a game or a sport, it is

about a criminal trial and justice which the Constitution requires shall be conducted in due course of law. That is to say, in due course

of the “applicable law” as O’Higgins C.J. stated in The People v. O’Shea, cited above.

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. This is an

appalling prospect.

98. These concerns are not at all met by the provision of the section which grants an ultimate discretion to this Court in an appeal of

this nature as to whether or not to order a retrial, even if the DPP succeeds on the question of law. The fact is that a verdict of

acquittal arrived at in due course of law has been suspended and the accused placed again in the anxious and difficult position of

having to put his or her life on hold with a view to a future possible retrial for the same offence. This can have tremendous and

devastating consequences for the course of a person’s life while he or she awaits the outcome of an appeal to the Supreme Court

and a decision as to whether he or she must then wait further for a retrial to take place.

99. To my mind there is nothing in the wording of s.23 which suggests that such a far reaching and unfair consequence was intended

by parliament by such a strained conversion of a trial ruling as mandated by the applicable law into a so-called “erroneous” ruling.

100. It seems to me an extraordinary interpretation of s.23 to consider it as permitting the prosecution to appeal a verdict as

erroneous on the basis that it may prove possible to persuade a higher court to change the existing and judicially established law. To

do so tends to undermine at least some of the core values at the foundation of the rule against double jeopardy, particularly as

concerns respect for the finality of decisions of a court, the integrity of the judicial process and public confidence in it.

Section 34 of the Criminal Procedure Act, 1967

101. There is one other matter which I feel cannot be ignored in the context of an interpretation of s.23 of the Act of 2010. I refer to

the provisions of s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006, which provides:

“Where a person tried on indictment is acquitted … the Director of Public Prosecutions may, without prejudice to the

verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court

for determination.”

102. This provision was left untouched and un-amended by the Act of 2010. As is evident from its terms, it is an appeals process

(subject now to amendments arising from the establishment of the new Court of Appeal) which allows the State as prosecutor in

cases of an acquittal to raise by way of appeal issues of law which arose in a criminal trial, which it may wish to see, for the purpose

of future trials, clarified, corrected or even changed, through a refinement or evolution of existing case law, or an overruling of the

existing case law. The section expressly provides that the verdict of acquittal remains intact.

103. Accordingly, should the DPP feel that there is some principle or aspect of the criminal law, as applied in a court of trial, which

from his or her perspective requires to be clarified, rendered certain or some case law which requires refinement or even overruling by

a higher court, then this is a process provided for the DPP to do so. There is no requirement that any ruling in a trial was erroneous,

or other provision that such an appeal will only lie if certain criteria are fulfilled. The only requirement is that it is a question of law

which arose during a trial. It is, of course, without prejudice to the acquittal of the citizen concerned. It is, as in the case of the

Bujnita cited above, an appropriate way of balancing the rights of the citizen, so that a citizen can rest peacefully with a verdict of

acquittal and feel free to continue his or her life accordingly.

104. In interpreting s.23, and in particular the meaning of the term “erroneously” in that section, it is well to bear in mind that the

Oireachtas was fully aware that if the DPP was unhappy with the state of the existing case law, he has ample opportunity to have

this clarified or even overruled for the purpose of future trials by recourse to s.34 of the Act of 1967, as amended. That is another

reason why I feel it is counter-intuitive and contrary to the ordinary meaning of “erroneously” to assume that when the Oireachtas

used that word in s.23 it was intended to encompass a ruling of a trial judge arrived at in accordance with a principle which he or she

was bound to apply.

105. It is true that s.23 confers a discretion on this Court, even where an appeal lies to this Court under the section, and even where

the Court considers that a ruling was “erroneously” within the meaning of the section, to decline to set aside the acquittal and order

a retrial. This Court may decline to make such orders under s.23 if it does not consider that in all the circumstances it is in the

interests of justice to do so.

106. However, such a discretion cannot gainsay the fact that an appeal under s.23 of the Act of 2010 puts in issue the acquittal

accorded to the citizen at his or her trial, and leaves him or her in a state of uncertainty or limbo until the matter is resolved one way

or the other by the appeal and, in the event, at a retrial. Moreover, the section clearly envisages that the Court should generally, on

concluding that the ruling of the trial judge was erroneous within the meaning of s.23, set aside the acquittal and order a retrial. In

any event, the fact that the DPP can appeal with prejudice against the verdict of acquittal and seek a retrial means that there

cannot be any equation between s.34 of the Act of 1967, and s.23 of the Act of 2010. To approach the issues in this case on the

basis that the two sections largely amounted to the same thing or the same process would be to relativise out of existence the

legitimate interests and rights of a citizen in the finality of a verdict of acquittal arrived at in due process of law by a judge and jury.

107. It seems to me that the appropriate and apt process for the DPP to raise the issues which he has in this case would have been

to bring an appeal pursuant to s.34 of the Act of 1967.

108. For the reasons stated above, I am of the view that an appeal does not lie under s.23 because the ruling of the trial judge,

being one which she was bound as a matter of law to make, was not intended by the Oireachtas to be treated as an erroneous ruling

within the meaning of s.23.

109. The DPP is perfectly entitled to seek a without prejudice review under s.34 of the Court’s case law on the so-called near

absolute exclusionary rule, as laid down in DPP v. Kenny. The protection against double jeopardy is a notion or a concept that has

been the subject of discussion and debate in different fora in this country and abroad with many learned and influential articles

written on one side and the other.

110. However attractive it may appear to the Court to embark on a review of the balance struck between competing rights in The

People v. Kenny under s.23, I feel that in doing so in this case the Court has been unable to resist plucking this tempting fruit from

the wrong tree.

111. Having concluded that no appeal lies within the meaning of s.23, I would dismiss the appeal. I agree with the conclusions of

Hardiman J. and McKechnie J. to the same effect. In these circumstances, I do not consider it appropriate to address the second

substantive issue.