Supreme Court affirms acquittal and denies retrial due to systemic legal error affecting many cases.

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 the Director

of Public Prosecutions

Appellant

and

J.C. (No. 2)

Respondent

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

1 Consistent with the views I tentatively expressed in my judgment in the main case, I agree that there should be no retrial in this

case. Furthermore I agree with the reasons given by the Chief Justice and Clarke J. I wish to add some short observations on a factor

that carried weight with me.

2 Prior to 2010 the only appeal generally available to the prosecution (I say generally because there were some isolated specific

incidences) was a “without prejudice” appeal pursuant to the provisions of s. 34 of the Criminal Procedure Act 1967 (“the 1967 Act”),

as amended. It was, I think, accepted, and perhaps necessarily flowed from the nature of that section, that it was appropriate to

cases where the issue of law which it had been sought to appeal had some systemic importance extending significantly beyond the

individual case. Indeed, since a successful appeal could have no impact on the conviction in the particular case, the only purpose of a

“without prejudice” appeal would be to clarify the law for all future cases. In those circumstances, the fact that the vehicle for the

appeal was an individual case was an incidental, and almost unwelcome feature of the procedure. However, if the issue was to be

decided then an appeal in a specific case with concrete facts presented the best circumstance in which the legal argument could be

analysed. In such appeals the respondent was not identified, as indeed is the case in appeals under the Criminal Procedure Act 2010

(“the 2010 Act”). The fact that a successful appeal would, as a matter of logic, cast some retrospective shadow over an acquittal

was an incidental, undesirable, but possibly an unavoidable consequence of this procedure, which sought to mitigate that

consequence by providing for anonymity. It would clearly not have been proper, in my view, to have invoked the 1967 Act procedure

to achieve this object in an individual case and somehow cast doubt on the individual conviction. The focus therefore of the 1967 Act

was on general issues of law and not the individual case.

3 It follows from the fact that the 1967 Act was not repealed that the Oireachtas considers that it is still an appropriate procedure to

be invoked in certain cases. That amounts to a legislative judgment that there are cases in which the interests of justice are served

by the clarification of an important legal point without individual consequences in the particular case. The 2010 Act procedure applies

in all cases. Thus in principle, it is available in cases which might previously have been brought under the 1967 Act. The further fact

that the 2010 Act does not require a court to order a retrial, but expressly provides that it should not order a retrial if it does not

consider it in the interests to do so, makes it clear that the Oireachtas considers that there are a number of factors which may mean

that justice is served by the decision of the court on the point of law, but without requiring the retrial of a person who has received

the benefit of an acquittal, which in the vast majority of cases is a final and binding determination of status. The decision of the

court that a ruling made was erroneous but not to order a retrial, and to affirm the acquittal, makes the outcome of the appeal the

functional equivalent of a successful appeal under the 1967 procedure,

4 It is clear that the court’s power to order a retrial or not, is very broad, and it can apply in cases where the significance of the

point of law extends no further than the individual case. Even in such cases there may be individual factors which tend against a

retrial. However, one of the relevant factors in my view is whether the case is one in which any clarification of the law is incidental to

the order overturning the conviction in an individual case, or whether the clarification of the point of law is the most important

feature of the case, and individual circumstances are incidental to that. Of course, it is likely that in many cases it could be said that

both features are present. However, in the decision as to whether there should be a retrial, I consider that one of the factors a court

should take into account is where on that spectrum an individual case lies.

5 I fully agree that this question cannot be concluded, or perhaps even affected, by the decision of the Director of Public

Prosecutions not to adopt the 1967 Act procedure. In this case, I consider that the case is close to what might be described as the

“systemic” rather than the “individual error” end of the spectrum. I fully accept the submissions of counsel for the respondent that

without in any way depreciating the significance or seriousness of these offences, there is nothing in the individual circumstances of

the case which would favour a retrial over and above the fact, which must be present in any case, that the acquittal has been

determined by an appellate court to be erroneous. On the other hand, the systemic importance of this case is undoubted. It is also

clear now that there have been a very significant number of cases where acquittals have followed the application of the decision in

The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 (“Kenny”), and a smaller but not insignificant number where

the decision resulted from the combined application of the decisions in Kenny and Damache v. The Director of Public Prosecutions &

Ors [2012] 2 I.R. 266 as occurred in this case, some indeed close in time to the trial and ruling in this case. The fact that others have

had the benefit of the Kenny decision in almost precisely similar circumstances, and will not face any retrial, adds an element of

arbitrariness to a retrial which is in my view an important fact in this case. I see no reason to single out the respondent in this case

for a retrial. That fact, together with the matters addressed by the Chief Justice and Clarke J., would lead me to the conclusion that

no retrial should be ordered, and accordingly the acquittal affirmed. Accordingly, since I consider it is possible to resolve this matter

on these grounds I do not consider it necessary to express an opinion on the interesting issues canvassed in the judgment of

MacMenamin J, and I would reserve consideration of such matters until another case requires it.

6 I have only recently received the lengthy concurring judgment of McKechnie J. Time does not permit any extended consideration.

For the reasons set out above I agree that the 1967 Act procedure would have been preferable. But to my mind the effect of that

procedure would have had exactly the same legal consequence as the decision of the court under section 23 in this case which

McKechnie J criticises. The acquittal would remain in place but it would follow from the ruling that it had been arrived at erroneously.

It is because of those consequences that both procedures provide for anonymity. I do not understand what implications a ruling has

for the good name of a citizen, when that person’s name is not used and they are not otherwise identified or identifiable, but if there

are, then I would not assume a remedy is not available should it be considered wise to seek it. But the position both under the law

and the Constitution would be the same if a determination is made under the 1967 Act, or under the 2010 Act, and no retrial ordered.

This, at least, is not a valid reason in my view to distinguish between them.