Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
McKechnie J.
Clarke J.
MacMenamin J.

Between/

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3 It follows from the fact that the 1967 Act was not repealed that the Oireachtas considers that it is still an appropriate procedure to be invoked in certain cases.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.