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

BETWEEN:

JUDGMENT (No., 2) of Mr. Justice John Murray delivered the 22nd day of June, 2015

1. The Court today, in a unanimous decision, decides that the respondent’s acquittal by a jury be affirmed, and no retrial ordered, because it would not be “in the interests of justice” to do so. It never was.

2. The reason is not complex – rather quite simple. It would in all cases be manifestly unjust to retry a citizen duly acquitted by a jury in accordance with the law, for the purpose of putting him or her on trial again for the same offence under a law that has been changed to his or her prejudice, when that law is changed subsequent to the trial.

3. What was applied at the trial was the known law, and the only principle known to the law. It was never in issue that the trial judge applied the law as it was known and as it could only be known at the time of the trial. There is nothing more definitive as to what the law is than a clear statement of a Supreme Court.

4. The majority of this Court, in the first stage of this appeal in which judgments were given, accepted that the trial judge applied the law as it was known and as she was bound to do so, in accordance with her constitutional duty as a judge. Nonetheless it was decided that her correct ruling should be treated, retrospectively, as one which had been made “erroneously” for the purpose of s.23 of the Criminal Procedure Act, 2010. That is, as I have said, a contradiction in terms.

5. To order a citizen who has been tried and acquitted in due course of law to be tried again for the same offences because after the trial a rule of law laid down by this Court is subsequently changed, is, in those circumstances, to make a precedent of this Court an ignis fatuus.

6. I may not comprehend, but I apprehend and respect the decision of the majority in the judgments given in the first stage of this case. The Court, more important the citizens of this country, must cope with that interpretation of the section. It remains nonetheless an objective fact that to subject a citizen in those circumstances to the setting side of his acquittal and his retrial under a new rule of law would be manifestly contrary to the fundamental interests of justice and the rule of law. I appreciate that this is one of the reasons why I concluded that the Oireachtas did not intend the word “erroneously” in s.23 to be interpreted as the majority of this Court have done. Independent of the interpretation issue, which has been decided, the objective facts of the situation remain. A retrial in such circumstances could not be considered to be consistent with the interests of justice in any sense, including the phrase as used in s.23(11) of the Act itself.

7. The reasons why I consider this to be an objective fact are set out in my judgment in the first stage of these proceedings, on the interpretation issue.

8. As I concluded in my earlier judgment that majority decision led to a gross departure from the hallowed rule against double jeopardy, breached the principle of legal certainty, and risked undermining respect for the judicial process and public confidence in it.

9. At paragraph 97, I concluded:

“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.”

11. In the circumstances outlined, to overrule a well established rule of law laid down by this Court so that a citizen can be retried in accordance with new law created by precedent after his acquittal must always, in my view, be contrary to the interests of justice within the meaning of s.23(1) of the Act. I consider this to be manifestly so, and the only view consistent with respect for the integrity of a trial conducted in due course of law and in accordance with the “applicable law” referred to by O’Higgins C.J. in The People v. O’Shea [1982] I.R. 384 at 403.

12. In the event, the appeal must be dismissed because, in the unanimous view of the Court, it would be an injustice to do otherwise. The appeal has failed and proved pointless as regards the whole purpose of s.23, which is to enable the DPP to seek to have an otherwise final acquittal set aside and a new trial ordered. It is not a right of the DPP under the section to appeal solely for the purpose of having a precedent of this Court reviewed and possibly overturned. To have used s.23 solely for the purpose of bringing that issue before the Court, it is not disputed, would have been an abuse of the section. This is not what the DPP did, but in the event the appeal has failed because it is necessary to avoid an injustice which, setting aside the verdict and retrying the respondent would entail. That is not to say that he has not been the subject of an injustice. His acquittal by a jury in due course of law has been put in jeopardy with a risk of retrial on the same offence. The burden of having to await with uncertainty to know whether his acquittal counts for nought and may have to face a retrial on the same charges is one which has weighed with him since the trial. That is an injustice given the particular circumstances of his acquittal.

13. I share the doubts expressed by MacMenamin J. concerning the constitutionality of this section, as it is now interpreted and falls to be applied in this kind of case. Heretofore this Court has consistently applied the principle of constitutional construction, whereby an Act of the Oireachtas must be interpreted in a manner which is consistent with the Constitution, when such an interpretation is reasonably open on its terms. This, in turn, is based on the principle that the Oireachtas was presumed to intend its Acts to be consistent with the Constitution (see, for example, McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 and DPP v. MS [2003] 1 I.R. 606). An ordinary, and certainly reasonable, interpretation of the word ‘erroneously’ would mean, as I have previously held, that when the trial judge made a ruling, which she is bound to make, she was not by any reasonable connotation of the word making an erroneous ruling. That would have been an interpretation of the section consistent with the principles of constitutional justice and a trial in due course of law and eliminated any question of constitutional frailty.

14. The situation creates a dichotomy for the Court. As Clarke J. points out in his current judgment “If there were no circumstances in which it would be permissible to direct a retrial where this Court had overruled a previous decision by which the trial judge was bound then it is hard to see how the section could properly be interpreted as encompassing such a type of appeal in the first place”.

15. He later goes on to conclude that such a factor is “far from decisive but must weigh heavily in the balance. I take the view that such a factor cannot be decisive for if, in truth, as I have already suggested, no successful appeal could be brought in those circumstances, then it is hard to see how it would have been proper to interpret the section as a line for an appeal in a case where the law as it was then understood to be was accepted as having been properly applied.”

16. Where I part from the judgment of Clarke J. is that I consider it to be manifest that in all such cases it would be contrary to the interests of justice to order a retrial. I leave to others to conclude what in truth flows from that.

17. It has also been stated that this nonetheless may be considered a factor in deciding not to set aside the acquittal and order a retrial because the respondent in this case has in some way been singularly marked out from all those who have gone before him who had the benefit of the Kenny decision, or the Kenny decision in which the Damache case was also applied (both cited in the earlier judgments of the Court). I find it difficult to comprehend how this could be a reason for considering a retrial to involve an injustice distinct from the fact that it would always be an injustice in this type of case. If an established precedent of this Court which has consistently been applied by trial judges is overruled so as to result in an acquittal based on such a precedent being retrospectively set aside, then it will invariably be the case that the accused concerned is in a singular position as being the first to be subject to the new rule of law. In short, I do not see any basis for attributing some level of singularity to this case that will separate it in principle from what will objectively happen in every case of this nature.

18. Consequently, in my view, the fact that the respondent’s retrial would be governed by a rule of law adopted by the Court subsequent to his acquittal is not only a relevant factor in deciding whether it would be in the interests of justice to order a retrial, but is always a decisive factor against it. While I agree with the now consensus that it may be a reason for not ordering a retrial, I think the truth is that it must always be such a reason.

19. I too have wrestled with the possibility that there might be found in the various factors referred to in s.12 of the Act some other separate grounds for holding that it would not be in the interests of justice to order a retrial and set aside the acquittal.

20. Paragraph (a) of subsection 12 of s.23 refers to the likelihood that any retrial “would be conducted fairly”. There is no suggestion, and it is not even argued, that a retrial would be “conducted” other than fairly.

21. Paragraph (b) refers to the amount of time that has passed since the Act or provision that gave rise to the indictment. It is 4 years since he was charged, and 3 years since the trial. In the order of delays in bringing people to trial which have been considered by this Court, such a passage of time would not, of itself, be a ground for prohibiting a trial going ahead. It can be said that the respondent here has had a trial, but if he has already been acquitted on the basis of an erroneous ruling at the trial within the meaning of s.23 the Oireachtas contemplates that there should be a retrial in the public interest. There is no suggestion that the passage of time since the trial and the determination of this appeal was due to any delay on the part of the DPP. The delay was systemic. Unfortunately, it is not unusual. While I would consider the passage of time involved to be a factor to be taken into account in deciding whether or not to order a retrial in the interests of justice, there is nothing about it which suggests that it is a decisive one in this case.

22. Finally, the section, at (c), says that a factor which must be taken into account is the interest of any victim of the offence concerned. The offences concerned were the offences of robbery, which are serious public order offences involving the use, or the threat of the use, of violence. No evidence was tendered by the DPP concerning the interests of any victim of the offences concerned. Therefore, no such factor militates in favour of a retrial. It is impossible, in my view, to logically treat the mere absence of such evidence as a material consideration against ordering a retrial having regard to the terms of the section.

23. Accordingly, I feel bound to conclude that there is manifestly no persuasive reason to refuse a retrial based on the expressly specified grounds in the section. It follows, however uncomfortable a truth it may be, that the correct and only basis for refusing a retrial in this case, in the interests of justice, is because it would always be unjust to retry an acquitted person in a case of these circumstances.

24. My fundamental conclusion accordingly is that to order the retrial of a person following an appeal in a case where the law, as it was then understood to be, was accepted as having been properly applied at his trial, would be contrary to the essential principles of constitutional justice and the rule of law. For that reason alone, and in every such case, the ordering of a retrial would be, in the words of the section, contrary to the interests of justice. The ineluctable conclusion is that any appeal in such circumstances pursuant to s.23 will always be pointless and doomed to failure. Any other view, as I indicated in my earlier judgment, would be an appalling prospect from the perspective of the rule of law.