Title:	Director of Public Prosecutions -v- J.C. (No. 2)
Neutral Citation:	[2015] IESC 50
Supreme Court Record Number:	398/12
High Court Record Number:	WD/DP0009/2012
Date of Delivery:	06/22/2015
Court:	Supreme Court
Composition of Court:	Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., McKechnie J., Clarke J., MacMenamin J.
Judgment by:	MacMenamin J.
Status:	Approved

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

BETWEEN:

Second Judgment of Mr. Justice John MacMenamin dated the 22nd day of June, 2015.

1. This judgment is to be read in conjunction with my prior judgment herein wherein I expressed my full agreement with the judgments of O’Donnell J. and Clarke J.

2. When the respondent herein, J.C., walked from the courthouse, having been acquitted by direction, he was entitled to be considered as having the same status as if he had been acquitted by a jury after a full trial. The trial process was complete. The entire trial had been conducted in due course of law, as the law then stood. There is no suggestion that the decision of the court was tainted by any consideration which would vitiate the trial. To the objective observer, the trial was over.

The Invocation of Section 23 of Criminal Procedures Act, 2010
3. However, in this instance circumstances dictated otherwise. The Director of Public Prosecutions chose this case in order to bring an appeal to this Court under s.23 of the Criminal Procedure Act 2010. But the question, to which there has been no satisfactory answer is, why, for this particular purpose did the Director decide to invoke s.23 of the 2010 Act, rather than s.34 of the Criminal Procedure Act 1967 (as amended), which allows for a reference of a question of law to this Court “without prejudice” to the verdict of acquittal in the case? Such a procedure, under s.34 of the 1967 Act, would have been entirely suitable for determining the point of law raised in this appeal. What the Director was seeking to achieve was to ask this Court to review the law, not correct some misdirection by a trial judge (see, by way of contrast, the judgment of this Court in DPP v. RD, The Supreme Court, Dunne J. 16th June, 2015).

4. It is to be noted that s.28 of the 2010 Act provides that “nothing … shall affect any right of Appeal or review provided by this Act or any other enactment of rule of law”. Thus, by its own terms, the Act of 2010 does not preclude the invocation of s.34 of the Criminal Procedure Act 1967. This situation raises a matter which can only cause concern. The earlier, 1967 procedure allows for a “without prejudice” appeal to a verdict of not guilty. The 2010 Act involves the possibility of such a verdict being quashed and a retrial ordered, but under a new and different legal framework, when the law had been reviewed. Could it be fair or just that an accused, having been acquitted by direction, could be exposed to a retrial, but this time subject to altered evidential rules brought about by an appeal in his, or her, own case?

5. Counsel for the respondent has correctly drawn attention to observations made by Henchy J. in The People (D.P.P.) v. Quilligan (No. 2) [1989] I.R. 46. These were in the context of whether this Court then had jurisdiction to order a retrial where it had allowed an appeal from an acquittal in the Central Criminal Court. In the course of his judgment Henchy J. referred to the existence of the appeal procedure under s.34 of the Act of 1967. He observed:-

“Were this Court to purport to take onto itself such a jurisdiction, it would in my respectful opinion, thereby be effecting an unconstitutional subversion of the duly expressed legislative will as disclosed by s.34 as well as unconstitutionally discriminating between persons acquitted by direction in the Central Criminal Court. It would be neither fair nor constitutional if the right of a person acquitted by direction to escape a retrial depended on the mode of appeal chosen by the prosecution.” (emphasis added)

7. It is inescapable that s.23 seeks to operate so as to modify or reduce rights previously enjoyed under the principle of double jeopardy. But s.34 of the Criminal Procedure Act 1967 remains on the Statute Book. In fact, it has recently been invoked and relied on by the Director in this Court. In The Director of Public Prosecutions v. M.C. [2015] 1 I.L.R.M. 131 this Court had to consider the interpretation of s.30(3A) of the Offences Against the State Act 1939 in the context of a charge of possession of explosives. That case is worth examining in a little more detail.

DPP v. M.C.
8. The defendant, M.C. had been arrested on suspicion of membership of an illegal organisation. That arrest followed from the search of his home, where explosive manufacturing equipment and ingredients had been found. During custody, the respondent was informed that questioning would turn from membership of an illegal organisation to the explosives. Subsequently, the respondent admitted responsibility for the items. Through this evidence of admission, the respondent was charged with possession of explosives. The trial came before the Special Criminal Court, where it was held that the continued detention, subject to the change in questioning, was unlawful under the Offences Against the State Act 1939, s.30(3A); the admissions were made when Mr. C. was in unlawful custody, thereby making them inadmissible. As a consequence Mr. M.C. was acquitted. However the Director of Public Prosecutions referred a question of law under s.34 of the Criminal Procedure Act 1967 to the Supreme Court concerning the manner in which the Special Criminal Court had interpreted subs. 3A which allows continued detention where there are reasonable grounds for believing that continued detention is necessary for the proper investigation of an offence other than the one to which the suspect’s detention relates. In holding that the argument of the Director of Public Prosecutions was correct, and that the Special Criminal Court had been incorrect in the approach which it had adopted regarding the lawfulness of Mr. C.’s detention, this Court was acting without prejudice to the acquittal of the respondent. As can be seen, therefore, the issue which arose in that case was subtly, but crucially distinct from the question which the Director sought to have reviewed in the instant case. What was in question in M.C., just as in R.D., was, simply, an incorrect application of the law. In such a circumstance there is clearly a rationale for ordering a retrial; as a court misdirected itself. But the law remains unchanged. The situation here is distinct. It raises in a more stark form the question of double jeopardy when the law which has been reviewed, changed, and then applied to the same accused at a retrial for the same offences. In fact, there would have been a far stronger rationale for invoking s.23 of the 2010 Act in the M.C. case than here.

Interpretation of Section 23

9. It is necessary also to have regard to the fact that what is in question, now, in this application consequent upon the decision of the majority, is one in which the respondent’s liberty is truly at stake. Thus there can be no doubt now that the relevant sections of the Act to which I will refer later, and which are now sought to be relied on, now fall to be strictly construed for the reason that to accede to the Director’s application would necessitate a retrial. Because of this critical distinction, I imparted a broad interpretation to the ‘error’ provision of s.23 of the 2010 Act, but must now adopt a strict interpretation of the “retrial” provision.

10. Having achieved a favourable outcome on the “exclusionary rule” issue counsel for the Director has been instructed to seek a retrial of the respondent. It would follow that at such retrial the issue as to the admissibility of any excluded evidence would be determined by applying the principles outlined in the judgment of the majority to which I subscribed.

Is Section 23 Operable in Different Circumstances?
11. As well as the more general, principled, concerns which I have expressed, it seems to me that were s.23 to be invoked in the future, the question might arise as to whether it places the court hearing the appeal in the position of a court of first instance, rather than an appeal court. Fortuitously, from the Director’s viewpoint, there was no disagreement between the parties in this appeal as to how the requirements of s.23 had been complied with. But what might have been the position if there had been no such consensus between the parties? I am well aware that similar observations have been made in dissenting judgments regarding the operability of this section. I hope not to repeat those concerns here. For convenience however, it will be of assistance to again quote s.23(14) as follows:-

“(14) In this section “compelling evidence”, in relation to a person, means evidence which—

(a) is reliable,

(b) is of significant probative value, and

(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person's guilt in respect of the offence concerned.”

“(a) is reliable”
13. I am unclear as to how an appeal court would approach the issue of “reliability”, were a hypothetical respondent to deny making statements of admission, or were he to say that the statements were incorrect in some particulars, but correct in others. Questions such as these arise very frequently in trials. The question of “reliability” could hardly be resolved on affidavit. Is it thought that the “reliability” would be tested by way of the service of a notice to cross examine? And then before which court? The “court” must be the court considering the s.23 application. Absent cross-examination, how is it envisaged that an appeal court could, possibly, resolve issues which are directly in conflict on affidavit? This court, or any appeal court, is not a court of first instance. It is not generally designated to carry out fact finding tasks under the Constitution, save in the most exceptional cases. The question of determining whether evidence is “reliable” is a value judgment where, quite conceivably, there could be room for genuine disagreement among different members of a court. By what standard of proof would this be assessed? How then would the court proceed? Might the question of reliability be determined by a bare majority of the court? What might be the position where, (as also frequently happens), a number of different statements or admissions were allegedly made in different circumstances, or in different places, where different members of An Garda Síochána were present? Is it thought that each person involved would swear affidavits, and be cross examined upon them?

“(b) of significant probative value”
14. The question of whether evidence is probative arises all the time in the courts. But judges frequently conclude that the determination of the extent to which evidence is probative is to be seen in the light of the entirety of the evidence at the trial. Such an exercise simply could not have worked in the present case, where the judge granted a direction on the voir dire. As in the case of “reliability” there also could be room for legitimate disagreement as to the “probative” value of evidence.

“(c) taken together with all the other evidence adduced in the proceedings concerned …”
15. Test (c) assumes that the evidence will be assessed in the light of all the other evidence. But it is to be noted that this evidence is to be “adduced in the proceedings concerned”.

16. Again, taking this appeal as a template, it will be noted that all the evidence certainly was not “adduced”. What was referred to this Court was largely a transcript of the voir dire. But there was no evidence before this Court regarding the alleged substantive offences. How then would the evidence in question be “adduced in the proceedings concerned”? This clearly goes further than a statement in a book of evidence. “Adduced” must necessitate that a witness testified and was available for cross examination.

17. A consideration of s.23 as a whole makes clear that the tasks envisaged are to be performed by the court before which the appeal is heard, and no other court. Throughout the section, as drafted, the “court” referred to is “The Supreme Court”. Yet this must be reconciled with the provision contained in subs. (c) (referred to above) that the evidence is to be viewed “when taken together with all the other evidence adduced in the proceedings concerned …” (emphasis added). Is it then envisaged that, perhaps, all the evidence should be adduced, in circumstances where what might be in question is a large Book of Evidence? In a voir dire the trial court need only examine evidence relating to arrest charge caution and the interviews. And I should add what is in a Book of Evidence is not “evidence” until adduced in a Court.

Application of the Requirements in the Section
18. I turn now to the further provisions which require consideration in determining, having regard to the provisions of the Constitution, whether a retrial should be ordered.

Discretion
19. Section 23(11) provides:-

“(11) On hearing an appeal under this section the Supreme Court may—

(a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied—
(i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and

(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,

or

(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.” (emphasis added)

21. I reject the proposition that once the point of law has been determined in favour of the appellant (as here), the default position is that a retrial should be ordered, unless there is some particular reason for not doing so. The emphasised portions of subs. 11 (above) indicate very clearly that the court dealing with the matter is exercising a discretion. Eliminating superfluous words, therefore, the court may order a retrial if it is satisfied that it is in the interests of justice to do so. The subsection decidedly does not provide that the court “shall order a retrial”, nor is there any other phraseology to that effect. The overarching consideration in subs.(11), therefore, is whether or not such retrial would be “in the interests of justice” (s.23)(11)(ii). The interests of justice must necessarily fall to be considered in a constitutional manner. It follows, therefore, that among considerations to be borne in mind by the Court (although not all are necessarily individually determinative) are questions of double jeopardy, legal certainty and retroactivity. The Court must necessarily conduct an assessment, having regard both to legal considerations (dealt with here), and also factual considerations which will be dealt with below in considering section 23(12).

Double jeopardy
22. It is indisputable that, at minimum, the question of double jeopardy forms a significant backdrop to this case. The Act of 2010 seeks to create exceptions to that very long established constitutional principle. The judgments of the minority, in the first module, have considered the question of double jeopardy in detail, and any reiteration would be surplus. As Murray J. points out: “… for there to be exceptions to the rule it would be necessary that they be clearly identified and would require a high threshold, by reference to express criteria. These would have to be provided for by the legislature in the clearest of terms.” I do not consider I have to go so far as to find that to order a retrial would, necessarily offend against the principle of double jeopardy. It is sufficient merely to reiterate that it looms large as a consideration to be placed in the assessment. It is necessary also to bear in mind the circumstances, and law of evidence under which a retrial would take place.

Legal certainty
23. Similar considerations arise in relation to the principle of legal certainty. Again it would be superfluous to reiterate earlier observations on the matter in the other judgments. It is noteworthy that the Court has not been referred to any authority from the common law world which would allow for a retrial in circumstances such as these.

24. Counsel for the Director, in the course of his able submissions, submits that, because of the fact that the acquittal has been quashed herein it is thereby nullified (see D.P.P. v. Foley (Unreported, Supreme Court, 23rd January, 2014); D.P.P. v. Quilligan (No.3) [1993] 2 I.R. 305). Counsel has also referred us to the preamble to the 2010 Act which states, in terms, that it is intended to make “provision for exceptions to the rule against double jeopardy” and “to extend the circumstances in which the Director of Public Prosecutions … may take an appeal in criminal proceedings …”. But no exact precedent for ordering a retrial, in circumstances such as the present, has come to light. We can be sure that this is not due to inadvertence or lack of research. The closest authority found, and now relied on by the Director, was on the facts arising in the judgment of the European Court of Human Rights in S.W. v. United Kingdom [1995] 21 E.H.R.R. 363. There, the court held that a trial complied with Article 6 ECHR, even in circumstances where, between the time of committing a rape upon his wife and the trial of the applicant, the law in the United Kingdom with regard to marital rape had changed. The European Court of Human Rights held that compliance with Article 6 was engaged in circumstances where it was to be anticipated that changes in the law might take place, but that it was reasonably foreseeable that a person, such as the applicant might be subject to such change. This is quite distinct from the present case. The court observed:-

“36. However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law making is a well entrenched and necessary part of legal tradition. Article 7(art.7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.”

The Requirements Under Sub-section 12
25. I turn then specifically to the further requirements, set out in s.23(12). This provides:-

“(12) In determining whether to make an order under subsection (11)(a), the Supreme Court shall have regard to –

(a) whether or not it is likely that any re-trial could be conducted fairly,

(b) the amount of time that has passed since the act or omission that gave rise to the indictment,

(c) the interest of any victim of the offence concerned and

(d) any other matter which it considers relevant to the appeal.” (emphasis added)

“(a) fairly”
27. The question of “(a)” fairly has been largely considered under the heading of “interests of justice” earlier. I need not add to this judgment by repetition.

“(b) amount of time”
28. Counsel for the Director has fairly observed that there is a question mark in relation to whether or not a witness will be available. The matter goes no further than that, but it is nonetheless a consideration.

29. Additionally, it is the case that four years have passed since the date of the alleged offences. Three years have elapsed since the respondent’s acquittal in the Circuit Criminal Court. The notice of appeal herein was dated the 10th August 2012. As a consequence, the respondent has had to undergo uncertainty arising from this appeal remaining in being. In the circumstances of the case I consider that this is a factor to which the Court may have regard, although it is obviously not a determinative one. Such a factor was considered in the determinative judgment of the Court of Criminal Appeal in D.P.P. v. Connolly (ex tempore Court of Appeal, 25th November, 1996, Blayney J.) (see also Howarth v. United Kingdom ECHR [2000] 31 EHRR 681), where the Court of Human Rights determined that Article 6.1 rights were violated where a period of two years elapsed between the date of the imposition of an original non-custodial sentence of the court of trial and the substitution of a custodial sentence by the Court of Appeal on foot of a prosecution appeal against sentence. But I do not consider that the passage of time puts the issue beyond doubt. Much of the time elapse was inevitable and derived from the exigencies of the listing system. It is to be borne in mind that this Court is obliged “insofar as possible”, and through the prism of decided ECtHR jurisprudence, to interpret and apply provisions of s. 23 of the 2010 Act in a manner compatible with the State’s obligations under the Convention.

“(c) the interests of any victim of the offence concerned”
30. Undoubtedly the impact on a victim is a factor which might weigh heavily in favour of directing a retrial; in a hypothetical case. But under the Act of 2010 a court must look specifically at the interests of “any victim” rather than taking this into account indirectly as part of a wider public interest in the prosecution of offences. This again is consistent with strict interpretation which is applicable. There is no such evidence before this Court. The requirement cannot weigh heavily, or at all. No affidavit evidence has been adduced from any victim. Nor has any material been referred to which in any way would indicate that there had been a specific impact on any victim. One must accept that the offence of robbery or attempted robbery has an inherent gravity. However, the circumstances of the commission of an offence may vary quite considerably as can the sentence which such an offence might attract. Nothing in the transcript of the voir dire at the trial deals with victim impact. Thus, because of this absence, even taken in isolation, I am of the view that the application for a retrial must fail.

“(d) any other relevant matters”
31. In consideration of whether or not there are other “relevant matters” I bear in mind specifically the considerations which are to be found in the introductory section of this judgment. I will not repeat them.

32. I would bear in mind too the Director’s submissions, viz. the fact that the evidence excluded by the trial judge was obtained in circumstances in which the gardai invoked a provision in an Act of the Oireachtas subsequently declared by this Court to be invalid having regard to the provisions of the Constitution, but enjoying the presumption of constitutionality when the warrant was issued; the consideration that if a retrial was ordered the respondent would be free to test the admissibility of the evidence obtained by reference to the test formulated by this Court; the seriousness of the charges in question; and the fact that a judge would undoubtedly apply the law in accordance with the Constitution. But none of these (no matter how well argued) can outweigh the considerations outlined earlier.

33. On the facts of this case, the balance overwhelmingly stands against the order of a retrial. I., therefore, agree with the order proposed by my colleagues. I would reserve any further consideration as the constitutional status of s. 23 until an appropriate case arose, if it is thought fit to invoke the section again in the future.