THE SUPREME COURT

Between/

1. Introduction
1.1 The Court has already given judgment on a number of important aspects of this appeal brought by the prosecutor/appellant (“the D.P.P.”) against the acquittal of the accused/respondent (“Mr. C.”). By a majority of four to three this Court concluded both that an appeal lay in the circumstances this case and that, so far as the first issue on that appeal was concerned, the D.P.P. should succeed. As noted in a number of the judgments of the members of the Court then delivered, the structure of s.23 of the Criminal Procedure Act 2010 (“the 2010 Act”) is clear. In order that an appeal with prejudice, taken by the D.P.P., can be successful, it is necessary that the Court be satisfied of two things. The first is that there was an error in the trial either by the erroneous exclusion of compelling evidence or in the course of the judge’s directions to the jury. The second is that it be in the interests of justice that there be a retrial. Unless both elements are established, the acquittal must be affirmed. In substance, the majority was of the view that the first element of the requirement thus identified had been met in that evidence, which was compelling within the meaning of the section, was found to have been erroneously excluded.

1.2 However, it is clear that such a conclusion, while necessary to a successful appeal on behalf of the D.P.P., is not sufficient to allow for the acquittal concerned to be overturned and a retrial directed. In order for such a result properly to occur, it is necessary that the Court also conclude that it is in the interest of justice that a retrial be ordered. If the Court is not so satisfied then it is clear that the acquittal should be confirmed.

1.3 Subsequent to the delivery of the previous judgments by the Court, further written submissions were directed and a further oral hearing occurred. That process was directed towards determining whether the interests of justice required that there be a retrial. For the reasons just identified it is on the answer to that question that the final outcome of the appeal now turns, for the options open to the Court are to direct a retrial (if that is what the interests of justice require) or to affirm the acquittal of Mr. C. (if the Court is not satisfied that the interests of justice require a retrial).

1.4 There was, in my view, quite a significant degree of common ground between counsel for the D.P.P. and counsel for Mr. C. as to the factors which ought properly be taken into account in reaching an assessment as to where the interests of justice lie in the circumstances of this case. It might well, of course, be the situation that different factors might potentially be relevant in different types of cases so that the factors thus identified may not apply, or apply in some way, in other cases. However, for the purposes of this case, the difference between counsel stemmed largely from their submissions as to the weight to be attached to many of those factors in the circumstances of this case and, as a result, as to where the overall balance lay. I will shortly turn to the factors thus identified, to the submissions of counsel as to the weight to be attached to them and to an overall assessment of where the balance of justice lies. However, before so doing, I should make some brief general observations.

2. Some General Observations
2.1 In the course of debate between the Court and counsel it was suggested that there might be a lack of legal certainty as to the test which is now to be applied in relation to the admission or exclusion of evidence where the gathering of that evidence may have occurred in illegal or unconstitutional circumstances. In fairness, the issue was one raised more by the Court than by counsel. Also, it must be acknowledged that there are two ways in which such a question might, depending on one’s view, arise in the circumstances of this case.

2.2 It is important to recall that the ultimate decision of the majority was to the effect that D.P.P. v. Kenny [1990] 2 I.R. 110 had been wrongly decided and to indicate that the appropriate test to be applied was that identified in the majority judgments in this case. One of the issues which necessarily fell for debate was as to the test by reference to which the evidence in controversy in this case would be considered for admission in the event of a retrial. It might be argued that there is a potential uncertainty as to which test (i.e. the Kenny test or the J.C. test) should be applied. For reasons which I will shortly address, I do not believe that there could be any question about that issue.

2.3 A second possible question surrounding legal certainty might stem from the fact that there were three majority judgments in this case. It is true that there can be circumstances in which some doubt can arise as to the precise test to be applied in the future where there are a number of judgments of this Court (particularly where, in the event of a divided court, there are a number of majority judgments) and where it may be possible to argue that the precise approach to the key question differs as and between those majority judgments.

2.4 However, while such a situation may unfortunately arise in some cases, I frankly find it impossible to see how there could be any question as to the precise test to be applied in the future as a result of the majority judgments in this case. It is important to recall that both O’Donnell J. (at paragraph 99) and MacMenamin J. (at paragraph 26) went to some pains to point out that they adopted the test set out in my judgment (which is to be found at paragraph 7.2). Indeed, both O’Donnell J. and MacMenamin J. went further and indicated that the very reason why they did not include any commentary on that test in their own judgments was precisely to prevent any risk of such commentary being seen to be a gloss on the test. Their judgments were directed towards explaining why it was considered appropriate to depart from Kenny and adopt the new test proposed. Nothing said could reasonably be interpreted as a qualification of that new test as set out at paragraph 7.2. The Chief Justice agreed with all of the majority judgments.

2.5 I can readily understand that the application of the test thus identified may well, in the circumstances of different types of cases, give rise to legitimate debate. But the law in all sorts of areas (and not least the criminal law) is full of debate about how a particular test may be applied in different circumstances. The fact that it may take a number of decisions of the courts (and, indeed, the higher appellate courts) to define with some precision how a test is to be applied in a range of different circumstances does not take away from the fact that the test is clearly set out.

2.6 I cannot, therefore, see that there is any basis for the suggestion that the test approved by the majority in this Court lacks certainty. The majority went to considerable lengths to ensure that the text of one paragraph of one judgment represented the test. While that test is, undoubtedly, more nuanced than the quasi-absolute position which was identified in Kenny, nonetheless it is no more nuanced than many tests which the courts are required to apply in a whole range of circumstances and there is, therefore, in my view no basis for the suggestion that the test thus identified lacks legal certainty.

2.7 Furthermore, I can see no basis for the suggestion that anything other than that test, as thus identified, should be applied in the event that a retrial were to be ordered. There was, of course, a vigorous debate and a significant disagreement between members of the Court on the question of whether a with prejudice appeal under s.23 of the 2010 Act actually arose in the circumstances of this case. The argument which found favour with the minority was that a trial judge, properly applying a test which that judge was required to apply as a result of binding precedent, could not be said to have erroneously excluded evidence. The majority took the opposite view. But it inevitably follows from the view of the majority, to the effect that the relevant evidence was erroneously excluded by reason of the application of a test which this Court, by that majority, held to be erroneous, that any retrial must necessarily be conducted on the basis of the application of what this Court found to be the correct test.

2.8 For reasons which I will address shortly, it was common case between counsel (and I agree) that one of the factors which can properly be taken into account in determining where the interest of justice lies, for the purposes of deciding whether to direct a retrial, is the fact that the original ruling of the trial judge was accepted as being correct on the basis of the application of Kenny. But if there is to be a retrial then it would make a nonsense of the legislation to suggest that such a retrial should be conducted by applying the test in Kenny. To so require would be direct that a retrial be conducted on the basis of the application of a test which this Court has held to be erroneous.

2.9 I should also add that it seems to me to follow from the decision of the majority that there must be at least a possibility that there are some circumstances in which a retrial would and could be directed after a successful appeal by the D.P.P. under s.23 in which a test, other than the one which appeared to represent the law at the time of the original trial, was applied. If there were no circumstances in which it could 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. To the extent that, on one reading, the judgment of MacMenamin J. might suggest otherwise then I, like O’Donnell J., would leave over further consideration of this issue to a case where it turned out to be decisive.

2.10 At the end of the day, s.23 of the 2010 Act is ultimately about the question of whether there should be a retrial. The final order which the Court is required to make is as to whether such a retrial should be directed. A decision on whether a ruling of the trial judge, whether on the question of the admission of evidence or in the course of a direction to the jury, was in error is only a means to that end. If there could never be a retrial in circumstances where this Court overturned a relevant previous ruling which bound the trial judge, then it is hard to see how there could ever be a proper with prejudice appeal in which this Court was invited to so overrule such a previous decision for, in those circumstances, and notwithstanding this Court taking the view that the previous decision was wrong, the Court could never allow the appeal.

2.11 It seems to me to follow that, at least of the level of high principle, it must be possible that there may be circumstances where there can be a retrial where the Court conducting that retrial would be required to apply a new and different test (either to the admissibility of evidence or, indeed, to directions given to a jury), because this Court has overturned a previous ruling which had bound and been properly applied by the trial judge at the original trial. However, and importantly, it seems to me that the fact that a retrial would be so conducted on a basis different from that on which the original trial was conducted, while not precluding a retrial, is nonetheless, a factor of some significant weight to be taken into account by the Court in deciding whether it is in the interests of justice that such a retrial be ordered. I will return to this question at a later stage in this judgment.

2.12 Having made those preliminary observations I now move on to note the factors which might be said to be potentially relevant to the overall assessment of whether it is, in the circumstances of this case, in the interests of justice to order a retrial.

3. The Relevant Factors
3.1 The starting point has, of course, to be the relevant provisions of the legislation itself. These are to be found in s.23(11) and s.23(12) of the 2010 Act. Those sections are in the following terms:-

“(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.

(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.”

3.3 The first factor referred to by counsel for the D.P.P. was the suggestion that Mr. C. can and will receive a fair trial should a retrial be ordered. I think it would be fair to say that counsel placed particular emphasis on this factor in his argument to suggest that the overall balance of all relevant factors led to the conclusion that there should be a retrial. Counsel for Mr. C. accepted that there was no reason why the conduct of any retrial would itself be unfair.

3.4 In passing, it should be noted that there might well be other cases where positions had been adopted by an accused at a trial, subsequent to the ruling which was the subject of the appeal and placing reliance on that ruling, which might act to the prejudice of the relevant accused in the event of a retrial. Furthermore, events may have moved on so that evidence which was available at the original trial may no longer be available, or the like. For these, and doubtless other reasons, there may well be cases where the relevant accused could argue either that he could not get a fair retrial at all or that the conduct of his defence had been materially prejudiced by the events which happened to the extent that it would be unjust to order a retrial. However, no such case has been made in the circumstances of these proceedings. It is accepted that the question of the admissibility of the confession evidence which was at the heart of this case can and should be assessed by reference to the test identified by the majority in its previous judgments but also by reference to any other points which might legitimately be raised at any retrial. This Court is not aware of whether any such additional points arise but it was not suggested that the course of events to date will prevent Mr. C. from relying on any other points which might legitimately arise.

3.5 However, counsel for Mr. C. did make what seems to me to be a relatively significant point under this heading. While fully accepting that the question of whether a fair retrial could be conducted was relevant, counsel suggested that it was either exclusively, or at least mainly, a negative point in the sense that this Court could never regard it as being in the interests of justice to direct a retrial if a fair trial could not be conducted at all, and the Court would have, it was suggested, to lean heavily against directing a retrial if by so doing the overall situation was one where the accused had suffered material prejudice. Thus, counsel for Mr. C. suggested that no great positive weight should be placed on the fact that a fair retrial could be conducted but rather that it was a factor, if absent, which might necessarily exclude any possibility of a retrial or, at a very minimum in some cases, lean very heavily against it.

3.6 The second factor identified by counsel for the D.P.P. was the seriousness of the offences and, by implication, the interests of the victims of those alleged offences. It is fair, I think, to characterise the charges on which Mr. C. faced trial as relating to multiple offences involving robbery. There were six offences in all involving three incidents, and it is alleged that an imitation firearm was used. It is in the nature of the offence of robbery that it involves either violence or the threat of violence, although, of course, the degree of violence used or the extent of the violence threatened can vary significantly from case to case.

3.7 I did not understand counsel for Mr. C. to contest that a charge of robbery involves a serious offence and that it might be reasonably inferred that an offence involving at least the threat of violence would have a potentially significant effect on any victims. However, counsel pointed to the fact that no materials had been placed before the Court to enable any more considered a view to be taken as to the seriousness of the alleged offences or the effect which they might have had on the relevant victims. In those circumstances, counsel argued that while the undoubtedly serious nature of the offences was a factor which could properly be taken into account, the weight to be attached to that factor must necessarily be informed by the absence of any particular knowledge about the specifics of these offences, their effect on the relevant victims and on any other aspect of the interests of those victims.

3.8 The third point relied on by counsel for the D.P.P. was to suggest that the Court should have regard, in its overall assessment, to the fact that the very point which led the trial judge to exclude the evidence in question (being the fact that the form of warrant which was used to enter the premises on which Mr. C. was arrested was a form of warrant which was found to be unconstitutional in Damache v. D.P.P. [2012] 2 I.R. 266) was a point which had not been decided at the time when the events which give rise to the alleged offences in this case or, indeed, the evidence gathering concerned, occurred. In one sense, while not putting it like this, counsel suggested that an evolution in the law can cut both ways. If Mr. C. had been tried at an earlier stage (e.g. after the High Court had given its decision in Damache v. D.P.P. [2011] I.E.H.C. 197 but before this Court had allowed the appeal) then the trial judge would have been bound by the decision of the High Court to have rejected the objection to the admission of the relevant evidence at least insofar as it was based on a combined Kenny/Damache type ground. On that basis, counsel suggested that if Mr. C. was now to have the benefit of Damache (even though it did not form part of the law as it was understood at the time at which the alleged offences may have been committed or at the time when the relevant evidence was gathered), then equally justice permitted that he be retried on the basis of a new view of the test to be applied in considering the admissibility of evidence which has resulted from the decision of the majority in this case.

3.9 On this aspect of the argument put forward by the D.P.P., counsel for Mr. C. disagreed in principle and suggested that the Kenny/Damache point should not form part of the Court’s assessment.

3.10 Next it is necessary to identify some further factors which counsel for Mr. C. suggested ought properly be taken into account.

3.11 Counsel suggested that the Court should place significant weight on the fact that other accused persons had obtained the benefit of a Kenny/Damache point to secure their acquittal in the period after Damache had been decided by this Court and before the earlier ruling of this Court in this case. That much is certainly true. There may have been limitations on the extent to which persons who did not raise the relevant point at their trial may have been permitted to raise the point on appeal and there were, undoubtedly, very significant limitations on the extent to which it would have been permissible for someone to seek to reopen a case finally decided. However, that being said, there can be little doubt but that a number of persons successfully invoked a combined Kenny/Damache point and were thereby acquitted in circumstances where the D.P.P. does not appear to have sought to invoke a s.23 appeal to reverse that process.

3.12 In those circumstances, it is argued that it is unfair that Mr. C. should be, as it were, the only person who does not ultimately obtain the benefit of the point. It is suggested that that issue is of particular strength in this case given that no particular reason was advanced to suggest why it was Mr. C.’s case which was chosen as a vehicle to seek to bring the issue before this Court.

3.13 I did not understand counsel for the D.P.P. to dispute that some weight might be attached to the point, but counsel did suggest that it is almost inevitable in the context of the evolution of case law that some case will be the first case in which a point is successfully made. Furthermore, counsel noted that there will inevitably be people who benefit or fail to benefit by particular points simply by reason of the happenstance of time. Indeed, in that context, it is apposite to note the partially retrospective effect of some important, successful appeals brought by accused persons which also had the effect of changing the law as it was understood to be.

3.14 A recent example can be found in D.P.P. v. Gormley & White [2014] I.E.S.C. 17. In that case, one of the relevant accused successfully appealed to this Court from a conviction which was significantly influenced by the admission of confession evidence which had been taken at a time after the relevant accused had sought legal advice, but before that legal advice had become available. There can be little doubt but that the trial in question was properly conducted on the basis of the law as it was understood to be at the time of the trial. Nonetheless this court, on final appeal, came to the view that previous authority, which had declined to go so far as recognising a right to prevent questioning in those circumstances, was insufficient to protect the rights of accused persons in custody. Despite the fact that the relevant evidence was admitted on the basis of the law as it was understood to be at the time of the trial in question, this court nonetheless upheld the appeal (on the basis that the trial judge was wrong to admit the evidence) and directed an acquittal. In that context, timing worked on favour of the accused.

3.15 The next point on which counsel for Mr. C. placed reliance was the fact that any retrial was likely to take place more than four years after the events giving rise to the alleged offences and three years after the decision of the Circuit Court to acquit. While it was not suggested that this would impact on the trial as such, nonetheless it was suggested that a significant lapse of time between an acquittal and a retrial was itself an unfairness or potential unfairness which should be taken into account. In that context, counsel placed reliance on the jurisprudence in respect of appeals against allegedly unduly lenient sentences which may now be brought by the D.P.P., such as D.P.P. v. Connolly (Court of Criminal Appeal, Blayney J., ex tempore, 25th November, 1996). It has been accepted in such cases that the fact that an accused either had not been sentenced to prison at all or had been subsequently sentenced but had been released, as a result of a sentence which was found to have been unduly lenient, was a factor which the Court can properly take into account in deciding what alternative sentence is to be imposed. It is, of course, the case that such a factor can rarely be decisive, for the Court is obliged to impose an appropriate sentence in all the circumstances of the case in the event that the sentence imposed by the trial judge is found to be unduly lenient. If that means committing someone to prison who was not initially sentenced to an immediate custodial period or requiring someone to be re-imprisoned who has been released then so be it. However, it is now established that such a factor can, at least, properly be taken into account.

3.16 Furthermore, it was urged by counsel for Mr. C., and accepted by counsel for the D.P.P., that the lapse of time with which the Court is concerned in determining whether to direct a retrial needs to be considered on a different basis to the type of lapse of time and prejudicial consequences which form the subject of the delay jurisprudence of the courts. Lapse of time for the purposes of considering a retrial is but one factor to be taken into account in an overall assessment of where the interests of justice lie. A lapse of time which would not be sufficient, in all the circumstances of a particular case, to justify either the prohibition of a criminal trial or the withdrawal of a trial from a jury by reason of prejudice established at the trial, is quite a different thing from lapse of time, falling far short of that, which might nonetheless properly be taken into account as part of an overall assessment of where justice lies in the context of considering whether to direct a retrial. It seems to me that counsel were correct in their submissions in this regard. There could never be any question of this Court ordering a retrial if the criteria for prohibition were met. If that sort of lapse of time and potential prejudice were established, in accordance with the jurisprudence of the courts and having regard to all the circumstances of the case, no retrial could be directed irrespective of any other factors. However, lapse of time which falls short of that level may nonetheless be taken into account in deciding whether the interests of justice favour a retrial.

3.17 Thirdly, counsel for Mr. C. placed particular weight on the fact that any retrial would require to be conducted on a different basis to the original trial. The reason why this is so has already been set out in the course of this judgment. It is argued that significant regard must be had, in the context of determining where the interests of justice lie, to the fact that Mr. C. was tried in accordance with the law as it was considered to be at the time in question and was properly acquitted on that basis. While counsel accepted that the fact that there would be a retrial on a different basis in those circumstances was not necessarily decisive, it was urged that this point was one to which significant weight should be attached. In particular, counsel suggested that there was a significant difference between a case of this type and a case where, for example, an accused was acquitted by reason of a ruling of a trial judge which simply involved a misapplication of well established law to the facts of a particular case and where, therefore, any retrial would be conducted on exactly the same basis as the original trial but without the error which formed the subject of the successful with prejudice appeal by the D.P.P.

3.18 I think it is fair the characterise the submissions of counsel for the D.P.P. as accepting that this was a factor which ought properly to be taken into account, but suggesting that the weight to be attached to it was significantly less than that urged on behalf of Mr. C. As I understand it, counsel argued that the fact that the section contemplates a retrial in circumstances such as this suggests that it should not be an overriding or dominant factor in the Court’s assessment of where the interests of justice lie.

3.19 To a significant extent, therefore, counsel were agreed as to the factors to be taken in to account although differing as to the weight to be attached to them. However, before going on to assess those factors, it is important to touch on one issue which also divided counsel. That question concerns whether, either formally or informally, it can be said that there is a presumption either way. The question is concerned with whether it might be said that there is a default position either in favour of a retrial or against a retrial which would require to be displaced by the presence of sufficiently weighty factors pointing in the other direction. In substance, the question is as to the appropriate starting point for any assessment of where the interests of justice lie.

4. The Starting Point
4.1 It is necessary to commence with the wording of the legislation itself. Shorn of language which is not material to this issue, the legislation provides that the Court may allow an appeal and quash an acquittal “if it is satisfied … that … it is, in all the circumstances, in the interests of justice to do so”. In considering whether it is in the interests of justice to quash the relevant acquittal, the Court is required to have regard to the factors set out in subsection (12). Furthermore, subsection (11) goes on to state that, if the Court is “not so satisfied”, the acquittal must be affirmed.

4.2 The overarching requirement is, therefore, that the Court is not entitled to allow the appeal and direct a retrial unless satisfied that it is in the interests of justice so to do. I do not consider it helpful or useful to speak, in that context, of an onus of proof. I, and other members of the Court, have commented in the course of our earlier judgments in this case on the problems which seem to arise in the practical application of this legislation. One of the problems thus noted is the question of identifying the evidence or materials by reference to which the factual judgments which the Court is required to make are to be determined. No evidence, as such, is placed before this Court on a s.23 appeal other than such evidence as may have been led at the trial.

4.3 Be that as it may, the legislation does require that the Court actually be satisfied of where the interests of justice lie and, in particular, be satisfied that the interests of justice favour a retrial before the appeal can be allowed. It seems to me to follow that the Court must do the best it can in forming such a judgment on the basis of all materials properly before it, but there may well be circumstances where the absence of sufficient materials might legitimately lead the Court to conclude that it could not be satisfied that the interests of justice favoured a retrial, and that it followed that the acquittal had be affirmed.

4.4 Counsel for the D.P.P. suggested that the section was neutral, neither favouring, on a presumptive basis, a retrial or an affirmation of the acquittal. I would put the matter somewhat further. Given that this Court is required to be satisfied as to where the interests of justice lie in order to direct a retrial, I do not think that it can be said that the section is entirely neutral. Rather it seems to me that, as I have suggested, the absence of adequate materials to enable the Court to form an overall judgment on important aspects of the question could only lead to an affirmation of the acquittal. Against that background, I now propose to turn to an assessment of the factors which require to be taken into account in this case.

5. Assessment
5.1 In the context of the criteria by reference to which the interests of justice are to be considered as set out in subs. (12), it is important to note that the Court is given a very wide brief in that subs.(12)(d) allows the Court to have regard to “any other matters which it considers relevant to the appeal”. While the Court is, of course, required to take into account the other matters expressly mentioned in subs.(12), the Court is, nonetheless, in no way confined to those matters, nor, in my view, is the Court confined in assessing the weight to be attached to those and any other relevant matters in the context of a particular case. I propose to commence by considering the express factors referred to in the subsection itself.

5.2 Subsection (12)(a) refers to the “conduct” of a retrial and whether such a retrial could be conducted fairly. There was, at the hearing, some debate about whether it was fundamentally fair that a person might be required to be retried on the basis of an application of a law which differed from the law as it might have been understood at the time when the original trial was conducted. That is a point to which I will return. However, it is clear that subs.(12)(a) is not concerned with fairness in that sense, but rather with whether the conduct of the trial itself can be fair. It was not suggested that a retrial in the circumstances of this case would be unfair as to its conduct, and therefore, subject to the question of the weight to be attached to that consideration, the criterion identified at subs.(12)(a) favours a retrial.

5.3 It should be noted that the factor which is required to be taken into account under subs.(12)(b) is the length of time which has elapsed from the events giving rise to the alleged offence. In the context of this case that length of time is four years. I would not place a very significant weight on a lapse of time of that extent although some regard should be paid to it. In that context, I am also satisfied that it is appropriate for the Court, as one of the additional factors which can be taken into account under subs.(12)(b), to have regard to the length of time which has elapsed since the acquittal of the accused. In this case that period is three years, and for the reasons already advanced in this judgment, I am satisfied that some regard should be given to that fact. A person who has had the benefit of an acquittal but has had the possibility of a retrial hanging over them for a period of three years is entitled to have that fact taken into account. It should be emphasised that neither party can be said to have been at fault in any way in the context of the length of time which it has taken for this matter to come to final determination. It was inevitable that a case of this type would take some significant period of time to determine. First, there is the fact that this was the first occasion when the legislation in question was utilised. For the reasons already addressed in a number of previous judgments in this case and in this judgment, there are, at a minimum, difficulties with the legislation which made it inevitable that questions would be raised as to whether the legislation can be applied at all in the circumstances of this case, and how, even if it can, it is to operate in practice. It should be said that the difficulties with the legislation which have already been identified made those questions significantly more complex and necessarily added to the length of the process.

5.4 Furthermore, the fact that it was sought to invite this Court to reconsider an important issue in the law of evidence with significant constitutional considerations inevitably added to the length and complexity of the process. While the length of time which it has taken was, perhaps, inevitable, it nonetheless seems to me that the Court must have some regard (although I would not place the weight to be attached to this factor at a very high level) to the fact that Mr. C. was acquitted three years ago and has had, through no fault of his own, this issue hanging over him since.

5.5 The third specific matter which the Court is required to have regard to is the interests of the victims of the alleged crimes. Obviously any victim has an interest in seeing that there be a trial on the merits of any person in respect of whom there may be sufficient evidence to suggest a possible and sustainable verdict of guilty. Insofar as the Court may be required to consider the interests of the particular victims concerned in these proceedings, it is, as has been pointed out earlier, impossible to go beyond a general view of the type of effect which crimes of this type generally might have on victims, for the Court has not the benefit of any detailed information which would allow it to take any more considered view.

5.6 That deals with the specific factors mentioned from (a) to (c) in the subsection. However, I agree that the additional factors identified by counsel on both sides are also, potentially, matters to which the Court should have regard under subs.(12)(d). In that context it is necessary to make an overall assessment.

5.7 In my view, the fact, as urged by his counsel, that Mr. C. would transpire to be somewhat unique in not having the benefit of a Kenny/Damache type argument is a factor which, while far from decisive, must weigh heavily in the balance. I take the view that such a factor could not 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 allowing for an appeal in a case where the law as it was then understood to be was accepted as having been properly applied. That being said, I do, however, think that it is a weighty factor on the side of not directing a retrial. I am also inclined to agree with counsel for Mr. C. on the question of the weight to be attached to the fact that it is accepted that a retrial could be conducted fairly. Some weight must be attached to that factor which, of course, favours directing a retrial, but I consider that the factor concerned is more likely to weigh against a retrial where the accused may be able to point to some impairment in his ability to fairly defend. It may be that in some cases such prejudice may be sufficiently significant that the Court would, on that basis alone, be required to decline to order a retrial. The extent to which a fair trial can be conducted is, perhaps, properly characterised as being more of a negative factor whose absence would tend to weigh heavily against directing a retrial but whose presence may not carry quite the same weight in favour of allowing the appeal.

5.8 Likewise, for the reasons already advanced, I would not place too great a weight on lapse of time, although it is a factor to be taken into account and it does, for what it is worth, lie against directing a retrial. On a similar basis, and again for the reasons already advanced, I am satisfied that some weight in favour of a retrial must be attached to the interests of the victims even though it is not possible to assess the extent of the interests of those victims with any precision due to the absence of any materials relevant to that question.

5.9 Next, I should say that I do not consider that the fact that Mr. C., at his trial, obtained the benefit of the Kenny/Damache point by luck in timing is a factor to which any particular weight should be attached. It may, however, be proper to consider that factor as somewhat mitigating Mr. C.’s point concerning the fact that he alone may be deprived of the benefit of the Kenny/Damache point, for that too is largely a question of timing.

5.10 The final point relied upon on behalf of Mr. C., being that any retrial would necessarily be conducted on a basis different to that which would have been understood to have been the correct basis when he was originally tried is, in my view, to a large extent, much the same point as the one which suggests that Mr. C. alone would be deprived of the benefit of the Kenny/Damache point. In reality, the suggestion is that significant weight should be attached to the fact that the interests of justice would not be served, in the absence of some weighty countervailing factor, by Mr. C. being, as it were, singled out for a retrial which, while it would undoubtedly be conducted in the same way as any trial which took place after this Court’s earlier judgments in this case had been delivered, would undoubtedly be conducted on a different basis to that which would have been considered to be the correct basis of the law as it was then understood at the time when Mr. C. first came to trial. In that context, it is, in my view, correctly argued that much greater weight against a retrial lies in a case such as this as opposed to a case where the retrial would be conducted on exactly the same basis as the original trial but correcting for an error identified in the manner in which that trial was conducted by reference to the law as it was then understood.

5.11 I do not, for the reasons which I have sought to set out in respect of each of the factors which might favour a retrial, take the view that any of those factors are sufficiently weighty to countervail, in the circumstances of this case, that factor. It seems to me that the balance, therefore, favours not directing a retrial, for I am not satisfied that the interests of justice so require. Before concluding I propose to make some final observations.

6. Some Observations
6.1 In the circumstances identified in my earlier judgment in this case, the Court accepted that this appeal would proceed in two phases. Having seen the process to its conclusion I have come to the view that, speaking for myself, I would not favour such a modular approach were any further appeals under s.23 to come before the Court. In this second module, each of the judges has been invited to consider whether a retrial should be directed. However, a significant minority of the Court was of the view that either or both of the issues decided earlier should have been found in favour of Mr. C. so that, on that view, there either was no jurisdiction to entertain an appeal of this type at all, or even if there were, this Court should not have departed from Kenny. On that basis, and in the context of a unitary hearing of the appeal, it would have been unnecessary for those judges to have expressed any view on the question of whether a retrial would have been appropriate. Even if those judges wished to make some observations on that general question, same could not conceivably have been in the context of actually directing a retrial, but only by way of observation as to the views which would have been taken in the event that it was felt that an appeal lay and the first leg of the test (being that there was an error) was met.

6.2 It clearly could never be the case that the ultimate result of an appeal could depend on whether it was conducted in a unitary or a modular fashion. It is in that context that I cannot fully agree with the view of MacMenamin J. that there may be a justification for a different approach to the interpretation of the legislation in this module than that which was applied in the previous module. Notwithstanding that it does, however, seem to me that the process has, with the benefit of hindsight, turned out to be less than satisfactory. I would not favour a modular trial of a s.23 appeal in the future.

6.3 I should finally add that I agree with the judgments of the Chief Justice and O’Donnell J. I also agree, subject to the minor reservations addressed earlier, with the judgment of MacMenamin J.

7. Conclusions
7.1 For the reasons set out in this judgment I am not satisfied that, in the words of s.23(11) of the 2010 Act, it is in the interests of justice to direct a retrial.

7.2 It follows that, in my view, Mr. C.’s acquittal must be affirmed.