Court of Appeal Procedure I

Rules of the Superior Courts

Appeals and other Applications to the Court of Appeal in Criminal Proceedings

Supplemental Provisions Concerning Appeals in Criminal Proceedings

Cases

DPP v TOD (No.2)

[2017] IECA 173
JUDGMENT of the Court delivered on the 1st day of June 2017 by Mr. Justice Mahon
1. On the 22nd May 2017, this court quashed the conviction of the appellant on the 27th June 2014 for the indecent assault of N, then a sixteen year old boy, on an occasion between the 1st March and the 30th April 1979, at a boarding school in Co Cork.

2. The reasons for quashing the conviction are fully set out in this court’s judgment delivered on the 22nd May 2017. Briefly stated, this court so found having identified an error of principle on the part of the learned trial judge in the manner in which he exercised his discretion not to give a corroboration warning.

3. As of the date of this court’s hearing of the appeal (the 24th March 2017) the appellant had served the custodial element of the sentence imposed in the Circuit Criminal Court, being five years imprisonment, with the final two years suspended.

4. On the 22nd May 2017 the court refused the respondent’s application for a re-trial of the appellant. The court’s reason for so exercising its discretion not to direct a re-trial included the fact that the appellant had completed his custodial sentence, the antiquity of the offence and the appellant’s age, being seventy four years. The court acknowledged that the error of principle it identified as undermining the conviction was capable of rectification in a new trial.

5. The appellant now seeks an order for his costs of the appeal, and that application is resisted by the respondent. No application to recover the costs of the trial in the Circuit Criminal Court has been made. The appellant has not benefited from State funded legal aid.

6. The jurisdiction to award costs in any matter is derived from Order 99 of the Rules of the Superior Courts. The relevant provisions of Order 99 are as follows:-

Rule I:
Subject to the provisions of the Acts, and any other statutes relating to costs and except as otherwise provided by these Rules:

(1) The costs of and incidental to every proceeding in the Superior Courts shall be in the discretion of those Courts respectively.
(2) No party shall be entitled to recover any costs of or incidental to any proceeding from any other party to such proceeding except under an order or as provided by these Rules.

(3) Subject to sub rule (4A) the costs of every action, question, and issue tried by a jury shall follow the event unless the Court, for special cause, to be mentioned in the order, shall otherwise direct.

(3A) Subject to sub rule (4A) the Court of Appeal shall when determining liability for the cost of an appeal or an application for leave to appeal, have regard to:-

(a) The number and extent of the issues raised, pursued or contested by the respective parties on the appeal or application and,
(b) Whether it was reasonable for a party to raise, pursue or contest the issue, or issues concerned.

(4) Subject to sub rule (4A) the costs of every issue of fact or law raised upon a claim or counterclaim shall, unless otherwise ordered follow the event.
(4A) The High Court, the Court of Appeal or the Supreme Court upon determining any interlocutory application, shall make an award of costs save where it is not possible justly to adjudicate upon liability for costs on the basis of the interlocutory application.”

7. The jurisdiction to award costs pursuant to Order 99 of the Rules of the Superior Courts in criminal cases was confirmed by the Supreme Court in People (Attorney General) v. Bell [1969] IR24, but on the basis that sub-rules (3) and (4) did not apply to criminal proceedings. This, in effect, means that a decision to award or refuse costs in a criminal case is a matter for the court’s discretion exercised judicially.
8. Applications for costs by successful defendants in criminal cases are relatively rare because most are processed with the benefit of State provided legal aid. In civil cases, the general rule is that the loser pays the winner’s costs. It is a rule occasionally departed from in particular circumstances on the basis of the court’s discretion to so decide. In Dunne v. Minister for Environment [2007] IESC 60, Murray C.J. stated:-

“Where a court considers that it should exercise a discretion to depart from the normal rule as to costs it is not completely at large but must do so on a reasonable basis indicating the factors which in the circumstances of the case warrant such a departure. It would neither be possible nor desirable to attempt to list or define what all those factors are. It is invariably a combination of factors which are involved. An issue such as this is decided on a case by case basis and decided cases indicate the nature of the factors which may be relevant but it is the factor or combination of factors in the context of the individual case which determine the issue.”
9. In DPP v. Kelly [2007] IEHC 450, Charleton J. refused an application by an aquitted murder accused for an order for costs against the Director. In his judgment, Charleton J. suggested that a court, in dealing with such an application in a criminal case, might consider the following criteria, and which were not intended to be exhaustive.
(1) Was the prosecution justified in taking the case through it being founded on apparently credible evidence?
(2) Did anything within the investigation by the gardaí give rise, of itself, to the existence of a serious inherent doubt as to the guilt of the accused? I use this test, in distinction to a matter that might raise a reasonable doubt because, firstly, the trial judge must distance himself or herself from the evidence and, secondly, it is for the jury to judge whether there is any reasonable doubt about the guilt of the accused;

(3) Was there any indication that the case had been taken against the accused through being based on an abuse of his rights through oppressive questioning, which contributed to a confession that was unreliable in law?

(4) Whether the accused was acquitted by direction of the trial judge or acquitted upon consideration by the jury? Then one might go on to consider the reason for such acquittal by the trial judge, whether as to a failure in technical proofs or if it was one of the rare cases of inherent weakness in evidence that had actually been offered;

(5) If there had been an acquittal by direction of the trial judge, was this one based upon a decision that required the exclusion of evidence, and if so, whether that exclusion was based upon a serious, as opposed to a mistaken, abuse of the accused’s rights? This is not a circumstance to apply the rule as to the exclusion of evidence based on a mistake that accidentally infringes some constitutional right of the accused. What might be considered here is deliberate abuse by the servants of the State;

(6) What answer had the accused given to the charge when presented with an opportunity to answer it? The purpose of a garda investigation is not to provide an opportunity to an accused person to state what his defence is; McCormack v. Judge of the Circuit Court [2007] IEHC 123, (Unreported, High Court, Charleton J. 17th April, 2007). The purpose of any fair investigation, however, is to seek out the truth; sometimes according with an initial police view as to who is guilty and often times contradicting it. A fair interview upon arrest would naturally bring an accused person to the point that he or she is expected to deal with the preliminary outline of the case inculpating the suspect and allow him or her an opportunity, if he or she wishes, the chance to say what the answer to it is or might be, in a case based on circumstantial evidence;

(7) What was the conduct of the accused in the context of the charge that was brought, specifically in terms of who he was associating with and on what ostensible basis? Sometimes an accused can be partly responsible for attracting suspicion by dealing with and having close relations with those who are closely linked to criminal activity. Such a relationship may be explained in evidence in an apparently reasonable way, but at other times the course of dealings may be left untreated in any reasonable way in the evidence. Suspicion can arise against an accused in other ways, such as by running away or apparently destroying what might be relevant evidence.

(8) What was the conduct of the accused in meeting the case at trial?

(9) Whether any positive case was made by an accused such as might reasonably be consistent with innocence and whether any right was exercised to testify as to that case or whether an opportunity was used under the Prosecution of Offences Act 1974 to communicate with the Director of Public Prosecutions as to the nature of the defence?

(10) Has the prosecution made any serious error of law or fact whereby the case became presented on a wrong premise? The same question is applicable to the defence.

10. A similar issue was considered by the Court of Criminal Appeal in DPP v. Bourke Waste Removal Limited and Others [2012] IECCA 66. This was an appeal brought by the Director pursuant to s. 24 of the Criminal Justice Act 2006 against orders for costs granted against him following acquittals on all counts recorded against the several respondents following their trial in the Central Criminal Court on competition related offences. The appeal was dismissed. The Court of Criminal Appeal held (as per the head note):-
(i) that the court would not interfere with the exercise of a discretionary judgment of a trial judge in relation to costs unless it was satisfied that such exercise was substantially flawed, or was such that in the interests of justice ought to be set aside.
(ii) When the trial court exercises its discretion in criminal cases to award costs, that discretion is not coupled with any specific presumption under the Rules of the Superior Courts 1986, that costs should follow the event. (The People (Attorney General) v. Bell [1969] I.R. 24 applied.)

(iii) That in exercising the court’s costs jurisdiction, the actual result of the prosecution was more than a purely neutral factor. The actual result was not determinative of orders for costs following the event but was the starting point of the court’s consideration on costs and was to be considered in conjunction with other relevant circumstances.

11. The primary focus of the Court of Criminal Appeal in Bourke Waste related to the extent, or the circumstances in which, the court would consider interfering with a discretionary judgment of a High Court judge in relation to his or her decision on an application for costs at the conclusion of a trial in the Central Criminal Court. That particular aspect is absent in the instant case as the appellant’s trial in the Circuit Criminal Court concluded in a jury verdict of guilty, and there was no application to the trial judge for costs. No application for the costs of the trial in the court below is made to this court. Nevertheless the decisions in Kelly, Bourke Waste and McNicholas (see below) are relevant in that they have considered the paramount criteria appropriate to a determination of an application for costs in a criminal case.
12. The judgment of the court in Bourke Waste (delivered by Hardiman J.) considered the criteria suggested by Charleton J. in Kelly and the judgment of Cooke J. in DPP v. McNicholas [2011] IECCC 2 (concerning a competition related prosecution which concluded in an acquittal). In McNicholas Cooke J. explained his view that many of the criteria enumerated by Charleton J. in Kelly, while of relevance to a murder trial, were less useful in relation to a competition related offence.

13. In DPP v. Bourke Waste Removal Limited [2010] IEHC 122, McKechnie J., (the trial judge), suggested:-

“However, the most significant event in my view is and remains the outcome/conclusion of the case. On the criminal side this is straightforward: guilty or not guilty. An acquittal, in my opinion, is therefore a highly significant factor which when appropriately weighted should be measured as being closely akin to the position of an applicant to whom sub-rr. (3) and (4) apply. Without in any way restricting the discretion involved, the primary approach should be result driven. If this is correct there cannot be any question of weighing up the various factors and whoever tips the scales gets the costs. The starting question must be: why should an acquitted person not get his costs?”
14. In McNicholas, Cooke J. said:-
“The Court has difficulty in accepting the fact of acquittal by jury verdict as an appropriate starting point for a number of reasons. In particular, to do so would appear to give insufficient recognition to the fact that this jurisdiction in costs in criminal cases derives from O. 99, r. 1 and is based on the distinction made between sub-rules (1) and (2) as compared with sub-rule (3).”
15. While Cooke J. in McNicholas did not take any particular issue with the ten point criteria suggested by Charleton J. in Kelly and, indeed, in general terms agreed with them, he took the view that they had little or no relevance to the circumstances of the case with which he was then dealing and which involved the Competition Authority. Of particular relevance to Cooke J. in arriving at his decision (which was an award of 50% of the costs to the defendants in the trial) was the culpable failure of the investigation or of the evaluation of the evidence and also, the length of time the defendants had the charges pending against them.
16. Returning to the Supreme Court decision in Bourke Waste, Hardiman J. said:-

“While the discretion thereby conferred is wide, it must naturally be exercised in a judicial fashion. But the actual event must nevertheless be the starting point for the court’s inquiry as to how the issue of costs should be resolved, even if the absence of sub-rr. (3) and (4) means that the court’s discretion in that regard must of necessity be wider than would otherwise obtain in the case of civil proceedings by reason of the presence of sub-rr. (3) and (4). While we respectfully agree that the factors identified by Charleton J. in The People (Director of Public Prosecutions) v. Kelly [2007] IEHC 450, [2008] 3 IR 202 and by Cooke J. in The People (Director of Public Prosecutions) v. McNicholas [2011] IECCC 2, (Unreported, Central Criminal Court, Cooke J., 20th December, 2011) are highly relevant to the exercise of that discretion, we cannot agree that an acquittal is simply a neutral fact so far as the exercise of this discretion is concerned. Nor can we agree with the suggestion of Cooke J. in .. McNicholas .. to the effect that treating the acquittal as the starting point in any inquiry as to costs would have the effect of applying sub-r. (3) to criminal proceedings, the decision to the contrary in The People (Attorney General) v. Bell notwithstanding, Ord 99, r. 1(3) is in the nature of a lex specialis which presumptively mandates the award of costs to the successful party. But if r. 1(3) is disregarded, it does not follow that the event is a purely neutral factor that can be put to one side for costs purposes.
Approaching, therefore the question of the interpretation of sub-r. (1) as if sub-r. (3) simply did not exist, we thus find ourselves obliged to acknowledge that the actual result of the prosecution is still the most important consideration regarding the award of costs. As the trial judge stressed in the present case, the acquittal of the accused is, accordingly, the starting point of any inquiry as to costs, to be considered in conjunction with other relevant circumstances, likely to relate primarily to the factors already enumerated by Charleton J. in .. Kelly.. and by Cooke J. in ..McNicholas.. Naturally, these particular factors may also legitimately be considered where it is judged appropriate to do so by the trial judge.”

17. The court’s judgment in Bourke Waste, abridged Charleton J.’s ten criteria to the following four:-
(a) Was the prosecution warranted, both in regard to the matters set forth in the Book of Evidence, what actually transpired at the trial, and what responses were made by or on behalf of the defendants prior to the trial?
(b) Had the prosecution conducted themselves unfairly or improperly in relation to the defendants, by oppressive questioning or otherwise, and had the prosecution been pursued with reasonable diligence and expedition?

(c) What was the outcome of the prosecution? If an acquittal was this on foot of a direction granted by the trial judge, and if so, on what basis?

(d) How had the defendants met the proceedings, both prior to and at trial, and had they associated themselves with undesirable elements, or otherwise contributed to drawing suspicion on themselves?

18. In the instant case the answer to (a) is that the prosecution was warranted. A specific complaint was made by the complainant, N, alleging the commission of a serious criminal offence by the appellant. In the circumstances, the Director’s decision to prosecute was entirely appropriate.
19. In relation to (b) the case against the appellant was one of very significant antiquity. Approximately thirty three years passed between the alleged offence and a complaint being made. A period of well over two years elapsed between the date of complaint to the gardaí and the date of trial, and while such a delay might not be deemed unduly prolonged, arguably that gap in time might have been shortened.

20. In relation to (c), while the outcome of the prosecution in the Circuit Criminal Court was a verdict of guilty, that verdict has now been quashed by order of this court. It is appropriate therefore that this court approach the application for costs as if the appellant had been acquitted, having regard to the reasons for his conviction appeal being allowed.

21. In relation to (d), there can be no criticism as to the manner in which the appellant has met the proceedings. He contested the charge against a backdrop of pleading guilty to other similar offences against named students in the boarding school in question, and in which he worked at the time, while adamant that he had not committed any offence against the complainant.

22. The decision to refuse to order a re-trial is for the reasons already stated (see para 4, above) and not because of any other impediment, failure to co-operate or action taken by the complainant. The decision to refuse a re-trial was made in the interests of justice.

23. Although not acquitted by the jury the appellant now stands no less innocent than if he had been. The decision to quash the jury verdict, has, in effect, been rendered necessary by the decision of the trial judge not to give a corroboration warning. Such a warning was sought by the appellant, and was opposed by the respondent. There can therefore be no blame or responsibility attributed to the appellant for what occurred.

24. In the circumstances, the Court believes it is appropriate that the appellant should be paid his costs of appealing his conviction, and it will so order.

D.P.P.-v- Liam Campbell

[2005] IECCA 27 (04 March 2005)

Court of Criminal Appeal Record Number: 119/04 & 120/04

Date of Delivery: 04/03/2005

Court: Court of Criminal Appeal

Composition of Court: Kearns J., Herbert J., Butler J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Kearns J.
Refuse applications

Outcome: Refuse applications

22
THE COURT OF CRIMINAL APPEAL
Kearns J.
Herbert J.
Butler J.
[119/04 & 120/04]
BETWEEN
THE PEOPLE AT THE SUIT OF THE
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
LIAM CAMPBELL
APPELLANT
JUDGMENT of the Court delivered the 4th day of March, 2005 by Kearns J.
On 18th May, 2004, the appellant stood trial at the Special Criminal Court charged with membership of an unlawful organisation, contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976. The particulars of the offence charged were that Liam Campbell was, on the 3rd October, 2000, within the State, a member of an unlawful organisation, to wit: an organisation styling itself the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA.

After the appellant had pleaded not guilty, counsel for the Director of Public Prosecutions handed into court by way of formal proof The Offences against the State Act Scheduled Offences Order, (S.R. & O. No. 142 of 1942) and also the Unlawful Organisation (Suppression) Order, 1939 (S.R. & O. No. 162 of1939) by virtue of which it was declared that the organisation styling itself the Irish Republican Army, also the IRA and Oglaigh Na hÉireann, was an unlawful organisation which ought in the public interest to be suppressed. Counsel in addition handed into court a copy of Iris Oifigiuil of 30th May, 1972, recording the decision of the Government to establish the Special Criminal Court.

Thereafter, the court heard brief evidence for the prosecution from Chief Superintendent Michael Finnegan and Detective Garda Hanrahan. No evidence was called on behalf of the appellant.

Chief Superintendent Finnegan gave evidence that he had known the appellant for about 23/24 years and that Liam Campbell was a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann, and that he was a member of that organisation within the State on 3rd October, 2000. He further gave evidence that this opinion or belief was based on confidential information. He gave further evidence of a search carried out at Mr. Campbell’s home on the 3rd October, 2000, and of the arrest of Mr. Campbell on that date. He further gave evidence that nothing found in the course of the search of Mr. Campbell’s home contributed in any way to the formation of his belief or opinion.

Chief Superintendent Finnegan was not cross-examined.

Detective Sergeant William Hanrahan then gave evidence in relation to certain interviews conducted with the appellant subsequent to his arrest when he was brought to Kells Garda Station. He gave evidence that the appellant was specifically advised that he had been arrested under s.30 of the Offences against the State Act, 1939, for membership of the Irish Republican Army and would accordingly be questioned about his membership of that organisation. He further gave evidence that the provision of s.2 of the Offences against the State (Amendment) Act, 1939 – 1998 was read over to the appellant and explained in layman’s terms to him and that a proper caution was administered to him. Detective Sergeant Hanrahan told the court that he explained the caution to Liam Campbell by telling him that if he failed or refused to answer questions under s.2 of the Offences against the State Act, 1939, his failure or refusal to answer material questions could have consequences for him at his trial.

He then gave evidence that the following specific questions were put to the appellant:-

“Our investigations to date satisfied us that you are a member of the Irish Republican Army, otherwise Oglaigh Na hÉireann, otherwise the IRA. Have you anything to say about that?”
He stated in evidence that Liam Campbell made no reply to this question.
He then asked the following question:-

“When did you join the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army?”
He gave evidence that Liam Campbell made no reply to this question.
He also gave evidence of asking the following question:-

“I now wish to remind you that I am investing the reports that you are a leading member of the IRA, otherwise Oglaigh Na hÉireann, otherwise Irish Republican Army.”
Detective Sergeant Hanrahan gave evidence that Liam Campbell made no reply to this question or statement.
The remaining interviews followed precisely the same procedure and the prosecution relied on 6 interviews to provide corroboration for the evidence of Chief Superintendent Finnegan.

Detective Sergeant Hanrahan was not cross-examined or challenged in respect of any of these matters nor was he questioned about the origin, aims, composition or leadership of subversive groups including the IRA, Óglaigh Na hEireann, otherwise the Irish Republican Army or any groups believed to have split away from same . No submissions were made to the court at the conclusion of the prosecution case and, in particular, no rulings were sought about the applicability or otherwise of the 1939 Suppression Order in the case of the appellant.

Having found the appellant guilty as charged, the court then embarked upon the further trial of the appellant in Bill No. 11S/2001 whereunder the appellant stood charged with membership of an unlawful organisation contrary to s.21 of the Offences Against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, the particulars whereof being that Liam Campbell was, on the 29th July, 2001, within the State, a member of an unlawful organisation, to wit: an organisation styling itself the Irish Republican Army, Oglaigh Na hÉireann, otherwise the IRA.

The accused pleaded not guilty, whereupon the same formal proofs were, without challenge, tendered to the court, including the Unlawful Organisation (Suppression) Order, 1939. In relation to this charge Chief Superintendent Finnegan gave evidence that on the 29th July, 2001, the appellant was present with a number of other persons in a hotel room at the Neptune Beach Hotel in Bettystown, County Meath. On that occasion, the appellant and three other men were arrested under s.30 of the Offences against the State Act, 1939. A search of the room led to the recovery of a Panther stun gun which was in a green sports bag. He further gave evidence of his belief that Liam Campbell was, within the State, a member of an unlawful organisation on the 29th July, 2001, such belief being based on confidential information and that such belief was independent of Liam Campbell’s presence in the Neptune Hotel or the outcome of any interrogations which took place with him subsequent to his arrest and detention.

Again, Chief Superintendent Finnegan was not cross-examined as to his beliefs and was simply asked to confirm that the bag containing the stun gun was brought into the room by some person other than Liam Campbell.

Detective Garda Gerard Doherty then gave evidence. He stated that a search warrant had been obtained authorising the search of room 202 of the Neptune Hotel in Bettystown and that the said warrant was executed on the afternoon of the 29th July, 2001. He also gave evidence of the arrest of Liam Campbell under s.30 of the Offences against the State Act, 1939, and of bringing Liam Campbell thereafter to Mountjoy Garda Station. He further gave evidence that on the 31st July, 2001, Liam Campbell was released, but was rearrested at North Circular Road on the same date under the provisions of s.4 of the Criminal Law Act, 1997, for the arrestable offence of membership of an unlawful organisation, known as Oglaigh Na hÉireann, otherwise Irish Republican Army, otherwise the IRA. He gave evidence that Liam Campbell was then brought back into Mountjoy Garda Station and was later brought to the precincts of the Special Criminal Court where he was handed a copy of the charges that were to be preferred against him.

This witness was not cross-examined, nor was his evidence challenged in any way.

The trial resumed on the following day when Detective Sergeant Rory Corcoran gave evidence of certain interviews conducted with Liam Campbell subsequent to his arrest. Specifically, he gave evidence that Liam Campbell denied being a member of an unlawful organisation.

Evidence was given that the provisions of s.2 of the Offences against the State (Amendment) Act, 1998, were read over to Liam Campbell and the text thereof explained in ordinary layman’s terms to him. At no stage did Liam Campbell indicate that he did not understand the caution.

Detective Sergeant Corcoran gave evidence of the following questions put to Liam Campbell and his replies thereto:-

“Q. I am asking you once again are you a member of the Irish Republican Army, otherwise known as the IRA, otherwise Oglaigh Na hÉireann?
A. No I am not a member of any illegal organisation.
Q. This is a material question and your reply or failure to reply will be put in evidence as support evidence of my Chief Superintendent that you are a member of the Irish Republican Army, otherwise known as the IRA, otherwise Oglaigh Na hÉireann. Will you make a reply now confirming or denying that you are a member of the IRA, otherwise known as the Irish Republican Army, otherwise Oglaigh Na hÉireann?
A. I am not a member.”
At a later point the following question and answer occurred:-
“Q. I want to remind you that these are material questions regarding your alleged membership of an unlawful organisation, namely the IRA, otherwise the Irish Republican Army, otherwise Oglaigh Na hÉireann, and your failure or refusal to answer any of these questions or if you give a false or misleading answer to any of these questions, a judge may consider your refusal as amounting to corroboration or supporting evidence of any other evidence offered against you at your trial, do you understand what I have told you?

A. Yes.”
Evidence was also given that the appellant had a telephone conversation with his solicitor. There was also evidence that Liam Campbell declined to sign various interview notes.

This witness was not cross-examined, nor was his evidence challenged in any way. The prosecution case having closed, no evidence was led by or on behalf of the accused and again no ruling was sought as to the applicability or otherwise of the Suppression Order in the case of the appellant.

In convicting the appellant, the court noted that the defence had not challenged any of the evidence adduced and had made no submissions relating thereto or in contradiction of the same.

Evidence was then given that Liam Campbell had been in custody since the 29th July, 2001, when he was arrested in respect of the second charge. Evidence was given that the charge in relation to membership on the 29th July, 2001, took place while he was on bail on the first membership charge, such bail having been granted on the 21st December, 2000.

In the course of a plea in mitigation, Mr Michael O’Higgins, senior counsel on behalf of the appellant, reminded the court of different sentencing options which he suggested were available to the court depending on the particular manner in which a person convicted on a membership charge had met the case. He instanced a case where, on a plea of guilty to IRA membership, a particular accused received a sentence of 3 and a half years. In another case, which was “fully contested” a 4 year sentence had been imposed. In other “fully contested” cases sentences of 5 years had been imposed. Counsel then referred to “the fast track method” which his client had followed in the instant case whereby, without pleading guilty, the accused had not challenged the evidence led for the prosecution and suggested that this approach, which was described as the “middle ground of cases” warranted a measure of leniency. Counsel for the appellant specifically pointed out:-

“I would ask your Lordship to take all of those factors into account when imposing sentence and to recognise the manner in which he has met the cases, and to recognise particularly yesterday he facilitated in as much as he possibly could to have a second case dealt with simultaneously with the first and that has vacated a trial date later this year… which would free up, very valuable court time, my Lord.”
In imposing sentence on the 24th May, 2004, the court noted that the accused had not contested the evidence during the case and that the court was thus able to treat the appellant’s approach to the charges as equivalent to a plea of guilty. The court further noted that this approach had saved a considerable amount of court time and expense in dealing not only with the first Bill, but the second Bill also, and had freed up court time to deal with other pressing matters. The court in its judgment stated:-
“The court takes into account the manner in which this court has dealt with other accused who adopt a similar approach to the charge of membership of an illegal organisation.”
The court then proceeded to impose a sentence of 4 years imprisonment in respect of the offence in 2000, and a consecutive sentence of 4 years on the offence committed in 2001. It was accepted by counsel for the appellant that a consecutive sentence was appropriate in respect of a second offence committed while the appellant was on bail.
The court specifically took into consideration the manner in which it dealt with other accused who adopted a similar approach to the charge of membership of an illegal organisation and suspended the final 18 months of the sentence imposed on the second count and gave credit to the accused for the time already spent in custody, directing that the sentence date from 1st May, 2001. The appellant thus received a significantly lesser sentence than might otherwise have been imposed if the two cases had been fully contested.

At the conclusion of the sentencing hearing, counsel on behalf of the accused stated:-

“I have no instructions in the matter, my Lords, but rather than reconvene the court I will make the usual application for leave to appeal against conviction and sentence.”
The court having refused such application, an appeal against such refusal and against the conviction herein has now been brought to this court, the sole ground being:-
“The court erred in holding that the Real IRA was a prescribed (sic) organisation within the terms of a suppression Order published pursuant to s.19 of the Offences against the State Act, 1939.”
At the outset of the hearing before this court, the point was taken by counsel for the Director of Public Prosecutions that this appeal could not be entertained at all, having regard to the fact that the particular point now being raised was not canvassed, argued or ruled upon in either case during the hearings before the Special Criminal Court.
Mr. Birmingham, senior counsel on behalf of the Director of Public Prosecutions, argued that to permit the applicant to open an issue which was not contested at the trial would be to permit the appellant to mislead the trial court in a charade designed solely for the purpose of avoiding the imposition of an appropriate sentence. Without mincing words, it is contended in the written submission filed on behalf of the Director of Public Prosecutions that to entertain this appeal would, in effect, be an abuse of the process of appeal. Having regard to the benefit obtained by the applicant in relation to sentence by virtue of the approach adopted by him at the trial, the failure to raise at trial the issue which is now sought to be raised here has to be seen as a deliberate and considered approach taken by the appellant with the benefit of legal advice. No explanation for the failure to raise the issue at trial before the Special Criminal Court had been addressed in the appellant’s submissions.

Furthermore, counsel for the Director of Public Prosecutions submitted, there was absolutely no evidential basis for the ground of appeal now sought to be argued. Contrary to what was asserted in the ground of appeal, the Special Criminal Court had not held that the “Real IRA” was a proscribed organisation and no evidence had been led or adduced in cross-examination of prosecution witnesses to warrant the court making any such finding. There had been no such charge and no such conviction. Mr. Birmingham submitted that the grounds relied upon by the appellant in making this application are entirely unsupported by any evidence whatsoever. In both cases the prosecution had relied upon the Suppression Order and the opinion evidence of a Chief Superintendent that the appellant was, within the State, a member of an unlawful organisation styling itself the Irish Republican Army, otherwise the IRA, otherwise Oglaigh Na hÉireann. Chief Superintendent Finnegan was not cross-examined on this evidence and his opinion was not challenged or tested in any way. That uncontradicted and unchallenged evidence was accepted by the trial court.

Finally, counsel for the prosecution submitted that the particular issue had already been decided by this Court in December, 2003 in an appeal against conviction in a prior trial of the appellant in relation to the same charge of IRA membership on 3 October, 2000.

For these various reasons, Mr. Birmingham submitted that this court should not proceed to deal with what the appellant characterised as the “substantive issue”, namely, whether the “Real IRA” was caught by the terms of the Suppression Order of 1939.

In response counsel for the appellant admitted that his appeal would have to be dismissed because the point he sought to argue had already been determined by the Court of Criminal Appeal in December, 2003, but sought nonetheless a ruling or decision from this court on the point so as to provide a vehicle or conduit for a reference to the Supreme Court on a point of law under S. 29 of the Courts of Justice Act, 1924. To properly understand the submissions of counsel for the appellant, it is necessary now to trace the history of the previous proceedings in this matter.

The Previous Proceedings

The appellant was convicted in the Special Criminal Court on the 23rd October, 2001, of the offence of membership of the IRA on the 3rd October, 2000, contrary to s.21 of the Offences against the State Act, 1939, as amended by s.2(6) of the Criminal Law Act, 1976, and was sentenced to a term of 5 years imprisonment, the last 3 months being suspended. This is the first of the offences with which this Court is now concerned following the events described hereunder.

In the course of that first trial, the accused had given evidence and was cross-examined. The Court of Criminal Appeal held that certain aspects of the cross-examination should not have been permitted and quashed the conviction. In the exercise of its jurisdiction under s.5(1)(b) of the Courts of Justice Act, 1928, the court then directed a retrial.

One of the grounds of appeal which had been before the Court of Criminal Appeal was the following:-

“The court erred in holding that the ‘Real IRA’ was a proscribed organisation within the terms of the suppression Order published pursuant to s.19 of the Offences Against the State Act, 1939.”
The argument which was made on behalf of the appellant in relation to that ground was that the Suppression Order of 1939 made in respect of the organisation styling itself the Irish Republican Army, also the IRA and Oglaigh Na hÉireann was ‘ineffective’ in the case of the applicant who, it was claimed, was in reality being accused of membership to the “Real IRA”, an organisation which is said to have come into existence in 1997. It was submitted that a necessary proof in relation to a charge of membership of an unlawful organisation was that the organisation had been correctly suppressed under the relevant legislation. The Suppression Order relied upon by the prosecution, the Unlawful Organisation (Suppression) Order, 1939 (S.R. & O No. 162 of 1939) declares that:-
“The organisation styling itself the Irish Republican Army (also the I.R.A. and Oglaigh Na hÉireann) is an unlawful organisation and ought, in the public interest, to be suppressed.”
It was argued that only two suppression orders had been issued by the Government, being that of 1939, just quoted above, and that of 1983 (S.I. No. 7 of 1983) issued in respect of an organisation styling itself the “Irish National Liberation Army”.
The accused’s legal advisers (who were the same as in the present case) argued that in reality the applicant was accused of membership of the dissident republican group the Real IRA. This group was said to be distinct from other IRA groups such as the “Official IRA”, the “Provisional IRA” and the “Continuity IRA” both in its membership, aims and tactics. It was submitted that a suppression order made in 1939 based on the existence of “the IRA” in that year could not be said to relate to an organisation that came into existence nearly 60 years after order was made.

In the course of the appeal reliance was placed on evidence elicited in cross-examination from Chief Superintendent Finnegan to the effect that Liam Campbell was a member of the “Real IRA”. Further reliance was placed on evidence given by Detective Superintendent Maguire dealing with the history of the “Official IRA,” the “Provisional IRA” and the “Real IRA” and it was argued that it was clear from the evidence of the garda witnesses that the “Real IRA” is a separate organisation which was not in existence in 1939 and therefore could not be rendered unlawful by a suppression order issued in 1939.

The Special Criminal Court rejected this submission in a ruling on the 10th October, 2001, stating that it was:-

“…satisfied that the labels such as ‘official’, ‘provisional’, continuity’ or ‘Real’ are irrelevant in considering whether a particular person or group of persons are within the ambit of the Suppression Order i.e. that he or they belong to an organisation which styles itself the Irish Republican Army or the IRA or Óglaigh Na hÉireann. The so called ‘Real IRA’ are on all fours with the original IRA as it existed in 1939 in terms of its philosophy, objectives and structure and members of that group are within the ambit of the Suppression Order of 1939.”
In the course of its reserved judgment which was delivered the 19th December, 2003, the Court of Criminal Appeal upheld this ruling. In delivering the judgment of the court McGuinness, J stated at pp. 11 to 12:-
“It is, of course, true that there has been violent disagreement and at times internecine struggle between the groups of persons involved over the years. Nevertheless, as stated in evidence by Detective Superintendent Maguire the group of which the applicant was convicted of being a member has ‘the structure, style and philosophy exactly the same as all other organisations up to now representing themselves as the Irish Republican Army or Óglaigh Na hÉireann.’
Bearing these considerations in mind this Court is of the view that the Special Criminal Court was correct in its ruling, adopting the decision of Kenny J. in Ó Bradaigh v Fanning (unreported, 25th November, 1972, High Court) that:-
‘… the labels such as ‘official’, ‘provisional’, continuity’ or ‘real’ are irrelevant in considering whether a particular person or group of persons are within the ambit of the Suppression Order i.e. that he or they belong to an organisation which styles itself the Republican Army or the IRA or Óglaigh Na hÉireann.
The Court does not find it necessary to consider the argument advanced on behalf of the prosecution that even in the absence of any Suppression Order the IRA would be an illegal organisation within the terms of s.18 of the Offences against the State Act, 1939.
This first ground of appeal therefore fails.”
Notwithstanding the fact that the Court of Criminal Appeal directed a retrial, the court acceded to a request made on behalf of the appellant for a certificate pursuant to s.29 of the Courts of Justice Act, 1924, certifying that its decision of 19th December, 2003, involved a point of law of exceptional public importance being the following:-

“Does the Unlawful Organisation (Suppression) Order (S.R. & O No. 162 of 1939) issued in 1939, pursuant to s.19 of the Offences against the State Act, 1939, have application to an organisation which came into existence in or about the year 1997?”
The ex-tempore ruling on this issue records that counsel on behalf of the respondent had opposed the application, principally on the ground that in a situation where the applicant’s conviction was quashed and a retrial ordered it was not open to him thereafter to seek a certificate pursuant to s.29. On behalf of the accused it had been submitted that he was entitled to know what the law was when he was facing a retrial. While the court accepted that it would be functus officio if no retrial had been ordered, it was of the view that the situation was somewhat different when the applicant was facing a retrial. Since the court was satisfied that the point of law relied on by the applicant was of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court on that point, it granted the certificate sought by the applicant.
However, the Supreme Court in The People (D.P.P.) v Campbell [2004] 2 ILRM 412 held that it had no jurisdiction to entertain an appeal from a determination of the Court of Criminal Appeal which allows an appeal.

In the course of his judgment, Keane C.J. stated at pp.417 to 418:-

“The legal advisors of the applicant were undoubtedly confronted with a dilemma in this case; had they confined themselves in the Court of Criminal Appeal to arguing the ground which is now the subject of the certified point and failed to persuade this court that the Court of Criminal Appeal were wrong in the conclusion they reached, they would have been deprived of the retrial to which the Court of Criminal Appeal held them entitled on one of the other grounds actually argued. It is understandable that they should have sought in this court to argue the certified point while maintaining at the same time the applicant’s right to a retrial, whether or not they succeeded in the appeal to this court. One can indeed have some sympathy with the position of an applicant who faces a retrial in the knowledge that the Court of Criminal Appeal have taken the view that the law is sufficiently uncertain to require an authoritative decision by this court without the uncertainty being resolved at that level. Those considerations, however, cannot justify the court in attributing to the legislature an intention to confer a right of appeal by s.29 which is plainly outside the ambit of the section as enacted.”
In the course of his brief judgment in the same case, Fennelly J. stated at p.418:-
“This result is unfortunate and undesirable. Mr. Michael O’Higgins S.C. rightly emphasised the burden that it places on the applicant. The judgment of the Court of Criminal Appeal decided the certified point against the applicant. The Special Criminal Court at the retrial is likely to feel bound by that decision. In the event of a conviction, there will have to be a further appeal to the Court of Criminal Appeal. It may then be possible to have the matter, clearly a matter of exceptional public importance, certified anew to this court.
These and other limitations of the section could readily be remedied by amending legislation.”

The Appellants Case
The written submissions filed on behalf of the appellant gave this Court absolutely no inkling of these background matters, nor did it provide any explanation as to why the legal point now sought to be raised was not raised at the court of trial. The submission focuses entirely on the suggested incapability of the Suppression Order of 1939 to suppress new and emerging illegal groupings which addressed by the vocabulary of the Act of 1939.

Counsel for the appellant in responding to the submissions made by counsel for the respondent argued that it was not open to the appellant to raise this point before the Special Criminal Court during the present case, given that it had been determined by the Court of Criminal Appeal in its judgment on 19th December, 2003. The point was being raised now, counsel for the appellant admitted, so as to permit the making of an application to this Court following its determination of the appeal (and assuming it took the same view as the court had done in December, 2003) for a s.29 certificate under the Courts of Justice Act, 1924. This course had not been open to the appellant at an earlier stage by virtue of the decision of the Court of Criminal Appeal in December, 2003, to direct a retrial.

He disputed counsel for the respondent’s assertion that the conduct of the present cases before the Special Criminal Court was tantamount to a plea of guilty. In an adversarial system he argued that it is open to an accused in the course of a trial to make certain concessions which would save court time as a result of which the court could quite properly decide to impose a somewhat lesser sentence. That was not to abandon the contest or to plead guilty. Without identifying the particular case, he submitted that the Special Criminal Court had actually acquitted an accused person some months ago where what he characterised as the “fas- track method” of not challenging prosecution witnesses had been adopted. Counsel for the appellant submitted that the adoption of such a course by an accused person could not tie the hands of the accused’s advisers in such a way that a subsequent appeal against conviction could not be brought.

Furthermore, he held that there was evidence upon which this Court could act, because at the sentencing hearing Detective Chief Superintendent Maguire had stated that Liam Campbell belonged to the IRA and “the group that he is allied with is sometimes referred to in the media as the Real IRA”. The same officer had further confirmed that at the time of the offences in respect of which he had been convicted Liam Campbell had been part of that group, a group which broke away from the Provisional IRA in 1997 because it didn’t agree with the Peace Process.

Counsel for the appellant submitted that the court could have regard to this evidence to properly determine the ground of appeal in the present proceedings. In conclusion he asserted, though without identifying the case or tendering a report of it or indeed without even identifying the relevant statutory provisions, that the point he was seeking to argue had been taken successfully in a case in Northern Ireland in recent months.

Decision

The Court of Criminal Appeal is an appellate court which was established under s. 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12 of the Courts (Supplemental Provisions) Act, 1961 provides:-

“(1) The Court of Criminal Appeal shall be a superior court of record and shall, for the purposes of this Act and subject to the enactments applied by s. 48 of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.
(2) There shall be vested in the Court of Criminal Appeal all jurisdiction which, by virtue of any enactment which is applied by s. 48 of this Act, was, immediately before the operative date, vested in or capable of being exercised by the existing Court of Criminal Appeal.”
S. 48 of the Courts (Supplemental Provisions) Act, 1961, provides that any enactment contained in the Courts of Justice Acts, 1924 to 1961, shall apply to the courts established under the Courts (Establishment and Constitution ) Act, 1961 and this includes the Court of Criminal Appeal.
S. 44 of the Offences against the State Act, 1939 provides:-

“(1) A person convicted by a Special Criminal Court of any offence or sentenced by a Special Criminal Court to suffer any punishment may appeal to the Court of Criminal Appeal from such conviction or sentence if, but only if, either he obtains from that Special Criminal Court a certificate that the case is a fit case for appeal or, where such Special Criminal Court refuses to grant such certificate, the Court of Criminal Appeal on appeal from such refusal grants to such person leave to appeal under this section.”
The grounds for leave to appeal were set out in s.32 of the Courts of Justice Act, 1924, which provided:-
“Leave to appeal shall be granted by the Court of Criminal Appeal in cases where the court is of opinion that a question of law is involved, or where the trial appears to the court to have been unsatisfactory, or there appears to the court to be any other sufficient ground of appeal, and the court shall have power to make all consequential orders it may think fit, including an order admitting the appellant to bail pending the determination of his appeal”
The jurisdiction of the Court of Criminal Appeal was described in s.34 of the Courts of Justice Act, 1924 in the following terms:-
“The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.”
This section was repealed by the Criminal Procedure Act, 1993 and s. 3 of that Act now provides inter alia:-
“(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction…may…(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court”
S. 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997 replaced s.33 of the Courts of Justice Act, 1924 and provides:-
“(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal (‘the court’) on
(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried……

with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge”
The Court of Criminal Appeal derives jurisdiction from these statutory provisions and is thus “a creature of statute and it is a court of limited jurisdiction” in the words of Ó Dálaigh CJ in The State (Woods) v Attorney General [1969] I.R. 385 at 409.
As noted by Denham J in The People (DPP) v Cunningham [2002) 2 IR 712 at 721:-

“The concept of limited jurisdiction is used to describe the fact that the jurisdiction of the Court of Criminal Appeal is limited to that set out in statutes, that the jurisdiction is derived solely from statutes, in contrast for example, to the inherent jurisdiction of the Supreme Court”
It is emphatically not a court of first instance, a point impressed upon this court in recent days by Mr. O’Higgins in D.P.P. v Karl Brown (Ex Tempore, Unreported, Court of Criminal Appeal, 21 February, 2005). It may in limited circumstances receive new or additional evidence during an appeal, but these cases are few (see The People (D.P.P.) v Redmond (Unreported, Court of Criminal Appeal, 28 July, 2004); The People (D.P.P.) v Willoughby (Unreported Court of Criminal Appeal, 18th February, 2005) and The People (D.P.P.) v Cunningham [2002] 2 IR 712). This is not a case where any application was made to this court to receive or hear new or additional evidence.
The function of the Court of Criminal Appeal was described by O’Higgins CJ in The People v. Madden [1977] I.R. 336 in the following terms (at p.340):-

“ In the appeals now before this Court, we have transcripts of the rulings of the Special Criminal Court made in the course, and at the end, of the trial on questions of law and findings of facts in relation to the admissibility of evidence, the sufficiency or cogency of the evidence, and the reasons for the rulings and verdicts given. Therefore, subject to grounds of appeal, it would seem to be the function of this Court to consider the conduct of the trial as disclosed in the stenographer’s report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness, to review so far as may be required any rulings on matters of law, to review so far as may be necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by the court of trial can properly be supported by the evidence; but otherwise to adopt all findings of fact, subject to the admonitions in the passages cited above”
Applying these principles to the facts of the present case the court has no hesitation in accepting the correctness of the preliminary points raised by counsel for the prosecution.
Firstly, the ground of appeal now sought to be agitated was not raised, argued or ruled upon in the court below. If it was intended to run with the point, the necessary groundwork had first to be done in the court of first instance. Given that counsel had no difficulty in eliciting information relevant to the ground of appeal through the cross-examination of garda witnesses in the previous proceedings, it may safely be said that no difficulty lay in the way of the defence doing precisely that in the instant cases. The Court is driven to conclude that the failure to do so was not due to any error or omission, not least because the same legal advisers were on record for him in the previous proceedings which had but recently concluded. They are advisers of considerable experience and acumen. The Court must conclude that the decision not to contest fully the State’s case or adduce evidence which might ground the present appeal was not an error or oversight but rather a strategic or tactical decision made by the appellant’s advisers who evidently decided that they might obtain a more lenient sentence for the appellant in the court of trial and perhaps thereafter succeed in persuading this Court that they should be allowed raise a legal argument that was never made in the court below. Accordingly, this Court is satisfied that this case in no way comes within the parameters of ‘oversight or error’ on the part of legal advisers which has, in one case at least, persuaded the Court of Criminal Appeal to allow argument on a point in the course of appeal which had not been made at trial (The People v Noonan [1998] 2 I.R. 439)

There is the clearest of authority which suggests that the Court of Criminal Appeal should not allow points not taken at trial to be argued on appeal. In The People (DPP) v Moloney (Ex Tempore, Unreported, Court of Criminal Appeal, 2 March, 1992) O’Flaherty, J stated at p.3 of the judgment:-

“We would wish to reiterate the jurisprudence of the Court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his direction to the jury. If an appeal is brought before this Court on a point that has not been canvassed at trial this Court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say but that if the essential justice of the case calls for its intervention we have an obligation so to intervene”
This approach was confirmed by this Court in The People (D.P.P.) v Cronin (Unreported, Court of Criminal Appeal, 16 May, 2003) when Hardiman J stated at pp.25 to 26 of the judgment:-
We would respectfully concur with what is said in this passage [i.e., in Moloney]. The reason for this rule or statement of principle is not at all a technical one, or one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the Court is engaged, which is to say whether or not the trial was a safe or satisfactory one.”
If this Court were to allow this appeal to be argued in the manner sought, it is quite clear that the exercise would be one totally unrelated to any ruling or determination made at the court of trial. Furthermore, there is not a scintilla of evidence to ground the appeal on the point taken. This Court cannot have judicial notice in some way of matters not dealt with in evidence or borrow evidence from other trials or sentencing hearings for the purpose of determining an appeal against conviction. Thus while there are background historical matters which may explain why this point is being taken now, it does not in any way detract from the requirement to both lead evidence and obtain a ruling on the point from the court below and we do not accept that it was not possible to do so.
The only unfairness or injustice that could now arise would lie in allowing this ground of appeal to be argued. As was noted by the Special Criminal Court in passing sentence, it felt free to treat the case effectively as one where a plea of guilty had been entered as a result of the approach adopted by the appellant. As a result he received a far lighter sentence than might otherwise have been the case had he fully contested every piece of evidence in the case, not least because the second offence was committed whilst on bail. The Court notes without surprise that no appeal against severity of sentence has been brought in the case. To turn the case on its head now and open an issue which was ignored or by-passed at trial is not a course this Court is disposed to adopt. The Court will therefore dismiss the application for leave to appeal in each of these cases.