The Criminal Procedure Act 2010 reforms law in relation to a number of matters. Some of the matters were considered by the Criminal Law Review Group and were the subject of recommendations in its 2007 report.
The 2010 Act modifies the rule against double jeopardy to allow persons who have been acquitted to be retried in circumstances where new and compelling evidence emerges or where the acquittal is obtained due to corruption or intimidation of witnesses or jurors or to perjury.
It gives the DPP right to appeal to the Supreme Court on a with-prejudice basis against an acquittal where the requital arises from an erroneous ruling by the trial court judge in a point of law during the trial. It allows the DPP a right of appeal with-prejudice against the decision by the Court of Criminal Appeal not to award a retrial following quashing of a conviction. It provides a number of amendments to defence appeal provisions.
The rule against double jeopardy is to the effect that generally a person may not be put at risk twice for the same offence. The rule is modified by the 2010 Act by allowing the DPP to apply to the Court of Appeal for a retrial in respect of a person acquitted where
- there is new and compelling evidence.
- the acquitted person or another person has been convicted of an offence against administration of justice and is probable that the result in the original proceedings was affected by the offence against the administration of justice.
There must be new and compelling evidence. The power is limited to offences specified in the schedule to the 2010 Act. They are offences carrying mandatory or maximum sentences of life imprisonment or of a certain level and offences under the International Criminal Court Act. It applies to acquittal following a trial and indictment.
New and compelling evidence is evidence which is not presented at the proceedings in respect of which the person was acquitted or in appeal proceedings and could not with the exercise of due diligence having presented during those proceedings is reliable substantial and implicated the person concerned with a high degree of probability in the commission of the offence concerned.
An offence against the administration of justice is defined as an offence of corruption relating to criminal proceedings or an offence of intimidation of witnesses or jurors or common law offences of attempting to pervert the course of justice, perjury, conspiring or inciting others to do any of the above.
The relevant offences for the purpose of the re-trial on the basis of new and compelling evidence are those carrying a mandatory or maximum sentence of imprisonment for life together with certain other crimes within the scope of the international criminal court [genocide, crime against humanity, war crimes and related offences]
New provisions in the 2010 Act are not retrospective. A person who has been acquitted of a relevant offence is deemed also to have been acquitted of a relevant offence with which she could have been convicted in the proceedings concerned by virtue of the charge in the indictment. Effectively the greater offence deal with lesser offences.
An application for re-trial may only be made if there is new and compelling evidence and the application is in the public interest. It is made on notice to the acquitted person. The hearing may proceed in the acquitted person’s absence if the court is satisfied that in all the circumstances, it is in the interest of justice that the application should be heard and determined.
The person who is acquitted remains at liberty until such time as there is a re-trial ordered. The court makes a decision as to whether or not the person should be remanded in custody or bail pending rehearing. The application may only be made at once in relation to any particular offence.
The application for re-trial based on interference with the administration of justice may be made if it appears to the DPP that it is probable that the commission of the offence against administration of justice concerned affected the outcome of the proceedings and resulted in the acquittal and that the application is in the public interest. It may not be made where an appeal is pending in relation to the conviction against administration of justice. The application is made on notice to the acquitted person.
As above, the hearing may proceed notwithstanding the absence of the persons concerned. Persons would remain at liberty until such time the re-trial order is made, and the court will then decide as to whether he should be remanded in custody or on bail. The power may only be exercised once.
The court shall grant an order where it is satisfied that the new and compelling evidence, in relation to the acquitted person concerned and having regard to whether it is likely any trial could be conducted fairly, the amount of time that has passed in this commission, the interest of the victim and other matters the court considers relevant, it considers in all the circumstances it is in the interest of justice to grant the order.
In the case of tainted acquittal, the court shall grant the order if it is satisfied that it is probable having regard to all the circumstances that the commission of the offence against the administration of justice affected the result of the proceedings which led to the person’s acquittal and having considered the matters set out above that it is in all the circumstances, it in the interest of justice to grant the order.
The effect of the re-trial is to quash the acquittal and direct the person to be retried subject to conditions and directions as the court may provide. The court when ordering an application for a re-trial may make orders in relation to a range of matters.
It may receive evidence tendered by witnesses as it considers necessary in the interest of justice in the application before it. Admissibility of evidence at a hearing is not dependent whether it would have been admissible under the laws of evidence in the original proceedings.
A person who is the subject of an application for a re-trial order is entitled to a legal aid re-trial order certificate for the purpose of preparation and conduct of this case in relation to the application. He or she is entitled to have a solicitor and counsel assigned to him for that purpose. The application for grant of a legal aid certificate is based on the means of the person and the considerations of the requirements of justice.
The court has discretion to make orders relating to attendance at hearing and broadcast the matters relating to hearing in order to safeguard the fairness of trial. Hearings are to be in open court, but the court may in the interest of justice exclude the public or part of the public or particular person. It may not exclude bona fide members of the press.
The court may impose broadcasting and publication restrictions in relation to evidence at the hearing that would identify the person who is the subject of the application and only other persons connected with the re-trial. Breach is an offence subject to conviction summarily or in indictment [three years and up to €50,000 on indictment] an order prohibiting the publication of broadcasting of certain matters relating to the hearing ceases once any re-trial is concluded or once there is no possibility of the person being subject to a re-trial.
The effect of a re-trial order is that the person may be indicted, retried, found guilty and sentenced. The Director or an acquitted person may appeal a re-trial order to the Court of Appeal on the basis of a certificate from the Court of Appeal, the Director of Public Prosecutions or the Attorney General stating that a point of law of exceptional public importance is involved and that it is desirable in the public interest that the appeal be taken.
The Garda Siochana must apply to the District Court for an order prior to the exercise of certain powers in relation to an acquitted person in relation to investigation into his suspected participation in events of which he has been previous acquitted. The prior District Court order is required in view of the status of the person as acquitted.
This is necessary in respect of arrest, detention, interview, searching, photograph and causing in to be photographed, taking fingerprints, forensic samples, seizing or attaining use in evidence of anything at the person’s possession, searching a place owned, occupied or partly owned or occupied by him.
The judge may on information on oath by a member of the Garda Síochána not below the rank of superintendent that the member concerned has information regarding a relevant offence in respect of which the person was acquitted which has come to the knowledge of the Garda Síochána only since the person’s acquittal, and that the information is likely to reveal or confirm the existence of new and compelling evidence in relation to the person’s suspected participation in the relevant offence for which his or her arrest is sought,
A person arrested may be detained under Section 4 of the Criminal Justice Act. A person found not guilty by reason of insanity may not be arrested under this provision.
Before authorizing a search warrant, the District Judge must be satisfied by information on oath by senior Garda regarding the relevant offence that there are reasonable grounds for suspecting evidence or information to be found at the place for where the warrant is sought and that the information is likely to reveal the existence of new and compelling evidence.
Where a person is tried on indictment and convicted and where the person’s conviction is quashed on appeal, the prosecution authority may appeal with-prejudice the decision of the Court of Appeal not to order a re-trial on a question of law to the Supreme Court. A decision with-prejudice refers to the possibility that the appeal may result in the acquittal or decision of the Court of Appeal, not to order a re-trial being overturned and re-trial ordered. The with-prejudice appeal option is in addition to the without-prejudice appeal already provided for under the Criminal Procedure Act.
The appeal is against the erroneous rulings of the High Court judge followed by a jury acquittal, or a judge directed acquittal. The appeal must be on notice to the person, the subject to the appeal. Notice must be given 28 days from the date on which the person was acquitted, or the conviction quashed. The period may be extended by the Supreme Court for a period up to 56 days.
The appeal may proceed in the person’s absence, where the court is satisfied that it is in all the circumstances in the interest of justice that it should be so heard and determined. Having regard to the person’s status as an acquitted person, he is to remain at liberty until a re-trial is ordered. The court may make a decision as to whether or not he should be remanded in custody or on bail pending the hearing of the re-trial.
Where a person is acquitted on the re-trial, there is no further appeal, but there is a possibility of it without-prejudice appeal.
The court has discretion regarding making orders regarding attendance at the appeal hearing, publication and broadcasting of matters in order to safeguard the fairness of any re-trial ordered. The hearing is to be in open court, but the court may in the interest of the justice exclude the public or a part of the public. They may not exclude bona fide members of the press.
They may impose publication and broadcast restrictions in relation to evidence tendered at the hearing or any matter that would tend to identify or have the effect to identifying a person who is a subject of the appeal, or any other person connected with the re-trial. Breach is an offence.
The effect of a re-trial order is that the person may be indicted, re-tried and found guilty and sentenced for the offence concerned. He may be remanded in custody or bail pending the re-trial. Provision is made for legal aid on the re-trial.
There is prohibition in relation to making communications with certain persons including the DPPE and members from Garda Siochana for the purpose of influencing decision to withdraw or not to initiate criminal offences that applies generally, is applied to this procedure.
A convicted person need not obtain leave in order to appeal to the Court of Appeal.
A person who has been granted the re-trial may appeal a point of law raised before the court, but not determined by it to the Supreme Court and on without-prejudice basis. This applies only where the point of law is relevant to the conduct of the person’s defence.