Criminal Procedure
Cases
Boden v The Commissioner of An Garda Síochána
[2014] IEHC 371
JUDGMENT of Mr. Justice Barr delivered on the 24th day of July 2014
1. This is a personal application by prisoners William Boden and Gary Kinsella, who are at present incarcerated in Midlands Prison, Co. Laois. The applicants, who describe themselves as unrepresented, indigent prisoners, are seeking an order of mandamus by way of judicial review compelling the Governor of Midlands Prison, and the Commissioner of An Garda Siochana, to permit them to access the gardaí in order to file criminal complaints against the Governors of both Midlands and Arbour Hill Prisons. The applicants do not specify the nature of the criminal complaints they wish to make.
2. This informal system, whereby any prisoner in the State may write to the Central Office of the High Court and make a complaint, has been described in the following terms by Charleton J. in Walsh v. The Governor of Midlands Prison & Ors [2012] IEHC 229:
Sometimes these complaints are serious. Each such complaint is investigated and where necessary a report is sought from the governor of the relevant prison. A ruling is then made on the complaint in open court. This is a highly effective means of ensuring that prisoners are not isolated and that they have an ultimate authority to which to turn on matters of law. The informality of the system is of core benefit to its administration. Nothing about that informal procedure disables any form of judicial review under Order 84 of the Rules of the Superior Courts. Nor could that system undermine the entitlement of an interested party to apply for habeas corpus by way of an application to a judge of the High Court in the ordinary course. The procedure is in addition to other rights and procedures. It amounts to an exceptional means of access to the High Court that is for the benefit of prisoners.
3. The applicants in this case complain that the respondent governor’s failure to afford them speedy and easy access to a member of the gardaí, in the same way as those who are not incarcerated, is unfair, unjust, and contrary to Article 40.1 of the Constitution. They assert that that the State and its agents are obliged to provide prisoners with equal access to the gardaí. The applicants further seek an order granting solicitor/counsel under the Custody Issues Scheme.
4. The applicants state that they wish to gain access to a member of the gardaí at Portlaoise Garda Station in order to file their criminal complaints against the Governors of the Midlands Prison and of Arbour Hill Prison. The applicants complain that there are no arrangements m being whereby unrepresented prisoners can personally make telephone contact with a garda station with a view to filing a criminal complaint. As a result, they say they were compelled to seek the assistance of the Governor of Midlands Prison. The applicants claim that they sought the governor’s permission on the 12th March, 2014, to gain access to the gardaí in Portlaoise Garda Station. They say that the respondent governor informed them that he could not assist them and instead advised them to seek assistance from the Garda Commissioner, and to do so in writing. The applicants state that they wrote to the Commissioner on the 15th March, 2014, seeking assistance in this regard. On the 23rd March, 2014, the applicants state that they received a written response from the Commissioner’s private secretary, Superintendent Frank Walsh, explaining that their written request had been forwarded to the Assistant Commissioner in charge of policing in the Laois area, who would be in touch with the applicants in due course. As of the date of this application, 5th April, 2014, the applicants claim not to have heard from the Assistant Commissioner.
5. The applicants further claimed that the Governor of Midlands Prison has arranged for other prisoners to access the gardaí in Midlands Prison and for the gardaí to access prisoners. The applicants claimed that the governor has also arranged to have prisoners unlawfully removed from Midlands Prison to the Criminal Courts of Justice, Parkgate Street, Dublin 8, at the oral request of the gardaí. The unsworn draft affidavit grounding this application provides no evidence to support these allegations against the respondent governor.
6. The core of this claim, however, is the applicants’ assertion that they have a Constitutional right to access to the gardaí, which they say is being denied. And yet, according to the applicants’ own account, they have written to the Garda Commissioner, who has passed their case to the Assistant Commissioner for the Laois area. The applicants do, therefore, have access to the gardaí by way of correspondence. This is sufficient to ensure that the applicants’ right of access to the gardaí is observed while they are detained in prison. If the applicants are dissatisfied with the response, or lack of response, that they receive from the gardaí, it is open to them to make a complaint about this to the Garda Siochana Ombudsman Commission. The applicants, in light of the able submissions they have made in this case, are clearly capable of putting in writing any complaint that they wish to make to the gardaí.
7. Furthermore, the applicants’ case is somewhat premature. If the Assistant Commissioner received the applicants’ case around Sunday, 23rd March, 2014, which the applicants’ account seems to suggest, this means they only allowed him around 12 days to respond before instituting these proceedings by letter dated 5th April, 2014. In so doing, they did not allow the Assistant Commissioner a reasonable time to make contact with the applicants. It is quite possible that the Assistant Commissioner has been in touch with the applicants since the institution of these proceedings.
8. Finally, the affidavit grounding this application appears to be deficient insofar as it was not sworn in accordance with Order 40 of the Rules of the Superior Courts. As McGovern J. held in Stephen Walsh v. The Minister for Justice & Ors. [2013 No. 19 JRP], which concerned an application similar in form to the present one:
The affidavit grounding the application does not meet the basic requirement of being sworn as is required under O. 40 of the Rules of the Superior Courts. The applicant has previously brought applications before the courts grounded on unsworn draft affidavits and the applicant, on those occasions, similarly failed to provide reasons for failing to do so (2011 No. 2514SS, High Court, McGovern J, 11th January, 2012). It is not apparent as to whether the applicant has the funds necessary to pay for the swearing of an affidavit. Therefore, no basis can be discerned on foot of which the court may exercise its discretion to admit the “affidavit” in its technically deficient form. While the court has given due consideration to the various assertions contained therein, given this procedural neglect there is, in any event, no evidence properly before the court upon which relief could be granted, even had there been any substance to the application.
Similarly, at para. 2 of his judgment in Stephen Walsh v. Governor of Midlands Prison [2011 No. 2514 SS], McGovern J. stated with regard to the issue of the affidavit not having been properly sworn:
The application is not properly brought in that the affidavit has not been sworn as is required under the Rules. In paragraph 3 of his unsworn affidavit, the applicant states, “the Legal Aid Act does not cover a complaint of this great constitutional nature nor the rip off fees being currently sought by the State arranged Visiting Commissioner of Oaths… ” This seems to suggest that the State has provided a Visiting Commissioner of Oaths. The applicant’s failure to have the affidavit sworn is not properly explained. He offers no information as to whether he has even limited funds to pay for the swearing of the affidavit and what funds were being sought (if any) for that purpose. It is impossible for the Court to adjudicate on that issue in the absence of such evidence. The burden of laying evidence before the Court rests on the applicant.
9. In this case, the court has g1ven all due consideration to the applicants’ complaints. The complaint about access to the gardaí is without merit since the applicants, by their own account, have been able to write to the Garda Commissioner, who promptly passed their case to the Assistant Commissioner for the Laois area. The applicants did not allow the Assistant Commissioner a reasonable period to reply before instituting these proceedings. It is open to them to make a complaint to the Garda Síochana Ombudsman Commission if they are dissatisfied with the response they receive. In any case, even if the applicants’ complaints had merit, there is, in light of the unsworn affidavit, and the applicants’ failure to provide any explanation for this, no evidence properly before the court upon which relief could be granted.
10. Accordingly, the relief sought must be refused.
Considine v Shannon Regional Fisheries Board and Ors
[1994] 1 ILRM 499
Costelloe J
The Shannon Regional Fisheries Board issued a summons dated 29 January 1991 against the plaintiff in these proceedings under the provisions of the Fisheries (Consolidation) Act 1959 alleging breaches of the provisions of that Act. The summons was heard in the local District Court on 22 March 1991 and was dismissed. An appeal was brought to the Circuit Court by notice of 3 April 1991 by the Shannon Regional Fisheries Board under the provisions of s. 310 of the 1959 Act. That section allows the prosecutor to appeal to the Circuit Court against an acquittal in the District Court of a complaint brought on a summons.
The plaintiff in these proceedings then issued a plenary summons in which a declaration is sought that s. 310 of the 1959 Act is unconstitutional. The plaintiff’s submission is that the right of the citizen to liberty involves immunity from re-trial following an acquittal. It is claimed that this right is enshrined in Article 38.1 of the Constitution, which provides: ‘No person shall be tried on any criminal charge save in due course of law’ and it was urged that the phrase ‘in due course of law’ embraces the concept to which I have referred. It is said that an appeal against acquittal would amount to a re-trial contrary to the concept which, it is said, is enshrined in Article 38.1 and that, accordingly, s. 310 of the Act infringes the Constitution and is invalid.
I can summarise the defendants’ submissions as follows. The defendants referred to Article 34.3.4° of the Constitution which provides: ‘The courts of first instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law.’ And it is pointed out that, if construed according to its literal meaning (as the defendants say it should be construed) this means that the Oireachtas may by law provide that courts of local and limited jurisdiction are subject to an appeal to the Circuit Court and that that is what the Oireachtas did, that by enacting the 1959 Act the Oireachtas carried out a legislative act which was permitted and, indeed, contemplated by Article 34.3.4° of the Constitution.
The defendants submit that the plaintiff must show that these clear words of the Constitution are in some way qualified by some other constitutional provision. It is pointed out by the defendants that the only provision of the Constitution on which the plaintiff relies in this case is Article 38.1. The defendants say that the Supreme Court has held in People (DPP) v. O’Shea [1982] IR 384 ([1983] ILRM 549) that Article 38.1 cannot have the construction on which the plaintiff relies. This Court, it is said, is bound by the decision in People (DPP) v. O’Shea and should dismiss the plaintiff’s claim. If the O’Shea case has determined the issue, as the defendants suggest, then of course I am bound by it, and it seems to me that I should first of all consider this submission on the defendants’ behalf.
The doctrine of judicial precedent provides that a principle of law which is the basis for an actual decision of the Supreme Court must be followed by the lower courts. Like many general principles, the principle of judicial precedent can be easily stated but may be difficult to apply in practice. And undoubtedly there may be instances where the ratio of a case is not always easy to discover. Again, the principle is clear. The ratio of the case is discovered by determining what proposition of law justified the decision in the light of the material facts which the court decided. It is, of course, clear that there may be more than one ratio in a decided case.
In relation to the O’Shea case, I think I can take as correct the summary of the facts as given in the first paragraph of the headnote. It reads:
At the trial of the respondent, O’Shea on indictment in the High Court (Central Criminal Court) in March 1980, the trial judge, being of opinion that a conviction of the respondent based upon the evidence adduced by the prosecution would not be warranted, directed the jury to record a verdict of not guilty in respect of each count in the indictment. The Director of Public Prosecutions, being dissatisfied with the said direction and verdicts, served notice of an appeal by him to the Supreme Court against the verdicts. The respondent disputed the jurisdiction of the Supreme Court under Article 34.4.3° of the Constitution to entertain an appeal from a verdict of not guilty duly recorded by a jury at the trial of an accused on indictment in the High Court (Central Criminal Court).
It will be clear that the O’Shea case was concerned with the appellate jurisdiction of the Supreme Court under Article 34.4.3° of the Constitution which provides that: ‘The Supreme Court shall … have appellate jurisdiction from all decisions of the High Court …’. It is obvious that the Supreme Court was dealing with Article 34.4.3° and not with Article 34.3.4° which deals with appeals from the District Court to the Circuit Court. Secondly, it is clear that the O’Shea case was dealing with the right of an appeal from a verdict of a jury in a criminal trial in the Central Criminal Court, whereas in this case the court is concerned with an appeal from a summary trial in the District Court.
There were a number of legal principles laid down by the Supreme Court, principles which, of course, bind this Court. The first principle which the Supreme Court laid, down was that the direction of the trial judge and the verdict of the jury subsequent to such direction was a decision within the meaning of Article 34.4.1°. This is a legal principle which is not of any concern in this particular case. It is also clear that the Supreme Court laid down another legal principle. It was argued by the respondent in the appeal in the O’Shea case that the appellate jurisdiction of the Supreme Court under Article 34.4.3° must be read subject to the provisions of Article 34.5 relating to trial by jury. It was said that although the appellate jurisdiction of the Supreme Court was given in clear terms in the article to which I have referred, nonetheless that article must be read as being qualified by Article 38.5 which provides that: ‘Save in the case of a trial of offences under ss. 2, 3 or 4 of this article, no person shall be tried on any criminal charge without a jury.’
What is clear from the judgments in the O’Shea case is that this argument was considered at length and with great care by the judges of the Supreme Court and that by a majority it was decided that Article 38.5 did not qualify the provisions of the earlier article. And it is clear from reading the minority judgments that they disagreed with the conclusion of the majority on this point. The majority were of the view that this article, namely 38.5, was not a bar to the appellate jurisdiction claimed in aid by the DPP in the O’Shea case. But there was another issue considered in the O’Shea case. Had this other issue not been decided as it was, the appeal of the DPP would not have been allowed. The other issue decided by the Supreme Court was this. An additional argument was advanced by the respondent to the effect that Article 34.4.3° is to be read not only in conjunction with Article 38.5 but also in conjunction with Article 38.1, which is the article in contention in this case. The submission made on behalf of the respondent in the O’Shea case was that the appellate jurisdiction of the Supreme Court was limited by the provisions of Article 38.1, the exact argument which is before this Court. It is clear from the judgments of the Supreme Court that what the respondent in the O’Shea case urged was that appellate jurisdiction could not be exercised by the Supreme Court in cases of an acquittal on a criminal charge by the Central Criminal Court. In the O’Shea case the then Chief Justice dealt explicitly with this point at p. 403 of the report. Having dealt with the submission made by the respondent in relation to the right to trial by jury, the learned Chief Justice then considered the argument under Article 38.1 as follows:
Counsel for the respondent also submitted that the provision in Article 38.1, which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed. In my view, this is to put forward the same proposition that was rejected in Feran’s case. The clear words of the Constitution cannot be limited or restricted by advertence to what had been the law, the policies or the procedures formerly recognised or practised. Further, I do not see that trial in due course of law has any relevance to the question whether the decision arrived at as a result of the trial may or may not be appealed. The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.
The matter was also considered in the judgment of Walsh J. On pp. 415–417 of the report he considered the submission made by the respondent on this point and rejected it. The third judgment making up the majority of the court was delivered by Hederman J. Hederman J did not expressly deal with this point but, by implication, he must have agreed with the conclusion of his colleagues.
I therefore conclude as follows. It seems to me that the decision of the Supreme Court is that Article 38.1 of the Constitution does not constitute an exception to the right of the appellate jurisdiction of the Supreme Court conferred by Article 34.4.3°. It is true that the Supreme Court was not dealing with Article 34.3.4° and was not dealing with an appeal from the District Court to the Circuit Court. However, it seems to me that the principle of law established by the Supreme Court’s decision must apply with equal force to the provisions of that article and I must therefore hold that in the light of the O’Shea case it has now been established that Article 38.1 would not prohibit an appeal under Article 34.3.4° from the District Court to the Circuit Court. Bound as I am by the principle established in the O’Shea case, I must therefore dismiss the plaintiff’s claim.
Considine v. Shannon Regional Fisheries Board
[1994] 1 I.L.R.M. 499 (HC); [1998] 1 I.L.R.M. 11
Hamilton CJ
This is an appeal brought by the appellant, Noel Considine against the judgment of the then Costello J delivered on 18 November 1993 (see [1994] 1 ILRM 499) and the order made in pursuance thereof on the same date whereby the appellant’s claim for:
a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 which purport to empower the prosecutor to appeal against the acquittal of an accused person of a charge of an offence under the provisions of the said Act, disregard the requirements of natural and constitutional justice, are offensive to the provisions of the Constitution and in particular of Article 38 thereof, and are of no legal force and effect
and other ancillary relief was dismissed.
Impugned section
S. 310(i) of the Fisheries (Consolidation) Act 1959 provides that:
Where any proceedings in the District Court for an offence under any provision of this Act are dismissed, whether on the merits or without prejudice, the prosecutor may appeal against the order of dismissal to the judge of the Circuit Court within whose circuit the courthouse in which such order was made is situate.
S. 310(ii) of the said Act provides that:
Where by virtue of subs. (1) of this section a right of appeal against an order of the District Court in any proceedings under this Act lies to a judge of the Circuit Court, such judge on such appeal may vary, confirm or reverse such order, and the decision of such judge on such appeal shall be final and conclusive and not appealable.
This section grants to the prosecutor of an offence, under any provision of the said Act, the right to appeal against an order of dismissal made by the District Court and to a judge of the Circuit Court the power to vary, confirm or reverse such order.
The facts
The facts relevant to the issues raised in this appeal are as follows:
1. The plaintiff was prosecuted by the first named defendant by way of summons dated 22 January 1991 charging him:
That you did on 23 July 1990 at the River Fergus in the townland of Carrownanelly, in the County of Clare in the court area and district aforesaid did,
1. Make use of a net, the use of which in such waters for the purpose of taking fish is prohibited contrary to s. 96(1) of the Fisheries (Consolidation) Act 1959 as amended by s. 10 of the Fisheries Amendment Act 1962 and the Fisheries Act 1980.
2. Have in your control one unlawfully captured salmon contrary to s. 183(2)(a) of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries Act 1980.
3. Use a boat as an aid to the commission of an offence under the provisions of the Fisheries Acts 1959 to 1987 contrary to s. 285(a) of the Fisheries (Consolidation) Act 1959 as inserted by s. 24 of the Fisheries (Amendment) Act 1962 and amended by the Fisheries Act 1980.
4. Obstruct Assistant Inspector Gerard Healy a duly authorised officer in the execution of his duties contrary to s. 301(7) of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries Act 1980.
2. Each of the above four charges relates to an offence triable summarily by the District Court.
3. The said summons came on for hearing before the learned District Court judge sitting at the courthouse, Ennis in the County of Clare on 28 March 1991. The plaintiff appeared in answer to the said summons and after a full hearing, each of the charges against him was dismissed and the plaintiff herein was acquitted on each of the said charges.
4. A notice of appeal dated 3 April 1991 was served upon the plaintiff notifying the plaintiff that the first named defendant herein was appealing the said dismissal and acquittals to the judge of the Circuit Court sitting at Ennis in the said county.
5. The said notice of appeal was served upon the plaintiff in reliance upon and pursuant to the provisions of s. 310 of the Fisheries (Consolidation) Act 1959.
6. By plenary summons dated 5 June 1991 the plaintiff instituted these proceedings in which he claims a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 are unconstitutional; he further claims a declaration that the notice of appeal against the order of the learned district judge is a nullity; and certain other consequential reliefs.
7. The defendants in these proceedings delivered a defence on 31 March 1993 denying that s. 310 is unconstitutional; that the notice of appeal is a nullity; and denying that the plaintiff is entitled to the alleged or any relief.
As appears from the judgment of the learned trial judge, Costello J (as he then was) delivered on 18 November 1993 the plaintiff sought a declaration that the provisions of s. 310 of the Fisheries (Consolidation) Act 1959 (hereinafter referred to as the Act) are unconstitutional on the grounds that:
(i) the right of the citizen to liberty involves immunity from retrial following an acquittal;
(ii) that this right is enshrined in Article 38.1 of the Constitution which provides that:
No person shall be tried on a criminal charge save in due course of law;
(iii) the phrase ‘in due course of law’ embraces the concept that the right of the citizen to liberty involves immunity from retrial following an acquittal;
(iv) an appeal against an acquittal, as permitted by s. 310 of the Act, would amount to a retrial contrary to the aforesaid concept, alleged to be enshrined in Article 38.1 of the Constitution, and
(v) s. 310 of the Act, which permits such appeal is invalid having regard to the provisions of Article 38.1 of the Constitution.
In the High Court, the defendants (the respondents herein) had relied on the provisions of Article 34.3.4° of the Constitution which provides that:
The courts of first instance shall include courts of local and limited jurisdiction with a right of appeal as determined by law
and submitted that:
(i) the District Court and the Circuit Court are courts of local and limited jurisdiction, established by law in pursuance of the provisions of the Constitution (see the Courts (Establishment and Constitution) Act 1961);
(ii) it was permissible under the terms of Article 34.3.4° of the Constitution for the Oireachtas to provide by law that the decisions of the District Court be subject to an appeal to the Circuit Court;
(iii) the Oireachtas in enacting the Act and, in particular s. 310 thereof, carried out a legislative act which was permitted and contemplated by Article 34.3.4° of the Constitution;
(iv) the provisions of the said Article 34.3.4° are not in any way qualified by the provisions of Article 38.1 of the Constitution, and
(v) the High Court was bound by the decision of the Supreme Court in People (DPP) v. O’Shea [1982] IR 384; [1983] ILRM 549 (hereinafter referred to as the O’Shea case).
The question at issue in the O’Shea case was:
Does an appeal lie at the suit of the prosecution direct to the Supreme Court against a verdict of not guilty reached by a jury in the Central Criminal Court?
This question was answered in the affirmative by the majority of the court, consisting of O’Higgins CJ, Walsh and Hederman JJ, the other members of the court, Finlay P and Henchy J dissenting.
The O’Shea case dealt with the provisions of Article 34.4.3° which provides that:
The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.
It had been submitted to the Supreme Court in the O’Shea case that this sub-article of the Constitution should be read in conjunction with Article 38.5 but also in conjunction with Article 38.1 and that the appellate jurisdiction of the Supreme Court could not be exercised by the Supreme Court in cases of acquittal on a criminal charge by the Central Criminal Court.
Dealing with the submission with regard to the provisions of Article 38.1 O’Higgins CJ stated at pp. 403/557:
Counsel for the respondent also submitted that the provision in Article 38.1, which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed. In my view, this is to put forward the same proposition that was rejected in State (Browne) v. Feran [1967] IR 147. The clear words of the Constitution cannot be limited or restricted by advertence to what had been the law, the policies or the procedures formerly recognised or practised. Further, I do not see that trial in due course of law has any relevance to the question whether the decision arrived at as a result of the trial may or may not be appealed. The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.
In this passage the claim made that the provision in Article 38.1 which ordains that no person shall be tried on any criminal charge save in due course of law, carries the necessary implication that an acquittal by a jury cannot be appealed was decisively rejected.
Judgment
The learned trial judge carefully considered the judgments delivered in the O’Shea case and concluded his judgment in the following terms:
I therefore conclude as follows: It seems to me that the decision of the Supreme Court is that Article 38.1 of the Constitution does not constitute an exception to the right of the appellate jurisdiction of the Supreme Court conferred by Article 34.4.3°. It is true that the Supreme Court was not dealing with Article 34.3.4° and was dealing with an appeal from the District Court to the Circuit Court. However, it seems to me that the principle of law established by the Supreme Court’s decision must apply with equal force to the provisions of that article and I must therefore hold that in the light of the O’Shea case, I must therefore dismiss the plaintiff’s claim.
Appeal
From this judgment and order made in pursuance thereof, the appellant has appealed to this Court on the following grounds:
1. The learned High Court judge misdirected himself in holding that the decision in People (DPP) v. O’Shea is either relevant to the issues to be determined herein, or, a fortiori, to the establishment of a principle of law appropriate to such determination.
2. The learned trial judge failed to give any, or any adequate consideration to the submission that neither the Constitution of Saorstát Éireann, nor the Constitution afford or affords any sanction for the power of the prosecution to appeal an acquittal on the merits by a court of competent jurisdiction other than within the narrow scope of Article 34.4.3° of the Constitution.
3. The immemorial principle that the law does not permit a man to be twice in peril of being convicted of the same offence formed part of the jurisprudence continued in force by the Saorstát Constitution and subsequently the Constitution.
4. By virtue of the principle referred to in the last preceding ground an acquittal of an accused by a court competent to try him is a bar to his being put in peril of conviction of the same offence to which principle the learned judge failed to have any or any proper regard.
Submissions of appellant
Counsel for the appellant, in support of the aforesaid grounds of appeal submitted that:
(i) S. 310 of the Act was invalid having regard to the provisions of the Constitution because it infringes the long established principle enshrined in the common law that no appeal shall lie from a decision dismissing a criminal charge;
(ii) the appellant has a constitutional right to be tried in respect of a criminal offence in due course of law;
(iii) a trial in due course of law involves the aforesaid principle that no appeal would lie from the dismissal of such charge;
(iv) the provisions of Article 38.1 of the Constitution should be interpreted so as to incorporate into such provisions an implied right that there should be no appeal against a decision to dismiss a criminal charge;
(v) the guarantee against double jeopardy is of a fundamental nature and is recognised by implication in the Constitution;
(vi) a verdict of not guilty on a criminal charge is inviolable in the light of the Constitution;
(vii) the decision of the Supreme Court in O’Shea’s case was not binding on the learned trial judge in the instant case.
Submissions on behalf of the respondents
Counsel on behalf of the respondents repeated the submissions which had been made on behalf of the respondents in the High Court and which have been set out in the earlier portion of this judgment.
He further submitted that the learned trial judge was correct in law in his reasoning and conclusions which are set out in that portion of his judgment which has already been quoted herein and which sets forth his conclusions.
He further submitted that the question at issue in this appeal is not whether there existed a rule of common law that no person might be tried twice for the same offence which survived the enactment of the Constitution but rather whether it was competent for the Oireachtas under the Constitution to enact legislation providing for an appeal against the acquittal of a person charged with an offence tried summarily in a court of limited jurisdiction viz. the District Court.
He submitted that the terms of Article 34.3.4° of the Constitution, which provides that:
the courts of first instance shall also include courts of local and limited jurisdiction with a right of appeal as determined by law
are clear and explicit, are not qualified in any way by any other provision of the Constitution, in particular Article 38.1, and permit the legislature to enact legislation determining rights of appeal from the decisions of courts of local and limited jurisdiction and that this provision of the Constitution, being clear and explicit should not be interpreted as excluding an appeal in respect of a criminal charge.
He submitted that, irrespective of the nature of the common law rule, it was always subject to the right of parliament or the Oireachtas to legislate for an appeal against the dismissal of a charge dealt with summarily to an appropriate court and such legislation was frequently enacted.
He further drew the court’s attention to the provisions of s. 18(2) of the Courts of Justice Act 1928 which acknowledged such right of appeal in providing that:
Where immediately before the commencement of Part III of the Principal Act, an appeal lay in a criminal case at the instance of a complainant or prosecutor against an order of a district justice appointed under the District Justices (Temporary Provisions) Act 1923 (No. 6 of 1923) an appeal of the like kind shall lie in such criminal cases at the instance of a complainant or prosecutor from an order of a justice of the District Court.
The said section was re-enacted by s. 48(1)(a)(I) and s. 48(3) of the Courts (Supplemental Provisions) Act 1961 (No. 39 of 1961).
Attention should also be drawn to the provisions of s. 5(1) of the Courts of Justice Act 1928 (No. 15 of 1928) which provided that:
In addition to the jurisdictions conferred on the Court of Criminal Appeal by s. 34 of the Principal Act, the Court of Criminal Appeal or, on appeal, the Supreme Court shall have the following jurisdictions, that is to say:
…
(b) Where the court reverses a conviction in whole, the court shall have jurisdiction to make an order (in this section referred to as an order for a retrial) authorising the person in respect of whom such conviction was obtained to be retried for the same offence as that which was the subject of such conviction ….
The legislature therein provided that in the case of a person who had been convicted of an offence and whose conviction had been quashed by the court he could be retried on the same offence if the court so directed.
While this section was repealed by the Criminal Procedure Act 1993, the effect of its provisions was re-enacted by s. 3 thereof which provided that on the hearing of an appeal against conviction of an offence the court may (b) quash the conviction and order the applicant to be retried for the offence.
Counsel further referred to the provisions of:
(i) S. 2 of the Summary Jurisdiction Act 1857 (as amended by s. 51 of the Courts (Supplemental Provisions) Act 1961) which provided for an appeal by way of case stated to the High Court;
(ii) Ss. 51, 53 and 54 of the Fisheries Act 1850 which provided for a right of appeal against an acquittal in respect of offences under the said Act;
(iii) S. 19 of the Inland Revenue (No. 2) Act 1861 which also provided for such right of appeal;
(iv) S. 100 of the Fisheries Act 1939 which also provided for such right of appeal
and submitted that:
(1) the common law rule, relied on by the appellant, was always subject to a right of appeal by the complainant or prosecutor against an acquittal where that right of appeal was statutorily conferred in clear and precise terms free from ambiguity;
(2) by virtue of the provisions of Article 34.3.4° of the Constitution, the legislature was empowered to legislate the nature of the rights of appeal from courts of local and limited jurisdiction;
(3) such power included the right to legislate for appeals in relation to the jurisdiction of such courts in both civil and criminal matters;
(4) in enacting the Act and in particular s. 310 thereof the legislature was acting in pursuance of such constitutional powers.
The issue
The issue for determination by the court is whether the provisions of s. 310 of the Act are invalid having regard to the provisions of the Constitution.
The said provisions having been passed by both Houses of the Oireachtas and signed by the President are entitled to the presumption that they are not repugnant to the Constitution and the onus is on the appellant, who is alleging such repugnancy, to establish that the said section is clearly repugnant to the provisions of the Constitution.
Double jeopardy
It was conceded during the course of argument by counsel on behalf of the appellant that if the provisions of Article 34.3.4° of the Constitution were to be considered in isolation by the court, it would be permissible for the Oireachtas to determine by law that an appeal would lie from all decisions, both criminal and civil, of the District Court.
He submitted, however, that the provisions of such sub-article should be considered and construed in the light of the provisions of Article 38.1 which provides that:
no person shall be tried on any criminal charge save in due course of law
and are subject to, and qualified by, such provision, and that, when so construed, it was not permissible for the legislature to enact legislation which would provide for an appeal against the decision to acquit a person charged with a criminal offence because such a provision would be contrary to ‘the due course of law’.
He further submitted that it was a fundamental provision of the common law that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment or punishment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.
It is, however, clear from a consideration of all the authorities that, while this was the general rule, it was subject to the right of the legislature to provide for an appeal in specified cases.
In the course of his speech in Benson v. Northern Ireland Road Transport Board [1942] AC 520 Viscount Simon LC at p. 528 of the report referred to the statement made by Lord Halsbury during the course of his speech in Cox. v. Hakes (1890) 15 App Cas 506 at p. 522 where he stated:
Your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination on that question may only be arrived at by the last court of appeal and stated:
In the light of the above pronouncements, very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge ….
It had also been stated by Palles CB in the course of his judgment in Great Southern and Western Railway Co. v. Gooding [1908] 2 IR 429 at p. 431 that:
Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that, if he be once tried before a court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.
In R. v. Duncan (1881) 7 QBD 198 Lord Coleridge CJ stated at p. 199:
The practice of the courts has been settled for centuries and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.
Palles CB in the Gooding case described this statement ‘as almost classical’. Lord Coleridge CJ, however, stated at p. 200 of the report that:
If the legislature thinks fit to declare that new trials will be granted after acquittals for felonies, misdemeanours, or both, it may of course do so.
It is clear from the foregoing, and many other authorities that the common law rule that there should be no appeal from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided that such right was given in clear and unambiguous language and that a trial ‘in due course of law’ did not necessarily involve the preclusion of a right of appeal in the event of an acquittal. As stated by O’Higgins CJ in the O’Shea case at pp. 403/558 of the report:
The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law: it denotes no more.
Decision
The court is not concerned in this case with the issue that arose in O’Shea and on which the court in that case was divided as to whether an appeal lay from an acquittal by a jury in the Central Criminal Court. The Oireachtas in the Courts and Court Officers Act 1995 (s. 44) has restored the position as to such acquittals as was generally thought to exist before the decision of the majority in O’Shea’s case. However, the following passage from the judgment of O’Higgins CJ is relevant to the issue that has arisen in this case (at pp. 397/553):
The Constitution, as the fundamental law of the State, must be accepted, interpreted and construed according to the words which are used; and these words, where the meaning is plain and unambiguous, must be given their literal meaning. Of course, the Constitution must be looked at as a whole and not merely in parts and, where doubt or ambiguity exists, regard may be had to other provisions of the Constitution and to the situation which obtained and the laws which were in force when it was enacted. Plain words must, however, be given their plain meaning unless qualified or restricted by the Constitution itself.
The court is satisfied that this statement of the law — although not the inference drawn from it as to appeals from acquittals by juries — is consistent with the view of the minority in the same case that the Constitution should not be read in an uncompromisingly literal fashion if the result would violate the Constitution read as a harmonious whole.
It is, accordingly, within the context of that statement setting forth the principle underlying constitutional interpretation that the court must approach the interpretation of the provisions of Article 34.3.4° of the Constitution and having ascertained the ordinary literal meaning thereof consider whether authority can be found within the Constitution itself for giving them a meaning other than their ordinary literal meaning or whether the provisions of the Fisheries (Consolidation) Act 1959 violate the provisions of the Constitution read as a harmonious whole.
Article 34.3.4° of the Constitution provides that:
The courts of first instance shall also include courts of local and limited jurisdiction with the right of appeal as determined by law.
The said sub-article is clear and unambiguous in providing that the right of appeal from decisions of the courts therein referred to must be determined by law.
The legislature is vested with the sole and exclusive powers of making laws for the State and is free to legislate in any way it chooses, save where such legislation would be repugnant to the Constitution. In pursuance of the power, the legislature enacted the Fisheries (Consolidation) Act 1959 and in particular the provisions of s. 310 thereof.
This section provided for an appeal to the Circuit Court where any proceedings in the District Court under any provision of the Act are dismissed.
This accords with the power given to the Oireachtas by Article 34.3.4° and it has not been established by the applicant that the provisions of that sub-article are limited or qualified in any way by any other provision of the Constitution or that the provisions of s. 310 of the 1959 Act violate the Constitution read as a harmonious whole.
Consequently, the appeal in this case must be dismissed.
Michael Oates v Judge Geoffrey Browne
420/2010
Supreme Court
29 February 2016
unreported
[2016] IESC 7
Mr. Justice Hardiman
February 29, 2016
JUDGMENT
1. This is the appeal of the applicant/appellant from the judgment and order of the High Court (Mr. Justice Charleton) of 11th November, 2010. The High Court dismissed the applicant’s application for an order quashing his conviction dated the 5th June, 2009 for an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act 1994.
Nature of the offence alleged and the defendant’s application.
2. The applicant was charged that, on the 21st July, 2008 at Elphin, Roscommon, “he drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath”, contrary to the statutory provisions set out above.
This offence is sometimes referred to as “drunken driving”, and is so described in the judgment of the learned trial judge. But it is not now (or for nearly forty years) necessary to prove that the person charged with it was in any ordinary sense of the term “drunk” or “incapable of having proper control” of his or her vehicle. This latter proof was required by s.49 of the Road Traffic Act 1961, as originally enacted. This latter Section has been repealed by s.33 of the Road Traffic Act 2010 but its effect is re-enacted, with modernisations, by s.4 of that same Act. However, the old offence of driving while “incapable of having proper control” of a vehicle is rarely or never used, having been superseded, first in 1968, by provision for blood or urine testing and in 1994 by an additional provision for evidential breath testing.
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A note on Statutes.
The statutory provisions about drink driving offences are needlessly complex and confusing. There are a number of reasons for this. One is the tendency to repeal a provision in a statute by a later Act, which later Act however contains elsewhere a provision substantially re-enacting the repealed provision in the same words or in substance. This happened in relation to the old s.49 offence, repealed and re-enacted by Sections 33 and 4 of the Act of 2010 respectively. Another reason for needless complexity and confusion is the draftsman’s fondness for introducing an entirely new provision by amendment or substitution of a previous provision rather than starting afresh with a new Section. There is also a tendency to repeal or amend a provision by a later provision, but not to bring the later provision into force. This makes the Statute book positively misleading.
The effect of all this is to make statutory provisions extremely difficult for a layman to access, and to understand which of the myriad statutory provisions on any particular subject represent the present law or the law as it was at any particular past time. This tends to make a nonsense of the important legal principle that everyone is deemed to know the law. For example, it would be best tolerably easy for a dedicated lay person to establish that s.49 of the 1961 Act, after a number of substitutions, has been definitively repealed by the Road Traffic Act, 2010. But this exercise would not inform him that it has been in substance re-enacted and modernised by a different Section of the same Act.
This complexity is by no means limited to Road Traffic Statutes but is to be found, notoriously, in Planning and Tax statutes. As we shall see later in this judgment, it is also to be found in Freedom of Information legislation.
In an attempt to mitigate the confusion caused by these arcane drafting practices, I have set out in Appendix A to this judgment the evolution of the statutory formulations in the Road Traffic Acts of the offence originally constituted by s.49 of the Road Traffic Act 1961 and of the offence originally constituted by s.29 of the Road Traffic Act 1968 (the original excess alcohol in blood or urine offence)
In Appendix B I have set out the evolution of the statutory right to be given a portion of a sample of blood or urine where required under the Road Traffic Acts. This right has existed continuously since the introduction of the mandatory provision of bodily substances for testing in 1968.
In Appendix C I have set out some of the important statutory provisions, applicable in 2008, which are cited in this judgment.
In constructing these appendices I have concentrated narrowly on the subjects indicated above and have left out, accordingly, all mention of other topics and any amendments which are irrelevant to the main point, for example because they relate merely to penalties or to matters of evidence.
As Appendix A shows, the original form of the charge has long been very largely superseded, first by the Road Traffic Act, 1968 (by the creation of an offence of driving with more than a certain quantity of alcohol in the blood or urine). More recently this once novel system was itself largely superseded (by the Road Traffic Act 1994, not widely used for some years thereafter) by the creation of an offence of driving with an excessive quantity of alcohol in the breath. The gardaí retain the power, at their exclusive option. to require a specimen of blood or urine, rather than breath, but this is seldom exercised, and in practice is exercised only where there is some problem with the analysis of breath specimens, from the point of view of the gardaí.
The breath specimen used in court is called an “evidential breath specimen” and is taken and analysed in a Garda Station, and must be distinguished from the “preliminary” or roadside breath specimen, which is used for screening purposes only.
Independent Analysis.
3. When blood or urine testing were in vogue with the legislature, and with the gardaí, it was required by law that any sample of blood or urine be divided and one portion given to the defendant who could then carry out his or her own analysis. This obligation still exists: s.s. 10, 12 and 15 of the Road Traffic Act 2010.
But the possibility of independent analysis ceased to exist in the very large majority of cases, without any express legislative provision abolishing it, when the legislature decided to replace the procedure based on laboratory analysis of blood or urine with a procedure based on analysis, by an automatic process carried out in a garda station, of a breath specimen. Unlike blood or urine, the breath specimen is said to be transitory and not to admit of the possibility of preserving a part of it for subsequent analysis by or on behalf of the defendant. That this is so was recognised (on the evidence provided) by this Court, as it had been by the High Court, in McGonnell v. Attorney General [2007] 1 I.R. 400 at 409.
Chief Justice Murray said, in a passage of great significance for the present case:
“It is… abundantly clear that where the preferred method of testing is breath and breath only, the person in question is in a significantly different position from an individual who has been requested to give blood. Whether the sample should be blood or urine is immaterial in this context.
Such a person has an opportunity of having a portion of a single specimen independently assessed if he so wishes. That portion must have the same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative of guilt. It is the opportunity which is critical to fair procedures and constitutional justice ”. (Emphasis added)
This matter has not been addressed by the legislature in any way. Statute law has not noticed at all the unilateral abolition, in most cases, of the opportunity for independent analysis, which this Court held to be “critical to fair procedures and constitutional justice”. The law has simply provided an alternative test. This new test, in practice, has almost entirely displaced the old one in practice and thus ended the opportunity for independent testing which was held to be “critical” to fair procedures and constitutional justice.
4. As noted above, the opportunity of a separate analysis which might confirm or might contradict the result of the official analysis simply does not arise in the context of a breath specimen. Where a person has been arrested and brought to a garda station for evidential alcohol testing, a member of the gardaí, at his sole discretion , may determine whether the person is to be required to produce (a) an evidential breath specimen or (b) a blood or urine specimen. This is the effect of s.12,13 and 15 of the Road Traffic Act 1994 as amended. According to the leading modern work, Staunton Drunken Driving (2015), both breath and blood or urine may be demanded. But only breath was required in the present case.
Accordingly, the present system of evidential testing for the concentration of alcohol in the body of a driver is now operated in the great majority of cases by the automatic analysis of a breath specimen. It is “automatic” in the sense that the analysis is performed by the Intoxilyser machine, without any laboratory analysis or any human input. When the evidence was provided by analysis of blood or urine it was obligatory to offer to the driver a portion of the sample for his own analysis. It was this opportunity independently to test the sample that this Court in 2007 held to be “critical to fair procedures and constitutional justice”. Now this “critical” opportunity has been abolished in practice. This case raises the question: what are the legal consequences of that abolition?
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5. The statute of 1968, as originally passed, provided that the Medical Bureau of Road Safety’s Certificate of Analysis of the specimen of blood or urine was “conclusive”.
The pre-history of the Act of 1968 is instructive in this regard. I cannot set it out more lucidly than was done by Fitzgerald C.J. in Maher v. The Attorney General [1973] I.R. 140, at 148:
“Part V of the Road Traffic Act, 1968, derives in the main from the report of the Commission on Driving while under the Influence of Drink or a Drug, which was published in 1963. The Commission investigated, in particular, the feasibility of introducing objective tests, by reference to blood-alcohol content or otherwise, of incapacity to drive. As the explanatory memorandum published with the Act of 1968 points out, the main import of the Commission’s recommendations was accepted; but certain aspects of those recommendations were reserved for further investigation and consultation. The eventual legislative implementation is to be found in ss. 27-47 of the Act of 1968. The provisions set out in those sections follow, in the main, the recommendations in the Commission’s report, but they differ from those recommendations in two important ways. First, the Commission had recommended that proof that an accused person’s blood-alcohol level exceeded the permitted level should be merely prima facie evidence that he was unfit to drive: see para. 61(3) of the report. That recommendation was not accepted; instead it was enacted by the amendment in s.29 of the Act of 1968 that driving while the blood-alcohol level exceeded the permitted level should in itself be an offence. Secondly, while the statutory provisions generally implement the Commission’s recommendations as to the ascertainment of the blood-alcohol level from analysis of specimens of blood or urine compulsorily taken or given, the legislature rejected the recommendation of the Commission that the certificate of the analysing authority as to the result of the analysis should be merely prima facie evidence of what is certified: see para. 61(7) of the report. Instead, s. 44 sub-s. 2(a) of the Act of 1968 makes the certificate conclusive evidence of the correctness of the blood-alcohol level as determined by the certificate”.
The history thus summarised was not merely incidental to the decision in Maher. The argument was made in that case that the statute might be preserved, simply deleting the adjective “conclusive”, but the Court was not prepared to do this on the basis that, if it did, it would effectively be setting up as law the rejected recommendation of the Commission or something akin to it. It would be providing for something that the legislature had deliberately and unambiguously rejected.
But this “conclusive” provision was found unconstitutional in Maher. The case concerned the constitutionality of s.44 of the Road Traffic Act, 1968 which provided, insofar as relevant, that the relevant certificate:
“… be conclusive evidence that at the time the specimen was taken or provided the concentration of alcohol in the blood of the person from whom the specimen was taken… was the specified concentration of alcohol”.
The judgment of the Supreme Court in that case is that of Chief Justice Fitzgerald. He held at p.145 that the effect of the provision quoted was that:
“… it precludes the District Justice from forming any other judgment in respect of this vital ingredient of the prosecution case: he is bound under the terms of the statutory provision to proceed as if this had been his own judgment in the matter… it is clear that the object of the statutory provision was to remove this element altogether from the area of contestable facts . In effect it means that the accused person is not free to contest a determination of the concentration of alcohol set out in the Certificate”.
(Emphasis added)
Accordingly, for these reasons, the provision which made the Bureau’s Certificate “conclusive evidence” was found to be unconstitutional.
This reasoning is very significant in the present case as well. In light of Maher a person accused of an offence under the present s.49 must be “free to contest a determination of the concentration of alcohol set out in the certificate”.
The word “conclusive” no longer features in the Statutes. But, on the Director’s reading of the 1994 Act, something closely approaching conclusivity is provided, if the machines print out is not in reality “contestable”. The language “in reality” derives from Whelan v. Kirby, [2005] 2 I.R. 30 at 46, another decision of this Court, cited below. In my view, Maher requires that the contents of the print out must be realistically contestable, contestable in reality, and not simply in some theoretical or hypothetical sense.
Maher v. The Attorney General [1973] I.R. 140 was concerned with the analysis of a specimen of blood or urine. The present case is concerned with a later statute providing for the analysis of a specimen of breath. But this case is not on that account distinguishable from Maher. There, this Court held at p.145 that the question of the result of an analysis of a specimen taken from the driver cannot be “remove[ed] altogether from the area of contestable fact”. It was decided at p.145 that the relevant portion of the 1968 Act was unconstitutional because “… it means that an accused person is not free to contest the determination of the concentration of alcohol set out in the Certificate”.
If an accused person must be free to contest the result of an analysis of a specimen of blood or urine, it appears to me to follow inexorably that such a person must be free to contest the result of the analysis of a specimen of breath. There is no logical distinction between the two. Indeed, a driver who has provided a specimen of blood or urine is better placed to challenge the analysis: that analysis will have been done by a human person in a State laboratory who can if necessary be called to give evidence; moreover such a driver will have been provided with a portion of the specimen analysed. The breath specimen, by contrast, does not permit a portion of the specimen to be given to the driver; and it is analysed by a machine, by an automatic process, with apparently with no prospect of verification or contradiction.
The process of analysis and the working of the testing apparatus, is carefully concealed from the public generally, as we shall see, in the context of Freedom of Information, below. These matters are no better known to the public now than they were when statutory provision for evidential breath analysis was first made over two decades ago.
The statute now in operation must accordingly be construed, if the wording makes this possible, so as to permit this “contesting” of the Intoxilyser’s determination of the concentration of alcohol in the transient breath specimen. If the wording does not permit this, a constitutional issue will clearly arise. But that would be another case.
In construing the statute which provides for the present system of evidential breath testing, therefore, one must also bear in mind what was held by Geoghegan J. in Whelan v. Kirby [2005] 2 I.R. 30 at p. 45 – 46, paras. 26, to the effect that the Intoxilyser presently in use is:
“… a machine which effectively could by its own print out convict the accused without there being in reality any opportunity to rebut [the contents of the print out] notwithstanding that under the Act the presumption is rebuttable”.
It is not without significance to note that, even when (during the period 1968 – 1973) the laboratory analysis of a blood or urine sample was regarded as “conclusive”, a driver suspected of a drink driving offence was, by s.46 of the Act of 1968, nonetheless entitled to be afforded the opportunity to have an additional specimen taken, or to be supplied with a portion of the specimen which the gardaí had taken, “so that, if he wishes, he can have his own analysis carried out”. (See p.145 of the Report in Maher). This right was assured to the suspect notwithstanding the provision in the same statute that Medical Bureau Certificate was “conclusive evidence” of its contents. It appears that all the suspect could then do with his or her portion of the specimen was to ask the Bureau to carry out a second analysis pursuant to s.45 of the Act, “or it may provide evidence from which he could establish that the procedure followed by the Bureau was not in accordance with the Statute or the Regulations”. (ibid)
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The replacement of blood or urine by breath as the testing material had certain obvious advantages for the State. Specifically, it is no longer necessary to retain a registered medical practitioner or nurse to take the blood sample, and divide it in two, and then to bring the practitioner to court to give evidence. This, no doubt, is a financial saving and a considerable convenience to the prosecution. But it involves the loss of the opportunity for independent analysis, which opportunity has been held by this Court to be “critical to fair procedures and constitutional justice”. Accordingly it can be seen that the wholesale through unspoken abandonment (except, perhaps, in very rare cases of which this is not one) of the “critical” opportunity for independent analysis is a major legal development and, from a constitutional point of view, in light of Maher, poses a serious question. In the absence of any possibility of independent testing, how precisely is the Intoxilyser’s print out to be “contestable”, as that case requires?
We have seen, above, that the decision as to whether a defendant must give a blood or urine specimen, in which event he can be given a portion of the specimen for analysis on his behalf, or a breath specimen, in which case that opportunity does not exist, is entirely made by the State. Thus the State decides whether or not the driver can have the evidential sample independently tested or whether he is to be denied that “critical” opportunity.
6. In the present case the garda in question required, and required only, a specimen of breath. Accordingly there was no prospect of independent analysis of either of the two specimens which the defendant was required to give. This was the result of the garda’s choice. The driver had no option but to comply. He had no option to provide a sample of blood or urine, instead of breath, which blood or urine sample would have been capable of subsequent independent testing. It would not be a transitory specimen.
The Applicant’s complaints.
In those circumstances, when the matter came on for hearing before the District Court, the defendant’s solicitor sought an opportunity to have an expert on the defendant’s behalf, (a Forensic Scientist, Mr. Anderson), examine the Intoxilyser machine which had analysed the breath specimens by an automatic process and which had produced a certificate indicating the concentration of alcohol in the breath. The solicitor also sought certain documentation relevant to the Intoxilyser machine, its calibration, its servicing and its maintenance. He was refused all of these requests, and that is Mr. Oates’s core grievance. However, he also says that he was refused these requests by the learned Respondent without giving any reasons whatever for such refusal, despite a specific request for reasons. This, says Mr. Oates, breaches Fair Procedures and Constitutional justice, and independently justifies the grant of certiorari.
Infallibility?
Some might think, or hope, that the process of analysis is always correct, and in practice conclusive of the true position. But it appears that, like any complex process, the taking of a sample of a bodily substance and its analysis to show the concentration of alcohol in the body is fallible. On 25 January, 2016, at an inquest in Clonmel, Co. Tipperary, the Coroner, Mr. Paul Morris, directed the jury to disregard the result of an analysis of blood for alcohol in the case of one of the drivers involved in a fatal collision. The reading showed a concentration of 913 milligrams of alcohol per 100 millilitres of blood. The pathologist who performed an autopsy on the person whose blood was analysed, Dr. Landers, said of this reading that “it would be impossible”. He said that unconsciousness or death would supervene at less than half that level. He described the reading produced by the analysis as “spurious”. No doubt such peculiarities are unusual, but they plainly occur from time to time and have occurred very recently in this recorded instance. (See Irish Times, 26 January 2016, p.6)
In the Clonmel case the reading obtained on analysis is plainly a significant multiple of any remotely likely reading, even assuming a very large consumption. A less dramatically “spurious” result might, in many cases, have escaped attention. But it is fair to add that it was stated at the Clonmel Inquest that the deceased was a non-drinker.
Factual background.
7. According to the garda evidence in the case, the applicant (who is a van driver) was arrested on the 21st July, 2008 having failed a mandatory alcohol test on the roadside in Elphin, Co. Roscommon. He was taken to a garda station and required to produce an evidential breath specimen pursuant to s.13(1)(a) of the Road Traffic Act 1994. As a result of the analysis produced by an Intoxilyser machine, he was charged with the offence mentioned above, and released on his own bail to appear at Strokestown District Court on the 4th September, 2008. The decision to require a breath sample, rather than blood or urine, the decision to proceed by charge sheet, rather than by summons, and the appointment of the 4th September as the return date, were entirely the choice of the gardaí and not of the defendant. He had no role either in the selection of the procedure or in the appointment of the return date.
8. There is some considerable confusion and contradiction within the prosecution evidence as to the events which occurred. In the Director’s Statement of Opposition, verified by affidavit, it is alleged that the offence took place on the 2nd October, 2006, but the garda statements, and the oral evidence of the garda in the District Court was entirely at variance with that and states that the offence took place on the 21st July, 2008 one year and nine months later. The garda is almost certainly correct, and the Director almost certainly wrong, because the Statement of Opposition goes on to allege that the defendant first appeared before Strokestown District Court on the 4th September, 2008, which is quite inconsistent with the offence having been committed back in 2006. But I do not think anything turns on this contradiction.
9. It is however common case that the case was adjourned for hearing to the 6th November, 2008. It is also common case that on that day the applicant’s solicitor, Mr. Cullen, sought an inspection of the Intoxilyser machine located in Roscommon Garda Station. The Director says, at para. 2 of his Statements of Opposition that this application was refused, on the 6th November, 2008, the learned Respondent. The Respondent himself said that this was so. He said this on the 27th May, 2009, the day the case was eventually finalised. From the other evidence I would have thought the first refusal took place on the 4th December 2008. I do not think anything turns on this disparity.
10. Mr. Cullen says in his affidavit that he was instructed to attend court on behalf of the applicant; that he did so on 6th November, 2008 and at later dates; that there was a variation in the two readings produced by the Intoxilyser machine which “put one on inquiry” as to the condition of the machine; that the guard could only say that he “presumed” the machine had been properly serviced. Mr. Cullen applied for an opportunity for the machine to be inspected and examined by an expert on behalf of the defendant. He also sought to be provided with a number of documents or materials which related to the machine itself. These were the Calibration Certificate, the Certificate of Installation, the Certificate of Commissioning, the Irish Certificate of Testing of the Machine, the Quantum Scientific Laboratory Service Reports on the machine and the same entity’s record of the results of tests on the machine. He says that in support of his application he cited the case of McGonnell v. Attorney General [2007] 1 I.R. 400 cited above. It was the High Court judgment which he opened ([2004] IEHC 312) and Mr. Cullen says he referred in particular to para. 111 of the judgment of Mr. Justice McKechnie, quoted at para. 19, below. (See also the Supreme Court decision in McGonnell, p. 409, para. 14). The prosecution were represented at that time by Superintendent William Gallagher who stated to the Court that he believed that the McGonnell case had been “superseded”.
The learned Respondent said that there was a more recent case which overturned the case Mr. Cullen had cited. He said that some of Mr. Cullen’s colleagues would know the name of the case. He adjourned the matter for mention to the 4th December, 2008.
11. On the 4th December, 2008, Mr. Cullen had a copy of the Supreme Court decision in McGonnell, which affirmed the High Court decision. He opened it at length.
There now arises a further point of significance for the issues between the parties. Mr. Cullen says that:
“Judge Browne refused my application for documents and inspection facilities without giving a reason for same. I pressed the judge to give a reason for his refusal. He did not answer. I asked him whether he was refusing both inspection facilities and all the documentation that I had applied for and to which I believed I was entitled arising from the High Court case. The court clerk then offered to show the judge what she had written down and held back over her head so that the judge could view it. He said that he was refusing inspection facilities for the machine and for documentation”. (Emphasis added)
The emphasised portions of this testimony, in particular, have not been contradicted or challenged by the Notice Party.
12. In the affidavit of Superintendent Gallagher, at para. 6 he says:
“I disagreed with the interpretation of Mr. Cullen and I made contrary submissions to the judge in relation to the proper interpretation of the McGonnell decision. Judge Browne considered both arguments and refused the application for inspection”.
13. It therefore appears to be undisputed that the learned Respondent gave no reasons for his refusal of the application to inspect the Intoxilyser machine. The significance of this omission is the first and narrowest point that arises for decision, but it may of course be dispositive.
The case was then adjourned in the District Court until the 25th February, 2009. On this occasion there was a different Garda Superintendent representing the prosecution, Superintendent Collins. The prosecution evidence was called and the solicitor cross-examined the prosecuting guard. He asked him if the machine was properly serviced and “he said that he presumed it was”. It is not contradicted that he expressed himself thus.
14. The defence solicitor then asked for a direction basically on the ground that he was fatally handicapped by the denial of inspection facilities. He said his expert had specifically advised that he could not decide on the proper working of the machine without inspection facilities. He relied on the McGonnell v. Attorney General [2007] 1 I.R. 400, previously opened. The learned District Judge (again?) refused the application. The defence called Mr. Anderson who explained in some detail why he needed access to the Intoxilyser machine in order to advise the applicant and to check the reliability of the documents sought. Mr. Cullen says that the prosecuting Superintendent then indicated that he had not read the McGonnell judgment. Mr. Cullen gave him a copy of it. The learned Respondent then adjourned the case until the 25th March, 2009 to allow the Superintendent time to read the case.
15. On the 25th March, 2009 the learned Respondent noted there was now a new presenting officer. He then said that the defence might be inclined to argue there was a lack of continuity in the presenting officer. Mr. Cullen said he was making no such point. He reiterated that his application for a direction related to the effects of the refusal to allow any inspection facilities. The learned Respondent said that “ he would have to start to hear the evidence over again” . Neither side had asked him to do this. The garda said that Superintendent Cummins would be available to present the case the following month. The learned Respondent adjourned the case for that purpose.
The above account of events is also uncontradicted.
16. However, on the adjourned date, the 22nd April, 2009, Superintendent Cummins was again absent. An Inspector Joseph McKenna prosecuted. He said that all that was awaited was a determination. Mr. Cullen submitted that they were still at the point where he was applying for a direction and the prosecution had been given time to read the McGonnell v. Attorney General [2007] 1 I.R. 400 case. The Inspector says in his affidavit, at para. 4 that:
“I had not appeared in the case previously and I was not familiar with the McGonnell judgment”.
He says that Mr. Cullen indicated that he had an expert, a Mr. Anderson, present in court to give evidence, however the case was adjourned “despite Mr. Cullen’s prolonged protestations” as Inspector McKenna puts it.
The adjourned date was the 27th May, 2009. Mr. Anderson gave evidence on that day. On that date, according to Inspector McKenna at para. 7:
“The judge indicated that he had made the decision not to grant inspection facilities in November 2008 and had heard nothing to alter the view he had taken then”.
He proceeded to convict Mr. Oates, as recited at para. 1 above.
Significance of the foregoing.
17. It appears from the foregoing convoluted history that this fairly simple case was adjourned in the District Court on the following occasions:
– 4th September, 2008,
– 6th November, 2008,
– 4th December, 2008,
– 25th February, 2009,
– 25th March, 2009,
– 22nd April, 2009,
– 27th May, 2009, when the case was finalised.
None of these adjournments seem to have been at the request of the applicant and certain of them were imposed upon the applicant, against his solicitor’s “prolonged protestations”, by the learned Respondent. There were adjournments because the prosecuting Superintendent had not read the McGonnell v. Attorney General [2007] 1 I.R. 400 case, because the same prosecuting Superintendent was not available to attend on the adjourned date after the case had been adjourned to allow him to read that case, because the new presenting officer had not read McGonnell either, and adjournments for no particular reason at all (that is stated) as in the case of the adjournment from the 22nd April to the 27th May, 2009.
Though it is by no means clear why some of the adjournments were required it does appear, both from the Statement of Opposition and from the Affidavit of Inspector McKenna that the learned District Judge stated that the relevant application for inspection had been refused at the hearing in November, 2008, which took place on the 6th of that month. I frankly do not understand why, if that was so, the evidence was not heard until the following year and the case not finalised until the 27th May, 2009, or why the evidence was apparently heard twice.
On the 6th November, 2008 the prosecution was represented by Superintendent Gallagher. The proceedings in Court on that date have been outlined above, and the significant parts of that account are not contradicted.
Case Law relating to the above.
18. The McGonnell v. Attorney General [2007] 1 I.R. 400 case, much referred to in the District Court proceedings summarised above, was concerned with the trial of certain persons against whom the new provisions of the Act of 1994 had been deployed. They claimed that the relevant provisions of that Act (Sections 13, 17 and 21) were unconstitutional having regard to Articles 38.1 and 40.3 of the Constitution. This was said to be so by reason of the impossibility of providing a portion of the evidential sample for independent testing and by reason of the evidential status conferred on the print out containing the automatic analysis of the breath specimen in s.21(1). This provided, insofar as relevant:
“A duly completed certificate purporting to have been supplied under s.17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 – 1994, of the facts stated therein”.
This, the plaintiffs contended in McGonnell, amounted to “conviction by print out”.
19. The plaintiffs lost in McGonnell both in the High Court and the Supreme Court. But the ratio of the decision depended on the finding that a defendant had a right to apply to the District Court for inspection of the Intoxilyser. This aspect was emphasised in both courts. In the High Court, McKechnie J. said at para. 111:
“… there is one further safeguard which I consider of particular relevance. It is the entitlement of an accused person to seek inspection rights of the machine used to provide a s.17(2) certificate in respect of him. Given not only the legal force but also the practical consequences of the presumption contained in s.21(1) of the Act of 1994, it is in my view an important assurance for an accused person to know of his right to have access to a judicial authority for the purpose of seeking inspection facilities in respect of any given machine. When so deciding, the Court in question must of course comply with constitutional justice and fair procedures on any application so made, as it must on the hearing of the s.49 charge itself. In both instances it may vindicate such rights of the defendant in the most appropriate manner available. These observations equally apply to any application in respect of documentation”.
(Emphasis added)
The foregoing passage was specifically approved in the judgment of the Supreme Court, [2007] 1 I.R. 400 at 417, at para. 29.
That judgment also made reference to the judgment of Geoghegan J. in Whelan v. Kirby [2005] 2 IR 30. At page 417, para. 29 Murray C.J. said that in that case Geoghegan J.:
“… specifically pointed out that the presumption under the Act of 1994 is rebuttable and expressly acknowledged the entitlement of an accused person to apply to conduct an inspection of the apparatus so as to investigate its reliability. An accused person is further entitled to adduce evidence regarding the manner of operation of the apparatus at the relevant time of the provision of the breath specimen”.
(Emphasis added)
20. In Whelan a conviction under s.49 was quashed where the applicant was not accorded an opportunity to have an independent expert inspect the Intoxilyser prior to the trial. The District judge simply refused to entertain the application and the trial proceeded without an inspection, just as here. In the Supreme Court, it was held that the District judge ought at least to have entertained the application on behalf of the applicant. Geoghegan J. said, at pages 45 – 46 para. 26 of the report:
“Unless there are exceptional circumstances, indicating abuse of the process of the Court, constitutional fairness of procedure requires that a pre-hearing application to a judge of the District Court for an order requiring the production of documents and/or a request for inspection of the equipment permitted to be used by statute for the purpose of producing a statement of facts deemed to be true unless rebutted, and essential to the prosecution case, ought to be entertained. It will then be within the discretion of the judge as to whether he or she accedes to the request or not”.
Geoghegan J. went to describe the intoximeter then in use as:
“… a machine which effectively could by its own print out convict an accused without there being in reality any opportunity to rebut, not withstanding that under the Act the presumption is rebuttable”.
(Emphasis added)
At p.45, para. 25 of Whelan v. Kirby Geoghegan J. held that, in refusing to entertain the applicant’s arguments for inspection, the District judge “was cutting off the applicant from any possibility of rebutting the statutory presumption”.
This position must be seen in light of the decision of this Court in The State (Healy) v. Donoghue [1976] I.R. 325.
At p. 349 of the Report O’Higgins C.J. analysed the phrase “in due course of law” as it appears in Article 38 of the Constitution:
“No person shall be tried on any criminal charge save in due course of law”.
O’Higgins C.J. held that:
“… it is clear that the words ‘due course of law’ in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself. If this were not so the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights”. (Emphasis added)
Immediately after the passage just cited O’Higgins C.J. went on specifically to approve the dictum of Gannon J. in the High Court in the same case, who said:
“Amongst the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser…”.
In the present case, no question of “hearing” the evidence offered by the accuser on the question of the concentration of alcohol in his body exists. This is because the relevant evidence is given by a print out produced automatically by a machine, which has been given evidential status. The print out cannot be cross-examined. The question arises of how the right to “test” or “investigate” the reliability of this evidence can be afforded the accused in the present circumstances. This right is fundamental to the concept of a trial” in due course of law”.
It follows from the citations above that a person charged with driving with an excessive quantity of alcohol in his or her breath is treated quite differently from persons charged with other criminal offences. If such a person is not granted the ability to examine the Intoxilyser machine then he or she may be convicted “without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable.
If he or she is refused inspection rights then such a refusal will amount to “cutting off the applicant from any possibility of rebutting the statutory presumption”. Such a person, manifestly is not “afforded every opportunity to defend himself [or herself]” as required by Article 38 of the Constitution nor are they afforded the right “to hear and test by examination the evidence offered by or on behalf of [the] accuser”.
Cross Examination.
In particular, the right to rebut the machine’s analysis of the breath specimen by cross-examination is wholly lost. No human person conducted, or even supervised, the analysis, so that there is no-one available to cross-examine. Neither the machine, nor the print out, naturally, can be cross-examined.
Since the offence created by the present version of s.49 of the Road Traffic Acts is a criminal offence, and the prosecution for the offence is a criminal trial albeit one conducted summarily, the abolition of the right to cross-examine is a very serious development. This right has been long and strongly established in Ireland, in recent times from In Re Haughey [1971] I.R. 217, O’Callaghan v. Mahon [2006] 2 I.R. 32 and, in very recent times DPP v. Thomas Redmond [2015] IESC 98 (Supreme Court, unreported, 17th December, 2015). In this latter case there was a citation of Heaney v. Ireland [1994] 3 I.R. 593 on the meaning of the phrase “due course of law” followed by the statement:
“To this I would add that elementary justice requires that a person who is liable to some sanction or imposition, based on how a factual issue is resolved before any body, tribunal, or committee which is obliged to proceed in accordance with natural justice, is entitled to confront his accuser or accusers and to cross-examine them or have them cross-examined”.
(Emphasis added)
In various contexts, in Ireland and elsewhere, attempts have been made to present evidence against a person in a form which does not admit of cross-examination. An example of this in Ireland was found in the case of Borges v. Fitness to Practice Committee of the Medical Council [2004] 1 I.R. 103. There, the applicant doctor was facing an enquiry under Part V of the Medical Practitioners’ Act 1978 in relation to allegations by two complainants whom it was intended to call as witnesses. But the Registrar of the Medical Council, who was conducting the case against the doctor, applied to the Committee to order that the complainants would not be called in evidence but instead that he would introduce a transcript of the evidence they had given before a foreign Medical body. The Committee agreed to proceed on that basis. The High Court held that this procedure would amount to a deprivation of a fair hearing by depriving the doctor of the opportunity to confront his accusers. This Court held that the doctor could not be deprived of his right to fair procedures by extending the exceptions to the rule against hearsay to a case where witnesses were unwilling to testify in person. The Court also held that fair procedures, in the context of the case, necessitated the giving of evidence by the doctor’s accusers and their being cross-examined.
It must be borne in mind that the deciding body in that case was not a court. The Medical Council submitted that it might on that basis be entitled to admit evidence which would not be admissible in court proceedings. It was held that it could not do so in order to avoid cross-examination.
Keane C.J. said at p.113, para. 26 of the Report that, where a decision of the relevant tribunal reflects on a person’s good name or reputation:
“… basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers”.
Chief Justice Keane sets out ample support for this proposition in terms of both Irish and English law.
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21. The accused person’s declared right to apply for inspection of the machine which produces a statement of the concentration of alcohol in the breath by an automatic process was central, and essential, to the High Court’s and this Court’s refusal to find the relevant Sections of the Act of 1994 unconstitutional in McGonnell.
22. Applying the principles enunciated in McGonnell v. Attorney General [2007] 1 I.R. 400 and in Whelan v. Kirby [2005] 2 I.R. 30 to the facts of the present case, the following features of relevance emerge.
(i) Mr. Oates was entitled to apply for a professional inspection of the intoxilyser on his behalf, and for documents relevant to the operation of the machine.
(ii) The most practical reason for the existence of this right, in terms of a s.49 prosecution, is that the presumption created by s.21(1) is a rebuttable presumption, and unless there is an opportunity to investigate the operation of the machine then there is not “in reality” any opportunity to rebut [the contents of the print-out] not withstanding that under the Act the presumption is rebuttable”.
(iii) Once such an application for inspection of documents is made then:
“The Court in question must of course comply with constitutional justice and fair procedures on any such application so made”.
(iv) It appears from the affidavits filed in the present case that the intoxilyser produced readings which were not identical in relation to the breath specimens supplied by Mr. Oates. There was no finding as to the significance, if any, of this.
(v) It further appears that the garda witness, who was the sole witness for the prosecution had the question of the condition and maintenance of the intoxilyser machine raised with him. He was only able to say that he presumed it was properly maintained.
(vi) On the uncontradicated evidence of Mr. Cullen, Solicitor, the learned Respondent rejected the application for inspection facilities and for documents without giving any reason at all, although specifically requested to do so.
(vii) The solicitor grounded his application both when it was first made and on the date to which it was put back to allow the State to read the case relied on, on McGonnell. The only specific thing which the learned Respondent said in relation to the merits of the application was “that there was a more recent case which overturned the case Mr. Cullen had cited”.
Undisputed error.
23. It is important to be clear that in making the statement last recorded the learned Respondent was in error. McGonnell v. Attorney General [2007] 1 I.R. 400 has never been overturned in any sense of the term. The Supreme Court in that case did not overturn the High Court decision, but in fact adopted it. And no case since McGonnell has overturned it or refused to follow it. The error may have arisen from the prosecution submissions that McGonnell had been “superseded”. The learned Respondent seemed to remember a particular case as having “overturned” McGonnell, but he could not remember its name.
24. It is entirely unclear what significance the learned Respondent attached to the fact that, as he incorrectly believed, McGonnell had been “overturned”. Did this mean that Mr. Oates had no right to apply for inspection? Did it mean there was no necessity in law to entertain the application? There may conceivably be some other significance, quite unknown to the Court or to the appellant, arising from the misapprehension under which the learned Respondent laboured.
Discretion.
25. It is manifestly true, on the basis of both McGonnell v. Attorney General [2007] 1 I.R. 400 and Whelan v. Kirby [2005] 2 I.R. 30 that the fact that there is a right to apply for inspection and for documents does not mean that such application must be granted. On the other hand, it follows from the existence of the right to apply, stated to be “of particular relevance” that inspection and/or documents equally may be granted. Whether they are granted or not is a matter for the judicial discretion of a District judge.
It is to my mind a significant factor affecting the exercise of this discretion that, on the face of it, the s.21(1) presumption cannot be rebuttable “in reality” unless the defendant can conduct some form of investigation into the operation of the machine which produces the print out to which the s.21(1) presumption applies. This was expressly held by Geoghegan J. in Whelan in 2004. That case was decided shortly after the evidential breath test procedure had become general, although statutory provision had been made some ten years earlier. Section 21(1) provides that the print out of the Intoxilyser machine shall “until the contrary is shown, be sufficient evidence… of the facts stated therein”.
The effect of this Section is to throw on to the defendant the proof of the inaccuracy or unreliability of the machine or the print out it generates. I cannot see how this can be done unless there is an opportunity to observe the machine in operation, in the way Mr. Anderson, Consulting Engineer, said in evidence in the District Court he desired to observe it, and to establish that the machine has been properly maintained and serviced, as its manufacturers directions require.
The constitutionality of a statute which attributed this status of presumptive correctness to a statement in a print out, and at the same time removed from the driver the opportunity of having an independent analysis carried out, was preserved, in McGonnell, only by virtue of the driver’s opportunity to apply to the Court to inspect the Intoxilyser machine.
Accordingly, it is important not to interpret the statute, as elucidated in McGonnell, in a reductive way, for example by saying that the driver cannot rebut the print out because he has not been permitted to inspect the machine, and cannot inspect the machine because he cannot demonstrate what the likely effect of such inspection would be. That is a Catch-22. Whelan v. Kirby in a passage cited below, quite specifically rejected the submission that, in order to obtain access to the machine for inspection purposes one has to say what the result of the inspection would be. The Supreme Court in that case held that there is no onus on the applicant to establish that the results of the inspection might assist his defence. The reasons for this inspection are, as Geoghegan J. held at p.45 of the report, are “self evident”.
In DPP v. Moore [2006] IEHC 142, a case where inspection of the machine was ordered, and a case was stated at the request of the prosecution. O’Neill J. held that a District Judge dealing with such an application must consider:
“… whether without that evidence [i.e. evidence of the inspection] the accused is disadvantaged in his defence, to such an extent that it could be said he cannot have a fair trial”.
26. The power to require a defendant to provide a breath specimen for evidential analysis, as opposed to a specimen of blood or urine which could equally have been demanded, puts it in the power of the gardaí to determine whether or not a defendant can have an independent analysis. By selecting a breath specimen as a means of breath testing, the garda renders impossible an independent analysis of the evidential specimen, for the reasons stated earlier in this judgment. That is not to say that the garda in this case opted to demand a specimen of breath for that purpose. He did it, no doubt, because it had become usual to do so.
27. Against that background, s.21 gives a presumptively correct status to the machine’s analysis and casts upon the defendant the onus of showing the contrary. This appears to me to be a burden impossible to discharge “in reality” unless facilities requested in the present case are granted. I do not exclude the possibility that there may be some extraordinary feature which might make the inspection and the provision of documents otiose. I do not accept that the defendant has to prove something in the nature of probable cause for analysis before having a right to inspect. The result of the State’s analysis must be “contestable”, as Fitzgerald C.J. held in Maher v. Attorney General.
Material from other Common Law jurisdictions.
28. The use of transient proofs of intoxication whether modern ones (such as breath specimen analysis) or traditional ones (such as observation by police officers or by a doctor) have given rise to obvious difficulties which have been addressed by the Courts in certain other jurisdictions. Naturally, these cases fall to be considered against the background of the general criminal and constitutional law in the relevant foreign jurisdiction.
In California v. Trombetta & Ors. 467 US 479 at 480 to 481 the United States Supreme Court (per Justice Marshall) held, by way of constitutional background:
“The due process clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favourable evidence that is material either to guilt or punishment [citations omitted]. This case raises the question of whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of the defendants”.
The point at issue in that case was whether the Due Process Clause requires that law enforcement agencies preserve breath samples of suspected drunken drivers in order for the results of breath analysis tests to be admitted in criminal proceedings.
The United States Supreme Court held that the State of California was not obliged to preserve such breath specimens although (contrary to the evidence presented to the Irish Courts in McGonnell) it also held that it was technically possible to do that. But it rejected the driver’s claim on the basis of the safeguards already provided in Californian law. At p. 490 of the Report it is said:
“Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations”.
(Emphasis added)
Set out at pages 481 – 482 of the Report there are set out the procedures which have to be followed in the cleaning, operation and calibration of the machine. These details were amongst the general operating requirements which, in the U.S. case, were freely available to the defendants and to the Court. Also set out is the procedure required to be followed after each test and before any other test involving the purging of the machine with clean air and the checking of the machine for a reading of zero alcohol. The document concludes:
“The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant”. (Emphasis added)
The Trombetta case was cited in a most interesting New Zealand case, R. v. Donaldson [1995] 3 NZLR 641. This was a decision of the Court of Appeal in Wellington, delivered by Mr. Justice Thorp, the Chief Justice and Boys J. concurring.
In that case Ms. Donaldson was found asleep in the driver seat of a stationary car. A police witness arrested her because, on observation, she was unsteady on her feet and slurred in her speech. She was arrested for “driving under the influence” and brought to a police station where she consented to undergo a medical examination.
The case turned on the provisions of s.24(d) of the New Zealand Bill of Rights Act, 1990. This guaranteed a person charged with a criminal offence “adequate time and facilities to prepare a defence”.
It had been held in a New Zealand case referred to at p. 645 in the judgment at p.5, that this right “is designed to put the defence on a footing of equality with the prosecution in preparation for a fair trial. That right must include adequate access to evidence which the accused requires to present his or her case” (R. v. Accused (CA 357/94) (1994) 12 CRNZ 417 at 425).
Against that background, Ms. Donaldson, when she was taken to the police station requested that a sample of blood be taken from her. She had no right to demand it but it seems from the report that the Constable in charge could have arranged that a blood sample be taken but Ms. Donaldson was told that they were proceeding by way of medical examination and that this did not include the taking of blood. She repeated the request for a blood specimen to be taken on several occasions and got the same response. The Court of Appeal pointed out at p.649 that by the time Mr. Donaldson was released from the police station:
“… any chance of obtaining useful chemical evidence about the state of her sobriety and the significance of alcohol would have been lost, even had facilities for blood testing been available to her in Dunedin at that time of night”.
The most relevant question which had been referred to the New Zealand Court of Appeal was whether, if the police officer did not provide facilities for a blood sample to be taken, that omission constituted a breach of s.24(d) of the Bill of Rights Act. The Court concluded at p.650 that:
“For the reasons set out in the foregoing judgment it is our view that, for the reasons there stated, the refusal in this case to consider and accept the appellant’s request to arrange for the taking of a blood sample did constitute a breach ofs.24(d)”.
A factor in Donaldson was that although a police witness and a doctor gave evidence that she was incapable of having proper control of a motor vehicle “because of alcohol intoxication”, a roadside breath test for alcohol had proved negative. Depending on the view the tribunal of fact took of the police and medical evidence, this fact suggested either a defect in the breath sampling system or an error in the evidence given by a doctor and a police officer, that she was intoxicated.
The judgment of the Court of Appeal of New Zealand also contains, at p.646, an interesting summary of the salient features of the “very large body of case law in the United States and a smaller but still substantial number of decisions in Canada”, relevant to the facts of Donaldson. See para. 6 above, entitled “Infallibility”.
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I do not believe that the Irish requirement in Article 38 of the Constitution that all trials should be conducted “in due course of law” is in any respect a less demanding standard than that required in the United States by the Due Process Clause of the Fourteenth Amendment, nor by the New Zealand Bill of Rights. Over and above that, it is interesting that the State of California guaranteed to defendant drivers rights of inspection and access to documentation, of precisely the sort sought by Mr. Oates here, and did so at the time when it introduced the breath sampling system. This enabled the relevant statutory provisions to survive constitutional challenge on the basis that no part of the specimen had been preserved for independent analysis. Similarly one notes that the New Zealand concept of “adequate… facilities to prepare a defence”, extended to a right of access to evidence and was held to have been breached by the refusal to conduct a blood test in the circumstances outlined above.
As we are about to see, not only is there no right to inspect or see relevant documentation provided in the Irish Statutes but the system of analysis, of approval of apparatus for analysis, and documents and records relating to such apparatus and analysis have been deliberately and, it seems, conclusively, excluded from the category of document and item to which a citizen is entitled to have access, even if he has been charged with a criminal offence using the breath specimen procedure.
Nothing available on FOI.
29. I am strengthened in the above conclusion by the fact that the legislature has taken steps, in the first instance emergency steps, to prevent a person charged with a s.49 offence (or any other citizen) from obtaining, under the Freedom of Information Legislation, records relating to the receipt, analysis and certification by approved apparatus of the sample provided by him or her.
30. In H. v. The Medical Bureau of Road Safety Information (Commissioner Case No. 090073). Ms. Emily O’Reilly, then the Irish Information Commissioner (now the European Ombudsman) overruled the Bureau’s refusal to provide such documents to a person charged with a s.49 offence. The Bureau had done so on the grounds that:
“[D]isclosing the records sought in this case, which are over and above what the Bureau is required and permitted to provide in accordance with s.19(3) of the Road Traffic Act, 1994, would effectively undermine the Bureau’s obligation under s.19(3) of the Road Traffic Act Road 1994 thereby causing prejudice or impairment to its compliance with [that Section] and the criminal law generally relating to alleged driving under the influence of intoxicants offences”.
The Information Commissioner noted that:
“Without FOI the [Bureau] would be generally unaccountable either to the Courts or to the public with respect to its functions under the Road Traffic Acts and there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities”.
The effect of this decision was negatived by statute with extraordinary and unusual speed. The Commissioner’s decision was given on the 15th July, 2010. The State then proceeded to promulgate the Road Traffic Act 2010, which came into operation on the 9th August 2010, twenty-five days later, during a Parliamentary vacation.
The effect of this was partially to exclude the Bureau from the FOI Acts. This was done by amendment of the Freedom of Information Act 1997 (see s.26(5) of the Road Traffic Act 2010).
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The present position on FOI requests to the Bureau is governed in an opaque and convoluted way by the Freedom of Information Act 2014. Section 6 of the Act provides that Freedom of Information rights apply to, or against, “public bodies”.Section 6 of the Act defines a public body and the Bureau is caught by the definition in s.6(1)(b) as it is “an entity established by or under any enactment”. This would appear to capture the Medical Bureau of Road Safety. (See Part V of the Road Traffic Act, 1968). However, the Bureau is in fact exempted from Freedom of Information by a process so contrary to transparency and to the ordinary use of language as almost to defeat non-professional enquiry. The exclusion is effected in the following manner:
The exclusion is effected by means of Schedules, whose significance is determined by the substantive Act. The Medical Bureau of Road Safety, the body responsible for the testing of samples of blood breath or urine and for approving “apparatus” for that purpose, is an entity mentioned at para. (u) in Part 1 of the First Schedule to the Freedom of Information Act 2014.
Section 6(2)(a) of that Act provides that:
“An entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part be a public body for the purposes of this Act”.
If a lay enquirer read no further, he or she would conclude that the Bureau was within the scope of Freedom of Information.
Schedule I, Part I of the 2014 Act, however, is headed:
“Partially included agencies”.
The initial words of the Schedule are:
“Section 6 does not include a reference to —“
There then follows a list of thirty-five separate bodies. At reference (u) the following appears:
“The Medical Bureau of Road Safety…”.
Accordingly, if the material at reference (u) stopped there, the effect of it would be to wholly remove the Bureau from the scope and application of s.6. But the material does not stop there and continues to provide:
“… insofar as it relates to records concerning, or arising from, the forensic criminal investigation functions performed by the Bureau under the Road Traffic Act 1961 – 2014, including the analysis of specimens and the approval, supply, testing and maintenance of apparatus used for the purpose of those Acts”.
The difficulty in establishing the liability or otherwise of the Bureau under the FOI Acts arises from the use of multiple exceptions and of double negatives on which the draftsman would have to be congratulated if it were his object to make the provision opaque and inaccessible. But the effect of it is that the Bureau is outside the scope of s.6 “insofar” as the matters specified are concerned. The matters specified include anything that might be of the remotest interest to a person charged with an offence under s.49, who was concerned to “contest” the Bureau’s analysis, or analysis of apparatus approved by it.
It therefore appears that, in considering an application for access to documents and for facilities to inspect the Intoxilyser machine, the District Court will have to bear in mind that the documents in question, and any record relating to the analysis in question, will not be otherwise available to the defendant driver and specifically will not be unavailable under the provisions of the Freedom of Information Act by reason of the emergency action first taken in 2010 and now contained in the Act of 2014 by reason of the legislative action first taken in s.26, subs. 5 of the Road Traffic act 2010 which extended the scope of restrictions contained in s.46 of the Freedom of Information Act 1997. This legislative action was then consolidated in the Freedom of Information Act 2014 (whereby Schedule 1 explicitly removes and excludes documentation on the maintenance of apparatus which might have been previously available under the act of 1997 as an administrative document). It is not clear to me why, assuming the legislature to be confident in the operation of the Intoxilyser system, such convoluted steps have been taken to conceal its operation even from a person directly affected by it. I agree with the finding of the Information Commissioner, quoted above, as to the effect of the Medical Bureau’s far reaching exemption from F.O.I.
Onus on defendant?
31. In Whelan v. Kirby [2005] 2 I.R. 30, the principal judgment was delivered by Geoghegan J. with whom Keane C.J., Denham J., Hardiman J. and Fennelly J. agreed. In that case (as in this) the DPP submitted that the District judge could not have made an order for inspection or for documents in any event “as there was not going to be any evidence put forward as to what might have been determined by an inspection which would be helpful to the defence”. The Director in the present case called this “laying the ground”.
At pages 45 to 46, para. 24, Geoghegan J. adopted a portion of the written submissions of the driver in Whelan as follows:
“The trial judge seems to suggest that there is an onus on the applicants to inform the Court what the results of an inspection or examination of the Intoxilyser might have been. With respect, it would be impossible for an applicant, or a suitably qualified expert, to predict what an examination of a machine might reveal in a given case. The fact that the inspection of a machine is not a contemporaneous one would not, presumably affect its result if, for example, a design fault were noted. There may be many other instances where the [reliability] of the machine might be called into question, notwithstanding that the examination thereof is not contemporaneous”.
Geoghegan J., having cited this passage said at p.46, para. 24 to 25:
“I find myself in agreement with that statement. It would seem to me that from the defence point of view the request for the examination might be regarded as reasonable [which does not necessarily mean that it would have to be acceded to] and the reasons for the request would be self evident.
… In refusing to entertain the solicitor for the applicant’s arguments, the [District judge] was cutting off the applicant from any possibility of rebutting the statutory presumption”.
(Emphasis added)
32. It appears to me, therefore, that the head note to Whelan v. Kirby is correct when it states at p.31 at paragraph 3:
“That, in making such an application, there was no onus on the applicant to establish that the results of the inspection might assist in his defence”.
The judgment of the High Court judge in Whelan v. Kirby, Mr. Justice Ó Caoimh, who is the trial judge referred to in the passage approved by Geoghegan J. and set out above, appears to me to have been profoundly influential on the judgment of the learned trial judge in the present case. In Whelan v. Kirby [2003] IEHC 124, Ó Caoimh J., in delivering his judgment of the 7th November, 2003 (unreported) concluded that:
“I am satisfied that an onus rested upon the applicants to satisfy the District Court that the interest of justice required the examination of the instrument and that the applicants were prepared to meet the reasonable requirements of the Medical Bureau. I am satisfied that the onus lay on the applicants to demonstrate to the respondent judge the importance of the inspection and testing requested, in the light of prevailing circumstances”.
(Emphasis added)
This finding, as will be seen, is reflected in the High Court judgment in this case.
Ó Caoimh J. also held that the District judge:
“… had no authority to direct the Medical Bureau to afford the applicants the right of inspection, testing etc….”.
But these rulings cannot be regarded as authoritative in light of Whelan and McGonnell.
The High Court judgment in this case.
33. I agree with what is said by the learned High Court Judge in this case at para. 9 of his judgment ([2010] IEHC 381):
“A certificate showing the reading is admissible by virtue of s.17(2) of the Act. If the presumption were not rebuttable this statutory scheme would be unconstitutional. Consequently, there is an entitlement, as part of the trial process for a person accused of drunken driving in this way to apply to inspect the machine to ensure that it was working correctly”.
(Emphasis added)
This finding, based largely on uncited cases, is central to the resolution of this appeal.
I am unable, however, to agree with the learned High Court judge’s conclusion:
“That the decision by the learned trial judge was correct… there is no reason to disturb the conviction of the applicant for drunken driving”. (Paras. 3 and 12)
It appears to me that the nub of the learned trial judge’s decision emerges from what he says at para. 8:
“What characterises this case is the absence of any reason whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”. (Emphasis added)
This observation, and the result to which it leads, assumes that there was an onus on the applicant to put forward some reason, without having read the relevant documents about the machine and without having inspected the machine itself, for the proposition that it was “malfunctioning”. The learned trial judge, indeed, in the course of his judgment gave several examples of the sort of evidence which he considered the applicant might have provided. Thus, at para. 4 he said:
(i) “The applicant has not sworn an affidavit indicating any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath sample”.
He continued:
(ii) “He has not sworn that on the occasion of his driving and subsequent arrest that [sic] he had been teetotal for a relevant period of time”.
He further continued:
(iii) “There has thus been no engagement with the evidence either in this Court or before the learned District judge which would reasonably raise any prospect that the prosecution case was incorrect either through its own inherent weakness or through the proffering of contradictory evidence on behalf of the defence”.
(Emphasis added)
The learned High Court judge also approved at para.10 a requirement:
(iv) “… that an accused person must show the relevance of the material sought to a defence to be advanced in the trial… an accused would have to point to some circumstance which, if established in evidence at the trial, would undermine the accuracy of the print out of an Intoxilyser machine”.
It appears to me that all of the dicta cited above assume that an onus of proof rests on the applicant for inspection of the Intoxilyser machine. This is precisely what Ó Caoimh J. found in the High Court in Whelan v. Kirby in a passage set out at para. 32, above. This finding was set aside in the Supreme Court judgment in that case. I, too, do not consider that it is correct, for the reasons set out below. But even apart from that I consider that the evidence which, it is suggested, the applicant might have provided is either legally irrelevant or physically impossible to provide.
The applicant manifestly cannot indicate any reason why the Court should doubt the result of the test that was carried out mechanically on the breath specimen when he has not had the opportunity either to inspect the machine or to ascertain the manufacturer’s calibration of it and requirements as to its maintenance and storage. The requirement suggested in the first of the citations above is quite impossible to comply with in the absence of inspection and documentation. To require it as a matter of law as a precondition of inspection would be a perfect Catch-22.
Secondly to say that the applicant has failed to swear that at the time of his arrest “… he had been teetotal for a relevant period of time” is profoundly puzzling. There is no “relevant period of time” for legal purposes during which a driver might have been “teetotal”. If the driver is “over the limit” at the time of the test, and that is within three hours of the time he was seen to be driving, the offence is complete, regardless of the period of time for which he says he was “teetotal” before the driving. Neither the law, nor officialdom more generally, offers any guidance as to a “relevant period of time” which will entitle one to be acquitted or even to rebut the presumption, despite the Intoxilyser reading, if one can show that one was “teetotal” during that period. This feature has taken on a particular relevance with the advent of “morning after” or even “afternoon after” testing.
I simply do not understand the inclusion of the concept of “teetotal” in this discussion, or its legal relevance.
“Teetotal” is, according to the Oxford English Dictionary, a reduplication, extension or intensification of the word “total”. It was coined as long ago as 1833 by a speaker advocating total abstinence from all forms of alcohol, and not merely abstinence from spirits. It has no conceivable relevance to the present discussion. The Road Traffic Acts do not enjoin “teetotalism” but merely abstinence from drinking such a quantity of alcohol as will produce a reading of more than 35 micrograms of alcohol per 100 millilitre of breath at any time within three hours of driving. There is no legal or official guidance as to what that quantity is, whether it varies with age, sex, BMI or anything else. But that is not the present issue. “Teetotal” is simply of no relevance to any issue in this case.
As to the third citation, the absent evidence to which this paragraph relates is again impossible to provide without the inspection and documentation mentioned.
The fourth citation suggests that the defendant should be obliged to refer to a defence or possible defence which he might rely on, based on the inspection. This is the most obvious example of Catch-22: one cannot know what the inspection will reveal until one carries out the inspection. This was amply explained in evidence by the defendant’s expert Mr. Anderson and is repeated in his affidavit. The State in submissions and argument emphasised the fact that Mr. Anderson, though a forensic scientist, had no experience specifically with Intoxilyser machines. Mr. Anderson himself said as much quite frankly. The fact is that he could not have had such experience without a court order for inspection because all the information about the machine or “apparatus” as it is called, is within the custody of the Medical Bureau of Road Safety who have refused all applications for voluntary inspection, while the State has contested all applications for a court order for inspection. We have seen that the apparatus and its workings have been sedulously excluded from Freedom of Information. In these circumstances no-one could have experience of the Intoxilyser machine without a court order, whose issuance will be resisted by the State. This criticism of Mr. Anderson is both reductive and unfair.
The learned trial judge also said, at para. 11:
“If the defence, on instructions, have a need to apply for inspection of a machine or to have a view of the documents related to it, that this application should be notified to the prosecution and grounds given. In the alternative, an application on evidence can be made directly to the Court in advance of the trial”.
34. It is certainly true, as the learned trial judge pointed out, that “the applicant bears the burden of showing that his conviction for drunken driving should be quashed by an Order of Certiorari”. But the learned trial judge misapplies this onus, it appears to me, to the application which was made before the District Court and which the applicant had standing to make by reason of his being a person accused of what the learned High Court judge calls “drunken driving” on the basis of a breath sample which did not admit of independent testing.
35. It seems to me that all the dicta, set out in the preceding paragraph, except the last, were central to the learned trial judge’s reasoning. I have to say, with great respect, that they all appear to be based on the same fundamental proposition which I respectfully considered to be an error.
This proposition occurs several times in the course of the judgment of the High Court and is expressed in various ways, but all are based on the proposition that there is some onus on the appellant in making his application for an inspection etc. before the District Court which must be discharged before he can be granted such inspection. Ms. McDonagh S.C. for the State called it an onus to “lay the ground”. All of the dicta set out above, to the effect that the appellant did not say that he thought the Intoxilyser machine was defective in some way; did not say that he had been “teetotal” for a “relevant period”; did not “express surprise” to the gardaí at the reading of the Intoxilyser, did not swear an affidavit indicating “any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath specimen”; did not adduce any reason “whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”, derive from this proposition.
This proposition seems to me to miss an essential point. The appellant was a defendant facing a criminal charge. As such, he is entitled to “test” the evidence against him and to do so by “[cross-]examination”; to “contest” the reading of the Intoxilyser; not to face a trial in which “the evidence furnished by the Certificate from the Bureau is incontestable”; or in which “the Certificates in the Intoximeter cases are for all practicable purposes irrebuttable, notwithstanding the statutory provision to the contrary”, or in which the Intoxilyser “can by its own print out convict an accused without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable”.SeeMaher, Healy and Whelan, cited above.
I am also of the opinion that a defendant in any criminal case cannot be compelled to disclose his defence, or even a possible defence, in advance of hearing the prosecution case; or to indicate what defence he wishes to explore in advance of the prosecution presenting their evidence. See Sandes, Criminal Practice, Procedure and Evidence in Eire, (London 1939) p. 158; O’Malley The Criminal Process (Thomson Reuters, Dublin 2009) p.710, par. 18.30 and Hefffernan and Ní Raifeartaigh Evidence in Criminal Trials, (Dublin, 2014) p. 671, 674 and 688; DPP v. Buck [2014] IECCA 45 approves A.G. v. Durnan [1934] I.R. 540 which in turn approved R. v. Naylor, cited in Sandes, supra.
Most of the foregoing are general points, applying to criminal cases generally. But the circumstances of this case give rise to further difficulties. We have seen the somewhat tortuous statutory history whereby the need to prove actual incapacity properly to drive a motor car was replaced by a need to prove only an excess of alcohol in the blood or urine. This latter offence was based on compulsory testing with however the “critical” protection that the driver be given a portion of the sample for independent testing, if desired. Without any statement that it was doing so, the Legislature then adopted a new system of evidential breath testing which excluded the “critical” opportunity for independent analysis.
I am not aware of any case, prior to the almost total abolition of this opportunity, in which details of the operation, calibration and servicing of the apparatus used in analysis were requested. But with the silent abolition of this “critical” opportunity, a person who wishes to “contest” the machine’s reading can only do so by inspection of the Intoxilyser and perusal of the relevant documents.
A defendant is now typically confronted with a situation in which the analysis cannot be contested by cross-examination because there is no human being involved in it who can be cross-examined. Instead he is confronted with an analysis carried out by a machine whose operation, calibration, servicing etc. he cannot discover without a Court Order. We have seen the detailed, obscure and far-reaching steps taken by the State to prevent a defendant, or any citizen, getting details of the breath analysis apparatus and its functioning other than by Court Order.
All of this must be considered against the background of the finding by this Court that the opportunity for independent analysis is “critical to fair procedures and constitutional justice”, and that “the person accused will be afforded every opportunity to defend himself”, as a matter of constitutional law.
Against that background, I can see no basis for the imposition of an onus on a person charged with a breath specimen offence to adduce a particular reason why he wanted to examine the apparatus and read the documentation. How else can he “contest” the machines analysis? I would have thought that “self evident” as Geoghegan J. put it.
It will be apparent from the contents of this judgment, and especially from the section “Onus of Defendant?” from para. 30ff, that I do not believe that there is an onus on the defendant to demonstrate a particular defence, or a particular shortcoming in the apparatus, before being granted rights of inspection. Indeed, to require either of these things, or anything like them would be a Catch-22 in the sense that a defendant would be required to establish in order to obtain inspection, the very thing that she requires inspection to establish.
36. I believe that the learned trial judge may have been misled in this regard by a failure on the part of the State properly to assess a passage from the judgment of Mr. Justice Geoghegan in Whelan v. Kirby [2005] 2. I.R. 30 at 44, para. 24 which he sets out at para. 5 of his judgment ([2010] IEHC 381). This passage, as the learned trial judge quoted it is as follows:
“Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made”
In the text of the judgment of Geoghegan J., the words quoted are part of the following much longer paragraph:
“The preservation of evidence cases are relevant to one of the main arguments relied on by counsel for the second-named respondent [the DPP] in resisting the applications for judicial review. It is clear from those cases that a court will only be concerned with the preservation of evidence if such evidence could possibly assist the defendant in his or her defence. Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made. Counsel for the [DPP] argues that all the preliminary correspondence and discussions whether with the gardaí, the [Director] or the Medical Bureau are irrelevant because the first-named defendant would have been precluded at any rate from making any order of the kind sought as there was not going to be any evidence put forward as to what might have been determined by an inspection which would have been helpful to the defence”.
(Emphasis added)
We have seen, supra, that Geoghegan J. rejected this contention for reasons which are set out immediately below in the following paragraphs of the Report, and are cited above.
But the single sentence relied on by the learned trial judge in this case are part of a paragraph in which counsel for the State was advancing an argument based on an analogy with the preservation of evidence cases. The passage quoted by the learned trial judge is not a finding by the Court but a statement of the case being advanced, on that basis, by the State. The word “therefore” is a reference to the preservation of evidence cases and to the argument which the prosecution were building on them, and not a finding by this Court. It is often risky to rely on a sentence including the word “therefore” without having regard to the material which precedes it, from which the conclusion expressed in it is said to follow logically.
I do not accept that there is a proper analogy with the preservation of evidence cases, which are all civil cases in which the burden of proof is upon the person seeking to prevent a trial for loss of evidence or failure to preserve evidence. There is no doubt whatever that, in such cases, the plaintiff bears the onus of showing at least a real possibility of prejudice arising from the loss or non-preservation. That is quite different from the position in the present case where the appellant was a defendant in a criminal case confronted with a new form of evidential proof which, nonetheless, the law must allow him realistic scope to “contest”.
I turn finally to the last extract from the learned trial judge’s judgment, cited above, about the need to notify the prosecution of an application for inspection, or to apply to the Court itself in the presence of the prosecution. From the emphasis placed on these things it appears that the learned trial judge may not have had his attention drawn to the fact that the accused, through his solicitor, did in fact put the State on notice of his application by an email dated the 25th February (but actually e-mailed on 24th February) to which no reply was forthcoming. It is also, of course, the case that the application was moved on many occasions in late 2008 and early 2009 in a chaotic and “dribs and drabs” manner which was not the fault of the appellant. Furthermore, the appellant through his solicitor actually supplied the prosecution with the legal authority on which he was relying and much delay was apparently caused because those representing the DPP simply did not get around to reading it, and any person who may have read it was unable to attend Court.
The DPP’s representative did not at any time complain, in the District Court, the High Court or here, of inadequate notice of the application in the District Court. The case was adjourned several times because the first prosecutor had not read McGonnell, or was simply absent. The evidence was re-heard because there was a new prosecutor and the case then further adjourned because the new prosecutor had not read McGonnell either. There is no ground for thinking that the State had inadequate notice of the application in the District Court, or was in any way “taken short”.
The right to apply for inspection.
37. Whelan v. Kirby appears to have been the first case which upheld the right of a defendant facing a s.49 charge to apply to the District Court for an order providing for the inspection of the Intoxilyser on his behalf. In that particular case, when the application was made to the learned District judge, the latter replied (See [2005] 2 I.R. 30 at p.41, para. 16):
“I cannot get involved in this. The law is the law. It is going on far too long”.
This was held in the Supreme Court to amount to a refusal to entertain the application.
It appears that in making use of the phrase “the law is the law” the District Judge was saying in shorthand that the law provided for the use of the Intoxilyser and attributed presumptive correctness to its print out, and that was that. Nonetheless, for the reasons arising from Maher, Whelan, and McGonnell, set out earlier in this judgment, this Court held that there was a right to apply for inspection of the Intoxilyser because the presumption created by the statute was rebuttable. But without such an inspection it could not in “reality” be rebutted.
Apart from that argument, the Director in Whelan v. Kirby questioned the nature of the jurisdiction which would permit an order for inspection to be made. The applicant’s solicitor had, in making the argument in the District Court, said that it was analogous to “Gary Doyle” application. That is, it was an application grounded on an analogy with the form of order mandated in DPP v. Doyle [1994] 2 I.R. 286. Geoghegan J. did not accept this analogy though he observed that the requests for inspection were “based on the exact same constitutional principle”, (see p. 43 – 44, paragraph 22). He held that “there is jurisdiction in the District Court to make any order that would be necessary for the fulfilment of the constitutional obligation to a fair trial and fair procedures”.
38. The right to apply for inspection, declared for the first time in Whelan v. Kirby is firmly grounded on the earlier decision of Maher v. Attorney General [1973] I.R. 140. Speaking of Maher and its consequences, Geoghegan J. said, at pages 42 and 43, para. 21 of the Report of Whelan:
“Originally in relation to prosecutions arising out of specimens of blood or urine under the Road Traffic Act 1968, the equivalent certificate gave rise to an irrebuttable presumption. That provision was held to be unconstitutional by this Court in Maher. The Court held that the administration of justice in a criminal trial was confined by the Constitution to the Courts and judges constituted and appointed in accordance with the provisions thereof and therefore that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges. Once the certificate was conclusive the judicial power of the District judge was infringed and this could not be valid having regard to the Constitution.
It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the Intoximeter cases are for all practical purposes irrebuttable, notwithstanding the statutory provision to the contrary, if there are no circumstances in which an accused can be permitted through an independent expert of his own to investigate the reliability of the apparatus or at the least if it is not generally known in what circumstances (if any) such apparatus can be unreliable”.
(Emphasis added)
In McGonnell, which was a challenge to the constitutionality of the new system of evidential breath tests, the Court made use of the right which had been declared in Whelan v. Kirby in finding the new provisions for evidential breath sampling to be constitutional.
In the present case, in the District Court, the learned Respondent gave no reason whatever for his decision. The only specific recorded submission by the State was entirely ill founded: that the McGonnell case had been superseded. The only comment of the learned Respondent, equally ill founded, was to the effect that another case had “overturned” McGonnell.
One does not know, therefore, on what basis Mr. Cullen’s application was refused or what, in the learned Respondent’s mind, was the law applicable to such applications on the basis of which, presumably, this particular application was refused.
Duty to give reasons.
39. There is uncontradicted evidence in the present case that the learned Respondent gave no reasons for his refusal of the defendant’s application to be given the documents he referred to, and to be permitted to have the intoxilyser machine professionally examined by an expert on his behalf. It is also uncontradicted that this application was first made to him on the basis of the judgment of McKechnie J. in McGonnell. This appears on the face of it to establish a right to make precisely that sort of application and a right to have such an application entertained in accordance with the requirements of natural and constitutional justice, both procedural and substantive. The appellant says that this extends to a duty to give reasons for his refusal. It is uncontradicted that the learned Respondent did no respond at all to an express request to state reasons. He said nothing at all.
It is equally uncontradicted that the learned Respondent stated that McGonnell, “the case relied on by Mr. Cullen” had been “overturned” by a later case. The State had previously submitted that the case had been “superseded”.
40. On the hearing of this appeal it was not contended by the Director that McGonnell had in fact been “overturned” or “superseded”. I have already held, as a matter of law, that neither of these things has taken place.
41. Accordingly, this case presents a somewhat unusual feature amongst the now numerous cases on whether a court or other deciding body is obliged to give reasons for a decision adverse to one of the parties. Not only (on the evidence) did the learned Respondent simply ignore the request for reasons and make no comment whatsoever on it. He did so while he laboured under the unfortunate misapprehension that the case which was the lynch-pin of Mr. Cullen’s application had been “overturned” and no longer represented the law which was binding on the learned District judge. He did not mention the case which had, as he believed, “overturned” McGonnell, though he stated to Mr. Cullen that some of his (Mr. Cullen’s) colleagues would be aware of it. His colleagues could not have been aware of it, for there is no such case. The learned Respondent did not articulate what, in his mind, was the effect of the (non-existent) case which he believed to have “overturned” McGonnell, or what it held. Without knowing this, it appears to me that any attempt to establish by some form of inference the reasons which actually operated on the learned Respondent’s mind is an exercise akin to trying to put the tail on the chalked figure of a donkey while blindfold.
___________________________________________________________
42. Having noted that peculiar feature of the present case, I now turn to the more general topic of the duty of a court or other deciding body to give reasons for a ruling which is adverse to a party affected by its decision, where that party has (as here) engaged with the decision making process, called evidence, and made submissions.
43. There has been a great deal of jurisprudence on this topic in very recent years in the High Court and in this Court and elsewhere. I would instance O’Mahony v. Ballagh [2002] 2 I.R. 410, English v. Emory v. Reimbold & Stritch Ltd. [2002] I WLR 2409, Foley v. Murphy [2008] 1 I.R. 619, Clare Co. Co. v. Harvey Kenny [2009] 1 I.R. 22, Meadows v. Minister for Justice [2010] 2 I.R. 701, Flynn v. Medical Council [2012] 3 I.R. 236, Mallak v. Minister for Justice [2012] 3 I.R. 297. For the purpose of this judgment, however, I will discuss only the cases which appear to me to be directly relevant.
44. In O’Mahony v. Ballagh and the DPP [2002] 2 I.R. 410 the respondent District Judge failed to address in any way submissions made by counsel for the defendant at the close of the prosecution case. In that context, Murphy J. held at p. 416 that:
“… every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing”.
(Emphasis added)
45. In the present case there was no suggestion in the affidavit evidence or in argument that there were any time constraints upon the learned Respondent which precluded his giving reasons for his decision. The case was adjourned so often that there was ample time to read the case cited and to find any new authority thought to exist, if necessary with the assistance of the judicial researchers.
46. Even before the recent enormous expansion of Irish jurisprudence on this question, which is paralleled by developments in the European Court of Human Rights and in the neighbouring jurisdiction, there was strong authority for a duty by a decision maker to give reasons for his decision. In State [Creedon] v. Criminal Injuries Compensation Tribunal [1988] 1 I.R. 51 the respondent Tribunal was not satisfied that a man who received fatal injuries while trying to stop a driverless van rolling down a hill had received them in the course of an attempt to save life. But it gave no reasons for this conclusion. Finlay C.J. found at p. 54 – 55:
“I feel I should add that for a tribunal of this nature, even though it is not of statutory origin and is set up by an administrative decision by the Government, to reach a conclusion rejecting in full the claim of an applicant before it and not to give any reasons for that rejection is not an acceptable and proper form of procedure”.
(Emphasis added)
Walsh J. and McCarthy J. concurred in this judgment. It can rightly be described as a decision of high authority. Moreover it is a decision of the Supreme Court given almost twenty years before the present case came before the learned respondent in the District Court, so that it can fairly be said that the obligation to give reasons for a decision in the District Court was well established (even before the recent intensive development of the jurisprudence in this area in very recent years), by the cases of Creedon and O’Mahony v. Ballagh, cited above.
47. In O’Donoghue v. An Bord Pleanála [1991] ILRM 750 the Court addressed the question of a duty to give reasons as follows (per Murphy J. at p. 757):
“It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient, first to enable the Courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it has directed its mind adequately to the issue before it”.
(Emphasis added)
I wish to say, though it is surely unnecessary to do so at this stage of the evolution of the jurisprudence, that I agree with that formulation of why, in point of law, it is necessary for a deciding body to give reasons. It is a practical necessity that reasons be stated with sufficient clarity that if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. Secondly, and perhaps more fundamentally, it is an aspect of the requirement that justice must not only be done but be seen to be done that the reasons stated must “satisfy the persons having recourse to the tribunal, that it has directed its mind adequately to the issue before it”.
48. This line of authority has been greatly expanded in recent times. Specifically in relation to the first of the principles enunciated by Murphy J. in the case just cited, in Mallak v. Minister for Justice [2012] 3 IR 297, Fennelly J. stated at p.322, para. 68 – 69:
“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision.
… Several converging legal sources strongly suggest an emerging commonly held view that persons affected by an administrative decision have a right to know the reasons on which they are based, in short to understand them”.
(Emphasis added)
I would respectfully consider that the formulation that affected persons “have a right… in short to understand them”, them being the reasons for the decision, is an apt contemporary epitomisation of the second principle enunciated by Murphy J. in O’Mahony v. Ballagh.
I do not think, especially in light of the learned respondent’s unfortunate and erroneous belief that McGonnell had been “overturned”, that a reasonable person present in court could understand the actual reasons on which his decision to reject Mr. Cullen’s application was grounded, or be satisfied that he had adequately directed his mind to the issue before him.
49. In EMI Records Ltd. v. Data Protection Commissioner and Eircom Ltd. [2013] IESC 34, [2014] 1 I.L.R.M 225 at p. 249, para. 6.5 Mr. Justice Clarke concluded:
“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends”.
50. In Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, Mr. Kelly had been dismissed from his employment as a garda. This followed a hearing before a Board of Inquiry. That body recommended his dismissal and the Commissioner of the Garda Síochána accepted this and he was dismissed. He appealed to the Appeal Board. The Board dismissed his appeal without a hearing as it was entitled to do pursuant to statutory regulations, on the basis that the grounds of appeal were “without substance or foundation”.
O’Donnell J. held that both the Board of Inquiry and the Appeal Board had failed to give adequate reasons. He held, at para. 41:
“The only possibility for challenging the decision is by way of judicial review and, in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the Force. I consider that this conclusion follows from an analysis of the Regulations particularly when approached in light of the Common Law principles outlined so clearly in Mallak”.
(Emphasis added)
51. Accordingly, there is recent authority for the proposition, which relates to the first principle enunciated by Murphy J. and quoted above, that the existence either of a right to appeal or of a right to seek judicial review triggers a right to a statement of reasons.
52. Although the above authorities are, in my view, dispositive of the present case, it would risk incompleteness not to have regard to the lively jurisprudence in this area which has been developed in the Courts of the United Kingdom and in the European Courts. In R. (Wheeler) v. Assistant Commissioner of the Metropolitan Police [2008] EWHC 439 (Admin) it was held that a decision maker must address the substantive points made on behalf of the person seeking review. At para. 17 the learned judge continued as follows:
“His reasons need not be elaborate or long and certainly should not be analysed as if there were a judgment of a judge of the Administrative Court, but it should appear from them that he was conscious of the substantial issues raised by the disciplined person, and explain why or on what basis he has concluded that the review should uphold the decision of the panel”.
(Emphasis added)
53. In November, 2012, the Court of Justice of the European Union (CJEU) delivered a judgment in European Union v. Bamba (Case C – 417/11). At para. 49 the Court held:
“[T]he purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, secondly, to enable that judicature to review the legality of the act”.
54. The duty to give reasons, in its present form, is largely a development of the decades since the 1980s. It was, however, well established by the time of the hearing of this case in the District Court. It represents a major change (in my view for the better) in legal sensibilities and in the legal obligations of decision makers who derive their power from the Constitution or the Law.
In 1925, by contrast, it was possible for Sir James O’Connor, a judge of the Superior Courts of Ireland both before and after the revolutionary changes of the year 1922, to write in his preface to the second edition of his monumental work “The Irish Justice of the Peace”, in a section entitled “Advice to District Justices”:
“Be chary of giving reasons for your judgments. If you are not sure of them, give none. A wrong reason destroys respect for a right decision”.
This, be it noted, was specifically written as advice to the new professional District Justices who replaced the lay Justices of the old regime, and who gave such sterling service in the Irish Free State. But it no longer represents the law and I do not think that anyone would wish that it should be reinstated. It is now second nature for a judge to give reasons.
___________________________________________________________
55. The State’s principal response to the appellant’s contention based on the fact that the learned Respondent gave no reasons for his decision to refuse the appellant’s application, was to object to the point being argued at all.
Ms. Sunniva McDonagh S.C. very strongly argued that this point was not amongst those on which leave to seek judicial review had been granted to the applicant by Mr. Justice Peart on the 15th June, 2009. That leave had not been amended so as to permit the point being argued in the High Court. Ms. McDonagh very emphatically objected, on the hearing of this appeal, to the appellant being permitted to argue the point that the respondent had failed to give reasons for his judgment.
For the appellant, Mr. Micheál O’Higgins S.C. said that the point had been taken in the High Court and was within the grounds on which leave had been granted. These are set out at para. E of the Application. At subparagraph (iii) of that paragraph it was pleaded that the respondent had not properly determined the application “in accordance with the principles of natural and constitutional justice”. At subparagraph (iv) it was pleaded that:
“The hearing conducted by the District judge was unsatisfactory and not in accordance with the principles of natural and constitutional justice”.
Both the applicant and the Director filed written submissions before the High Court hearing. Part VI of the applicant’s document is headed “Failure to give reasons for his decision”. This contains paras. 40 and 41 and pleads that:
“… the failure of the learned respondent to do so [i.e. to give reasons] in this case was a breach of fair procedures. The lack of reasons also goes to the question of rationality or proportionality of the learned judge’s decision”.
The appellant expressly relied in those written submissions on the case of O’Mahony v. Ballagh, cited above, for this proposition. The written submissions from the Director of Public Prosecutions do not address these points at all.
The question of whether there is an obligation to give reasons and whether that obligation has been discharged in any particular case is an aspect of fair procedures. It is desirable that the grounds stated in an application seeking leave to apply for judicial review should be more specific and should identify the specific aspect of fair procedures being relied on. But it seems clear from the written submissions of appellant furnished prior to the High Court hearing that there can have been no misapprehension on the part of the respondent or of the Notice Party that a specific reference to failure to give reasons was intended. This failure is specifically described in those submissions as amounting to a breach of fair procedures. In the circumstances I would not uphold the objection taken.
56. It follows that, in my view, the appellant is entitled to succeed, and to have his conviction quashed, on the basis of the learned Respondent’s failure to give reasons. This was not the appellant’s core complaint: that was about the failure to give him access to the documents he wanted and to permit an examination of the Intoxilyser machine. But the “reasons” point is logically anterior to that point, if only for the reason that it is difficult to see how the decision on the substantive point can be either impugned or justified without being aware of the reasons which actuated the learned Respondent in what he did, perhaps based on his erroneous belief that McGonnell v. The Attorney General [2007] 1 I.R. 400 had been “overturned”.
Conclusion.
57. I would allow the appeal and quash the decision of the learned Respondent by way of certiorari.
Appendix A.
1. The origin of the modern law of drink driving is contained in s.49 of the Road Traffic Act, 1961.
S.49(1) provided as follows:
“A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle”.
2. Section 29 of the Road Traffic Act, 1968 amended the Section set out above by the insertion in it, after the words “of the vehicle” the following words:
“… or while there is present in his body a quantity of alcohol such that, within three hours after so driving… the concentration of alcohol in his blood will exceed a concentration of 125 milligrams of alcohol per 100 millilitres of blood”.
In the aftermath of the 1968 Act, its main evidential provision was, as we have seen, deemed to be unconstitutional in the case of Maher.
3. In the Road Traffic Act 1978, a new s.49 was inserted “in substitution for” s.49 of the 1961 Act. This preserved the old offence of driving while under the influence of an intoxicant “to such an extent as to be incapable of having proper control of the vehicle”. It also re-enacted the blood or urine offence, minus the objectionable provision for “conclusivity” discussed in the main judgment.
4. The Road Traffic Act, 1994 substituted another form of s.49 for the s.49 of the original Act as substituted by the 1968 Act. This provision was in similar terms to that in the 1978 Act except that the permitted concentration of alcohol in blood was reduced from 125 milligrams to 80 milligrams.
5. By the Road Traffic Act, 2010s.33, s.49 of the principal Act was repealed.
6. However, s.4 of the same Act re-enacted in substance the former offence as follows:
“4(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of —
(a) 50 milligrams of alcohol per 100 millilitres of blood, or…
67 milligrams of alcohol per 100 millilitres of urine, or…
22 micrograms of alcohol per 100 millilitres of breath…”
This is the current form of the offences originally created by the Acts of 1961 and 1968.
Appendix B.
1. The origin of the obligation to provide a portion of a sample taken from him or her under a statutory power for a person charged under s.49 of the principal Act is contained in s.46 of the Road Traffic Act, 1968.
Section 46, subs. 1 and 2 states as follows:
“46.-(1) A person who complies with a requisition under section 30(1)(b), 30(2), 33(1)(b) or 33(2) shall-
(a) be given an opportunity of having an additional specimen of blood taken by a registered medical practitioner of his own choice or of giving an additional specimen of urine to that practitioner, or
(b) if the person so requests, be supplied y the designated registered medical practitioner with an additional specimen of blood taken from that person in accordance with the prescribed procedure immediately after the taking of the specimen in pursuance of the requisition or, where a specimen of urine has been provided, with portion of that specimen”.
2. Section 46 of the Act of the Road Traffic Act, 1968 was repealed by s.5 of the Road Traffic (Amendment) Act, 1978. However, a similar provision was enacted pursuant to s.21 of that same Act.
Section 21, subs. 1 and 2 state as follows;
“21.-(1) Where under this Part a designated registered medical practitioner has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the designated registered medical practitioner shall divide the specimen into two parts, place each part in a container which he shall forthwith seal, and complete the form prescribed for the purposes of this Section.
(2) Where a specimen of blood or urine has been divided into two quantities as required by subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.
3. The Road Traffic Act, 1994 repealed the Road Traffic (Amendment) Act, 1978. Again, however, a similar provision was enacted pursuant to s.18 of the Road Traffic Act, 1994.
Section 18, subs. 1 and 2 state as follows:
“18.-(1) Where under this Part a designated doctor has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the doctor shall divide the specimen into 2 parts, place each part in a container which he shall forthwith seal and complete the form prescribed for the purposes of this section.
(2) Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.
4. In the Road Traffic and Transport Act 2006, pursuant to s.1(e), s.18 of the Act of 1994 was amended by substituting a new subsection 1.
Section 1(e) of the Road Traffic and Transport Act, 2006 provided as follows:
“1.-(1) The Road Traffic Act 1994 is amended-
(e) in section 18, by substituting for subsection (1) the following:
“(1) Where under this Part a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse shall divide the specimen into 2 parts, place each part in a container which he or shall immediately seal and complete the form prescribed for the purposes of this section”.
5. In McGonnell v. A.G. [2007] 1 I.R. 400 Murray C.J. commented on the foregoing expression of the right of a driver to take a portion of a sample taken from him or her under a statutory power, as follows:
“Such a person has the opportunity of having a portion of a single specimen independent assessed if he so wishes… It is entirely irrelevant whether he should avail of his entitlement or not… It is the opportunity which is critical to fair procedures and constitutional justice”.
6. Section 33I of the Road Traffic Act, 2010 purports to repeal s.18 of the Road Traffic Act, 1994.
S.I. No. 544/2011 – Road Traffic, 2010 (Section 33) (Commencement) Order 2011 brings into force s.33I, excluding any provision as to s.18 of the Road Traffic Act 1994.
However, again a similar provision was enacted pursuant to s.15 of the Act of 2010.
Section 15(1) and (2) state as follows:
“15.–(1) Where under the Chapter a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse, as the case may be, shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.
(2) Where a specimen of blood or urine of a person has been divided into 2 parts under subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers and inform the person that he or she may retain either of the containers”.
See also Road Traffic Act, 2010 (Sections 15 and 17) (Prescribed Forms) Regulations 2011 (S.I. No. 540 of 2011) and
Road Traffic Act, 1994 (Sections 18 and 19) (Prescribed Forms) Regulations 2010, S.I. 434/2010.
Appendix C.
Statutory provisions applicable in 2008 which are cited in the judgment.
Road Traffic Act 1994:
1. Road Traffic Act 1994, Section 13(1)(a)
2. Road Traffic Act 1994: Section 17(2)
3. Road Traffic Act 1994: Section 21(1)
Section 13(1)(a)
Obligation to provide specimen following arrest.
13.-(1) Where a person is arrested under s.49(8) or 50(10) of the Principal Act or section 12(3), or where a person is arrested under section 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána station, at his discretion, do either or both of the following-
(a) require the person to provide by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement.
Section 17(2)
Procedure following provision of breath specimen under section 13.
17
(2) Where the apparatus referred to in section 13(1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49(4) or 50(4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.
Section 21(1)
Provisions regarding certain evidence in proceedings under Road Traffic Acts, 1961 to 1994.
21.–(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994 , of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under to and in connection with the supply by him pursuant to section 17(2) of such statement.
Minister for Justice, Equality and Law Reform v Tobin
[2012] IESC 37
JUDGMENT of Mr. Justice Hardiman delivered the
19th day of June, 2012.
This is a unique and unprecedented case under the European Arrest Warrant procedure. The Minister for Justice, as Central Authority, seeks the surrender of Mr. Tobin to Hungary, there to serve a sentence said to be of three years duration (but this is uncertain: see below) imposed on him in respect of a road traffic offence arising out of a tragic accident in which he was involved, on the 9th April, 2000.
The appellant, Mr. Tobin, is an Irish citizen of unblemished character who not merely has no previous convictions, but has had a distinguished career in an Irish public company. At the time of the traffic accident referred to he was in Hungary seeking to develop the business of the Irish public company.
Many criminal issues that come before the Courts reveal facts that seem remote from the concerns of ordinary people who do not commit crime and are not likely to be suspected of having done so. This case is not in that category. Firstly, it has its origins in an appalling tragedy in which two Hungarian children lost their lives in a road traffic accident. The case illustrates how a perfectly ordinary person, of good character, can in a moment, and without any intentional or malicious act on his part, become first a suspect, then a convict sentenced to three years in a foreign jail, and then be pursued for many years on a number of inconsistent grounds. The case, accordingly, is not without relevance to anyone who travels abroad, and especially to anyone who drives a car when abroad.
It must be said at the outset that the combined effect of the tragedy, and the impossibility of life as a fugitive for a respectable person has led the appellant to offer actually to serve the sentence, whose justice – and that of the underlying conviction – he has never accepted, provided he could do so in Ireland. But this offer was rejected on the basis that there was no provision for it in Irish law.
The respect in which the case is unprecedented is that it represents the second attempt by the Central Authority to secure the delivery of Mr. Tobin to Hungary to serve this sentence. The first attempt, initiated in 2004, was heard and determined by the High Court in December, 2006. The application was refused. The Central Authority appealed to this Court where he was equally unsuccessful. The judgment of this Court was delivered on 25th February, 2008. The Oireachtas then changed the law and the Central Authority claims to be entitled to seek Mr. Tobin’s surrender as though the first case had never happened. This is acknowledged, very realistically, to be “terribly harsh” on Mr. Tobin and his family but that is said to be irrelevant.
It may also be noted that if a Hungarian citizen were to be convicted of a serious road traffic offence in Ireland and sentenced to imprisonment, Ireland would not be in a position to seek his delivery from Hungary to serve this sentence. This is because the Hungarian government has availed of provisions in the Framework Decision on the European Arrest Warrant. These enable a Hungarian citizen in similar circumstances to serve his or her sentence in Hungary. In the present case, Mr. Tobin offered to serve the sentence in Ireland, but this offer was refused. There was no legal provision for it. When the Central Authority launched this second attempt, Mr. Tobin felt he had no option but to surrender his bail and go into custody in a convict prison, to mitigate the period he would spend in a Hungarian jail if the Courts gave him no relief. He went into custody in November 2011.
Outline Chronology.
As will appear in this judgment, I have several very grave concerns about the Central Authority’s application in the present case. One of these concerns relates to the grossly abnormal period of time during which Mr. Tobin, the father of a young family, has been under the threat of forcible separation from his family. A detailed chronology appears later in this judgment and it is discreditable both to this State and to the requesting State, in my opinion.
The tragic accident in which Mr. Tobin was involved, and which will be discussed in some detail below, took place in April, 2000.
The Hungarian trial on a road traffic charge, which was initiated in June 2001, took place in May 2002. An “International Arrest Warrant” (not now relied upon) was issued in 2004 and a European Arrest Warrant in 2005. The first attempt by the Central Authority to have Mr. Tobin forcibly delivered to Hungary on foot of a European Arrest Warrant took place between 2005 and 2008. These proceedings are now admitted to have been flawed. It was specifically contended by the State on the hearing of this appeal that Mr. Tobin had been correctly successful in resisting his surrender. In the State’s view, the problem related to a provision of the European Arrest Warrant Act, 2004 which “should never have been in the Act in the first place”. But this was scarcely Mr. Tobin’s fault. He fought the case on the law as it stood. After he won, the law was changed and the State started all over again, taking years in the process. Mr. Tobin, like any citizen in his position, cannot change the law and demand a re-match. But the Central Authority is doing just that.
By the time the State’s misconceived proceedings had been finally dismissed in February 2008, a period of eight years less two months had elapsed since the accident. The next step in this tangled history was the enactment of the Criminal Justice (Miscellaneous Provisions) Act, 2009. The effect of this Act was to delete from the Act of 2003 the provision which enabled Mr. Tobin to be successful in the previous proceedings.
On the 17th September, 2009, 9½ years after the accident, the Hungarian authorities issued a further European Arrest Warrant seeking the surrender of Mr. Tobin. When the latter was arrested under this warrant, he, not surprisingly, replied:
“I thought it was all over after the Supreme Court”.
I agree with the statement of O’Donnell J. in his judgment in this case that “to a large extent, the question on this appeal is whether Mr. Tobin’s immediate and understandable reaction to arrest and caution was correct as a matter of law”.
The Accident and the Hungarian Proceedings.
The appellant, Ciaran Tobin, is an official of an Irish Public Company in which he has worked since he left school. While working full time with that Company he qualified first as a Certified Chartered Accountant (FCCA) and subsequently proceeded to the degree of Master of Business Administration (MBA). These are coveted qualifications, not achieved without serious and sustained endeavour and ambition by a person working full time. He has achieved a position of considerable seniority in his official career. He is married with two children and lives in Dublin. He is acknowledged to be a person of excellent character.
In 1997 Mr. Tobin was sent by his employer to Hungary to manage and develop a business which his employer had acquired in that country. He was to work in Hungary for a period of three years, from 30 November, 1997. He was accompanied in Hungary by his wife and later an infant son. A further child, a daughter, was subsequently born: his wife was expecting this second child at the time of the accident described below.
In the month of April, 2000, the appellant was still on his posting to Hungary. He and his wife had been visited there by an Irish couple with whom they were friendly. On the 9th April, 2000, the appellant, his pregnant wife, their child, and their Irish guests, were doing some sightseeing in the area of Visegrad, Hungary. The weather was good and traffic was light.
The account of events which follows is taken from the appellant’s affidavit. It is important to note that this affidavit has not been challenged or contradicted in any way at all by or on behalf of the State or the Hungarian authorities. Its contents are therefore presumptively true. His evidential statement to the Hungarian Police is likewise uncontroverted.
On Sunday the 9th day of April, 2000, the appellant was driving a Volvo 40 motor car along a public highway in the area mentioned. He had the persons mentioned above as his passengers. The street featured a raised area on which, relevantly to this case, was a bus stop and an area for people waiting for the bus to stand. This area was separated from the street by a kerb.
The car was not the appellant’s personal property but was supplied to him by the Irish public company for which he worked. Like many modern cars it was equipped with a range of electronic indicators intended to indicate malfunctions or items that needed to be adjusted. The vehicle was fully and regularly serviced at the expense of the appellant’s employers. Apart from this, the appellant had twice taken it to the garage complaining that certain indicators including that relating to the anti-lock braking system (ABS), had lit up without apparent reason. He was assured by the experts that this was an electrical fault only and did not indicate any fault in the functioning of the vehicle. It was also a feature of the vehicle, according to the appellant’s uncontradicted evidence, that airbags was programmed to deploy in the event of an impact at a speed above 50 kilometres per hour, or about 30 miles per hour.
On Sunday the 9th of April, 2000, the appellant was involved in a traffic accident at the location mentioned above which, very tragically, involved the deaths of two people, children who were waiting in the vicinity of the bus stop mentioned above. The devastation caused by this tragedy cannot be understated the appellant has made no attempt to do so. But he denies that there was any criminal act or omission on his part, either in the driving of the car or in its maintenance, which caused the accident.
The appellant says that he was driving along the public highway at a speed of about 70 kilometres per hour, or about 42 miles per hour. The husband of the visiting couple was sitting beside him in the front passenger seat; their two wives and the Tobins nine month old child were sitting in the back. Mrs. Tobin, as has been mentioned, was pregnant at the time. As he drove, a car pulled out of a side street and on to the major thoroughfare along which the Tobins were driving. He thought it wise, as that car came closely in front of him, to pull into the only other available lane, that nearest the right hand kerb. This involved a movement to the right. After executing this movement, Mr. Tobin attempted to straighten up the car so that it could proceed in the normal fashion in the right hand lane. But the vehicle was suddenly and entirely unresponsive to efforts to straighten it up on the road or to apply the brakes. In an instant – motor accidents, notoriously, happen in a much shorter period of time than it takes to describe them – his car had mounted the kerb on the raised area and struck the two children standing there, with the appalling consequences already set out.
The circumstances of the accident giving rise to these proceedings, accordingly, can be briefly summarised. The driver, a man of good character, of mature years, was driving a well maintained, somewhat sedate car which is the property of his employer along a two-lane public highway in Hungary. He was accompanied by his infant child, his pregnant wife, and two friends. The highest speed at which the prosecution alleged the car was driven is 71-80 kilometres per hour or approximately 42 to 48 miles per hour. The car had been meticulously maintained at the employer’s expense. The only odd feature of its performance, the unexplained activation of certain indicators, has been drawn to the attention of the servicing garage and dismissed as insignificant in relation to the actual functioning of the car. The driver executed a normal traffic manoeuvre involving going from one lane to another, but quite suddenly the car became unresponsive both to steering and to brakes. It mounted the kerb on a reserved area with utterly tragic consequences.
Events after the accident.
Immediately after the accident the emergency services were called, including the police. Arrangements were made for the care of the appellant’s child who, because he was seated in a backwards facing child seat, had not registered the dramatic events which had occurred.
When the Hungarian police arrived they began to take statements which were clearly of a very formal nature and which indeed, in the ordinary course of events, would have been part of the criminal trial record. The appellant and his passengers were shocked and distressed. The appellant and his wife, during their stay in Hungary, had become friendly with a young English speaking Hungarian woman whose father they knew to be a lawyer. They do not appear to have been previously acquainted with the lawyer himself. But they contacted the daughter with the result that she and her father arrived at the scene. The young Hungarian lady interpreted between the police and the Tobins and their passengers. The Tobins and the police had no language in common.
After some time at the scene, and no doubt in view of the shock and distress of the Tobins and others, the police suggested that the statement taking process continue the following day at the police station. They required the attendance for that purpose of Mr. and Mrs. Tobin and their two guests. The police specifically told the lawyer’s daughter, who was acting as interpreter, to come as well.
The significance of this last detail is considerable. It transpired that, at the eventual trial of Mr. Tobin in Hungary, statements taken in the police station from the Tobins and their passengers were excluded from evidence on the basis that they had been translated by a person who was the daughter of a lawyer who had previously been advising the defendant. This was done notwithstanding that, having been warned of the prosecution’s attempt to exclude their accounts, the Tobins and their witnesses had reiterated their statements at the Polish Consulate in Dublin. The statements taken at the police station existed both in Hungarian and in English. This matter will be further discussed below.
It appears from the documents put before the Court that the statements of the Tobins’ and their witnesses were taken by questions and answer by a senior officer of the Hungarian Police. Mr. Tobin gave his account as summarised above. The police took possession of his car. Mr. Tobin says, without contradiction, that due to the rules of the Civil Law system as they exist in Hungary, it was not possible for him to have the vehicle examined but he requested through his lawyer, on 10 April 2000, that the police do so and in particular that they check the brakes, indicators and the speed at which the vehicle’s airbags should deploy, said by him to be 50 kilometres an hour. If they did this, it does not appear to have formed part of the record of the trial. On the formal protocol or minutes of the interrogation, Mr. Tobin is described as “Suspect”, Dr. Tibor Soós as “Defence Counsel” and Ms. Káta Soós as “Interpreter”. No objection was taken to her acting in that capacity, indeed the police required her presence for that purpose.
Hungarian proceedings.
After a significant delay, Mr. Tobin was charged with a Hungarian offence of negligent driving causing Death, In a Common Law country, such as Ireland, Britain, America, Canada, Australia etc., such a charge would involve an obligation on the person charged to attend Court. But this is not so in Hungary: a person charged with such an offence can remain away from Court and, if he wishes, can be represented by lawyers at the Court proceedings. It is now agreed by both sides that this is so, and that is what Mr. Tobin did.
The basis on which Mr. Tobin was convicted of the offence by the Hungarian Court is known to us from the warrants and the documents associated with them. As in another respect, to be discussed below, the account given in the four warrants which have been issued are not identical. But the account given in the third and fourth warrants, the latter being the one grounding these second proceedings, are identical. From this it appears that the Hungarian Court found that the defendant was guilty because:
“The accused steered to the right for unknown reasons and, due to this sudden movement of the steering wheel, and due to the speed, being excessive compared to traffic conditions, the vehicle went up on the side walk which was separate from the road by a raised stone edge at a speed of 71 – 80 kilometres per hour…”. (Emphasis supplied)
It is clear that the finding that the accused steered to the right “for unknown reasons” can only have been come to on the basis of ignoring the statement of the accused, Mr. Tobin, which gave a specific reason why he steered to the right: it was because a car from a side road had pulled out closely in front of him. But the Court had no regard to this statement apparently on the basis, as set out above, that he had been translated by a person who was the daughter of the defence counsel. The consequences of this development will be considered below. The Court did not disbelieve his account or consider it incapable of explaining the accident: it simply ignored what Mr. Tobin and his witnesses had to say. For some reason the prosecution thought it important to exclude Mr. Tobins account from being considered by the Court.
It is not clear how precisely the Hungarian Court came to its determination of the speed at which the car mounted the side walk, or how the speed is said to have contributed to this. It is a speed slightly in excess of that at which Mr. Tobin said he was driving along the road when the car pulled out in front of him. The airbags on his vehicle did not deploy and Mr. Tobin, through his lawyer, had suggested an investigation of why that was since they were meant to deploy on impact at a speed greater than 50 kilometres per hour. This does not appear to have been done, and as Mr. Tobin said without contradiction in his affidavit “I was unable to appoint my own expert to examine the car under the inquisitorial Hungarian Criminal Justice system”. This is plainly a significant matter having regard to the fact that the speed of the vehicle and the allegedly unexplained movement to the right, were the entire engine of the Court’s finding. It is important to bear in mind that the sentence was imposed for negligent driving causing death, which involved a prison sentence rather than for speeding or any purely regulatory offence.
Notwithstanding the fact that it is now agreed that Mr. Tobin was under no obligation to attend at the Court proceedings, the Central Authority’s first attempt to have him forcibly delivered to Hungary to serve a sentence pursuant to the provisions of the European Arrest Warrant Act, was taken on the absolutely specific basis that he had “fled” from Hungary. This is now admitted to be quite false. But it was the basis of the first proceedings which the State fought tooth and nail against him and, when it lost in the High Court, appealed to this Court. It is now said that this was all based on a mistake. But the mistake, manifestly, was that either of the Central Authority or of the Hungarian authorities. It was certainly not that of Mr. Tobin or his advisers. No-one has taken responsibility for the “mistake”, and therefore no-one has explained it.
In the argument on the hearing of this appeal, the State’s first set of proceedings, initiated on the 2004 Warrant, were referred to as “Tobin 1”. As the Irish law then stood, such proceedings could only have been taken on the basis that Mr. Tobin had fled from Hungary. But, as a matter of fact, he had not done so, as is now admitted. He was therefore entitled to succeed in those proceedings and did so for the reasons set out in the judgment of this Court of 25 February, 2008.
The legal consequences of the foregoing will be discussed below. But it is important to note the following uncontradicted facts. Mr. Tobin, in fact, returned twice to Ireland after the accident, once for a family wedding and then, later, because his term of secondment to the Hungarian Company was over. On the first occasion, he told the authorities he was going, asked for his passport (which he had produced to the police after the accident and had been retained by them) and was given it. After the wedding he went back to Hungary. He returned, with his family, on the second occasion because he no longer had a job in Hungary and needed to resume his employment in Ireland, and thereby support his family.
Notwithstanding the foregoing, the State, at the apparent urging of the requesting State, commenced proceedings for Mr. Tobins surrender back to Hungary on the basis that he had fled from that country. They persisted in this even after the facts set out above, clearly demonstrating that he had left Hungary quite openly and was not obliged to be present for the criminal proceedings were perfectly apparent. These “mistaken” and groundless proceedings arose from the issue of the “International Arrest Warrant” against Mr. Tobin in October 2004 and lasted until the judgment of this Court in February 2008.
By reason of the statutory machinery by which Ireland has implemented European Arrest Warrant arrangements, proceedings upon such a warrant are taken by the Central Authority. This is different, for example, from the position obtaining in England where the proceedings are taken in the name of the relevant official of the requesting State. In my opinion, however, no distinction can be made between the actions or omissions of the Central Authority and those of the requesting State. The Central Authority acts on foot of a warrant issued by the requesting State or some organ thereof, but the Central Authority itself is the moving party in the proceedings in this country. Accordingly, it appears to me that the Central Authority is fixed with knowledge both of the contents of the warrant issued in the requesting State and, of course, with the provisions of Irish law.
The purpose for which Mr. Tobins surrender to Hungary was required was to serve a sentence said to be three years imprisonment imposed upon him by the Hungarian Court. There is, as will be seen, some grave uncertainty as to the precise nature and length of that sentence, and as to whether any part of it is, as the High Court judge and the State Solicitor thought, “suspended”, but that need not detain us now. It is fully discussed below. It appears, again from the uncontradicted evidence of Mr. Tobin, that the criminal case attracted enormous publicity and excitement in Hungary, so that it was moved to a larger courtroom than that originally appointed; that there was considerable Hungarian newspaper and social media publicity about it, uniformly hostile to Mr. Tobin; that subsequently both Mr. Tobin and the Irish Public Company that employs him has received “hate mail” about him and that he has even received death threats apparently emanating from Hungary. It is greatly to the credit of his employers that they have resisted demands from anonymous sources to dismiss Mr. Tobin.
The first set of proceedings.
At the time of the first set of proceedings for Mr. Tobins surrender to Hungary, he and his family lived in County Meath. He was arrested there and held in custody until released on bail over the State’s objections. The effect of this on a perfectly respectable person, and on his family, can perhaps be imagined. The State then proceeded with the case even thought it must have been clear that the factual basis for the allegation that Mr. Tobin had fled was gravely unsound. They lost in the High Court but persisted with an appeal to this Court.
On the 27th February 2008, this Court gave reasons for a judgment which dismissed the State’s appeal and affirmed the decision of the High Court. In other words, it dismissed the application to have Mr. Tobin forcibly delivered to Hungary. This must have been, and is said on affidavit to have been, a great relief to Mr. Tobin and his family. It is important to realise that legal proceedings of one sort or another had been ongoing, or in prospect, ever since the date of the accident. The terror and insecurity that this represents to Mr. Tobin and his family is easy to imagine. So is the destructive effect on his career, and the effect on his wife and children.
It is also important to re-iterate that, had these proceedings concerned a Hungarian citizen who was involved in a tragic traffic accident in Ireland, no question of his surrender to Ireland would arise. Even if he received a custodial sentence, and even if there were no substantive or procedural challenge available to it, he would be entitled to serve that sentence in Hungary because the Hungarians have invoked a provision to that effect in the European Arrest Warrant arrangements. Ireland has not done so.
Surrendering Irish Citizens.
In my judgment in the case of Minister for Justice v. Bailey (Supreme Court, unreported, 1 March, 2012) I compared French legislation with that existing in Ireland and pointed out that there was considerably greater scope for the French to request the surrender of a person from Ireland to France, than for Ireland to request the surrender of a French person, or a person who happened to be in France, to Ireland. This case, too, illustrates that Ireland is prepared to surrender its citizens, or the citizens of other countries who happen to be in Ireland, to countries which would not themselves deliver their own citizens or visitors to Ireland if the positions were reversed. I do not believe that this aspect of the European Arrest Warrant arrangements, which are within the control of the Irish authorities, are widely known. Nor do I believe that it is widely known that those provisions can be used forcibly to deliver a person of good character on road traffic charges.
This confusion is not surprising because when the European Arrest Warrant “Framework Document” was first drawn up in 2001 it related exclusively to Terrorist offences. It was subsequently, in the ten day period immediately after the 9/11 outrage in New York, extended to a great number of other offences many of which are not offences of specific intent at all. Again, I do not think that this aspect of the European Arrest Warrant arrangements are widely known, or were widely or clearly explained at the time.
What sentence was imposed?
Where a State requests another sovereign State to deliver one of its citizens to the requesting State for the purpose of undergoing a sentence which has been imposed upon him, it appears to me to be a very minimal and very basic requirement that the requesting State should, in the document in which it makes the request, specify the sentence which the citizen will undergo if forcibly delivered, and specify it clearly and without ambiguity.
A requirement to this effect appears to me to be imposed in any event by s.11 of the European Arrest Warrant Act, 2003.
Insofar as relevant this provides:
“11(1) A European Arrest Warrant shall, insofar as is practicable
be in the form set out in the Annex to the Framework Decision and shall specify –
…
(f)(i) The penalties to which that person would, if convicted of the offence specified in the European Arrest Warrant, be liable,
(ii) Where that person has been convicted of the offence specified in the European Arrest Warrant but has not yet been sentenced, the penalties to which he or she is liable in respect of the offence, or
(iii) Where that person has been convicted of the offence specified in the European Arrest Warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”
The earlier and later provisions of subsection (1) do not appear to me to be relevant.
In my opinion, s.11 of the Act contains a mandatory requirement to state in the European Arrest Warrant, and in specific terms, “the penalties of which that sentence consists”.
In this case, however, there is a high level of confusion and actual contradiction on this vital topic. The Hungarian authorities have issued a total of no less than four European Arrest Warrants in respect of Mr. Tobin. They have also issued another document described as an “International Arrest Warrant” which is not relied upon in these proceedings.
The four separate European Arrest Warrants.
The first warrant, transmitted to the Irish authorities on the 16th June, 2005, specifies the sentence as “three years of custodial sentence to be served in a non-high security establishment”.
The second warrant, delivered to the Irish authorities on the 26th March, 2006, specifies the sentence as “three years imprisonment to be served in a low-level security prison”.
But the third warrant, delivered to the Irish authorities on the 13th April, 2006, specifies the sentence as:
“Three years in a low-level security prison (Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence).”
The fourth warrant issued on the 14th October, 2009, describes the sentence as “three years of imprisonment to be served in a low-level security prison”. That is, the reference in the previous warrant to release on parole after eighteen months has simply vanished.
On the hearing of this appeal, it was suggested that the variation of the statement of the sentence to be served related to an alteration or qualification of the sentence imposed by a Hungarian Court of Second Instance reviewing the decision of the Trial Court.
However, when Mr. Tobin was arrested pursuant to the European Arrest Warrant on the 11th January, 2006, and was brought to the High Court, the State decided to oppose his release on bail, despite the fact that he was plainly a person of good character. In doing so, the State referred to the European Arrest Warrant and asserted that the custodial sentence facing Mr. Tobin in the event of his surrender was one of three years imprisonment. The State then asserted that, since he was facing custodial sentence of three years imprisonment, he was likely to seek to evade justice if admitted to bail and that accordingly bail should be refused. In supporting this objection in evidence on behalf of the Central Authority, Sergeant Anthony Lenihan of An Garda Síochána that he had no knowledge of a reduction in the term of imprisonment imposed on appeal.
In support of the application for Mr. Tobin’s surrender, a Dr. Klara Nemeth-Bokor, head of the Department of International Criminal Law in the Ministry of Justice in Hungary swore an affidavit on the 21st July, 2006. In this she stated that following transmission of the warrant to the Irish authorities on the 16th June, 2005 “requests for further information were received from the Central Authority between the 27th July, 2005, and the 11th May, 2006”.
She then went on to say, at para. 5:
“As a result of the said requests for further information, the issuing court considered the European Arrest Warrant, and amended the warrant to reflect the findings of the Pest County Court, the Court of Second Instance. The European Arrest Warrant as originally issued did not state that the sentence imposed on Mr. Tobin had been amended by the Pest County Court by adding the proviso that Mr. Tobin may be put on parole after serving half of his sentence. The amendment was translated and transmitted to the Minister by fax on the 29th March, 2006.”
(Emphasis supplied)
But this situation was not satisfactory to the Central Authority, or became unsatisfactory to him as the detail of Mr. Tobin’s case emerged, in his points of opposition. Accordingly, on the 21st May, 2010, a Mr. John Davis of the Department of Justice wrote to Dr. Nemeth-Bokor and said, insofar as is relevant:
“The respondent (i.e. Mr. Tobin) claims that the E.A.W. does not comply with s.11(1)(g)(iii) of the E.A.W. Act, 2003 in that it does not set out the penalties of which the sentence consists of (sic). This appears to be a reference to the fact that the E.A.W. does not record that the final eighteen months of the three year sentence were ‘suspended’ (using our terminology) by the Pest County Court of Second Instance.
The variation of sentence at Second Instance is not referred to on the face of the E.A.W. Please confirm whether the sentence was varied at Second Instance and whether this is the sentence for which the respondent’s surrender is sought?”
Mr. Davis requested a reply to his letter by the 18th June, 2010, “at the very latest”.
On the 14th June, 2010, Dr. Nemeth-Bokor replied as follows:
“The fact that the Pest County Court as Court of Second Instance established in its judgment that following the service of half of the sentence, Tobin may be conditionally released, means only that the earliest date of the possible release may come into light following the service of eighteen months” (sic).
“Taking into account the above it has to be stated that the sentence has not been varied at Second Instance, only the earliest date of the possible release has been established and at the same time the judgment [at First Instance] passed by the Budakornveki Court on 7 May, 2002, has been approved”. (Emphasis in original)
The learned trial judge, and the State lawyer, Mr. Davis, perhaps not surprisingly, considered that the sentence as it stood after the Second Instance hearing was one of three years with eighteen months suspended. But this not clearly not so, and that was common case on the hearing of this appeal.
From the foregoing it appears to me firstly that the four European Arrest Warrants are not internally consistent on the question of the sentence. Secondly, the affidavit of Dr. Nemeth-Bokor, quoted above, states that the Court in Hungary “amended the warrant to reflect the findings of the Pest County Court, the Court of Second Instance [which]… did not state that the sentence imposed on Mr. Tobin had been amended… by the adding the proviso that Mr. Tobin may be put on parole after serving half his sentence”.
But the same person’s letter on the 14th June, 2010, states clearly that “the sentence has not been varied at Second Instance…”.
The legal nature of a sentence which has been amended but has not been varied, entirely eludes me. It is a contradiction in terms.
In my view, the mandatory provisions of the Irish legislation have not been complied with. Even an important Hungarian Civil Servant holding a doctorate in law appears confused as to whether the sentence imposed by the Court of First Instance has been “amended”, as she stated in her Affidavit, or has “not been varied at Second Instance” as she stated in her letter to the Irish authorities of 14 June, 2010. It does not seem to me that these statements can both be true.
If, as asserted in the third warrant issued by the Hungarian authorities “Tobin Francis Ciaran may be released on parole after having served one half of his imprisonment sentence”, that important matter is then wholly omitted in the warrant on which his surrender is now sought.
Moreover by virtue of s.2A of the European Arrest Warrant Act (inserted by s.72(a)) of the Criminal Justice (Terrorist Offences) Act, 2005, “if any of the information to which s.1A refers is not specified in the European Arrest Warrant, it may be specified in a separate document”, or otherwise. The affidavit and letter of Dr. Nemeth-Bokor are apparently produced under this section.
This means that at any time up to the close of the appeal hearing it would have been possible for the applicant to clarify this confusion which had been fully ventilated by that time. But no such clarification was offered, “in a separate document”, or at all, other than the contradictory documents discussed above.
Accordingly, to summarise: the first two warrants referred to a sentence of three years without qualification. The third permitted release on parole after half that period. This alteration was said by the Hungarian State’s expert witness to because the original warrant “did not state that the sentence imposed on Mr. Tobin had been amended by the [Court of Second Instance]”.
But if this is so, that amendment was simply deleted from the fourth warrant, issued more than four years after the first one and three years after the warrant referring to early release. No clarification of this has ever been offered except the Hungarian lawyers cryptic statement that the sentence, though “amended” had not been “varied”. These statements are inconsistent, and utterly uninformative. I do not know “the penalties of which the sentence consists”. Neither does the Irish State, or Mr. Tobin himself or his family.
Even apart from the statute I would consider this a wholly unacceptable state of vagueness. In Ireland a prisoner is entitled to know his sentence with absolute precision and on being lodged in prison is entitled to be informed of his date of release. I consider this to be, not merely a statutory requirement, but an essential incident of a deprivation of liberty in accordance with law. A specific statement of “the penalties of which that sentence consists” is required by law to be part of the European Arrest Warrant. This requirement has not been complied with. I would therefore decline forcibly to deliver Mr. Tobin to Hungary on this ground alone.
Detailed chronology.
There follows a detailed chronology of the events from the date of the accident, on the 9th April, 2000 until the appellant felt compelled to surrender his bail on the 9th November, 2011. This chronology, in a very similar form, was presented on the hearing of the appeal and I did not understand it to be in any way dissented from.
30 November 1997 Respondent moves to Hungary.
9 April 2000 Date of Accident.
10 April 2000 Respondent attends at Police Station and gives
statement.
28 August 2000 Respondent writes to Police seeking return of passport.
19 September 2000 Respondent departs for Ireland.
9 October 2000 Respondent returns to Hungary.
November 2000 Respondent due to return to Ireland.
7 June 2001 Respondent furnished with indictment.
14 June 2001 Respondent writes letter to be passed on to Court asking that his presence be excused.
19 June 2001 Original trial date.
April 2002 New Trial date.
7 May 2002 Date trial ultimately proceeds.
8 November 2002 Appeal Court decision handed down.
1 May 2004 Hungary joins EU.
5 May 2004 Hungary designated under 2003 Act.
12 October 2004 International Arrest Warrant issues.
April 2005 (date unspecified) First Warrant issues.
16 June 2005 First Warrant transmitted to Minister.
27 April 2005 Date on face of Second Warrant.
20 December 2005 Application to endorse First Warrant.
12 January 2006 Arrest of Respondent on foot of First Warrant.
29 March 2006 Second Warrant delivered to Minister.
13th April 2006 Third Amended Warrant delivered.
19-20 December 2006 Application for surrender heard by High Court.
12 January 2007 Application refused by High Court.
30 January 2007 Notice of appeal lodged on behalf of the Minister.
3 July 2007 Hearing of Appeal by the Supreme Court.
Application for surrender rejected.
25 February 2008 Reserved judgment delivered by Supreme Court.
21 July 2009 Criminal Justice (Miscellaneous Provisions) Act 2009
enacted by the Oireachtas.
25 August 2009 Relevant sections of 2009 Act come into force
(S.I. 330 of 2009).
17 September 2009 Date of issue on face of fourth Warrant.
14 October 2009 Warrant endorsed by High Court.
3 November 2009 Text of 2009 Act published.
10 November 2009 Respondent is arrested.
21 May 2010 Letter from Central Authority, Department of Justice
to Ministry of Justice Hungary “The Respondent claims
that the EAW does not comply with section 11 (1) (g)
(iii) of the EAW Act, 2003 in that it does not set out
the penalties of which the sentence consists of. This
appears to be a reference to the fact that the EAW
does not record that the final 18 months of the three
year sentence were “suspended” (using our
terminology) by the Pest County Court at second
instance.
The variation of sentence at second instance is not
Referred to on the face of the EAW. Please confirm
Whether the sentence was varied at second instance
And whether this is the sentence for which the
Respondent’s surrender is sought?”
14 June 2010 Letter from Ministry of Justice
Hungary to Central Authority “the duration of the
Remaining imprisonment sentence to be served is
3 years.
22 June 2010 Case at hearing in High Court.
23 June 2010 Case at hearing in High Court.
24 June 2010 Case at hearing in High Court.
22 July 2010 Case at hearing in High Court.
11 February 2011 High Court orders surrender of Respondent.
9 March 2011 High Court certifies appeal raises points of law
of importance.
9 November 2011 Respondent surrenders bail.
March 2012 Hearing of Second Appeal to Supreme Court.
Analysis of Chronology.
The extraordinary length of time this case has taken to fail to achieve finality is, in itself and as an aspect of the abuse of process which the appellant claims, one of the salient features of this case. It is important to see how the twelve years which has intervened between the accident and the present state of the case is made up.
From the accident to the trial in Hungary, a period of twenty-five months elapsed (April 2000 to May 2002). From the trial to the issue of the First European Arrest Warrant, a further period of thirty-seven months elapsed (May 2002 to June 2005). From the issue of the Arrest Warrant to the first hearing in the High Court of the application to have Mr. Tobin forcibly deported to Hungary, a period of about eighteen months elapsed (June 2005 to December 2006). The State’s application was dismissed in an ex tempore judgment subsequently reduced to writing. From the hearing in the High Court to the first appeal heard in this Court, a further seven months elapsed (December 2006 to July 2007). The appeal, too, was dismissed at the hearing and reasons were delivered in February 2008. From the dismissal of the State’s appeal to this Court to the coming into force of the new statute upon which the present application is based, a period of twenty-five months elapsed (July 2007 to August 2009). From the enactment of the new law to the second arrest of the applicant, a period of about three months elapsed (August 2009 to November 2009). From the second arrest of the appellant to the hearing of the second application for his surrender in the High Court, a period of about eight months elapsed (November 2009 to June 2010).
From the second High Court hearing of the State’s application to the judgment of the High Court, a period of about seven months elapsed (July 2010 to February 2011).
From the High Court’s certification that the appeal raised a point or points of law of exceptional public importance to the hearing of the appeal in this Court a further period of twelve months elapsed (March 2011 to March 2012).
The total period of time elapsed, as chronicled above, is 145 months, or just over twelve years. To put this in more human terms, during this time the appellant went from being a man of thirty-six to a man of forty-eight and during the whole of that time he had to deal with the trial or one stage or other of the attempts forcibly to deport him to Hungary in being or pending against him. The period represents the bulk of the duration of his marriage, which took place in 1993. It represented all but nine months of the life of his son, and the whole of the life of his daughter. It represents a quarter of the appellant’s entire life and approaching one half of his adult life. His children have spent the entire of their sentient lives under a severe threat that their father, who is greatly involved in their lives, education and recreational activities, would be led away and forcibly deported to what is to them a strange country.
It is difficult to believe that this is not a gravely disturbing experience, that it has not blighted their childhoods, and that it will not sour their recollections of childhood in the future. I hope it may have no worse consequence. But it is totally inconsistent with that sense of security which is an essential for the healthy development of children and which all parents endeavour to provide for their offspring. The authorities in this case have felt obliged to destroy the security of these childrens’ childhood. Perhaps they have good reason for doing so, as they claim.
Responsibility for delay.
None of the enormous lapse of time chronicled above can be laid at the door of the appellant. He was the defendant or respondent at all stages of all of the litigation, whose pace and repetition was dictated at all times by his opponents.
By far the single longest period of delay – forty-four months or just short of four years in aggregate – was caused by the misconceived attempt forcibly to deliver Mr. Tobin on the specious ground that he had fled from Hungary. There was never any evidential support for that proposition. If the State did not know that, such ignorance must be due to negligence of a dramatic sort. If they did know it then they maintained proceedings which they knew to be based on a falsity. While it is possible that some extraordinary degree of inattention, total failure to analyse the facts of the case, or deficient information from the requesting State may have prevented their knowing positively that Mr. Tobin did not flee from Hungary, no such excuse could be available after Mr. Tobins “Points of Opposition” and certainly, after the hearing in the High Court when the evidence established that he did not flee so clearly that the learned High Court Judge (Peart J.) dismissed the application ex tempore. Likewise, the Supreme Court announced its decision to dismiss the appeal at the conclusion of the hearing, reserving the delivery of a reasoned judgment.
On the hearing of this appeal, as stated elsewhere, the State fully acknowledged that Mr. Tobin had been entitled to win Tobin 1. This concession was naturally taken up by Mr. Brian Murray S.C. who said that it meant that “the State had put Tobin through the entire process of the law, including an appeal to this Court, in full knowledge of what the law was”. He further said that they had appealed even after the evidence heard in the High Court must have made it perfectly clear that there was no scope for the contention that Mr. Tobin had “fled” Hungary. Having lost the case, he charged, they “changed the rules and came after him again”.
Mr. Murray pointed specifically to para. 83 of the State’s written submissions on appeal, where the concession referred to above was made, and said with some emphasis and indeed some asperity that the State had not seen fit to say exactly when they had come to the conclusion that the contention they advanced in the High and Supreme Courts was unstatable. Despite the plain challenge to say when that was, the State remained at all times completely silent on the topic.
The attempt to blame the Oireachtas.
What seems to me most remarkable about this aspect of the case is that, in oral argument on the hearing of this appeal, the State (oddly and unprecedentedly) attempted to blame the legislature for the difficulty. The “fled” requirement, they said, “should never have been there in the first place”. It is not necessary or appropriate for this Court to come to any conclusion as to whether that requirement should, or should not, have been in the statute enacted in 2003 but it is plain that the State, like the Court, and like Mr. Tobin, must live with the Act as actually enacted by the Oireachtas. The plain fact is that the Central Authority initiated the proceedings in Tobin 1 fully aware of what the statute said and then, or not long afterwards, became affirmatively aware that there was no evidence whatever to ground the proposition that Mr. Tobin had “fled” from Hungary. The Authorities now accept that this is so but, despite a challenge in the plainest terms, declined to state when they came to that view. No doubt there is good reason for that reticence.
I say that the respondent attempted to blame the legislature for the difficulty which arose because, in the respondent’s submissions, the inclusion of the reference to “fled” in s.10 of the 2003 Act is said to have been included “in error”. The submissions then go on to say:
“It should not have been there in the first place and had the Framework Decision been correctly given effect to in the Act of 2003… the respondent would have been a person in respect of whom an order for surrender had been made.”
It is very important to state that the contents of s.10 of the Act of 2003 were not something which took the authorities by surprise during the hearing of their first application. On the contrary, that provision had been expressly relied upon by Mr. Tobin in his points of objection which he filed in Tobin 1. If the respondent was then of the opinion that an error had been made he could have withdrawn the proceedings and sought, if thought necessary, to amend the law. But he did not do that. The Central Authority persisted with hopeless proceedings and caused great expense to the public and distress to Mr. Tobin.
I am unhappy with the Central Authority’s attribution of this difficulty to an “error” by the legislature. This is discussed in more detail below.
Mr. Tobin, then, in 2005 and following years was confronted with proceedings for his surrender to Hungary which were at all times unstatable, and are now admitted to have been unstatable having regard to s.10 of the 2003 Act. Mr. Tobin contested those proceedings presumably because he, too, was advised that they were fatally flawed. But he did not contest them solely by relying on the absence of evidence to meet the “fled” requirement: he contested the case on other grounds as well including most of the grounds which he deployed in answer to the second proceedings. But neither the High Court nor this Court on appeal conclusively addressed those other issues because, in keeping with long standing practice, both courts decided the case on the first dispositive point, the “fled” issue.
Legal consequences of the foregoing.
It must be said that this case was argued on both sides with great legal erudition, skill, eloquence and intensity. As generally happens in a well argued case, there were important areas of agreement as well as areas of profound difference.
Thus, Mr. Brian Murray S.C., leading counsel for Mr. Tobin, did not contend that the mere fact of the proceedings and the judgments in Tobin 1 constituted a bar to the institution of further proceedings under the European Arrest Warrant Act in respect of the same Hungarian sentence. He did not, in other words, attempt to set up a res judicata. Equally, Mr. Maurice Collins S.C., leading counsel for the Central Authority, did not deny that the result which he sought would be “terribly harsh” on Mr. Tobin and his family. But he said it was required by law and specifically by the State’s international obligations expressed in Irish law by the European Arrest Warrants Act, 2003 as amended. He in effect challenged the Court – and in the circumstances of the case neither the word nor the action were inappropriate – if it was not going to deliver Mr. Tobin forcibly to Hungary on foot of the European Arrest Warrant, to provide a principled basis for declining to do so. He submitted that it was not possible to do that.
In other words, both sides acknowledged that the case was a particularly difficult one. There is no simple solution – no deus ex machina – which would allow a court easily to resolve the matter one way or another, and no precedent directly in point.
The certified questions.
In this case, after Mr. Tobin was unsuccessful in the High Court, that Court, by order of the 10th March, 2011, certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.
The certified questions were:
(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where:
(ii) The first such proceedings failed following a determination by the High Court and the Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the proceedings.
(ii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.
(iii) The warrant on foot of which the second request was made is substantively the same as the first.
(b) Whether the provisions of the European Arrest Warrant Act, 2003 as amended, applied to convictions as imposed in States prior to their accession to the European Union.
(c) Whether s.5 of the 2003 Act as amended requires the Central Authority in establishing correspondence to demonstrate that the offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant discloses a defence under Irish law.
(d) Whether it is in breach of the right to equality under Article 40.1 of the Constitution, and family rights under Article 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act, 2003 as amended for the appellant as an Irish citizen to be extradited to Hungary in circumstances where, not having fled the jurisdiction, it is not possible to serve a sentence of imprisonment in Ireland without returning to Hungary.”
Abuse of Process.
It is fair to say that the bulk of the arguments addressed to the Court by counsel on the hearing of this appeal related to the appellant’s strong contention that the present proceedings against him are an abuse of process. The centrality of this contention was amply indicated in the appellant’s written submissions where, at para. 78, it is stated:
“It is submitted that, in the circumstances where the Minister choose to proceed with the first set of proceedings and to pursue them all the way to a final determination in this Court, in reliance on what is now argued to have been a legislative mistake, it would be an abuse of process to allow him to then initiate a second set of proceedings.”
The submission continued:
“It would be neither fair nor just for the Minister, having erroneously brought and maintained proceedings on foot of s.10, to be entitled to renew his application without adverse consequences or complaint of Mr. Tobin having undergone the anxiety and expense of those proceedings… being deprived of the benefit of the judicial determination he obtained from both the High Court and Supreme Court.”
Contentions of the Parties.
Mr. Tobin says that he was, to his lasting and life changing regret, involved in a traffic accident in Hungary in April, 2000 which caused the death of two children. But he maintains, and has always maintained, that this happened without any criminal act or omission or intent on his part. There was no question of drink or drugs, there was no question of very high speed, even on the prosecution version of events. There was some tentative evidence of vehicle malfunction. Mr. Tobin could not follow this up himself and his requests to the police to do so were not apparently complied with.
Mr. Tobin says he acted perfectly lawfully and in accordance with Hungarian law at all times. He says that he absented himself from the trial in Hungary in the belief that his evidence and that of his passengers provided by way of evidential statement to the Hungarian police, would be before the Court. But it was not, and the finding of the Court, set out above, demonstrates that his explanation was ignored as inadmissible.
Having perfectly legally returned openly to Ireland, he was three years later arrested, lodged in prison and had his release on bail opposed by the State (though he was in the result granted bail over the State objections).
He says that the first set of proceedings, Tobin 1, which took almost four years from start to finish were based on a proposition for which there was never any evidence – that he had “fled” from Hungary. He relies strongly on the fact that the authorities now themselves concede that they were never entitled to succeed in those proceedings. He points to the fact that they have declined to say when they became aware that they were never entitled to succeed in those proceedings, and have persisted in that significant reticence up to today.
He points to his extreme relief, and that of his family, at the successful outcome of Tobin 1. He complains that the State, quite undeterred, took two years to bring about a change in the law and then simply started all over again to seek his surrender to Hungary. He points to the extreme insecurity, anxiety and terror this has caused to him and his family. In more legal terms, he complains that this step is a mockery of his right to equality, specifically “equality of arms” since, if he had lost Tobin 1 he could not have procured a change in the law and demanded a replay. He also complains that what the State have done radically offends the notion of legal finality. He points to the extraordinary length of time that the various proceedings have taken and says that it offends his rights under the Irish Constitution and under the European Convention on Human Right. He refers to the considerable body of Irish case law on delay and to the terms of Article 6(1) of the European Convention as follows:
“In the determination of his civil rights and obligations all of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.
(Emphasis supplied)
Mr. Tobin emphasises that, in order to protect his family and his employment (and without in any way acknowledging the justice of his conviction or sentence in Hungary), he actually offered to serve the sentence imposed on him in an Irish jail. But it transpired that, precisely because he had not “fled” Hungary this was not possible. When the State launched their second attempt, and were successful in the High Court, Mr. Tobin took the radical step of surrendering his bail and going into custody, in the hope or expectation that this period of incarceration would be taken into account in reduction of the time he would have to serve away from his family and in the (to him) strange and apparently hostile Hungarian environment if he is unsuccessful. He has been in jail since November last.
The State, on the other hand, stoutly maintain the proposition, firstly, that Mr. Tobin cannot be heard to complain about irregularity or unfairness in the Hungarian proceedings. They say that, because Hungary is a party to the European Arrest Warrant system it is to be presumed that their proceedings were fair and regular. Secondly, they say that Tobin 1 has absolutely no effect on the State’s ability to take further proceedings aimed at securing Mr. Tobin’s surrender to Hungary. They claim to be entitled to proceed as if Tobin 1 had never happened. They strongly maintain, relying on certain authorities mentioned below, that an extradition or rendition application is a procedural matter only and gives rise to no vested rights in a person who is successful in resisting such an application against him. Alternatively, they say, if such a victory does give rise to a vested right, that right is only a right not to be forcibly rendered to another country while the law which enabled one to win remains unchanged. The State does not deny the distress, grief, fear and insecurity caused to Mr. Tobin and his family but says it is legally irrelevant. Such emotions arise in every case that leads to imprisonment, they say.
The authorities very strongly and intensely argued against the application of the abuse of process doctrine to cases under the European Arrest Warrant system. Specifically, they said that “a wide ranging abuse of process jurisdiction” was difficult to reconcile with the provisions of the Framework Decision and the European Arrest Warrant Act. Mr. Maurice Collins strongly argued that no principle had been enunciated which could reconcile the exercise of an abuse of process jurisdiction with the appellant’s acknowledgement that there was no res judicata.
It is difficult to convey in a written judgment the deep and insistent intensity with which this point was argued.
Continuing, Mr. Collins said that the abuse of process argument was no more than a generalised (and legally unprincipled) assertion of ordinary unfairness. He approached making a “floodgates” argument, saying that to apply a doctrine of non-specific unfairness would risk introducing an element of uncertainty which is inconsistent with the requirement that the law should be of general application intelligible and predictable.
This latter point could be urged against the application of the abuse of process jurisdiction in any area of the law. First, as we shall see, it is well established not least in the area of commercial law. Nor, with respect, is there any question of the institution of “a wide ranging abuse of process jurisdiction”. Though recent cases clearly establish the existence of the jurisdiction and its actual use across wide variety of legal contexts, the number of applications is not large and the grounds on which the abuse of process jurisdiction can be invoked are the reverse of common or wide ranging. The authorities are considered below, and that of Bolger v. O’Toole appears clearly to have acknowledged the existence of the jurisdiction in an extradition context. The case of Johnson v.
Gore Wood, discussed below, shows clearly that “… there will rarely be a finding of abuse unless the later proceedings involve what the Courts regard as unjust harassment of a party”.
It is, I hope, not unreasonable to expect that cases where unjust harassment by a public authority can plausibly be argued will be few and far between. A jurisdiction whose exercise involves the demonstration of this rarity cannot be described as “wide ranging”. I did not understand Mr. Collins to contend for the proposition that in no circumstances whatever could the abuse of process jurisdiction be exercised in the context of a European Arrest Warrant but, if that were contended I would reject it on the grounds that this is an essential jurisdiction for the Courts to maintain at their disposal to deal with rare, but not inconceivable or unheard of, cases. It would in any event be difficult for the State to contend that no abuse of process jurisdiction whatever existed in this area because one of the cases upon which they place prime reliance specifically acknowledges the existence of this jurisdiction in Extradition cases.
The State, as we have seen, does not deny that the present proceedings, especially if they have the result intended by the Central Authority, are “terribly harsh” on Mr. Tobin and his family. But this, they say, does not entitle him to relief. He was successful in Tobin 1, according to the State, only because the legislature had quite wrongly inserted into the European Arrest Warrant Act, 2003 a provision which should never have been there (according to the State). Now that this has been removed the Central Authority is entitled again to seek Mr. Tobin’s surrender from the State, notwithstanding all that has gone on over the past one hundred and forty five months, or twelve years. There is no statute of limitations applying to applications of this sort, the State assets.
Before discussing the legal authorities on these issues it may be as well to reiterate that three years and eight months of the time elapsed was devoted to the initiation and hearing of the Tobin 1 proceedings, to include appeal. Thirty-seven months, or three years and one month, elapsed between the trial in Hungary and the issue of the first European Arrest Warrant. Twenty-five months or two years and one month elapsed between this Court’s decision in Tobin 1 and the publication of the new law under which Mr. Tobin is now pursued.
Authorities.
(i) Is abuse of Process available?
The principal authority relied upon by the State for the proposition that the dismissal of proceedings in the nature of extradition proceedings is no bar to the bringing of another such application is Bolger v. O’Toole (Supreme Court, unreported, 2nd December, 2002).
In that case, the applicant, Mr. Bolger had been successful in the District Court in defeating an application for his extradition to England. This was because, in the words of the ex tempore judgment of Denham J. (as she then was) “technical issues were raised successfully in relation to the original set of warrants”. A new set of warrants subsequently issued and Denham J. held:
“There is now a new set of warrants for consideration by the Courts. The applicant may also raise wider issues, as he is entitled to. I am not satisfied that the case law submitted by counsel for the applicant, such as Henderson v. Henderson advance his case on the res judicata issue. As to the issue of delay, that was not a matter on the judicial review nor was it considered in the High Court. Consequently it is not a matter for consideration on this appeal”.
Amplifying this, the learned judge said:
“The warrants are new and any issues which may be raised will be different. The fact that the applicant was discharged by the District Court on foot of a previous set of warrants where there two errors does not exclude a fresh set of warrants being produced and being endorsed. New warrants which have been endorsed now arise to be considered by the District Court. It is for the District Court to exercise its jurisdiction under the Extradition Act, 1965 as amended. The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of a case, a court may determine that an application for rendition should be refused. Thus, if it were an abuse of process the application may fail. In this case the applicant has been refused the leave to make a specific application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the legislation as well as the Constitution, are separate issues which may be raised. However these matters are not before this Court.”
(Emphasis supplied)
It thus appears that the case of Bolger v. O’Toole held only that the dismissal on “technical” grounds of an application for extradition under the 1965 Act, did not create a res judicata. Apart from this, the case is manifestly distinguishable from the present one because there was in Bolger no question of a new statutory provision, but simply of new warrants with technical defects corrected. As mentioned above, Mr. Tobin in this case does not rely on res judicata, but, primarily, on abuse of process. The passage emphasised in the longer citation above from the judgment of Denham J. specifically preserves the right to seek to defeat surrender on the ground of abuse of process, or delay.
In view of the lengths of time mentioned in the chronology of this case, set out above, it is rather ironic to consider the last paragraph of the judgment of Denham J. in Bolger. It is as follows:
“I would like to voice concern at the delay which has occurred between the granting of leave by the High Court on the 8th November, 1998, the judgment of the High Court on the 8th June, 2000 and the appeal from that order which has been made to this Court today”.
It would be observed that the total period described by Denham J. was of two years and one month. The time elapsed in this case extends for over twelve years, about six times as long.
Although United Kingdom authorities are not of course binding on this Court, it appears to me that the legal position which emerged have after the Bolger case is not dissimilar to that obtaining in the neighbouring jurisdiction. The issue was considered in the Court of Appeal for England and Wales in Office of the Prosecutor General of Turin v. Franco Barone [2010] EWHC 3004. There, addressing much the same issue, Lord Justice Moses said, at para. 29:
“I quite accept that the mere fact that a previous request for extradition… had failed is not of itself a basis for refusing a fresh request for surrender, as it might be more accurately described, under the new regime. It is possible to envisage just the same circumstances as occurred in Kashamu, in which a request failed for non-disclosure but was repeated under the new regime. But it does not follow that the previous consideration of the Court of the requested State is irrelevant.”
In that case, Lord Justice Moses discounted a complaint of delay on the grounds that the bulk of it had been brought about by the requested person, by his action in escaping from prison. The State, he said, had done nothing to foster the view that he was safe from extradition. The contrast with this case, where a much longer delay took place wholly without any fault on the part of the applicant, and where a request for his surrender was rejected by the Supreme Court, is an obvious one.
(ii) Was there an abuse of process?
Abuse of process is a many headed concept whose manifestations range from the deliberate maintenance of legal proceedings without of probable cause as in Dorene v. Suedes [1982] ILRM 126 to a ham fisted or unthought out conduct of litigation, particularly by making two or more actions where one would do, which tends to oppress the other party and to cause him expense and/or distress.
In recent years, the case of Henderson v. Henderson (1843) 3 Hare 100, has enjoyed a remarkable revival, and has probably been more cited in the past two decades than in the years immediately following its delivery. Thus, in AA v. the Medical Council [2003] 4 IR 302, an action by a doctor against the Medical Council seeking to prevent an inquiry into his conduct was dismissed on the ground that the doctor was now seeking to bring forward a point which he could have raised in previous litigation which he had undertaken against the Medical Council in relation to the same inquiry.
In that case the Court extensively discussed Henderson v. Henderson abuse of process and the principles which underlie it. There is an extensive citation from the English case of Johnson v. Gore Wood and Company [2002] 2 AC 1. The judgment is that of the late Lord Bingham, successively Lord Chief Justice and Senior Law Lord in the neighbouring jurisdiction. He said:
“Henderson v. Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter.”
Lord Bingham also said:
“I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involve what the Court regards as unjust harassment of a party”.
In another English case from the same era, Woodhouse v. Consignia PLC [2002] 1 WLR 2258, Lord Justice Brooke discussed the concept of abuse of process in the following terms:
“… at least as important is the general need, in the interests of justice, to protect the respondents to successive applications in such circumstances from oppression. The rationale for the rule in Henderson v. Henderson … is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”.
Similarly, in Gairy v. Attorney General of Granada [2002] 1 AC 167, speaking of the principle in Henderson and its offshoots Lord Bingham said, at p. 181 “these are rules of justice intended to protect a party… against oppressive and vexatious litigation”.
In my judgment in AA I refer to the assistance I had derived from an illuminating article by Mr. Justice Handley of the Court of Appeal in New South Wales, A closer look at Henderson v. Henderson (2002) 118 LQR 397. I also made the general observation that:
“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion”.
I reiterate that. In this case it cuts both ways, so to speak. It is well established that the dismissal on “technical grounds” of an application for extradition does not constitute a res judicata, so as to prevent a second application in respect of the same offence. But equally, it cannot be said that that is the whole story: as Bolger itself indicates, the question of whether or not there has been an abuse of process in an individual case remains open as does the possibility of claiming relief on the ground of delay. In a suitable case delay or sheer lapse of time may be part of what goes to make up an abuse of process.
Subsequent to the decision in AA v. The Medical Council, Henderson and Henderson principles, as subsequently interpreted, were applied in the context of an ex parte application. There are various dicta of great significance for the present case in the judgments in In Re Vantive Holdings [2009] 2 IR 118.
The context of Vantive was an application to appoint an Examiner to a company pursuant to the Companies Act, 1990. This application was made in the High Court, refused there, and appealed to the Supreme Court where the appeal was dismissed. Very shortly afterwards the petitioner sought to present a second petition to the High Court which provided a good deal of information which was not presented on the first occasion. The High Court allowed the presentation of the second petition but an affected bank appealed this to the Supreme Court. The Supreme Court noted that the Act did not prohibit the presentation of a second petition for the appointment of an Examiner. The judgments referred to the rule in Henderson v. Henderson as applying to proceedings between parties and pointed to the distinction which arose in the case of an ex parte application: the protection of a party from being harassed by successive legal proceedings does not arise in that context. However, Murray C.J. continued, at para. 24:
“Nonetheless there still remains the inherent jurisdiction of the Court to protect the integrity of the due process of the administration of justice and the finality, in principle, of a judicial decision.
Underlying the rule in Henderson v. Henderson is the policy of the need to protect the due and proper administration of justice from an abuse of process and to uphold the principle of finality in legal proceedings”.
Murray C.J. went on to cite the passage I have cited above from Johnson v. Gore Wood. He also cited from In Re Greendale Developments Limited [2000] 2 IR 514 the dictum of Hamilton C.J.:
“… the finality of proceedings both at the level of trial and possibly more particularly at the level of ultimate appeal is of fundamental importance to the certainty of the administration of law, and should not lightly be breached”.
Murray C.J. concluded that in the circumstances the bringing of the second petition “… constitutes an abuse of the process in relation to the appointment of examiners under the Act of 1990 and prima facie is a bar to the second petition proceeding”. (para. 30)
In her concurring judgment, Denham J. (as she then was) said at para. 89:
“There are exceptional circumstances, in the interests of justice, where a matter may be revisited. But the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is the party should not be exposed to multiple litigation and should have closure on an issue. Also there is the public interest that the limited resources of the Courts should be used justly and with economy.” (Emphasis supplied)
Expanding this, she continued:
“The interests of justice require that there be finality of litigation. If a petitioner were entitled to make a second or further petition on the general ‘overriding consideration’ of legislative policy, as referred to previously, it would commence an era where multiple petitions would become the norm. A petitioner could the regard a primary petition as a stalking ground for advice on proofs from the Court. Clearly this was not envisaged by the legislation, nor is it consistent with fundamental principles of law”. (para. 92)
The significance of Vantive is that it is an example of the application of the principles underlying the decision in Henderson, and the cases which followed it, and which were grounded on the need to protect defendants from multiple litigation, to a situation where the litigation in question was being conducted ex parte, so that there was no defendant or respondent to be protected. It was done in the interest of the integrity of the Court process, and in the interest of the need for finality in litigation, so that the litigants could have “closure” as Denham J. put it.
Since this principle applies in the interests of limited companies, their creditors, of statutory corporations and other non-human legal persons, I would consider that it applies a fortiori to a natural (as opposed to an artificial) person with all the feelings, vulnerabilities, and rights which attach to his status as a human person.
Finally, and in the specific context of proceedings under the European Arrest Warrant, I wish to refer to the recent English authority, Hamburg Public Prosecutors Office v. Altun [2011] EWHC 397. This was a case where rendition was refused on the grounds of double jeopardy. This had been raised by the defendant and it was for him to establish it. The prosecutor said that he was unable to rebut the defendant’s contentions at the time, and therefore did not oppose discharge, but reserved the right to issue a further European Arrest Warrant when it was in a better position to proceed. The United Kingdom Courts again refused to deliver the person on the ground of double jeopardy.
On appeal, Ouseley J. said:
“If [the double jeopardy point were] good as a point it was a complete bar to extradition and no fresh warrant could alter that. Only further evidence from the prosecutor could alter the decision. The issue was ruled on: the prosecutor did not take the step of withdrawing the warrant or trying to obtain a further adjournment to await what he hoped would be better evidence in due course. The prosecutor should have brought forward all the evidence which he relied on to defeat the defendant’s case; the case was bound to succeed on the then available material. It was for the prosecutor to make sure that he had what he needed when he instituted and continued to finality those proceedings on the European Arrest Warrant. It was after all his choice to bring the proceedings when he did. It was not open to him thereafter to issue a fresh warrant relying on new evidence to counter the defendant’s case on double jeopardy, even if that evidence was not to hand when the first warrant was discharged”.
The circumstances of that case are very different to the present one. But a number of the considerations mentioned by the learned judge are directly relevant. In particular I would refer to the statement that:
“It was for the prosecutor to make sure he had what he needed when he instituted and continued to finality [the first proceedings]. It was after all his choice to bring the proceedings when he did”.
In the present case, too, it was the applicant’s decision to institute the proceedings when they were in fact instituted, and instituted in full knowledge of the state of Irish Statute Law at that time.
I wish to emphasise certain phrases from the cases just cited, firstly the reference in Johnson v. Gore Wood, to “the underlying public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter”. Secondly, the fact that it is unnecessary “before abuse may be found, to identify any additional element such as collateral attack on a previous decision, or some dishonesty…”. Thirdly, to the need “to protect the respondents to successive applications… from oppression” and fourthly, the emphasis on the desirability “… that litigation should not drag on forever and that a defendant should not be oppressed by successive suits where one would do”, and the important legal value of “finality”, so as to provide “closure” for the parties.
It appears, therefore, to be well established that abuse of process of the sort alleged here is separate and distinct from res judicata, which is not relied upon in the circumstances of this case. It is, instead, a separate but conceptually related weapon in the armoury of the Courts to protect a litigant from oppression or harassment, to use two of the words employed in the cases. It is necessary that the Court should have such powers, over and above the strict rules of res judicata, because the right to be free of harassment and vexatious litigation, and to fair procedures and equality of arms in litigation, are rights of a Constitutional nature and arise fundamentally from respect for the dignity of the human person. It is salutary to recall the important if general words spoken in this Court by
Ó Dálaigh C.J. in The State (Quinn) v. Ryan [1965] IR 70, at 122:
“It was not the intention of the Constitution in safeguarding the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of these rights. As a necessary corollary that follows no-one can within impunity set those rights at nought or circumvent them, and that the Courts powers in this regard are as ample as the defence of the Constitution requires”.
A specific application of those principles arose in The State (O’Callaghan v. h-Úadhaigh [1977] IR 42. There, Finlay P. (as he then was) was dealing with a case of a defendant who, as a result of an application for a direction at the end of his criminal trial in the Central Criminal Court, was about to succeed in relation to all but one of the numerous charges against him. This was clear from the learned trial judge’s expression of his view of the law. In that situation, the State entered a nolle prosequi bringing the trial to an end, and subsequently sought to prosecute O’Callaghan again on the same charges, hoping for a new trial before a different judge where it might be possible to avoid the consequences of the learned trial judge’s view of the law. It would have been possible to deal with that case on a purely technical basis related to the requirements for the entry of a nolle prosequi but Finlay P. addressed the issue in principle, as follows:
“If the contention of the [State] is correct, the [defendant] having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of the statutory power on the part of the Director of Public Prosecutions. In that way, the [defendant] would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting a different procedure, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise than by an appeal…
It seems to me that so to interpret the provisions of s.12 of the Act of 1924 as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law that would singly have failed to import fairness and fair procedures”.
I regard this as an illuminating passage and would very respectfully adopt what was said by the learned judge. I would particularly emphasise his invocation of the concepts of “an extraordinary imbalance between the rights and the powers of the prosecution and those of the accused respectively”; to the necessity to avoid such an imbalance in order to ensure fairness and fair procedure. I would also adopt the emphasis on the need for parties to litigation to be in a position of equality one with the other. This is the concept referred to in the jurisprudence of the European Court on Human Rights as “egalité des armes”. It is important to bear in mind that here, too, Mr. Tobin would have no right to demand a rehearing, still less a change in the law, if he had been displeased with the result of Tobin 1.
In the cases cited above, the beneficiaries of a rule against vexatious litigation were all limited companies, Banks or statutory bodies, such as the Medical Council. In those civil cases, accordingly, the beneficiaries were all legal persons who might suffer inconvenience or expense and also, perhaps, uncertainty in their ability to carry out their functions, but could not of their nature suffer deep emotional distress, anxiety or terror, fear for family or a near relation, fear of loss of employment and other emotions which are peculiar to human persons. Emotions of this latter sort are, of course, cognisable by the law but have in fact been recognised largely in criminal cases. The policy basis for a rule against double jeopardy in such cases is in my view best expressed in an American case from 1957, Green v. United States (1957) 355 US 184.
Having described the rule, Mr. Justice Black continued, at pp 187-188:
“The underlying idea, one that is deeply engrained in at least the Anglo-American system of jurisprudence is that the State, with all its resources and power, should not be allowed to make repeated efforts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty”.
The Green case concerned criminal trials and the other cases cited above related to civil actions or applications. This present proceeding is, strictly speaking, neither a civil action nor a criminal trial. In its incidents however, it is much more closely akin to a criminal than to a civil proceeding. A person whose surrender is sought is arrested and lodged in prison and if he obtains his liberty on an interlocutory basis, it will be on bail. If unsuccessful, he will be committed to prison to await his involuntary departure to the requesting State and, if so rendered, he will be imprisoned. In the course of the argument on the present appeal Mr. Murray S.C. stressed that this case – Tobin 2 – was unique even amongst European Arrest Warrant cases, but it too is of course more closely akin to a criminal than to a civil proceeding.
Accordingly, and on the basis of Green, I would add to the list of topics and values to be considered in assessing whether a particular proceeding is an abuse of process the following: the massive disparity of resources and power between the State and an individual and the vulnerability of the individual and his family to embarrassment and expense; their vulnerability to “ordeal”; and the need to avoid “compelling him [and them] to live in a state of continuing anxiety and insecurity”, and instead to provide “closure” in the phrase of Denham J.
Application to the present case.
In my view, all of the considerations mentioned above are relevant to the present case. I refer particularly to the proposition that there should be finality in litigation and that a party should not be vexed twice in the same matter; that it is an abuse to subject a party to unjust harassment; that the appellant must therefore be protected from oppression; that it is important in the public interest, as well as that of the parties, that litigation should not drag on for ever; and that a defendant should not be oppressed by successive suits where one would do. Similarly, I agree that these rules are rules of justice. They arise with particular force where there is a gross disparity in resources and powers between litigants; this is seen in this case with particular force because the State waged unending litigation from a bottomless purse whereas the appellant had to fund himself. Similarly, and for the reasons set out above, I believe that the term “ordeal” is entirely apt to describe what the appellant and his family have been put through in the years since 2000, and since 2004 in particular, and that the least part of this ordeal is the embarrassment and expense to which the appellant has been put. It is, in my view, quite understandable that, after winning Tobin 1, the appellant though living in a supportive community in South County Meath, decided to move to Dublin in an attempt to provide a fresh start for his family in a new environment and to re-assure his very elderly mother who lived nearby. It requires little imagination to think of the reaction of these people to his re-arrest in 2009. It requires no imagination at all to imagine the insecurity which this caused to children of ten and nine years respectively at the time, and the unhappiness caused to the adult members of the family on that account. They were indeed, in my judgement, “compelled to live in a continuing state of anxiety and insecurity”, as it was phrased in Green v. United States above.
It is of course true to say that the operations of the law often cause distress and anxiety, not least to people who are not themselves the subject of proceedings but whose sense of family, of security, and even of basic material support, may be destroyed by the operation especially of the criminal law. In many instances, that simply cannot be helped, as Mr. Collins correctly said.
But it could have been helped in this case. There was absolutely no compulsion on the Central Authority to initiate proceedings in 2005. Any consideration of those proceedings by a competent lawyer would have led to the conclusion, which is now accepted, that they were doomed to fail. The attitude of the authorities was grounded, at best, on a failure properly to consider the case. This has caused enormous and uncompensatable “ordeal” to Mr. Tobin and his family, and is completely inconsistent with the proposition that there should be a finality in litigation. The notion that the State should be able to bring about a change in the law and simply start again as though nothing had happened is one that I regard with abhorrence. It is a negation of the notion of legal finality, and of a right to “closure”.
Judges are quite used to a situation in which, by reason of the provisions of a statute, or of binding authority, one has to decide a case contrary to one’s own intuitions of justice. Mr. Justice Scalia of the United States Supreme Court has remarked that a judge who takes his oath seriously will find himself deciding against his own preferences in a significant proportion of cases. An example of this was the case of
D.P.P. v. Esther Cullen (Court of Criminal Appeal, unreported, 15th October, 2007) where it was necessary to uphold a sentence (the “mandatory minimum sentence”) of ten years imprisonment pursuant to s.15A of the mis-use of Drugs Act on a middle aged grandmother without previous convictions, even though the sentence seemed harsh, and “much in excess of what the Court would expect to see if the ordinary principles of sentencing were applied…”. In such circumstances one can only reflect that no doubt the legislature had some competing and superior intuitions of justice in providing as it did.
But this case is in different category. Firstly, it is an entirely unique case without precedent in this country. Secondly, it manifestly occupied a period of time which is on any view excessive. Thirdly, when the reasons for this immensely prolonged course are examined they turn out to be wholly the responsibility of the applicant for Mr. Tobin’s surrender to Hungary. The circumstances in which very lengthy proceedings were launched and continued, which are now agreed to have been unstateable having regard to the term of the Act, have not in my view been fully explained. I am sure that the authorities are not motivated by any form of personal spite or ill will against Mr. Tobin. But I cannot acquit them of a desire to be seen to be almost slavish in conforming with the obligations of a subscriber to the Framework Document, and a member of the European Union, as they conceive them to be. It is this attitude, it appears to me, that has rendered them willing to extradite or deliver Irish people, or people who happen to be in Ireland, to other countries who would not deliver their own citizens if the positions were reversed. It has also rendered them gravely insensitive to the human rights of a person in the position of Mr. Tobin and his family. I consider that these latter have been unfairly and largely unnecessarily subjected to oppression and “ordeal”, that the principal reason for this – the institution and maintenance of the Tobin 1 proceedings – has never been satisfactorily explained. These present proceedings are, in my view, an abuse of process and I would decline to order the surrender of Mr. Tobin to Hungary on that account.
The application of the 2009 Act.
It was agreed that this issue turned on the interpretation of s.27 of the Interpretation Act, 2005. Insofar as relevant to this provision it states:
“(1) Where an enactment is repealed the repeal does not
…
(c) affect any right privilege obligation or liability acquired, accrued or incurred under the enactment…
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right privilege obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment.
But s.4 of the same Act provides:
“(1) A provision of this Act applies to an enactment except insofar as the contrary intention appears in this Act, in the enactment itself or, where relevant, in the Act under which the enactment is made”.
In the present case, I agree that it can properly be said that the outcome of the Tobin 1 proceedings was to confer or create a right, being a right not to be extradited or surrendered to Hungary so long as Irish law retained the “fled” provision. That was a right, as opposed to a privilege or immunity. It is quite different from a right never to be forcibly rendered to Hungary, despite changes in the law: the contrary was not contended. I have read the ample discussion on this point contained in the judgment of O’Donnell J. and I agree with it.
Once the effect of Tobin 1 is established as having been to create a right, however limited or transitory, the provisions of the Interpretation Act, 2005 are of decisive importance. There is no doubt that the effect of the 2009 Act is to permit, in a future case, even a person who has not “fled” to be sent back to a jurisdiction in the position of Hungary in this case. But in relation to Mr. Tobin, who had, prior to the 2009 Act, acquired a right on the sort specified above, s.27(1)(c) of the 2005 Act provides a presumption that this right is not interfered with by new legislation.
In the course of argument on this appeal it became clear that s.6(c)(ii) of the 2009 Act was a specific response to the judgment of this Court in Tobin 1. Mr. Collins S.C. for the authorities was specifically asked whether the amendment was targeted at Mr. Tobin and he rejected that proposition. Accordingly, the provision is of general application in both wording and intent so that the section mentioned does not contain any clear expression of intention to remove the specific right acquired by Mr. Tobin. But that is what it would have to do in order to disapply the presumption contained in s.27 on the basis of the general provisions of s.4.
Accordingly, I consider that the amending statute of 2009 does not have the effect of removing the right vested in Mr. Tobin as a result of the decision in Tobin 1. In this regard I agree generally with the reasoning of O’Donnell J.
I am unhappy with the Central Authority’s blaming the difficulty which arose due to the Tobin 1 proceedings on the legislature at all. Subject only to the provisions of the Constitution, the legislature is entitled to legislate as it thinks fit. It is not for any outside body to criticise them for doing this. The Central Authority may wish they had legislated in a different way but that is not a ground of criticism. The Central Authority, like every citizen, including Mr. Tobin, is bound by the legislation as it is or was until repealed or amended. Moreover, the concept of “fleeing” is not one the legislature drew out of thin air. It is specifically referred to in the Tampere conclusions, which preceded the Framework Document on the European Arrest Warrant.
Just as Mr. Tobin cannot complain that Ireland decided to implement the European Arrest Warrant system in 2003, so the Central Authority cannot complain of the terms in which the Oireachtas enacted the Statute. But the central feature is that the Central Authority knew precisely the terms of the Statute when it instituted the proceedings in Tobin 1 and appears to me to have known, not later than the time when Mr. Tobin filed his points of objection, that those proceedings were greatly flawed.
Section 37 Objection.
As set out above, this appeal raised various issues other than those disposed of in the preceding parts of this judgment. Since the issues on which I have reached conclusions are sufficient to dispose of the case, I do not propose to express any opinion on the balance of the issues. However I propose to make an observation about one such issue.
On the hearing of this appeal, Mr. David Keane S.C., who was with Mr. Murray, advanced a number of arguments to the effect that Mr. Tobin should not be surrendered by reason of the provisions of s.37 of the 2003 Act. This, insofar as relevant provides:
“37(1) A person shall not be surrendered under this Act if
(a) his or her surrender would be incompatible with the State’s obligations under
(i) The Convention, or
(ii) The Protocols to the Convention,
(b) His or her surrender could constitute a contravention of any provision of the Constitution…”.
Under this heading, Mr. Keane advanced various alleged deficiencies in the procedures relating to the investigation and trial of Mr. Tobin in Hungary. Prominent amongst these were the exclusion from evidence of the statements of Mr. Tobin and his passengers, on the ground that they had been translated by Ms. Káta Soós, daughter of Dr. Tibor Soós, a lawyer who was advising Mr. Tobin on certain complaints about the examination or non-examination in particular respects of the vehicle involved in the accident.
I wish to say only that, if the issues resolved in favour of Mr. Tobin in this judgment had been resolved against him, I might well have felt it necessary to look into these complaints. It is, of course, entirely possible that the alleged deficiencies could be fully explained. It must also be emphasised that the Court has before it only Mr. Tobin’s account of these matters because the applicant has not filed or procured any affidavit contradicting or disputing what he says.
But I do not presently consider that any consideration arises along the lines of “mutual trust and confidence” on the basis of Hungary now subscribing to the European Arrest Warrant system or being a member of the European Union (it was not such a member at the time of the accident) to exclude such enquiry. The fact is that I (and, as far as I know, the same applies to all Irish lawyers) know nothing whatever about Hungarian law, and nothing about the manner in which it is implemented and practised, anymore than one would expect an Hungarian lawyer to have any real or useful knowledge of Irish law. In those circumstances, where a complaint is made which appears to call for comment from the opposing party, it should be enquired into. There is in my view at present no basis for prescinding from this exercise on the basis of an entirely notional respect and confidence which in practice co-exists with an absolute ignorance of the system involved. But I reserve a definitive resolution of this issue to a case where it necessarily arises.
Conclusion.
For the reasons set out in this judgment, I would decline to order the delivery of Mr. Tobin to Hungary on the grounds that:
(a) Neither in the European Arrest Warrant grounding the present application, nor anywhere else, has the requesting State complied with the mandatory terms of s.11(1)(f)(iii) of the Act. Insofar as the affidavit of Dr. Klara Nemeth-Bokor, and the same person’s letter on the 14th June, 2010 are in the nature of “separate documents” which may compensate for the deficiency in the European Arrest Warrant, I find that these documents are contradictory and inconsistent one with the other. I am gravely concerned that the reference to release after eighteen months, which was in the Third European Arrest Warrant, has vanished from the Fourth such Warrant. In the result, I simply do not know the length of the sentence which we are asked to surrender Mr. Tobin to serve.
(b) By reason of the provisions of s.27 of the Interpretation Act, 2005, I consider that Mr. Tobin is entitled to the benefit of our presumption that the amending statute of 2009 does not disturb the right vested in him as the result of the decision of the High Court and of this Court in Tobin 1. I do not consider that s.4 of the Act of 2005 operates to displace this presumption in the present case. In this regard, I agree with the judgment of O’Donnell J. in this case.
(c) For the reasons given above I consider that this second application, which came before us some twelve years after the accident to which the sentence relates, is an abuse of process. I therefore consider that it would be unjust to deliver Mr. Tobin to Hungary.
JUDGMENT of Mr. Justice Fennelly delivered the 19th day of June, 2012.
1. I write this short concurring judgment in order to express my agreement with the judgment of Hardiman J that this Court should decline to order the surrender of the appellant to Hungary on the grounds of abuse of process. I explain that I do so because of the unique history of the case and that I do not share all the reasoning of Hardiman J.
2. This is a tragic case. It originates in a traffic accident when two children met their untimely deaths by being hit by a motor car which was being driven by the appellant. The appellant was convicted by a Hungarian Court of an offence under the law of that country.
3. It is also a unique case in the short history of the European Arrest Warrant in Ireland. The appellant successfully resisted his surrender under a warrant by a judgment of this Court interpreting the Irish law which implemented the Framework Decision. The law was changed in response to that decision and a fresh warrant was issued by a Hungarian judicial authority.
4. In my judgment in the earlier case of Minister for Justice, Equality and Law Reform v Tobin [2008] 4 IR 42 (“Tobin 1”), at page 68, I described the judgment of the Hungarian court as “detailed and meticulous.” The other members of the Court agreed with that judgment. In my view it is not open to this Court to go behind that judgment or to question its correctness. While the appellant criticises the refusal of the Hungarian court to admit his statements and those of his witnesses by reason of what certainly appears to us to be an unusual procedure, it has to be remembered in considering any question of the fairness of the procedures of the Hungarian court, that the appellant, having been permitted by the Hungarian court to leave Hungary, voluntarily decided not to return to that jurisdiction for his trial and chose to be represented by a lawyer. I have to say that I respectfully dissent from those parts of the judgment of Hardiman J which criticise the Hungarian court and suggest that the appellant was not guilty of any offence. That is not a matter for this Court. Murray C.J., in delivering judgment in Minister for Justice, Equality and Law reform v Brennan [2007] 3 IR 732 at page 741 observed:
“The manner, procedure and mechanisms according to which fundamental rights are protected in different countries will vary according to national laws and constitutional traditions. The checks and balances in national systems may vary even though they may have the same objective, such as ensuring a fair trial. There may be few, if any, legal systems which wholly comply with the precise exigencies of our Constitution with regard to these matters.”
4. He accepted that the courts have “jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights.” He added that: “There may well be egregious circumstances, such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights.” In my view the present case goes nowhere near establishing such circumstances.
5. However, I agree with Hardiman J that the Court should, in the unique circumstances of this case, decline to surrender the appellant to Hungary on the ground of abuse of process. The essence of the abuse of process alleged is encapsulated in the following question raised by the certificate from the learned High Court judge:
“(a) Whether it is an abuse of process and/or contrary to articles 6, 34 and/or 37 of the Constitution or otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where:
(ii) The first such proceedings failed following a determination by the High Court and the Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the proceedings.
(iii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.
(iv) The warrant on foot of which the second request was made is substantively the same as the first.
6. As Hardiman J says in his judgment, this is an entirely unique case without precedent in this country. The surrender of the appellant was legitimately sought by the Hungarian judicial authority on foot of a European Arrest Warrant. Hungary was not responsible for the fact that there was included in the Irish Act implementing the Framework Decision a requirement that the person whose surrender was sought should have “fled” the issuing state. That legal provision was the responsibility of this State. Counsel for the appellant strongly criticised the Minister, as Central Authority, for putting the appellant through the entire legal process of enforcing the Warrant before the High Court but especially for pursuing an appeal before this Court. Indeed particular emphasis was placed on the latter point. Hindsight is, of course, always perfect. Legal decisions carry the weight of unquestioned authority once they have been pronounced. I am not sure that I can share the heavy criticism of the State authorities expressed throughout the judgment of Hardiman J for pursuing the first warrant at least to the High Court. What was the State to do? Could it simply have informed the Hungarian judicial authority that Ireland had implemented the Framework Decision in a manner which precluded surrender where the person had not “fled?” That would have amounted to a breach of an elementary obligation under international law, where there was no suggestion that the warrant had not been properly issued.
7. Whatever about that, the resulting position was extremely unfortunate, to use no stronger expression, so far as the appellant was concerned. The State’s pursuit of the matter on appeal exposed him to additional and, as it turned out, unnecessary hardship, expense and distress.
8. Following the decision of this Court, the appellant enjoyed the status of a person who could not be surrendered to Hungary at least until the law was changed. All this has been fully and elegantly explored in the judgment delivered today by O’Donnell J. I regret that I am not, in the final analysis, convinced that the appellant acquired any right in law (for the purposes of s. 27 of the Interpretation Act, 2005) as a result of his success on appeal in Tobin 1 which survived the repeal of the “fled” requirement. However, he without any doubt enjoyed that right pending the amendment of the legislation.
9. The legislation was then amended by this State. Indeed this had to be done in order to bring Irish law into conformity with the Framework Decision. That is cold comfort for the appellant. He is the only person whose surrender had been refused by reason of the “fled” provision. The amendment, necessary as it was on general grounds, exposed him to the possibility that a second European Arrest Warrant would be issued, which is indeed what has occurred. If the legislation had been enacted originally in conformity with the Framework Decision, he would at least have had his case decided on appropriate grounds. He would either have been surrendered to Hungary or he would have succeeded on appeal on one of the other grounds advanced in Tobin 1. He would not have been subjected to the same judicial process twice.
10. The consequence of the amending legislation was that the appellant has faced a second process of arrest, objection, High Court hearing and appeal. All this is the result of what appears to have been a legislative error followed by its correction. None of this was the responsibility of the appellant. For the reasons given by Hardiman J, this is quite different from cases where an earlier proceeding has failed by reason of defects in a warrant. In those cases it will be apparent that the surrender (or extradition as the case may be) is the result of a particular defect in the warrant and that, on established principles, the error can be remedied and a new warrant can be issued without the defects.
11. These are in essence the reasons why I agree with Hardiman J that the appeal should succeed on the ground of abuse of process. The principle of national procedural autonomy permits the courts of the Member States to apply national procedural rules so long as they do not infringe either the principle of non-discrimination or of effectiveness.
12. I am not sure that it is relevant to introduce the element of inequality of arms between the appellant and the State authorities. Inequality in that sense will be present in every case under the Framework Decision or in extradition generally. I cannot see that it adds anything to the appellant’s case. Nor do I believe that delay would constitute a ground for refusing surrender on the facts of this case. This Court in its decision in Minister for Justice, Equality and Law Reform v. Stapleton [2008] 1 IR 669 considered how an issue of delay should be treated in the context of the European Arrest Warrant in the case of surrender for prosecution. The possibilities must be more limited where a conviction has already recorded.
13. I would confine the decision on abuse of process to the special and unique circumstances of this case. There was an Arrest Warrant; the appellant was arrested and taken before the Court; he opposed his surrender through the judicial process in accordance with the law. He succeeded. It was not then suggested that the law was erroneous. The appellant had no reason to expect that it would be changed, if he successfully invoked its provisions. The law was changed. His surrender was sought a second time. I would allow the appeal and decline to order the surrender of the appellant.
JUDGMENT delivered the 19th day of June 2012 by O’Donnell, J.
1 On the 9th April, 2000, the Appellant Ciarán Francis Tobin was driving a car in the city of Leányfalu in Hungary when he was involved in a tragic and fatal accident when his car struck and killed two young children. The circumstances of the accident were described in the European arrest warrant issued in this case as follows:
“At around the time of 3.45 pm on the 9th of April 2000 Tobin Francis Ciarán was driving Volvo S40 car with licence plate numbers GJZ-500 with four passengers along Móricz Sigmond within the city limits of Leányfalu (Hungary) in an inhabited area at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. The accused steered to the right for unknown reasons, and due to the sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the side walk, which was separated from the road by a raised stone edge at a speed of 71 to 80 kilometres per hour and hit Márton Zoltai aged five who was waiting on the sidewalk, and Petra Zoltai aged two who was sitting in a pram. Both Márton and Petra Zoltai died on the spot as a result of the accident.”
2 Mr. Tobin is an Irish chartered accountant who is married and has three children. He was working in Hungary at the time of the accident. A police investigation and criminal proceedings were commenced in September, 2000. However prior to his trial Mr. Tobin was due to return to Ireland for a family occasion and applied for the return of his passport. He was given his passport and duly visited Ireland and returned to Hungary on the 30th of October, 2000, and notified the Hungarian court. He then completed the term of his service and left Hungary permanently on the 30th November, 2000, returning to Ireland. In a judgment already delivered in the first application for the surrender of Mr. Tobin, delivered on the 25th February, 2008, (and which I will refer to as Tobin (No.1)) Fennelly J. observed that it was clear from the legal materials provided by the Hungarian authorities that Mr. Tobin’s final departure from Hungary was within the scope of the approved arrangements.
3 Mr. Tobin did not return to Hungary for his trial which took place therefore in the voluntary and authorised absence of the accused. At the trial statements made by Mr. Tobin and other witnesses were ruled inadmissible on the basis that they had been translated by a person who was the daughter of a lawyer friend of Mr. Tobin, and thus not an interpreter considered independent of the parties. The Hungarian court delivered a judgment described by Fennelly J. in Tobin (No.1) as “detailed and meticulous”. Mr. Tobin was convicted and sentenced to three years imprisonment.
4 At the time of both the accident and the trial, Hungary was not a member of the European Union. It was however a party to an extradition agreement with Ireland. However, it appears to be accepted in these proceedings that Mr. Tobin could not have been so extradited to Hungary under that agreement because of a lack of reciprocity. Hungary did not extradite its own citizens to other countries and accordingly, Ireland was not required to extradite its citizens to any country having such a provision. However, it should be said that no request was made under the then existing extradition arrangements.
5 In 2004 Hungary joined the European Union and became a designated country under the European Arrest Warrant Act 2003. An international arrest warrant was issued in Hungary in 2004 and a European arrest warrant issued in April, 2005. After some confusion, an application for surrender was heard and determined by the High Court in December, 2006 (“Tobin (No.1)”). Section 10 of the then applicable provisions of the Act of 2003 provided that a person could be surrendered “on whom a sentence of imprisonment or detention has been imposed and who has fled from the issuing state before he or she – (i) commenced serving that sentence, or (ii) completed serving that sentence.” (Emphasis added) The High Court concluded that it could not be said that Mr. Tobin had “fled” Hungary within the meaning of the Act, and accordingly he could not be surrendered.
6 The decision was appealed to the Supreme Court. On the 3rd July, 2007, the court unanimously affirmed the decision of the High Court. Subsequently Fennelly J. delivered a judgment with which all other members of the court were in agreement. Both Peart J. in the High Court, and Fennelly J. in the Supreme Court, referred to the Tampere conclusions of the European Council of October, 1999 which had referred to the abolition of formal extradition procedures between member states in respect of “persons who are fleeing from justice after having been finally sentenced”. However, it was apparent that no such phrase was included in Council Framework Decision 2002/584/J.H.A. of the 13th of June, 2002, on the European arrest warrant and the surrender procedures between Member States, O.J. L190/1 18.7.2002 (hereafter “Framework Decision”). Fennelly J. concluded that “the respondent’s leaving of Hungary could not reasonably be described as “fleeing” or “flight” in accordance with any generally understood meaning of the word”. Fennelly J. also observed that since no reference to fleeing was included in any operative provision of the Framework Decision, there was no question therefore of a conforming interpretation of the Act. If a court were to hold otherwise it would be acting contrary to the clear meaning of the Act of 2003 i.e. contra legem.
7 The judgment of the Supreme Court of the 25th February, 2008, brought to an end the proceedings on foot of the European arrest warrant issued in April, 2005. What transpired thereafter became the subject matter of these proceedings and this appeal. One consequence of the decision of the High Court and Supreme Court in Tobin (No.1) was that it was apparent that the Act of 2003 did not properly implement the Framework Decision, since the requirement of “fleeing” as interpreted by the courts, was not itself required by the terms of the Framework Decision. It appears that on the 21st July, 2009, the Oireachtas enacted the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009, and notice of the passage of that legislation was published in Iris Oifigiúil on the 24th July, 2009. The terms of Part II of the Act contained a number of amendments to the European Arrest Warrant Act 2003. Section 6(c)(ii) amended s.10 in deceptively simple terms. It provided that s.10 was to be amended;
“By the deletion of the following words:
“and who fled from the issuing state before he or she –
(i) commenced serving that sentence, or
(ii) completed serving that sentence.”
It is not in dispute that the effect of this amendment was to remove the so called fleeing requirement which had in turn been the ground upon which Mr. Tobin had successfully resisted the 2005 warrant. On the 25th August, 2009, the relevant provisions of the Act of 2009 came into force pursuant to the Criminal Justice (Miscellaneous Provisions) Act 2009 (Commencement) (No. 2) Order 2009 (S.I. No. 330 of 2009)
8 On the 17th September, 2009, a further European arrest warrant was issued seeking the surrender of Mr. Tobin in respect of the sentence imposed upon him by the Hungarian courts. On the 14th October, 2009, that warrant was endorsed for the High Court, and on the 10th November, 2009, Mr. Tobin was once again arrested. In the meantime, on the 4th November 2009 the text of the Act of 2009 had been formally published on the Oireachtas website. When arrested, Mr. Tobin was recorded as having replied after caution:
“I thought it was all over after the Supreme Court.”
To a large extent, the question on this appeal is whether Mr. Tobin’s immediate and understandable reaction to his arrest and caution was correct as a matter of law.
9 On the 11th February, 2011, the High Court (Peart J.) delivered a lengthy judgment on the application, and rejected Mr. Tobin’s objections and made an order for surrender. Section 11 of the Criminal Justice (Miscellaneous Provisions) Act 2009 had amended s.15 of the Act of 2003 by providing that an appeal could only be brought “if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court”.
On the 9th March, 2011, the High Court certified the following points as such points of law of exceptional public importance:
“(1) Whether it is an abuse of the process and/or contrary to Articles 6, 34 and/or 37 of the Constitution or as otherwise impermissible pursuant to the European Arrest Warrant Act 2003 as amended, for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where:
(i) The first such proceedings failed following a determination by the High Court and Supreme Court that the respondent had not fled from the requesting state as required pursuant to the law as it stood at the time of the said proceedings.
(ii) Second proceedings have been instituted following an amendment of the European Arrest Warrant Act 2003 so as to remove the terms that the respondent had fled from the requesting state.
(iii) The warrant on foot of which the second request was made is substantively the same as the first.
(2) Whether the provisions of the European Arrest Warrant Act 2003 as amended apply to convictions imposed on states prior to the right sections of the European Union.
(3) Whether s.5 of the 2003 Act as amended requires the Minister in establishing correspondence to demonstrate that offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant herein disclosed an offence under Irish law.
(4) Whether it is a breach of the right to equality under Article 40.1 of the Constitution and family rights under Articles 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act 2003 as amended where the appellant is an Irish citizen to be extradited to Hungary in circumstances of having fled the jurisdiction it is not possible to serve his sentence of imprisonment in Ireland without returning to Hungary.”
10 To understand some of the issues referred to in the certified questions it is necessary to set out some further factual matters. In the first place, it appears that the Irish Central Authority sought agreement from the Hungarian authorities that if Mr. Tobin was returned to Hungary he would be permitted a retrial. This however was not permissible under the relevant Hungarian provisions. Even more pertinently, it was disclosed in these proceedings that the Hungarian authorities had sought to have Mr. Tobin serve his sentence in Ireland. In common with a number of other countries, Hungary does not allow the surrender of its citizens, but will instead make provision for the execution of a foreign sentence in Hungary. However the Transfer of Execution of Sentences Act 2005 is the statutory basis in Ireland for the execution of sentences imposed in other countries upon either Irish citizens or those with close ties to the State. Section 7 of that Act permits the Minister to consent to the execution in the State of the sentence imposed in another country “on a person who fled to the State” before commencing service of the sentence or completing service of the sentence. It was thus considered that it was not possible to permit Mr. Tobin to serve his sentence in Ireland by virtue of the same language which had resulted in his successful resistance of the first European arrest warrant.
11 The disclosure of this information gave rise to some correspondence between Mr. Tobin’s solicitors at the Department of Justice. In a letter of the 30th March, 2011, Mr. Tobin once again expressed his deep and sincere sympathy to the bereaved family of the two young children who died in the fatal road traffic accident. The letter also recorded that Mr. Tobin acknowledged the understandable strength of feeling to which his case had given rise to in Hungary and the strong desire for closure that appeared to exist on all sides including on the part of his own family and himself. Accordingly the letter formally indicated Mr. Tobin’s willingness in principle to serve a term of imprisonment in Ireland in respect of the conviction. That offer was conditional upon Mr. Tobin not being required to return to Hungary. That letter was responded to by letter from the Chief State Solicitor’s Office (hereafter the C.S.S.O.). It may have been that there was some intervening oral communication between the parties because the letter from the Chief State Solicitor stated that it would be inappropriate to make any response on the question of the amendment of the Transfer of Execution of Sentences Act 2005. That question does not appear to have been raised in the letter of the 30th March, 2011. More significantly, the letter from the C.S.S.O. also made reference to the provisions of the Transfer of Sentence Persons Act 1995. That regime however is a different and self-standing regime that involves the transfer of person rather than sentence and more particularly requires the person to be serving a sentence in a foreign country. Accordingly Mr. Tobin would have been required to return to Hungary and make a request for transfer. The letter also recorded that that process could take on average between twelve and eighteen months to complete. The letter concluded by pointing out that Mr. Tobin was in a position to “go into custody in this jurisdiction thereby availing of Article 26 and receiving the requisite credit for time spend in custody”. This latter reference was to the provisions of Article 26 of the Framework Decision which allowed credit to be given for time spent in custody on the European arrest warrant pending surrender to the requesting state.
12 On the 7th November, 2011, Mr. Tobin’s solicitors repeated his willingness to serve a sentence in this State and expressed his disappointment that the process of transfer of the sentenced person could take between twelve to eighteen months to complete. The letter expressed the view that this was a significant, disproportionate and entirely unnecessary burden being imposed upon Mr. Tobin and his family. It also recorded the fact that Mr. Tobin had received a number of threats to his life from persons believed to be in Hungary and was very concerned about the risk to his safety which a return to Hungary would involve. It should be said that in his grounding affidavit Mr. Tobin made reference to a number of such threats, and indeed to the hostile media coverage in Hungary which his case had provoked. In the circumstances the letter formally communicated Mr. Tobin’s intention to enter into custody immediately pending the hearing of this appeal from the Supreme Court. That application was made before the High Court on the 9th November, 2011. Accordingly since that date Mr. Tobin has been in custody pending the determination of this appeal.
13 The questions certified by the High Court are themselves broad and far-reaching, but since the Act of 2009 does not restrict the appellant to the certified grounds, Mr. Tobin’s counsel understandably sought to argue a number of other issues, including arguments which had been rejected in the High Court in Tobin (No. 1), and which had been the subject of a cross-appeal, but which had not been the subject of any determination in this Court because the Minister’s appeal on the question of fleeing had failed. Accordingly, in this Court, Mr. Tobin’s counsel advanced ten separate grounds as a basis for overturning the decision of the High Court. These grounds were argued with ingenuity and skill and I mean no discourtesy to the sophistication with which the matters were advanced, when I say that the clarity of the argument has allowed me to come to conclusions on some at least of these matters which can, I hope, be stated relatively briefly. However others require some more extended discussion.
Correspondence
14 It was argued that the offence described in the warrant as “the misdemeanour of violation of the rules of public road traffic by negligence causing death” did not correspond to any events in Irish law, and accordingly that surrender was prohibited by s.38(1)(a) of the Act of 2003. The principal ground advanced, was that on the facts alleged there was no assertion of fault on Mr. Tobin’s part which it was said was a requirement of any criminal offence, pursuant to the decision of this Court in C.C. v. Ireland [2006] 4 IR 1. In common with the High Court judge, I am however quite satisfied that the facts alleged here correspond to a number of Irish offences including, but not limited to, those of dangerous driving, and dangerous driving causing death contrary to s.53 of the Road Traffic Act 1961 as amended, and indeed to a number of lesser offences. The requirement of correspondence in cases other than those falling under Article 2(2) of the Framework Decision is, and remains, a fundamental provision of the law of surrender. That is because it embodies the principle of double criminality namely, the requirement that the matters in respect of which a person is sought to be surrendered for trial or the execution of sentence, should themselves be matters which are, or would be, offences under the law of the executing state. However, once double criminality is established, there is no further requirement of identity of approach, or correspondence as to the gravity with which the offence is viewed. Correspondence, as required by the Act of 2003, was in my view clearly present here.
Compliance with Section 11 of the Act of 2003
15 Counsel for Mr. Tobin conducted an impressively meticulous analysis of the warrants issued. He pointed out that the warrant, the subject matter of these proceedings, was in fact the fourth warrant issued in relation to this matter. There was, he said, a significant degree of confusion as to the precise sentence which had been imposed on Mr. Tobin, particularly as a consequence of the appeal decision. He suggested that at the time of Tobin (No. 1) all parties believed that the effect of the appeal had been to suspend the last eighteen months of the sentence. However, it is now asserted that the effect of the appeal was merely to identify the point (eighteen months) after which Mr. Tobin would be eligible for a form of parole or release. He contended that in this respect the warrant failed to comply with s.11 of the Act of 2003 which provided in its material terms that “A European arrest warrant shall specify … where that person has been convicted of an offence specified in the European arrest warrant and that sentence has been imposed in respect thereof, the penalties of which that sentence consists”. (Emphasis added)
16 The High Court judgment recited the fact that the central authority had produced letters from the Ministry of Public Administration and Justice in Hungary which made it clear that whether Mr. Tobin would be released after eighteen months was a matter to be decided by the penitentiary judge. It also stated that this official was not a judicial officer but was responsible for penitentiary affairs, and decided issues of early release on parole if there was reason to believe in view of the person’s good conduct while serving the sentence that he would lead a good life and further incarceration was not required. There is now no confusion about the sentence imposed upon Mr. Tobin, even if there was substantial confusion as to how that position was arrived at. Furthermore, the necessity to state the sentence imposed is related, even if not exclusively, to the question of minimum gravity. Here there is no question but that the sentence is one which is of sufficient gravity as to fall within the European arrest warrant regime. In light of the fact that that regime necessarily involves communication between different languages, cultures and legal systems, it is not in my view, either possible or indeed appropriate to determine that the penalty imposed upon Mr. Tobin has not been sufficiently specified. Accordingly, I agree with the High Court judge, that Mr. Tobin cannot succeed on this ground.
Delay
17 Although delay is not in itself a specific ground for refusal of surrender under either the Framework Decision or the Act of 2003 (as amended) it was argued that s.37 would prohibit surrender where there was excessive and inordinate delay such as to contravene Mr. Tobin’s rights under the Constitution, or the European Convention on Human Rights (hereafter “E.C.H.R.”). Consequently Mr. Tobin pointed to the period of time that had elapsed since the original tragedy, and submitted that it was evident that excessive and inordinate delay had occurred. Counsel referred to O’Keeffe v O’Toole [2008] 1 IR 227 in which a ten year delay on extradition was regarded as exceptional and itself a ground for refusing surrender. He also referred to Wenting v High Court of Valenciennes (2009) EWHC 3528, where the English High Court refused to surrender a Dutch national in relation to a drugs offence committed some twenty years earlier where he had spent two years in custody pending trial and had lived a blameless and hardworking life thereafter, built up his own business, and had never come to the attention of police.
18 There is no doubt that in principle it is possible that delay can amount to a denial of the constitutional right to a trial in due course of law. If it would be a breach of the constitutional rights of a similarly situated accused to be tried in an Irish court, it must follow that surrender to face a trial in a foreign court after the same time must normally be a breach of the constitutional rights of the citizen, and therefore be a ground of refusal of surrender under s.37. However the facts here are some distance from the type of situation which might give rise to refusal of surrender on grounds of delay. First, the request for surrender is to serve a sentence already imposed, and not to face a trial. Any question of the passage of time degrading evidence and making the defence of the charge more difficult simply does not arise. Second, to take the period from the original offence to the date of this Supreme Court appeal is to run together a series of different periods of time and blur the important distinctions between them, and the responsibility of different actors for such periods. For example, the Irish Central Authority cannot be responsible for the actions of the Hungarian authorities in prosecuting Mr. Tobin, and more pertinently, the Hungarian authorities cannot be criticised for not seeking surrender before that was legally possible. Nor are those authorities responsible for the manner in which the Oireachtas chose to enact the Act of 2003, or the process of amendment. As it transpires, it appears that Mr. Tobin’s surrender could not have been sought prior to 2004, and could not have been sought successfully, prior to the passage of the amendments in the Act of 2009. Looked at in this way, the core period is between the time when it was possible to issue a warrant in respect of Mr. Tobin (which is either the passage of the Act of 2003, or, perhaps more accurately, after the amendments contained in the Act of 2009), and the period in which any such application is brought before the High Court. That core period must of course be considered against all the facts of the case. When viewed in this way, it is apparent that there has neither been culpable delay, nor the type of lapse of time which would render it so unfair to proceed with the surrender process, as to constitute a breach of the constitutional rights of Mr. Tobin. Indeed it is notable that Mr. Tobin complains elsewhere, not so much of time being allowed to lapse, or steps not been taken as quickly as possible, but rather that he has been subjected to a ten year process of legal proceedings. Furthermore, in the specific context of the present warrant he complains that it was issued in fact too speedily. In the circumstances of this case, it is not possible to conclude that the point has been reached in this case where it would simply not be fair to permit Mr. Tobin to serve his sentence imposed upon him by the Hungarian courts.
Generally Inaccessible Legislation
19 This argument turns upon the fact that the Act of 2009 was passed and came into force as a matter of Irish law a period of weeks before the legislation itself was generally available on the Oireachtas website, and that during that period the European arrest warrant issued here was endorsed by the High Court on the application of the Minister. Once the warrant was endorsed, Mr. Tobin was at risk of being arrested and losing his liberty. On the facts of this case the Act was available on the Oireachtas website before Mr. Tobin was actually arrested under the warrant. However, it is argued that while it has been established in Minister for Justice v. Adach [2010] IESC 33, that conditions for promulgation of a law under the Irish Constitution are satisfied so that a statute becomes part of the law of the land “as on and from the day from on which the Bill is signed by the President”, an arrest pursuant to a warrant granted at a time when the relevant legislation was not generally available to the public,(and in particular to the person arrested) was a breach of Article 5 of the E.C.H.R. in that it would amount to a deprivation of liberty other than in accordance with law. In this context it was argued that “law” must be understood to include a requirement that any such laws should be accessible, relying in this regard on the decision of McCloskey J. in the North of Ireland High Court in Chaos v Spain [2010] NIQB 68. Moving from this proposition it was argued therefore that the warrant which authorised the deprivation of Mr. Tobin’s liberty was endorsed at a time when there was no “law” in the sense of a provision which was generally accessible and a warrant endorsed in such circumstances must be understood therefore as being itself a breach of Article 5. If so, to surrender Mr. Tobin on foot of such a warrant would also be a breach of his rights under the Convention, and therefore prohibited under s.37 of the Act of 2003.
20 This argument turns upon the contention that the accessibility of the law is an essential component of its validity and its status as law. Counsel pointed out that when Professor Lon Fuller sought to identify eight essential elements in the rule of law, in his important work The Morality of Law, he identified as the second element the requirement that “laws must be published” (The Morality of Law: Yale University Press, 2nd Ed. 1969, 49). The reference to Professor Fuller’s well known work is particularly apposite since it can be said that his attempt to discern an irreducible moral content to which any system of law had to conform in order to be valid, was influenced by the same reaction to the excesses of totalitarian regimes which gave rise to the demand for entrenched declarations of rights and which led inter alia to the European Convention on Human Rights. The importance of accessibility of law as an essential component of a valid or at least respectable, legal system, and has occupied writers from Roman times to St. Thomas Aquinas, Blackstone, Austin and others. The present situation is of course very far removed from the trick ascribed by Blackstone to Caligula, of complying with the formal requirements of promulgation by publishing laws in small letters on tablets attached to the top of high pillars, but the principle itself is of such fundamental importance to a functioning legal system that even the outer limits of the principle must be carefully respected.
21 There is no doubt that the ideal situation is when the legislative process is thoroughly transparent, and accessible to any interested observer, and where the outcome of that process is immediately and readily available to those affected by it. In a modern digital age that desideratum should be more easily achieved than when paper printing was the accepted method of publication. However, the fact that a more perfect and immediate system of promulgation of law could be readily envisaged than the situation which obtained when the warrant for Mr. Tobin was issued and endorsed, does not mean that an order of surrender of Mr. Tobin would offend Article 5 of the E.C.H.R.
22 There are a number of weak points in the argument, attractively formulated though it was. Most obviously, the E.C.H.R., like the fundamental rights provisions of the Irish Constitution, exists to provide real protection to individual rights. Here the relevant right asserted was that of liberty. That right is infringed by the detention of a person in circumstances not authorised by law. By the time Mr. Tobin’s liberty was interfered with by the execution of the warrant the relevant law was undoubtedly accessible. Indeed, it might be said that the law permitting Mr. Tobin’s arrest had always been accessible since at least 2004. Mr. Tobin’s complaint was with the removal of the provision which would have given him a good basis for resisting ultimate surrender. Furthermore, s.37 is concerned with circumstances in which surrender would itself be a breach of the convention. While that may be related to the circumstances in which he is detained, or more remotely, which prevailed when his detention is authorised, it is not necessarily always the case. I conclude that there was here no breach of Mr. Tobin’s Article 5 rights so as to render his surrender a breach of s.37. In so concluding I have not had to consider, and therefore do not decide, that the fact that legislation when enacted is not immediately available in its enacted form would mean that during that time such legislation could not be “law” for the purpose of Article 5 of the Convention. There is a high degree of transparency in the Irish legislative process. Any interested observer can ascertain the terms of the provision being put to the legislature and the terms of any amendments proposed and indeed the outcome of that process. Prior to the digital age it was commonplace for courts to be referred to copies of the Bill “as enacted” prior to a printed copy of the Act becoming available. In truth the present position has a higher degree of transparency and accessibility and a shorter gap between formal enactment and general publication than existed at the time at which Ireland acceded to the Convention. Notwithstanding the great importance which is and should be attached to ensuring that the law is generally accessible, it might be surprising if the present position in Irish law while falling short of the ideal, was nevertheless found to offend against the Convention. However, that would depend upon a precise analysis of the accessibility of the legislative process in any particular case where that issue was critical to the court’s decision.
Pre-accession Offences
23 Counsel for Mr. Tobin pointed to the fact that the offence of which Mr. Tobin had been found guilty and also his conviction and the confirmation of that decision on appeal, all pre-dated Hungary’s succession to the European Union and accordingly the date upon which it became a party to the Framework Decision and therefore a designated country for other members of the European Union. He argued that the entire Framework Decision was explicitly predicated upon the close ties and mutual trust and confidence between member states which justified the more streamlined surrender process introduced by the Framework Decision. Such trust and confidence between member states was justified in respect of post-accession convictions, because not only had the existing member states accepted the new member but the application process necessarily involved satisfying the European Union that any applicant was suitable for membership and in particular that their legal system was compatible with the shared system of values underpinning the European Union. There was however no basis he said for extending such trust and confidence to the pre-accession legal systems of relevant states. Indeed, in the case of many former communist countries, it might be said that the whole process of accession was itself a positive reason not to extend such trust and confidence since one of the requirements of accession would normally be that member states would adopt legal systems which were compatible with the shared systems of western democracies. Acknowledging in advance the hyperbole involved, counsel nevertheless pointed out that if there was no temporal limit on convictions which could be enforced under the Framework Decision, then in theory, the process could require an Irish court to surrender a person in respect of convictions obtained under Stalinist or Nazi legal regimes. In such circumstances the Irish courts would be required to repose trust and confidence in convictions obtained under legal systems repellent to the essence of their own legal system. Accordingly he argued that it was implicit in the Framework Decision that it only applied to legal proceedings and convictions which post-dated the accession of the relevant country to the European Union. In that regard he relied on cases such as Andersson v Sweden (C-321/97) [1999] All E.R. (D) 620, where the European Court of Justice held consistently, that it did not have jurisdiction to examine events that occurred prior to member states accession to the European Union. During argument, counsel were referred by a member of the court to a recent decision of the Court of Justice of the European Union in the case of C17/10 Toshiba Corporation v. Urad pro ochranu hospodarske souteze (14th February, 2012) to like effect, and supplemental submissions on the point were delivered by both sides.
24 The proposition, for which counsel contends, is closely related to the presumption in favour of prospective operation of legislation particularly in matters affecting criminal law. In my view however there is an important distinction between the cases which would involve the application of substantive European law to events pre-dating accession, and the application of the Framework Decision to request for surrender post-dating accession. There is no question here, of the application of European Union law to events predating accession; indeed the substantive law involved is a matter of domestic law. Union law in the shape of the Framework Decision is being applied here to a post-accession event, which in this case, is the request for surrender. Furthermore, this is consistent with the underlying theory. The legal system in which the courts of the requested state is required to repose trust and confidence under the system is the legal system making the request, not necessarily the system imposing the conviction. If a member state requests surrender it is because its present legal system has considered it appropriate to do so. That is the relevant judgment in which other states are required to repose confidence. Furthermore, the fact that the European Court of Human Rights is applicable both in the requesting member state and the executing member state, means that if the underlying conviction was achieved by a procedure which infringed the rights of the individual under the Convention, then a remedy is available in the courts of both the executing and the requesting state. Of course it should be emphasised that the argument here was advanced simply at the level of theory: it was not suggested that the legal system under which Mr. Tobin was convicted, was one which was not worthy of trust or confidence. Indeed the very fact that Ireland had its own extradition agreement with Hungary prior to its accession to the European Union, shows that Ireland was prepared to extradite persons who were subject to the pre-accession legal system.
25 If counsel’s arguments were correct, then on the entry into force of the Framework Decision and indeed on accession of new member states, it would be necessary to make provisions for very detailed and complex transitional provisions. Otherwise many pre-accession convictions would be in a limbo where they could not be the subject of a surrender request under the Framework Decision, or extradition under the pre-existing code. It is striking that the Framework Decision, which is intended to be the exclusive method of enforcing surrender between member states, does not contemplate such elaborate transitional arrangements. It is true that Article 32 permits member states to indicate at the time of adoption of the Framework Decision that they would continue to deal with requests relating to acts committed before a specified date in accordance with the system applicable before the coming into force of the Framework Decision. However that date could not be later than the 7th August, 2002. Furthermore Article 32 only operates as of the date of adoption at the Framework Decision and not otherwise, and expressly does not extend to acts committed between August, 2002 and the coming into force of the Framework Decision in January, 2004. While Article 31 does permit parties to adopt further bilateral and multilateral agreements in relation to surrender after the coming into force of the Framework Decision, such agreements appear only to be permissible where they further simplify the process of surrender. It seems obvious therefore that if the Framework Decision only applies to post-accession acts there could be a very large lacuna in relation to surrender between friendly states, even where there was no reason to doubt either the fairness and integrity of the system in general or the specific proceedings in particular. This would be completely inconsistent with the entire thrust of the Framework Decision. This consideration supports the conclusion that the Framework Decision applies to pre-accession acts, if made the subject of post-accession requests. As was pointed out by counsel for the Minister, it is a well-known feature of extradition procedures that they apply to post-agreement requests which may relate to pre-agreement acts. This is indeed reflected in the decision of the European Court of Justice in case C296/08 PPU Criminal proceedings of extradition v. Ignacio Pedro Santesteban Goicoechea at para.88 of the judgment:
“According to settled case law, procedural rules are generally held to apply to all proceedings pending at the time when they entered into force, whereas substantive rules are usually interpreted as not applying to situations existing before their entry into force (Dell’ Orto para.48) Article 18(5) of the 1996 convention provides that that Convention is to apply to requests submitted after the date on which it is applied as between the requested member state and the requesting member state. Article 32 of the Framework Decision for its part provides that requests received after 1st January 2004 would be governed by the European arrest warrant rules. While in both cases the new rules apply not to pending requests but to those made after a specified date, they have in common that they apply to requests relating to acts prior to the date of application with the new rules.” (Emphasis added)
Accordingly, I am unable to accept the argument that the Framework Decision and any domestic implementing legislation is not applicable to offences occurring before the accession of Hungary to the European Union.
Fair Procedures
26 A closely related argument is that the proceedings under which Mr. Tobin was convicted were themselves in breach of fair procedures, with the consequence that it was said it would be a breach of the constitutional rights of Mr. Tobin to be surrendered to serve a sentence imposed following such proceedings. In this regard, counsel relied upon what he characterised as the failure of the Hungarian authorities to preserve evidence. This related to the fact that although Mr. Tobin had suggested that his car had failed to respond to the brakes at the time of the accident, the car was returned to the garage by the Hungarian authorities. Counsel also referred to the fact that the statements made by Mr. Tobin and his witnesses had been ruled inadmissible by the Hungarian court. It was not suggested however that this ruling came as a surprise, or was in any way discordant with the existing law in Hungary. Indeed, the statements were ruled inadmissible in their entirety, and accordingly could not be relied on by the prosecution or the defence. Any difficulties the ruling posed for the defence of the case, were a consequence of Mr. Tobin’s voluntary decision not to return to Hungary for the purposes of the trial and not to ensure that his witnesses attended the trial so that they could give evidence in person. While it has been determined that Mr. Tobin did not flee from Hungary it is equally the case that he did not voluntarily return.
27 Mr. Tobin’s case in this regard was wholly dependent on the facts and the argument made by counsel in reliance on existing Irish law. There was no attempt to adduce any expert evidence on the status of the Hungarian legal system and its rules in the years between 2000 and 2002, and no reference made to any review of that system by a respected international body. In my judgment, it is entirely insufficient to seek to persuade an Irish court that the rules of procedure of another country’s legal systems are not merely defective, but a breach of the Irish constitutional rights of the citizen by pointing to features of that system which may differ from the procedures of a criminal trial as conducted in Ireland. As Murray C.J. said in Minister for Justice v. Brennan [2007] 3 IR 732 at p.744:
“That is not by any means to say that a court, in considering an application to surrender, has no jurisdiction to consider the circumstances where it is established that surrender would lead to a denial of fundamental or human rights. There may well be egregious circumstances such as a clearly established and fundamental defect in the system of justice of a requesting state, where a refusal of an application for surrender may be necessary to protect such rights. It would not be appropriate in this case to examine further possible or hypothetical situations where this might arise. The sole matter which I wish to make clear here is that the mere fact that a trial or sentence may take place in a requesting state according to procedures or principles which differ from those which apply, even if constitutionally guaranteed, in relation to a criminal trial in this country, does not of itself mean that an application for surrender should be refused pursuant to s.37(2) of the Act”.
The Transfer of Execution of Sentences Act 2005.
28 Counsel on behalf of Mr. Tobin pointed to the form of catch 22 situation in which he said his client had found himself. His very success in Tobin (No. 1) in determining that he had not fled from Hungary was now invoked to prevent him from being allowed to serve the Hungarian sentence in Ireland because fleeing was a requirement of the Act of 2005. He argued that if the fleeing requirement was to be removed from the Act of 2003 the Oireachtas should also have removed it from the Act of 2005 to ensure symmetry between the legislation. Counsel also referred to the Court to the exchange of correspondence in which Mr. Tobin had offered to serve his sentence in Ireland if he could be reassured that he would not be required to return to Hungary because of his fears for his safety there.
29 At a human level it is certainly more than frustrating that when Mr. Tobin evinced a willingness to serve his sentence in Ireland – a solution which had been sought by the Hungarian authorities – that much greater effort was not made at an administrative level to bring that situation about. This was an occasion on which some flexibility and effort at national level might have avoided much of the stress and anxieties for all parties involved in these proceedings and produced an outcome that might have been acceptable to all the protagonists including perhaps the family of the unfortunate victims of the accident. The response of the Department of Justice was disappointingly bureaucratic and that opportunity was lost. In the event Mr. Tobin has voluntarily surrendered his bail and has now served almost eight months in prison.
30 While it is easy to understand the frustration experienced by Mr. Tobin and his advisors, it is rather more difficult to identify the legal objection to the stance taken by the Department. It is argued however that the current legal situation was in breach of Article 40.1 of the Constitution in that persons who had fled were being treated differently, and better, than persons who had not done so, since persons fleeing the administration of justice in other states had the possibility of serving their sentence in Ireland. Counsel for the Minister pointed out however that the fleeing requirement in the Act of 2005 was not linked in any way with the provisions of the Act of 2003. Instead, it could be traced directly to the provisions of Article 2 of the additional protocol to the Convention on the Transfer of Prisoners of the 18th December 1997 which was headed “Persons having fled from the sentencing state”. There was no sense in which it can be contended that Mr. Tobin or any one else has a right to have the Act of 2005 amended. I agree. I cannot accept that Article 40.1 was infringed in this case. That Article does not require the Court to seek to value how different people are treated under different pieces of legislation. Between 2003 and 2009 people who had not fled but whose surrender was sought under the European arrest warrant were treated differently, and better, than those who had fled justice. As Tobin (No. 1) established, people who had not fled could not be surrendered. Nor could they be required to serve the foreign sentence here. That was not a breach to the rights of equality of a person who had fled justice during that period. Indeed the fact that Mr Tobin had no interest during that time in seeing the Act of 2005 amended (and indeed had a positive interest in it remaining in its original form) at least until the European Arrest Warrant Act 2003 was amended, is one illustration of the difficulty of the argument here. The different origins of the legislation explains why the Act of 2005 was framed in the way it was, and provides a rational justification for it. The fact that the provisions for service of a foreign sentence under the Act of 2005 could be extended to cover Mr. Tobin’s situation does not give rise to any entitlement to resist the application to him of the Act of 2003 as amended, if that Act on its true construction applies to him.
31 I should say however that while these matters do not in my judgment give rise to a legal ground for refusing surrender, they are not by any means irrelevant. Mr. Tobin is a married man with a family, and with a previously blameless record. He was convicted and sentenced in his absence in circumstances where the Department of Justice sought an assurance (which in the event could not be provided) that if surrendered he would have the possibility of a retrial. A Hungarian citizen facing similar charges in Ireland would not be surrendered but would be allowed serve his sentence in Hungary, and would not therefore suffer the additional significant punishment of serving a sentence in a foreign country far from his family and friends. The Department of Justice’s approach to the question of any transfer under the 1995 Act, namely that the transfer could only be considered once the subject had been returned and commenced serving his sentence and furthermore that the process would take on average anything between twelve and eighteen months, was decidedly unhelpful, particularly in the light of the fact that Mr. Tobin had volunteered to serve his sentence in Ireland, and under that sentence imposed it appears that he would at least be eligible for consideration of his release after the same period of eighteen months and therefore on the Departmental timescale could be released in Hungary before his transfer application had even been processed. I hope that this response was merely a product of the paralysing caution that is sometimes engendered by active litigation. If the litigation had concluded in an order of the Court requiring the surrender of Mr. Tobin, I would hope, and expect, that steps would have been taken by the relevant authorities as a matter of urgency to expedite a consideration of his application and to deal with it promptly and sympathetically not only in the interests of Mr. Tobin, who is and remains an Irish citizen, but also and perhaps more importantly, the interests of his wife and family.
Abuse of Process, Separation of Powers, & Section 27 of the Interpretation Act 2005.
32 It is a measure of the unique problems posed by this case, that the issues under these separate headings, which lay at the core of the case and attracted most of the argument, can conveniently be dealt with together. At the heart of Mr. Tobin’s case is the fact that he was the subject of an earlier application for surrender in respect of this offence and this sentence, and which resulted in a Supreme Court decision in his favour. That decision was the product of an analysis of the provisions of the Act of 2003. Accordingly, so long as surrender was governed by the provisions of that Act the Supreme Court decision was a complete bar to Mr. Tobin’s surrender to Hungary to serve the sentence imposed upon him by the Hungarian court, and Mr. Tobin was correct in his belief that the proceedings for his surrender were as he put it, all over after the Supreme Court. However, the Act of 2003 has been amended and the provision upon which Mr. Tobin’s success depended, has been repealed and is no longer in force. Is the Supreme Court decision still a bar to surrender even though the legislation it interpreted and applied is no longer the law? This was the question posed by this case and to which counsel readily acknowledged that the decided cases provided no clear cut answer but only clues. It was necessary therefore to argue the case not simply by reference to dicta or decisions in prior cases, but by seeking to construct a coherent principle which could be said to be deduced from dicta from cases in sometimes disparate areas. The obvious difficulty for the argument on Mr. Tobin’s behalf that the decision of the Supreme Court in Tobin (No.1) barred a further application for surrender even after the change in the relevant law, was the fact, readily acknowledged by counsel, that it was an established feature of the law of extradition, and of surrender under the European arrest warrant regime, that a decision refusing surrender or extradition on the grounds for example of a defect in the warrant, was not a bar to the issuance of a further warrant and a successful application thereon. The difficulty for Mr. Tobin’s case therefore was to identify a principle upon which he could succeed, but which was not inconsistent with the decided cases which established the lawfulness of successive applications for extradition/surrender. Counsel sought to advance three different, though related, arguments to this end.
Abuse of Process
33 The last three points argued by counsel on behalf of Mr. Tobin sought to address in different ways what were contended were the legal consequences of the decision in Mr. Tobin’s favour, in Tobin (No. 1). It was argued firstly, that the well established jurisdiction to dismiss proceedings, whether civil or criminal, as an abuse of process, was of particular application here. The starting point for this argument was the candid recognition that the doctrine of res judicata did not apply to proceedings such as this. This point was made clearly at paragraph 63 of the admirably lucid written submissions made on behalf of Mr. Tobin:
“It may be helpful at the outset to emphasise the precise grounds on which the appellant’s appeal on this point is based. In particular it should be noted that the appellant does not argue that the doctrine of res judicata applies to the second set of proceedings. It is evident the precise legal issue which was determined in the first set of proceedings – whether Mr. Tobin had fled from Hungary and could not therefore be surrendered under s.10 – does not arise for determination in this set of proceedings, following the enactment of the 2009 Act. Strictly speaking therefore, no issue of res judicata applies.”
34 This concession was wisely made. It was almost inevitable in the light of the decided authority. It has been repeatedly decided that where there has been a prior refusal of extradition on grounds such as insufficient evidence (Bolger v. O’Toole (Unreported, Supreme Court, 2nd December, 2002, Denham, J.)) or where proceedings were struck out on consent following identification of a defect in the warrant (MJELR v O’Fallúin [2010] IESC 37 (Unreported, Supreme Court, Finnegan J., 19th May, 2010)) there could nevertheless be further successful proceedings and an order for extradition of surrender made. The position is perhaps encapsulated in the ex tempore judgment delivered by Keane C.J. in the Attorney General v Peter Jeffrey Gibson (otherwise Peter Jeffrey Valentine) (Unreported, Supreme Court, 10th June, 2004):
“It is necessary to say at the outset, that, in my view, it is clear beyond argument that in extradition cases, the mere fact that a warrant has been issued and application made arising out of the warrant to the court for an order for extradition, and that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated on by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of the law they were, in my view, laid to rest by the decision of this court in Bolger v O’Toole … .”
35 Counsel sought to distinguish this line of authority by suggesting that there were particular features of this case which meant that while the case could not be said to be res judicata, it was nevertheless a case where a further application for surrender would be an abuse of process. In particular counsel sought to rely on what he described as the general principle of finality illustrated in the decision of Re Greendale Developments (No.3) [2000] 2 I.R. 514, where Hamilton C.J. said that “public policy requires a definite and decisive end to litigation”. In particular, counsel sought to bring this case within a principle he sought to distil from the recent decision of this Court in Re Vantive Holdings [2010] 1 I.R.118 where this court held that it was not permissible in the particular case, to renew an application for examinership. At paragraph 89 of the decision, Denham, J. said “the fundamental principle is that it is in the public interest and for the common good that there should be finality in litigation. An aspect of this principle is that parties should not be exposed to multiple litigation and should have closure on an issue. Also there is a public interest that the limited resources of the court should be used justly and with economy”.
36 Re Vantive Holdings is a decision which follows in a line of authority through A.A. v. The Medical Council [2002] 3 IR 1, to the well known case of Henderson v. Henderson. It is implicit in this line of authority that a litigant may be precluded from pursuing a relief to which he or she might otherwise be entitled, because, to put it perhaps at its broadest, of some culpable failure on their part, most normally, to include that point in earlier litigation brought by them arising out of the same matter. It is self-evident however that the particular point sought to be addressed in this case could not have been addressed in Tobin (No.1) simply because the Act of 2009 had not been enacted. However, the argument advanced was that the Minister in his submissions in the High Court in this case had acknowledged that the reference to fleeing in s.10 of the Act of 2003 was included “in error”, and that “it should not have been there in the first place and had the Framework Decision been correctly given effect to in Act of 2003 … the respondent would have been a person in respect of whom an order for surrender had been made”. Once that mistake was identified by the appellant in his point of objections in Tobin (No.1), the Minster chose not to respond by for example withdrawing the proceedings, or bringing forward an amendment to the legislation. Rather he chose to proceed with the first set of proceedings and then, even after a clear determination in the High Court appealed to the Supreme Court. It was said that this provided a close analogy with the Re Vantive Holdings line of authority, and would be just as much an abuse of the process to permit the Minister to initiate a second set of proceedings to obtain the objective of the surrender of Mr. Tobin to Hungary to serve the sentence imposed upon him, as it was for Dr. A.A. to issue a further set of proceedings to challenge the procedures of the Medical Council, or for Re Vantive Holdings to issue a further application for the benefit of examinership. What the three situations had in common, it was argued, was that while there might well be merit in the legal points sought to be addressed, that it was an abuse of process of the court to have let an earlier set of proceedings to run to finality without raising or addressing the issue sought to be advanced in the subsequent set of proceedings.
37 In the course of argument counsel agreed that the argument made was in one way analogous to the important case of the State (O’Callaghan) v. Ó hUadhaigh [1977] I.R. 42. In that case, the prosecutor was returned by the District Court to the Circuit Court for trial on eight charges. The Director of Public Prosecutions lodged an indictment originally containing one count and the trial was transferred to the Central Criminal Court under the then applicable provisions for transfer of trial. Subsequently an indictment was lodged containing ten counts. At the outset of the case there was legal argument, and the trial judge ruled that the only indictment properly before the court was the original single count indictment. At that point the D.P.P. entered a nolle prosequi in regard to all of the counts and informed the court that the prosecutor when discharged would be rearrested and charged again with the same offences. The prosecutor had been remanded in custody for six months and was released. Subsequently he was rearrested and charged in the District Court. He sought prohibition of the charges. While it was accepted that as a matter of law, s.12 of the Criminal Justice (Administration) Act 1924 permitted the prosecutor to enter a nolle prosequi “at any time after the indictment was preferred to the jury” it was nevertheless contended that in the particular circumstances of the case the prosecution of the renewed charges would not accord with the standard of fair procedures required by the courts and guaranteed by the Constitution. While that case was not put on the explicit basis of abuse of process, the case has obvious parallels with that jurisdiction as it has subsequently developed. Any procedure which would be inconsistent with such guaranteed fair procedures, would be a breach of the constitutional rights of the individual, and therefore a ground for refusal of surrender pursuant to s.37 of the Act of 2003.
38 The case of State (O’Callaghan) v. Ó hUadhaigh was decided in the High Court and no appeal brought to this court. Nevertheless, the decision of Finlay P. (as he then was) has stood the test of time. It was a significant determination that the compliance with statutorily prescribed procedures did not exhaust the constitutional obligation of fairness, and a recognition that there may be circumstances where a course of action while within the legal powers of a body, may nevertheless be precluded because in the particular circumstances it would be unfair. In State (O’Callaghan) v Ó hUadhaigh, the accused had won a significant legal victory in his argument before the Central Criminal Court. As Finlay P. pointed out, it was not necessary that the decision made by the trial judge be correct: it was enough that it had been made. He continued at p.52:
“If the contention of the respondent is correct, the prosecutor, having undergone that form of trial (and remand awaiting trial) and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting a different procedure, could avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused: if the trial judge makes decisions adverse to the interests of the accused, the latter cannot obtain relief from them otherwise than by appeal from the Central Criminal Court or by appeal or review in the case of an inferior court.
It seems to me that so to interpret the provisions of s.12 of the Act of 1924 as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which signally failed to import fairness and fair procedure.”
I accept this unhesitatingly. However the question remains, whether in the particular circumstances of this case, the further proceedings for surrender, although legally permissible pursuant to the principle established in cases such as Bolger v. O’Toole and Attorney General v. Gibson, would nevertheless be a breach of fair procedures or, as counsel for Mr. Tobin puts it, an abuse of process.
39 Counsel referred to recent English authority of the Hamburg Public Prosecutors Office v. Altun [2011] EWHC 397 (Admin). There a Mr. Altun who was a Kurd born in Turkey, and at the time of the case a refugee living in England, was the subject of an application for surrender brought on behalf of the Hamburg Public Prosecutors Office. The offences in respect of which he was sought consisted of armed robberies carried out in Germany in 1996. Mr. Altun had fled Germany to Turkey. Turkey did not permit the extradition of its nationals but was willing to prosecute its nationals for offences committed abroad. Germany requested Turkey to adopt this procedure. The proceedings were however further complicated by the fact that Turkish law limited any penalty for such an offence to the maximum that could be imposed by the foreign state. Mr. Altun admitted the offences but it was argued on his behalf that as a consequence of new Turkish sentencing provisions colloquially described as an amnesty, that he would have to be released immediately. In circumstance of some confusion which were never completely clarified, Mr. Altun was released in 2001 having spent fourteen months in custody. He moved to the United Kingdom and obtained refugee status there.
40 The Hamburg Public Prosecutors Office issued a European arrest warrant requesting surrender from the United Kingdom, for the purposes of trial in Germany on the original charges. There was a hearing before a District judge who considered that the information, while confusing, nevertheless led to a conclusion that the sentence had been fully executed in Turkey and therefore that surrender was barred on grounds of double jeopardy. The crucial issue was the interpretation of Turkish procedure, and the judicial authority (which it should be remembered was the German prosecutor) had not been in a position to address the factual argument as to the consequences of the Turkish procedure within the time that was set by the court. Counsel for the judicial authority accepted that it was not then in a position to counter the defendant’s submissions within the timeframe permitted, and in the circumstances did not oppose discharge but expressly reserved the right of the judicial authority to issue a further European arrest warrant when all the information was to hand. Subsequently, a fresh warrant was issued and the District judge considered the matter afresh and decided that even on the full information that surrender was barred on the grounds of double jeopardy. However he rejected an argument that the renewed application was an abuse of process.
41 In the High Court on the appeal by the Hamburg Prosecutor, Ouseley J. affirmed the District judge’s conclusion that surrender was barred on grounds of double jeopardy. However noting that the issue had not been addressed by the judicial authority in argument he nevertheless expressed a “provisional view” that although “the concept of res judicata does not apply to extradition proceedings” nevertheless to further proceed in respect of the matter which had already been dealt with in the first proceedings constituted an abuse of process. Ouseley, J. stated:
“There are limitations to the way in which that principle [abuse of process] applies to extradition where one warrant may be defective and lead to discharge, lawfully to be replaced by another; and where it may be quite unnecessary for the all the arguments which may arise in a warrant in proper form to be deployed against the defective warrant.
But on the basis that that is the relevant principle to apply to the sort of issue and circumstances here, as I believe it to be, I consider that it was satisfied here. The issue of double jeopardy was before the District judge in 2006. It was for the defendant to prove on the balance of probabilities. If good as a point it was a complete bar to extradition and no fresh warrant could alter that. Only further evidence from the prosecutor could alter the decision. The issue was ruled on; the prosecutor did not take the step of withdrawing the warrant or trying to obtain a further adjournment to await what he hoped would be better evidence in due course. The prosecutor should have brought forward all the evidence which he relied on to defeat the defendant’s case, the case was bound to succeed on the then available material. It was for the prosecutor to make sure that he had what he needed when he instituted and continued to finality those proceedings on the European arrest warrant. It was after all his choice to bring proceedings when he did. It was not open to him thereafter to issue a fresh warrant relying on new evidence to counter the defendant’s case on double jeopardy, even if that evidence was not to hand when the first warrant was discharged.”
42 Finally, reference was also made to the decision of Moses L.J. sitting in the English High Court in Office of the Prosecutor General of Turin v Barone [2010] EWHC 3004. Again the facts of that case were rather complex. Mr. Barone was the subject of a European arrest warrant issued in 2008 and certified in 2010 for the purposes of executing a 21 year term of imprisonment for three offences of aggravated murder, attempted robbery and illegal possession and carrying of firearms in 1976. In 1997 his extradition was sought to serve the sentence which had been imposed upon him in proceedings held in his absence. Under the then applicable provisions of the United Kingdom Extradition Act of 1989 a court could refuse to return a person to a foreign state if convicted in his absence and “it would not be in the interests of justice to return him on the ground of that conviction”. The Divisional Court decided that it was not in the interests of justice to return Mr. Barone, and the House of Lords subsequently refused an application for permission to appeal.
43 The basis of the Divisional Court’s conclusion was that Mr. Barone’s trial had been conducted under the then applicable provisions of the Italian code of 1930. Under that code the prosecution was able to rely on statements made by a co-accused to an investigating judge and Mr. Barone had no possibility, either by himself or through his lawyer, of properly challenging the evidence. The accomplice did not have to be called to give evidence, and if called could not be directly cross-examined. Furthermore, if Mr. Barone had given evidence himself, his evidence would not have been regarded as of equal standing with other evidence available to the court. Those provisions, it should be said, no longer applied as part of Italian law. The Divisional Court concluded it would not be in the interests of justice to extradite Mr. Barone for two reasons. First, in the light of the evidence and procedure the conviction would require to be reviewed. Second, there was no possibility of such a review.
44 When the European arrest warrant procedure was subsequently incorporated in English law, a further request for extradition of Mr. Barone was made. Under the English Act, it was no longer possible to refuse surrender on the grounds that it was not in the interests of justice to do so. In the circumstances, no attempt was made on behalf of the Italian prosecutor to address the issues which had concerned the divisional court. Instead it was said that according to the procedure under the Act of 2003 it was enough that an application for surrender was made. The District judge held that the application constituted a collateral attack on the decision of the Divisional Court and constituted an abuse of process.
45 On appeal, Moses L.J. upheld the decision of the District judge, but on somewhat different grounds. He held that in the unusual circumstances of this case the failure of the Italian authorities to seek to demonstrate that the conviction was compliant with Article 6 of the Convention or to otherwise address the matter of concern to the Divisional Court in the 1997 decision, was an abuse of the process. At paragraph 39 Moses L.J. stated the conclusion to which he had come:
“I conclude that the response to the ruling of the Divisional Court which amounts to an attempt to ignore it merely on the basis of the Framework Decision and it does amount to an abuse of process and I uphold the decision of the District judge on that basis.”
46 It might be noted that this decision while helpful to the appellant in this case in providing one further example of the exercise of an abuse of process jurisdiction in European arrest warrant cases, is nevertheless unhelpful in that the court did not hold that the fact that a decision refusing extradition had been made was itself a bar to a further application under the Act of 2003. Similarly, in Hamburg Public Prosecutors Office v. Altun, Ouseley J. acknowledged that where one warrant was defective and led to discharge, it could lawfully be replaced by another. It should also be said that while interesting and informative both these cases are decisions of first instance and cannot be said to establish any clearly discernible principle.
47 The Minister responded to these arguments by observing first that there may be some difficulty in reconciling a wide-ranging abuse of process of jurisdiction with the provisions of the Framework Decision and the European Arrest Warrant Act 2003, and the fact that those provisions set out the exclusive grounds for refusal of surrender. However, taking the argument at its height, it was submitted that it provided no satisfactory principle which could reconcile this case with the acknowledgement that a determination of an extradition request did not normally bar further application for surrender. The argument that the inclusion of the fleeing requirement was mistaken could not be said to render the subsequent proceedings an abuse of process. To rely on that mistake as bringing the case within the principle established in cases such as Vantive where a party deliberately failed to bring forward a case that could and should have been brought in the first proceedings, was to blur important distinctions of fact, law, and constitutional status. The requesting judicial authority here, being the Hungarian courts, had no responsibility whatsoever for the form of the Irish legislation. On the other hand, it was a legal obligation on the part of the Minister as a matter of domestic law (and arguably on the part of the Executive as a matter of international law) to make an application pursuant to the warrant once it was issued. The Oireachtas which enacted the law had however no responsibility for the manner in which a relevant application was made. To acknowledge as the Minister did, that the fleeing requirement should not have been included in the Act of 2003 was to do no more than to state the obvious in light of the decision of this Court that that requirement was something which was not required by the Framework Decision. To suggest that bringing the original application was wrongful ignored these important distinctions, and the fact that to have commenced proceedings which determined the legality of the request in accordance with law was both a performance of the Minister’s obligations in law, and itself a vindication of the right of a requested person such as Mr. Tobin to have the legality of that request determined. The suggestion that the bringing of an appeal against the High Court decision was the point of abuse was particularly unfair when a party making a decision on that appeal could have no idea that it might later be argued and determined that such a decision constituted an abuse of process. If there had been no appeal the same argument would still have been made on foot of the High Court determination. Indeed, even if the application had been withdrawn in the face of the points of objections raised on behalf of Mr. Tobin, that decision could equally have been subjected to criticism, and in any event might have given rise to an application by Mr. Tobin pursuant to the principle established in State (O’Callaghan) v. Ó hUadhaigh.
48 Counsel on behalf of the Minister also argued, that if the case could not be fitted easily with the Vantive Holdings analysis then the court was left with an argument dependent on an abuse of process jurisdiction which was no more than a generalised and unprincipled assertion of unfairness, impossible to reconcile with the acceptance that a prior proceeding was normally no bar to a subsequent and successful application for extradition or surrender. To apply such a non-specific concept of abuse in such circumstances, would risk introducing very considerable uncertainty, itself inconsistent with the requirement that law should be of general application, intelligible, and predictable. In my judgment it is sufficient to say that even assuming for the moment that the court’s jurisdiction to prevent abuse of process can apply in a context such as the present I am satisfied that the matters relied upon on behalf of Mr. Tobin cannot either individually or cumulatively constitute such abuse.
Separation of Powers
49 The second way in which counsel for Mr. Tobin formulated his argument on foot of the Supreme Court decision, may in part have been an attempt to avoid the difficulties posed by the force of the observations made on behalf of the Minister on the abuse of process point. Counsel argued that the repeal of s.10 of the Act of 2003 in so much as it removed the fleeing requirement, was at least in respect of Mr. Tobin, an unconstitutional interference with the separation of powers since it sought in effect to deprive Mr. Tobin of the fruits of the victory he had obtained by his proceedings in Tobin (No.1). This was as much interference with the judicial domain as the provisions of the Sinn Féin Funds Act 1947 which were struck down in Buckley v. Attorney General [1947] I.R. 67.
50 In this regard counsel placed particular reliance on the decision of this Court in the complex case of Pine Valley Developments v. Minister for the Environment [1987] I.R. 23. There, it may be recalled, Pine Valley and a number of individuals had purchased land to develop it with outline planning permission which had been granted on appeal by the Minister of Local Government in circumstances where the development contravened the provisions of the county council development plan. Dublin County Council in due course refused to grant full planning permission. Pine Valley sought and obtained an order of mandamus in the High Court. However that decision was overturned on appeal in part on the grounds that the power to grant outline planning permission for a development that was not within the development plan was ultra vires the Minister. This decision was not only disappointing to the plaintiffs, but also uncovered a significant flaw in planning permissions which had been granted prior to 1977 and before the jurisdiction conferred upon the Minister was transferred to An Bord Pleanála. The State moved therefore to remedy that lacuna by retrospective validating permissions granted by the Minister pursuant to s.6 of the Local Government Planning and Development Act 1982. However that provision was itself subject to a saver that it did not apply where such validation would conflict with the constitutional rights of any person. That provision was understood to apply to Pine Valley and the other plaintiffs since they had exercised their constitutional right to litigate, even though the result may not have been to their liking. Therefore the case proceeded on the basis that Pine Valley’s permission had not been validated by the Act of 1982.
51 Pine Valley and the other plaintiffs sued for damages in the diminution of the value of the land. The decision of the Supreme Court is important in addressing the question of the circumstances in which any liability in damages will arise for invalid administrative action. However, the plaintiffs also attacked their exclusion from the Act of 1982 as a discrimination contrary to Article 40.1 of the Constitution. Henchy J. rejected that argument in a very short passage at the end of this judgment at p.43:
“..but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the courts may have held to be lacking in validity. It would follow that no injustice had been done to Pine Valley by s.6 of the Act of 1982 …
.. I consider that the exemption of the State from liability and damages where the Minister’s invalid planning permission is not alone not an unconstitutionality but was in harmony with the dual operation of the organs of government established under the Constitution.”
Lardner J. who was sitting as a member of that Court went further, and at page 46 said of s.6 that:
“No doubt it was apprehended that section 6 subsection 1 of the Local Government (Planning and Development) Act 1982, might operate to reverse retrospectively this court’s decision and this might constitute an unwarrantable interference by the legislature in the decision of the courts. It seems probable that it was in these circumstances that section 6 subsection 2 was enacted with a view to avoiding such interference.”
Implicit in the decision in Pine Valley was, it was argued, is a validation of a view taken by the drafter of the Act, that this State could not by legislation affect the outcome of a final judicial decision, even when that outcome was harmful rather than beneficial to the citizen involved. This showed, it was argued, that legislation could not deprive a litigant of the benefit of a decision in a dispute which had been determined by the judicial branch of government.
52 It should be said however, that this issue was by no means the subject of elaborate scrutiny in the decision of the Supreme Court in Pine Valley which was principally directed towards the claim for damages. The point was a subsidiary one, and the reasoning itself is somewhat indirect since it flows from a view attributed to the drafter of the legislation, rather than being a specific decision on an issue that was itself the subject of detailed and focussed argument. I should say in passing, that I doubt for my part, that it would have been absolutely constitutionally impermissible to validate the planning permission granted in Pine Valley’s case. Indeed, it is noteworthy that subsequently Pine Valley succeeded in obtaining compensation in the European Court of Human Rights on the grounds that their exclusion from the validating provision was a breach of their rights under the Convention: see Pine Valley Developments Ltd. v. Ireland (1992) 14 EHRR 319. Nevertheless these portions of the decision in Pine Valley do provide some support for the appellant’s arguments, and suggest that a final decision by a court is a matter which carries a constitutional weight.
53 During the course of argument reference was made to a further case which, it was said by implication at least, supported the plaintiff’s arguments. In McMahon v. Leahy [1984] I.R. 525 the Supreme Court dealt with the consequences of the change in the law in the interpretation of the political offences exception which had been effected by the then recent decision in McGlinchey v. Wren [1982] I.R. 154. The effect of that decision was that persons who asserted that the offences in respect of which their extradition was sought were of a political nature, but who belonged to unlawful organisations whose aims included the overthrow of the system of government within the State, were not entitled to claim the benefit of the political offences exception. In McMahon’s case the applicant’s extradition was sought to Northern Ireland inter alia to face charges connected with an escape from lawful custody. He had escaped from the court house with four other prisoners and crossed the border. The four co-escapers had been arrested and been the subject of extradition applications under the law prior to McGlinchey v. Wren. It was established in the Supreme Court that in two of those actions the claim of the escaper to exemption from extradition on the ground of the political nature of the escape was not opposed, and in the case of the other two the claim was opposed, but unsuccessfully. Therefore none of the four had been extradited to Northern Ireland. The Supreme Court held, that notwithstanding the change in the law consequent on the decision in McGlinchey v Wren, it would be a breach of Mr. McMahon’s constitutional rights to extradite him to Northern Ireland because to do so would result in unequal treatment contrary to Article 40.1 because the four fellow escapers had been judicially held (with at least the tacit approval of the State) to be entitled to escape extradition on the ground of political offences exception.
54 For present purposes what is significant in McMahon v. Leahy is that the argument upon which the plaintiff succeeded in that case was itself dependent upon the assumption that four co-escapers could not have been successfully extradited notwithstanding the change in the law effected by McGlinchey v. Wren. If it had been possible to renew the application for their extradition it would not have been possible for the plaintiff in McMahon’s case to argue that his treatment was invidious discrimination. Therefore it can be said that McMahon’s case itself rests upon at least an assumption that notwithstanding a change in the law, it was not possible to revisit the question of the extradition of persons who had been the subject of a final binding judicial determination on a matter of substantive law. Of course to derive that conclusion from McMahon was to lay considerable weight on what was no more than an assumption, but this led to a more general discussion of the impact of changes of the law relating to surrender and extradition. Extradition has been a contentious topic especially in recent Irish history. It is noteworthy, that since the Extradition Act of 1965 there have been a number of significant changes to the extradition regime: first, the change in the interpretation of the political offence doctrine contained in McGlinchey v. Wren; second, the statutory limitation of that exception effected by the Extradition (European Convention on the Suppression of Terrorism) Act 1987 discussed in Sloan v. Culligan [1992] 1 I.R. 233, and more recently of course the regime introduced by the European Arrest Warrant Act 2003. While it was clear that in each case the new regime was capable of being applied to offences occurring before the change in the law, it did appear there was no recorded incidence, prior at least to the jurisprudence under the European Arrest Warrant Act 2003 of any attempt being made to make a further application for the extradition of a person whose extradition had been refused under the previous legal regime. These considerations led counsel to argue that the effect of a judicial determination, and perhaps a fortiori one arrived at after the process of appeal had been exhausted, was to create a judicial determination with which as a matter of high constitutional principle the Oireachtas could not interfere.
55 Counsel also sought to advance an argument with more general application, based on the finality of the decisions of the courts. There is no doubt that important values are invested in the finality of judicial proceedings and that some at least of these values are engaged in these proceedings. The stresses on individuals and costs in terms of time and energy, which are demanded by litigation are not themselves particularly dependent upon whether that litigation is considered to be on a procedural matter, or one of substance particularly when the outcome of the proceedings may well be the same. The significance which a legal system must accord to final determinations by a court, is perhaps best illustrated by the well known case of A. v. The Governor of Arbour Hill Prison [2006] 4 IR 88. That is a case in which this court was required to consider in some detail the consequences of a determination that legislation under which a person had been convicted was unconstitutional, and therefore, at least in legal theory, void and of no effect. The conclusion that the continued detention of persons on foot of final convictions arrived at on the basis of the now invalid law is perhaps the most vivid illustration of the importance the legal system accords to final judicial determinations. As Murray, C.J. pointed out that is also the position at common law at p.116:
“The common law has never conceived as consistent with any ordered administration of justice that previously decided and finally determined cases that should necessarily be set aside or reopened in the light of a new precedent …
Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to this decision, suffer the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position.”
56 Counsel sought to argue therefore that the perceived exception to the principle of res judicata in extradition matters, should be looked at more narrowly. While it was true that a decision based on a defect on the warrant was no bar to a subsequent issuing of a warrant and surrender on foot of it, that was not the case for the decision related to a principle of substantive law where the objection was based on a matter of law. That he said stood as a bar to any further application, at least unless the law was changed. That was the position in Mr. Tobin’s case. He had secured a determination, which would have precluded any surrender to Hungary while the provisions of the Act of 2003 remained in place. That was a binding and final decision and the Oireachtas could not interfere with it by subsequent legislation.
57 To this argument, counsel for the Minister responded that once again it proved too much. If it was correct that the Oireachtas could not deprive someone of the fruits of their judicial success, then at least in that respect there was no basis for distinguishing between judicial decisions on matters which were described as procedural, and those which were described as substantive. In each case there has been a final determination by a court on the issue, and the consequence was, that so long as the decision remained unchanged, a person could not be surrendered. If the Oireachtas was precluded from interfering with the final determination of a case, how was it, that an anonymous official issuing a fresh warrant in a member state could nevertheless achieve that result? Again, another well known case illustrates the point. In the State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, the prosecutor was arrested under the Offences Against the State Act 1939, for the purposes of making him available for an extradition warrant to Australia. The government applied Part II of the Extradition Act to Australia on the same day, and later that day a provisional warrant pursuant to the Extradition Act 1965 was issued. Mr. Trimbole challenged the validity of his arrest and in what was a landmark case, both the High Court and the Supreme Court held that the arrest amounted to a deliberate and conscious violation of his constitutional rights and that he was entitled to be immediately released. The Supreme Court observed, pertinently for the purposes of this case, that the well recognised jurisdiction of the courts at common law to prevent abuse of their own process was amplified and reinforced by the decision of the courts within the framework of the Constitution. However, the Court also made it clear that this dramatic legal battle culminating as it did in a determination of the Supreme Court on a matter of major constitutional importance, did not preclude the possibility of future extradition. McCarthy J. recorded Mr. Trimbole’s counsel’s express concession that arrest on a fresh warrant or set of warrants would be valid. McCarthy J. concluded his judgment with the following observation at p.585:
“That is not to say that such an arrest might not be challenged; for myself, however, I would like to make it clear that the views I have expressed are not to be taken as any indication that the prosecutor is now seven weeks after his release free from extradition from this country.”
58 Counsel for the Minister laid heavy reliance on the decision of the High Court in Howard v. The Commissioner for Public Works [1994] 3 I.R. 394. In the early 1990’s there had been considerable controversy about the State’s plans to commence the construction of visitors’ centres in areas of scenic and environmental importance. One such proposal was a visitors’ centre in the Burren, County Clare. Concerned residents and others commenced proceedings to restrain the construction of the visitors centre. One issue raised, upon which they succeeded in the High Court, was their contention that The Commissioners for Public Works had no power to develop such a centre and accordingly the development was ultra vires the Commissioners. (See Howard v. The Commissioners for Public Works [1994] 1 I.R. 101). Six days after the judgment was delivered by Costello J. the Oireachtas enacted the State Authorities (Development and Management) Act 1993. That Act provided by s.2 that a State authority “shall have, and been deemed always to have had, power to carry out and procure the carrying out of development …”. The Commissioners then sought to restart the works at the Burren Visitors Centre.
59 The plaintiffs who had been successful in Howard v. The Commissioners for Public Works (No. 1) commenced proceedings seeking a declaration that by virtue of the judgment and order of the High Court already obtained by them the Commissioners had no power whether by virtue of the Act of 1993 or otherwise to proceed with the construction of the visitors centre and alternatively a declaration that the section was invalid having regard to the provisions of the Constitution of Ireland. Lynch J. refused the relief sought. He held that the Oireachtas did not have power to alter or reverse the determination of the High Court and that accordingly the Act must at least in application to the Commissioners power to carry out the particular proposed development, be read as if the words “and be deemed always to have had” were omitted from the Act. However he held that while an unconstitutional Act could not be retrospectively validated by legislation there was no reason why the Oireachtas could not now confer upon the Commissioners the powers which it was determined by the High Court that it lacked and accordingly that the Act was not an interference with the constitutional separation of powers, and the Commissioners were fully entitled to build the visitors centre in the contested location.
60 Counsel for the Minister urged on the Court that this case aptly illustrated the correct distinction. It was impermissible to seek to reverse the decision actually made. The plaintiffs had the benefit of the declaration and injunction for so long as the law remained unchanged, and that consequence could not be altered by legislation deeming the Commissioners to have had the powers which they had been found to lack. But the existence of that determination did not preclude an alteration of the law for the future. By analogy therefore, for so long as the law remained unchanged, Mr. Tobin was entitled to the benefit of the determination of the Supreme Court, which during that time was a complete bar to his surrender under the Act of 2003. The legal position which obtained during that period could not be altered by subsequent legislation. However, once the law was changed prospectively, it was said there was no bar to a fresh application to seek Mr. Tobin’s surrender.
61 I am satisfied that the decision of the Court in Tobin (No.1) does not mean that an amendment to s.10 removing the fleeing requirement and making it clear that Mr. Tobin and anyone else who had successfully relied on it could now be surrendered would be an unconstitutional interference with the separation of powers either generally or in respect of Mr. Tobin. Nor do I consider that to surrender Mr. Tobin would necessarily offend the separation of powers simply by virtue of the fact that Tobin (No. 1) was decided. The Act of 2009 did not in its terms seek to overturn the decision in Tobin (No.1): that decision controlled Mr. Tobin’s legal situation at least between July, 2007 and 27th August, 2009, when the Act of 2009 came into force. Nothing in the Act of 2009 affects the legal position during that period. To hold that Mr. Tobin could never be the subject of a request for surrender would be to treat a successful decision in his favour as creating almost a permanent immunity, and would run counter to the established case law that there can be repeated applications for extradition and/or surrender. Cases such as McMahon v. Leahy and Pine Valley are consistent perhaps with a view that the determination of a court of competent jurisdiction is a matter of some legal significance, but they fall well short of establishing a principle that success on a point of law brings with it a form of permanent immunity from surrender.
Section 27 of the Interpretation Act 2005
62 The third and related basis upon which it was argued that the decision in Tobin (No.1) had the effect of preventing his surrender under the amended provisions of the Act of 2003, was by reference to s.27 of the Interpretation Act 2005, provides that:
“(1) Where an enactment is repealed the repeal does not –
…
(c) effect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment …”
This provision does not stand alone. It must be read alongside the provisions of s.4 of the Act of 2005 which make it clear that the presumptions and rules set out under that Act apply to any enactment “except insofar as the contrary intention appears in this Act, in the enactment itself, or where relevant in the Act under which the enactment is made”. Accordingly s.27(1)(c) creates a presumption against the removal of any right, privilege, obligation or liability, which presumption can be rebutted by demonstrating that the Oireachtas did indeed intend to remove the right, privilege, or obligation in question.
63 It was argued that the decision of the Supreme Court refusing Mr. Tobin’s surrender in Tobin (No.1) if not an absolute bar to surrender, was certainly a right acquired, accrued or incurred under the provisions of the Act of 2003, and the amendment effected by the Act of 2009 did not demonstrate any clear intention to remove that right from Mr. Tobin. This is a noticeably narrower claim than that advanced under the previous two headings. On this argument the effect of the decision in Mr. Tobin’s favour is not an absolute bar to any subsequent extradition but rather merely conferred a right which had not been removed by clear words under the Act of 2009.
64 It is quite clear that the language of s.6(c)(ii) of the Act of 2009 was a legislative response to the decision in Tobin (No.1). It is equally clear that language used is of general application and does not specifically address Mr. Tobin’s very particular, if not indeed unique situation in that he is, it appears, the only person in Ireland who successfully resisted surrender on the grounds that he had not “fled” and whose claim had been the subject of a determination by the Superior Courts. Indeed counsel for the Minister was understandably anxious to reject any suggestion that the amendment was targeted at Mr. Tobin personally. Had that been the case then different and no less important constitutional issues would arise. But this only illustrates the narrow line the legislation had to walk. Accordingly it was forcefully submitted on behalf of the Minister that the provision was quite general in its formulation and applied equally to each and every warrant issued after the Act of 2009 came into force. However, it followed as a consequence of this argument, that it could not be suggested that if the outcome of Tobin (No.1) could be said to have vested a right in Mr. Tobin within the meaning of s.27 of the Interpretation Act 2005, that the amending section could be said to contain any clear words or embody an intention to remove that specific right. The fundamental question therefore was whether indeed, the outcome of Tobin (No.1) could be said to be a right within the meaning of s.27, or as it is sometimes referred to in the case law, a vested right.
65 This is an issue which was considered in the recent decision of this Court in Minister for Justice Equality and Law Reform v. Bailey (Unreported, Supreme Court, 1st March, 2012). In that case it will be recalled, Mr. Bailey’s surrender was sought by French authorities in respect of an offence committed in Ireland in 1996, and in respect of which the D.P.P. had decided on a number of occasions between 1997 and 2001, not to commence any prosecution in Ireland. Under the terms of s.42(c) of the Act of 2003 this was a ground for refusal of surrender. However s.42(c) was repealed by s.83 of the Criminal Justice (Terrorist Offences) Act 2005. The relevant request for surrender was made in 2011, long after the repeal of s.42(c). It was however argued on Mr. Bailey’s behalf that the existence of s.42(c) during the time in which it was enforced, conferred upon Mr. Bailey (being a person in respect of whom the DPP had made a decision not to prosecute) a right not to be surrendered and that the subsequent repeal of s.42(c) was not to be construed as affecting or removing that right. This Court concluded unanimously, following in this regard the reasoning in Sloan v. Culligan [1992] 1 I.R. 223 that the mere existence of legislation which could be invoked to resist surrender if a request was made at a particular time did not itself constitute a vested right or acquired right, so as to trigger the presumption embodied in s.27(1)(c) of the Interpretation Act 2005.
66 In the judgment I delivered in that case I observed that the provisions of s.27(1)(c) of the Act of 2005 were in a form which could be traced back at least as far as the Interpretation Act 1889, and that a considerable body of case law had built up on the interpretation to be applied to those provisions. I referred to the judgment of Lord Rodger in the United Kingdom House of Lords in the case of Wilson v. First County Trust Limited (No.2) [2004] 1 AC 816, and the decision of the Court of Appeal of England and Wales in Chief Adjudication Officer v. Maguire [1999] 1 WLR 1778. It is apparent from these cases that while there has been extensive consideration of the presumption now contained in s.27(1)(c), that case law is not necessarily easy to reconcile. In particular, as Lord Rodger observed, at paragraph 196 of his judgment, “The courts have tried, without conspicuous success, to define what is meant by “vested rights” for this purpose”. Indeed Lord Roger observed that the difficulty in reconciling the case law lent some weight to the criticism that the reasoning in those cases was essentially circular and, that courts were inclined to attach the label “vested” to those rights which they conclude should be protected from the effect of the new legislation. I suggested that there seemed to be a dual inquiry, first whether it appeared at the time the right was granted that it was intended to be temporary or more permanent; and second, a closely related inquiry as to whether it was unfair now to remove it even for future events. Due to the assistance the court was able to derive from the reasoning in the decision in Sloan v Culligan, it was not necessary to pursue that issue further in Bailey. It does however arise on this appeal.
67 It is important to remind ourselves that we are dealing with a right at common law, and no issue of any constitutionally protected right arises. In that sense, a right can be said to be the entitlement of a person to do something which is not itself specifically prohibited, and which a court will enforce as a matter of entitlement and not merely as a matter of discretion. To some extent therefore it can be said much legislation interferes with existing rights in that sense, and indeed is intended to do so. In identifying what can be said to be “vested” rights which trigger the presumption in s.27 there is I think much useful guidance to be gained in Bennion, Statutory Interpretation (4th Ed. Butterworths, 2002) which states that “the right must have become in some way vested by the date of a repeal, i.e. it must not have been a mere right to take advantage of the enactment now repealed”. A similar point was made in the 9th edition of Craies on Legislation (Sweet & Maxwell 2008) at para. 14.4.12:-
“The notion of a right accrued in s.16(1)(c) requires a little exposition. In particular the saving does not apply to a mere right to take advantage of a repealed enactment (clearly since that would deprive the notion of a repeal of much of its obvious significance). Something must have been done or occurred to cause of a particular right to accrue under a repealed enactment.”
68 The outcome of the Bailey case on this point neatly illustrated the distinction made in these texts. Mr. Bailey’s right during the currency of the Act of 2003 could properly be described as a “mere right to take advantage of a repealed enactment”. In his case nothing had been done to cause a particular right to accrue under that enactment. The question then raised on this appeal was whether the decision of the Supreme Court in favour of Mr. Tobin in Tobin (No.1) was something which had been done or occurred which caused a particular right to accrue under and by virtue of the repealed enactment. Counsel on behalf of Mr. Tobin asserted that it did. The right he identified was the right to resist surrender to Hungary in respect of these offences and this sentence for so long as the Act remained in force. On behalf of the Minister it was said that if the right was formulated as a right to resist surrender while the Act remained in force, then the Act of 2009 did not affect that right since it was an inherently limited right i.e. a right only for so long as the law remained in the form contained in the Act of 2003. To this counsel for Mr. Tobin responded that this for once was an argument on behalf of the Minister which itself proved too much. It begged the question in this case, since in all cases to which s.27 applies, the right in question arises under legislation which is subsequently repealed. Every such right can be said to be inherently limited, since it can be removed by statute: the question is whether it was intended to remove the right intended. The purpose of s.27 is to deal with the consequence of repeal of the underlying legislation, and it did so by requiring that a clear intention should be demonstrated to remove the right in question. Whether such intention was apparent in the general words of the Act of 2009 was the issue in this case.
Decision
69 In my view this case cannot be decided by an appeal to some sweeping constitutional principle of uncertain extent, or invocations of generalised statements of law. In particular the statement that “res judicata is not applicable to extradition” is one that while perhaps unremarkable as a rule of thumb, requires closer scrutiny. It suggests on the one hand that the application of the law in relation to extradition is an exception to a general rule and ought therefore to be narrowly construed. In fact, it may be that there is nothing unique about the law of extradition in this regard. The feature identified – that a fresh warrant can always be issued and executed after a court has refused to enforce an earlier warrant on the grounds of some defect – is common to any warrant whether for arrest or for search. It is a feature therefore of the law of warrants rather than the law of extradition. It is relatively unusual that the validity of a search warrant would be considered outside the context of an argument as to the admissibility of evidence in a trial, but where it is such as in the case of Simple Imports Ltd. v. Revenue Commissioners [2000] 2 I.R. 243, there seems little doubt that if a new warrant was issued, and the material was still available, it could be seized on foot of the new warrant. It is a common place of the law of habeas corpus and Article 40.4 inquiries, that warrants or arrests may be held invalid, and a person released, but arrangements can lawfully be put in place to effect an immediate re-arrest. In the somewhat different circumstances of Curtin v Dáil Éireann [2006] 2 IR 556 it was held that where a computer had been seized on foot of a search warrant unlawfully and in breach of the applicant’s constitutional rights, the evidence was declared inadmissible at the trial and he was acquitted on those charges and could not be prosecuted again. However, a subsequent direction given by an Oireachtas committee for production of the computer was held to be valid, Murray C.J. observing at page 166, “If the computer could have been and had been returned to his possession it could not be said that the exclusionary rule means that it was forever immune, in all circumstances, from a lawful seizure or order for production”. Therefore, whether the determination that a warrant is invalid has a temporary or permanent consequence depends upon other factors such as whether it occurs in the context of a trial and results in an acquittal, or whether it is or remains possible to issue and execute a fresh and valid warrant.
70 These considerations lead me to the conclusion that it is not only desirable, but also perhaps particularly appropriate, to consider the narrow argument advanced in relation to s.27 of the Interpretation Act 2005 . The fundamental issue here is whether the outcome of Tobin (No.1) is a “right” and more importantly a “vested right” so that it is proper to presume that the Oireachtas did not intend to interfere with that right unless the contrary intention clearly appears either from the text of amending legislation, or its context, or both. On this argument, it is not necessary to go so far as to hold that the decision in Tobin (No. 1) could not lawfully have been interfered with by subsequent legislation, or indeed that there had been conduct which amounted to an abuse of the process: it is sufficient that Mr. Tobin should be in a particular class of person who was entitled to have his case the subject of specific consideration by any amending legislation. As the quotation from Craies indicates, the question is whether something had happened which means that Mr. Tobin’s entitlement was something more than to take advantage of the repealed legislation. In this regard, his case can usefully be contrasted with the decisions in Sloan v. Culligan and in the recent case of MJELR v. Bailey. In each of those cases, it was determined in effect, that nothing had happened during the currency of the repealed legislation to give the individuals concerned any vested right which required to be specifically addressed to any subsequent repealing legislation. Here however something has happened. There was an application for surrender hearing and a determination both by the High Court and this Court on appeal. The question therefore is whether that can be said to be “something” for the purpose of the law so as to trigger the provisions of s.27.
71 It is here that the discussion on abuse of the process and separation of powers becomes helpful. I have no doubt that a full hearing and determination of a request for surrender is certainly something. I think it can also be properly said that the outcome of Tobin (No. 1) was to confer or create a right. In the aftermath of Tobin (No.1) Mr. Tobin could not have been extradited or surrendered to Hungary in respect of this sentence, so long as Irish law retained the fleeing requirement. That was a right, and not a privilege. For example, if Mr. Tobin had been arrested immediately after the Supreme Court decision on foot of a warrant seeking his surrender to Hungary to serve this sentence, I consider it arguable he would have been entitled to seek release from custody under Article 40.4 without having to proceed to a hearing in the High Court or Supreme Court on the warrant. Certainly he would have to have succeeded in any hearing on the warrant. His entitlement not to be surrendered having been conclusively determined by the existing law, then I think it could be said he would have a right to be released, and certainly a right to resist surrender, which once established a court would be bound to uphold. Indeed, as the discussion in A. v. The Governor of Arbour Hill Prison shows, such a final determination would be proof against even a change in the common law in the shape perhaps of the subsequent Supreme Court determination which overturned the holding in Tobin (No.1) and determined that a person leaving in similar circumstances would be held to have fled. Such a determination might overturn the law established in Tobin (No.1) but would not effect the outcome of Mr. Tobin’s own case. The final determination of his case, even if subsequently considered erroneous in law, would still be a bar to further proceedings. Indeed, it seems that even if the fleeing requirement was held to be repugnant to the Constitution and therefore was prima facie never a part of the legislation, the final determination of Mr. Tobin’s case would, as I apprehend it, still act to prevent surrender just as surely as the conviction in the case of Mr. A. prevented his release from imprisonment notwithstanding the finding that the Act creating the offence of which he was convicted was, at least in one respect, inconsistent with the Constitution and deemed not to have survived the coming into force of the Constitution.
72 It is in this context that some of the fragmentary pieces of evidence amassed to support the different and more expansive arguments advanced, may have their best effect. The fact, if it be so, that notwithstanding two significant changes of the law relating to political offences, that no person who had been previously determined to be entitled to the political offence defence was subsequently the subject of any application for extradition, is itself at least suggestive of the high value attached to a final determination by a court on the state of the then existing law so that it was then not necessarily affected by a subsequent change in legislation which on its face was of general application. Similarly the decision in McMahon v. Leahy seems to proceed on the implicit assumption that the co-accused could not themselves have been the subject of a renewed application for surrender. Finally, the unusual shape of the legislation in issue in Pine Valley appears to have been dictated by a view of the significance of a determination, even in that case an adverse determination, by the court. These separate instances all support the conclusion that when a binding judicial determination is made by reference to the law then in force, something of legal significance happens and a right is acquired or accrues within the meaning of s.27 Accordingly, I have no doubt that what Mr. Tobin had acquired as a result of the decision in Tobin (No.1) and can properly be described as a right acquired or accrued for the purposes of s.21 of the Interpretation Act 2005. This is consistent with the decision of the Privy Council for example in the important case of Abbot v. The Minister for Lands [1895] AC 425, where Lord Herschell, L.C. stated at p.430:
“It may be, as Windeyer, J. observes, that the power to take advantage of an enactment may without impropriety be termed a “right”. But the question is whether it is a “right accrued” within the meaning of the enactment which has to be construed. Their lordships think not, and they are confirming this opinion by the fact that the words relied on are found in conjunction with the words “obligation incurred or imposed”. They think that the mere right (assuming it is properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed to right a “right accrued” within the meaning of the enactment”. (Emphasis added)
Although here the act done to avail Mr. Tobin of a right is not done by Mr. Tobin himself, but rather is a consequence of proceedings in which he was a reluctant participant, the conclusion is in my view the same, and if anything stronger. By the same token it is useful to consider the status of the High Courts rejection in Tobin (No.1) of a number of grounds advanced by Mr. Tobin, such as lack of correspondence. While it was not argued on this appeal, (perhaps for reasons of prudence as much as legal theory) it would seem that it would be arguable that those determinations created a res judicata against Mr. Tobin on those issues. In the circumstances, I have no doubt that the determination of Tobin (No.1) was an event by virtue of which a right was acquired or accrued.
73 That however is not the end of the inquiry. The right that Mr. Tobin had acquired or which had accrued after Tobin (No.1) was a right not to be surrendered. However, that right could be taken away by a change in the law. Here the law had changed, and the specific question which had to be addressed, and for which s.27 of the Interpretation Act 2005 provides guidance, is whether that change in the law was intended to merely remedy prospectively the legal flaw identified by the decision in Tobin, or to go further and ensure Mr. Tobin himself was to be subject to the possibility of future surrender for the offences which had been the subject of the request in Tobin (No.1).
74 The mere existence of a right does not preclude statutory interference with that right. Indeed, it may be relatively easy to infer such an intention in many cases. As Lord Rodger observed in Wilson v. First County Trust the presumption is a weak one and easily rebutted. All that the presumption requires is that the intention clearly appear either from the text of the specific words used, or from the context of the amending legislation. Thus to take for example a case of a company which had successfully established that its business of ripening fruit was manufacturing for the purposes of the tax code. A subsequent amendment of general application would normally be held to apply just as much to that company as to all others. This would not require any specific words in the section. It would arguably follow from the structure of the Finance Acts which introduce a new tax code each year, the strong presumption that taxation provisions are of general application, and the fact that there is a fresh collection of tax each year. By the same token the fact that a decision such as that in Howard related not so much to the rights of the plaintiff, as to the powers of the defendants, would make it relatively easy to assume that any general amendment of the powers of a public body would be as applicable in respect of developments objected to by individuals who had succeeded in the previous case, just as much as to any other developments. Indeed the absurdity that would ensue if the only place in Ireland where the Commissioners of Public Works could not carry out works would be the very specific site involved in that case (and then only in respect of the individual plaintiffs) would make it plain that an amendment in general terms would operate prospectively, to give to the Commissioners powers to carry out works in relation to that site. A slightly different approach is illustrated by the decision in L.M. v. Devally [1997] 2 ILRM 369 where Carroll J. held that the immunity under future proceedings acquired under s.10(4) of the Illegitimate Children (Affiliation) Orders Act 1930, only existed in respect of further proceedings under that Act, and accordingly was not carried over by virtue of the provisions of s.21(1)(c) of the Interpretation Act 1937.
75 It may however be the case that in a case involving personal liberty greater care, and specificity, may be required. But it seems entirely consistent with principle, and indeed with the respect which is owed by one organ of the State to the other, to inquire first if an advertent decision is made by the Oireachtas to ensure that Mr. Tobin (and anyone else who had succeed on the fled point) was to be surrendered notwithstanding the general reluctance, which both the Oireachtas and the Executive have shown as a matter of history to interfere with the outcome of final decisions of the courts in a particular case, even when altering the general law determined in that case. The very fact that the Minister properly insisted on this appeal that the legislation was not targeted at Mr. Tobin personally, illustrates the sensitivity of the issues involved, and the fineness of the constitutional distinction in issue. Once it is recognised that at the very least different considerations apply in the case of someone such as Mr. Tobin, than those which arise in the case of another person who has not been the subject of any determination, then it is an entirely legitimate question to ask whether the Oireachtas intended that Mr. Tobin (and anyone in a similar situation) should be exposed to a further application for surrender. It is for the Oireachtas in the first place to decide whether it is fair in all the circumstances that the new rule should also apply to a person such as Mr Tobin, before any court considers any question of constitutional fairness. In this case of the Act of 2009, language of general application is used. No differentiation is made between the different classes of person who might conceivably be subject to the now amended legislation. In such circumstances it cannot be said that a specific intention can be discerned from the legislation that, while eschewing any intention to target Mr. Tobin personally, it was intended that Mr. Tobin should be subject to surrender. In such circumstances it is the proper application of the presumption contained in s.27(1)(c) of the Interpretation Act 2005, (itself a recognition of the proper interaction of the different organs of government in the making and interpretation of legislation), to hold that it has not been demonstrated that the Oireachtas has expressed any clear intention that the right which was acquired by or accrued to Mr. Tobin on the decision in Tobin (No.1) was to be removed.
Conforming Interpretation
76 It remains to consider whether the result arrived at by the application of domestic principles of interpretation is affected by the obligation of conforming interpretation, which this Court must apply since this the Irish legislation implementing a Framework Decision. The manner in which this obligation is applied, and the limitations upon it have been addressed most recently in the judgment of Fennelly J. in MJELR v Bailey [2012] IESC 16 at paragraphs at paragraphs 52-67 of his judgment. As is so clearly set out there, the obligation is not to interpret a domestic provision by reference to an asserted general purpose of the Framework Decision, but rather to consider the purpose of the specific provision of the Decision sought to be implemented by the section or sections of the domestic act which is to be interpreted. Here section 6(c)(ii) of the Act of 2009 was introduced to bring Irish law into conformity with the Framework Decision. However that obligation, and the interpretive obligation is a general one, it is to ensure that the domestic law conforms to the European Framework. The issue here is not general but specific: in so amending the Irish law did the Oireachtas intend that anyone who had succeeded in resisting surrender on the now repealed provision should be subject to surrender? The Framework Decision says nothing about that issue, or indeed about the status of a prior judicial refusal. Accordingly there is no provision of the Framework Decision embodying a purpose to which section 6(c)(ii) must be interested conformably.
77 Reference was made in the course of the judgment of the High Court and in argument in this Court to the decision in M.J.E.L.R. v. Aamand [2006] IEHC 382, in which Peart J. held that the fact that the Respondent there had successfully resisted extradition under the Extradition Act 1965 ([1995] 1 ILRM 1) did not bar his surrender under the regime created by the Act of 2003. However that case observation was strictly speaking obiter since the respondent in that case was successful in resisting surrender on another ground, and furthermore there was no appeal and therefore no consideration of the issue in this court. However it should be observed that the subject matter of that decision differs from the issue in this case. Here we are concerned with a single amending provision in the Act of 2009. Aamand concerned the interpretation of the entire regime introduced by the Act of 2003 Act. It follows from the principle of interpretation applied in this case that there can be no a priori rule that any subsequent legislative change must render persons available for surrender, any more than there is a rule that a prior judicial refusal of surrender immunises a person for all time. It is a question, at least in the first place, of the interpretation to be applied to each piece of legislation and the intention of the Oireachtas as expressed therein or to be deduced therefrom.
78 It is apparent that the point from which I differ from some of my colleagues is a narrow question of whether a sufficient intention appears from the Act of 2009 that Mr. Tobin, and anyone who had succeeded on the same point, should nevertheless be subject to surrender. Since the Act of 2009 amendment is expressed in entirely general terms I accept that that is a matter of interpretation, and at bottom, a matter of impression. I fully understand the basis upon which other members of the Court have to come to a different conclusion albeit, that I respectfully consider that the reasoning of the majority does not significantly explain the significance of cases such as State (O’Callaghan) v. O’hUadhaigh, Pine Valley and McMahon v. Leahy and others. I conclude that the decision in Tobin (No.1) vested in Mr. Tobin a right which the provisions of s.6 of the Act of 2009 have not shown a clear intention to remove or alter, and accordingly I would allow the appeal on this narrow ground.
Judgment delivered on the 19th day of June 2012 by Denham C.J.
1. The events leading up to this appeal commenced on the 9th April, 2000, in the city of Leányfalu, Hungary, when Ciarán Tobin was driving a car which went up on the sidewalk and two small children were killed.
2. This is an appeal by Ciarán Tobin, the respondent/appellant, referred to as “the appellant”, from the judgment of the High Court (Peart J.) delivered on the 11th February, 2011, and the order that the appellant be surrendered to Hungary, pursuant to s. 16 of the European Arrest Warrant Act, as amended.
3. The learned High Court judge was satisfied that the Court was required to order the surrender of the appellant to the authorities in Hungary.
4. By order dated the 10th March, 2011, the High Court certified that its decision to surrender the appellant involved a number of points of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.
Certified Questions
5. The questions certified by the High Court were:-
(a) Whether it is an abuse of process and/or contrary to Articles (6), (34) and/or (37) of the Constitution or is otherwise impermissible pursuant to the European Arrest Warrant Act, 2003 as amended for proceedings to be instituted pursuant to that Act seeking the extradition of a person for a second time where
(i) The first such proceedings failed following a determination by the High Court and Supreme Court that the appellant had not fled from the requesting State as required pursuant to the law as it stood at the time of the said proceedings.
(ii) The second proceedings have been instituted following an amendment of the European Arrest Warrant Act, 2003, so as to remove the requirement that the appellant had fled from the requesting State.
(iii) The warrant on foot of which the second request was made is substantively the same as the first.
(b) Whether the provisions of the European Arrest Warrant Act, 2003, as amended apply to convictions imposed in States prior to their accession to the European Union.
(c) Whether s. 5 of the 2003 Act as amended requires the Minister in establishing correspondence to demonstrate that the offence as described and identified in the warrant would in its entirety constitute an offence under Irish law and whether the offence particularised in the warrant herein discloses an offence under Irish law.
(d) Whether it is a breach of the right to equality under Article 40.1 of the Constitution and family rights under Article 41 and 42 of the Constitution and Article 8 of the European Convention on Human Rights and/or otherwise contrary to the provisions of the European Arrest Warrant Act, 2003 as amended for the appellant as an Irish citizen to be extradited to Hungary in circumstances where having fled the jurisdiction it is not possible to serve his sentence of imprisonment in Ireland without returning to Hungary.
Facts
6. The appellant’s surrender is sought on a European Arrest Warrant issued by the Hungarian authorities on the 17th September, 2009, referred to as “the EAW”.
7. The offence for which the appellant was convicted and sentenced is described on the EAW as follows:-
“At around the time of 3.45 p.m. on 9th April 2000, Tobin Francis Ciarán was driving Volvo S40 car with licence plate number GJZ-5—with four passengers along Móricz Zsigmond Street within the city limits of Leányfalu (Hungary), in an inhabited area, at a speed of 75-80 kilometres per hour proceeding from the direction of Visegrád to Szentendre. The accused steered to the right for unknown reasons, and due to this sudden movement of the steering wheel, and to the speed, being excessive compared to the traffic conditions, the vehicle went up on the sidewalk, which was separated from the road by a raised stone edge, at a speed of 71-80 kph, and hit Márton Zoltai, aged 5, who was waiting on the sidewalk, and Petra Zoltai, aged 2, who was sitting in a pram. Both Márton Zoltai and Petra Zoltai died on the spot as a result of the accident.”
8. The Court in Hungary found the appellant guilty of the misdemeanour of the violation of the rules of public road traffic by negligence causing death.
9. The enforceable judgment is dated the 7th May, 2002, by the Buda Regional Court as the Court of first instance, and the order dated the 10th October, 2002, by the Pest County Court, as the Court of second instance.
10. The sentence imposed on the appellant is described on the EAW as:-
“Length of the custodial sentence or detention order imposed: 3(three) years of imprisonment to be served in a low-level security prison. Remaining sentence to be served: 3 (three) years in a low-level security prison.”
11. There is a history to his appeal, as an earlier EAW from Hungary was previously before the Irish Courts and the surrender of the appellant was refused.
12. The Minister for Justice, Equality and Law Reform, the applicant/respondent, referred to as “the Minister”, had previously sought surrender of the appellant under the European Arrest Warrant Scheme, as implemented in Ireland by the European Arrest Warrant Act, 2003, referred to as “the Act of 2003”. The appellant was arrested on the 11th January, 2006, on foot of warrants issued by the authorities in Hungary seeking his surrender. The High Court refused to order his surrender by its order on the 12th January, 2007. The Minister appealed that decision to this Court, which dismissed the appeal and refused to order the surrender of the appellant on the 3rd July, 2007: The Minister for Justice, Equality and Law Reform v. Tobin IESC 3, hereinafter referred to as Tobin (No. 1).
13. The previous proceedings were decided on the basis that the appellant could not be surrendered as s. 10 of the Act of 2003 did not apply to the appellant, as it required that the person sought had “fled” from the issuing State. As a person who had lawfully left Hungary after his passport was returned to him by the Hungarian authorities, it was held that the appellant had not “fled” Hungary and so could not be surrendered under s. 10 of the Act of 2003.
14. The Irish law was amended. Section 6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, removed the requirement of persons having “fled from the issuing State” from s. 10 of the Act of 2003.
15. Section 10 of the Act of 2003, as amended, now states, in the sections relevant to this case:-
“Where a judicial authority in an issuing state issues a European arrest warrant in respect of a person—
[…]
(d) on whom a sentence of imprisonment or detention has been imposed in that state in respect of an offence to which the European Arrest warrant relates,
that person shall, subject to and in accordance with the provisions of this Act and the Framework Decision, be arrested and surrendered to the issuing State.”
Issues
16. An agreed list of issues was prepared for the Court by counsel for the parties on this appeal, as follows:-
A. Given that this Court held in (Tobin No. 1) that the extradition of the appellant pursuant to the provisions of the Act of 2003 as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:
(i) the principles governing abuse of process;
(ii) the constitutional doctrine of separation of powers;
(iii) the provisions of section 27 of the Interpretation Act 2005.
B. Given that the Transfer of Execution of Sentences Act 2005 requires the appellant to have fled in order for that Act to have effect so that that Act does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence so imposed upon him in this State consequent upon his not having fled Hungary, is his surrender to Hungary to serve that sentence precluded by the provisions of the Act of 2003, and in particular section 37 thereof?
C. Does the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request result in a lack of reciprocity having regard to which the instant request ought to be refused pursuant to section 37 of the Act of 2003, or otherwise?
D. Does the offence identified in the warrant the subject hereof – violation of the rules of public road traffic by negligence causing death – and/or the facts as alleged against the appellant correspond to an offence under Irish law?
E. Does the warrant the subject hereof comply with the provisions of s.11 of the Act of 2003, as to the manner in which the sentence imposed upon the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court in Tobin (No. 1) as to the nature of the sentence imposed on the appellant)?
F. Do the provisions of the Act of 2003 as amended, apply so as to enable the extradition of a person to a European Union State in respect of a conviction imposed by the Courts of that State prior to its accession to the European Union?
G. Is the warrant the subject hereof and/or the proceedings brought on foot of it invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the warrant the subject hereof, the provisions of the Criminal Justice (Miscellaneous Provisions) Act 2009 were not published or disseminated.
H. Ought the extradition of the appellant otherwise be refused having regard to:
(a) The period of ten years that has elapsed since the incident to which the warrant relates;
(b) An alleged lack of fair procedures attendant upon his original conviction having regard, in particular, to the exclusion of relevant statements at the trial, and failure to preserve relevant evidence;
(c) The alleged threat to the life and bodily integrity of the Appellant if he is returned to serve his sentence in that jurisdiction.
Chronology
17. As indicated earlier, this case has a history. In an appendix to this judgment a chronology is set out.
The Framework Decision
18. The Framework Decision of the 13th June, 2002, introduced a new, simplified, system of surrender of sentenced or suspected persons for the purposes of execution of a sentence or a detention order or to conduct a criminal prosecution. It was agreed to in order to remove the complexity and potential for delay inherent in the previous extradition procedures which existed between member states of the European Union. The new system is based on judicial decisions in the member states. In fact, the European arrest warrant system was the first concrete measure in the field of criminal law implementing the principle of mutual recognition, which is the cornerstone of judicial co-operation.
19. The Framework Decision established an obligation to surrender between member states. Article 1.2 provides:
“Member States shall execute any European Arrest Warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision.”
However, this obligation is subject to exceptions.
20. Thus, for example, Article 3 of the Framework Decision sets out grounds for mandatory non-execution of a European Arrest Warrant.
21. Also, Article 4 provides grounds for optional non-execution of the European Arrest Warrant; for example, where the person who is the subject of the European Arrest Warrant is being prosecuted in the executing Member State for the same act as that on which the European Arrest Warrant is based.
22. In addition, Article 5 makes provision that in particular cases guarantees are to be given by the issuing member state.
23. Therefore, it may be seen that the Framework Decision provides a system of surrender, to which there are some exceptions.
24. Fundamental rights and legal principles are expressly addressed in Article 1, where it is stated that the Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union.
Irish Statute
25. The Oireachtas enacted the Act of 2003 and it came into operation on the 1st January, 2004.
26. The Act of 2003 was amended by the Criminal Justice (Terrorist Offences) Act, 2005, and the Criminal Justice (Miscellaneous Provisions) Act, 2009, which together are referred to as “the Act of 2003, as amended”.
27. The mandatory nature of the system of surrender may be seen in s. 10 of the Act of 2003, as amended, which is set out earlier in this judgment.
Thus where, as here, a judicial authority of an issuing state issues a EAW a person on whom a sentence of imprisonment has been imposed in respect of an offence to which the EAW relates, that person shall be surrendered, subject to the provisions of the Act of 2003, as amended, and the Framework Decision.
27. Therefore, the issue on this appeal is whether the provisions of the Act of 2003, as amended, and the Framework Decision as applied in Ireland, make provision by which the surrender of the appellant should be refused. In essence, the query is whether any of the exceptions to the general rule, requiring that a requested person be surrendered, apply to the appellant.
28. The first, and most important, issue, as set out in the agreed list of issues, is repeated here, for ease of reference, and is:-
“Given that this Court held in Tobin (No. 1) that the extradition of the appellant pursuant to the provisions of [the Act of 2003] as then in force was not permissible because he had not fled Hungary, is his surrender following amendments to that Act so as to remove the requirement that a person have so fled precluded in circumstances where the warrant on foot of which the present proceedings have been brought is substantively the same as the warrant the subject of Tobin (No. 1) and having regard to:
(i) the principles governing abuse of process;
(ii) the constitutional doctrine of separation of powers;
(iii) the provisions of section 27 of the Interpretation Act 2005.”
Thus, there are in reality three matters to be considered under this stated issue, being in all the circumstances the application of:
(a) abuse of process;
(b) separation of powers; and
(c) section 27 of the Interpretation Act, 2005.
Abuse of process
29. The issue under this heading is whether, given that this Court in Tobin (No. 1) held that the surrender of the appellant pursuant to the statute then in force was not permissible because he had not “fled” Hungary, is his surrender on the amended statute, where the EAW is substantively the same as the warrant in Tobin (No. 1), prohibited by principles governing the abuse of process?
30. The historical context of the decision in Tobin (No. 1) is important. Initially under the Act of 2003, Ireland had a requirement under domestic statutory law that was not in the Framework Decision. This was an additional factor put into national law, and it was that the person sought had:
“fled from the issuing state”,
before he or she had commenced serving that sentence or completed serving that sentence.
31. In Tobin (No. 1) Fennelly J. (with whom the other members of the Court agreed) gave the reasons for the Court’s decision. He pointed out that the appeal concerned the meaning of the word “fled” in the Act of 2003, and whether the appellant had “fled” Hungary. Having reviewed the facts, Fennelly J. held that the appellant’s leaving of Hungary could not reasonably be described as “fleeing” or “flight” in accordance with any generally understood meaning of the word. Fennelly J. was satisfied that the appellant did not “flee” Hungary, and that if the Court were to hold otherwise it would be contrary to the Act of 2003, i.e. contra legem. Consequently, the appeal of the Minister was dismissed and the appellant was not ordered to be surrendered to Hungary.
32. The EAW before the Court on this appeal is substantially the same as was before the Court in Tobin (No. 1). The fundamental facts are the same, except that the national law has been altered and no longer has the requirement, (which was an additional condition to those set out in the Framework Decision), that the requested person had “fled” the requesting state. This amendment brought the national law into conformity with the Framework Decision. This was an amendment the Oireachtas was entitled to make, and was not an abuse of process by the legislature.
33. In issuing this EAW Hungary seeks the surrender of the appellant to serve the sentence imposed by the courts of Hungary. This request was in keeping with the EAW scheme and was not an abuse of process by the requesting state.
34. The Minister received this request, which on its face meets the requirements of the law. There is an obligation on the Minister to proceed with such a request. Therefore, proceeding with the request was not an abuse of process by the Minister.
35. Further, on the matter coming before the Court, the EAW being in conformity with national law and with the Framework Decision, the documents were apparently in order.
36. Thus, no party or institution acted with mala fides. This is a factor in analysing circumstances to determine whether or not there has been an abuse of process.
37. However, it is also necessary to consider whether, in all the circumstances, there has been a cumulative effect so as to render an abuse of process upon the appellant.
38. The fact that there was an earlier arrest warrant does not per se render a subsequent warrant an abuse of process. Second warrants are not an unusual occurrence in an extradition process. While the law in Ireland prior to the Act of 2003 was grounded on the Extradition Act, 1965, the fundamental principle has not altered.
39. The fundamental principle was considered in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002) where I stated:
“The issues before the District Court on these warrants will be different. No broad issue has been determined as to the extradition of the applicant to England. Technical issues were raised successfully in relation to the original set of warrants. There is now a new set of warrants for consideration by the courts. The applicant may also raise wider issues, as he is entitled to. I am not satisfied that the case law submitted by counsel for the applicant, such as Henderson v. Henderson, advance his case on the res judicata issue. As to the issue of delay, that was not a matter on the judicial review nor was it considered in the High Court. Consequently, it is not a matter for consideration on this appeal.
This case is being decided on all its circumstances. The decision relates to the presentation of second set of warrants to the District Court.
The warrants in issue are different from those warrants which came before the District Court in 1996. They have been endorsed. Thus it is now for the District Court to exercise its jurisdiction.
While on the one hand counsel for the applicant submitted that these warrants were res judicata, he also submitted (when addressing an issue of abandonment) that the State could have adjourned the early application in the District Court to obtain new warrants, or that it could have moved by a subsequent provisional warrant. In essence counsel was submitting that a new set of warrants should have been obtained more speedily.
I am satisfied that under the Extradition Act, 1965 the scheme of rendition by way of backing of warrants does not exclude subsequent warrants. Before the District Court in this case are a new set of warrants, the jurisdiction of the District Court may proceed. The issues before the District Court are different, it has been stated that the two issues that arose under the original warrants have been rectified.
The warrants are new and any issues which may be raised will be different. The fact that the applicant was discharged by the District Court on foot of a previous set of warrants where there were two errors does not exclude a fresh set of warrants being produced and being endorsed. New warrants which have been endorsed now arise to be considered by the District Court. It is for the District Court to exercise its jurisdiction under the Extradition Act, 1965 as amended. The fact that a previous set of warrants existed and on which the applicant was discharged does not prima facie exclude the production and endorsement of a second set of warrants. It may well be that for good reason, in the circumstances of the case, a court may determine that an application for rendition should be refused. Thus, if it were an abuse of process the application may fail. In this case the applicant has been refused leave to make a specific application grounded on specified issues of abuse of process. However, that would not be a bar to any subsequent application for habeas corpus on different issues. Similarly, issues such as delay, which may arise in accordance with the legislation as well as the Constitution, are separate issues which may be raised. However, these matters are not before this court.”
40. Similarly, in this case, no broad issue was determined in Tobin (No. 1). The specific issue of whether he had “fled” Hungary was raised, and determined in his favour. There is now a new warrant and the issue of whether he “fled” does not arise. The system of surrender established under the Act of 2003, as amended, and the Framework Decision, do not exclude subsequent warrants. The fact that the appellant succeeded when he brought proceedings on the first warrant does not prima facie exclude a further warrant. It is necessary to consider all the circumstances of each case as they arise. Thus, if an issue such as delay had been determined on a warrant that could govern any subsequent warrant. But where a net issue is determined in relation to an initial warrant, e.g. the “fled” issue in this case, that is a discrete issue which would not prima facie exclude a subsequent warrant.
41. In Attorney General v. Gibson (Ex tempore, Unreported, Supreme Court, 10th June, 2004) Keane C.J. stated that it was clear beyond argument that:-
“In extradition cases, the mere fact that a warrant has been issued and an application made arising out of the warrant to the court for an order of extradition, that a warrant has been issued on an earlier occasion arising out of precisely the same alleged offence, and has been adjudicated upon by the District Court or any court of competent jurisdiction, that fact does not, of itself and by itself, preclude a subsequent application to a court of competent jurisdiction. If there were any doubts that that is the state of law, they were, in my view, laid to rest by the decision of this Court in Bolger v. O’Toole …”
42. This approach to subsequent warrants is not unique to Ireland. In Office of Public Prosecutor of Turin v. Barone EWHC 3004 (Admin) it is clear that the same principle exists in England and Wales. Lord Justice Moses stated at paragraph 29:-
“I quite accept that the mere fact that a previous request for extradition under the old regime had failed is not of itself a basis for refusing a fresh request for surrender as it might more accurately be described, under the new regime. It is possible to envisage just the same circumstances as occurred in Kashamu, in which a request failed for non disclosure but was repealed under the new regime. But it does not follow that the previous consideration of the court of the requested state is irrelevant.”
43. A request for surrender and its determination in the executing state is a matter which is sui generis. It arises in a situation where the state has entered into an agreement with other states, and there has been consequent legislation establishing a process of surrender of persons. No issue under civil or criminal law is decided. A process by which a person is surrendered by one jurisdiction to another is followed. One of the consequences of this process is that there may be subsequent requests for surrender, there may be more than one warrant seeking the requested person.
44. As Advocate General Kokott stated on the 6th August, 2008, in Case C- 296/08 PPU at paragraph 49:-
“49. As regards the principle of legal certainty, an integral part of which is the rule of res judicata, it is settled case-law that this is one of the general principles of law applied by the Court. (38)[Case C-2/06 Kempter [2008] ECR 1 – 411, paragraph 37]. However, res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question. (39) [Case C-642/05 Commission v Poland [2008] ECR 1 – 4183, paragraph 23].
50. Here the earlier decision admittedly related to an extradition request relating to the same person and the same facts as the present one. However, the competent court did not rule on that request under the 1996 Convention, since that convention did not apply at the time. The status of res judicata of an unfavourable opinion given at that time cannot therefore prevent the present extradition request, relating to the same person and the same facts, from being dealt with under a new legal basis, namely the 1996 Convention. (40) [See also the judgments of the French Cour de Cassation, criminal division, of 15 February 2006, No. 05-86.095 Zurutuza Sara Sola; 12 May 1987, Bull. Crim. 1987, No. 194 (Dario Fantig); and 9 July 1987, Bull. Crim. 1987, No. 229 (Imaz – Martiarena)].
51. It should be remembered that the rejection of the extradition request of 11 October 2000 was based on the fact that, in French law, the offences with which Mr. Santesteban Goicoechea was charged were statute-barred. Precisely on this point the law has changed, as the 1996 Convention no longer allows the executing Member State to rely on the fact that an offence is statute-barred under its own national law. (41) [Article 8(1) of the 1996 Convention].
52. As regards the principle non bis in idem, enshrined in Article 4 of Protocol No 7 to the ECHR and Article 50 of the Charter of Fundamental Rights of the European Union, this is a fundamental principle of Community law the observance of which is guaranteed by the judicature. (42) [Case C-308/04 SGL Carbon v Commission [2006] ECR 1-5977, paragraph 26 and the case-law cited].
53. The application of the principle non bis in idem is subject to the threefold condition of identity of the facts, unity of offender and unity of the legal interest protected. Under that principle, therefore, the same person cannot be punished (or tried 43)) [Article 50 of the Charter of Fundamental Rights of the European Union] more than once for a single unlawful course of conduct in order to protect the same legal asset. (44) [Joined Cases C-204/00P, C-205/00P, C-211/00P, C-213/00P, C-217/00P and C-219/00P Aalborg Portland and Others v Commision [2004] ECR 1-123, paragraph 338]
54. It is clear that, according to the information before the Court, Mr. Santesteban Goicoechea has not been prosecuted several times for the same offence and it is not the intention of the competent authorities to punish him several times for the same offence. (45). [Unlike the position in Case C-467/04 Gasparini and Others [2006] ECR 1-9199]. The Spanish authorities have merely made several attempts to obtain his extradition from the French Republic, all in the context of the same criminal proceedings.
55. Extradition as such is not a penalty, and the mere fact of extraditing a person does not in any way prejudge the question whether, in law, the requesting State will be able to impose a penalty on the person concerned and enforce that penalty.
56. Consequently, the principle non bis in idem does not apply to extradition proceedings themselves. It cannot therefore preclude a new request for the extradition of Mr. Santesteban Goicoechea from being made by the Kingdom of Spain and dealt with by the French Republic.”
45. Thus, on the claim that this subsequent warrant is an abuse of process, I am satisfied that a second or subsequent warrant seeking the surrender of a person is not of itself an abuse of process. To establish abuse of process there would have to be additional factors.
46. As pointed out in Bolger v. O’Toole & Ors (Ex tempore, Unreported, Supreme Court, 2nd December, 2002), if there was an abuse of process, a subsequent application may fail. Thus, even though there has been no mala fides by any person or institution, and the fact that a subsequent warrant is not per se invalid, it is necessary to consider whether there are factors, or whether the cumulative effect of all the circumstances are such that the appellant has suffered an abuse of process.
47. On analysis, it is clear that there was no issue in the first set of proceedings and in the judicial decisions which would continue to apply to this warrant and proceedings. The first proceedings were very net and related solely to the word ‘fled’ and its application. This no longer applies to the application of the appellant. In the first proceedings the appellant obtained the benefit of a technical, net issue of Irish law. I do not consider that this transforms these proceedings into an abuse of process.
48. There are many cases on the issue of an abuse of process. Of their very nature they are fact specific. A prosecution may not take a step, such as a nolle prosequi in order to mend his hand and to obtain a benefit in a subsequent prosecution. In State (O’Callaghan) v. Ó hUadhaigh I.R. 42 at p. 54 Finlay P. stated:-
“Whilst my decision, as I have already emphasised, must rely upon the facts of this particular case, it is confirmed by a consideration of the extent of the contention made on behalf of the respondent. If the Director, having entered into a nolle prosequi, is entitled to institute an entirely fresh prosecution in respect of the same alleged offence without restriction from any court then, if it appeared likely that a contention of the prosecution would fail, there would appear to be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, an additional or different evidence to succeed where he had been about to fail; that situation might arise in a discretionary matter involving a decision of mixed fact and law which falls to be determined by the trial judge rather than the jury – such as the admissibility of a statement alleged to have been made by the accused. Viewed in that light, the basis unfairness of such a contention appears to me to be clear. Therefore, I am satisfied on the facts of this particular case the Director of Public Prosecutions has not got a right to institute a fresh prosecution against the accused in respect of the matters which were the subject mater of the three charge sheets, and in respect of which the accused was returned to the learned District Justice for trial to the Circuit Court.”
It was submitted that the commencement of a second set of proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as an impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that there was interference by the executive in the administration of justice. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.
49. The facts of this case and State (O’Callaghan) v. Ó hUadhaigh are entirely different. There is no question of a prosecutor taking a step and availing himself of the opportunity in a fresh prosecution. Neither the authorities in Hungary nor the Minister took any step of this type. The first proceedings were fought through to conclusion in this Court. This new EAW is possible because of the change in the general law and does not arise from a prosecutor or any other person seeking an advantage in proceedings by a procedural step. Thus, I would distinguish this case, it has no relevance to the facts which have arisen on this request for surrender.
50. In McMahon v. Leahy [1984] I.R. 525 at issue was equality before the law. It had been the practice and law for the High Court, influenced by the State’s attitude, to declare that escapes in Northern Ireland were political offences. A solemn declaration and direction had issued from the High Court to the effect that four escapees from Newry Courthouse on the 10th March, 1975, were political offenders. In this case the State sought the opposite result in similar proceedings and on similar facts under the same Act. O’Higgins C.J. stated, at p. 537:-
“If the State were successful in this submission, it would mean that contradicting declarations in relation to the same incident would have issued from our Courts. If such occurred, respect for the administration of justice in our Courts would surely suffer, and the Courts’ process would certainly have been abused.”
51. This appeal is entirely different.
(i) There is no question of equality as between this appeal and other persons and court orders. McMahon v. Leahy was determined on the basis of the obligation to provide equal treatment for citizens of the State in accordance with Article 40 of the Constitution. It would have been unfair if co-escapees of the applicant had the benefit of the “political offence” defence and the applicant did not.
(ii) The issue in Tobin (No. 1) was on the interpretation of “fled”, which is no longer an issue. The issue in the other cases referred to in McMahon v. Leahy was the same, the political offence defence, such an equality issue does not arise in this case.
52. Many other cases were opened to the Court, including Pine Valley Developments v. Minister for the Environment I.R. 23. However, the circumstances of those cases are not in accordance with this application before the Court under the Act of 2003, and I find no assistance, indeed to either party.
53. It was submitted on behalf of the appellant that in the circumstances where the Minister chose to proceed with the first set of proceedings and to pursue them all the way to a final determination in this Court, in reliance on what is now argued to have been a legislative mistake, it would be an abuse of process to allow the Minister then to initiate a second set of proceedings.
54. I consider this to be entirely misconceived. The legislature had placed in the law the requirement that a person had “fled”. That was the law of the land, even if it was not a condition enacted in any of the other member states who had enacted the Framework Decision into national law. The Framework Decision does not preclude national requirements, although the fundamental principle is to achieve conforming legislation. The authorities in Hungary and Ireland acted entirely within the law in bringing the “initial” application to the High Court and in appealing the issue to this Court. While it may now be regarded as a legislative mistake to have included the condition that a person had fled a requesting state, it was clearly a specific condition precedent proposed by the executive and enacted by the legislature. Thus, it was entirely appropriate for the Minister to act within the law and to seek clarification from this Court of the law. Neither a Minister nor a state authority can take the view that a law is “a mistake” and choose which law to apply or not. I do not consider that the steps taken by and on behalf of the Minister are a foundation upon which to now claim an abuse of process, as the initial warrant was refused because of a technical matter which arose under national law, requiring that the appellant had “fled” Hungary, which he had not. Subsequently, there was a change in the national law, a change in the general law, which omitted the condition of “fled” from the requirements of Irish law. The Minister was entitled to, and had a duty to, act within the law as it then stood. In those circumstances there was no evidence before the Court of abuse of process and I would dismiss this ground of appeal.
Separation of Powers
55. It was submitted that the commencement of a second set or proceedings in which the surrender of the appellant under the European Arrest Warrant regime is sought must be regarded as impermissible and unlawful attempt to interfere with the Court’s exercise of its constitutional functions. It was submitted that if the Court found that the second attempt to extradite the appellant and to expose him to a second extradition hearing is not an abuse of process, it was submitted that it would have been unconstitutional for the Oireachtas to amend the law so as to enable the Minister to proceed again. It was submitted that the Oireachtas is precluded from amending the law with retrospective effect so as to set aside the final determination of the High and Supreme Court in Tobin (No. 1) that the appellant cannot be surrendered under the European Arrest Warrant system.
56. This argument is misconceived. The earlier Tobin (No. 1) case held that the appellant had not “fled” and thus he could not be surrendered as the condition established under national law was not met. The Oireachtas is entitled to amend the law generally, as it did in this case. The amended law dropped the unique requirement of Ireland that a requested person had “fled”. The current request by Hungary for the surrender of the appellant was made after the general change in the law. The current law applies to this request.
57. This is not a situation where the Oireachtas sought to interfere with a specific case or decision of the courts. Thus, Buckley v. Attorney General [1950] I.R. 67 is not applicable. Nor is there any similarity with Costello v. Director of Public Prosecutions [1984] I.R. 436.
58. The previous decision of the Court was that the appellant had not “fled” Hungary, and that consequently under the law he could not be surrendered. It was a discrete decision, and not a general decision that the appellant could never be surrendered. As stated previously, a subsequent warrant is not of itself invalid, although all the circumstances of the case may be considered. The circumstances of the decision of Tobin (No. 1) were that it was made on a net point of national law. The fact that the general national law has been changed (indeed Irish law became more conforming with the Framework Decision) is not an interference with the administration of justice, or an abuse of process. Thus, I would dismiss this ground of appeal by the appellant.
Section 27 of the Interpretation Act, 2005
59. The appellant submitted that it is impermissible to bring this second set of proceedings on foot of the amendment in the Act of 2009 of section 10 of the Act of 2003 by reason also of s. 27 of the Interpretation Act, 2005. Section 27 of the Interpretation Act, 2005, provides:-
“(1) Where an enactment is repealed, the repeal does not—
(a) revive anything not in force or not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.”
60. It was submitted on behalf of the appellant that s. 27 operates to prevent the retrospective application of statutory amendments to pre-existing rights, privileges, judicial proceedings, etc. In particular, reliance was placed on the prohibition of any retrospective application which would “affect the previous operation of the enactment or anything duly done or suffered under the enactment”, or which would “affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment”. It was submitted that the Minister’s application to seek the surrender of the appellant for a second time on foot of the changes introduced by the Act of 2009 is contrary to both of those provisions as liable to affect the previous operation of the Act, and the proceedings brought previously against the appellant, and is liable to deprive him of the benefit of the judicial determination acquired in those proceedings. It was submitted that this is also a basis upon which the Court should allow the appeal.
61. The issue is whether the decision in Tobin (No. 1) has given the appellant a right or a vested right so that it may be presumed that the Oireachtas did not intend to interfere with that right unless the contrary intention appears.
62. It is clear that under s. 27(1)(b) the amendment does not affect the previous operation of the previous enactment or anything duly done or suffered under the enactment. Thus, the amendment does not affect the previous decisions of the High Court or this Court in Tobin (No. 1), which held that the appellant had not “fled” Hungary. Those decisions stand unaffected.
63. The appellant obtained the benefit of those decisions. Any right accrued to the appellant is to the benefit of those decisions. The amendment does not affect any right, privilege, obligation or liability accrued or incurred under the previous statute, thus the amendment does not affect the right which the appellant has under Tobin (No. 1).
64. Section 27(1)(c) refers to a right accrued or incurred under the previous legislation. The appellant has a right which was recognised under the previous legislation, a decision that he had not “fled” Hungary and could not be surrendered because of the condition established in the statute.
65. The determination of the Irish Courts in Tobin (No. 1) was a discrete decision on the issue of whether or not he had “fled” Hungary. It was not a broad analysis and determination that he could not be surrendered to Hungary. The consequence was that the appellant could not be surrendered because of the national law requirement that he had “fled” Hungary.
66. As long as Irish national law retained the “fled” requirement, the appellant could not be surrendered to Hungary.
67. However, it is clear that the Oireachtas sought to bring Irish law into conformation with the Framework Decision by deleting the requirement that a person who is requested under the European Arrest Warrant Scheme should have “fled” the issuing state. This amending legislation is a general law, which has prospective effect, and which is consistent with the role of the legislative organ of the State. Further, it is consistent with obligations arising under the Framework Decision.
68. The situation requires to be analysed in the context of the law on extradition. The section applies to an area of law which is sui generis, which is a process for surrender between member states.
69. I am satisfied that any right accrued or incurred by the appellant relates to the decision on the net issue of “fled” and is limited to that issue, and does not bar a further warrant or the application of current law.
70. If there was any doubt about the matter, which I do not have, I am satisfied that the Oireachtas was entitled to bring the Irish law into conformity with the Framework Decision, and no decision made has given to the appellant a right not to be surrendered under Irish law and the Framework Decision as now applied in Ireland.
Conforming
71. A national court has a responsibility, as far as possible, to interpret national law in light of the wording and purposes of a Framework Decision. As was stated, and applied in Ireland previously, by the European Court of Justice in Case C – 105/03 Pupino [2005] 2 CMLR 63 at paragraph 43:-
“In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”
72. In Tobin (No. 1) the Court could not apply the principle of interpretation in conformity with Community law as to do so would have been contra legem. This indicates the position of the Court, and the narrow issue of the decision i.e. to the “fled” point.
73. As has been stated earlier, it was entirely within the power of the Oireachtas to bring the law into conformation with the Framework Decision.
Right
74. The right obtained by the appellant arising from Tobin (No. 1) was limited to the decision made, i.e. that there was a requirement under national law that a person could not be surrendered to an issuing country unless he had “fled” from that state, and as the appellant had not fled Hungary he could not be surrendered.
75. There is no general right not to be extradited or surrendered, either under Irish law or under the European Convention on Human Rights.
76. Extradition, or surrender, is a sui generis procedure, which is not determinative of a person’s civil rights or liabilities under criminal law. It is a procedure of surrender of requested persons between states, arranged between states.
77. A person who becomes liable to surrender by reason of a change in the law is not entitled to complain of interference with any vested right to general protection from being surrendered to serve a sentence imposed on him in another State.
78. As was stated in Sloan v. Culligan [1992] 1 I.R. 223 at 273 by Finlay C.J.:-
“The Court is satisfied that the plaintiff did not have at any material time what has been described in the submissions before the Court as a vested right, either to freedom or to protection from being delivered up to serve these sentences on the basis that the offences in respect of which they were imposed constituted political offences, either of which rights has been interfered with or left unprotected by virtue of the effect and provisions of the Act of 1987 and, in particular, of s. 1, sub-s. 4 thereof.
The right of the plaintiff, as of every other citizen, concerning the question of his delivery into another State for the purpose of serving a sentence lawfully imposed on him in that State, was, the Court is satisfied, a right at any given time to proper, due and fair procedures concerning an investigation of the validity of the warrant in respect of which he is delivered, and to a fair, proper and due inquiry into the protections applicable in law, within the State at the time of the application for his delivery, which may afford him a protection arising from the concept of a political offence or from any other of the concepts appropriate to prevent such a delivery. The provisions of the Act of 1987 constitute a development of the law applicable to the delivery of persons out of the jurisdiction of this State and into the jurisdiction of the Northern Ireland courts, amongst others, which the legislature in accordance with the decision of the State to ratify the European Convention on the Suppression of Terrorism, done at Strasbourg on the 27th January, 1977, has validly decided to enact. Upon the passing of that statute the right of every citizen and every person affected by it simply is to its due application, and its application with regard to the provisions of s. 3 thereof to a case where an offence was committed before the passing of the Act of 1987, but where a warrant requesting the delivery of the person concerned was not issued until after the passing of the Act, does not constitute, the Court is satisfied, any failure on the part of the State to defend, vindicate or protect any personal right of the plaintiff.
The Court is, therefore, satisfied that s. 1, sub-s. 4 of the Act of 1987 has not been established as being invalid, having regard to any provision of the Constitution.”
[The emphasis is added].
79. Relying on the extract from Sloan v. Culligan quoted above, I reached the same conclusion in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16 (1st March, 2012) where I stated at paragraph 65:-
“Applying that rationale to this case, I am satisfied that the appellant has not established any vested right not to be surrendered. He has a right to due and fair procedures. On this issue, the second of the legal issues, on the application of s. 42 of the Act of 2003, the appellant has not established any vested right not to be surrendered that would be protected under s. 21 of the Interpretation Act, 1937, or s. 27 of the Interpretation Act, 2005.”
80. Thus, the right of a person whose surrender is sought is to fair procedures, concerning the validity of the EAW and to inquiring into the protections applicable under current law. The amendment of the national law does not amount to an abuse of process. The appellant’s right is to fair procedures in relation to this warrant.
81. Taking into consideration the submissions made by the parties, I am satisfied that the appellant does not have a right under s. 27 of the Interpretation Act, 2005, so as to prohibit his surrender under the law on the current EAW.
Transfer of Execution of Sentences Act, 2005
82. The issue on this aspect of the law arises as the Transfer of Execution of Sentences Act, 2005, referred to as “the Act of 2005”, requires the appellant to have fled in order for that Act to have effect, which means that the Act of 2005 does not operate to permit Ireland and Hungary to agree to the appellant serving the sentence imposed upon him in Hungary in this State, as he has not fled Hungary. It is ironic that his success in Tobin (No. 1) prohibits the application of the Act of 2005 to him.
83. The issue raised is whether because of the fact that the Act of 2005 does not apply to the appellant, and he may not serve his sentence in Ireland, is his surrender to Hungary precluded on these grounds?
84. Section 7(i) of the Act of 2005 provides:-
“Subject to subsection (2), the Minister may, upon receipt
of a request in writing from a sentencing country to consent to the
execution in the State of a sentence imposed in the sentencing country,
or part of a sentence so imposed, on a person who fled to the
State before he or she—
(a) commenced serving that sentence, or
(b) completed serving that sentence,
give such consent.”
85. A number of conditions are set out in subsection (2) which were not raised in and are not relevant to this appeal. As subsection (1) above requires that the appellant had fled Hungary before he could obtain the benefit of the section, and as he had not fled, and as he is not entitled to the benefit of the section, it was submitted that his rights under the Constitution and the European Convention on Human Rights, referred to as “the ECHR”, have been breached.
86. However, there is no mandatory requirement under the Framework Decision or under the Act of 2003, as amended, providing that the appellant has a right to serve his sentence in the requested State.
87. There is an option exercisable by a member state under Article 4(6) of the Framework Decision. That Article provides:-
“The executing judicial authority may refuse to execute the European Arrest Warrant:
[…]
6. If the European Arrest Warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying on, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law;”
87. However, there is no general right, under the Constitution or the ECHR, mandating a state to provide facilities to a person who has been requested by another state under an EAW, to serve a sentence in the executing member state rather than in the issuing member state. Thus, there is no general breach of a right under the Constitution or the ECHR.
88. No cases were cited before this Court, and I know of none, which prohibit the surrender by a member state of a convicted person to serve a sentence lawfully ordered in another member state, on the grounds of interference with family life.
89. In essence, the appellant is submitting that there is a mandatory requirement on the State to enable him serve the sentence which was imposed in Hungary, in Ireland. Such a mandatory requirement does not fall upon the State and the appellant has no such right. Indeed, it is essentially what is at the heart of any extradition or surrender scheme entered into between nations, that persons will be extradited or surrendered in accordance with the treaty or other agreements.
90. However, while under the scheme of the EAW the appellant may be surrendered to serve his sentence in Hungary, he may then apply under the Transfer of Sentenced Persons Act, 1995, to serve his sentence in Ireland.
91. The fact that the appellant may be legally surrendered to Hungary pursuant to the Act of 2003, as amended, before he can apply to serve his sentence in Ireland is not a breach of his rights under the Constitution or the Act of 2003, as amended. However, I find it very hard to understand why there should be a delay of 18 months as was submitted as an estimate to the Court, before the appellant would be transferred to Ireland under that scheme. A delay of that extent does not on its face appear reasonable.
92. It is very understandable that the appellant would not wish to serve his sentence in Hungary, and would prefer to be imprisoned in Ireland, where his family lives. However it is an inherent aspect of an extradition or surrender system that it may cause disruption in a family. As Fennelly J. said in Minister for Justice, Equality and Law Reform v. Gheorghe [2009] IESC 76 at para 48:-
“It is a regrettable but inescapable incident of extradition in general and, as in this case, surrender pursuant to the system of the European arrest warrant, that persons sought for prosecution in another state will very often suffer disruption of their personal and family life. Some states have historically refused to extradite their own nationals, but that is a special case. The Framework Decision expressly provides that, in Article 1, that it does not ‘have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union.’ No authority has been produced to support the proposition that surrender is to be refused where a person will, as a consequence, suffered disruption, even severe disruption of family relationships.”
93. In the High Court in the instant case, [2011] IEHC 72, Peart J. held:-
“The principles are clear. But without weighty facts to support the Article 8 objection, really the principles are of little importance. In my view, there is nothing exceptional in the respondent’s family circumstances. They are features which apply in the case of the majority of respondents who may have moved to this jurisdiction with their family before their surrender is sought, and also in respect of Irish citizens who have lived their lives in this State and where their families are settled and embedded. In all such cases a surrender of a family member, be it father or mother in particular, will case great distress and disruption to family life. It will for a period of time separate that family member from the family unit. While that is in all cases regrettable, it is nevertheless an inevitable consequence, just as the imprisonment of any person to a domestic sentence does.
The obligation to surrender persons for either prosecution or for the service of a sentence will in most cases outweigh any objections on the disruption which that surrender will cause to both the respondent and his family. It requires exceptionally strong, and indeed exceptional facts for a respondent to succeed in defeating a surrender application based on Article 8 of the Convention and/or under the Constitution. Those facts are absent from this case.”
94. I would endorse the above analysis by the learned trial judge and his application of the law to this case, and dismiss the appellant’s appeal on this ground.
Hungary does not surrender a citizen
95. The next issue before the Court is whether the fact that Hungary would not surrender a Hungarian citizen to Ireland in respect of offences of the kind giving rise to this request, would result in a lack of reciprocity, so that the request in this case ought to be refused pursuant to s. 37 of the Act of 2003, as amended, or otherwise.
96. Article 4 of the Framework Decision provides grounds for optional non-execution of an EAW. The very fact that they are optional indicates that they are not mandatory.
97. It appears that Hungary has implemented Article 4(6) as a ground for refusal of a surrender. This arises where a state, such as Hungary, undertakes to execute the sentence of a requested person in accordance with their domestic law.
98. Ireland has not implemented this option.
99. The appellant has, in essence, submitted that reciprocity is an element of the scheme of surrender by way of an EAW. In fact it is not a factor, as submitted on behalf of the appellant, in the scheme of surrender established under the Act of 2003, as amended and the Framework Decision. The matter has been addressed in some recent cases in the High Court.
100. In Minister for Justice, Equality and Law Reform v. Sulej and Puta [2007] IEHC 132, an issue arose as the Czech Republic did not surrender its own citizens for the offences before the Court. It was submitted that this lack of reciprocity constituted discrimination contrary to Czech constitutional principles and that the warrants could not have been duly issued. Peart J. held:-
“Without dealing with the submissions of counsel in any detail, it is perfectly clear that even if there is some disparity between the manner in which the Framework Decision has been introduced into Czech law and how it has been given effect to in this State, there can be no reason resulting from that fact, if it be such, why this State should refuse to surrender in accordance with the requirements of the Framework Decision and the Act here. There can be no question of this Court examining how another Member State has given effect to it in some way different to this State, that we here should not honour obligations which we have entered into.”
101. In this Court, in a judgment with which the other members of the Court agreed, Fennelly J. stated at paragraph 10:-
“The appellants wish this Court to rule that the provisions of Czech law which implement the European Arrest Warrant are contrary to Czech constitutional principles. This Court could not conceivably pass judgment on the validity of Czech legal provisions. That is patently exclusively a matter for the domestic legal system.”
102. The disparity in application of optional measures in the surrender procedures agreed in the Framework Decision and applied to member states does not give rise to a breach of rights to the appellant pursuant to s. 37 of the Act of 2003, as amended.
103. There is no merit in this issue on the appeal and I would dismiss this ground of appeal also.
104. The issue of reciprocity as considered in Minister for Justice, Equality and Law Reform v. Bailey [2012] IESC 16, arose under the terms of Article 4.7 of the Framework Decision and the Act of 2003, as amended, in unique circumstances which have no relevance to the circumstances of this appeal and thus that case may be distinguished.
Correspondence
105. The next issue as agreed by the parties was whether the offence identified in the warrant the subject of this appeal, violates the rules of public road traffic by negligence causing death, and/or the facts as alleged against the appellant correspond to an offence under Irish law?
106. This issue was addressed fully in written submissions by the appellant. It was submitted that it would not be permissible under Irish law to impose liability for negligently causing death in the circumstances described in the warrant, and that accordingly, there was no correspondence between the criminal conduct identified in the warrant and criminal conduct under Irish law.
107. The issue of correspondence was also addressed fully in the written submissions filed on behalf of the Minister, and it was submitted that there was correspondence.
108. The law applicable to the issue of correspondence is well established.
109. In Tobin (No. 1) [2008] 4 I.R. 43, in the High Court, Peart J. considered the issue of correspondence. While that was a different EAW, it did relate to the same offence, and thus the issue of correspondence was identical. Peart J. held at 61 to 62:-
“In my view, the Court cannot get into the business of trying to establish an identical offence here based on the facts. There are a variety of road traffic offences which the act alleged against the [appellant] could give rise to based
on the known undisputed facts. It is not disputed that the [appellant] was driving far in excess of the permitted speed limit, even if the speed itself was only between 70 and 80 kph. There was a low speed limit applicable and it was greatly exceeded. There is no doubt that for whatever reason this car veered to the right and mounted the pavement and hit the two children.
Counsel for the [appellant] quite correctly points out that the outcome of the
accident should not necessarily determine the question of dangerous or reckless or negligent driving. In other words, it must be the act of driving rather than how seriously persons were injured which must be looked at for correspondence, and he submits that driving at 70 kph in what the [appellant] described as a careful manner given the presence in the car of both his young son and his heavily pregnant wife is not an inherently dangerous act even if it was in contravention of the speed limit, and that there is no evidence of any dangerous driving as such, and which would be sufficient to lay a charge of dangerous driving in this country.
Under s. 53 (1) of the Road Traffic Act, 1961 as amended, it is an offence to drive a vehicle in a manner (including speed) which is dangerous to the public. In this country a person in the position of this [appellant] might easily be charged with this offence under s.53 and face a penalty based on the fact that driving in question caused death. Section 53 (2) provides for the applicable penalties, including in a case where the dangerous driving causes death, a term of imprisonment. But having been charged with that offence, it is quite possible that the facts as we know them would not amount to dangerous driving under Irish law. However that does not mean that he could not be convicted of any offence. Subsection (4) provides that where a person has been charged with dangerous driving under s. 53(1) he may be found guilty of a lesser offence of careless driving under s. 52. Section 51A, as inserted, also provides for a lesser offence again of driving without reasonable consideration. There is also the summary offence of exceeding the speed limit, which is not excluded from the consideration of correspondence by the definition in s. 5 of the Act.
I am satisfied that on the facts alleged, even excluding any which may be in controversy, the acts alleged against the respondent would give rise to a number of possible offences in this country as indicated. This ground must fail accordingly.”
110. In this case in the High Court in the judgment delivered on the 11th February, 2011, Peart J. said:-
“Having heard those submissions, and even though references are made to some decisions in relation to correspondence which post-date the earlier judgment of mine on the first warrant, I do not consider it necessary to revisit my earlier finding in relation to correspondence. While it is true that the Hungarian offence is one of negligent driving causing death, and while it is also true that in earlier versions of this warrant the term “reckless” was used, these features do not alter or affect the Court’s task as required by section 38 or section 5 of the Act of 2003. This Court must look at the facts contained in the description of the offence in the warrant and be satisfied that if those acts were done here an offence would be committed. That is the basis on which the Court proceeded on the last occasion, and there is no reason to take any different approach on this occasion, or to reach any different conclusion. Accordingly I am satisfied that the offence corresponds to an offence here of dangerous driving/dangerous driving causing death contrary to section 53 of the Road Traffic Act, 1961, but would correspond also for the purposes of section 5 of the Act of 2003 to a number of lesser offences identified in my earlier judgment.”
111. I would affirm the determination of the learned High Court judge on this issue. The facts are clearly established, these include that the appellant was driving at speed, the car mounted a footpath, killing two children. The constituents of an offence at Irish law are made out. I am satisfied that there is correspondence and that the appellant’s ground of appeal on this issue should be dismissed.
Compliance with s. 11 of the Act of 2003
112. The query raised on the agreed issues was whether the warrant the subject of this appeal complies with the provisions of s. 11 of the Act of 2003, as to the manner in which the sentence imposed on the appellant is described having regard to all the circumstances (including the various warrants the subject of and the representations made to this Court on Tobin (No. 1) as to the nature of the sentence imposed on the appellant).
113. Section 11 of the 2003 Act, as amended provides that:
“(1) A European arrest warrant shall, in so far as is practicable, be in the form set out in the Annex to the Framework Decision.
(1A) Subject to subsection (2A), a European arrest warrant shall specify –
[…]
(g) (iii) where that person has been convicted of the offence specified in the European arrest warrant and a sentence has been imposed in respect thereof, the penalties of which that sentence consists.”
114. Article 8(1) of the Framework Decision provides that:
“The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex:
[…]
(f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State.”
115. The EAW states that the length of the custodial sentence imposed is “3(three) years of imprisonment to be served in a low-level security prison.” Further, it is stated that the remaining sentence to be served is “3 (three) years in a low-level security prison.”
116. It was submitted on behalf of the appellant that there was a lack of clarity in respect of the sentence to be served.
117. The warrant states clearly the length of sentence, three years. The Court at second instance made provision for the appellant to be released on a form of parole when he had served half his sentence, but this did not alter the length of the sentence.
The High Court [2011] IEHC 72 held:-
“Clearly the warrant on the last occasion and indeed the warrant on the present application could have been more expansive in describing all the features of the sentence in more detail, but the requirement under section 11 is to set forth the sentence. The sentence imposed was one of three years, even if there is an opportunity of release after eighteen months was allowed on appeal. The [appellant] was legally represented when this sentence was passed and on the appeal when the appeal modified the sentence. It can be presumed that those lawyers informed the [appellant] of the result of the appeal. It is hard to imagine that the [appellant] was not aware of the nature and length of sentence which has been imposed. I do not believe that he has been mislead by the warrants which have emanated from the issuing state such that the warrant should be found not to comply with section 11 of the Act of 2003.”
118. I would affirm the judgment of the High Court on this point.
119. It would be fair to say that this was not the best point raised on behalf of the appellant. In this case the information on the EAW, and the additional information before the Court, including the affidavit of the appellant, made it clear that it was a sentence of three years. I find no breach of any right of the appellant.
Prior to Accession?
120. The query raised was whether the provisions of the Act of 2003, as amended, apply so as to enable the surrender of a person to a European Union state in respect of a conviction imposed by the Courts of that state prior to its accession to the European Union.
121. The offence in this case took place in April 2000, the trial of the appellant was in May 2002 and the Act of 2003 commenced in Ireland on the 1st January, 2004. Hungary joined the EU in May, 2004, and the Minister made the designation for the purposes of the Act of 2003 on the 5th May, 2004 in the European Arrest Warrant Act, 2003, (Designated member States) (No. 3) Order 2004 (S.I. No. 206/2004).
122. This ground of appeal is misconceived. Section 4 of the Act of 2004 states:-
“This Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.”
123. The Act of 2003 was enacted to give effect to the Council Framework Decision of the 13th June, 2002 on the European arrest warrant and the surrender procedures between member states; to amend the Extradition Act, 1965; and connected matters. Thus, there was a time of transition in Ireland, and in other member states, from a scheme of extradition to a scheme of surrender by way of the EAW.
124. Article 32 of the Framework Decision addressed transitional matters. It provided that requests received by member states after the 1st January, 2004, will be governed by the rules adopted by the Member States pursuant to the Framework Decision. However, member states were given an option, they could make a statement indicating that as an executing member state it would continue to deal with requests relating to acts committed before a date which it specified in accordance with the extradition system applicable before the 1st January, 2004. Ireland did not exercise this option. Instead it enacted the provision in s. 4 of the Act of 2003, as set out above.
125. Section 10(d) of the Act of 2003 does not alter the provisions of s. 4 of the Act of 2003 in any way relevant to the circumstances of the appellant.
The Act of 2003 states, and should be interpreted as, applying to offences committed before the commencement of the Act. The law on this issue has been stated clearly previously in relation to offences committed prior to accession: See Minister for Justice, Equality and Law Reform v. Altaravicius (No. 2) [2007] 2 IR 265 at 281 per MacMenamin J:-
“The respondent claims that the framework decision and the Act of 2003 are – inapplicable as the offences alleged predate Lithuania’s membership of the, European Union. It is now necessary to deal briefly with these contentions.
No such restriction on surrender is set out in the framework decision or in the Act of 2003. Articles 3 and 4 of the framework decision, respectively, set out the mandatory and optional grounds for not executing an otherwise properly constituted European arrest warrant. Nowhere in those two articles is the restriction contended for by the respondent to be found. Article 32 of the framework decision allows a member state to make a statement (at the time of adoption of the Council decision) relating to dealing with requests as executing member under the previous extradition regime where acts committed before that date to be specified on the statement. Only Austria, Italy and France made such statements. It is clear that the framework decision is intended to apply to all acts alleged to have been committed prior to its commencement save as otherwise expressly limited. To imply such a restriction on surrender to another member state would be illogical and without any legal foundation. Such an implication would not only be unwarranted, but would be inconsistent with the purpose and intent of the scheme established by the framework decision. In acceding to the European Union on the 1st May, 2004 and to the framework decision, Lithuania took on the binding effect to surrender (and request surrender) in accordance with the framework decision.
It has not been the case under previous extradition legislation nor under international arrangements or treaties on extradition that a person would not be surrendered to a requesting state in respect of offences which predate the legislation or the treaty. There is no authority for such a proposition in domestic case-law or under the Extradition Act 1965, as amended.
Furthermore, the Act of 2003, at s. 4, expressly provides for retrospectivity in relation to offences:
‘Subject to subsections (2) and (3), this Act shall apply in relation to an offence, whether committed or alleged to have been committed before or after the commencement of this Act.’
Section 3 allows for the Minster for Foreign Affairs to designate a member state that has, under its national law, given effect to the framework decision. No argument has been advanced as to the alleged unconstitutionality of the Act due to retrospectivity and consequently it is unnecessary for this court to make any finding under this heading.”
126. I adopt and apply this analysis. The same analysis applies when both the offence and the conviction occur prior to the accession.
127. In the transition between the earlier extradition procedures and the current European arrest warrant procedures, the decision made by the Executive and the Legislature was that there be no reservation on this issue under Article 32 of the Framework Decision, and the domestic law was stated clearly in s. 4 of the Act of 2003. Thus, the applicable law is the Act of 2003, and this submission of the appellant should be dismissed.
Act not published
128. The next issue raised by the parties was the query as to whether the EAW and/or the proceedings brought on foot of it are invalid having regard to the fact that at the time of the issuing and thereafter endorsement of the EAW, the provisions of the Criminal Justice (Miscellaneous Provisions) Act, 2009, were not published or disseminated. In essence, the argument of the appellant was that there was an exercise of powers under generally inaccessible legislation.
129. On the 21st July, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009, was signed into law by the President. On the 24th July, 2009, a notice in Iris Oifigiúil appeared stating that the Criminal Justice (Miscellaneous Provisions) Act, 2009, had been signed by the President on the 21st July, 2009, and accordingly became law. On the 25th August, 2009, the Criminal Justice (Miscellaneous Provisions) Act, 2009 (Commencement) (No. 3) Order 2009 (S.I. 330/2009), referred to as “the Commencement Order” brought into force the provisions contained in Part 2 of the Act of 2009, which amended the European arrest warrant legislation. On the 17th September, 2009, the EAW was issued by the Hungarian judicial authority seeking the surrender of the appellant. The EAW was endorsed by the High Court on the 14th October, 2009. On the 3rd November, 2009 the Act of 2009 was published. On the 10th November, 2009 the appellant was arrested.
130. It was submitted on behalf of the appellant that as the Act of 2009 was not published or disseminated until the 3rd November, 2009, that the application for the endorsement of the EAW was unlawful on the basis that the Act of 2009 was not generally available to the public.
131. The issue of publication and dissemination of the Act of 2009 was addressed in Minister for Justice, Equality and Law Reform v. Adach 3 I.R. 402, where Hardiman J. stated at page 407 para 18:-
“It appears to me to follow from the foregoing [Article 25.4 of the Constitution] that the process of promulgation consists exclusively of the publication of a notice in Iris Oifigiuil, by direction of the President, stating that the Bill has become law. No other action appears to be necessary in order that the Bill becomes law and, in particular, the publication of the Bill itself, either in print or in electronic form, does not appear to be necessary. The Constitution might, of course, have prescribed another method of promulgating a Bill as law and it appears from an authority cited below that the European Union has in fact done so in relation to its laws. But that cannot take from the fact that the provisions of the Irish Constitution for the promulgation as law of a Bill signed by the President are as set out above.”
Hardiman J. also stated at 410 to 411, paragraph 36:-
“The question of whether a Bill passed by the Oireachtas has become law is one to be answered exclusively in terms of the Irish constitutional arrangements which are set out in Article 25. The fact, if such were to be established, that the European Union or Council of Europe have adopted a different method for promulgating laws which these bodies are entitled to make is of no relevance to the question of whether an Irish measure has become law in accordance with the Constitution. As we have seen, this envisages promulgation as a law by the publication of a notice in Iris Oifigiuil stating that the Bill has been signed by the President and has accordingly become law. It is common case that this was done. If the nature of the law thus promulgated were to permit a citizen to be deprived of his liberty under a law which was not at all accessible, this might give rise to an issue under article 5 of the European Convention on Human Rights. I express no views on the merits of any such issue. But that is not the case here: the law in question is one regulating the right of access to the Supreme Court by way of appeal, which is a type of law envisaged by the Constitution itself. Moreover, it is plain from the transcript that the respondent could have made an application for leave to appeal and that this possibility was expressly drawn to his attention by the trial judge.”
132. I apply that analysis to this case. In this case the Act of 2009 was signed into law by the President on the 21st July, 2009, a notice appeared in Iris Oifigiúil on the 24th July, 2007, and the Commencement Order was made on the 25th August, 2009. The warrant was issued in Hungary on the 17th September, 2009 and endorsed by the High Court on the 14th October, 2009. Thus, the Bill had become law prior to the steps taken in Hungary or by the High Court.
133. The appellant was not arrested until the 10th November, 2010, by which time the Act of 2009 had been published and disseminated. Thus, there was no question of the appellant being deprived of his liberty under a law which was not accessible. Further, the Minister was acting in accordance with the law when the initial steps were taken under this EAW. Consequently, I find no merit in this ground of appeal.
Conclusion
134. I have considered carefully the issues raised by the appellant on this appeal. For the reasons stated on the issues referred to above, I would dismiss the appeal. Further, no other issue canvassed warrants the prohibition of the appellant’s surrender. Consequently I would dismiss the appeal and affirm the order of the High Court that the appellant be surrendered to such person duly authorised by the Republic of Hungary to receive him.
Appendix
Chronology
9 April 2000 Date of accident.
10 April 2000 Appellant attends at police station and gives
statement.
28 August 2000 Appellant writes to police seeking return of
passport.
19 September 2000 Appellant departs for Ireland.
9 October 2000 Appellant returns to Hungary.
November 2000 Appellant due to return to Ireland.
7 June 2001 Appellant furnished with indictment.
14 June 2001 Appellant writes letter to be passed on to Court asking that his presence be excused.
19 June 2001 Original trial date.
April 2002 New trial date.
7 May 2002 Date trial ultimately proceeds.
8 November 2002 Appeal Court decision handed down.
1 May 2004 Hungary joins EU
5 May 2004 Hungary designated under the Act of 2003
12 October 2004 International arrest warrant issues
April 2005 (date unspecified) First warrant issues
16 June 2005 First warrant transmitted to Minister
27 April 2005 Date on face of second warrant
20 December 2005 Application to endorse first warrant.
12 January 2006 Arrest of appellant on foot of first warrant.
29 March 2006 Second warrant delivered to Minister.
13 April 2006 Third amended warrant delivered.
19-20 December 2006 Application for surrender heard by High Court.
12 January 2007 Application refused by High Court.
30 January 2007 Notice of appeal lodged on behalf of the Minister.
3 July 2007 Hearing of Appeal by the Supreme Court. Application for surrender rejected.
25 February 2008 Reserved judgment delivered by Supreme Court.
21 July 2009 Criminal Justice (Miscellaneous Provisions) Act 2009 enacted by the Oireachtas; “fled” requirement removed.
24 July 2009 Iris Oifigiuil notice re Act of 2009
25 August 2009 Relevant sections of 2009 Act come into force (S.I. 330 of 2009).
17 September 2009 Date of issue on face of fourth warrant.
14 October 2009 Warrant endorsed by High Court.
3 November 2009 Text of Act of 2009 published by Government Publications
10 November 2009 Appellant is arrested.
21 May 2010 Letter from Central Authority, Department of Justice to Ministry of Justice Hungary “The appellant claims that the EAW does not comply with section 11(1)(g)(iii) of the EAW Act, 2003 in that it does not set out the penalties of which the sentence consists of. This appears to be a reference to the fact that the EAW does not record that the final 18 months of the three year sentence were “suspended” (using our terminology) by the Pest County Court at second instance.
The variation of sentence at second instance is not referred to on the face of the EAW. Please confirm whether the sentence was varied at second instance and whether this is the sentence for which the appellant’s surrender is sought?”
14 June 2010 Letter from Ministry of Justice Hungary to Central Authority “the duration of the remaining imprisonment sentence to be served is 3 years.
22 June 2010 Case at hearing in High Court.
23 June 2010 Case at hearing in High Court.
24 June 2010 Case at hearing in High Court.
22 July 2010 Case at hearing in High Court.
11 February 2011 High Court orders surrender of appellant.
9 March 2011 High Court certifies appeal raises points of law of exceptional public importance.
9 November 2011 Appellant surrenders bail.
31 January 2012 Appeal at hearing in Supreme Court
1 February 2012 Appeal at hearing in Supreme Court
2 February 2012 Appeal at hearing in Supreme Court
15 February 2012 Appeal at hearing in Supreme Court
19 June 2012 Judgment in Supreme Court
Judgment delivered on the 19th day of June 2012 by Murray J.
1. I concur with the judgment of the Chief Justice and would also dismiss the appeal. The facts and circumstances of the case, including relevant legislative provisions and amendments to them, are set out in her judgment.
2. In concurring I propose to make some brief observations on certain aspects of the case, and to give my considered view on the issue arising under s.27 of the Interpretation Act, 2005.
3. Most, and certainly the most salient, arguments made on behalf of the appellant, Mr. Tobin, stem in one form or another from the fact that there had been a previous unsuccessful application by the Minister for his surrender to Hungary on foot of a European Arrest Warrant in respect of the sentence imposed for the same offence. The application now before the Court is made on a newly issued European Arrest Warrant in effectively the same terms in respect of the same offence and judicial sentence which had been imposed on the appellant after his conviction in Hungary.
4. It is not in issue that at all material times, there was, and continues to be, an obligation under E.U. law on the State to give effect to the Framework Decision establishing the system of surrender on foot of European Arrest Warrants. That means that the State has at all times had a duty to give effect in national legislation to the system for surrender provided for in the Framework Decision without creating any obstacles to surrender of a person wanted for prosecution on criminal offence, or to serve a judicially imposed term of imprisonment, other than those provided for or envisaged by the Framework Decision.
5. Section 10 of the European Arrest Warrant Act, 2003, as amended by s.6 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 (which removed the requirement that the person sought should have “fled” as a precondition to surrender) was, of course, intended to give full effect to that obligation. The European Framework Decision means that each Member State of the European Union, including Ireland and Hungary, are entitled to expect that every other Member State would surrender to them persons wanted for prosecution or to serve a sentence after conviction on foot of any European Arrest Warrant issued in conformity with the requirements of the Framework Decision.
6. The various judgments delivered today in this case do not give rise to any decision of this Court, impugning the validity, as such, of the European Arrest Warrant on which the present application is based. Nor do they give rise to a decision of the Court that this application constitutes an abuse of process. On the contrary, a majority of the Court has decided to reject that ground of appeal.
7. At all material times the appellant is, and remains, a person who stands convicted of a serious criminal offence in a Member State of the European Union, and in respect of whom there is an outstanding European Arrest Warrant seeking his surrender which, as far as this Court is concerned, has been lawfully and duly issued by a judicial authority in Hungary, in accordance with the law of the European Union. Notwithstanding the order to be made by this Court today that warrant remains enforceable throughout the European Union, other than Ireland.
8. On the question of res judicata I would observe that no issue concerning the application of that doctrine arises in this case, the parties having acknowledged the established principle that the doctrine does not apply to extradition cases. (The general application of the doctrine of res judicata should not be confused with the subsidiary principle of issue estoppel, which would apply, or with other issues). For example, in the written submissions it was stated on behalf of the appellant “It should be noted that the appellant does not argue that the doctrine of res judicata applies to the second set of proceedings. It is evident that the precise legal issue which was determined in the first set of proceedings – whether Mr. Tobin had fled from Hungary, and could therefore be surrendered under s.10 – does not arise for determination in this set of proceedings, following the enactment of the 2009 Act. Strictly speaking therefore, no issues of res judicata arise”. Accordingly, no argument was made and no decision required on the issue of res judicata.
9. The fact that this is a second application for the surrender of the appellant, who over the years has resisted and refused to comply with the order and sentence of a court of trial at which he was legally represented on his own instructions, does not in my view, and for the reasons set out in the judgment of the Chief Justice, give rise to valid grounds for refusing his surrender on foot of the European Arrest Warrant now before the Court, and in accordance with the Act of 2003, as amended.
Section 27(1)(c) of the Interpretation Act, 2005
10. In one of his more substantive grounds of appeal the appellant has sought to rely on the provisions of s.27(1)(c) of the Interpretation Act, 2005. In doing so he claims to be the beneficiary of a right accrued under s.10 of the European Arrest Warrant Act, 2003 in the form in which it stood at the time when the first application for his surrender was decided. That is to say, when s.10 of the Act required the applicant for surrender to establish that a person who is sought for the purpose of serving a judicially imposed sentence of imprisonment had “fled” the requesting State prior to serving or completing such sentence. That requirement was, of course, repealed by s.6 of the Act of 2009, referred to above.
11. Section 27(1) and (2) of the Interpretation Act, 2005, provide as follows:
“27(1) Where an enactment is repealed, the repeal does not—
(a) revive anything not in force or not existing immediately before the repeal,
(b) affect the previous operation of the enactment or anything duly done or suffered under the enactment,
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment,
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or
(e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention.
(2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed.” (emphasis added)
12. Section 27 is limited in its application by the provisions of s.4 of the Act of 2005 which specified that the presumptions and rules set out in the Act applied to any enactment “except insofar as the contrary intention appears in this Act, in the enactment itself, or where relevant, in the Act under which the enactment is made”.
13. Section 27(1)(c) does not create the presumption against interference with any general right. It refers only to a right “accrued or incurred under the enactment”, that is to say, the enactment repealed. The reference to an enactment includes any portion of an Act, as stated in s.2 of the Interpretation Act, 2005.
14. It is well established by the case law of this Court that a right does not “accrue” or become a vested right, under an enactment of the Oireachtas, simply because there is a provision in such enactment for the exercise of a right (see for example J. Wood & Co. v. Wicklow County Council [1995] ILRM 51, and McKone Estates Ltd. V. Dublin County Council [1995] 3 ILRM 283). As our case law makes clear, a statutory right is only deemed to accrue or vest for the purposes of s.27 (although obviously the case law refers to earlier, although similar, provisions of the Interpretation Act, 1937) when something specific occurs which gives rise to an accrued right under a Statute. This principle is not in issue in this case. Neither was it really contested that the decision of this Court to refuse the application for the appellant’s surrender in the earlier proceedings was an occurrence which gave rise to an accrued right under the Statute. There was no debate, or no significant argument, between the parties as to what may constitute an accrued or vested right for the purposes of s.27 of the Interpretation Act. One proceeds on the basis that the decision in the first proceedings concerning the appellant, having been decided in his favour, gave rise to an accrued right under the enactment. Clearly, that right was the right to resist his surrender to Hungary on the grounds that he had not “fled” within the meaning of the Act.
15. The appellant argues that on the basis of s.27(1) and (2) of the Interpretation Act, 2005 there is a presumption that the Oireachtas did not intend to deprive him of that accrued right when enacting the amending legislation. On the basis that there was an accepted accrued or vested right in the appellant, the question is whether the presumption which he relies upon is inapplicable in this case on the basis that “a contrary intention” appears in the amending enactment itself within the meaning of s.4 of the Interpretation Act, 2005.
16. Accordingly, the issue which arises in this context is purely one of statutory interpretation. The primary question of interpretation left to the Court is whether a contrary intention within the meaning of s.4 is to be found in the enactment as amended.
17. That interpretive issue fall to be determined in accordance with the principles laid down in our case law (although they are not issues which have arisen with any degree of frequency) such as the judgment of this Court in Hosie v. Kildare County Council [1928] I.R. 47 at 68, and a judgment of the High Court in L.M. v. Devally [1997] 2 ILRM 369.
18. Before referring to these and other cases I think it would be helpful to look at the provision of s.27 of the Act of 2005 briefly in its historical context.
19. I think, however, it is important to highlight at this point that the issues of statutory interpretation to which s.27 of the Interpretation Act give rise do not, by definition, relate to, and should not be confused with, the issues of res judicata, issue estoppel, retrospective effect and the binding effect of judgments in proceedings inter parties, civil or criminal, which are intended to be final and complete as concerns those parties.
20. As already pointed out, the Court is concerned here with whether a right accrued under a specific enactment is one which was not affected by the repeal of a provision of the enactment under which the right accrued, because no contrary intention appears in the enactment.
Historical Context
21. Section 27 of the Interpretation Act, 2005 reflects very closely the wording of s.38(2) of the Interpretation Act, 1889 when statutory savers of this nature were first introduced in that form. Our intervening Interpretation Act, 1937, at s.21, contained the same, or almost exactly the same, wording.
22. The Interpretation Act, 1889 provided that mere repeal did not:
“Revive anything not in force or not existing at the time when the repeal take affect; or
Affect the previous operation of any enactment so repealed; or
anything duly done or suffered under any enactment so repealed; or
Affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
Affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceedings, or remedy may be instituted, continued, or enforced, and any such penalty, forfeiture, or punishment may be imposed as if the repealing Act had not been passed.” (emphasis added)
23. The provision preserving the continued exercise of rights or remedy as if the repealing Act had not been passed is now reflected in sub-section 2 of s.27 of the Act of 2005.
24. Prior to the Act of 1889 it had been usual to insert saving provisions to the foregoing effect in all Acts in which repeals were effected.
25. As is pointed out in Dodd’s Statutory Interpretation in Ireland [Tottel Publishing, 2008] to understand the genesis of such provisions it is necessary to understand the position that prevailed at common law arising from the repeal of a Statute. As the author of that book points out “at common law, the repeal of an enactment made it as if the enactment had never been, except as to matters past and closed. This went so far as to revive enactments repealed by the enactment repealed.” (at p.78). The effect of the repealing of a Statute as described by Tindal, C.J. in Kay v. Goodwin (6 Bing., at 582) was cited with approval by Murnaghan J. when he delivered the judgment of this Court in Hosie v. Kildare County Council (cited above). Tindal, C.J. stated “I take the effect of repealing a Statute to be to obliterate it as completely from the record of the parliament as if it had never been passed; and must be considered as a law that never existed, except for the purposes of those actions, which were commenced, prosecuted, and concluded whilst it was an existing law.”
26. As Sullivan, P. pointed out in his High Court judgment in the same case, having also cited Tindal, C.J. “In order to prevent the hardship which might result from the application of this principle in many cases, it became usual to insert in repealing statutes provisions in the nature of saving clauses, protecting rights which had been acquired under the statute repealed. The necessity for such saving clauses is now obviated by the Interpretation Act, 1889, sect. 38, sub-sect. 2, which provides that, unless the contrary intention appears, the repeal of any enactment shall not affect any rights or privileges acquired or accrued under the enactment so repealed.”
27. Accordingly, the general savers introduced by the Act of 1889 were introduced in order to avoid regurgitating in a pedantic fashion savers in every Act which repealed (which term includes, for this purpose, amended) an earlier Act. The saver provisions inserted in the Interpretation Act of 1889 were intended, in certain circumstances, to address a range of possible consequences which could flow from the enactment of a repealing Act if the common law consequences of a repeal were to apply in a unfettered fashion.
28. Thus, in certain circumstances a party to whom a right under the repealed enactment had accrued could rely on that enactment as if it had not been repealed
General Principles
29. Broad or general principles relating to the interpretation of a saving provision such as s.27 were considered by this Court in Hosie v. Kildare County Council [1927] I.R. 47 at 68. In that case the Court considered the interpretation of s.38, subs.2 of the Interpretation Act, 1889 (cited above), which very much corresponds with s.27(1)(c) and (2) of the Act of 2005. The actual conclusion of this Court in that case was that by necessary implication there was a “contrary intention” in the amending Act which prevented the applicant from relying on the presumption contained in s.38, subs.2. As one might expect, the actual conclusion or result in the case turned on the particularities of the legislation in issue, as is likely to be the position in any particular case involving the interpretation of legislation, in the light of such statutory savers. This could also be said of the result in the case, on a similar issue, in L.M. v. Devally (cited above).
30. However, this Court did refer to general principles which are relevant to the interpretation of a saving clause such as s.38 in that case and which clearly, in my view, apply by analogy to the corresponding provision to be found in s.27 of the Act of 2005.
31. Murnaghan, J. delivered the judgment of the Court, and having referred to the dicta of Tindal, C.J. in Kay v. Goodwin (recited above), he went on to make specific reference to the statutory provisions which were relevant to the case in question, and of course in particular referred to s.38(2) of the Interpretation Act, 1889. As regards a consideration of s.38, Murnaghan, J. stated:
“The onus is upon those who say that existing rights are to be impaired, to point to such intention appearing in the repealing enactment. The contrary intention does not appear in express words, but the room for doubt is whether such a contrary intention does appear by plain implication.” (This was a reference to the particular provisions of the legislation in question.)
He continued:
“Lord Hatherley, in Pardo v. Bingham [L.R. 4 Ch. 735], states that in seeking to ascertain the intention of the Legislature, regard must be had to the general scope of the Act, to the remedy sought to be applied, to the former state of the law, and to what was in the contemplation of the Legislature.”
32. Having examined all the relevant legislation, the Court in that case concluded, having regard to the provisions of the Act as a whole, that there was a “contrary intention” which the Interpretation Act of 1889 contemplated, “not in express words, but by necessary implication”.
33. A similar interpretative approach was adopted by Carroll, J. in L.M. v. Devally (cited above). In that case the parties had, in earlier proceedings, entered into an agreement pursuant to s.10(4) of the Illegitimate Children (Affiliation Orders) Act, 1930, as amended by the Family Law (Maintenance of Spouses & Children) Act, 1976. In those circumstances such an agreement was stated in the Act to be “a complete bar to any further proceedings under this Act in respect of such child against the putative father…”.
34. The foregoing Act of 1976 was amended by s.18 of the Status of Children Act, 1987 by the insertion of a new section which permitted the Court, in respect of parents of a dependant child who are not married, to make a maintenance order concerning the child, should it appear to the Court on application by one of the parents that the other has failed to provide such maintenance as is proper in the circumstances. Again, the actual result in this case was governed by the particularities of the various legislative provisions, but one of the issues determined by the learned High Court judge was whether the corresponding presumption in s.21(1)(c) of the Interpretation Act, 1937 ran in favour of the putative father against, whom the claim for maintenance was made, on account of a right accrued to him under the legislation by virtue of the agreement which had been made between the parties and previously approved by the court under the Act of 1930.
35. What is relevant in that case is the interpretative approach of Carroll, J. which is consistent with that outlined by this Court in Hosie v. Kildare County Council. In the course of deciding in favour of the applicant mother, on this point, Carroll, J. stated:
“The exclusion of a non-marital child from benefiting from an order of maintenance under the 1976 Act (as amended by the 1987 Act) by reason of a pre-existing agreement would be contrary to the purpose of the 1987 Act which was to confer equality on children (see long title).” (emphasis added)
Here the purpose of the Act as expressed in the long title was seen as an important consideration in determining the true intention of the amended Act.
36. Having regard to the decision in Hosie, I would conclude that the following general principles should be followed (without intending them to be all inclusive) in ascertaining whether an Act which has been the subject of a repeal (which includes an amendment) should be interpreted as expressing a “contrary intention” so as to oust the application of s.27(1)(c) of the Act of 2005:
(a) The onus is on the party asserting that existing rights are to be impaired to point to such an intention appearing in the repealing enactment. I would add that this must I feel be understood as not compromising the function of the court itself to determine, in the final analysis, whether or not it is satisfied that a contrary intention appears or should be inferred from the Act. Perhaps, more important, this judicial dicta on the onus placed on a party may have little or any relevance to the interpretative task of the court when exercising its function and obligation to give to a national measure a conforming interpretation in accordance with European law, to the extent reasonably possible.
(b) It is not necessary that a contrary intention within the meaning of s.4 of the Act be stated in express terms. That may arise by necessary implication.
(c) The task is to ascertain the intention of the legislature.
(d) In seeking to ascertain that intention regard should be had to:
(i) the general scope of the Act,
(ii) the remedy sought to be applied,
(iii) the former state of the law, and
(iv) what was in the contemplation of the legislature by reference to the purpose of the Act.
The Purpose of the Amending Act
37. Considering the purpose and, indeed, genesis of the relevant amending provisions contained in s.6 of the Act of 2009 a brief reference to the obvious purpose of the principal Act, the Act of 2003, should be made.
38. As is self-evident from a reading of the Act of 2003, including its long title, its sole and certainly primary purpose was to give effect to the Council Framework Decision on the establishment of a system of European Arrest Warrants. This also necessitated or rendered it appropriate to amend the Extradition Act, 1965 and other Acts.
39. In doing so the State was fulfilling the obligations accepted by Ireland under the various European treaties as reflected in s.2(1) of the European Communities Act, 1972 as inserted by the European Union Act, 2009. I make more specific reference to this later.
40. It is not in contention in these proceedings, and indeed fully accepted, that the provision originally in s.10 whereby a person in the position of the appellant must be shown to have “fled” the requesting state before his surrender could be ordered was not in conformity with the Framework Decision.
41. Accordingly, as long as that provision remained in force, the State was acting in breach of its obligations under the treaties and the Framework Decision.
42. When this Court decided to refuse the application for an order to surrender the appellant in the first application concerning the appellant it did so in accordance with the specific terms of the Act as it then was. The Act of 2009 contains a series of amendments to the European Arrest Warrant Act, 2003, and indeed s.6 itself contains amendments other than the one relating to the precondition as to “fled”. However, it is not really in contention that it was the outcome of those earlier proceedings which, at the very least, highlighted and brought to the fore the failure of the Oireachtas in that respect to give full effect to the Framework Decision as required by law. It is difficult to imagine that the Hungarian authorities did not raise some bone of contention with the State or the European Commission as to why their otherwise entirely legitimate request for surrender was refused. Of course, we do not know whether that happened. On the other hand, it is accepted that the State realised that the Act of 2003 in that form left Ireland in breach of its obligations to give an effective and full implementation to the Framework Decision. As counsel for the Minister stated, a “mistake” had been made in enacting the legislation in that form. As a consequence the amending provision was introduced and passed.
43. Counsel on behalf of the appellant also pointed out that Mr. Tobin was a unique case being the only person who appears to have benefited from the defence of not having “fled” within the meaning of the relevant part of s.10 as it then was. One does not actually know if that is the case, but it seems likely to have been.
44. There was some debate in the course of argument as to whether the amendment was intended to target Mr. Tobin’s case specifically, and if not what were the implications as concern s.27(1)(c). From time to time cases coming before the courts will expose in one form or another deficiencies or lacunae in legislation, or simply condemn a provision as being unconstitutional. Inevitably, and again from time to time, the State will, in the light of the outcome of a particular case, identify the need for amending legislation to be introduced when a Bill appropriate for the inclusion of such amendment is being brought before the Oireachtas. Thus there may be a considerable passage of time before a legislative remedy is enacted unless such an appropriate Bill is in the offing. On the other hand, the State may consider it a matter sufficiently important or urgent as to require the initiation of specific repealing or amending legislation in the light of the outcome of a particular case. Indeed, in this case the amendment was included in a sort of catch all Bill which became the Criminal Justice (Miscellaneous Provisions) Act, 2009. Obviously, the Oireachtas does not have the constitutional power to set aside a decision in a particular case, and I do not consider there is any question of that in this instance, and in any event it is a separate issue and does not arise in this context. What the Oireachtas can do is to change the law generally and prospectively. That is a necessary and essential prerogative of the Oireachtas in the exercise of its legislative functions. It can of course pass legislation having retrospective effect in certain circumstances, but there is no issue concerning that in this instance.
45. It seems to me clear that the amending provision, namely s.6 of the Act of 2009, is general in its form, and indeed has the classical form of general amending legislation so that the principal Act, once amended, will be generally applied in its new form in all cases coming under its rubric after it becomes law. That, of course, still leaves open the question as to the application of s.27 of the Interpretation Act.
46. It is the Oireachtas, not the government of the day nor a Minister, which bears constitutional responsibility for the adoption of legislation (see Crilly v. Farrington [2001] 3 IR 251). The Oireachtas may, or may not be, aware of particular cases or classes of cases decided under the legislation prior to its proposed repeal. In this case the Oireachtas may, or may not have been, aware that the appellant was the only case which was decided in the courts under the repealed legislation, if that was in fact the case. All of this seems to me to be irrelevant to the issue under consideration because it is not necessary for the Oireachtas to make reference to particular cases or particular class of cases or particular classes of persons who have been affected in the past by legislation when repealing legislation in clear and uncertain terms and stating what the law should generally be in the future. So the fact that no special mention was made of the earlier Tobin case in one form or another in the legislation cannot, in my view, be of any interpretive significance. It would be unusual, from any perspective, to refer to past cases individually or collectively in legislation intended to have general application for the future.
47. As was made clear in Hosie a saving provision such as s.27 of the Interpretation Act, 2005 does not fall to be disapplied only when there is an express saving or declared intention to that effect, or in respect of earlier cases. As outlined above, a contrary intention to the application of such a provision may arise by implication having regard to the terms, nature and purpose of the Act.
The Intention of the Oireachtas
48. In its former state s.10 was in breach of Ireland’s obligations under the law of the European Union. This had to be remedied, not as a mater of discretion but as an obligation under the law. This is what the Oireachtas set out to do.
49. In order to place the duty to remedy such a breach in context it might be as well to recall some of the context in which the obligation arises. Section 2(1) of the Act of 1972 provides that “the following shall be binding on the State and shall be part of domestic law thereof under the conditions laid down in the treaties governing the European Union:” The section goes on to refer to those treaties and to Acts adopted by the institutions of the European Union. It hardly needs stating that these are obligations that arise as part of our national law and not simply something that is owed at an international level.
50. In the oft referred to Pupino case (C-105/03 2005 ECR I-05285) the Court of Justice took the opportunity to emphasise once again the duties of Member States to give effect to community measures, including Framework Decisions, at national level. This is to be differentiated from the conforming interpretation of duty on national courts, which is also dealt with in that case and which will be referred to later. In that case the court noted that the wording of Article 34(2)(b) EU “confers a binding character on framework decisions in the sense that they ‘bind’ the Member States ‘as to the result to be achieved but shall leave to the national authorities the choice of form and method’.” (para. 33)
51. At paragraph 42 the court states “It would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Law, were not also binding in the area of police and judicial co-operation in criminal matters, which is moreover entirely based on co-operation between Member States and the institutions, …”.
52. It is abundantly clear from the terms of the provision amending s.10 of the Act of 2010 that the Oireachtas, in accordance with its obligations under the law, sought to remove, once and for all, the requirement as to a person having “fled” as previously contained in the section. This was not simply a policy choice, it was an obligation under the treaties to ensure that national legislation gave full and proper effect to a community measure, in this instance a Framework Decision. Failure to do so would also have been in breach of the fundamental principle of Union law of loyal co-operation by a Member State when in a case such as this the State was admittedly aware that its legislation was in breach of European Union law.
53. That the amended s.10, with the requirement as to “fled” removed should have general application to all applications under the new s.10 whether surrender of a person on foot of a European Arrest Warrant is, in itself, unremarkable. It is clear that it was given such general application to all future European Arrest Warrants in order to conform with the Framework Decision and to abide by legal obligations to do so.
54. If the Act, as amended by s.6 of the Act of 2009, were to be interpreted as applying to some requests from Member States for surrender on foot of a European Arrest Warrant and not to others (or the appellant’s case solely), even though all of the warrants issued have been issued in accordance with European Union law and particularly the Framework Decision, then the State could not be said to have fulfilled its obligations under European Union law. Such an interpretation would defeat the avowed purpose of the Act.
55. On the contrary, the purpose of the amendment is to bring the legislation in full conformity with the Framework Decision. It was remedying a breach of obligation by the State for all future cases. I think it is manifest that the Act did not intend to only partially remedy the State’s failure to observe its obligation in this context.
56. In all the foregoing circumstances, having regard to the nature and object of the amendment and the obligations imposed on the State when legislating on the system for European Arrest Warrants, that it was the intention of the Oireachtas that the Act would apply to all applications for surrender governed by s.10 of the Act, without any exception in favour of a person, such as the appellant, being the subject of an unsuccessful application under s.10 prior to the amendment.
57. Accordingly, I conclude that the enactment in question contained, by necessary implication, a contrary intention, within the meaning of s.4 of the Interpretation Act, to the application of the presumption contained in s.27 of that Act..
Conforming Interpretation under EU Law
58. The Pupino case, referred to above, addresses the duty of national courts, who also have responsibility for the application and interpretation of European Union law, to interpret national law, as far as possible, in conformity with the law of the European Union.
59. This applies generally, but obviously with all the more force when the national measure being interpreted expressly states, as is the case here, that its purposes is to give effect to the E.U. measure. It will be recalled that the long title to the amending legislation expressly states that its purpose is to give “further effect” to the Framework Decision in question. Pupino has, of course, been referred to an relied upon in a number of cases in this Court. (See, for example, MJELR v. Altaravicius [2006] 3 IR 148 and MJELR v. Stapleton [2008] 1 I.R. 44).
60. The Pupino decision did not involve any radical or novel statement of principle in the field of Union law, since essentially it concluded that the principles of conforming interpretation of national law which always applied to Directives applied to the same effect to the newer form of legislation, namely a Framework Decision. (See for example paragraph 31 of Pupino).
61. Under the principles well established it is worth recalling that at paragraph 43 of its judgment the Court of Justice stated:
“In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b) EU.”
62. The duty of giving a conforming interpretation conferred on national courts excludes, it seems to me, the exercise of that duty being affected by any onus placed on one of the parties in proceedings. Once the issue of interpreting a national law in the light of European Union law properly arises for decision in a case, the duty to give a conforming interpretation by the court concerned applies.
63. At paragraph 47 the Court of Justice fully acknowledged that this did not mean that national law should be interpreted contra legem, while at the same time emphasising the duty of courts to avoid, as far as possible, an interpretative result that was contrary to that provided by a framework decision. In that paragraph the Court stated:
“The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.”
64. Having regard to the fact that s.10 of the Act of 2003 in its new amended form was amended so as to conform with and give effect to the Framework Decision, I am of the view that the Court is bound to give a conforming interpretation, namely that it applies to all lawful applications for surrender made for the purpose of the Framework Decision after the coming into force of the amended Act, without exception. I do not consider that there is anything in the enactment, or indeed the Interpretation Act, 2005, which would support a contention that such an interpretation would be contra legem.
65. Accordingly, I conclude that this ground of appeal of the appellant is not well founded.
DPP v Cash
[2010] IESC 1
JUDGMENT of Mr. Justice Fennelly delivered the 18th day of January 2010
1. This appeal has narrowed down to a single point. Does the prosecution have to prove that material (fingerprints), which is not produced in evidence at trial, but which grounded the suspicion which justified the arrest of the accused, was lawfully obtained?
2. There is a separate point concerning the lawful taking of a second set of fingerprints from the accused while in detention. This does not appear to be any longer in issue and I will refer to it briefly.
3. The appellant appeals against a number of rulings made by Charleton J. in the High Court on a case stated from the District Court.
The Essential Facts
4. The appellant was born on 24th August 1986. He stands charged before the District Court with committing burglary by entering a building at Kylemore Rd, Clondalkin, Dublin 22 as a trespasser on 21st July 2003, with intent to commit the offence of theft, contrary to section 12 (1) (a) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Sub-section 3 of the section provides that a “person guilty of burglary is liable on conviction on indictment to a fine or imprisonment for a term not exceeding 14 years or both.”
5. The facts are as found by the learned District Judge. They are set out in the case stated, which has been sent forward at the end of the prosecution case. I relate only those facts necessary for an appreciation of the legal points in issue on the appeal. The case is all about three sets of fingerprints, as I will now explain.
6. On 21st of July 2003, Detective Garda Barry Walsh attended at the house at Kylemore Road, where the burglary was alleged to have taken place, and met the owner. A bedroom window had been smashed and property taken. Garda William Jordan found finger marks on two pieces of glass in the window frame. The prints of these finger marks were retained at the Fingerprint Section of the Garda Technical Bureau. The matching of these fingerprints is central to the case. I will call them Prints 2, because they are the second set of prints in point of time.
7. Detective Garda Walsh gave evidence that he later received “confidential information” from the Garda Technical Bureau identifying the accused as a suspect. Having initially insisted that the information was confidential, the Garda told the court that he was referring to information to the effect that Prints 2 had been matched with an earlier set of fingerprints (Prints 1) found on record at the Garda Technical Bureau and said to belong to the accused. Detective Garda Walsh said, in evidence, that he did not know whether Prints 1 had been lawfully taken or lawfully kept by the Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984.
8. On 23rd September 2003 Detective Garda Walsh arrested the accused pursuant to section 4 of the Criminal Law Act, 1997 on suspicion of commission of an arrestable offence as there defined, namely burglary. In evidence, he agreed that the sole basis for that suspicion was the information that Prints 2, taken from the broken window, had been matched with Prints 1 which were in garda records..
9. Following arrest, the accused was taken to Clondalkin Garda Station and there detained pursuant to the provisions of section 4 of the Criminal Justice Act, 1984. It has not been contended that this detention was unlawful.
10. While he was in detention, the accused signed a written consent to the taking of his photograph and fingerprints. His fingerprints (Prints 3) were accordingly taken by Detective Garda Joseph Maguire. The Gardaí maintained in the District Court that they were taking the fingerprints on the basis of the consent of the accused and not pursuant to the statutory power conferred by section 6 of the Act of 1984 to take fingerprints from a person detained pursuant to section 4 of that Act. They would, on the other hand, have resorted to the statutory power, if the accused had refused consent. Insofar as the admissibility of Prints 3 is raised in the case stated and on this appeal, it must be assumed that the prints were taken with the consent of the appellant. Whether there was consent in fact is a matter for the learned District Judge to decide, having heard all the evidence. At this point, she has merely said that she is minded to admit the evidence. It is entirely possible that, having heard all the evidence, she will decide that Prints 3 were not taken with the consent of the appellant.
11. Prints 3 were produced to Detective Garda Gannon, a fingerprint expert. His evidence was that he was satisfied beyond doubt that Prints 2 and 3 were made by the same person.
12. Detective Garda Gannon also gave evidence regarding Prints 1. He produced these fingerprints which bore the name of the appellant and were dated 31st March 2002. He did not know whether those prints had been taken pursuant to section 6 of the Act of 1984. It was put to him that he could not “stand over whether these prints were lawfully taken or kept” and he agreed. The potential significance of this point is that section 8 of the Act of 1984 requires, subject to certain conditions, that a fingerprint and any record of it taken pursuant to section 6 be destroyed after six months, if there is no prosecution. Prints 1 were taken more than six months before the burglary of July 2003.
District Court Proceedings and Case Stated
13. The proceedings were conducted before Judge Aingeal Ní Chondúin, a judge assigned to the Dublin Metropolitan District, sitting at the Children’s Court at Smithfield commencing on the 14th of October 2003. The substantive hearing took place on 30th January 2004. Some prosecution evidence was then heard. The matter was adjourned for further evidence and, for various reasons, from time to time. Ultimately it came on for further hearing on 20th December 2004, when further evidence was given.
14. At the end of the prosecution case, counsel for the appellant submitted that there was no case to answer. He sought a direction. It was common ground that the fingerprints represented the only evidence. The learned judge indicated that she was “minded to admit all the prosecution evidence and on that basis that the prosecution had made out a prima facie case and the accused had a case to answer.”
15. The learned judge decided to present a consultative case stated to the High Court pursuant to the provisions of section 52 of the Courts (Supplemental Provisions) Act, 1961. She posed the following questions:
“Whether I was correct in determining, on foot of the evidence before me, that the prosecution evidence be admitted and that the accused had a case to answer, and in reaching this decision:
(i) Whether, in circumstances where the basis of a Garda investigation is a record of the accused’s fingerprints, retained by Gardaí which, on being so challenged by the Defence, the Gardaí are not in a position to “stand over whether they were lawfully taken or kept”, the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to section 4 of the Criminal Justice Act, 1984?
(ii) If the answer to the above question is No, must any evidence obtained during and consequential upon the said section 4 detention be excluded?
(iii) Whether the Gardaí, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 Garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent?
(iv) If such a power does exist, is it lawfully exercised where a Garda witness has given evidence on oath that the ‘consent procedure’, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints?
(v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible?
(vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily in the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that the fingerprints would be obtained from the accused ‘one way or another’ and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent?
(vii) If the answer to the previous question is No, is the consequential evidence admissible?”
In reality, only paragraphs i) and ii) are now relevant.
16. All the other questions concern the admissibility of evidence of fingerprints (Prints 3) taken with the consent of a person detained pursuant to section 4 of the Act of 1984 and without resort to the statutory procedures laid down by section 6 of that Act. Charleton J answered the questions to the effect that the gardaí were entitled to seek the consent of an accused person to the giving of relevant samples and that a judge is entitled to assess the evidence in deciding whether there was in fact consent. Since the High Court decision, this Court, in DPP v Boyce, [2008] IESC 52; [2009] 1 ILRM 253 (judgment of 18th November 2008) has dealt with the admissibility of evidence based on a sample of the blood of an accused person taken in analogous circumstances. In that case, the gardaí did not avail of the power to take blood samples conferred by section 2 of the Criminal Justice (Forensic Evidence) Act, 1990. Denham J, delivering judgment on behalf of the majority of the Court held that the statute had not ousted the common law. The availability of a statutory procedure for taking a sample of blood did not prevent the gardaí from taking the sample with the consent of the detained person. At the hearing of the appeal in the present case, counsel for the appellant accepted that he could not distinguish this case from DPP v Boyce. In effect, if the blood sample taken with consent was admissible in evidence in that case, the same would apply to the fingerprints taken from the appellant while in detention in this case.
The Relevance of the Lawfulness of Facts Relied on to Found Suspicion
17. I turn then to the question raised by the first two questions. The High Court judge answered the first question as follows:
“A suspicion which gives rise to a reasonable cause for arrest does not have to be justified on the basis that every element of it arose solely on the basis of evidence that was properly obtained.
18. In the course of his judgment, he expressed the following views, which I will quote more extensively later:
“It has never been held that what would found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial…… [citation from authority omitted]
The crucial issue in this case is whether a suspicion arising from a piece of evidence the origin of which is uncertain as to whether it was properly obtained, or arriving from an illegally obtained piece of evidence, destroys the legality of an arrest. In that regard, it is claimed that the prosecution must prove that upon which a reasonable suspicion was founded was lawfully obtained. This argument seeks to import the rules of evidence into police procedures. It has no place there.”
The Appeal
19. The fundamental assumption underlying the appellants arguments is that the decision of this Court in People (DPP) v. Kenny [1990] 2 I.R. 110 regarding the admissibility of unconstitutionally obtained evidence in criminal trials can be extended to encompass the lawful provenance of facts, such as Prints 1 in the present case, which do not form part of the evidence proffered at trial but which provided the basis for the suspicion justifying the arrest of the accused person.
20. Writing for the majority of the Court in Kenny’s case, Finlay C.J, at page 133 of the report, carefully balanced two possible rules or principles governing the exclusion of evidence obtained as a result of the unconstitutional invasion of the personal rights of the citizen. On the one hand, the rule could be applied only to evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right. This he described as a “negative deterrent.” The alternative was, an “absolute protection rule of exclusion,” which, “whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.”
21. The Chief Justice opted for the latter formulation, concluding as follows:
“I am satisfied that the correct principle is that evidence obtained by the invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s ) discretion”.
22. Also underlying the appellant’s case are certain statutory provisions requiring the destruction, in certain circumstances and after certain times, of fingerprints in garda records. Section 8 of the Criminal Justice Act, 1984 provides in relevant part:
“(1) Every photograph (including a negative), fingerprint and palm print of a person taken in pursuance of the powers conferred by section 6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this section directs.
(2) Where proceedings for an offence to which section 4 applies are not instituted against the person within the period of six months from the date of the taking of the photograph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction shall be carried out on the expiration of that period.”
23. There was, of course, no evidence as to whether the fingerprints (Prints 1) had been taken pursuant to these provisions or by consent. However, given the date (31st March 2002), the statute would, in circumstances such as those which prevail in the present case, have required their destruction if they had been obtained by virtue of section 6 of the Act.
24. The question posed in the present case is whether the absolute exclusionary rule laid down in Kenny should be extended to cover facts, not being offered as part of the evidence at a criminal trial, but giving rise to the suspicion which led to the arrest.
25. Counsel for the appellant was unable to point, either in written or oral submissions, to any authority in support of the desired extension of the principle laid down in Kenny. The decision of this Court in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 was, however, relied on as offering support by analogy. The Court, in that case, held that the arrest was invalid. I will discuss it more fully later.
26. At the hearing of the appeal, Mr Gerard Hogan, Senior Counsel for the appellant, argued that the appellant’s constitutional rights had been infringed when he was arrested pursuant to section 4 of the Act of 1997. The prints dated 31st March 2002 could not have been lawfully used to ground the arrest.
Consideration of the Appellant’s Case
27. The appellant seeks to persuade the Court to extend the boundaries of Kenny. Under the absolute exclusionary rule laid down by this Court in that case, which the Chief Justice described as “the absolute protection rule of exclusion,” a trial judge is absolutely precluded, subject only to the extraordinary excusatory circumstances described in The People (Attorney General) v O’Brien [1965] I.R.142, from admitting into evidence any testimony obtained as a result of the breach of the constitutional rights of the accused person. The rationale for the rule, as explained by Finlay CJ is that:
“As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen.”
28. The Chief Justice delineated the precise boundaries of the rule as follows:
“I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s) discretion”.
29. The rule laid down in that judgment, in its own terms, applies only to the exclusion of evidence proffered at a criminal trial. The word “exclusion” or its cognates, exclude, excluded or exclusionary occur seven times and the word “evidence” four times. More to the point, the Chief Justice was referring to “evidence obtained as a result of the invasion of the personal rights of a citizen” or which “results from unconstitutional conduct.” (emphasis added). The object of the rule is to provide positive encouragement to state authorities, when gathering evidence, to consider in detail the constitutional rights of persons affected by the exercise of their “powers of arrest, detention, search and questioning…”
30. DPP v Kenny was not concerned with the lawful provenance of evidence used to ground a suspicion, nor does the Chief Justice’s judgment advert to the possibility that the principle propounded could be applied to such an issue.
31. The appellant wishes to extend this rule in two respects. Firstly, it is to include matter providing the basis for the formation of suspicion of guilt, though it is not offered in evidence. Secondly, it is to apply to material already in existence and not obtained for the purpose of the particular criminal investigation.
32. Charleton J. commented very fully on the essence of the contention advanced in the following passage:
12. It has never been held that what would be found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial. On the contrary, a reasonable suspicion can be based on hearsay evidence or can be inferred from discovering that an alibi which a suspect has given to the police turns out to be false. In Hussein v. Chong Fook Kam [1970] AC 942 the issue of the parameters of what was a reasonable suspicion came up before the Privy Council in the context of the criminal code of Malaysia. A car was traveling home one night with five people in it when, on passing a lorry, a log fell from that vehicle on to the car. One passenger was killed and another was injured. The lorry did not stop. A registration number had been obtained which resulted in the arrest of the driver and passenger of the lorry. On questioning, they denied they had driven past the place where the accident had occurred. The Privy Council explained that reasonable suspicion should not be equated with prima facie proof, as that concept is understood in the law of evidence. The police force was entitled to act on a lesser standard of reasonable cause, or reasonable suspicion. Lord Devlin offered the following analysis, which I would follow:-
“The test of reasonable suspicion prescribed by the Code is one that has existed in the common law for many years. The law is thus stated in Bullen and Leake, 3rd ed. (1868), p. 795, the “golden” edition of (1868):
“A constable is justified in arresting a person without a warrant, upon a reasonable suspicion of a felony having been committed and of the person being guilty of it”.
Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof. In Dumbell v. Roberts [1944] 1 All E.R. 326, Scott L.J. said, at p. 329:
“The protection of the public is safeguarded by the requirement, alike of the common law and, so far as I know, of all statutes, that the constable shall before arresting satisfy himself that there do in fact exist reasonable grounds for suspicion of guilt. That requirement is very limited. The police are not called upon before acting to have anything like a prima facie case for conviction; …”.
There is another distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. There is a discussion about the relevance of previous convictions in the judgment of Lord Wright in McArdle v. Egan (1934) 150 L.T. 412. Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case. Thus the fact that the accused has given a false alibi does not obviate the need for prima facie proof of his presence at the scene of the crime; it will become of considerable importance in the trial when such proof as there is being weighed perhaps against a second alibi; it would undoubtedly be a very suspicious circumstance.”
13. The crucial issue in this case is whether a suspicion arising from a piece of evidence the origin of which is uncertain as to whether it was properly obtained, or arriving from an illegally obtained piece of evidence, destroys the legality of an arrest. In that regard, it is claimed that the prosecution must prove that upon which a reasonable suspicion was founded was lawfully obtained. This argument seeks to import the rules of evidence into police procedures. It has no place there. If the prosecution was obliged to prove legality in respect of every step leading to an arrest or charge, this would have the result that the prosecution, in presenting a case, would be required not only to show, against objection by the defence, that the evidence which they proposed to lead was lawfully obtained, but to open to the court every facet of the investigation to ensure that no illegality ever tainted any aspect of police conduct.
33. The appellant would transpose a rule applicable to evidence presented at a criminal trial and apply it to material grounding a suspicion of guilt of a particular crime which influenced the mind of the arresting garda. If material could not be admitted in evidence, it could not justify a reasonable suspicion that an offence had been committed. The appellant would blur the distinction between the arrest and the trial. The first is an essential prerequisite of the second. The courts have always been astute to control the exercise of powers of arrest, to ensure that they are lawfully used and that they are not abused.
34. Firstly, an arrest will not be lawful if it is not justified by a power conferred by common law or by statute. In the present case, the appellant was arrested pursuant to a power conferred by section 4(3) of the Criminal Law Act, 1997 as follows:
“Where a member of the Garda Síochána, with reasonable cause, suspects that an arrestable offence has been committed, he or she may arrest without warrant anyone whom the member, with reasonable cause, suspects to be guilty of the offence.”
35. It is accepted that the offence with which the appellant is charged is “an arrestable offence” i.e., that it potentially attracts a sentence of imprisonment for a term of five years at a minimum. The focus is on the expression, “with reasonable cause,” which equates to reasonable suspicion. Professor Dermot Walsh in his invaluable work on Criminal Procedure (Thomson Round Hall, Dublin 2002) lists a number of statutory formulations (see page 176 par. 4-39). The appellant submits that the onus rests on the prosecution to prove that the basis for the reasonable cause for the arrest was lawful. It has, of course, to be emphasised that the requirement of “reasonable cause” is not to be overlooked. An arrest without reasonable cause or suspicion or however that requirement is expressed in a particular statute is an unlawful act and may give rise to a claim for damages. As it happens, the Privy Council case of Hussein v Chong Fook Kam, cited above, is an example of a case where the suspicion was held not to have been reasonable: damages were awarded against the police.
36. Secondly, an arrest will be unlawful if it is effected for a purpose other than that for which it is authorised. If a person is arrested under a statutory power to arrest on suspicion of commission of a particular offence it can only be used for that purpose. In Oladapo v Governor of Cloverhill Prison [2009] IESC 42, a Nigerian national had been arrested pursuant to section 13 of the Immigration Act, 2004 on suspicion of having committed offences contrary to that Act. In reality, the purpose of his arrest ws not to charge him but to go through the process of denying him “permission to land”pursuant to another provision of the Act and thus to facilitate his deportation. Murray C.J., (with whom Denham and Fennelly JJ agreed) said: “A person may only be lawfully arrested on a criminal charge, where, apart from other criteria, there is a bona fide intention of charging that person with that offence.” Similarly, this Court has held that the Special Criminal Court did not have jurisdiction to try a person who had been arrested but not charged before the court forthwith, as required by a statutory provision then in force.(see O’Brien v Special Criminal Court [2008] 4 IR 514).
37. Thirdly, a person who has been lawfully arrested on a particular criminal charge must be brought before a court for that purpose as soon as is reasonably possible (Dunne v Clinton [1930] I.R. 366.). Walsh J expressed the matter as follows in Director of Public Prosecutions v Shaw [1092] 1 I.R. 1 at page 29:
“No person may be arrested (with or without a warrant) save for the purpose of bringing that person before a court at the earliest reasonable opportunity. Arrest is simply a process of ensuring the attendance at court of the person so arrested.”
38. As Charleton J. observed, it has never been held that “what would found a reasonable suspicion in law, requires to be based on the kind of evidence that would be admissible under the rules of evidence during the hearing of a criminal trial.” Counsel for the appellant was unable to refer to any authority to undermine that conclusion. Reliance was, however, placed on Director of Public Prosecutions v McCreesh [1992] 2 I.R. 239. In that case, the defendant’s car had been seen parked on a public highway by members of the Garda Síochána, who had decided to investigate it in connection with reports of break-ins in the area. The defendant’s car had taken off and had been followed by gardaí, who had been unable to catch up with it until the defendant had turned into the driveway of his home. The gardaí pursued him into the precincts of his own home. One garda formed the opinion that he was intoxicated as a result of smelling of intoxicating liquor. He was arrested pursuant to a provision of the Road Traffic Acts and taken to a garda station for the purposes of requiring a sample of blood or urine. Ultimately, he was prosecuted under a provision relating to his refusal to provide a sample of urine. It was a component of the offence that he be “an arrested person.” This Court held that his arrest had been unlawful, as the gardaí had been trespassers on the his property at the time of the purported arrest. The acts did not authorise the gardaí to enter upon the defendant’s property for the purpose of making an arrest.
39. The appellant submits that McCreesh is authority for the proposition that, where a suspicion used to ground an arrest is itself based on illegality, the subsequent arrest is unlawful together with the detention which follows and any subsequent procedures reliant upon the arrest. I do not accept that McCreesh stands as authority for any such broad proposition. In that case, the prosecution had to prove the arrest, as an element of the offence. It was the fact that the arrest was performed, without statutory authority, on private property which rendered it unlawful, not the contemporarneous suspicion formed by the garda as to the intoxicated condition of the defendant.
40. I prefer to return to the essentials of the appellant’s proposition. It is that there is an onus on the prosecution to prove that any material forming the basis of the suspicion or, using the language of the Act of 1997, “reasonable cause” which led to the arrest has a lawful origin. Professor Dermot Walsh in his Criminal Procedure, cited above, discusses the Privy Council decision in Hussein v Chong Fook Kam, which was cited by Charleton J. At page 177, having made reference to the exposition by Lord Devlin, he explains: “The prima facie proof would have to rest on the basis of admissible evidence, while a reasonable suspicion may take into account matters which would not be admissible at all.”
41. The lawfulness of an arrest and the admissibility of evidence at trial are different matters which will normally be considered in distinct contexts. Infringement of any of the basic rules regarding the first may give rise to a challenge to the lawfulness of the detention extending potentially to the jurisdiction of the court of trial. Normally, such matters require to be asserted in advance of trial. These issues emerge from the decisions of this Court in O’Brien v Special Criminal Court, cited above, and Brennan and others v Governor of Portlaoise Prison [2008] IESC 12. Geoghegan J discusses, in the latter case, the extent to which it is necessary to advance a challenge to jurisdiction before or at trial.
42. I conclude that the appellant has not established that an onus rests on the prosecution to establish the lawful provenance of material relied upon by a member of the Garda Síochána or that such material was obtained without breach of a constitutional right to form reasonable cause justifying an arrest. I would dismiss the appeal and affirm the order of the High Court.
JUDGMENT delivered the 18th day of January, 2010 by Mr. Justice Hardiman.
This is a case stated pursuant to s.52of the Courts (Supplemental Provisions) Act. The case was stated on the 21st July, 2005 by Judge Aingal Ní Chonduin, a judge of the District Court assigned to the Dublin Metropolitan District and sitting at the relevant time in the Childrens Court at Smithfield, Dublin.
Background facts.
John Cash, who was then below the age of majority, was charged with the offence of entering a building as a trespasser with intent to commit an arrestable offence therein, contrary to s.12(1)(a) and (3) of the Criminal Justice (Fraud and Theft Offences) Act, 2001. The specific terms of the charge against him were as follows:
“For that you, the said accused did on the 21st July, 2003, at St. Martin’s, Kylemore Road, Clondalkin, Dublin 22 in the Dublin Metropolitan District, did enter a building known as “St. Martin’s”, Kylemore Road, Clondalkin, Dublin 22 as a trespasser with intent to commit an arrestable offence towit theft therein.”
It appears that the premises in question were a dwellinghouse.
The relevant evidence given by prosecution witnesses is summarised by the learned District Court Judge as follows:
RELEVANT FACTS AS GIVEN IN EVIDENCE BY PROSECUTION WITNESSES
3. Detective Garda Barry Walsh arrived at St. Martin’s, Kylmore Road, Dublin 12 on the 21 July 2003 and was met there by the owner of the house, Rosin Walsh who told him that in her absence a bedroom window had been smashed and that property had been taken from the house. Detective Garda Walsh left the scene and contacted the Garda Divisional Scenes of Crime Office and requested a technical examination. That technical examination was conducted by Garda William Jordan on 22 July 2003. Garda Jordan gave evidence that he found finger marks on two pieces of glass in the window frame of St. Martin’s, Kylmore Road. He lifted these prints and brought them to the Fingerprint Section in the Garda Technical Bureau on 23 July 2003 where they were given a number TB 15107/2003, put into an envelope, signed and sealed by Garda Jordan.
4. Detective Garda Walsh gave evidence that some time after this he received “confidential information” from t he Garda Technical Bureau identifying one John Joseph Cash, the Accused, as a suspect in this case. During cross examination Detective Garda Walsh was asked by Counsel for the Accused if he was aware of the evidence grounding the arrest. He stated that it was confidential information and to disclose it to the court would be prejudicial to the accused. Under cross-examination by Counsel for the Accused, Detective Garda Walsh stated that the “confidential information” he was referring to was information that the prints taken from St. Martin’s and given the number TB 15107/2003 had been matched with a set of fingerprints of one John Joseph Cash on record at the Garda Technical Bureau. It was put to Detective Garda Walsh by Counsel for the accused that he had no knowledge as to how the print match had been made. He agreed. It was also put to Detective Garda Walsh that he did not know whether the fingerprints with which TB 15107/2003 had been matched (herein after referred to as the “original unexplained prints”) had been lawfully taken and lawfully kept by Gardaí in accordance with the requirements of section 8 of the Criminal Justice Act, 1984. He agreed with this.
5. On 23rd September 2003 Detective Garda Walsh, accompanied by Garda Brian O’Shaughnessy, arrested the Accused at his home at 24 Labre Park, Ballyfermot, Dublin 10 under the provisions of section 4 Criminal Law Act 1997 on suspicion of commission of an arrestable offence, namely burglary. Under cross-examination, Detective Garda Walsh stated that the sole basis of the suspicion for the arrest was the information he had received from the Garda Technical Bureau that the original unexplained prints had matched TB 15107/2003.
6. Detective Garda Walsh cautioned the Accused and brought him to Clondalkin Garda Station, having informed his parents Michael and Ellen Cash that they would be required to come to Clondalkin Garda Station as soon as practicable, as their son was under 18 years of age. Garda Walsh, Garda O’Shaughnessy and the Accused arrived at Clondalkin Garda Station at 8.10am. The Accused was given a written notice of his rights by Garda Connel Treanor.
7. Detective Garda Walsh then requested that the member in charge, Sergeant Philip Bourke, detain the Accused under the provisions of section 4 of the Criminal Justice Act, 1984. Detective Garda Walsh informed Sergeant Bourke that he was carrying out an investigation into the burglary at St. Martin’s and that as a result of prints taken from the scene, the Accused had been “nominated” as a suspect by the Garda Technical Bureau. On the basis of this information Sergeant Bourke detained the Accused under the provisions of section 4.
8. At 10.15am Sergeant Bourke, in the presence of Detective Garda Walsh, requested the Accused and his mother to sign a written consent to providing his photograph and fingerprints. It was put to Sergeant Bourke by Counsel for the accused that the Accused was initially anxious not to give his fingerprints. Sergeant Bourke stated that he informed the Accused that if didn’t wish to give his consent to have his fingerprints taken, that permission would be sought from a Superintendent. This was explained to the Accused and his mother. He stated that he explained and read over the consent from to the defendant and his parents. He stated that he was satisfied that both parents were aware of what was contained in the form. The Accused was asked by Sergeant Bourke in the presence of his mother if he would consent to having his fingerprints taken and he consented. The Accused signed the form in the presence of his mother. It was put to Sergeant Bourke during cross-examination by Counsel for the Accused that it was his intention that the fingerprints of the Accused would be taken ‘one way or another’. He agreed with this. Sergeant Bourke stated that if there was no consent to the taking of fingerprints then an application would have been made to the Superintendent. He went on to say that it was the policy of the gardai to offer the defendant the opportunity to provide prints first prior to making an application to the Superintendent. He stated that as a result of his experience, he believed it to be of courtesy to the defendant to do this. The Accused’s prints and photographs were taken by Detective Garda Joseph Maguire, who had been so instructed by Sergeant Bourke. Detective Garda Maguire stated that he took the prints based on the consent from and not under the Criminal Justice Act, 1984. Detective Garda Maguire was asked by Counsel for the Accused where his power to take prints by consent derived from. He could not say. He stated that while he was aware of the provisions of section 6 of the Criminal Justice Act, 1984, he was simply following orders.
9. During cross-examination Detective Garda Walsh was asked the reason why the consent procedure, rather that the procedure under section 6 Criminal Justice Act 1984 is used by Gardai, and was used in this case. Detective Garda Walsh stated that where prints are taken on consent they can be kept indefinitely whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act.
10. Detective Garda Walsh then brought the set of prints which had been taken from the Accused on a Form PC 65 (herein after referred to as “PC 65 prints”) to the Fingerprint Section, Garda Technical Bureau, Phoenix Park where he handed them to Detective Garda Raymond Gannon.
11. Detective Garda Gannon, a fingerprint expert, compared the PC 65 prints with the TB 15107/03 prints taken from St. Martin’s and was satisfied beyond doubt that both prints were made by the same person.
12. Detective Garda Gannon during cross-examination by Counsel for the Accused was asked by the Defence if he was aware of the evidence grounding the arrest. He stated that it was confidential information and to disclose it to the court would be prejudicial to the Accused. The defence nevertheless wanted this information to be disclosed to the court. Detective Garda Gannon then produced a further set of fingerprints bearing the name of one John Joseph Cash and dated the 31 March 2002. He was asked by Counsel for the Accused whether these prints had been taken pursuant to section 6 of the Criminal Justice Act, 1984 or otherwise. He replied that he did not know. He was also asked if he was aware of the provisions of section 8 of that Act and the requirement thereunder to destroy prints after six months. He stated that he was not. It was put to Detective Garda Gannon by Counsel for the Accused that he could not “stand over whether these prints were lawfully taken or kept”. He agreed with this.
13. During cross-examination Detective Garda Gannon was asked whether he was the person who matched the TB 15107/03 prints taken from St. Martin’s to those of the Accused on some date prior to the 23 September thereby identifying the Accused as a suspect and leading to his arrest and detention on the 23 September 2003. Detective Garda Gannon stated that after opening a sealed envelope containing the TB 15107/03 prints that he matched them with the set of prints bearing the name John Cash dated the 31st of March, 2002, using the AFIS (“Automated Fingerprint Information Service”).
14. Detective Sergeant Garda Walsh was informed by Detective Garda Gannon that the TB 15107/03 prints from St. Martin’s matched the right forefinger and right middle finger taken from the Accused on the PC 65 form that morning. Detective Garda Walsh then returned to Clondalkin Garda Station where the Accused was still under Section 4 detention.
15. At Clondalkin Garda Station the Accused, in the presence of his mother, was interviewed by Garda Walsh and Garda O’Shaughnessy. During this interview the matching of the prints were put to the Accused and he was asked to explain this. It was put to him that he was responsible for the burglary at St. Martin’s. The Accused denied any involvement in the burglary at St. Martin’s and said that he was at a loss to explain how his prints appeared to match prints found at St. Martin’s.
16. At 2.10pm on the 23 September 2003 the Accused, in the presence of his mother, was charged by Sergeant Stephen Lydon as set out in Clondalkin Charge Sheet No. 210510 in relation to the burglary at St. Martin’s. The Accused was then released on station bail to appear at District Court 55 on 14 October 2003.
17. That was the end of the prosecution case. Counsel on behalf of the Accused at this point made an application for a direction dismissing the charge on the basis that there was no case to answer. It was common ground between Defence and Prosecution that the only evidence against the Accused was the fingerprint evidence.”
It thus appears that, after a break in at a dwellinghouse, fingermarks were found on two pieces of glass in a window frame in the premises broken into. These were sent to the Garda Technical Bureau and they were matched, using a computerised process, with finger prints allegedly taken from the accused on a previous occasion, and dated, in the form in which they exist in the Technical Bureau’s record, 31st March, 2002.
The comparison between these two sets of finger prints led to the arrest of the appellant in respect of the break in at “St. Martin’s” and is subsequently to his detention under the provisions of s.4 of the Criminal Justice Act, 1984.
While the age of the appellant does not appear from the case stated it appears he was a child or young person requiring to be tried before the Childrens Court, at the time of all material appearances in the years 2003 – 2005.
It further appears from the case stated that there was no evidence against the accused other than comparison of two sets of finger prints. Objection was taken on the part of the appellant to the admission of the finger print evidence on the basis that the arrest and detention under s.4 were unlawful because they were based on information from the Technical Bureau, which was in turn based on the March 2002 finger print kept in the records of that body. It was contended that the legality of the taking of that finger print, and of its preservation by the gardaí, had not been established.
This last mentioned contention was based on the agreement of a Detective Garda Gannon, a finger print expert, that he could not “stand over whether these prints were lawfully taken or kept”.
It will be noted that it also arose from the evidence heard before the learned District Court Judge that the prosecutor, Detective Garda Walsh, first claimed privilege in relation to the information on the basis of which he had arrested the appellant. He also stated that “he did not know whether the finger print with which the prints found in “St. Martin’s” had been matched had themselves been lawfully taken and lawfully kept by the gardaí.”
Another prosecution witness, Detective Garda Maguire, took the appellant’s finger prints and photograph while the latter was in custody under s.4 of the 1984 Act. He said he did so on the basis of a consent of the appellant and his parents. He could not say where his power to take prints by consent derived from. He said he was aware of the provisions of s.6 of the Criminal Justice Act, 1984 but he was “simply following orders”.
Another feature of the facts to emerge from the case stated is that set out at paragraph 9 thereof and is relied upon by the appellant. It appears that Detective Garda Walsh was asked the reason “why the consent procedure, rather than the procedure under s.6 of the Criminal Justice Act, 1984, is used by gardaí, and was used in this case. In the words of the case stated:
“Detective Garda Walsh stated that where prints are taken on consent they can be kept indefinitely whereas there was an obligation to destroy them after a period of time if they were taken under the 1984 Act.”
Matters not established.
It will be noted that there is no information in the case stated, and there was no evidence before the District Court, in relation to certain material matters. None of the gardaí involved in the “St. Martin’s” investigation were involved in the chain of events apparently leading to the taking of the appellant’s finger prints in March, 2002. The appellant did not himself give evidence, or call any evidence, on that question. The prosecution did not call any gardai who had been involved in the events of March, 2002 and neither did either side produce any custody record (if indeed the appellant had been in custody) which covered the circumstances in which the first set of finger prints were taken.
Moreover, there was no evidence other than what has been quoted above relating to the circumstances in which a second set of finger prints was taken. From the evidence quoted above it appears that they were taken while the appellant was in custody. This evidence, which appears to have been uncontradicted, establishes that a Sergeant Burke asked the accused and his mother to sign a written consent to the providing of his photograph and finger prints. The Sergeant said that he informed the accused that if he did not wish to give his consent to have his finger prints taken, that permission would be sought from a Superintendent. Subsequently the accused was asked, in the presence of his mother, if he would consent to having his finger prints taken and he consented. He then signed the consent form in the presence of his mother.
Statutory provisions.
Section 6 of the Criminal Justice Act, 1984, provides insofar as is relevant:
“(6)(i) Where a person is detained pursuant to s.4, a member of the Garda Síochána may –
(a) –
(b) –
(c) photograph him or cause him to be photographed;
(d) take or cause to cause to be taken his finger prints and palm prints,
(e) –
(f) –
(2) The powers conferred by subsection (1)(c) and (d) shall not be exercised except on the authority of a member of An Garda Síochána not below the rank of Superintendent.
Section 8 of the same Act provides in so far as relevant:
“8(1) Every photograph (including a negative), finger print and palm print of a person taken in pursuance of the powers conferred by s.6 and every copy and record thereof shall, if not previously destroyed, be destroyed as this Section directs.
(2) Where proceedings for an offence to which s.4 applies are not instituted against the person within the period of six months from the date of the taking of the full graph or print and the failure to institute such proceedings within that period is not due to the fact that he has absconded or cannot be found, the destruction can be carried out on the expiration of that period.”
A relevant authority.
In DPP v. Boyce, (unreported) Court of Criminal Appeal, 21st December, 2005, Murray C.J., giving the judgment of the Court, considered a situation in which a blood sample had been taken from an accused with his consent, though without utilising the procedures laid down in the Criminal Justice (Forensic) Act, 1990. Murray C.J. said:
“It has long been the case that the prosecution are entitled to introduce such forensic evidence obtained from a person in custody at a trial, provided that it was obtained voluntarily and with the full consent of the person in custody… that is an essential part of the evidence gathering aspect of a criminal investigation provided it is done within the ambit of the law but it has not always been and is not necessarily independent, as such, on the existence of express statutory powers to collect such voluntarily provided forensic evidence. In short, it is not unlawful to take voluntarily provided forensic samples from a person in custody.”
The Court went on to hold that the enactment of the 1990 Act did not abolish the existing Common Law right of An Garda Síochána to take a sample by consent. The learned Chief Justice said:
“The Court can find nothing in the Act which suggests that the Oireachtas intended to abolish the existing and valuable faculty of the gardai to obtain or receive from persons in custody forensic samples that are voluntarily provided by such persons.”
In the present case, there equally appears to be nothing in the Criminal Justice Act, 1984 which trenches on the power of the gardaí to o obtain a sample, or a finger print, voluntarily.
Questions raised.
At the end of the case stated the learned District Justice raises the following questions:
“Whether I was correct in determining, on foot of the evidence before me, that the prosecution evidence be admitted and that the accused had a case to answer, and in reaching this decision:
(i) Whether, in circumstances where the basis of a Garda investigation is a record of the accused’s fingerprints, retained by Gardai which, on being so challenged by the Defence, the Gardai are not in a position to “stand over whether they were lawfully taken or kept”, the evidence obtained during that investigation can form the legitimate basis for an arrest and subsequent detention pursuant to section 4 of the Criminal Justice Act, 1984?
(ii) If the answer to the above question is No, must any evidence obtained during and consequential upon the said section 4 detention be excluded?
(iii) whether the Gardai, following the entry into force of section 6 of the Criminal Justice Act, 1984 have a power to take fingerprints from a person who is in section 4 Garda detention, other than pursuant to the said section 6, in circumstances where a person has signed a written consent?
(iv) If such a power does exist, is it lawfully exercised where a Garda witness has given evidence on oath that the ‘consent’ procedure’, rather than the procedure under section 6, is preferable so as to avoid the requirements of section 8 of the Criminal Justice Act pertaining to the keeping and destruction of fingerprints?
(v) If such an exercise of power is not lawful, is any evidence obtained as a result inadmissible?
(vi) If a Garda has the power to take a fingerprint from a detainee who has given signed consent to the taking of the print, is it open, as a matter of law, for me to find that he consented voluntarily n the circumstances where a garda witness agreed with the assertion of Counsel for the Accused that it was his intention that the fingerprints would be obtained from the accused one way or another’ and it was conveyed to the accused that if he did not wish to give consent to have his fingerprints taken that permission would be sought from a Superintendent?’
(vii) If the answer to the previous question is No, is the consequential evidence admissible?”
Decision.
It appears to me that the evidence in this case, as recorded in the case stated, does not go far enough to permit or require the court to determine any of the questions raised. The prosecution case was presented on the basis that the investigating members obtained information from the Garda Technical Bureau and that this led them to seek a “match” between the appellant’s finger prints taken by them and finger prints previously “lifted” from “St. Martin’s”. There is a complete absence of evidence as to the circumstances of the taking of the earlier, 2002, set of finger prints. Specifically, it is not known whether the appellant was in custody when they were taken; whether he was attended by a solicitor, a parent, or any other person; whether a statutory power was used to take those finger prints or whether he consented to their being taken.
Because of the absence of evidence on this last point, it is unknown to the court whether or not provisions regarding destruction of finger prints contained in s.8 of the Act of 1984 applied to this first set of finger prints or not. It will be noted that the obligations to destroy applies only to prints taken under the powers conferred by s.6 of the same Act and would not appear to apply if the prints were taken by consent.
The learned District Judge is entitled to consider, as noted above, that the appellant has not seen fit to call evidence, his own or anyone else’s, and the circumstances in which the first set of finger prints was taken and neither has he apparently sought production of any record of the circumstances of their taking.
The evidence of Detective Garda Walsh to the effect that consent to the procedure is preferred because it avoids the necessity to destroy finger prints after a specified time may be interesting and suggestive but it has no direct application to the present case because of the absence of evidence as to whether this procedure was in fact employed and, if so, the circumstances in which that happened. Accordingly, questions such as the propriety of using the consent procedure for that purpose and of what, if anything, must be explained to a child suspect before that can be done must await determination in another case.
The learned District Judge is, of course, entitled and obliged to have regard to the decision in DPP v. Boyce and this will provide useful guidance.
In the prosecution in the District Court, the State’s evidence was limited to a comparison of the finger prints “lifted” from “St. Martin’s” with the appellant’s fingerprints taken after his arrest and s.4 detention, in 2003.
The finger print bearing the date 31st March, 2002, plays no evidential role at all in the prosecution case. Its existence and its role in leading to the arrest of the appellant under s.4 was however brought out in the course of cross-examination by the defence during the District Court hearing, and in the face of resistance by the prosecution.
The defence did not however establish the circumstances of the taking of the earlier set of prints. If those finger prints had formed part of the prosecution case, the State would have had to establish their admissibility in the ordinary way. But they were not part of the prosecution case. Their role in the case was brought out by the defence, but in a very incomplete way. It is not even known who took the 2002 finger prints or (apart from the appellant himself) who was present when they were taken.
Since the 2002 finger prints are not part of the prosecution case, it appears to me to be for the defence to establish, with a proper degree of precision, all facts concerning them which are necessary to any submission which the defence wishes to make. This onus is no more than an evidential burden, but it does not appear to me to have been discharged. The questions posed by the learned District Judge accordingly lack a sufficient evidential basis and are to that degree moot and thus inappropriate to be answered. Equally, the lengthy disquisition on the general topic of a legally obtained evidence, which appears in the judgment of the learned trial judge, must be regarded as obiter and of no binding effect.
The Court will accordingly remit this matter to the District Court to proceed in accordance with law.
Since I do not consider the questions posed to contain a sufficient evidential basis to establish their relevance, or to require or permit this court to answer them, it will be for the learned District Judge to consider if she is satisfied that a prima facie case has been established on the basis of the evidence she has heard. If she considers that there is a prima facie case, the defence must be given the opportunity to go into evidence.
In reaching this conclusion, I am not ignorant of the significance of the issues raised on both sides of this case. However, the evidential material is not available to answer the questions raised by the learned District Judge and, accordingly, it is unnecessary to proceed to consider the prosecution’s submission that the case of DPP v. Kenny [1990] 2 IR 110 should be reviewed.
DPP v JC [2015] IESC 31
Judgment delivered on the 15th of April 2015, by O’Donnell J.
1. Ralph Waldo Emerson in his essay, “Compensation” (Essays: First Series; 1841), observed that eventually every secret is told, every crime punished, every virtue rewarded, and every wrong redressed:
“Commit a crime, and the earth is made of glass. Commit a crime, and it seems as if a coat of snow fell on the ground, such as reveals in the woods the track of every partridge and fox and squirrel and mole. You cannot recall the spoken word, you cannot wipe out the foot-track, you cannot draw up the ladder, so as to leave no inlet or clue.”
2. This may be the comforting classic template to which the detective story must conform, or at least refer, but it does not describe a modern criminal trial. In the criminal trial in this and other jurisdictions, an important part of the focus is increasingly on the exclusion of parts of the story, recalling the spoken word and wiping out the foot track. There are good reasons for this but, the function of any trial, civil or criminal, is to determine contested matters to a requisite standard of proof. In simple terms it is to determine, as far as humanly possible, whether on the balance of probabilities or beyond reasonable doubt, what did or did not happen. As a matter of both logic and pragmatism, the more information available about the event, the more likely it will be that an accurate determination can be made.
3. Traditional rules of evidence did lead to the exclusion of some material, that after all is part of the function of the law of evidence. It determines what material, may and may not be presented in court. But that exclusion of evidence was based on views derived from experience, however contested and contestable , as to the reliability of the evidence and its capacity to assist in the determination of the controversy by dispassionate analysis of all available material , which was the hallmark of a fair trial. Increasingly in the latter part of the 20th century, in particular, courts in this and other jurisdictions have had to address the question as to the circumstances, if any, in which evidence, itself reliable, cogent and perhaps compelling, should nevertheless be excluded from consideration by a trial court, not because of what that evidence proves or does not prove, but rather because of how it has been obtained. This shift also involves a subtle change of focus away from an inquiry as to what it is alleged the accused did or did not do, to how the authorities behaved in investigating the alleged offence. There are good reasons for this modern focus on how evidence is gathered as well as on what it shows, but it is necessary to recognise that it raises different issues, and involves different value judgments to those which arise when the focus is merely on the question of reliability.
4. It should be recognised at the outset that the exclusion of evidence of undoubted cogency extracts a significant price in terms of the capacity of the court to perform its primary function, and accordingly in terms of confidence in, and respect for, the legal system. Such a course must always be justified by considerations sufficient to pay that price. It is unavoidable that persons of experience and goodwill may differ as to the precise point at which the balance should tip, and experience may lead people to change their views. But it is essential, at least in my view, that courts do not seek to resolve this difficult issue as a contest between slogans, or by creating and then rejecting exaggerated and unrealistic arguments. It is important to identify the issues carefully, to seek to narrow, as far as possible, the area for disagreement and finally, where differences are unavoidable, to make plain the reasoning leading to the particular conclusion.
5. In general it may be said that the area of illegally, including unconstitutionally, obtained evidence arises most naturally either where evidence is sought to be introduced consequent upon the arrest or detention of an individual, or, as here, consequent on the search of premises authorised by warrant or other authority. While these areas are closely related, and indeed the present case is something of a hybrid case in that the evidence sought to be excluded was obtained consequent on an arrest itself considered invalid as a result of being carried out on premises to which entry was obtained by the gardaí on foot of an invalid warrant, it is in my view undesirable to treat them as completely interchangeable. Accordingly, I consider it appropriate to deal only with the area of search warrants and while recognising that the principles established here are applicable to questions of evidence consequent upon arrest or detention, I would nevertheless prefer to withhold definitive determination of that issue until an appropriate case reaches this Court which would permit the Court to consider the argument in a precise factual context, and moreover, perhaps also with the benefit of experience developed in the light of this decision. There is much wisdom in the observation of Kingsmill Moore J. in The People (Attorney General) v. O’Brien [1965] I.R. 142 (“O’Brien”) at p. 161, when he cautioned that:
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases.”
6. When in O’Brien garda officers sought and obtained access to 118 Captain’s Road, Crumlin, Dublin to search for stolen property, pursuant to a search warrant issued under s.54 of the Dublin Police Act 1842, but which described the premises as “118 Cashel Road, Crumlin”, they can hardly have anticipated the long running legal debate which would ensue. Nevertheless it has been suggested that the law on unconstitutionally obtained evidence is a matter of more academic dispute than practical significance, and at the hearing of this appeal, it was questioned whether the decision in The People (Director of Public Prosecutions) v. Kenny [1990] 2 I.R. 110 (“Kenny”) had, in fact, any real impact. I accept that impressions may vary, but I have little doubt that the issue raised in this case is of real practical importance. It is useful, for the purposes of this case, to focus on real examples, not only to illustrate the recurrence of the legal issue, but also to place in a factual context the issue that is to be determined in this case:
• A warrant was sought for 118 Captain’s Road. Inadvertently the warrant was issued in respect of 118 Cashel Road and existing premises. The error was not that of the gardaí. The warrant was executed and evidence obtained, as a result of which the occupiers of the premises were convicted.
• Members of the gardaí sought and obtained a search warrant from a Peace Commissioner pursuant to s.26 of the Misuse of Drugs Act 1977 which permits the issuance of such warrants if a Peace Commissioner is satisfied based on the information on oath from a member of the gardaí that there is reasonable ground for suspecting that a person is in possession, on any premises, of a controlled drug. The warrant which was the then standard form recorded that the Peace Commissioner “being satisfied on the information on oath of Garda …” issued the warrant. The warrant was executed and drugs found. Between the date of the search and the trial of the accused, the Supreme Court decided, in Byrne v. Grey & Ors [1988] I.R. 31, that it must be demonstrated that the Peace Commissioner had inquired into the basis of the suspicion and thus exercised his judicial discretion to grant or withhold a warrant.
• Gardaí entered on the premises then being searched pursuant to a search warrant issued by a senior garda officer pursuant to s.29 of the Offences Against the State Act 1939. Section 6 of the Criminal Law Act 1997, in addition, permits a garda, for the purpose of arresting a person, to enter premises and search those premises without warrant. The search found items connected to a robbery, the accused was arrested and made admissions. Between the search and the trial, the Supreme Court holds in separate and unconnected proceedings that s. 29 of the Offences Against the State Act 1939 is unconstitutional. It is argued that the evidence obtained should be excluded.
• A warrant is issued on the afternoon of, for example, the 20th of April. Under the relevant legislation it is to be executed within seven days. It is executed on the morning of the 27th of April and evidence found. A court holds that the entirety of the day of issuance (including the portion prior to the issuance of the warrant) to is to be included in the seven day period, and accordingly that the warrant expired on the 26th of April. It is argued that the evidence must be excluded.
• Under the same legislation a warrant is issued on, for example, the 26th of June, and is executed within seven days and evidence obtained. The accused is arrested at the scene and admissions made. However, the warrant is misdated on its face and contains a date of the 26th of May. The search is not carried out within seven days from the date on the warrant, albeit the search is carried out within seven days of the actual date of issuance. The warrant is held to be invalid. It is argued that the evidence obtained during the search must be excluded. If the warrant is invalid, the gardaí were consequently, technically, trespassers and the arrest was wrongful and, it is argued, the admissions should also be excluded.
• A woman is attacked and raped in a public area. Evidence is obtained at the scene. A suspect is identified from CCTV footage. A garda sergeant immediately seeks and obtains a search warrant for the premises under s.10(1) of the Criminal Justice (Miscellaneous Provisions) Act 1997, as substituted by s.6(1)(a) of the Criminal Justice Act 2006. Evidence is obtained which on forensic analysis, links the accused to the crime. The warrant which was issued and executed follows the wording of the Criminal Justice (Miscellaneous Provisions) Act 1997 in recording that the District Justice was satisfied as a result of “hearing evidence on oath” rather than the words of the Criminal Justice Act 2006 providing for the issuance of the warrant upon “information on oath”. It is argued that the warrant is invalid. It is accepted that if invalidated on this basis, the evidence must be excluded.
• A garda based in a Dublin garda station obtains evidence of drugs being supplied from a premises in an adjacent county. He attends before the District Justice for that area who has jurisdiction to and who issues a warrant for the premises. Erroneously, the form of the warrant bears the heading “Dublin Metropolitan District” and authorises a search of the named premises in the adjacent county described however as “within the said District” i.e. the Dublin Metropolitan District. Once again it is argued the warrant is invalid and the evidence must be excluded
The decision in Damache v. The Director of Public Prosecutions & Ors [2012] 2 I.R. 266 (“Damache”) which gave rise to the exclusion of the evidence in this case, has figured in a number of cases at appellate level where appellants have sought, some successfully, to obtain the benefit of that case which had been decided after their trials but before their appeals were heard : see The Director of Public Prosecutions v. Patchell [2014] IECCA 6, The Director of Public Prosecutions v. O’Connor [2014] IECCA 4, The Director of Public Prosecutions v. Cunningham [2012] IECCA 64, The Director of Public Prosecutions v. Bolger [2013] IECCA 6, The Director of Public Prosecutions v. Hughes [2012] IECCA 69, The Director of Public Prosecutions v. Timmons [2013] IECCA 86 and The Director of Public Prosecutions v. Kavanagh & Ors [2012] IECCA 65. Furthermore, in two recent cases which have come before this Court, one of the incidental features has been that evidence was excluded consequent under the decision in Damache, applying the decision in Kenny and without that issue being the subject of any argument or appeal: see The Director of Public Prosecutions v. Connolly [2014] IESC 28 and Byrne and Byrne v. The Director of Public Prosecutions. I consider that it is probable that evidence is routinely excluded under Kenny in this way without becoming the subject of reported decisions.
7. The examples outlined above are drawn from decided cases. They do not purport to be a comprehensive catalogue of recent cases in which Kenny has arisen and it is possible, without much effort, to imagine other cases. Some of the cases from other jurisdictions suggest other examples. In all but one of the cases set out above which followed O’Brien, the evidence obtained was excluded. This random survey of decided cases shows in my view, that this is an issue of real importance. When one considers that almost all decisions of exclusion of evidence occur at trial level, and that until relatively recently it was not possible to appeal from an order excluding evidence, then it seems probable that the impact of the Kenny decision at trial level has been considerable. It could hardly be otherwise. Cases in which possession is an ingredient of the offence, whether it be of drugs or child pornography, firearms or explosives, will regularly and necessarily be dependent on evidence obtained after a search. Kenny offers the opportunity to seek to have that evidence automatically excluded. It would indeed be surprising therefore if the point was not regularly deployed in criminal trials in the State. Furthermore, this case has involved a survey of the law of a number of jurisdictions where a similar question has arisen. The matter has been hotly debated both in judicial decisions and in extensive academic commentary. I think it unlikely that such debates and commentary would be generated if the matter was of no real or practical importance, and equally unlikely that Ireland would have a lower incidence of errors in the issuance or execution of search warrants than other comparable common law countries with similar systems.
8. Again, it has been argued that the absence of a proper evidence based assessment of the rule in Kenny should somehow preclude this Court from addressing the issue in this appeal. I do not understand how such evidence could have been adduced or to what end, since it could not be said to be relevant to any of the issues at the trial, or the limited issues contemplated as establishing jurisdiction for this statutory appeal. One of the distinctions between a legislature making laws, and a court making decisions, is that the legislature specifically makes laws of general application for a wide range of circumstances, whereas a court makes a decision in an individual case, albeit which on occasions will have wider implications for similar cases. That incidental law making function is indeed a reason why a court should be cautious about making sweeping generalisations which extend beyond the particular issues of the individual case. But the core function of a court is to decide the case before it, not make generalisations about other situations. Whatever law a court makes must emerge from the facts and exigencies of the individual case. I also observe in passing that in neither O’Brien nor in Kenny was any evidence based assessment proffered or considered for the rule each of those cases proposed. This in my view, is not surprising. The issue for this Court is after all not whether the exclusionary rule in Kenny is inconvenient at a practical level, but rather whether as a matter of constitutional law it is right. In order to determine that issue it is necessary to consider the specific issue which arises on the facts of this case.
Facts
9. The facts in this case are quite simple. The gardaí in Waterford were investigating three robberies which took place at a bookmaker’s premises in Waterford between late April and early May 2011. On the 10th of May 2011 a Detective Garda Burke and a Sergeant Donohue attended at premises where the accused lived. As a result of inquires he already carried out, Detective Garda Burke intended to arrest the accused for the offences. There was no issue but that the Detective Garda had reasonable grounds for arresting the accused, and any such arrest would have been valid if carried out in a public place. The gardaí also had a warrant issued under s.29 of the Offences Against the State Act 1939 (“the 1939 Act”) to search the premises. Again there is no issue but that the warrant was valid on its face and issued in accordance with the requirements of the section and the general law relating to such warrants. The gardaí showed the warrant to the accused’s sister, and they were admitted to the premises without objection. Detective Garda Burke went upstairs, found the accused in bed, told him to get dressed, and then arrested him. Detective Garda Burke considered that he had entered the premises at 10.30 and the arrest recorded 10.40. A search was carried out by other gardaí, and produced nothing of evidential value. While the search was taking place, the accused was taken to Waterford Garda Station. There, having been appropriately cautioned, he made a number of inculpatory statements. Again, the statements were made while detained in the garda station, in accordance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Síochána Stations) Regulations 1987 and 2006 (S.I. No 119/1987 and S.I. No 641/2006), and after receiving legal advice. Those statements were such, that at the trial in the Circuit Court, counsel for the accused accepted that “certain admissions in the last three interviews could reasonably lead to the conviction of J.C., for the offence for which he is charged”.
10. Three days after the search and the arrest of Mr C., the High Court gave judgment in a constitutional challenge to the provisions of s.29 of the 1939 Act and the claim was rejected. However, on appeal to this Court, it was held that the section was unconstitutional (see Damache). By the time Mr C.’s case reached trial in Waterford Circuit Court, the decision of the Supreme Court was therefore the law. The prosecution accepted accordingly that any evidence obtained as a result of a search should be excluded but sought to argue that the admissions made in the garda station should still be admitted.
11. It was pointed out that the arrest was not dependent on the warrant, or any item obtained as a result of the search consequent on the warrant. The only relevance of the warrant was that it justified entry on to the premises where the arrest took place. The arrest could just as easily have taken place in a public street since there was evidence connecting the accused to the offence, and therefore reasonable grounds to justify it. Furthermore s.6(2) of the Criminal Law Act 1997 permits gardaí to lawfully enter premises without a warrant for the purposes of effecting an arrest and in doing so, may also search the premises. The prosecution sought to argue therefore that since the warrant was not necessary or essential to either enter the premises or to effect the arrest, (and indeed to carry out a search) the evidence should be admitted, notwithstanding the unconstitutionality of s.29 of the 1939 Act and therefore the consequent invalidity of the warrant issued under it.
12. It was argued on behalf of the accused that the search warrant had been the vehicle used to obtain entry and it was irrelevant that there might have been another unimpeachable legal source of the power to enter and to arrest. Since the section was unconstitutional, the warrant must be treated as invalid, even though issued prior to the decision of the Supreme Court. It was argued that the warrant could not authorise Detective Garda Burke’s presence on the premises and he was therefore acting as a trespasser; accordingly the arrest was invalid and, the statements made were made while in unlawful custody; the entry on to the premises, and the arrest, had been deliberate and conscious in the sense that each act was intentional, and that, therefore, they were a deliberate and conscious breach of his constitutional right to liberty, and his constitutional rights to inviolability of the dwelling home, and thus the court was obliged, applying Kenny, to exclude the evidence. The trial judge considered the matter carefully and accepted the arguments on behalf of the accused, and accordingly concluded that the evidence contained in the statement made in the garda station was inadmissible. The prosecution offered no further evidence and the trial judge directed the jury to enter a verdict of not guilty.
13. The Director of Public Prosecutions now seeks to appeal that decision to this Court under the provisions of s.23 of the Criminal Procedure Act 2010 (“the 2010 Act”). The purpose of the appeal is to invite this Court to overrule its decision in Kenny. The case has been extensively and ably argued. However, the Court directed of its own motion that since the matter involved appeal against an acquittal in a criminal trial, and is only the second case which this Court has had occasion to consider under the provisions of the 2010 Act, it was necessary to specifically address the question whether the statutory criteria under s.23 had been established, and in particular whether the Court could be satisfied that the provisions of s.23(14) had been established. Accordingly, a further hearing was directed on this specific issue.
14. This appeal was brought pursuant to s.23(3)(a) which provides that an appeal may lie only where a ruling has been made which “erroneously excluded compelling evidence”. Section 23(14) provides that such compelling evidence must be:
(a) reliable;
(b) of significant probative value and;
(c) be such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
I am satisfied that there is before this Court enough evidence already upon which the Court can properly be satisfied that the statements ruled inadmissible came within the statutory term “compelling evidence”. In particular this follows from the proper acknowledgment of counsel for the accused at trial that the last three statements contained evidence which could “reasonably lead to the conviction of the accused”. Accordingly, I do not think it is necessary or desirable to address the question whether the position taken on behalf of the accused on this appeal, of not questioning compliance with s.23(14) and arguing the case on its legal merits, would itself mean that the Court should approach the case on the same basis, or whether, in any event, it would have been appropriate to accept evidence of either the Book of Evidence itself, or the individual statements sought to be advanced by the appellant, as late evidence on this issue.
15. Consideration of s.23(14) does not therefore give rise to any particular difficulty in this case. It is however apparent that it is a section which might be difficult to operate in other cases. There is of course a drafting symmetry in including in s.23 a requirement of compelling evidence, since that is the standard which the same Act applies when it is sought to reopen and retry an accused after acquittal on the basis that compelling evidence has emerged (s.8). However, there are significant differences between that jurisdiction to be exercised by a trial court as a preliminary to a trial, and the purely appellate jurisdiction created by s.23(14). (I would also hesitate to draw conclusions as to the object of s23 (14) from an analysis of section s 8-10, not least because such an approach was not argued for, and all these areas are novel and contentious and must be addressed in due course when or if an issue arises. Section 23(14) appears to make this Court a primary decision maker on questions of reliability, probative value and as to whether a jury might reasonably be satisfied beyond a reasonable doubt on such evidence. Furthermore, it is clear that in cases where it is necessary to consider the evidence excluded in conjunction with the other evidence, it is only evidence “adduced in the proceedings concerned” which can be considered. Thus in this case, where the relevant evidence is excluded at an early stage in the trial and in consequence the trial is terminated, the other evidence contained in the book of evidence would not have been adduced, and therefore might not be capable of being considered for the purposes of the jurisdiction under s.23. The trial court’s jurisdiction is only to hear and determine matters relevant to the issue before it, and it could not proceed to hear evidence solely for the purposes of s.23, nor could it make determinations as to reliability, probative value and likelihood of satisfying a jury, which are only relevant to the jurisdiction under s.23, a jurisdiction conferred on this Court (and now the Court of Appeal). A further question might arise if, in a particular case, the respondent to an appeal wished to contest the reliability of the excluded evidence. In such circumstances would this Court or the Court of Appeal have to conduct an inter partes hearing? Again this is not something which can be dealt with at the trial court stage since such determinations are not within the jurisdiction of the court of trial ,or relevant to any issue which that court has to try. Furthermore, it is undesirable, at the very least, that this Court should be invited, indeed required. to express views as to the compelling nature of evidence (even if it may amount in law to nothing more than the same decision a trial judge may be called upon to make at the close of the prosecution case) in a case where the respondent to the appeal may face a trial on that evidence. It is sensible that the Act should not be capable of being operated merely on the exclusion of evidence in a trial court, and that the procedure should only come in to play if at all, when it is clear that the relevant evidence is significant in the context of the trial, but it is clear that s.23(14) may create unintended procedural difficulties in bringing the issue of law before this Court, or the Court of Appeal. It is now necessary to turn to the issue of law arising on this appeal, and in doing so to consider the development of the law in this area.
Background to The People (Attorney General) v. O’Brien [1965] I.R. 142
16. I consider it useful to consider the development of the rule of exclusion of unconstitutionally obtained evidence in some detail, since that process illustrates what was decided in Kenny, and what therefore is at issue in this case. When O’Brien arose, the common law rule on the admissibility of the legally obtained evidence was that stated with almost brutal simplicity in the judgment delivered only a short time earlier in Kuruma v. The Queen [1955] AC 197 (“Kuruma”):
“In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.” (p. 203)
On the other hand, Scots Law had allowed the courts a discretion to exclude evidence obtained illegally. At the other end of the spectrum lay developing United States (“US”) federal jurisprudence commencing in Weeks v. United States 232 U.S. 383 (1914) (“Weeks”), that evidence obtained in breach of the Federal Constitution’s guarantee against unreasonable search and seizure was automatically excluded. However, most criminal law in the US is state law and not federal. Weeks in fact, applied only to a small amount of offences against federal law, and its general impact was therefore limited.
17. However, in the period between the argument in O’Brien and the delivery of that decision by this Court, the US Supreme Court decided the landmark case of Mapp v. Ohio 367 U.S. 643 (1961) (“Mapp”). In that case the Supreme Court reversed the decision in Wolf v. Colorado 338 U.S. 25 (1949) (“Wolf”) and held that the exclusionary rule was applicable to the states on the basis that the guarantee found to be contained within the 5th Amendment protection against unreasonable search and seizures, was itself part of the liberty protected by the 14th Amendment to the Constitution, and thus applicable not just to the federal government and officials, but also was binding on state courts and officials. Mapp is discussed in the judgments delivered in O’ Brien. It appears that the reference to the US material was a product of the Supreme Court’s researches alone, since there is no reference to any US case in the argument of counsel. As it happened, Mapp turned out to be a controversial decision in US law marking the high point of jurisprudence of exclusion of evidence obtained on search and seizure. In due course it was qualified and then retreated from by subsequent Supreme Courts. However, at the time of the judgment in O’Brien, it was a fresh decision from a court to which the Irish courts increasingly looked for persuasive authority.
18. It becomes apparent from the decision in O’Brien, that in confronting the issue of illegally and unconstitutionally obtained evidence, there were at least three options: an almost absolute rule of admission of evidence as outlined in Kuruma (albeit that that the Attorney General disclaimed any argument that evidence obtained by methods offending against the essential dignity of the human person would be admissible); an intermediate position where the court would have discretion to exclude but was not obliged to do so, as appeared to be the position in Scots Law; and, at least in the case of evidence obtained in breach of a constitutional right, a rule of absolute exclusion, which appeared to have been recently adopted across the US in Mapp.
19. O’Brien produced impressively sophisticated judgments from both Kingsmill Moore J. (with whom Lavery and Budd JJ. agreed) and Walsh J. (with whom O’Dálaigh C.J. – who had become Chief Justice between the argument of the case and the delivery of the judgment – agreed). Since then much undergraduate and indeed professional time has been spent analysing the differences between these two important judgments. It will unfortunately be necessary to attempt that task once more. But concentration on the differences of language between the judgments of Kingsmill Moore J. and Walsh J., may distract attention from one important fact: the Court was unanimous as to the result. The appeal was dismissed, indeed dismissed after the hearing, with reasons to be given later. Whatever the differences in reasoning between the two judgments therefore, both must be read in the light of the result. Indeed, the outcome of the particular case appeared to pose no real difficulty for the court. Lavery J., who presided, put it most forcefully:
“I feel it necessary to say that in my opinion this is not a suitable case in which to consider the question serious question of the admissibility of evidence obtained by illegal means.
If a judge were to hold inadmissible the evidence in question in this case, or in any comparable case, his ruling would, in my opinion, be wrong to the point of absurdity and would bring the administration of the law in to well-deserved contempt.” (p. 148)
Indeed the Court of Criminal Appeal (Maguire C.J., McLoughlin and Teevan JJ.) had dismissed the appeal without requiring counsel for the attorney general to address the Court. The first of many warning lights generated by the decision in Kenny, is that if Kenny was correctly decided, it seems inescapable that the result in O’Brien, arrived at by every judge who considered the case, was necessarily wrong.
20. In the light of the subsequent discussion of the decision in O’Brien in Kenny, it is important to consider precisely what was at issue in the earlier case, and what was decided. It seems plain that counsel for the appellant relied on the fact that the search was of the dwelling, and was unauthorised and was therefore a breach of the constitutional rights of the occupier, and that therefore the evidence obtained ought to be excluded. Point 6 of the points certified by the Court of Criminal Appeal, and by definition therefore, a point of exceptional public importance on which it is in the public interest that an appeal should be brought to the Supreme Court, was:
“That the main body of the evidence put forward against the applicants was obtained in direct violation of Article 40, section 5, of the Constitution in that the residence of applicants, namely, 118 Captain’s Road, Crumlin, Dublin, was forcibly entered otherwise than in accordance with law and that property taken from there and put in evidence to support the convictions.” (p. 163)
21. The arguments of counsel for the appellant in the Supreme Court are recorded. While arguing for a rule of automatic absolute exclusion of illegally obtained evidence, or alternatively a rule which only permitted its admission if the illegality be condoned by reason of urgency or for some other good reason, counsel continued:
“If the method of obtaining evidence employed contravenes a constitutional right it ought not to be admitted in any circumstances. Evidence not rendered absolutely inadmissible as a result of the method by which it was obtained might be admitted at the discretion of the trial judge in each case.” (pp. 146 – 147) (emphasis added)
It seems clear therefore that the exclusion of evidence obtained in breach of the constitutional right was squarely in issue in the proceedings, and as we shall see, was clearly considered by both judges who delivered the extensive main judgments in that case.
22. In my view the difference between the judgments of Kingsmill Moore J. and Walsh J., particularly when read (as they must be) in the light of the conclusion to which they come in the case, illustrate differences of degree rather than fundamental principle. Perhaps the single point upon which there is most clear disagreement, was that Walsh J. was prepared to conclude that where evidence was obtained illegally, (but without any breach of constitutional right) there was no discretion to exclude it. He explained his reason for not adopting the Scots approach which had commended itself to Kingsmill Moore J. in a passage at page 167:
“The Scottish rule would appear to be based on the idea that the Courts must always try to reconcile to important interests, namely, the interests of the citizen to be protected against illegal (as distinct from unconstitutional) invasions of his home or liberty and the interests of the State to secure the bringing of criminals to justice. It is regrettable that these may sometimes be competing interests but the primary purpose of the rules of evidence is to ensure a fair trial of the person accused, and subject to what I have already said with regard to the more recently developed concepts relating to self-incrimination wrongly induced, the rules of evidence have never in this country been deflected to being used as weapons by the Courts to deter police illegalities. Every Judge in our Courts is bound to uphold the laws and while he cannot condone or even ignore illegalities which come to his notice, his first duty is to determine the issue before him in accordance with law and not to be diverted from it or permit it to be wrongly decided for the sake of frustrating a police illegality, or drawing public attention to it.”
This statement is consistent with the same judge’s view, expressed in The People v. O’Kelly (1974) 108 ILTR 97 that the court had the right to every man’s evidence since it was the function of the court to administer justice, and in doing so to determine in any given case what had occurred.
23. The majority judgment of Kingsmill Moore J. pointed out that some extreme positions had been canvassed. He rejected as revolting the concept that evidence obtained by personal violence would be received. On the other hand, he also rejected any absolute or near absolute rule of exclusion:
“Such a rule would exclude evidence of a murder discovered by a man engaged in poaching; even, if confined to illegalities or irregularities committed by the police or State authorities, it might exclude vital evidence where but a slight and immaterial illegality was involved. So stated the principle is clearly too wide and would place unreasonable obstacles in the way of discovering and punishing criminal activities.” (p. 150)
He then cited with approval the decisions of the Scottish Courts and in particular the judgment of the Lord Justice-General in Lawrie v. Muir (1950) JC 19:
“From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict – (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from Courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost.” (pp. 26)
24. At page 156 of the report, Kingsmill Moore J. reviewed the US authorities from Weeks to Wolf and the recently decided Mapp. He also had regard to the decision in Silverman v. United States 365 U.S. 505 (1961), Fahy .v Connecticut 375 U.S. 85 (1963), the well known dissenting judgment of Holmes J. in Olmstead v. United States 277 U.S. 438 (1928) (“Olmstead”) and the decision of the Supreme Court of Kentucky in Youman v. Commonwealth 189 Ky. 152 (1920). These cases, it should be said, are all cases involving the question of an asserted constitutional right and some of the judgments put the case for an absolute or near absolute exclusionary rule in very strong terms. It cannot be doubted therefore, in my view, that Kingsmill Moore J. was alive to the argument that where the illegality complained of amounted to a breach of the constitutional rights, different considerations should apply. Nevertheless, he rejected an absolute rule of exclusion just as he had rejected the absolute rule of inclusion outlined in Kuruma’s case. In relation to an absolute rule of exclusion he said:
“The second answer would open up equal difficulties. The exclusionary rule laid down in Weeks v. United States was not accepted in many of the State courts. An absolute exclusionary rule prevents the admission of relevant and vital facts where unintentional or trivial illegalities have been committed in the course of ascertaining them. Fairness does not require such a rule and common sense rejects it.
Some intermediate solution must be found. As pointed out by the Lord Justice-General in Lawrie v. Muir and by Holmes J. in Olmstead’s Case a choice has to be made between desirable ends which may be incompatible. It is desirable in the public interest that crime should be detected and punished. It is desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation and that the State should not attempt to advance its ends by utilising the fruits of such methods. It appears to me that in every case a determination has to be made by the trial judge as to whether the public interest is best served by the admission or by the exclusion of evidence of facts ascertained as a result of, and by means of, illegal actions, and that the answer to the question depends on a consideration of all the circumstances.” (p. 159)
Kingsmill Moore J. then set out a number of facts which he considered necessary to the exercise of that judgment. Applying those factors to the particular facts of O’Brien he found:
“…no evidence of deliberate treachery, imposition, deceit or illegality; no policy to disregard the provisions of the Constitution or to conduct searches without a warrant; nothing except the existence of an unintentional and accidental illegality to set against the public interest of having crime detected and punished”. (p. 161)
Accordingly he considered the evidence should be admitted.
25. At page 162 of the report, Kingsmill Moore J. turned to the judgment to be delivered by Walsh J. It will be necessary to address that judgment in greater detail, but for present purposes it is enough to say that it is clear that Walsh J did not favour a broad based discretion, but rather took a more hard edged approach. Thus, evidence obtained by illegal means was always admissible, subject possibly to the concession made by the Attorney General, but since such circumstances would almost always amount to a deliberate and conscious breach of constitutional rights, the evidence would be inadmissible on that basis. By contrast, evidence obtained in “deliberate conscious breach” of the constitutional rights of the accused person was “absolutely inadmissible” where “no extraordinary excusing circumstances exist”. Kingsmill Moore J. addressed this conclusion, and set out his view of it in a passage which it is necessary to set out in its entirety:
“Mr. Justice Walsh, in the judgment which he is about to deliver, is of opinion that where evidence has been obtained by the State or its agents as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person it should be excluded save where there are “extraordinary excusing circumstances,” and mentions as such circumstances the need to prevent an imminent destruction of vital evidence or rescue of a person in peril, and the seizure of evidence obtained in the course of and incidental to a lawful arrest even though the premises on which the arrest is made have been entered without a search warrant.” (p. 162)
Kingsmill Moore J. then went on to express broad if cautious agreement that in the circumstances outlined, evidence should be excluded:
“I agree that where there has been such a deliberate and conscious violation of constitutional rights by the State or its agents evidence obtained by such violation should in general be excluded, and I agree that there may be certain “extraordinary excusing circumstances” which may warrant its admission.” (p. 162)
He then expressed a qualification driven it seems, by caution rather than fundamental disagreement:
“I would prefer, however, not to attempt to enumerate such circumstances by anticipation. The facts of individual cases vary so widely that any hard and fast rules of a general nature seem to me dangerous and I would again leave the exclusion or non-exclusion to the discretion of the trial judge. The views expressed in this judgment may seem to be a departure from what has hitherto been considered the law or the initiating of a principle in a field where up to now our law has been undefined. The further development of that principle should await clarification in the light of actual cases. I have already given my reasons for considering that in this particular case the evidence should not be excluded. This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution. In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded.” (p. 162)
26. It is at this point useful to make a number of observations about the judgment of Kingsmill Moore J. First, it is in my view beyond doubt that the issue of evidence obtained in breach of a constitutional right was squarely in issue in the case, and was considered and addressed by him. Second, it is clear that he rejected the absolute exclusionary rule which then appeared to be the law in the US. Third, and usefully, he expressly addressed the central portion of the judgment Walsh J. and expressed his opinion on it. Fourth, the differences between the judgments of Kingsmill Moore J. and Walsh J. in this regard are differences of degree: where Walsh J. held that evidence obtained in a deliberate and conscious breach of a constitutional right should always be excluded save in extraordinary excusing circumstances, Kingsmill Moore J., consistent with his general view as to the discretion of the court, preferred to say that in such circumstances the evidence should “in general” or “normally” be excluded, and preferred to leave for another day the circumstances which would nevertheless justify the admission of evidence obtained in such deliberate and conscious breach of the constitutional rights of the accused. Finally, and importantly, this analysis was applied to the facts of the case. Kingsmill Moore J. considered that the entry of the premises with a warrant which did not authorise such an entry was not a case of “deliberate and conscious violation” but a purely “accidental and unintentional infringement of the Constitution” and that in such cases, the evidence should normally be admitted.
The Judgment of Walsh J.
27. The judgment of Walsh J. also deals at some lengths with the question of admission of illegally obtained evidence. That was the common law framework in which the case was presented to the Court. As already observed, Walsh J. came to the strong conclusion that there was no discretion to excluded evidence on the grounds that it had been illegally obtained. He observed:
“But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial.” (p. 169)
However he did contemplate the possibility that matters might develop to such a stage that a court might find itself compelled to come to a conclusion that all the measures introduced had failed to secure compliance by the police with the law. In those circumstances he considered it would be preferable that there should be a rule of absolute exclusion rather than that each trial judge should be asked to adjudicate upon the question of whether the public interest could require the accused to go free without full trial rather than the police should be permitted the fruits of a lawless venture. Apart from the anomalies which might arise between the positions of individual judges, the,
“lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than the principle” (p. 169).
This was however a hypothetical situation which lay, if at all, in the future and on the issue presented for decision in O’Brien, Walsh J. concluded that illegally obtained evidence was admissible.
28. In the second paragraph on page 169 of the report, Walsh J. turned to deal with the constitutional issue. He pointed out that the guarantee under Article 40.5 was not a protection against forcible entry only. Instead it was a guarantee that the dwelling of the citizen was inviolable save for entry as permitted by law and that if necessary, such law could permit forcible entry. That right was engaged in this case. A breach of the Constitution was of far greater importance than an illegality which did not amount to such an infringement. The vindication of the protection of constitutional rights is a fundamental matter for all courts. Accordingly, he concluded that:
“The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, such as the imminent destruction of vital evidence or the need to rescue a victim in peril. A suspect has no constitutional right to destroy or dispose of evidence or to imperil the victim. I would also place in the excusable category evidence obtained by a search incidental to and contemporaneous with a lawful arrest although made without a valid search warrant.” (p. 170)
This reasoning was repeated and emphasised in the subsequent paragraph:
“In my view evidence obtained in deliberate conscious breach of the constitutional rights of an accused person should, save in the excusable circumstances outlined above, be absolutely inadmissible.” (p. 170)
The position thus outlined was contrasted with what was conceived of as the logical corollary: that evidence obtained in breach of the constitutional right which was not obtained by a deliberate or conscious breach, was admissible. Indeed it followed from the view Walsh J. had outlined that there was no discretion in this regard:
“It follows therefore that evidence obtained without a deliberate and conscious violation of the accused’s constitutional rights is not excludable by reason only of the violation of his constitutional right.” (p. 170)
These principles were then applied to the facts in O’Brien’s case:
“In the present case it is abundantly clear from the evidence that it was through an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error. There was no deliberate or conscious violation of the right of the appellants against arbitrary intrusion by the Garda officers. The evidence obtained by reason of this search is not inadmissible upon the constitutional ground.” (p. 170)
29. I have set out extracts from the judgments in O’Brien at some length because it is important to understand precisely what was decided in that case, and indeed what was left for future decision. It is impossible to fully understand and analyse what was decided in Kenny, without understanding what the law was prior to that decision, and how Kenny treated it.
30. It appears to me that a number of conclusions about the decision of the Court as a whole in O’Brien, are clear beyond argument. First, and perhaps most importantly, it is clear that the phrase “deliberate and conscious breach of the constitutional rights” which appeared for the first time in the decision in O’Brien and was used repeatedly by Walsh J. and Kingsmill Moore J., meant, and was understood to mean in that case, an intentional violation of the right. This is, most obviously, the natural meaning of the phrase, in the context in which it was used. But it also follows inexorably from the context in the judgments in which the phrase is used. Deliberate and conscious violation is contrasted with the antithesis, described in the judgment of Walsh J. as “an error of which the gardaí were unaware” and in the judgment of Kingsmill Moore J. as a “purely accidental and unintentional infringement”. Furthermore, this distinction is apparent not merely from a syntactical analysis of the text of the judgments, but is in my view part of the ratio decidendi of the case. The evidence in O’Brien’s case was admitted because it was not obtained by a deliberate and conscious breach of the constitutional rights of the occupiers of 118 Captain’s Road. Adopting the language of Walsh J., the evidence was obtained without a deliberate and conscious violation of the accused’s constitutional rights and was therefore not excludable by reason only of the violation of his constitutional rights. Finally, and if the matter was open to any doubt, the meaning of “deliberate and unconscious” in O’Brien was confirmed by a consideration of the related concept of extraordinary excusing circumstances as elaborated upon in the judgment of Walsh J. The principal examples given (the need to rescue a victim in peril, or to prevent the imminent destruction of vital evidence), occur most naturally in a context where there is a deliberate knowing breach of the constitutional right (in this case the inviolability of the dwelling) which is nevertheless justified by urgent circumstances. In the examples given, the gardaí, or any other actor, are aware that a search or an arrest is not normally authorised but consider that it is necessitated, and therefore justified, by the extraordinary excusing circumstances of the event.
31. Second, it may be observed that the case is predicated upon an extremely clear distinction between evidence obtained as a result of an illegality, and evidence obtained as a result of a breach of a constitutional right. This is clear and sharp in the judgment of Walsh J., but it is also detectable in the judgment of Kingsmill Moore J. who accepted that breach of a constitutional right was a more serious matter and would normally lead to the exclusion of the evidence. Third, it is, I think, possible to identify the ratio decidendi of that case. What the court decided is clear: the evidence was admissible. Why the court decided that is also clear and it is apparent that the difference between the judgments is quite nuanced. The evidence here was obtained in breach of constitutional rights which was accidental. It was however obtained illegally. In such circumstances, evidence obtained should normally (Kingsmill Moore J.) or always (Walsh J.) be admissible. In this case, both judges considered the evidence had been properly admitted.
Observations on the Decision in O’Brien
32. The judgments in O’Brien are thoughtful, detailed and impressive. They address an issue which is only beginning to come to the fore in Irish law as indeed similar issues were arising in other common law jurisdictions. The judgments are, if anything, progressive and innovative when compared with the then contemporaneous decisions in other common law jurisdictions. Furthermore, the position arrived at is relatively cautious and moderate. It is clear that both judgments (and therefore the entire court) rejected an absolute rule whether of admissibility or exclusion. This is apparent from the judgment of Kingsmill Moore J., but it is also apparent on an analysis of the judgment of Walsh J. The position taken by him while, marginally more hard edged than that set out in the judgment of Kingsmill Moore J., is markedly short of an absolute rule of exclusion even though the Court was aware of, and had regard to, the persuasive authority of the decision in Mapp, and the preceding US jurisprudence which seemed to support an absolute rule of exclusion. In Walsh J.’s judgment however, only deliberate and conscious breaches of the Constitution (in the sense of a knowing and intentional breach) could give rise to a rule of exclusion, and even then such evidence obtained in such circumstances might be admitted if there were extraordinary excusing circumstances. O’Brien was undoubtedly a landmark decision, and the judgments were significant contributions to the development of Irish law.
33. Looked at through the clear lens of hindsight and with the benefit of almost half a century of decisions, commentary and analysis on the question of illegally and unconstitutionally obtained evidence in this and other jurisdictions, it is now I think apparent that while the judgments in O’Brien marked a significant advance, there are flaws in the O’Brien approach. Assuming for the moment that the approach of Walsh J. was slightly more robust and radical than that of Kingsmill Moore J. and was likely to be adopted in time (as indeed it was), it still did not go very far. First, only deliberate and conscious breaches of constitutional rights could lead to exclusion of evidence. But the Constitution is a guarantee of rights against invasion and that guarantee is not limited to intentional breaches. Take the example of the related area of the tort of trespass. This is one the methods by which the State, by its laws, protects and vindicates the property rights of the citizen. The tort of trespass is complete when there is a physical entry or intrusion. There is no requirement of intent or any other mental element. An accidental trespass is still a tort and will, if necessary, be restrained or remedied by a court. Why then should the law on exclusion of evidence for breach of the Constitution be different? The constitutional concept of a right and a correlative duty to protect it, involves the focus upon the right interfered with, rather than a consideration of the intention of the wrongdoer. Intent may be relevant to the seriousness of the breach, but is not relevant to whether there was a breach or not.
34. Second, even if some culpability is required it is arguable that capturing only deliberate breaches is insufficient. If there was a reckless breach of a constitutional right, would it still be permissible to admit the evidence? Third, the exception for extraordinary excusing circumstances is also somewhat problematic. It is not clear what constitutional justification there is for this. There are circumstances that the Constitution itself limits, or permits the limitation of, rights guaranteed by it. In such circumstances however, any action within the area of permitted limitation, does not constitute a breach of the constitutional right. It is not normal therefore for there to be a breach of the constitutional right, but for it to be excused, and the Constitution does not contain any general (or indeed specific) provision permitting a Court to excuse or overlook breach of its provisions. The Constitution contains its own balance, and once a right guaranteed by the Constitution is breached, the normal constitutional response, is a requirement to vindicate the right. It is not clear where the power to excuse the breach comes from, or its extent, and it is therefore problematical. It is not suggested in O’Brien that the capacity to excuse a breach of the Constitution comes from some provision in the Constitution itself. Accordingly, the concept of excusing breaches of constitutional rights gives rise to the possibility of undermining the protection required by the Constitution. As Professor Kelly perceptively pointed out in the second edition of Fundamental Rights in the Irish Law and Constitution, (Dublin; Allen Figgis; 1967; 2nd ed.) published shortly after the decision in O’Brien:
“It is hard to disagree with the court’s conclusion on the issue involved in this particular case, which seems sensible; but it might certainly be dangerous if the police felt it was now open to them to search any premises at their own discretion in the hope that their action could subsequently be covered by the plea that they wished to avoid e.g the imminent destruction of vital evidence. Such a power would go a long way to undermine the 200 year old principle against arbitrary searches laid down in the classic sense of Entick v Carrington.”
Furthermore, the justification offered for the exception of extraordinary excusing circumstances, while having a rhetorical appeal, is not convincing. It may be true that there is no constitutional right to destroy or dispose of evidence for example, but it is equally arguable that there is no constitutional right to possess stolen goods or dangerous drugs, but it cannot be suggested that a search for either would be permissible without a warrant. I would require careful and persuasive argument rooted in the Constitution before accepting in any real life situation that deliberate breaches of the Constitution can be excused by the Court’s say so, but would reserve my judgment on that issue until it arises in a concrete case.
35. These are issues with the decision in O’Brien which arise at the level of principle. But addressing those issues could, indeed, give rise to further problems. For example, while the approach of mandatory exclusion of evidence advanced by Walsh J. is strong in principle, the narrow scope of application of the rule meant that the quantum of evidence excluded, or likely to be excluded, was quite small since it only captured evidence obtained by deliberate, conscious, intentional and knowing breach which was not otherwise excusable. If however, the scope of the exclusionary rule was widened then the impact of the rule would be dramatically extended, particularly if it was assumed that a mandatory exclusionary rule should apply without modification in any extended area of application.
36. There are also conceptual issues at a slightly deeper level which were touched on but not explored in O’Brien. The protection offered by the Irish Constitution to the dwelling home is a contingent one. Whereas for example the US Federal Constitution protects against unreasonable searches and seizures, and thus provides some substantive protection, Article 40.5 makes the constitutional protection dependent on the existence or otherwise of a law (and the terms thereof). It is true, that any law must, in the words of Henchy J., not stoop to methods themselves inconsistent with the Constitution, but that still leaves a large area of permissible legal intrusion which, it appears, may be permitted with or without a warrant. The list of lawful entry authorised by statute is impressively, and on one view, depressingly, long. This has particular significance in the field of the exclusion of evidence. The judgment of Walsh J. in O‘Brien makes a sharp distinction between breaches of the law and breaches of the Constitution. At the conceptual level this is obviously valid. But in terms of Article 40.5 the distinction almost disappears: any breach of the law permitting entry onto a dwelling for Article 40.5 is arguably a breach of the constitutional guarantee. So long as evidence was excluded only in the relatively narrow case of deliberate and conscious breach subject to the possibility of excusing circumstances, this issue did not loom large since any deliberate, intentional and inexcusable breach of the law (let alone the Constitution) would be a serious matter. But if the test was removed or diluted, then the prospect arose of even trivial breaches of regulatory matters becoming, without more, breaches of the Constitution, and giving rise to presumptive, if not indeed automatic, exclusion of evidence obtained thereby.
37. On the other hand, the fact that the constitutional protection is contingent on the terms of the law means that the substantive boundaries of what is permissible are by no means fixed. The law could determine what was lawful entry and could at least in theory, permit a wide range of entry with or without warrant, or indeed validate otherwise unauthorised entry at least for the purpose of the admission of evidence. The identification of the protection of the Constitution with a breach of the law thus raised the possibility of even trivial breaches of regulatory matters being treated as breaches of the Constitution (and consequently collapsing a distinction which seemed central in O’Brien) but there was the countervailing possibility that if the law did not treat an entry as unlawful there could be no separate question of unconstitutionality. None of this is satisfactory.
38. It is of course not unusual for even landmark cases not to answer all potential questions or indeed not to provide perfect answers to the difficult questions first posed. In normal circumstances a steady stream of cases posing different facts and issues will contribute to an adjustment and refinement of the principle. However, for whatever reason, no warrant case reached the Supreme Court for 25 years until Kenny. In the meantime, the potential flaws in the O’Brien formulation were subjected to the stresses created by a series of cases related to unlawful detention, either by detention beyond a statutorily permissible period (The People (Director of Public Prosecutions) v. Madden & Ors [1977] I.R. 336), detention in custody without being charged (The People (Director of Public Prosecutions) v. O’Loughlin [1979] I.R. 85), or by denial of access to a solicitor who was present in the garda station (The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 (“Healy”)). It is important to note that in these cases the evidence obtained was held to be inadmissible either at trial, or on appeal, or at trial or both. These decisions are plainly correct, and are examples of the courts performing the function in ensuring that constitutional rights are respected, upheld and vindicated. Indeed Healy is a good example of the robust approach taken by the courts : at that time the law was that an accused person had a right of access to a solicitor, but did not have to be informed of the right and there was no prohibition on an accused person making a statement before the solicitor arrived at the garda station. In this case the client’s solicitor arrived and was denied access to his client. The court held that that was a violation of the rights of the accused. Accordingly his detention became unlawful as from the point of denial of access. However because it could not be shown that the statement had been made during the period of lawful custody (and before the point of denial of access) the entirety of the statement must be excluded.
39. In their own terms, these are important cases on the criminal process. However, in the course of such cases, the argument was made on behalf of the prosecution that even if there was a breach of the legal requirement of detention it was not “deliberate and conscious” because the gardaí claimed they were unaware of the relevant provision or legal requirement rendering the detention unlawful. In no case did this argument succeed, but it highlighted a difficulty with the “deliberate and conscious” test, since that appeared to focus attention on the state of mind of the investigating gardaí, which obviously was unsatisfactory in cases like this. If it was accepted that the gardaí were unaware of the existence of the law, and therefore of the constitutional right to liberty, the application of the rule rewarded ignorance of the law by police and gave a perverse incentive to gardaí to assert lack of knowledge of the law that they were supposed to uphold. One solution might have been to modify the test so that the seriousness of the breach was the important factor, and the subjective state of mind of the gardaí only one component in that calculation, or to include recklessness as to the breach, or lack of knowledge of basic provisions protecting citizen’s rights, as themselves grounds for excluding evidence obtained in breach of constitutional rights. But as Jonathan Swift has observed, lawyers are very attached to precedent, and O’Brien’s case and the memorable phrase “deliberate and conscious breach of the Constitution” had been sanctified by repetition. It was effectively binding upon trial courts. Accordingly, the debate occurred, and a solution was sought, within that rubric.
40. In no case was the Court of Criminal Appeal, or where relevant, the Supreme Court, prepared to accept protestations of lack of knowledge: as McCarthy J. observed in Healy, that would be to put a premium on ignorance, indeed ignorance of the law by law enforcement officers. The approach taken by a majority of the judges in the cases identified was simply to find that on the evidence there had indeed been a deliberate and conscious breach. The matter was perhaps put best by O’Hanlon J. in the Court of Criminal Appeal in Kenny:
“It is clear from the decisions in The People v. Madden [1977] I.R. 336, The People v. Farrell [1978] I.R. 13, The People v. O’Loughlin [1979] I.R. 85 and The People v. Walsh [1980] I.R. 294, that knowledge of the common law and statute law, and of the constitutional guarantees, must – generally speaking – be imputed to the law enforcement agencies, and that if they are breached in a manner which infringes the constitutional rights of an accused person, it may be regarded as a deliberate and conscious violation without regard to the actual state of knowledge or bona fides of the garda officer or other person committing such violation.” (p. 119)
In other words, gardaí were deemed to know the relevant provisions, and consequently, breach thereof was deemed a deliberate and conscious breach giving rise to the exclusion of the evidence unless there were extraordinary excusing circumstances. As Mr Justice Mc Kechnie observes there was a certain lack of clarity in the jurisprudence , exemplified perhaps by the fact that Mc Carthy J appeared to take different views in DPP V Lawless CCA 28/11/85 , Mc Carthy Keane and O’ Hanlon JJ , and in DPP v Healy. However, an increasingly influential view which can be traced to the dissenting judgment of Walsh J. in The People (Director of Public Prosecutions) v. Shaw [1982] I.R. 1 (“Shaw”) (and perhaps further to the dissenting judgment of the same judge in The People (Director of Public Prosecutions) v. Walsh [1980] I.R. 294 (“Walsh”)) was to the effect that deliberate and conscious breach merely meant that the act complained of was deliberate and intentional and it was irrelevant if the gardaí were entirely innocent and acting bona fide. The implication of this difference of approach was not perhaps immediately obvious. So long as a court was dealing with a breach of obvious provisions which ought to have been known, or could be deemed to have been known, then the difference of approach did not necessarily create a particular difficulty since both tests would lead to the same outcome and exclusion of the evidence. However, if an illegality was caused by a mere technicality or an error for which the gardaí could have no responsibility, and could not in any event possibly cure, then there was a possibility of conflict, since in such circumstances the two approaches could, potentially, lead to different outcomes. Such an issue arose in Kenny.
The Decision in The People (Director of Public Prosecutions) v. Kenny [1990] 2 IR 110
41. The warrant in Kenny’s case was issued by a Peace Commissioner under s.26 of the Misuse of Drugs Act 1977. The warrant was issued on the 29th of September 1984 and the search took place on the 2nd of October of the same year. Drugs were found, the defendant charged, and a trial took place in the Dublin Circuit Criminal Court. At the trial there was a challenge to the validity of the warrant which was rejected and the evidence was admitted. It is not clear from the report of the decision when that trial took place. However, certainly before the appeal was heard, the High Court heard a challenge in a different case, Byrne v. Grey. That case too concerned a search warrant issued under s.26 of the Misuse of Drugs Act 1977. The information and warrant were in the same standard form as that which had been used in Kenny. The High Court on a judicial review challenge held that the form used of the information was inadequate since it gave no basis for the belief of the individual garda that drugs were on the relevant premises. Accordingly, the Peace Commissioner could not be satisfied of that fact, and the search warrant was invalid. The point, it should be said, was one of some subtlety and had escaped the gardaí, court officers and lawyers, involved in many cases in which the same standard form had been used.
42. It was plain that the relevant member of the garda in seeking the warrant, and in swearing the information, was using a standard form and acting in good faith as the Court of Criminal Appeal acknowledged at page 117 of the report. Indeed, a standard form is adopted presumably to seek to minimise the possibility of individual human error. The form was not drafted by the individual garda officer and there was no defect in the matters inserted by him. There was nothing he could have anticipated or done about the possible invalidity without an extraordinary feat of legal clairvoyance. The decision that an information in that form was inadequate and any consequent warrant invalid, lay far in the future at the time the warrant in Kenny was sought and obtained. In such circumstances, was the evidence obtained to be excluded on the ground that there had been a breach of the constitutional right to the inviolability of the dwelling? The Court of Criminal Appeal held first that the warrant was invalid and then directed further argument on the issue of the admissibility of the evidence. In a careful judgment of O’Hanlon J which reviewed the authorities, the Court held that there had been no deliberate and conscious breach of the constitutional right. Specifically the court rejected the argument that merely because the act of entry onto the premises was intentional that there was in consequence a deliberate and conscious breach of constitutional rights and a mandatory requirement of the exclusion of the evidence unless there were extraordinary excusing circumstances, which plainly did not arise in this case. Accordingly the Court of Criminal Appeal held that the evidence was admissible.
43. One other thing had occurred in the period between the decision in O’Brien and that in Kenny: the US Supreme Court had confronted difficulties posed by the absolute exclusionary rule in Weeks and Mapp and in United States v. Leon 468 U.S. 897 (1984) (“Leon”), found that there was a good faith exception to the exclusionary rule, the requirement to exclude evidence obtained did not apply to bar the use, in a prosecution case, of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate which was ultimately found to be invalid. The parallel with the situation in Kenny seemed clear, and O’Hanlon J. found the reasoning of the US Supreme Court persuasive and indeed to echo the observations of Kingsmill Moore J. in O’Brien.
44. In Leon, White J. had reasoned that the fourth amendment of the US Federal Constitution did not itself preclude the admission of evidence obtained in breach of the amendment, and that the admission of evidence in the trial did not itself work any fresh violation of the amendment. Accordingly the exclusionary rule was a judicially crafted remedy designed to protect the fourth amendment right, rather than constituting a separate constitutional right in itself. The issue for the Court was the admission or exclusion of the evidence, and not the breach of the rights. The decision on admission or exclusion of evidence involved a balancing test. The absolute rule of exclusion exacted too high a price. The unbending application of the rule to enforce governmental rectitude would, the Court considered, impede unacceptably the truth finding function of the Court and an indiscriminate application of the rule might generate disrespect for the law and the administration of justice. Since the purpose of the rule was to deter wrongdoing, its operation should be focussed and targeted on the area where it would have this effect. It was intended to deter police misconduct, not judicial or clerical errors. Accordingly, there was no justification for applying the rule in a case where the police had not been guilty of any misconduct (however broadly defined) and the invalidity of the warrant was due to a simple error for which the police were not responsible.
45. The Court of Criminal Appeal in Kenny certified that its decision involved a point of exceptional public importance, and accordingly the matter was appealed to the Supreme Court. That Court decided to allow the appeal by a majority of three to two and reversed the decision of the Court of Criminal Appeal. As already observed, it is unfortunate that there has not been a more steady stream of warrant cases since that might permit a more nuanced, gradual and refined development of the law. It is also unfortunate that the Kenny case was to some extent decided in the shadow of the debate on evidence obtained from persons in detention found unlawful. In the event, the majority of the court (Finlay C.J., Walsh and Hederman JJ.) held that ”deliberate and conscious breach” meant merely that the act (of entry to the premises in that case) was intentional. If so, there was a deliberate and conscious breach of the constitutional rights and the evidence must be excluded since there were no extraordinary excusing circumstances. Accordingly, the appeal was allowed.
46. The single judgment of the majority in Kenny is that of Finlay C.J. First, he observed that the decision in Leon depended on a principle of deterrence rather than the absolute protection of constitutional rights. He considered that this had no echo in the judgment of Kingsmill Moore J. in O’Brien, the greater part of which he considered was concerned only with illegally as opposed to unconstitutionally obtained evidence. He considered that the only reference to the Constitution in O’Brien was a short passage at the end of the judgment of Kingsmill Moore J. The learned Chief Justice then expressed the view that:
“The expression of opinion [by Kingsmill Moore J.] which formed the majority view of the Court in The People (Attorney General) v. O’Brien … clearly leaves unresolved in relation to the admissibility of unconstitutionally obtained evidence the choice raised by the arguments in this case between the deterrent and absolute protection principles.” (p. 131)
47. The judgment then cited the extracts from the dissenting judgment in Walsh, the principles outlined in the judgment of Walsh J. in Shaw, and the decision in Healy. The essence of the court’s reasoning is to be found in a relatively short passage commencing at pages 133 – 134 of the report:
“The duty of the Court pursuant to Article 40, s.3, sub-s.1 of the Constitution is as far as practicable to defend and vindicate such rights.
As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned.
To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen”.
After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw [1982] I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s) discretion.”
48. In concluding that a rule which only excludes evidence obtained by a person who knows that he is invading a constitutional right and intends to do so, was too limited a rule, the judgment was in my view quite correct, for reasons I have sought to set out. That limitation in the scope of the O’Brien principle had become apparent in the succeeding years. But in my view the judgment is much less persuasive in implicitly rejecting the approach of O’Hanlon J. in the Court of Criminal Appeal, and in particular in substituting for the O’Brien test, an absolute or near absolute rule of exclusion especially when that was achieved by using the same language and structure as the decision in O’Brien (deliberate and conscious breach, not unintentional or accidental and no extraordinary excusing circumstances) but assigning different meanings to the concepts involved. This maintained an impression of superficial consistency while undermining the reality of the test.
49. While the decision refers to an absolute rule at certain points, the rule subsequently stated was in a more qualified form:
“…evidence … must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances …”. (p. 134)
This appears therefore to be a more nuanced test, and a repetition of O’Brien. But now “accidental and unintentional” has an entirely different meaning to the same phrase when used, and more importantly, applied, in O’Brien. It is now only the act which must be intentional. But in the field of search warrants, this is no qualification at all. Every search and every entry pursuant to warrant is intentional. That is why a warrant is sought in the first place. Similarly, “extraordinary excusing circumstances” provides no substantial limit or qualification in the new definition. That phrase was adopted in O’Brien in the context of excusing what was a deliberate and conscious violation which was intentional. The circumstances contemplated involved normally, urgency which for example might make it impossible to comply with a legal requirement to obtain a warrant, before evidence was destroyed. But this would have no application where a warrant has already been obtained but some time later is subsequently ruled invalid. Thus the consequence of the new definition of “deliberate and conscious” looked at in the field of warrants is not only to enlarge significantly the scope of the exclusionary rule to cover all intentional acts, and therefore every entry pursuant to a warrant which transpires to be invalid or defective, but at the same time to render the apparent balancing qualifications of the rule (accidental and unintentional actions, and extraordinary excusing circumstances) devoid of any practical application. The new rule is, in practice, absolute. This analysis is confirmed if need be, by experience: in the years since Kenny there does not appear to have been any example of evidence obtained pursuant to an invalid warrant which was nevertheless admitted because the violation was either accidental in the Kenny sense, or, justified by excusing circumstances. Accordingly, one of the troubling features of Kenny is that it adopts a rule on its face qualified, but in reality absolute or near absolute, at least in the field of warrants. Moreover the absolute nature of the rule is not recognised and accordingly is not justified in the reasoning in the judgment.
50. The treatment of the decision in O’Brien by the judgment in Kenny is a further difficulty. The decision in Kenny explicitly departed from and disapproved of the majority decision in Shaw. However it makes no determination or comment on the decision in O’Brien. Subsequent courts have struggled to reconcile the two decisions (see The People (Director of Public Prosecutions) v. Balfe [1998] 4 I.R. 50, and The People (Director of Public Prosecutions) v. Mallon [2011] 2 IR 544). However it was said in argument in the present case (and my experience in other cases in which warrant points were argued would seem to bear this out) that Kenny in effect overrules O’Brien, and has been so understood and applied by the profession, so that on the same facts, the warrant in O’Brien would now have to be held invalid and the evidence ruled inadmissible. The suggestion made in Kenny that O’Brien can be distinguished on the basis that the judgment of Kingsmill Moore J. was principally concerned with illegally obtained evidence is unpersuasive. It seems clear for the reasons set out at some length above, that the consideration of the constitutional point was more extensive than the Court in Kenny allowed and the constitutional question was fully considered, indeed decided, by Kingsmill Moore J. The question of whether there was a deliberate and conscious breach of the constitutional right of the citizen was essential to his decision in that case. It was because he considered that the breach of the constitutional right of the accused was not deliberate and conscious ( “This case is not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution”) that he was able to treat it as a case of illegally obtained evidence , which should be admitted . Furthermore, the choice between a deterrent exclusionary principle, and absolute protection principle was also firmly in view in O’Brien, and, on my reading of the decision, both judgments in that case rejected the absolute protection approach. Furthermore, the outcome in Kenny effectively collapses the distinction which seemed central in O’Brien between illegally obtained evidence which might (Kingsmill Moore J.) or must (Walsh J.) be admitted, and unconstitutionally obtained evidence which, if there are no extraordinary excusing circumstances, must normally (Kingsmill Moore J.), or always (Walsh J.), be excluded. One consequence of the Kenny decision, in particular in respect of warrants, is that any illegality which leads to invalidity will lead inevitably to exclusion. Indeed, since the entry under Article 40.5 of the Constitution must be “in accordance with law”, it can be argued that any illegality (even if not invalidating the warrant) leads to an unconstitutionality, and if Kenny is correct, to an automatic or near automatic exclusion of the evidence.
51. I confess to real difficulty in accepting the interpretation of “deliberate and conscious breach” advanced first in the dissent in Shaw and adopted by the majority in Kenny. First, it is linguistically and grammatically implausible. The adjectives, ‘deliberate’ and ‘conscious’ qualify the noun, ‘breach’. The natural understanding of the phrase is that which was understood and applied until 1990, namely that it was the breach which had to be deliberate and conscious. Indeed that is, I think, plainly the manner in which it was understood – and applied – in O’Brien. The evidence was admitted (by all courts which considered the matter), because ultimately the error in the address, and the consequent invalidity of the warrant and unauthorised entry, was unintentional and accidental, rather than a deliberate and conscious breach of the constitutional guarantee. This was part of the ratio decidendi of that case. It would be surprising and noteworthy if a venerable decision of this Court in O’Brien was overturned both in its reasoning and its result with the effect that the conclusion rejected in that case as wrong to the point of absurdity, would become correct in law, but it is remarkable if all this is achieved sub silentio. This is not merely a matter of judicial politesse or ritual. Preceding decisions provide an important structure which either supports or tests the reasoning in subsequent cases. The careful and faithful analysis of precedent is an important discipline in contributing to the rigour of the argument . It is also an essential part of the concept of precedent which itself is part of the law and justice , which the Courts administer and uphold under the Constitution.
52. The rationale for the new rule advanced in Kenny does not, at least in my judgment, withstand scrutiny. Leon is characterised as a decision on deterrence and the Kingsmill Moore J.’s judgment in O’Brien distinguished unpersuasively, and a choice posed between a rule based on deterrence, and one of absolute protection, the absolute protection rule being preferred. However, the analysis conducted by the Court seems to be based on a principle of deterrence. The apparent contrast between a negative deterrent and a positive encouragement is superficially attractive, but, at least in my view, is not convincing. The choice in Kenny was between a somewhat exclusionary rule and a more, indeed almost absolute, exclusionary rule. That is a choice between some deterrence and more deterrence. No reward or incentive is being offered to the State authorities for compliance with the rule other than the avoidance of the punishment of having otherwise cogent and possibly compelling evidence excluded. The description of the new rule as offering positive encouragement rather than negative deterrence does not therefore explain ,still less justify, its adoption. But if deterrence underpins the decision in Kenny then the question arises why it is appropriate to apply the rule when, as in this case, there is no misconduct to be deterred.
53. This leads to a fundamental question as to what behaviour it is the rule in Kenny seeks to either encourage or deter. The answer given at one level of generality is easy: the rule seeks to ensure compliance with the Constitution and deter its breach. But that is not behaviour, it is a legal consequence of the behaviour. At a more specific level, because the combined effect of Article 40.5 of the Constitution and the decision in Kenny, is to collapse any distinction between legal validity and unconstitutionality, the expanded rule of exclusion in Kenny seeks apparently, at least in warrant cases, to punish technical, human and forgivable error, perhaps to encourage precision in the drafting and issuance of warrants, and in cases such as Kenny and the present case, to encourage a form of inspired legal clairvoyance in predicting decisions in future cases on points not yet raised, argued or decided, at the time the warrant is obtained. Insomuch as these may be worthy objects at all, they come at a high price in terms of resources, time, efficiency, the detection of criminal conduct, and in particular the exclusion of otherwise compelling evidence.
54. A further unsatisfactory aspect that emerges through Kenny is that since the constitutional protection of the dwelling home is dependent on the terms of legal regulation (since inviolability is guaranteed “save in accordance with law”), it is possible by the law to alter the extent of protection of the dwelling home. Thus, and more recently, legal provisions seek to limit the consequences of failure to comply with them. Section 7 of the Criminal Justice Act 1984 establishing Custody Regulations, Order 38 Rule 1 of the District Court Rules on forms, and the provisions of s.12 of the Interpretation Act 2005, all seek to limit invalidity and thus cut off at source the possible argument that there has been an invalidity and therefore breach of a constitutionally protected right. This makes the exclusion of evidence for breach of the Constitution even more haphazard and unpredictable and removes the law on exclusion of evidence some distance from the substance of the right sought to be protected by the Constitution.
55. Having considered the arguments made in this case and the range of cases referred to, I conclude that the test articulated in O’Brien, either by both judgments or a synthesis of the two, while a significant advance in the jurisprudence at the time, is not a complete or comprehensive statement of the circumstances in which evidence should be excluded. However, I am even more clearly of the view that the outcome of Kenny is a solution which is worse than the problem.
56. It is necessary therefore to address the question afresh in the light of the scrutiny of O’Brien and Kenny and subsequent experience and practice. The first question which must be addressed is whether an absolute rule of exclusion such as that articulated in Mapp or in effect adopted in Kenny, is justifiable even if it results in the exclusion of evidence caused by technical, understandable, forgivable and sometimes unavoidable error? There are, I think, two plausible arguments in favour of such a rule. First, it might be said, and this is hinted at in Kenny, that the Constitution commands this outcome. On this argument, the balance has been set by the Constitution which has decided that the exclusion of such evidence in such circumstances is required by the obligation to vindicate the constitutional rights of the citizen, and the near absolute rule of Kenny merely applies that conclusion. The second argument is a more pragmatic variation of the first. It argues that an absolute rule can be justified because no more nuanced rule can be devised to permit the admission of evidence where the error is technical, accidental or excusable, which does not open up the possibility of permitting, and indeed encouraging , further breaches of the Constitution. A bright clear line may come with a cost, but, so the argument runs, it may be preferable in the long run.
57. The issue raised here can usefully be addressed first as a matter of principle and constitutional analysis, second by consideration of relevant analogies in constitutional law, and finally by consideration of the manner in which it has been addressed in other countries with a similar legal system and similar commitment to fundamental rights
58. In an admirably focussed and knowledgeable argument on behalf on the respondent, Mr Michael Delaney SC argued that the absolute exclusionary rule was required by the constitutional obligation to respect and vindicate the constitutional rights of the citizen. Accordingly it was, he argued, the Court’s function and indeed duty, to vindicate the right which had been breached. It is possible to elaborate on that basic argument in a number of ways. If it was possible to imagine a hypothetical judge present as the gardaí were seeking entry of a dwelling home under a defective and therefore invalid warrant (even if obtained in good faith) the judge would be bound to grant an injunction restraining entry. If, in a slightly more realistic scenario, a householder physically resisted entry, for whatever reason, and was arrested, but it transpired that the entry had been obtained on foot of an invalid warrant, he would, as I understand it, have committed no crime. If entry was obtained on a warrant subsequently found to be invalid, and the householder was to sue for trespass, then subject to special defences as contained in legislation such as the Constabulary (Ireland) Act 1863 (see Hanahoe & Ors v. Hussey & Ors [1998] 3 IR 69) he would be entitled to succeed. The same reasoning should, it is argued, lead to the exclusion of evidence obtained as a result of a search carried out on the same warrant, not least since the very object of the entry was to obtain that evidence.
59. This is an attractive argument, but for me ultimately unpersuasive. First, to adopt the approach of Leon, the Constitution does not itself address the question of the admissibility of evidence and the admission of evidence is not itself a breach of the inviolability of the dwelling. The question for a court is the admission of evidence. That itself is not a breach of Article 40.5. The example of injunction or other tortious remedies are useful but do not necessarily lead to the conclusion that an absolute rule of exclusion is required. Indeed the fact that there are statutory limits for recovery of damages on foot of invalid warrants and that similar provisions have been held to be consistent with the Constitution (Dillane v. The Attorney General and Ireland [1980] I.L.R.M. 167) might suggest that the obligation on the court to vindicate the rights of the occupier of the dwelling is by no means absolute. Furthermore, as Barron J. pointed out in a thoughtful dissenting judgment in Simple Imports Ltd v. The Revenue Commissioners [2000] 2 I.R. 243, it should not be assumed that the legal position at or before entry is identical to the situation which arises when entry has been obtained, evidence is found, and it is sought to have that evidence admitted at trial. Indeed, the example of the hypothetical judge supervising the execution of the warrant and empowered to grant relief is instructive in a different way. If such a hypothetical judge’s power extended to injunctions, then by the same reasoning it must also extend to a power of rectification or conceivably to grant a fresh warrant. In the circumstances considered in this judgment, where the defect is a mere error, it would therefore be possible to correct the error, authorise the search and obtain the evidence in a lawful way. The situation therefore is not by any means as clear cut as the examples given might suggest.
60. The argument that an absolute rule is required by the strict compliance with the Constitution does not, indeed, support the approach taken in Kenny but would in fact go significantly further. The argument should mean that accidental breaches (even within the narrow and artificial interpretation adopted in Kenny) should also be excluded. Similarly, it is difficult to square the concept of extraordinary excusing circumstances with the theory of absolute exclusion mandated by the constitutional obligation to vindicate rights since the strength of the argument is that if the constitutional right is breached, it must be vindicated by the exclusion of the evidence. If however it is accepted that there are some permissible exceptions to a rule of absolute exclusion, even narrow, then it is no longer a matter of absolute principle, and becomes a matter of balance. If some exceptions are permitted, that can only mean that the constitution contemplates some factors as limiting the requirement to exclude evidence. If so, then there is no logical reason to exclude from the balance other factors particularly if they are rooted themselves in the Constitution.
61. Perhaps the most fundamental objection to this line of argument is that it assumes that the question in issue is only the vindication of the citizen’s right of inviolability of the dwelling home, or other property, save in accordance with law. In an action for an injunction restraining trespass ex ante or seeking damages ex post that might indeed be the only question. Even then, as discussed above, there is no absolute rule. But the admission of evidence in a criminal trial occurs in a quite different context. The central issue there is not the question of breach of the rights of the householder, but rather the performance of the constitutional obligation of the administration of justice. That involves a determination of the guilt or innocence of an individual, something that is best performed with maximum relevant probative evidence whatever that evidence proves or suggests. As the discussions in O’Brien and Leon show, traditionally the administration of justice was robust, even ruthless, in requiring that all relevant evidence be available. Grounds for excluding reliable and probative evidence are few, and strictly construed. The administration of justice under the Constitution, its truth finding function and its requirement of the availability of all relevant evidence, is a factor weighing in favour of admission of evidence. Of course, there comes a point when the administration of justice may itself require that relevant evidence be excluded, for example where the evidence was obtained in circumstances offensive to the concept of justice itself. This would itself be offensive to the administration of justice which is the fundamental obligation of a court. However, that calculation involves a balance rather than an absolute rule. The fact that the Kenny approach to the issue is one dimensional and simply addresses the question of what is the most effective deterrent to a breach of the right is in my view, a central weakness in that decision. In my opinion, the approach in Kenny fails to locate the issue as a question arising in the course of the administration of justice, and accordingly, fails to give any weight to the interests involved in the administration of justice or indeed appreciate that a balance is involved. Instead the judgment treats the damage the rule effects to the administration of the justice as simply an unfortunate collateral consequence of an exclusionary rule.
62. It remains to consider whether there is in principle any other more persuasive justification for the rule advanced in Kenny. One suggested justification is an echo of an argument touched on in the judgment of Walsh J. in O’Brien. On this argument, the justification for a bright line rule is pragmatism rather than principle. It is said that the price of the occasional exclusion of cogent evidence where a party seeking to admit the evidence has been blameless in the breach concerned, is nevertheless preferable to the risk that evidence would be too easily admitted because, it is said, given an option, courts will inevitably succumb to pressure to admit apparently cogent evidence of guilt.
63. There are arguments in favour of general rules, particularly if the alternative is an unbridled discretion. As Lord Shaw of Dunfermline said “[t]o remit the maintenance of constitutional right to the region of judicial discretion is to shift the foundations of freedom from the rock to the sand” (Scott & Anor v. Scott [1913] AC 417, p. 477). It is however a difficult argument to make here. The choice here is between two different rules. Furthermore, the argument that the exclusion of evidence is a price worth paying to avoid the improper inclusion of evidence is difficult, since there is no way of counting still less valuing, the costs of either side of the balance. In particular it is not possible to say that a substitute rule is too costly, in terms of the breach of rights occasioned, when that rule has not been articulated or operated to date. If this same calculation had been made in Kenny, then it might be possible to consider if experience had borne out the prediction implicit in the adoption of the rule. However, there is in my view, little doubt but that Kenny exacts a very heavy price not merely in terms of cases terminated and evidence excluded, but, just as importantly, in respect for the law itself.
64. Furthermore particularly in the field of warrants with which this judgment is concerned, there is surely little risk of unjustified admission of evidence obtained by unconstitutional means by trial courts exercising an unreviewable discretion. In almost every invalid warrant case, the police have sought to comply with both the Constitution and the law by seeking and obtaining a warrant. The question rarely involves any subjective consideration of motive. The error or defect once identified is normally apparent, and the reasons clear. Accordingly a trial court has a very clear view on objective factors and its determination is equally open to review on appeal. It is a normal function of law and in particular case law, to seek to draw nuanced rules in an incremental fashion, and I do not consider that it is impossible to devise a rule which distinguishes clearly between those cases where a warrant is technically invalid but the evidence ought to be admitted, and those cases where evidence obtained in breach of the Constitution should be excluded. The experience of other common law jurisdictions also suggests this is so. It is in any event both offensive and self defeating to devise a judicial rule of absolute or near absolute exclusion on the basis that courts will not enforce rules of exclusion. In my view there is no reason in principle or pragmatism which requires the absolute or near absolute rule in Kenny.
Analogous Areas
65. It is noteworthy that in a number of areas Irish courts have confronted similar questions and rejected any absolute or nearly absolute rule. For example the Irish courts have never adopted the United States doctrine of “fruit of the poisoned tree”. It must be acknowledged that there is a logic to this doctrine and that it is consistent with the logic of Kenny. If the sole question for a court is the remedy of the breach of the constitutional right, and thus to seek to restore the person to a situation where the breach had not occurred, then the court should not merely stop at excluding evidence obtained directly as a result of an invalid search, but should exclude all evidence shown to flow from that search. Any such evidence would not have been available, or even known, had the illegal and unconstitutional search not taken place. But the Irish courts have never accepted this position (see Curtin v. Dáil Éireann & Ors [2006] 2 IR 556). Similarly this Court has decided that unconstitutionally obtained evidence may nevertheless be a permissible basis for seeking a valid warrant (The Director of Public Prosecutions (Gda Walsh) v. Cash [2010] I.R. 609). Once again, if the obligation were merely to vindicate the rights of the citizen, and to seek to restore them to a position where the breach had not occurred, then the evidence obtained should not be treated as being available for any purpose adverse to the householder.
66. Another analogous area is that of appearance in court consequent on an initial invalid arrest. This Court has had occasion to deal with arguments made arising from an apparently invalid arrest and subsequent remands before the District Court. However, it is well established that the fact that an initial arrest was unlawful (and therefore unconstitutional) does not invalidate everything which follows even though it can properly be said that a person would not have been before a court, were it not for an initial invalid arrest which brought him or her on the first occasion before the court, from which he or she was then remanded. As long as the presence of the accused has not been obtained by deliberate and intentional breach of rights such as that which occurred in The State (Trimbole) v. The Governor of Mountjoy [1985] I.R. 550, all further steps are valid. See the concurring judgment of McKechnie J. in Whelton v. O’Leary & Anor [2011] 4 I.R. 544, where the law is helpfully analysed. It is plain therefore that the Kenny approach is not taken here.
67. Another example occurred in the decision in Hanafin v. Minister for the Environment & Ors [1996] 2 IR 321. There, it will be recalled, the Court had to deal with the consequences of unconstitutionality identified in McKenna v. An Taoiseach & Ors (No. 2) [1995] 2 IR 10, where the government had been found to have acted unconstitutionally in expending public funds on one side of a referendum campaign. It was argued that the Court should apply the reasoning in Kenny, and invalidate the referendum result. That argument was rejected by the Court. O’Flaherty J. said at page 434:
“… I do not think anything is to be gained by assigning a description of “deliberate and conscious violation” on the Constitution, as opposed to innocent wrong-doing, to the Government’s action. Either of those descriptions are more appropriate to police action by servants of the State and, in general, would be inappropriate to apply to Government action when the Government is exercising the executive power of the State.”
68. Finally, in A v. The Governor of Arbour Hill Prison [2006] 4 IR 88, the Court rejected an argument that once an act had been declared unconstitutional it necessarily followed that all steps taken on foot of it were void. As Murray C.J., as he then was, observed, “the law is too old and too wise to be applied according to a rigid abstract logic or a beguiling symmetry”. In this and in other areas the life of the law has not been logic but experience. That may involve recognising that a number of different values are involved. It is of course possible to present an argument in favour of an absolute rule as somehow more simple and therefore (and more dubiously) a more principled approach, but there are many problems which are complex and which require nuanced solutions. As Albert Einstein is reputed to have said, things should be made as simple as possible, but not more so. Whether for this reason or others it is certainly the case, that the supposed remorseless logic of Kenny has not been applied in other immediately comparable areas of Irish law.
International Authorities
69. The judgment of Kingsmill Moore J. in O’Brien makes clear that this is an area where it is particularly appropriate to consider how this question has been dealt with in other common law countries sharing a comparable value system. Indeed it seems clear that the judgment in O’Brien was influenced by the decision of the Scottish court in Lawrie v. Muir and the then recent decision of the US Supreme Court in Mapp. In considering this jurisprudence I do not lose sight of the argument made on behalf of the respondent that the constitutional provision in Ireland is not comparable to any other country, and that the Irish Constitution imposes a uniquely high standard upon the court in requiring it to vindicate the personal rights of the citizen in the case of an injustice done. However, as already noted, the Constitution does not specifically address the question of admission of evidence. Furthermore, Article 40.3.2 has been a constant while the law on admissibility of evidence has moved from near absolute admission prior to O’Brien, and a balancing test post O’Brien, to a new rule of near absolute exclusion post Kenny. It is difficult to argue therefore that any particular rule is mandated by the Constitution to the exclusion of all argument. There are clear resonances in the manner in which the question has been considered in other common law jurisdictions. In each jurisdiction courts have had to consider the admissibility of evidence obtained in circumstances amounting to a breach of rights considered fundamental. I consider it useful therefore to consider these cases while acknowledging that this is ultimately a matter for the Irish courts.
The Law of the United States
70. As addressed in part in Kenny itself, Mapp v. Ohio, however it may have seemed in 1963, did not succeed in establishing itself as a fixed part of the jurisprudence of the US. It was criticised almost immediately, and the period since 1963 has seen considerable qualification and retrenchment of the absolute rule established in Mapp for all criminal prosecutions whether State or Federal. In a recent influential book by the late Professor William Stuntz The Collapse of the American Criminal Justice (Harvard; Harvard University Press; 2011) it was labelled one of the errors of the Warren court.
71. In considering this jurisprudence it is relevant to remind ourselves, that the US courts exclude all evidence which can be shown to have been acquired as a direct result of evidence itself obtained in circumstances rendering it inadmissible. Such evidence is treated as the “fruit of the poisoned tree”. However the US courts have held that where evidence was obtainable from an independent source, or would inevitably have been discovered, it may be admitted. There is also a doctrine of attenuation which provides, that if there is any intermediate act which separates the violation of the right from the evidence obtained, the evidence may be admissible. Of course, in Leon, the Court also held that evidence held in good faith execution of a warrant subsequently found invalid, could be admitted. The scope of the rule has also been narrowed and it has been found inapplicable to civil tax proceedings, habeas corpus proceedings, deportation proceedings, and, in United States v. Calandra 414 U.S. 338 (1974), to proceedings before a grand jury. The reasoning of Justice Powell in that case has been influential more generally:
“Despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use illegally seized evidence in all proceedings or against all persons. As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served.
In the context of a grand jury proceeding, we believe that the damage to that institution from the unprecedented extension of the exclusionary rule urged by the respondent outweighs the benefit of any possible incremental deterrent effect.” (pp. 348 and 354)
72. In Hudson v. Michigan 547 U.S. 586 (2006), the court addressed the substance of the rule and whether evidence obtained in breach of the “knock and announce” requirement, should be excluded. Justice Scalia speaking for the Court held that such evidence should be admitted:
“Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates ‘substantial social costs,’ United States v. Leon … which sometimes include setting the guilty free and the dangerous at large. We have therefore been ‘cautio(us) against expanding’ it, … and ‘have repeatedly emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement objectives presents a high obstacle for those urging (its) application’ .. We have rejected ‘[i]ndiscriminate application’ of the rule … and have held it to be applicable only ‘where its remedial objectives are thought most efficaciously served’ … that is, ‘where its deterrence benefits outweighs its substantial social costs’”.
In the influential comment in the Harvard Law Review, the editors of that review noted:
“The majority’s reasoning in Hudson represents a significant step toward eliminating the exclusionary rule.” (120 Harv. L. Rev. 173 (2006))
73. This prediction has been borne out by subsequent decisions. In Herring v. United States (555) U.S. 135 (2009), the court dealt with an arrest made on the basis of a warrant listed on a neighbouring county’s database of warrants. It transpired that the warrant had been recalled months earlier, but the information had been not entered until after the date of the arrest. However on a search consequent to the arrest, the police found a gun and drugs. It was argued that this evidence ought to be suppressed because the arrest ought not to have been effected. Roberts C.J. observed:
“Our case establishes that … suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.”
The court identified the matter of principle as follows:
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can deter and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.”
This is a useful analysis of the rationale of the rule and the limits that suggests. Significantly in the present context, it would mean exclusion for breaches which were reckless, grossly negligent and possibly systemically negligent, even if not deliberate and conscious.
74. In 2011 the Court decided Davis v. United States 564 U.S. – (2011). While conducting a routine vehicle stop police arrested Davis, a passenger, for giving a false name. Having handcuffed him and secured the scene, the police searched the vehicle and found a revolver. The search was held to be unconstitutional but was in accordance with the law of the relevant circuit, at the time the search was carried out. A majority of the Court held that the evidence was admissible. Justice Alito said that the exclusionary rule:
“…[A]lmost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. … Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort’. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.”
I appreciate that there are dissenting arguments and other views expressed. It is not however necessary to express my views on the strengths or merits of the many different theories advanced. It is not necessary to accept all of the subsequent jurisprudence of the US Supreme Court anymore than it was necessary to accept Mapp. But the inescapable fact is that the US, which at one stage had the most far-reaching exclusionary rule, has long since abandoned an absolute or near absolute exclusionary rule.
United Kingdom
75. The law of evidence and criminal procedure was largely codified in the Police and Criminal Evidence Act 1984. Section 78(1) preserves the common law power to exclude evidence where its prejudicial value outweighs its probative value. Section 78(2) provides that a trial judge should have discretion to exclude evidence obtained from a search if its admission would render the proceedings unfair.
76. It is particularly noteworthy that this balancing test has not been affected by the entering into force of the European Convention on Human Rights Act. In Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91, the judgment of Lord Cooke of Thorndon contains a useful analysis of the law of other common law countries, which he considered was broadly similar to the law under the European Convention:
“It may be worth adding that just as in the European Convention law, as Lord Steyn has pointed out, there is no principle that unlawfully obtained evidence is not admissible, so there is no such general principle in Commonwealth countries. Approaches differ somewhat among the jurisdictions. Thus in Canada evidence obtained in breach of the Charter will be excluded if its admission is likely to bring the administration of justice into disrepute (R v Collins [1987] 1 SCR 265); in Australia the leading cases recognise a judicial discretion in which the competing demands of the public interest in the prevention and punishment of crime, on the one hand, and fairness to the accused, on the other, have to be weighed (Bunning v Cross (1978) 141 CLR 54; Ridgeway v The Queen (1995) 184 CLR 19); and in New Zealand, while it has long been held that the judicial discretion to exclude unfairly obtained evidence is wider than that recognised in England at common law in R v Sang (1980) AC 402 and Kuruma v The Queen [1995] AC 197, a line of cases has treated evidence obtained in breach of the semi-constitutional provisions of the Bill of Rights as prima facie inadmissible but subject to exceptions created by overriding demands of justice… .” (p. 120)
It should be noted that this passage states the law as of 1999, and in two of the countries surveyed, Canada and New Zealand, there has been a significant development of the law, and in each case in the direction of the greater admission of evidence.
vCanada
77. The development of the jurisprudence of fundamental rights in Canada since the adoption in 1982 of the Charter of Fundamental Rights (“the Charter”) has been remarkable. Canadian jurisprudence represents an intersection between common law and constitutional rights which makes it a useful point of reference for Irish courts. Unusually, the Charter specifically addresses the consequence of the obtaining of evidence in breach of a Charter right. Section 24(2) of the Charter requires the court to exclude from a criminal trial any evidence obtained in a manner that infringed or denied a Charter right if, in all the circumstances, admission of the evidence could bring the administration of justice into disrepute. It is pointed out by the respondent that in so providing, the Charter excludes the possibility of an automatic absolute exclusionary rule such as that which briefly held sway when Mapp represented US law. However, this distinction, while valid, is not a convincing reason to disregard the Canadian jurisprudence. The definition of circumstances bringing the law into disrepute is a matter for the court, and accordingly, leaves a broad area for decision. It would in theory have been possible to argue that a near absolute exclusionary rule (subject to exceptions) was required to prevent the administration of justice being brought into disrepute. In any event, the discussion of the question of what constitutes the bringing of justice into disrepute is instructive, since the values considered are similar to those which are discussed in all jurisdictions including Ireland.
78. The Canadian courts have adopted two broad tests as justifying exclusion, firstly, where the exclusion is required because it would otherwise effect the fairness of the trial, and second, where there has been a “serious violation” of the Charter rights. In the first case, evidence that could not have been collected but for the unconstitutional participation of the accused is regarded as affecting the fairness in the trial and would normally be excluded. In the second case, the gravity of the Charter violation may lead to exclusion, irrespective of the impact on the fairness of the trial. In such a case it becomes necessary to consider, in terms reminiscent of O’Brien, whether the breach of the Charter was deliberate or inadvertent. Where a violation of the Charter occurs in good faith, exclusion of evidence is not required. The Canadian Supreme Court has defined good faith widely to include reliance upon legislation, warrants, policy directives, prior cases, legal advice or accepted practice, which were later found to be unconstitutional. In R v. Collins [1987] 1 S.C.R. 265 (“Collins”), which was referred to by Lord Cooke in the UK case of the Attorney General’s Reference (No 3 of 1999), the Supreme Court adopted a rule of presumptive exclusion. Lamer J. noted a number of factors which had been enunciated in the previous cases in the exercise of judicial discretion under s. 24(2):
“what kind of evidence was obtained?
what Charter right was infringed?
was the Charter violation serious or was it of a merely technical nature?
was deliberate, wilful or flagrant, or was it inadvertent or committed in good faith?
did it occur in circumstances of urgency or necessity?
were there other investigatory techniques available?
would the evidence have been obtained in any event?
is the offence serious?
is the evidence essential to substantiate the charge?
are other remedies available?” (para. 35)
79. Once again the similarity of these factors to those canvassed in other jurisdictions including Ireland, is instructive. Lamer J. indicated that this was not an exhaustive list and gave his own view that the final factor – the availability of other remedies – was not particularly relevant as it could never save the administration of justice from disrepute. While these factors are of obvious relevance in the current context, the Collins approach focussed on whether evidence could be said to be “conscripted from the accused and also sought to distinguish between real evidence and other evidence”. The rigidity of the test was criticised, and the Court returned to the issue in R v. Stillman [1997] 1 S.C.R. 607 (“Stillman”). That case, as many of the cases in this area, concerned the admission in evidence of swabs and other real evidence taken from an accused in breach of his rights. In this case, the appellant was accused of the murder and rape of a teenage girl. At the time of his arrest he was 17 years old. At the police station the appellant’s lawyers informed the police by letter that he did not consent to providing bodily samples or giving any statements. Notwithstanding this, the police officers took scalp hair samples from him and he was required to pull out some of his own pubic hair. Teeth impressions were also taken and discarded tissue used by the appellant was seized from the waste basket. The trial judge found that the evidence was taken in violation of the appellant’s Charter rights. However he held the evidence to be admissible. The Court of Appeal upheld the accused’s conviction. The Supreme Court of Canada held however that the hair samples, buccal swaps and dental impressions should have been excluded. A new trial was ordered. However, the Court held that the evidence obtained from the discarded tissue was admissible. One of the significant features for the Court was the fact that the evidence obtained could have been obtained properly, and was not in any danger of disappearing.
80. The law emerging from Stillman and Collins was criticised as creating an exclusionary rule which was a narrow bright line rule and did not permit effective consideration to be given to other relevant factors. In 2009 the Canadian Supreme Court decided R v. Grant [2009] 2 S.C.R. 353 (“Grant”). This set a new analytical framework for considering whether evidence should be excluded:
“When faced with an application for exclusion under s.24(2), a court must assess and balance the effect of admitting the evidence and society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing State conduct, (2) the impact of the breach on the Charter-protected interest of the accused, and (3) society’s interest in adjudication of the case on its merits. At the first stage, the court considers the nature of the police conduct that infringed the Charter and led to the discovery of the evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law. The second stage of the inquiry calls for an evaluation of the extent to which the breach actually undermined the interests protected by the infringed right. The more serious the incursion on these interests the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At the third stage, a court asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion. Factors such as the reliability of evidence and its relevance to the Crown’s case should be considered at this stage. The weighing process and the balancing of these concerns is a matter for the trial judge in each case.” (pp.357 – 358)
81. In that case, Grant, the police had noticed the accused acting suspiciously and approached him. One of them obstructed him from walking forward and a conversation then took place during which he told the police that he had a “small bit of weed” and a firearm. He was then arrested and the gun and drugs were seized. The Court of Appeal held that he had been wrongfully detained in contravention of the Charter at the time in which he made the incriminating statements and was arrested. The Supreme Court held that the evidence although obtained in breach of a Charter right, was admissible. The infringement was not serious and the evidence cogent and important.
New Zealand
82. Perhaps the most interesting analysis from an Irish perspective, is that undertaken in New Zealand after the enactment of the New Zealand Bill of Rights Act of 1990. Initially, the courts in New Zealand had adopted the approach that evidence obtained as a result of breach of the rights guaranteed by the Bill of Rights was presumptively excluded unless the prosecution satisfied the courts that there was good reason for admitting the evidence. The prima facie rule was criticised as becoming unduly rigid and in R v. Shaheed [2002] 2 L.R.C. 634 (“Shaheed”) the New Zealand Court of Appeal conducted a review of the approach in the light of experience since the enactment of the Bill of Rights. The prima facie exclusion was replaced with a balancing test.
83. Shaheed was, like Collins, a case involving DNA evidence. However, whereas Collins involved the taking of samples from the suspect after the crime, Shaheed involved the failure to dispose of a sample taken earlier from which a critical DNA match was made.
84. The case involved the abduction and rape of a 14 year old girl. While detained for a separate offence a year earlier, the defendant was asked for a blood sample from which a DNA profile could be extracted and retained. It was this sample which was matched to the DNA taken from the victim. That victim later identified the accused from a photo montage. However, it was conceded that the original DNA sample was not taken with the full consent of the accused, was therefore obtained unlawfully, and accordingly in breach of the rights guaranteed under the Bill of Rights. The matter however did not end there. An application was then made to the High Court to obtain a sample by court order, it being submitted that there was “good cause to suspect ” that the accused committed the crime. However the Crown did not in this application rely on either the earlier DNA sample or the identification. The application was granted and an issue arose then as to the admissibility of that evidence at the trial.
85. By a majority of six to one, the Court of Appeal of New Zealand replaced the prima facie exclusionary rule with a balancing test consistent with that applied by the Privy Council in the Trinidad and Tobago case of Mohammed v. The State [1999] 2 AC 111. There the evidence concerned a confession obtained in breach of a defendant’s constitutional right to be informed of a right to communicate with a legal advisor under the Constitution of Trinidad and Tobago. Lord Steyn held that a balancing test must be applied:
“In such a case not every breach will result in a confession being excluded. But their Lordships make clear that the fact that there has been a breach of constitutional right is a cogent factor mitigating in favour of the exclusion of the confession. In this way the constitutional character of the infringed right is respected and accorded a high value. Nevertheless, the judge must perform a balancing exercise in the context of all the circumstances of the case. Except for one point their Lordships do not propose to speculate on the varying circumstances which may come before the courts. The qualification is that it would generally not be right to admit a confession where the police have deliberately frustrated a suspect’s constitutional rights.” (p. 124)
This echoes the approach taken in O’Brien in considering that deliberate breach would normally justify exclusion.
86. The Court of Appeal of New Zealand in Shaheed recognised that there were arguments favouring a prima facie rule of exclusion. Principally these were that they recognised the importance of a guaranteed right, exclusion may be the only effective means of vindicating a breach, such a rule would diminish any appearance that the courts are deciding cases on the basis of ends rather than means, and it has the benefit of making clear to the police or investigating authorities that there is no utility in obtaining evidence via breach of rights. The Court of Appeal observed that there was much force in these arguments but there were other considerations:
“But a balancing test in which, as a starting point, appropriate and significant weight is given to the fact that there has been a breach of a quasi constitutional right can accommodate and meet them. Importantly, a prima facie rule does not have the appearance of adequately addressing the interest of the community that those who are guilty of serious crimes should not go unpunished. That societal interest, in which any victim’s interest is subsumed, rather than being treated as a separate interest, will not normally outweigh an egregious breach of rights – particularly one which is deliberate or reckless on the part of law enforcement officers. But where the disputed evidence is strongly probative of guilt of a serious crime, that factor too must be given due weight. A system of failed justice will not command the respect of the community if each and every substantial breach of the accused’s rights leads almost inevitably to the exclusion of crucial evidence which is reliable and probative of a serious crime. The vindication will properly be seen as unbalanced and disproportionate to the circumstances of the breach.” (p. 683)
87. This is reminiscent of the observations Lavery J. made almost half a century earlier in the context of O’Brien. Blanchard J. observed that where a breach had been committed in deliberate or in reckless disregard of the rights of the accused, exclusion would often be the only appropriate answer. However, in considering what was a deliberate breach of a constitutional right, Blanchard J. expressly considered the decision of this Court in Kenny and refused to follow it:
“We would not, however, subscribe to the Irish view of what constitutes deliberate breach, but would confine it to acts or omissions which are to the knowledge of the officers concerned a breach of rights. An action not known to be a breach of rights does not merit the same degree of condemnation as one which is known to be so, particularly if the police error arose from a genuine misunderstanding of a difficult legal complication.” (p. 684)
This is an important point. It is a valid observation, and on one view, criticism of the rule in Kenny, that it treats deliberate or reckless breaches of rights in exactly the same way as an error arising from a genuine misunderstanding of a legal complication or as in this case (and in Kenny) an error in anticipating a decision not yet made.
88. The Court of Appeal of New Zealand took a different view from that of the Supreme Court of Canada in relation to the importance of real evidence. The New Zealand court was prepared to accord greater weight to the factor that such real evidence obtained may be of probative value:
“…where real evidence, like drugs or a weapon, have been found even as a result of a confession, the probative value of that discovery may be a weighty factor. The Supreme Court of Canada’s view of trial unfairness as encompassing even the use of real evidence of undoubted reliability should not be adopted in this country. A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence might lead to an unsafe verdict.” (p. 685)
89. The decision in Shaheed was adopted in the New Zealand Evidence Act of 2006. Section 30 of that Act required that a judge determine whether on the balance of probabilities the evidence had been improperly obtained, and if so whether the exclusion of evidence was proportionate to the impropriety. In considering that matter, the Court may among other matters, have regard to the following:
“(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others;
(h) Whether there was any urgency in obtaining the improperly obtained evidence.” (s. 30(3))
South Africa
90. Since this case was argued I have had occasion to consider the decision of the constitutional court of South Africa in Estate Agency Affairs Board v. Auction Alliance (Pty) Ltd & Ors (2014) Z.A.C.C. 3 (“Estate Agency Affairs Board”), which should be included in this survey if only for the purpose of completeness. It is a case which has some obvious resonances for this case. Of course, case law from any jurisdiction must be put in its proper context, and approached with a certain amount of caution. Further, the South African Constitution, and its role, is in some respects quite distinct, and the role of the constitutional court avowedly different to that of courts in other countries. In this case it is necessary to know that s. 172 of the South African Constitution permits the Court to make a variety of orders when a declaration of unconstitutionality is made. It may suspend the effect of the declaration and may limit its retrospective effect. It may also make such orders as it considers appropriate.
91. In the Estate Agency Affairs Board case, the Board was a regulatory authority given statutory power to regulate the business of estate agencies. This was considered an important public objective because of the amount of money found to flow through such businesses. Section 32(A) of the Estate Agency Affairs Board Act of 1976 permitted the agency to conduct investigations and for that purpose, at reasonable times, to enter without warrant, any premises to search and retain documentation related to the investigation.
92. The South African High Court held that such power was over broad and therefore unconstitutional. That finding was not challenged in the constitutional court and the principal focus of the decision was the consequential orders which were to be made. The Constitutional Court made an order that the declaration of invalidity should be prospective only, and furthermore should be suspended under s.172 for a period of 24 months to allow the legislature to amend the Act and to make it consistent with the constitutional principles and in particular by requiring the application to an independent authority for the grant of a warrant. The court also exercised its powers to read down certain statutory provisions to permit the issuance of a warrant in certain circumstances. The Court however, rejected an argument made on behalf of the Estate Agency Affairs Board that it could itself issue a warrant in the exercise of its full jurisdiction and thus validate the search in question.
93. The important question remained however what should become of the evidence gathered under the unconstitutional search conducted pursuant to an invalid and unconstitutional warrant. The actual evidence itself had been retained and held pending the determination of the Court. It was argued on behalf of the respondent to the appeal that the evidence should now be returned to the defendant who could, if he wished, destroy it. The Court rejected that argument holding that the Board should be entitled to make an application for a search warrant and if granted would then be entitled to use the evidence. The relevant portion of the reasoning of the Court is set out at paragraphs 68 and 69 of the judgment:
“… the board should be enabled to apply for the warrant it seeks under the provisions of the statutes as they appear after the reading in ordered below. For its part, Auction Alliance resisted affording the board this opportunity. It strongly urged that this would be unfair. It pointed out that it had resisted the board’s exercise of statutory powers, and its challenge had shown those powers to be unconstitutional and invalid. There must, it said, be some consequence. And the consequence is that the evidence to which the board seeks to gain access should be lost to it. That, counsel for Auction Alliance urged, was the price we pay for living in a constitutional democracy.
But this is surely wrong. Constitutional litigation is not a game of win-or-lose in which winners must be identified for reward, and losers for punishment and rebuke. It is a process in which litigants and the courts assert the growing power of the constitution by establishing its meaning through contested cases. In practical terms, it was unrealistic to expect of the board that it should understand perfectly in advance that the powers it sought to exercise against Auction Alliance were or would be declared unconstitutional. It is not liable to a penalty because it tried to use statutory provisions this litigation has now determined are constitutionally invalid. (Compare Illinois v Krull (1987) 480 US 340 at 349 – 350, where it was deemed unnecessary to exclude evidence obtained under a statute authorising warrantless administrative searches where the search was performed in objectively reasonable reliance on the statute and the statute was only later declared unconstitutional.)”
Academic Consideration
94. Until recently, notwithstanding the near absolute nature of the rule, and the considerable controversy in other jurisdictions the exclusionary rule did not receive much academic scrutiny in Ireland. That however has changed somewhat in recent times. The decision in Kenny was subjected to penetrating criticism in Charleton, McDermott & Bolger, Criminal Law, (Dublin; Butterworths; 1999), pp. 134-138, prefiguring the approach of Charleton J. in The Director of Public Prosecutions (Gda Walsh) v. Cash [2008] I.L.R.M. 443). The matter is also addressed in two places in McGrath, Evidence, (Dublin; Thomson Round Hall; 2005; 1st ed.). In the foreword, Keane C. J. (as he then was) said that this was an area of law in need of “clarification or even radical reform”. He observed that:
“One can resist the proposition that in a case of what the law has sometimes called “real evidence”, such as illegal drugs found in a house, courts should not be obliged to decide the case without regard to the existence of such evidence, however it has been obtained. But there is surely room, in the case of trivial law and intended infringements of a person’s constitutional rights, for a process of balancing the need to uphold the rights of particular individuals the interest of the public in the prosecution of serious crime.” (p. xviii)
The same work contains a very detailed analysis of the decisions in O’Brien and Kenny. At page 338 the author comments on Kenny as follows in a passage which it is worth quoting in full:
“A number of criticisms can be made of the decision of the majority in Kenny. The first and most obvious is the judgment … is based on the false premise that the court was required to make a choice between two possible alternatives, the “deterrent principle” and the “principle of absolute protection”. Central to the judgment … was the unstated proposition that, once the theory of vindication is accepted as the rationale for the exclusionary rule, it necessarily follows that all unconstitutional evidence must be excluded i.e. an “absolute rule of exclusion” must be adopted”.
However, this is not the case. In the first place, it is important to emphasise that the exclusionary rule is a judicially created remedy. It is open to the courts to decide the parameters of the rule and to hold that the compensatory effect of the rule should only be available where the person who has breached the constitutional rights of the accused has a particular intention or state of knowledge. Secondly, insofar as the vindication principle is founded on the provision of the Constitution and in particular Article 40.3, it is evident that the obligations imposed on the State by Article 40.3 are qualified by considerations of practicality and the State guarantees to defend and vindicate the personal rights of the citizen “as far as practicable” and to protect those personal rights “as best it may” from unjust attack. These limitations were adverted to in Moynihan v. Greensmyth [1977] I.R. 55 where O’Higgins C.J. stated:
“The guarantee of protection given by Article 40.3.2 is qualified by the words “as best it may”. This implies circumstances in which the State may have to balance its protection of the rights as against other obligations arising from regard for the common good.”
Arguably the impairment of the truth finding function of the courts entrusted, under the Constitution, with the task of administering justice, places a limit on the practicality of vindicating the constitutional rights of the citizen. The courts could therefore, consistent with the text and underlying policy of Article 40.3, decide that the judicially created remedy of the exclusionary rule should be tempered in its application by regard to the constitutional rights of others such as the rights to life, bodily integrity and property, of the victims of the crime, or more generally the interests of the community in the prosecution of offenders. Thirdly, the exclusionary rule espoused in Kenny does not, in fact, provide an “absolute rule of exclusion” because [the court] endorsed the holding in O’Brien that that exclusionary rule would not apply if there was an extraordinary excluding circumstances. These exceptions, which as enumerated … in O’Brien, include the imminent destruction of evidence and the need to rescue a victim in peril, are clearly predicated on the proposition that there are circumstances which the vindication of the constitutional right of the accused is not required because of competing constitutional rights of the public interest in the prosecution of offenders …” Another criticism of the decision in Kenny is that the Court, having effectively reclassed the O’Brien exclusionary rule, failed to dispense with the requirement that a breach of constitutional rights be “deliberate and conscious”. Although the etymology of this formulation is evident, its retention is confusing and furthermore, its reinterpretation as meaning that the act constituting the breach was intentional is illogical. If the court … is adopting an “absolute rule of exclusion”, then it would seem to be irrelevant whether the act that breached the constitutional right of the accused was “deliberate and conscious” because the application of the exclusionary rule would be triggered by the mere fact that the constitutional right had been breached. Thus, the retention of the requirement that the breach be “deliberate and conscious” does not make any sense and the only value in its retention would be its function as a quasi minimis qualification. Yet it performs this function only inadequately, and it would be much better to actually articulate a de minimis threshold.”
This passage is repeated and expanded on at paragraphs 749-774 of the 2nd edition (2014) of that work. The law, and recent developments are also helpfully discussed at pages 375-406 of Evidence in Criminal Trials, Heffernan and Ní Raifeartaigh, Bloomsbury, Dublin, 2014, which help survey the law and discusses the possibility of a tightly drawn de minimis exception to the exclusionary rule. These books were published since argument was completed in this case, and I mention them for the sake of completeness.
Conclusion
95. From this survey of the law of comparable jurisdictions and commentary in relation to Kenny it is possible to draw certain conclusions. First, it seems clear that Kenny represents a near absolute exclusion which is the most extreme position adopted in the common law world. Second, it is apparent that on analysis, the exceptions allowed for in Kenny have little or no scope for practical application particularly in the case of warrants. Viewed in that way, Kenny is perhaps worse than an absolute rule: it presents itself as superficially balanced while in practice always resulting in the exclusion of evidence. It also suffers from the defect, at least in my view, that it effects a very dramatic recalibration of the law, while purporting to maintain superficial consistency with the decision in O’Brien and adopting its language. Whatever justification there is for the result in Kenny it is unlikely that an acceptable test can be achieved by maintaining the superficial language and structure of O’Brien. Furthermore, whether viewed as a near absolute rule, or as a rule subject to limited exceptions, the reasoning in Kenny is simply not sufficient to justify either conclusion.
96. On the other hand, I do not consider that the choice should be between Kenny (or some franker version of an absolute rule) and a return to O’Brien. It is I think, apparent that a rule which only excluded evidence obtained in deliberate breach of the constitutional rights is inadequate, and indeed it is this inadequacy which led in part to the result in Kenny. Any rule of exclusion should also exclude evidence obtained in reckless or grossly negligent disregard of the Constitution. Furthermore, while the foreign authorities and commentaries show an impressive consistency in rejecting any approach akin to Kenny, and suggesting that there should instead be a balancing approach, there is less consistency as to how that balance should be applied either in theory or in respective individual cases.
97. It is necessary therefore to confront, at the level of principle, the question of whether an absolute rule is required by the Constitution, in particular Article 40.3.2. It is relevant that there does not appear to be any authority in Irish law, and no contemporary law of any common law country, for such a rule. It is of course the case that the Constitution does not require the exclusion of evidence in express terms, and indeed says nothing about the admission of evidence. As is often the case, it is important therefore to identify the correct question to be posed. If this issue is addressed solely in terms of the vindications of a right breached, then it is a short step to the exclusion of evidence. But in my view that is the wrong question. A court, whether criminal or civil, addressing the admissibility of evidence is not engaged in the question of remedying a breach of the right, as a court asked to grant an injunction to restrain a trespass might be. A criminal or civil trial is the administration of justice. A central function of the administration of justice is fact finding, and truth finding. Anything that detracts from the courts’ capacity to find out what occurred in fact, detracts from the truth finding function of the administration of the justice. As many courts have recognised, where cogent and compelling evidence of guilt is found but not admitted on the basis of trivial technical breach, the administration of justice far from being served, may be brought into disrepute. The question is at what point does the trial fall short of a trial in due course of law because of the manner in which evidence has been obtained? When does the admission of that evidence itself bring the administration of justice in to disrepute? This analysis leads inevitably to a more nuanced position which would admit evidence by reason of a technical and excusable breach, but would exclude it where it was obtained as a result of a deliberate breach of the Constitution. The challenge is to identify some dividing line between these two extremes and which gives clear guidance to courts faced with more difficult questions. But in my view, there is neither authority nor constitutional justification for an absolute rule or near absolute rule of exclusion.
98. Furthermore, it only makes sense to adopt a bright line rule, where there is no alternative rule which is feasible. A rule of near automatic exclusion extracts a heavy price in the exclusion of evidence obtained as result of inadvertence, good faith or excusable error. If a rule can be devised which admits evidence in such cases while still excluding other evidence obtained as a result of a breach of constitutional rights, then there is no justification for an absolute rule. It may be argued however, that any exception will come to be exploited to allow for the routine admission of evidence particularly in difficult cases. I do not doubt the possibility of judicial error from a misguided approach to the law, an occasional lapse of judgment, or a lack of sufficient robustness, but I do not think that such frailty is limited to trial courts. However, it would be entirely dispiriting, and ultimately futile, to devise rules on the assumption that they would not be conscientiously followed by courts whose judges make the same declaration to uphold the Constitution that this Court does. The remedy for judicial error is the same in this field as elsewhere: a requirement that judges give reasoned rulings on issues, with the possibility of review and appeal. This provides an incentive in advance to rigorously scrutinise the facts and apply the law, and a remedy in the event that it is not done. This is the system which applies in all other fields of the law, criminal and civil, and I see no reason why it should not be adopted here.
99. I am satisfied that the decision in Kenny is wrong in principle and should be overruled. I am conscious that this Court does not take such a course lightly. There is no doubt that this Court has the power to reverse an earlier decision (The Attorney General & Anor v. Ryan’s Car Hire [1965] I.R. 642); that it should not do so in general, simply because it comes to a different conclusion, but only where the previous decision is clearly wrong, and moreover, cannot be said to have become inveterate, or become the basis of a shared understanding of the law, (Mogul of Ireland Ltd v. Tipperary (North Riding) County Council [1976] I.R. 260), This principle does not apply with the same force in constitutional matters( per Keane J Denham J concurring in SPUC v Grogan [1998] 4 IR 343 ) but even there the doctrine of precedent has an important role which makes the court cautious in overruling its prior decisions. I should say that notwithstanding the views expressed by Mr Justice Mc Kechnie in his comprehensive and admirable judgment, which I respect, Kenny would seem a particularly inappropriate decision to benefit from this principle given the fact that it accords no such respect to the decision in O’Brien ( which, on the view I take , it overruled implicitly) , and the decision in Shaw , which on any view it explicitly overruled. However, having considered the matter carefully, I am satisfied that the decision in Kenny is wrong by any standard. I am however satisfied that it would not be appropriate to allow the law merely to revert to that outlined in O’Brien. For reasons I have sought to address at some length there are difficulties with that approach, which the intervening years have illustrated. I agree with the approach suggested in the judgment of Clarke J. Since I agree that it is desirable to have the maximum clarity in this area I do not consider it useful to seek to paraphrase that test or say more than appears to me to be consistent with my analysis of the law in this area.
100. In the judgment which he has delivered, Mr Justice Hardiman holds that the right of prosecution appeal created by s. 23 of the Criminal Procedure Act 2010, does not permit the Court to consider whether or not Kenny was correctly decided. Mr Justice Murray and Mr Justice Mc Kechnie express a similar view. On this interpretation the appeal under s.23 is limited to cases which can be said to be examples of judicial error in the application of the existing law (a wrong application of law) but does not include a decision applying a precedent binding on that judge. Even if it is contended, and is the case, that on analysis, the precedent is wrong, even a wrong interpretation of the constitution (the application of wrong law) I respect the force with which this argument is advanced, and the skill with which the supporting materials are deployed, but I cannot agree that it represents sound law, logic or indeed history.
101. It is in my view misplaced to seek to apply to the State parties in this appeal the stinging criticism applied by Lord Atkin to his colleagues in Liversidge v Anderson [1942] AC 206 (“Liversidge”) not least because the State did not advance any interpretation of s. 23 as part of its appeal since this point was not raised by either party. Counsel for the respondent politely but firmly disavowed any such argument, because he considered (correctly in my view) that it represented an unjustifiably narrow interpretation of the section. In any event, the analogy with Liversidge is misplaced in another respect; the interpretation of s.23 which permits in a prosecution appeal to raise all issues of law which would be open on a defendant’s appeal, is a straight forward and natural interpretation of the section. By contrast, the thrust of the contrary argument is that principles either embodied in the Constitution, or long established in the common law, require a narrower, more limited, and if I may say so, unnatural meaning to be given to the words of the section. I would have welcomed counsel’s researches and argument on this point had it been raised as one of the issues on this appeal. It is central to the adversarial system, which is a core part of the justice administered in these courts that a party should have the ability to address argument on any matter which might be decided adverse to him. I recognise the value which judicial researches may bring to a case , but I respectfully question the volume and range of materials deployed here to advance a proposition, not merely not advanced in argument but expressly disavowed, and which accordingly the opposing party has not had the opportunity of addressing in argument. Even in the absence of such argument however, it appears to me that there are fundamental objections to the interpretation advanced.
102. Looked at first as a matter of principle, it is worth considering this issue from the point of view of a defendant who wished to appeal a conviction itself the consequence of what is contended to be the wrongful admission (or exclusion) of evidence by the trial judge in application of a binding precedent. There are at least three ways in which the ruling of the trial judge could be said by an aggrieved defendant to be ‘erroneous’ or ‘wrong’, and which he or she might seek to ‘appeal’. First, if the trial judge simply misapplied the relevant authority; second, if the trial judge misinterpreted the authority as applying (or not); and finally, if this Court or if the appeal court was persuaded that the relevant authority should be distinguished, departed from or overruled. As any lawyer knows, the line between these categories can be blurred. Sometimes appellate courts adopt novel interpretations of long standing authorities to the surprise of trial courts. Sometimes authorities are distinguished in a way which in practice amounts to a reversal. Arguably something like this occurred when the decision in Kenny purported to apply, but in reality overruled, the decision in O’Brien. Trial judges may legitimately grumble when a decision made in purported loyal application of a binding authority (with which the judge himself or herself might disagree if free to do so) is subsequently overturned because an appeal court, at whatever level in the system, has distinguished or overruled the prior authority. But until now, no one has doubted that an appellant, whether civil or criminal, is fully entitled to appeal a decision on the grounds that an error was made either because of the wrong application of a prior decision, or because of the application of a precedent which it was argued was wrong, and any point in between those two extremes. If it were otherwise, it is arguable for example, that Kenny could not have been decided in the way it was, and that it ought to have been a full answer to the argument in O’Brien, which absorbed the attention of the Supreme Court for so long, that the trial judge had merely applied the existing law. If accordingly, the words “appeal”, “error” and “wrong” can comprehend all such arguments when advanced on behalf of a defendant in a criminal trial (and indeed any party in a civil trial) it is clear, that at least prima facie, they have the same meaning included in a provision permitting for the first time the prosecution to appeal with prejudice from a ruling of a trial judge.
103. It is perhaps possible to take a more concrete example from the facts of this case. It will be recalled that the search here took place before the challenge to the validity of the issuance of the warrant was decided in the High Court but the trial took place after this Court had upheld that challenge and reversed the High Court decision. But if the sequence was slightly different, and both the search and the Circuit Court trial had occurred after the High Court decision, and before the decision of this Court, and it was sought to exclude the evidence obtained on the grounds that the warrant was invalid and the search an unconstitutional violation of a dwelling home, the Circuit Court would, as I understand it, have been bound by the decision of the High Court in Damache v. The Director of Public Prosecutions & Ors [2011] IEHC 197 and would have admitted the evidence. If the accused then appealed, I do not think it could be suggested that he was not entitled to rely on the Supreme Court decision and succeed in his appeal, merely because the trial judge had followed a decision then binding upon her.
104. I can see no reason in logic therefore to give the concept of appeal or error or wrong, anything other than their natural and ordinary meanings, particularly as understood in the context of both criminal and civil procedure. In particular, if such a breadth of appeal is open to the defence, it is difficult to see why the ordinary meaning of the word should not be applied in the context of prosecution appeals, particularly if, as is suggested, this was an innovation introduced as part of what was described as a balancing, or rebalancing, of the criminal process, and allowing retrials in (one further) express departure from an absolute principle against double jeopardy whatever the merits or wisdom of that approach. Indeed given the fact that an erroneous but binding authority can do much more damage to the administration of justice than a single error by a trial judge, I see no reason why the legislature would seek to limit an appeal to the latter, and exclude the former. But if the legislature did see fit to do so, it would surely have said so explicitly, rather than left this conclusion to be deduced from straightforward language of apparently general application. If however in addition to the established rule that no behaviour shall be made criminal after the fact (see Article 15.5 of the Constitution and The Federalist Papers LXXXIV) there is a newly discovered principle that the common law in respect of evidence and every interpretation of statute is to be frozen as of the time of the trial or possibly the alleged offence, no matter at what level in the judicial hierarchy the decision was made, then the law would be atrophied, incapable of the sort of judicial development which has made the trial process fairer, and fully deserving of Jonathan Swift’s criticism that the rule of precedent was an exercise in finding the worst possible decision and repeating it ad infinitum. But since this is a question of interpretation I see no reason to assume the Oireachtas took this view without saying so explicitly, and can find no evidence that this limitation on the scope of appeal was contemplated.
105. Leaving aside the statement of the Minister for Justice which is uninformative, and in any event probably excluded from our consideration by virtue of Crilly v. T. & J. Farrington Ltd & Ors [2001] 3 IR 251, I agree that the official reports published and considered in the lead up to a change of the law, can assist in its interpretation. However, in my view the background extends well beyond the Final Report of the Balance in the Criminal Law Review Group (2007). In fact, the question of prosecution appeals with or without prejudice, have been a source of relatively active debate in Ireland not least because of the controversy that followed from the decision in The People (Director of Public Prosecutions) v. O’Shea [1982] 1 I.R. 384 (“O’Shea”). As I understand it, prosecution appeals (both without prejudice and with prejudice) were considered and recommended by the 22nd Interim Report of the Committee on Court Practice and Procedure, Prosecution Appeals (Dublin; Stationery Office; 1993) and have been debated ever since. Most notable in the present context, is perhaps a very extensive Consultation Paper on Prosecution Appeals in Cases brought on Indictment which was published by the Law Reform Commission in 2002 (LRC CP19-2002), and a Final Report issued in 2006, Prosecution Appeals and Pre-Trial Hearings (LRC 81-2006) (in which, as it happens, I was involved, and which considered but did not recommend with prejudice prosecution appeals), and the Report of the Working Group, The Criminal Jurisdiction of the Courts (Dublin; Stationery Office; 2003). One thing these documents have in common is that to my mind they contain no hint of the distinction now sought to be made between the erroneous application of authority, and the application of erroneous authority. If this distinction was a live and plausible one which ultimately found expression in the 2010 Act, I think it is surprising that it would escape comment, particularly if it flows from long established principles of the common law asserted to have been embedded in the Constitution. The reports also show that the historical position in common law countries was rather more complex than some of the more emphatic judicial statements might suggest. It is in any event of particularly limited value to refer to nineteenth century statements of general principle uttered before appeal even by the defendant was a possibility, and when the outcome of a trial at first instance was binding and conclusive on both sides.
106. Reg. (Giant’s Causeway & c., Tramway Co.) v. Justices of Co. Antrim (1) [1895] 2 I.R. 603 is a dramatic case that makes for absorbing reading, not least because the member of the bench of local magistrates against whom the allegation of interest was made (not without some substance, it might be thought) was none other than Lord Macnaghten, then a member of the judicial committee of the House of Lords and regarded as a master of the common law. But it is I think dangerous, to read the judgments of Sir P. O’Brien C.J. and Johnson J. as authority for a sweeping and general proposition that in all criminal cases where “a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted” (p. 635: Lord Coleridge in The Queen v. Duncan 7 Q.B.D. 198). Holmes J., who concurred in the result disagreed on that very point, and went to some lengths to establish that where an acquittal was made by a court acting in excess of jurisdiction (which of course was the nature of the very complaint made in that case) the High Court had power to quash such an acquittal. In Great Southern & Western Railway Co. v. Gooding [1908] 2 I.R. 429 (“Great Southern & Western Railway Co.”), Palles C.B. expressed his opinion that Holmes J.’s observation on this point was “absolutely correct” and the Supreme Court, in the judgment of O’Dálaigh J. in The State (Attorney General) v. Binchy & Anor [1964] I.R. 395 accepted the judgment of Holmes J. and would have applied it in that case if the verdict had not been simply recorded as “not guilty” simpliciter. It is perhaps for this reason, that the authoritative statement of Palles L.C.B. in R. (Kane) v. Chairman and Justices of County Tyrone (1906) 40 I.L.T.R. 181, is qualified in the way it was:
“The first principle is an elementary one – viz., that as a rule an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court.” (emphases added) (p. 181)
In that case Palles L.C.B. also referred to the number of cases in which, even at that time, there was a statutory right of appeal from acquittals “given in several modern statutes”. As Walsh J. stated in The State (Tynan) v. Keane & Anor [1968] I.R. 348:
“As a general proposition it is not correct to state without qualification that under our law no person can be prosecuted twice for the same offence.” (p. 355)
107. The qualifications envisaged by Walsh J. would relate not only to the prospect of quashing decisions on jurisdictional grounds, but also to statutorily permitted appeals such as that permitted by way of case stated as under the Summary Jurisdiction Act 1857. This is a particularly important example, not only because it is a venerable and well known provision, but it applies in the case of errors of law. In a sense s.23 can be seen therefore as the extension to trials on indictment of a provision long applied to summary trials. A different and more recent example is the provisions of s. 310(1) of the Fisheries (Consolidation) Act 1959 which permit a prosecution appeal from an acquittal in the District Court. This, it should be noted is a full appeal, and not merely one of a point of law. The constitutionality of the section was upheld in Considine v. Shannon Regional Fisheries Board & Ors [1997] 2 I.R. 404 (“Considine”). Quite apart from the decision in Considine, the decision in O’Shea is of course (and whatever arguments might be made about its merits or wisdom none of which were advanced on this appeal), simply determinative ,at least for the time being, of any argument that the Constitution does not permit prosecution appeals, even full appeals in the case of acquittals.
108. The true principle is I think that stated by Palles C.B. in (“Great Southern & Western Railway Co.”), namely that if a statute is to provide for an appeal against an acquittal, it must do so in clear language. But I do not understand that principle to be of much assistance in this case since it is accepted that the entire object of the provision in the 2010 Act is to permit prosecution appeals. Once that bridge is crossed, it is I think difficult to find any basis for interpreting the Act as limiting the nature of the appeal that could be brought. To take this case as an example, I cannot see any basis in the legislation for considering that the Oireachtas wished to permit an appeal where this Court considered that a trial judge had misinterpreted or misapplied Kenny, but not if the evidence was excluded because the trial judge followed Kenny but Kenny itself was wrong. If that was the case, it would also lead to the peculiar result where this Court’s jurisdiction would depend on its own decision on the substance of the appeal as to whether prior authority was wrong, or merely misunderstood or misapplied.
109. The argument that s.23 appeals are limited to erroneous applications or interpretations of existing law depends not upon any grammatical reading of the section, but rather on imposing the interpretation on words of apparently general application. It means interpreting s.23 as permitting with prejudice appeals in such cases and permitting without prejudice appeals only under the Criminal Procedure Act 1967 (“the 1967 Act”) as amended in 2006 in cases where it is sought to reverse, rather than simply reinterpret, existing precedent. Such a clear demarcation is not apparent in either section. Indeed the 1967 Act procedure applies in any case and thus can be adopted in cases of mistake, misapplication and misinterpretation as well as where it is sought to directly overrule a prior precedent. It is clear therefore that there is very substantial overlap between the provisions and the suggested clear demarcation was neither intended nor effected. Nor is there any plausible basis on the language of the respective sections for suggesting that the overlap is only partial. Instead the most natural interpretation is that the 2010 Act took the significant step of allowing with prejudice appeals. Indeed as set out above that is very much in accordance with the terms in which the matter was discussed in the reports mentioned above.
110. There are at least two textual arguments which also support this interpretation. First, s.23 permits but does not compel a retrial if the appeal is allowed. The Court is given a discretion under s.23(11) and given guidance under s.23(12). Where the Court decides the point of law in favour of the appellant, but does not quash the conviction and order a retrial, the position becomes functionally indistinguishable from a without prejudice appeal under the 1967 Act. This illustrates perhaps the fact that they were understood to have the same scope of application, and that the same issues could be raised in each. Second, s.23(1) permits an appeal on “a question of law” words which are in my view not just capable of encompassing this type of case, but are quite apt to do so. Section 23(3) contemplates two situations in which such a question may arise: first where a ruling is made erroneously excluding compelling evidence (subss.(3)(a)) which has been the section focussed on in this case and upon which the argument for a narrower scope of appeal is based, and where a direction is given which is “wrong in law”.(subss.(3)(b)). I do not think it can be plausibly argued that the argument that Kenny is wrong is not covered by this latter phrase. But if so there can be no basis for giving a narrower reading to the scope of subss.(3)(a) than subss.(3)(b).
111. I understand, I hope, the objections to retrying a person after he has been acquitted on the basis of what was understood to be the existing law, and after a ruling that “compelling evidence” had been wrongly excluded. In retrospect I think this case might for example have been more suited to the 1967 Act procedure, since the concern is more to establish the existing law prospectively than to seek to reverse the outcome of this particular case, especially when others have benefited from the Damache case and the application of Kenny. I should say that unless persuaded to the contrary I would not consider that this was a proper case for a retrial. Quite apart from any question of the constitutional validity of the retrial provision which has not yet been tested (and somewhat ironically in the present context that it would involve a reconsideration and perhaps reversal of People v O’Shea), I do not see why it would be appropriate or indeed fair that this defendant alone of al the defendants at trial benefited from Kenny and that smaller but significant group who benefited from the intersection of Kenny and Damache, should be the subject of a retrial.
112. I do not understand however how concerns with retrials generally, and the principle of double jeopardy can effect the issue of interpretation which is before us. There is no doubt that the section permits some prosecution appeals. Under the traditional doctrine of double jeopardy, an accused acquitted by an erroneous application of the law was just as entitled to the benefit of that acquittal, as one acquitted on the merits, or acquitted because of binding precedent. I can see no basis therefore, for concluding that the principle of double jeopardy leads to the distinction which is sought to be made on the interpretation of s.23. Nor with respect can I accept that these matters raise any matters of legal certainty. The parties in Kenny, and in Damache, and indeed in any case which makes new law, changes the law and/or overrules precedent, can to some extent say that the law has changed from what was understood before the first appearance in court, but any change is within a limited area and subject to clearly established and articulated rules. I appreciate that acquittals are different from convictions in a number of respects, but not surely as regards legal certainty. In any event it is not necessary to consider this further since no such issue was raised in this case, and I do not understand in any event how it can affect the question of the interpretation of the section.
113. I agree that there are, or should be, prudential, and perhaps principled, limits to the range of decisions which a court can take in the development of the common law, and that there are matters which must be left to legislation. However, prior to this case, I would have considered that a decision on the admissibility of evidence, particularly when based on the interpretation of the requirements of the Constitution, was quintessentially a matter for decision by a court. It seems to me indeed, that this is a matter peculiarly inappropriate to be resolved by legislation. The Oireachtas is after all obliged by Article 15.4 not to enact any law in any respect repugnant to this Constitution or any provision thereof. So long as Kenny remains a binding statement of the law, then any purported legislative reversal of the decision would be ex facie unconstitutional, at least until such time as the decision in Kenny was reversed or overruled by this Court. I do not think the issue in this case should be avoided and the Oireachtas encouraged instead to legislate in the teeth of a decision of this Court merely for the purposes of inviting this Court to decide whether or not the decision in Kenny is correct and if so in what respect it could or should be modified, which is after all the issue now before us.
114. I agree that the observations of Oliver Wendell Holmes as to the interstitial nature of judicial law making in the common law. The concepts of molar and molecular motions may have been clearer to the reader in 1926, but the sense of the passage is clear. Holmes was however, speaking in the context of the common law and the examples he gave were in the fields of contract and tort. It is inevitable that decisions on constitutional matters may, and will, be significant. See by way of example only, the decision of this Court in McGee v. Attorney General & Anor [1974] IR 284. The potential impact of constitutional decisions should lead to an appropriate caution in decision making, and a willingness to review such decisions if it becomes apparent that they are impractical, misplaced, or simply wrong. I observe therefore, that Holmes J. was a participant in the decision in Weeks which established an exclusionary rule in cases within the federal jurisdiction, and dissented in Olmstead where he considered that evidence obtained by illegal wire tapping ought to have been excluded. If these decisions were permissible, I cannot see how this case breaches any boundary.
115. It is possible also to make a simpler measurement on the Holmesian scale of the movement of the law in this case. Both O’Brien and Kenny made significant changes to the criminal process. While it may have been argued that each case was wrong in some respect, it has not been suggested, at least to my knowledge, that either represented an example of illegitimate judicial law making. Since the impact of the decision in this case is to reverse Kenny but not to restore O’Brien, and rather to seek out a point somewhere between the two (and rather closer to Kenny than to O’Brien), it must follow that whatever ‘motion’ has been made by the majority decision in this case, it is necessarily less than that which was made in Kenny. Indeed, if the change to the law made by the decision in this case somehow exceeds the permissible extent of change to be effected by judicial decision, then that in and of itself would be a reason to reverse Kenny. As I conceive, it is part of the proper function of this Court to adjust its prior decisions in the light of developments in the law, experience, and analysis. I am confident that every argument that can be marshalled in favour of the decision in Kenny has been advanced in this case. Having carefully considered the issue, I conclude, with great respect to my colleagues present and past who take or took a different view, that I do not believe that the decision in Kenny can withstand scrutiny. It is, in my view, plainly wrong. It is long past time that it was addressed and, so far as it is possible for us to do so, corrected.
DPP V JC
The Director of Public Prosecutions
Prosecutor/Appellant
and
J.C.
Accused/Respondent
Judgment of Mr. Justice Clarke delivered the 15th April, 2015.
1. Introduction
1.1 This case involves a request to reconsider the so called exclusionary rule. The case also involves the scope of appeals which can be brought to this Court by the prosecutor/appellant (“the D.P.P.”) under section 23 of the Criminal Procedure Act, 2010 (“section 23”).
1.2 Insofar as they are relevant, the facts of this case have been fully set out in other judgments of the Court, and it is unnecessary to repeat them in detail here. In summary, while the accused/respondent (“Mr. C.”) was at trial before the Circuit Court (Her Honour Judge Ring), evidence was excluded on the basis of an application of the exclusionary rule as identified and defined by this Court in D.P.P. v. Kenny [1990] 2 I.R. 110 (“Kenny”). There was no dispute on this appeal that, applying the exclusionary rule as so defined, Her Honour Judge Ring was obliged to exclude the evidence concerned. With the relevant evidence excluded, the case against Mr. C., in substance, collapsed.
1.3 The D.P.P. has brought an appeal to this Court under section 23 seeking to review the decision to exclude the evidence in question. It would be fair to say that in so doing, the D.P.P. has invited this Court to take the view that Kenny was wrongly decided and that a different, and it might be said more nuanced, exclusionary rule should be applied. Two separate but connected issues arose on this appeal concerning the question of whether it was open to the D.P.P. to bring an appeal under section 23 in the circumstances of this case. The first stems from the fact that it is accepted that the trial judge had no option but to decide as she did given that she was bound by the decision of this Court in Kenny. That issue turns on the proper interpretation of section 23 and, in particular, whether it can be said that the trial judge had “erroneously excluded evidence” in circumstances where it is accepted that the trial judge was bound to follow Kenny and properly applied Kenny to the facts.
1.4 So far as the second issue is concerned, it is first necessary to record the circumstances which led to that issue being considered by the Court. After the appeal had concluded and in the course of its deliberation it became clear to the Court that there was, potentially, a further issue concerning the availability of an appeal under section 23 which might, potentially, have application to this case. In those circumstances, the Court invited further written submissions and arranged for a further oral hearing to deal with that second issue. The question derives from the requirement, to be found in section 23 itself, that the evidence said to have been erroneously excluded must be “compelling” evidence. That term is defined in the section, and an issue arises as to whether, in the circumstances of this case, the evidence which was excluded by the trial judge can be said to be “compelling” evidence as so defined. It should also be recorded that, in the context of the further hearing to which I have referred, a motion was brought on behalf of the D.P.P. seeking to introduce further evidence on the appeal. That application was, in substance, a fallback position to the primary argument of the D.P.P., which was that there was sufficient material available to the Court, from the record of the proceedings before the Circuit Court, to enable this Court to conclude that the excluded evidence was “compelling evidence” as defined. I will turn shortly to the two questions which arise concerning the availability of an appeal under section 23.
1.5 However, on the assumption that an appeal of the type identified does lie, then the substantive question which arises is, in effect, as to whether Kenny was correctly decided, and if not, as to what the appropriate test should be for the admission or exclusion of evidence obtained in circumstances where the method of taking the evidence concerned involves a breach of constitutional rights. While that question arises at the level of broad principle it is, of course, important to note that it arises on this appeal in the context of the specific issues and facts which are relevant to this case.
1.6 Finally, for completeness, it should be noted that one of the issues which would arise, in the event that an appeal lies and that the D.P.P. successfully persuades the Court that evidence was wrongly excluded, is as to whether a retrial should be directed. For reasons which will become apparent, it does not necessarily follow that a retrial should be directed even if it is found that “compelling evidence” was erroneously excluded. It should be noted at this stage that counsel on both sides agreed that a decision on a retrial (if it arises) should be left over until after the substantive issues have been determined. For reasons with which I will deal in the context of the structure of section 23 itself, it is clear that, unless it is considered appropriate to direct a retrial, the D.P.P.’s appeal must be dismissed and the acquittal affirmed. It follows that it is only possible, at this stage, to determine whether, in the event that an appeal lies, the relevant evidence was erroneously excluded. Even if such a conclusion is reached it follows that it will not be possible to determine the result of this appeal until the Court has had an opportunity to decide whether a retrial should be directed.
1.7 However, as it is clear that it would only be appropriate for this Court to embark on a consideration of the exclusionary rule if an appeal lies in the first place, I turn first to that question.
2. Does an Appeal lie under Section 23?
2.1 The backdrop to section 23 has to be the starting point. Historically, save for a brief period, no appeal lay from an acquittal in criminal proceedings. Immediately prior to the enactment of section 23, the only appeal which lay to this Court from an acquittal (whether in respect of the whole or part of an indictment) was a consultative appeal “without prejudice to the verdict or decision in favour of the accused person” which arose under s.34 of the Criminal Procedure Act 1967 (as now substituted by s.21 of the Criminal Justice Act 2006). Section 34 permits the Attorney General in any case, or, if he or she is the prosecuting authority in the trial, the D.P.P., to “refer a question of law arising during the trial to the Supreme Court for determination”.
2.2 In that context, it is necessary to make a brief reference to The People (Director of Public Prosecutions v. O’Shea [1982] I.R. 384. In that case, this Court was divided three to two. However, the majority view was that Article 34.4.3 of Bunreacht na hÉireann, which, as of the time of O’Shea, provided that this Court should “with such exceptions and subject to such regulations as may be prescribed by law” have appellate jurisdiction from all decisions of the High Court, overrode the common law position that there was no appeal from acquittal in criminal proceedings. So far as criminal proceedings in the Central Criminal Court (being the High Court exercising its criminal jurisdiction) were concerned, it was, therefore held that an appeal against acquittal lay. Indeed, one of the arguments put forward was that s.34 of the Criminal Procedure Act 1967, by providing for a without prejudice appeal, had impliedly limited this Court’s appellate jurisdiction. That argument was rejected by the majority.
2.3 It should, of course, also be noted that this Court, in People v. Quilligan (No. 2) [1989] I.R. 46, was divided once again on the question of whether, after a successful appeal, a retrial could be directed. Henchy and Griffin JJ. took the view that the Court could not so direct in the absence of express statutory provision and, indeed, doubted whether such provision could be made in a constitutionally valid form. Walsh and McCarthy JJ., on the other hand, held that the right of appeal carried with it an inherent jurisdiction necessary to give effect to that right of appeal and, thus, to order a retrial. Hederman J. found it unnecessary to decide the issue of principle because he took the view that, on the facts, no retrial should be ordered. Before that issue was finally resolved, the right of appeal with prejudice by the prosecution from a decision of the Central Criminal Court was excluded by statute (see s. 44 of the Courts and Courts Officers Act 1995).
2.4 While the matter is not free from doubt, it follows that there is at least a significant argument that the Constitution, at least in the manner in which it has been interpreted to date, actually permits a with prejudice appeal at least so far as criminal trials conducted in the Central Criminal Court are concerned. As long as such appeals were, however, excluded expressly by statute it was no longer necessary to give any further consideration to any of the issues which might arise in that context.
2.5 However, in 2010, section 23 was enacted, which provides for a form of appeal which can, at least if this Court so directs, be with prejudice to the position of the relevant accused, for it can lead to a retrial carrying with it, obviously, the possibility that the accused might be convicted on that retrial. In material part, section 23 reads as follows:-
“(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
[…]
(3) An appeal under this section shall lie only where—
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
[…]
(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.
(13)(a) The Supreme Court may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.
(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.
(14) In this section “compelling evidence”, in relation to a person, means evidence which—
(a) is reliable,
(b) is of significant probative value, and
(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.”
It will be seen that, in order for an appeal to lie under section 23(3), there must be an error on the part of the trial judge in the sense that evidence must have been erroneously excluded or a direction to the jury must be wrong in law. At the level of first principles it is possible to envisage three circumstances in which the D.P.P. might wish to appeal against an aspect of the decision of a trial judge in a criminal case.
2.6 First, at a simple and straightforward level, it is possible to envisage a case where the D.P.P. wishes to suggest that the trial judge simply made an error in applying uncontroversial and well established legal principles to the circumstances of the case in question. There can be little doubt but that an appeal under section 23 lies in such circumstances. If the D.P.P. were to be proved to be correct then the trial judge would clearly have committed an error either by erroneously excluding evidence or by giving a direction to the jury which was wrong in law.
2.7 Second, there may be a dispute, to a greater or lesser extent, as to the proper interpretation of the law applicable to some material aspect of the case. The D.P.P. may wish to invite this Court to overrule the view which the trial judge took. In cases where there may be a lack of clarity as to the legal position on the issue in question, it is difficult to see how there could be any question but that an appeal under section 23 lies. If a trial judge chooses a particular approach to the legal issue in question, with which this Court ultimately disagrees, then it is again difficult to see how that could be characterised as anything but an erroneous exclusion or a wrong direction (even if, in many cases, it may well be a wholly understandable error in the light of the uncertainty of the law on the topic in question). However, that is not the situation which arises here.
2.8 This case is of a third kind. As noted earlier, the complicating factor, on the facts of this case, is that the law on this issue has appeared to be clear since the decision of this Court in Kenny. It is not, as has been pointed out, suggested by anyone that the trial judge did not correctly apply the exclusionary rule in the manner in which that rule is addressed in Kenny, or did not do so in a proper fashion. The argument, therefore, arises as to whether it can be said that the trial judge, in those circumstances, erroneously excluded the relevant evidence even if this Court were to take the view that Kenny was wrongly decided in a manner material to the issue of the admissibility of the relevant evidence in this case. In one sense, the issue can be put thus. Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case law of a higher court by which that trial judge was bound, even if this Court takes the view that the established case law in question requires to be revisited in a material respect?
2.9 That is, indeed, an important question, for it has the potential to have a significant effect on the scope of appeals which are permitted under section 23. As already noted, there would not seem to be any doubt but that section 23 applies in a case where it is suggested that the trial judge has simply misapplied a clear and established legal principle. Likewise, there can be little doubt but that section 23 can be used to mount an appeal which seeks to clarify an area of law over which there may be legitimate doubt. However, if the suggestion that section 23 can not be used as a means of inviting this Court to reconsider clear previous authority which bound the trial judge in question is correct, then there could be no basis for the D.P.P. seeking to invoke that section in the circumstances of this case. It should be recorded that counsel for Mr. C. did not raise this argument in the written procedure and accepted in oral argument that an appeal did lie. The suggestion to the contrary came from questions put by the Court. Both counsel were, therefore, agreed that it can be said that a trial judge had erroneously excluded evidence even though the trial judge had properly applied case law by which that judge was bound. Nonetheless, it remains for the Court to interpret section 23 in the context of the issues sought to be raised by the D.P.P. on this appeal.
2.10 It is of some importance, in my view, to note that the logic of the argument would appear to apply equally to a case where the D.P.P. sought to argue that this Court should depart from previously established case law of the Court of Criminal Appeal or, indeed, now the Court of Appeal. A trial judge is every bit as bound by the established case law of the Court of Appeal as of this Court. If a trial judge can not be said arguably to have been wrong (i.e. to have erroneously excluded evidence or given a direction which was wrong in law) when following the established case law of this Court, then it would equally follow that a trial judge could not be said arguably to have been wrong where the trial judge followed established case law of the Court of Appeal. If that is so, it would follow that no appeal under section 23 could arise in those circumstances either.
2.11 In passing, it should be noted that, unlike section 23 which specifies the circumstances in which an appeal with prejudice will lie to this Court (in subsection (3)), s. 34 of the Criminal Procedure Act 1967 (in its current form) does not limit or make any reference to the subject matter or the circumstances where a “question of law” can be referred to the Supreme Court without prejudice to the verdict or decision in favour of the accused. In those circumstances it appears that, even if it was not open to the D.P.P. to appeal the acquittal of Mr. C. “with prejudice” on a question of law under section 23, it would be possible for the D.P.P. to refer a question of law to the Supreme Court “without prejudice” to the acquittal, under s. 34 of the Criminal Procedure Act 1967, as substituted.
2.12 However, whatever may be the practical consequences, the scope of appeal which is permitted under section 23 depends on the proper construction of that section. If, under that section as properly interpreted, an appeal in certain circumstances does not lie, then the fact that there may be adverse consequences of so ruling is really neither here nor there. A person cannot be placed in jeopardy of a possible criminal conviction by being subjected to an appeal with the possibility of that appeal being successful and a retrial resulting in conviction unless the law so allows. The issue, therefore, comes down to one of statutory construction.
2.13 The starting point has to be to assume, for the sake of argument, that Kenny was wrongly decided. It follows that a decision to exclude evidence on the basis of the precise exclusionary rule as defined in Kenny may be wrong. I say “may be” wrong, for, of course, it does not necessarily follow that the relevant evidence might not also be properly excluded by reference to whatever criteria or test this Court might identify as representing the proper constitutional balance.
2.14 On the assumption that Kenny was wrongly decided, and that, applying the proper test, the relevant evidence should have been admitted, it is clear that the decision to exclude that evidence was wrong. However, even though the decision was wrong, it is suggested that it cannot be said that the trial judge, in making that decision, erroneously excluded the relevant evidence because the trial judge was, it is accepted, bound to apply Kenny.
2.15 It might be said, in that context, that a reversal by this Court of a previous binding decision can have retrospective effect. There is a sense in which that is true. The need for a court to exercise some caution in revisiting existing case law has been addressed, in admittedly very different circumstances, by this Court in both M.R. v. An tArd Chláraitheoir & ors [2014] IESC 60 and H. v. H. [2015] IESC 7. As noted in those judgments, one of the difficulties which can be encountered as a result of a significant change in case law is that legal theory in this jurisdiction suggests that the “new” position adopted was always the correct position.
2.16 It is, of course, the case that the issues which arise on this appeal are, in substance, constitutional issues. The decision in Kenny is itself a determination of the proper balance to be struck in recognising and vindicating the constitutional rights and values at stake. Likewise, this Court is, in this case, concerned with the same question. Such constitutional issues are always subject to review in the light of prevailing circumstances, and any such review will have the potential to be retrospective at least so far as the case giving rise to the review itself is concerned.
2.17 But perhaps of greater importance is the fact that the Court, on this appeal, is concerned with a question of the admissibility of evidence rather than with a substantive issue directly affecting the substantive rights, obligations and liabilities of individuals or bodies. The consequence of a reappraisal of the case law in respect of the law of evidence is, in my view, while important, potentially less significant than a similar reappraisal of substantive law. A person either has, or has not committed a criminal offence. A reappraisal of the ingredients of that offence could have very significant consequences. A person might, if such a reappraisal had retrospective effect, be found guilty of an offence of which that person could not, no matter what the evidence was, have been found guilty on the basis of the law as it was understood at the time when the events said to constitute the offence in question occurred.
2.18 The Oireachtas is precluded, under Article 15.5 of Bunreacht Na hÉireann, from the enactment of retroactive penal legislation. A suggestion that the courts, by judicial reinterpretation, might achieve the same effect and, in the words of Article 15.5, “declare acts to be infringements of the law which were not so at the date of their commission” might well give rise to significant constitutional questions. However, this appeal is not concerned with retroactive penal legislation as such. Rather, this appeal is concerned with the law of evidence, albeit an aspect of that law which has significant constitutional influence.
2.19 But a change in the law of evidence does not make something illegal which might have appeared to have been legal at the time of its occurrence. Rather, a change in the law of evidence may permit a party (or the prosecution in the criminal context) to be able to prove something which they might not have been able to prove under the law of evidence as it was previously understood. But if, in the light of the law as reinterpreted, there is now cogent and admissible evidence that an offence was actually committed, then all that the reinterpretation of the law does is to permit an existing offence to be proved when, under the previous interpretation of the law, it might not have been possible to do so. The constituents of the offence do not change in any way.
2.20 While there is a sense in which such a course of action operates retrospectively, it seems to me that it does so in a very different way, and with significantly less constitutional difficulty than might arise if an attempt were made to redefine the elements of a criminal offence in a way which would render acts to be infringements of the law when those same acts would not have been considered to be such infringements on the basis of the law as it was understood at the time when those acts were committed. For those reasons, I do not consider that the element of retrospection which would arise from reconsideration by this Court of Kenny would be significant.
2.21 On that basis, I return to the proper interpretation of section 23. If it was wrong to exclude the evidence in question, then, in my judgment, that is an error even if the trial judge was, by virtue of the hierarchy of the courts, bound to follow Kenny (unless and until it is overruled or redefined by this Court). The fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence. On that basis, I am satisfied that an appeal to this Court under section 23 lies.
2.22 It is illustrative, in that context, to look at the situation which might arise in a case where the defence sought to invite this Court to revisit a material aspect of the jurisprudence. Assuming that it had to be accepted that a trial judge had correctly admitted evidence on the basis of the proper application of the existing case law of, for example, this Court, on what basis might it be said that an accused could then appeal to this Court against a conviction sustained on the basis of such evidence, and in so doing to invite this Court to revisit its own jurisprudence? There are only two possibilities. Either it is possible for an accused to appeal against a decision of a trial judge even though the decision of that trial judge was correct in the sense that the trial judge properly made the relevant decision in accordance with case law by which that judge was bound, or it is possible to regard a trial judge as being in error even if the trial judge applies case law by which that judge is bound in circumstances where this Court considers that the existing case law itself is erroneous. No other logical possibilities exist. The whole structure of any appellate system normally implies that the appellant has identified something which occurred in the trial court which was erroneous. I would qualify that observation by noting that there are, of course, exceptional cases where new and admissible materials have become available which may result in a successful appeal even though no error can be pointed to as to the manner in which the trial was conducted. But in the absence of such exceptional circumstances, how does an accused appeal in circumstances where the trial judge properly applied existing case law? I cannot see that it makes logical sense to treat the accused as having a right to appeal against a correct decision of a trial judge. But unless that is so, how may a decision, which is against the accused, but which is in accordance with established case law, to ever be the subject of an appeal unless such a decision is to be regarded as erroneous because the case law which was applied is, likewise, found to be binding but also erroneous?
2.23 Indeed, in that context, it is instructive to consider what might have occurred had the trial of Mr. C. taken place after the decision of the High Court in Damache v. D.P.P. [2012] 2 I.R. 266. The admissibility issue in this case stemmed from questions over the validity of warrants of the type used both in Damache and here. It must be recalled that the High Court, in Damache, upheld the validity of warrants of that type. Her Honour Judge Ring would have been just as bound by the decision of the High Court in Damache if that represented the state of the law when the matter came before her as she ultimately was bound by the decision of this Court in the same case. On what basis might Mr. C. have appealed in that scenario? It can hardly be doubted that, armed with the decision of this Court in Damache, had it been delivered by the relevant time, Mr. C. would have argued on appeal that the evidence against him was wrongly admitted and that his appeal should be successful. But in so doing he would, in substance, be arguing that the trial judge wrongly admitted the evidence even though the trial judge was applying a decision of the High Court by which that trial judge was bound.
2.24 Indeed, in that context, mention should be made of the practice sometimes properly adopted by counsel of reserving their position to argue a point on appeal. Counsel adopt that position where forced to accept that a trial judge is bound to find against them on the relevant point by virtue of binding authority but where it may be perceived that a higher court, not so bound, might revisit the jurisprudence. Would counsel for an accused not be entitled to appeal against the admission of evidence even if adopting that practice in making a formal objection to the admissibility of the evidence concerned? Would the decision of the trial judge nonetheless be argued on appeal to have been erroneous? I do not see any legitimate basis for treating a decision in favour of the accused as not being erroneous but treating an almost identical decision against the accused as being erroneous.
2.25 I am also strengthened in that view by a consideration of the relevant provisions of section 23 taken as a whole. As already noted, the circumstances in which an appeal lies under section 23 concern either the “erroneous” exclusion of evidence or the giving of a direction which is “wrong in law”. If this Court were to come to the view that a previous decision of this Court was itself wrong, how then could it be said that a direction to the jury based on that previous case law was not itself “wrong in law”? The fact that it would have been more than appropriate for a trial judge to have directed the jury based on the case law of this Court would not prevent such a direction from being “wrong in law” if this Court were to ultimately conclude that its earlier case law needed to be revisited in a material respect. I do not see that there is any basis for interpreting the scope of appeals which lie in respect of directions to the jury (which must be said to be wrong in law) in a materially different way to the scope of the appeals which lie in respect of the exclusion of evidence (which exclusion must be said to be erroneous).
2.26 Furthermore, I am not convinced that arguments about double jeopardy play any role in this debate. If an appeal properly lies, then it forms part of the same process as the trial itself. If there is a successful appeal and a retrial is directed, then that retrial, in turn, is part of the same process. Any earlier acquittal is, therefore, set at nought by a successful appeal by the D.P.P. under section 23 and it cannot, in my view, therefore, be properly regarded as an acquittal any more than any judgment and order of any court which is altered on appeal can be regarded as a binding judgment at all save in the limited historical sense that it was, up and until the time when it was overturned on appeal, the position adopted by a court of competent jurisdiction.
2.27 The question of double jeopardy properly arises when whatever procedure is available for the trial of an accused in a relevant jurisdiction runs its natural course and results in an acquittal. The issue which then arises is as to the circumstances, if any, in which it may be permissible to commence an entirely new process or reopen a process which has come to a natural end. But such is not the case here. The issue does, of course, depend on the proper interpretation of section 23. However, there can be no doubt that section 23 must be taken to apply in some circumstances. In those circumstances, an accused can properly be convicted after a retrial which has been directed resultant on a successful appeal by the D.P.P. under section 23. It is not correct, in my view, to characterise such a retrial as being in any way affected by any principles against double jeopardy. Rather, such a retrial is part of a single, continuous process in which an appeal court has corrected the error of a trial court, directed a retrial, and the result of that retrial will stand as the proper determination of the criminal process in the case in question.
2.28 That leads to the second issue which arises as to the scope of section 23, being the requirement that the excluded evidence be “compelling”.
3. Compelling Evidence
3.1 First, it is clear that, by virtue of subsection (3), the basis of a successful appeal must be a finding that “a ruling was made by a court” … “which erroneously excluded compelling evidence”. Compelling evidence is defined in subsection (14) as meaning that the evidence is reliable, of significant probative value, and such that, when taken together with all other evidence adduced a jury might properly convict.
3.2 It has to be said that this aspect of the section in its current form raises a number of potential difficulties. First, what is under consideration is evidence which was actually excluded at the trial. The potential for an appeal under section 23 in respect of an evidential ruling of the trial judge only arises where the trial judge does not permit the relevant evidence to be tendered. There may be significant differences, from one case to the next, as to the extent to which it may be clear from the record of the trial as to what the evidence, which was sought to be tendered, would have been had the trial judge ruled differently. In this case, the admissibility issue centred on certain statements made by Mr. C. while in garda custody. Thus the statement which the prosecution would, doubtless, have sought to prove in evidence was available in a written form. Although the evidence of that statement was not, precisely because the trial judge ruled it out, ever placed before the Court in a formal way, nonetheless it is possible to identify, on the facts of this case and from the record of the trial, certain features of the excluded evidence.
3.3 However, that might not always be the case. An objection might be taken to the admissibility of evidence on the grounds of hearsay. Precisely because the objection succeeded, a trial judge might not allow the question to be answered, and thus there may be no record of what the witness would have said had the question been permitted. In such a case it might (but would not necessarily) be the case that the Book of Evidence may have given an indication of the answer which the relevant witness was expected to give. It might or might not be the case that counsel for either the prosecution or the defence might, in the course of argument in the absence of the jury, refer to the anticipated answer as part of the argument in favour or against the proposition that, in answering the question, the witness might be giving hearsay evidence. But if no, or no sufficient description of the anticipated evidence is to be found on the record of the trial then issues arise as to how this Court is to determine whether the excluded evidence was compelling evidence. Even if there is an adequate record of the evidence likely to have been given had it not been excluded, how is this Court to assess its reliability and probative value?
3.4 Second, on the facts of this case, the evidence of a confession by Mr. C. had at least the potential to establish the case against him beyond reasonable doubt. If the statement evidence had been admitted, and provided that the defence had not persuaded the jury that they should have any material doubt about its reliability, a confession may have been sufficient to prove guilt. But in many cases, while the excluded evidence may be crucial in connecting an accused to an offence, it may, nonetheless, fall a long way short of being sufficient to prove the prosecution’s case by itself. In the language of science, it may be a necessary, but not a sufficient piece of evidence. A simple example will suffice. The excluded evidence may be some item of forensic interest obtained during a raid on a premises where the raid in question may transpire to have been unlawful. All that the evidence obtained as a result of the raid concerned might demonstrate, of itself, is that clothing of the accused found in his home had certain materials on it. That piece of evidence, taken alone, would not establish anything. The prosecution might, however, be able to establish, most probably by other forensic evidence, that the material found on the accused’s clothes associated him in some compelling way with the scene of a crime. The evidence might, in those circumstances, be reliable and of high probative value, but only when taken in conjunction with the rest of the prosecution’s case. But it is clear from subsection (14) that the other evidence necessary, in conjunction with the excluded evidence, to permit a jury properly to convict must be evidence “adduced in the proceedings”. Therefore, in the example which I have given, does that mean that the prosecution, if it wished to keep alive the prospect of an appeal with prejudice under section 23, would be required to go through the motions of calling a great deal of evidence (after the exclusion of some vital link in the chain of the prosecution’s evidence) so that all of that evidence would have been “adduced” and a conclusion could be reached as to whether that evidence, together with the excluded evidence, would permit a jury to reasonably convict?
3.5 It seems to me that what the Oireachtas most likely had in mind by the inclusion of subsection (14) was to ensure that there could not be a successful appeal under section 23 and a consequent retrial unless there was a reasonable prospect of a successful prosecution on that retrial without additional evidence which had not been tendered at the original trial. It must, however, be open to question as to whether the mechanism adopted in section 23 to achieve that end is effective. However, it also seems to me that, in the circumstances of this case, the potential problems which may well arise in applying section 23 just do not arise. In the course of the argument before the trial judge, on the admissibility issue which is the subject of this appeal, it was accepted on behalf of Mr. C. that the evidence which the prosecution sought to introduce, and to which objection was taken on behalf of Mr. C., involved “admissions … (which) … could reasonably lead to the conviction of (Mr. C.) for the offences which he is charged” [sic]. Thus, on the facts of this case, it appears to have been accepted that the admissions, which the prosecution sought to introduce, were both reliable and of probative value, for if they were not, it is impossible to see how they could reasonably lead to a conviction. Likewise, given that they were admissions, it seems to have been accepted that they could, had they been admitted, have been sufficient, without other evidence, to lead to a conviction.
3.6 In that context, it is important to note the position adopted on behalf of Mr. C. when the matter was relisted for further argument directed towards this issue. Counsel drew attention to the fact that it is this Court which must be satisfied that the evidence excluded is compelling evidence within the definition contained in section 23(14). Counsel also accepted that, in the light of the materials contained in the record of the trial before the Circuit Court, it is open to this Court to be so satisfied. Counsel made the point that the statements made on behalf of Mr. C. during his trial did not create any form of estoppel or otherwise bind Mr. C., still less this Court, to the view that the evidence was compelling in its statutory sense. It is my understanding that counsel for the D.P.P. did not disagree with this view. In my view, both counsel were correct. What is said about evidence at a trial is both admissible and, potentially, important to any consideration which this Court must give as to whether the evidence concerned is “compelling” in the sense used in section 23(14), but it cannot bind either the accused or the Court. If, for example, it was clear that what was said at the trial was wrong, then this Court could not be “satisfied” about the status of the relevant evidence.
3.7 However, in the circumstances of this case, I am satisfied that there is sufficient material available on the record of the trial before the Circuit Court to enable this Court to be satisfied that the evidence is “compelling” in the sense in which that term is used. There has been no suggestion made nor any argument put forward to suggest that counsel’s depiction of the confession evidence did not accurately describe it as evidence which would have permitted the jury reasonably to convict. On that basis, it is, at least potentially, reliable, of probative value and sufficient to allow a jury reasonably to convict. It should be emphasised that that does not, of course, mean that a jury would be bound to convict, but rather that it would be open to a jury to convict on the basis of that evidence.
3.8 Given that I have come to that view on the basis of the materials which were before the trial judge, it does not seem to me to be either appropriate or necessary to reach a conclusion on the motion brought on behalf of the D.P.P. seeking to introduce additional evidence. For the reasons which I have already sought to identify, there are, in my view, potential problems surrounding the mechanics of the operation of section 23 which may warrant consideration by the authorities if it is intended to seek to invoke this section again. Those problems focus very much on how it is intended that this Court, which is after all an appellate court, or indeed the Court of Appeal if it is carrying a similar role, is, in practice, to make an assessment of whether excluded evidence meets the test specified in section 23(14). If the legislation is not readdressed then it will be necessary to consider how appellate courts should exercise this jurisdiction in cases where the question of whether the evidence qualifies under subsection (14) may be a lot more difficult than in this particular case. However, having concluded that, in the circumstances of this case, an appeal under section 23 lies, it is necessary to turn to the core substantive issue which is as to whether Kenny was rightly decided.
4. The Exclusionary Rule in D.P.P. v. Kenny
4.1 I should start by indicating my agreement with the analysis of the sequence of cases in this area identified by O’Donnell J. in the course of his judgment in this case. In those circumstances, I do not find it necessary to engage in a detailed review of that jurisprudence. I would confine myself to making a small number of observations.
4.2 First, it seems to me to be clear that the net effect of the decision of this Court in Kenny was to overrule the previous decision of this Court in the People (Attorney General) v. O’Brien [1965] I.R. 142 (“O’Brien”). It is true that this Court did not, in express terms, state that it was overruling O’Brien. Indeed, by adopting the phrase “deliberate and conscious violation” from O’Brien, this Court, in Kenny, might, on a superficial view, be seen to have been simply elaborating on the proper application of O’Brien. However, any true analysis of the situation leads inevitably to a different conclusion.
4.3 It must be recalled that the error of the gardaí which arose in O’Brien stemmed from the fact that the address of the house in Crumlin, to which the relevant warrant related, was misdescribed. But there was no doubt, therefore, that the gardaí in question did not hold a valid warrant to search the house in which the relevant evidence was found. They held a warrant to search a different house on a close-by road with a similar but somewhat different name. The gardaí in question clearly “deliberately and consciously” entered a house in respect of which they did not hold a valid warrant. The house in question was a home with all of the constitutional rights which that attracts. On the facts of O’Brien, there clearly was a deliberate and conscious breach of constitutional rights if the term “deliberate and conscious” is to be applied, as this Court held in Kenny that it should, to the action of those carrying out the search as opposed to the knowledge of those persons that what they were doing was not authorised.
4.4 It is impossible, therefore, to come to any conclusion other than that, if Kenny correctly states the legal position, O’Brien was wrongly decided.
4.5 Indeed, it is convenient to set out the debate which is at the heart of this case by reference to the competing positions identified in both of those cases. While the various courts which dealt with O’Brien do not appear to have considered issues such as carelessness, there can be little doubt but that the facts of O’Brien do betray at least some lack of care on the part of the gardaí involved. It would not have taken a great deal of effort to have checked that the address on the warrant was the same as the address at which the search was about to be carried out. Thus, O’Brien may be seen to be at one end of a spectrum which suggests that evidence should be admitted unless it can be shown that those gathering the evidence in question actually knew that their actions were in breach of constitutional rights. Kenny may be seen to be at the other end of the spectrum, where all that it is necessary to show, so that evidence may be excluded, is that there was a breach of constitutional rights, irrespective of the knowledge or level of care of those involved, save in the highly unusual and exceptional circumstances mentioned in the case law.
4.6 Viewed in that way, it seems to me to be clear that Kenny, in substance, overruled O’Brien, and moved the test to a point at very much the opposite end of the spectrum. The question for this Court is as to whether either O’Brien or Kenny are correct, or, indeed, whether the proper test requires some further refinement by identifying a point along that spectrum which is to be found neither in O’Brien nor Kenny.
4.7 At this point I should also mention that I agree with the analysis set out in the judgment of O’Donnell J. of the international jurisprudence in this area and of its relevance to the issues which this Court has to decide, and I do not find it necessary to add anything to what is said in his judgment in that regard.
4.8 In my view, there are two important and, at least to some extent, potentially competing principles involved. On the one hand is the principle that society, and indeed the victims of crime, are entitled to have an assessment carried out at a criminal trial of the culpability of an accused based on the proper consideration by the decider of fact (be it judge or jury) of all evidence, where that evidence is material to the question of guilt or innocence, is potentially probative of guilt, and is not potentially more prejudicial than probative in the sense in which those terms have come to be used in the jurisprudence. That principle is not, of course, an absolute requirement. However, there is, in my view, a high constitutional value to be attached to ensuring that all potentially relevant evidence, which meets the criteria which I have just sought to define, is considered at a criminal trial.
4.9 In that context, it must be acknowledged that the exclusion of evidence which has the potential to establish guilt on grounds which are unconnected with its probative value can only lead to a risk of the acquittal of guilty persons without any corresponding effect on the likelihood of the conviction of the innocent. Much evidence is excluded on very different grounds. The circumstances in which evidence (such as an admission of guilt) has been obtained may lead to questions as to its reliability. A failure to establish a proper chain of evidence in respect of forensic samples and the results of forensic testing may lead to doubt as to the probative value of the evidence concerned. There are many other circumstances in which the reason for the exclusion of evidence is materially connected to the question of whether it has been shown that the evidence is truly probative or whether the risks of its admission outweigh its probative value.
4.10 But the exclusionary rule is not concerned with such circumstances. The fact that evidence is found in a search of a dwelling house where no proper legal authority for entry has been established does not affect the probative value of the evidence thus found. The extent to which it may provide strong or only supportive evidence of the accused’s guilt will depend on the objective, factual circumstances surrounding the evidence in question rather than the legal circumstances in which it came to be discovered or obtained. In this case, we are not, it must be strongly emphasised, dealing with questions of the admissibility of evidence where the question over the admissibility of that evidence stems from issues which may affect its probative value. Rather, we are dealing with questions of admissibility which stem solely from the circumstances in which the evidence was gathered. Thus, the exclusion of such probative evidence can only lead to the risk of the acquittal of guilty persons without any corresponding exclusion or diminution of the risk of the conviction of the innocent.
4.11 However, on the other hand, there is also a significant constitutional value to be attached to the need to ensure that investigative and enforcement agencies (including An Garda Síochána) operate properly within the law. Why do we have elaborate laws concerning arrest, the power to enter premises, questioning and other means of what might be described as non-voluntary evidence gathering? We do so because there is a significant constitutional value in ensuring that there are clear rules which mark the limits of the powers of investigation and enforcement agencies in evidence gathering. Those limits are there to protect us all. There is a high constitutional value in ensuring that those limits are maintained. It follows that there should be consequences, and indeed significant consequences, where those rules are broken.
4.12 But the question which this case throws into stark relief is as to whether those consequences must or should, in some or in all cases, involve the exclusion of probative evidence with the consequent risk that someone in respect of whom there is cogent evidence of guilt may be acquitted.
4.13 If, even in the absence of the potentially contested evidence, there is sufficient evidence to prove the guilt of the accused beyond reasonable doubt then, doubtless, the accused will be convicted and whether the contested evidence was admitted or not will not turn out to have been decisive. Likewise, if, even with the benefit of the contested evidence, there is insufficient evidence to prove guilt to the criminal standard, then the accused will be acquitted. The issue only really arises in any truly material way where the contested evidence gives a real prospect of turning a case which could not be sustained into one where there is sufficient evidence to find the accused guilty. In such cases, where the contested evidence has the potential to make the difference between a finding of guilt or innocence, then it is fair to characterise the question of the admissibility of that evidence as being, likewise, potentially such as makes the difference between a finding of guilt or innocence. If the evidence is of that type, the question which must be asked is whether an accused, in respect of whom there is sufficient probative evidence to establish guilt, must nonetheless be acquitted as a consequence of the fact that some of the evidence necessary to bring the case against him over the threshold to where there is sufficient evidence to prove guilt to the criminal standard was obtained in questionable circumstances. In reality, that is the question which was before this Court in both O’Brien and Kenny.
4.14 In O’Brien, the Court took the view that the accused should nonetheless be convicted even though the evidence was obtained in breach of rights where that breach was not deliberate or conscious in the sense that those who were guilty of the relevant actions did not know that they were committing such a breach. In Kenny, it was held that the accused must nonetheless be acquitted because the act of obtaining the evidence itself was deliberate, even though those involved were not conscious of the fact that they were breaching constitutional rights. In my view, neither position properly balances the legitimate competing interests involved.
4.15 To say that evidence should be admitted in all cases except those where the enforcement and investigation authority concerned actually knew that they were acting in breach of constitutional rights is to place insufficient weight on the need to ensure or at least encourage such agencies to operate within the legal boundaries of their investigative powers. But it seems to me to be equally the case that to require, in substance, that an accused against whom there is sufficient evidence to establish guilt must, in all but the most exceptional circumstances, be acquitted where there has been an inadvertent breach of constitutional rights in the gathering of evidence crucial to the establishment of guilt is to place far too little weight on society’s entitlement to secure the proper and legitimate conviction of those guilty of crime and, indeed, the rights of victims to ensure that those who commit crimes against them are brought to justice where there is sufficient probative evidence to establish the guilt of the person concerned to the criminal standard.
4.16 In my judgement, O’Brien does not go far enough but Kenny goes too far. But that does not, of itself, answer the potentially difficult question of precisely how the balance should be struck. The question is difficult not least because it is important that any test be capable of consistent application. Absolute rules have at least the benefit of achieving an easy consistency in their application. Rules which are designed to effect an appropriate balance between two competing, but significant, factors may be more difficult to fashion in a manner which achieves the same level of consistency. However, for the reasons which I have sought to analyse, I am satisfied that it is necessary, despite those difficulties, to determine where the appropriate balance should lie.
4.17 Before going on to address that point, I do not feel that I should leave this aspect of this judgment without dealing with one further argument. That the State, and in particular the courts, has a duty to vindicate the constitutional rights of all cannot be doubted. That there is an obligation to vindicate the rights of those who suffer as a result of the unconstitutional obtaining of evidence cannot, likewise, be doubted. But the real question which arises is as to the manner in which such rights should be vindicated.
4.18 According to Article 40.3 of Bunreacht na hÉireann, the State guarantees in its laws to defend and vindicate the personal rights of citizens “as far as practicable”. Furthermore, those rights are to be protected by the State “as best it may” in accordance with Article 40.3.2. It is necessary, therefore, to consider in each case where there has been a breach of constitutional rights as to how the relevant rights should be vindicated. As O’Higgins C.J. noted in Moynihan v. Greensmyth [1977] I.R. 55 at p.71, there may be circumstances in which the State may have to balance its protection of rights against other obligations arising from regard to the common good.
4.19 It does not seem to me to follow that it is necessary, in order to vindicate the right, for example, of integrity of the home, that in all circumstances a party in respect of whom there is sufficient evidence to establish their guilt to the criminal standard must be acquitted if the prosecution case must rely on evidence obtained during a search conducted in breach of that right. Indeed, it is, in passing, worth noting that the constitutional rights concerned may not even be those directly of the accused. Evidence obtained in a search of a home other than that of the accused may nonetheless be obtained in circumstances which breach the constitutional rights of the owner or occupier of the house in question. Is it necessary in those circumstances, in order to vindicate the rights of that home owner, that an accused, whose rights have not in any way been interfered with, is entitled to have his guilt or otherwise assessed without the benefit of potentially probative evidence?
4.20 But even where the rights concerned are those of the accused, does it necessarily follow that the proper way in which those rights are to be vindicated is to acquit the accused of an offence, in respect of which there is sufficient evidence to prove their guilt? I do not think so.
4.21 Of course, it is argued that investigation and enforcement agencies need to be encouraged to operate within the boundaries of their legal entitlements, and that any laxity in the rules concerning the admissibility of evidence obtained outside those boundaries will only encourage the same boundaries to be breached. There is no doubt that there is substance in that argument. There is no doubt that such laxity may, in some cases, lead to a breach of constitutional rights in circumstances which fall short of those where a deliberate and conscious breach can be established in the sense that those involved knew that they were breaching the rights concerned. The need to encourage compliance with important legal boundaries is, itself, a significant constitutional value.
4.22 Indeed, it is clear from the judgment of Finlay C.J. (speaking for the majority in Kenny at pp. 133-134) that the need to provide what was described as a positive encouragement to those in authority formed an important part of the reasoning of the Court. I do not at all disagree with the analysis that such a need exists and that it forms an important part of the constitutional balance which needs to be achieved in this area. It is for that very reason that I am of the view that O’Brien does not go far enough. But to say that, potentially, an accused, in respect of whom there is sufficient evidence to prove guilt to the criminal standard, must go free in virtually all circumstances as a means of enforcement of the boundary of legitimate evidence gathering is, in my view, to go much too far in the other direction. What is required is an appropriate balance which respects the need to encourage enforcement agencies to remain within the boundaries of their legal powers but which does not, even in cases of inadvertence or, indeed, unknown and unknowable difficulties, lead in virtually all cases to the exclusion of otherwise probative evidence and the consequential acquittal of persons in respect of whom there is a sufficient case to prove their guilt beyond reasonable doubt.
4.23 In the same context, I should record that I fully acknowledge the established difficulties which have, unfortunately, been found to have existed in relation to the conduct of some elements of An Garda Síochána. These matters are addressed in the judgment of Hardiman J. Likewise, I acknowledge that there may well have been a tendency, in cases of illegally, as opposed to unconstitutionally, obtained evidence, for courts to tend to exercise their adjudicative role in favour of the admission of such evidence. On that basis, it is suggested that the combination of established police malpractice and a judicial tendency to admit evidence provides an argument in favour of maintaining an almost absolute exclusionary rule. I am afraid I cannot agree.
4.24 The solution to the existence of police malpractice in some cases is not to create an exclusionary rule which applies in all cases. The solution to what might be seen by some as an over-generous attitude of trial judges to the admission of evidence (where a power to admit exists) is not to take away the power to admit in its entirety.
4.25 The proper solution to those problems is to define the law in terms which represent an appropriate balance of the constitutional rights and values at issue, to require trial courts to exercise vigilance to ensure that investigating agencies (such as An Garda Síochána) act in an appropriate fashion and to enable trial judges, having carried out such vigilant scrutiny, to apply a properly defined constitutional balance to the situation which then emerges. There is a further, and in my judgement very important, role to be filled by appellate courts. As O’Donnell J. points out in his judgment in this case, the solution to any general tendency to be over-generous in the admission of evidence, in circumstances where a trial judge has an adjudicative role in respect of that question, is to rely on appellate courts to redress any imbalance which may thus arise. The creation of technical reasons (unconnected with the merits of the case) by which evidence may be excluded or proceedings not progressed deflects from the true enquiry which is as to whether the prosecution case can be proved beyond reasonable doubt. Where those technical reasons impact on that enquiry itself, a very different result may be required. Sometimes a robust response to breaches of the evidence gathering process will be necessary to strike an appropriate balance. But it should not, in my view, be assumed that diverting the criminal process into the side roads of issues not materially connected with guilt or innocence is always an appropriate course to follow. Against that background, I turn to the question of how, in my view, an appropriate balance of the competing constitutional rights and values engaged in this case should be struck.
5 The Balance
5.1 I should start by dealing with what might seem to be something of a preliminary question but which, in my view, nonetheless remains a most important part of the overall approach which should be adopted. In any criminal trial the onus rests on the prosecution to prove guilt. It seems to me that, as part of that overall approach, the onus rests on the prosecution to establish the admissibility of any evidence in respect of whose admissibility a legitimate question is raised. The first part of any proper test must, therefore, state that:-
“The onus rests on the prosecution to establish the admissibility of all evidence”.
5.2 Next, it must be recorded that this judgment is concerned with questions relating to the admissibility of evidence arising out of circumstances which do not affect the integrity or probative value of the evidence itself. This judgment is not, therefore, in any way concerned with such questions as might arise where evidence is obtained under oppression or the like. In such cases the circumstances in which the evidence was gathered affects the integrity or probative value of the evidence itself. However, this case is not concerned with such evidence. For the avoidance of doubt, I would, therefore, add to the first part of the proper test the following clarification. “The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned”.
5.3 The next question, which is a connected question, concerns the application of the general rule in circumstances where objection is made to the admissibility of evidence on the grounds that the relevant evidence was obtained in circumstances of unconstitutionality. It seems to me to follow, from the earlier general proposition mentioned above, that the onus remains on the prosecution in such cases to establish the admissibility of the relevant evidence. In particular, it seems to me to follow that the onus rests on the prosecution to establish either:-
(a) That the evidence concerned was not gathered in circumstances of unconstitutionality or;
(b) That, if it was, it remains appropriate for the Court to nonetheless admit the evidence.
5.4 As part of that obligation, it seems to follow that the onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places two separate obligations on the prosecution. The first is to put forward whatever argument or basis it is suggested nonetheless justifies the admission of the relevant evidence. Second, and of equal importance, there must rest on the prosecution an onus to establish any facts necessary to justify such basis. For example, and to the extent that it may be relevant, establishing that those involved in the relevant gathering of evidence were unaware of the unconstitutionality in question is a matter which the prosecution must establish. Likewise, to the extent that any aspect of the general facts surrounding the evidence gathering in question might be relevant to the adjudication of whether evidence is to be admissible, a clear onus rests on the prosecution to establish those facts. While that obligation stems principally from the general obligation which lies on the prosecution, it also seems to me to be strengthened by the fact that the accused will, in the vast majority of cases, have little or no knowledge of the circumstances which led to evidence being obtained in circumstances of unconstitutionality. To place any obligation on the defence to establish such circumstances would be to place an unfair, and in my view an impermissible, burden on the accused.
5.5 Thus, it seems to me that the following must also form part of the test:-
“Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that, if it was, it remains appropriate for the court to nonetheless admit the evidence.
The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to assert the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.”
5.6 As part of the general obligation which rests on the prosecution to prove all aspects of a criminal case to the criminal standard (save in those limited circumstances where the law places an onus in a particular regard on the defence) it seems to me to follow that any facts which the prosecution needs to establish in order to discharge the onus on it, which is identified in the previous paragraphs, must be established beyond reasonable doubt. To take any other view would be impermissibly to lessen the burden on the prosecution to prove all matters to the criminal standard.
5.7 Therefore, the test should contain the following element:-
“Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.”
5.8 Next, it seems to me that the proper balance between the competing interests requires that evidence which is taken in conscious and deliberate breach of constitutional rights must be excluded save in the sort of special or exceptional circumstances already identified in the jurisprudence. However, for the purposes of such exclusion, the term “conscious and deliberate” must refer to knowledge of the unconstitutionality of the taking of the relevant evidence rather than referring to the acts concerned. It would truly require exceptional circumstances for the court to admit evidence which is obtained in circumstances where those gathering the evidence knew that they were acting in breach of constitutional rights. Such a situation has to be viewed by any court in the most serious light. In such circumstances, a court is not concerned with merely “encouraging” compliance by enforcement and investigation authorities with the boundaries of their legal powers. Rather, the court is concerned with circumstances where those authorities have taken a calculated decision to go ahead even though they knew that they would be infringing constitutional rights by so doing. The circumstances which could justify a court in admitting evidence taken in those circumstances must remain truly exceptional.
5.9 It is also important to make it clear that the question of whether the taking of evidence is in deliberate and conscious breach of constitutional rights in that sense requires an analysis of the conduct or state of mind not only of any individuals “at the coal face” but also of any other senior official or officials within the relevant enforcement or investigation authority who were involved in a material way in the process. To take but a simple example, a senior investigating garda who is well aware that An Garda Síochána does not have authority to carry out a particular search cannot escape the consequences of a finding of a deliberate and conscious breach of rights simply by procuring that a less experienced or less informed member of the force actually carried out the search in question. In addition, where there is a systemic failure in the sense that senior gardaí are aware of and condone practices which are, to their knowledge, likely to lead to breaches of constitutional rights, then the fact that individual members of An Garda Síochána involved directly in evidence gathering may not have the same knowledge would not justify a finding that there was no deliberate or conscious breach of constitutional rights.
5.10 The test, therefore, requires the following:-
“Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context, deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct and state of mind not only of the individual who actually gathered the evidence concerned but also of any other senior official or officials within the investigating or enforcement authority concerned who are involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.”
5.11 Next, it seems to me to follow that, where evidence is taken in circumstances of unconstitutionality, but where the prosecution establishes that same was not conscious and deliberate in the sense already identified, the evidence should be admitted if the prosecution can also establish that the unconstitutionality concerned arose out of circumstances of inadvertence or by reason of developments in the law which occurred after the time when the relevant evidence was gathered.
5.12 I consider that including an exception of this type properly meets the balance of interests engaged in this case. It is illustrative to look at the facts before us. As a result of a subsequent decision of the courts, it became clear that a particular form of warrant was invalid. That legal fact was not known at the time of the evidence gathering at issue in this case. It is true that some doubts had been expressed over the constitutional validity of the relevant measure, but it remained on the statute book and enjoyed the presumption of constitutionality. In what way could it be said that it would encourage enforcement and investigation authorities to remain within the boundaries of their legal power if evidence is to be excluded by reference to legal decisions not even taken at the time when the power in question was exercised?
5.13 It seems to me that, likewise, inadvertence, such as that which was present in O’Brien, should not lead to the exclusion of otherwise probative evidence. It is true that imposing a rule of almost absolute exclusion (which rules out evidence even in cases of inadvertent breach of constitutional rights) might act as a somewhat greater encouragement to authorities towards strict compliance with their obligations. However, the price to be paid for that exceptionally high level of encouragement involves an inappropriate balancing of the interests concerned. On the other hand, if, short of a deliberate and conscious act, evidence is taken in circumstances of recklessness or gross negligence, then a different balancing exercise arises, for it is important that those involved in investigation and enforcement know that they cannot expect that reckless or grossly negligent actions will not have serious consequences for evidence gathering. To rule otherwise would be to place the level of encouragement to compliance at too low a level.
5.14 It is important to make clear, in that context, that the term “inadvertent” cannot be said to include a case where any relevant person acted in a manner which was reckless or grossly negligent. There is one sense in which the word “inadvertent” simply means that a person did not advert to the problem. On that basis, a person who, even though grossly negligent, might not actually have “adverted” to the fact that they were acting in breach of constitutional rights might, nonetheless, be said to have acted inadvertently. It is important to emphasise that the term “inadvertent”, in the sense in which it is used in this judgment, could not encompass such actions.
5.15 On the other side of the equation, it does seem clear that inadvertence can include at least some circumstances which might be regarded as negligent in the broadest sense of that term. A professional person who, for example, fails to notice some material aspect of an issue on which they are to advise or in respect of which they are to act might well be said to have acted inadvertently but might, nonetheless, be found liable in negligence.
5.16 It might be argued that permitting the admission of evidence taken in circumstances of inadvertent breach could place a premium on ignorance. Evidence obtained in conscious and deliberate violation of constitutional rights, in the sense in which I have used that term, will be excluded. It might be said that it is more easily determined that the knowledgeable were aware of what they were doing compared with those who may be ignorant of the relevant law. However, it is clear from the sense in which I have suggested that the term “inadvertence” should be used that investigative agencies cannot hide behind an unacceptable lack of knowledge appropriate to their task for the purposes of pleading inadvertence. It does not, therefore, seem to me that the test which I propose, when properly analysed, gives any comfort to those who might seek to rely on exaggerated ignorance of the law to escape a ruling in favour of the admission of evidence taken in breach of constitutional rights.
5.17 An exclusionary rule which permits the admission of evidence obtained in circumstances of either inadvertence or where there are subsequent legal developments is sufficient to resolve this case. Doubtless the precise parameters of the point at which, in practice, inadvertence may be said to stop being an appropriate characterisation of events will be defined by further case law.
5.18 Before leaving this aspect of the test I would add one further observation. It is suggested that, in formulating the test in this way, inadvertence is elevated to the status of providing a lawful excuse for unconstitutional action. I cannot, with respect, agree that such is an appropriate characterisation. As O’Donnell J. points out, the fact that there may have been a breach of constitutional rights by inadvertence does not excuse that breach. A claim in trespass, for example, would not fail simply because an enforcement officer entered onto premises without legal authority in circumstances where the officer concerned was unaware, due to inadvertence, of the absence of such proper authority. The trespass would not be excused by any inadvertence. Many other similar examples could be given.
5.19 The issue here, however, is not as to whether the actions of the relevant investigating authorities are so excused. They are not. Rather, the issue is as to whether otherwise cogent and probative evidence is to be excluded from the court’s consideration because of the manner in which it was gathered. To say that there may be circumstances where such evidence can properly be admitted, even though there may have been a breach of rights in the manner in which the evidence was gathered, is not to excuse or, as it is put, lawfully excuse, the conduct in question. Any sanction applying in the civil, or indeed, the criminal law for that breach will apply. But it is an entirely different question to consider whether evidence must be thereby excluded. As I suggested earlier, it is, in my judgement, to go much too far to suggest that a person against whom there is cogent evidence of guilt must necessarily escape conviction solely because there was an inadvertent breach of rights in the gathering of some essential piece of evidence which occurred in a way which does not affect either the integrity or the probative value of the evidence concerned. The focus of the trial of a person whose guilt or innocence might be affected by the evidence concerned is on whether that person is guilty or innocent of the offence as charged. The focus of that trial is not, or at least is not primarily, on whether otherwise cogent and probative evidence was properly gathered. To admit evidence in certain circumstances, even though it was not properly gathered, does not excuse or lawfully excuse any breach of rights concerned. It simply recognises that the evidence remains, notwithstanding the manner in which it was gathered, probative and cogent.
5.20 It seems to me to follow, therefore, that the test should include the following:-
“Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.”
5.21 There is one further refinement which, in my view, ought be added. It is important to distinguish between evidence gathering which occurs in circumstances where same could not have been constitutional in any circumstances, on the one hand, and evidence gathering which was capable of being lawful and would have been lawful were it not for the absence of some appropriate form of valid authorisation specific to the facts of the case in question. In that latter category, cases would also arise where there was an authorisation, but where there was some defect in the authorisation concerned. In that context, there is a difference between prosecuting authorities being able to rely, on the one hand, on evidence, the gathering of which was not authorised, but which could have been authorised, and where the absence, inaccuracy or invalidity of or in the relevant authorisation was not adverted to, and, on the other hand, evidence gathering which could never have been authorised at all.
5.22 A final element of the test should, therefore, provide the following:-
“Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.”
5.23 Before concluding this aspect of this judgment I would propose to make some final observations.
6 Some Final Observations
6.1 It bears noting that, while a significant amount of the recent focus in the jurisprudence in this area has concerned evidence obtained in circumstances of unconstitutionality, evidence obtained illegally is also a matter with which the courts should be significantly concerned. It is true that there is a particular onus on the courts to discourage unconstitutionality having regard to the constitutional imperative placed on the courts to uphold the Constitution and to vindicate constitutional rights. However, there is also an obligation on the courts to uphold the law and to discourage illegality.
6.2 It should not, therefore, be taken that evidence obtained in circumstances of illegality should readily be admitted. Where the absence of legality arises in circumstances properly described as reckless or grossly negligent, then the relevant evidence should be excluded even if the illegality concerned does not result in a breach of constitutional rights.
6.3 It does, however, seem to me that it would be appropriate for a court charged with deciding on the admissibility or otherwise of evidence in a particular case to have regard, in assessing whether the impugned actions of those who gathered the evidence in question were inadvertent, to the status of the rights which were shown to have been breached. Where evidence gathering might, in the absence of appropriate authority, give rise to a breach of constitutional, as opposed to legal, rights, then there is a greater obligation on those involved in gathering the evidence in question to ensure that they have proper legal authority for what they are doing. Given that greater obligation, a court might well more readily find fault beyond inadvertence in relation to a breach of constitutional rights rather then legal rights, for the greater the obligation of care, the easier it will be to determine that an absence of care was more severe. That being said, it must nonetheless remain the case that, where an issue as to the admissibility of evidence obtained or gathered in circumstances of illegality arises, the court must carefully scrutinise all the circumstances of the case to determine whether it is appropriate to admit the relevant evidence.
6.4 The principles which I have sought to identify seem to me to be appropriate in all cases where there is a challenge to the admissibility of evidence on a basis connected with the manner in which the evidence was gathered or obtained as opposed to questions relating to the probative value of the evidence concerned. Those principles are, therefore, necessarily general in their terms. The precise application of those principles will need to be developed on a case by case basis. For example, and at the level of greatest generality, issues of this type most frequently arise in two different sets of circumstances. The first set of circumstances are cases, such as this, where evidence is gathered on foot of a search warrant or other statutory search authority, and where it is established that there was some problem with the relevant authority so that the search was not authorised. The other main category of cases concerns circumstances where a problem arises concerning the lawfulness of the custody of a suspect who is being questioned. In those latter cases, it is important to emphasise that this judgment is, as has been pointed out on a number of occasions, concerned with objection to the admissibility of evidence which is based simply on an alleged unconstitutionality in respect of the evidence gathering, rather than, as sometimes arises in custody cases, issues as to whether the relevant evidence can truly be regarded as appropriately probative having regard to the circumstances in which it was obtained.
6.5 Obviously, the practical application of these general principles may differ somewhat as and between warrant or search authorisation cases, on the one hand, and custody cases on the other. As already noted, the precise application of the general principles is a matter which will need to be developed on a case by case basis.
7. The Test
7.1 For the reasons which I have sought to analyse in section 5 of this judgment, it seems to me that the elements of the test to be applied to the question of exclusion of evidence taken in circumstances of illegality or unconstitutionality are those identified in that section of the judgment.
7.2 In summary, the elements of the test are as follows:-
(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.
(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.
The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.
(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.
(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.
7.3 In my view, the application of that test should also be informed by the matters identified in sections 4 and 5 of this judgment. It is next necessary to consider the application of that test to the facts of this case.
8 Application to the Facts of this Case
8.1 As already noted, the potential issue concerning the admissibility of the relevant evidence in this case concerned the validity of a warrant of the type found invalid by this Court in D.P.P. v. Damache [2012] 2 I.R. 266. At the time when the evidence in question was gathered, Damache had not been decided. The warrant was, therefore, issued on foot of a statutory provision which enjoyed the presumption of constitutionality and which had not, at the relevant time, been the subject of any judicial determination concerning its inconsistency with the Constitution. It is possible that different considerations might well arise in a case where there had been a relevant determination of the High Court (or the Court of Appeal) which would, if correct, render the relevant warrant invalid. Even where such a determination was under appeal it would represent the law as understood at the time in question.
8.2 It is true that there had been some suggestions made in legal debate over the years which might have questioned the validity of the type of warrant used in this case and also in Damache. However, it does not seem to me that such debate can influence the proper approach to an assessment of the circumstances in which the warrant in this case was granted and executed. The substance of the factual underlay to this case is that the evidence in question was gathered on foot of a warrant which was prima facie valid on the basis of the law as it stood when that warrant was issued, and where the warrant was issued in furtherance of a statutory provision which enjoyed the presumption of constitutionality. In those circumstances, it seems to me that this case comes clearly within the category of case where the evidence should properly be admitted on the basis of the test which I propose. On that basis, it seems to me that, while the trial judge was, of course, bound by Kenny, her decision to exclude the evidence in question was necessarily erroneous in the sense in which that term is used in section 23. I would, therefore, so find.
8.3 In the light of that finding, it is necessary to return to the structure of an appeal under section 23. Subsection (11) allows this Court to quash an acquittal and order a retrial if satisfied that the requirements of subsection (3)(a) or (3)(b) are met, and 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”. The subsection goes on to specify that, if this Court is not satisfied of both of those matters, the court should affirm the acquittal.
8.4 For the reasons already identified, I am satisfied that the requirements of subsection (3)(a) are met in that I am satisfied that compelling evidence was erroneously excluded as a result of a ruling made by the Court during the course of a trial. While that is a necessary condition to the reversal of an acquittal, it is not sufficient to that end. A final decision on whether the appeal should be allowed must, therefore, await a determination as to whether it is in the interests of justice, having regard to the matters specified in subsection (12), to quash the acquittal of Mr. C. As a consideration of those matters has been left over, it is not, therefore, possible at this stage to determine whether the appeal should be allowed or dismissed.
9 Conclusions
9.1 For the reasons analysed earlier in this judgment, I have come to the view that an appeal in relation to the exclusion of evidence can properly be brought under section 23, notwithstanding the fact that the trial judge who excluded the evidence in question properly applied existing case law by which that judge was bound. It seems to me that, where this Court concludes that such existing case law is, itself, wrong, then it follows that the exclusion of evidence based on such case law is also wrong and, therefore, “erroneous” provided that, of course, on the basis of the application of what this Court now determines to be the appropriate test, the evidence should have been admitted.
9.2 In addition, for the reasons set out earlier in this judgment, I am satisfied that, on the facts of this case, it is appropriate to conclude that the evidence excluded by the trial judge is “compelling evidence” in the specific sense in which that term is used and defined in section 23. In those circumstances, I am satisfied that the appeal brought by the D.P.P. in this case comes within the scope of section 23 as properly interpreted.
9.3 For the reasons analysed, most particularly in section 4 of this judgment, I am satisfied that both Kenny and O’Brien fail adequately to balance the competing constitutional rights involved. I set out, in sections 5 and 7 of the judgment, what seems to me to be the appropriate approach. Applying that approach to the facts of this case, I am satisfied, for the reasons set out in section 8 of this judgment, that the evidence which is the subject matter of this appeal was erroneously excluded by the trial judge in the sense in which that term is used in section 23.
9.4 It follows that the first leg of the requirement of a successful appeal by the D.P.P. under section 23 has been met. As noted earlier in the course of this judgment, it was common case that the question of whether there should, in those circumstances, be a retrial was left over until after the substantive issues were determined. I would, therefore, propose that the matter should be relisted to hear counsel on the question of whether Mr. C.’s acquittal should be quashed and a retrial ordered, or whether his acquittal should be affirmed on the basis that it would not be in the interests of justice, in the light of the maters specified in section 23(12), to order a retrial.
DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
J.C.
RESPONDENT
JUDGMENT of Mr. Justice John MacMenamin delivered the 15th day of April, 2015
Introduction
1. I agree with the judgments delivered by O’Donnell J. and Clarke J., on the second and main issue, but I would wish to add some brief observations of my own.
2. Two questions fall for determination in this appeal. The first relates to the jurisdiction of this Court to entertain an appeal pursuant to s.23 of the Criminal Procedure Act, 2010. This enactment provided for what is termed “with prejudice” appeals. The second, and main issue, for determination, assuming the Court has such jurisdiction, is as to the legal status of what is termed the “exclusionary rule”, as reformulated by this Court in DPP v. Kenny [1990] 2 I.R. 110. This arises in circumstances which are later described in this judgment. It is necessary first to consider the statute under which this appeal is brought.
Section 23 Criminal Procedure Act, 2010
3 Section 23 of the Criminal Procedure Act, 2010 provides, insofar as relevant (the key elements are emphasised):
“(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, if he or she is the prosecuting authority in the trial, or the Attorney General as may be appropriate, may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
…
(3) An appeal under this section shall lie only where –
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where –
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
…” (emphasis added)
4. Sub-section 11 of s.23 provides:
“(11) On hearing an appeal under this section the Supreme Court may –
(a) quash the acquittal or reverse the decision of the Court of Criminal Appeal, as the case may be, and order the person to be re-tried for the offence concerned if it is satisfied –
(i) that the requirements of subsection (3)(a) or (3)(b), as the case may be, are met, and
(ii) that, having regard to the matters referred to in subsection (12), it is, in all the circumstances, in the interests of justice to do so,
or
(b) if it is not so satisfied, affirm the acquittal or the decision of the Court of Criminal Appeal, as the case may be.
(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.
(13) (a) The Supreme Court may make an order for a re-trial under this section subject to such conditions and directions as it considers necessary or expedient (including conditions and directions in relation to the staying of the re-trial) to ensure the fairness of the re-trial.
(b) Subject to paragraph (a), where the Supreme Court makes an order for a re-trial under this section, the re-trial shall take place as soon as practicable.
(14) In this section “compelling evidence”, in relation to a person, means evidence which –
(a) is reliable,
(b) is of significant probative value, and
(c) is such that when taken together with all the other evidence adduced in the proceedings concerned, a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.” (emphasis added)
How is the Section to Operate?
5. Counsel for the Director submits that the matter falls within s.23(3)(a) of the Act. It is said a ruling was made which erroneously excluded “compelling evidence”. Clearly, parts of the section reflect thinking to be found in earlier sections of the 2010 Act, which seek to address a range of circumstances where, it is said, a retrial may be ordered. But these are in circumstances quite different from those which arise here (see sections 8 to 10 of the 2010 Act). The approach adopted in s.23 shows the problems inherent in a process of applying one legislative formula of words to a range of very divergent circumstances. In this appeal, perhaps fortuitously from the Director’s standpoint, there is no dispute in relation to the factual application of s.23(14) of the Act, in the circumstances accepted as pertaining here. On this basis, the Court has jurisdiction to entertain the appeal. By reference to s.23(14), therefore, it is accepted that the evidence, if admitted, would be “reliable”, of “significant probative value”, and would be such, that, when taken together with all the other evidence, might “reasonably” satisfy a jury “beyond a reasonable doubt” of J.C.’s guilt in respect of the offences. How the provisions would be applied in a case where these questions are in dispute is another matter. It is, presumably, intended to be a question for this Court to satisfy itself of these requirements. Each is fundamental to establishing jurisdiction. But it is not clear how such “compelling evidence” would be adduced, or assessed, before this Court; or how that necessary proof would be satisfied. The Act does not make clear whether there is to be any procedure for testing, or disputing, any of the three statutory requirements. The standard of proof for such determinations is unspecified, although, there is reference, in the third aspect, to the requirement of “reasonable doubt”. A consideration of the provisions of the section might suggest that, in order to vest itself with jurisdiction, this Court might have to place itself in the position of a trier of fact, so as to satisfy itself of these proofs. Apparently, the statutory compliance with such requirements is not intended to be a matter for a trial court. How is it intended that this Court should engage in these activities and upon what evidential material? This is a Court of Final Appeal, not a court of first instance. Trial courts are well equipped for the determination of such matters. How this Court would approach the issues, were they in dispute, is not clear. As the Act now stands, I do not believe these questions allow for ready, or easy, answers. I address now s.34 of the Criminal Procedures Act, 1967, as amended, for comparison purposes.
A Contrast with Section 34 of the Criminal Procedure Act, 1967, as amended
6. By virtue of s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006, the law provides:
“Where a person tried on indictment is acquitted … the Director of Public Prosecutions may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court for determination.” (emphasis added)
7. Sub-section 5 provides that:
“The Supreme Court shall ensure, in so far as it is reasonably practicable to do so, that the identity of the acquitted person in proceedings under this section is not disclosed in connection with the proceedings unless the person agrees to the use of his or her name in the proceedings.”
The Purpose of Section 23
8. In the light of this comparison, it is necessary then to further seek to construe section 23 of the 2010 Act. What precisely is its scope? A “question of law” arising during a trial may already be referred under the 1967 Act. The Oireachtas does not legislate in vain. Consequently, it must be taken as a given that s.23 has an intendment either different from, or broader than, that to be found in s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006. Is the intention to confer a review power in circumstances such as the present? I believe it must be. It seems to me then that, all other things being equal, and to avoid being an entirely superfluous provision, sections 23(1) and (3) of the 2010 Act require a broad interpretation. The legislative intendment, expressed in the section, must be assumed to encompass an “error” on a “point of law” arising during the trial. Thus, the 2010 Act must be taken as going at least as far as the predecessor Act. It is said here compelling evidence was excluded “erroneously” (s.23(3)(a)). In the present instance, it is contended that the “error” is as to whether the exclusionary rule, as enunciated in the Director of Public Prosecutions v. Kenny [1990] 2 I.R. 110 was correctly applied by the trial judge. If an inferior court applies a binding authority, which is then successfully challenged, can it be said the inferior court, albeit acting in good faith, “erred”? Adopting a broad and purposive interpretation, I believe it can. If it is found that a binding judgment was itself arrived at in error, then it appears to me that it can legitimately be said that the inferior court’s judgment, which hinged on the application of that authority, was also “erroneous”, as the legal principle relied on by that inferior court no longer forms part of the corpus of the law. I accept that this requires a broad interpretation of the word “erroneous” in the sense of “mistaken”. It must be accepted also that this interpretation hinges upon a finding that the decision of the inferior court was erroneous, by virtue of its application of the binding precedent now challenged. Thus far, I believe a broad interpretation is constitutionally legitimate, and is consonant with the provisions of the 1967 Act, as amended.
9. I accept, too, it might be said that the trial judge applied the exclusionary rule as she was bound to do. Consequently, adopting the more expansive interpretation in order to impart meaning, I conclude that what is intended must, at least, be to allow this Court, if necessary, to review prior judgments of this Court, with a view to considering whether such decisions require review or reconsideration. I do not deny that the section is infelicitously drafted. However, to my mind, the word “erroneously”, as it occurs in s.23(3)(a), may thus be understood in this broader sense. Only in this way does the section have meaning. Read in any other way, it would appear otiose, save for the retrial provisions, to which I now refer, and which, adopting a neutral terminology, may be described as “innovatory”.
A Reservation
10. Seen in isolation, the power of the review, already presaged by the 1967 Act, appears unexceptionable. In that context, therefore, I am prepared to impart an expansive interpretation to the word “erroneous”. A statutory provision must, so far as possible, be given a constitutional interpretation. It is the duty of the Court to seek to impart such an interpretation to the provision in question. If there is doubt, or ambiguity, the section should be interpreted and sought to be applied in a manner consistent with the Constitution. I am not persuaded that the Act demands that there should be a retrial, as the matter is forcefully expressed elsewhere. The position is, I think, governed by s.23(12), where it is provided that the duty of this Court is to consider whether it is likely any retrial can be conducted “fairly”. The term “fairly” clearly has constitutional resonances. The Court is also under a duty to consider “any other matter which it considers relevant to the appeal”. I do not, therefore, read the provision as having a mandatory effect. I would add that the constitutionality of s.23 of the 2010 Act, and the question of any consequential order made thereunder, has not, to my mind, arisen or been fully argued. This would only arise for determination on the delivery of these judgments. In my view, a power to review an error does not, ipso facto, necessitate a power to retry. I therefore confine myself to expressing reservations, but go no further, about the power, said to be contained in s.23(11)(a) and s.23(12) of the 2010 Act, to direct a retrial of an accused person on the same charges in circumstances such as these.
11. The position, so far as the accused man, Mr. C, is concerned, is that, prima facie, he was tried and acquitted, in due course of law. This is not a situation where, for example, the trial outcome was tainted, or subject to fraud. There is no ‘new’ compelling evidence. The question, then, is whether the accused should be exposed to a retrial in the event that it is found that the judge “erred” in the sense described above? In Green v. United States, 355 U.S. 184 [1957], the Supreme Court of the United States pronounced that the constitutional prohibition on double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offence. Black J. observed:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that, even though innocent, he may be found guilty.”
12. I do not preclude from consideration the hypothetical possibility of a new trial being ordered in certain of the circumstances outlined by the 2010 Act. Suffice it to say, however, I remain to be persuaded of the concrete situations where, by invocation of s.23 of the 2010 Act, an order for retrial might constitutionally be made. While not prejudging the issue, there are public interests in finality, in preventing the risk of wrongful conviction, in enforcing the need for efficient investigation, in obviating the risk of power imbalances, and avoiding hardship on an accused person. All these considerations may underlie the double jeopardy rule, as generally understood.
13. When a court is requested to address one fundamentally important constitutional issue, that is, (here), the exclusionary rule, it will be slow to implicitly accept, without sufficient deliberation, a further proposition which is no less important, and which would itself require extensive submissions and consideration. That ‘further proposition’ is the constitutional status of the principle of prohibition of double jeopardy, which precludes an accused being tried twice on the same offence. It is at least, arguable, that the same legal issue could have been considered by the simple invocation of s.34 of the 1967 Act, as amended. As the provisions of the 2010 Act, in their entirety, enjoy a presumption of constitutionality, I make no further comment.
Stare Decisis
14. As a preliminary to the second main issue, the following observations may be made. The Court is now asked to set aside DPP v. Kenny [1990] 2 I.R. 110, a decision of the full Supreme Court, given on a fully argued case. A decision of this Court is not lightly to be overruled, even if this Court might be inclined to have ruled otherwise (Mogul of Ireland v. Tipperary N.R. Co. Co. [1976] I.R. 260). However, error is not to be reinforced by repetition or affirmation.
15. This Court has, in the past, been prepared to overrule earlier decisions which are said to be at variance with fundamental constitutional principles (See generally Re Employment Equality Bill, 1996 [1997] 2 IR 321; the dissenting judgments of Keane and Denham JJ in S.P.U.C. Limited v. Grogan (No. 5) [1998] 4 I.R. 343; and the judgment of Keane J. in DPP v. Best [2000] 2 IR 17. In what is termed a “heavily footnoted dissent” in Burnet v. Coronado Oil & Gas Company, 285 US, 393, pp. 406 to 410 (1932), Justice Brandeis pithily observed (at pp. 406 to 408):
“But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. …”
16. He continued (at p 410):
“The reasons why this court should refuse to follow an earlier constitutional decision which it deems erroneous are particularly strong where the question presented is one of applying, as distinguished from what may accurately be called interpreting the Constitution. In the cases which now come before us there is seldom any dispute as to the interpretation of any provision. The controversy is usually over the application to existing conditions of some well-recognized constitutional limitation.”
17. These observations, albeit in dissent, are very much on point when what is in question (as here) is the application of constitutional rights. Time, context and attitudes are always relevant. The question, now, is whether there is available a better formulation of the exclusionary rule based on “better reasoning” or empirical experience? In fact, an example as to the manner in which the exclusionary rule can presently operate, lies before us in a concrete form on the facts of this case. The full circumstances are set out in other judgments.
18. There are clear arguments in favour of an exclusionary rule. But does such a rule create anomalies? And does experience now show that the balance of the anomalies outweigh the mischief the adoption of the exclusionary rule seeks to prevent? Are there now circumstances where the continuance of the rule is less warranted than at the time of its adoption?
19. Accepting that there is an issue of principle engaged here, it is not entirely irrelevant to that issue to point out that, during garda interviews, the accused apparently admitted involvement in the offence with which he was charged. The accused apparently admitted his involvement in the final three of six interviews. The Court has not been made aware of the circumstances in which these admissions were made. It was not, apparently, suggested during the trial voir dire, that there had been any garda misconduct in the sense of coercion or pressure in the conduct of interviews
20. Two further aspects of the facts are also peripherally relevant. First, it is arguable that the arrest in question would have been lawful had it been carried out in a public place. Second, it is also arguable that the gardai could have relied on s.4(2) of the Criminal Law Act, 1997 which could have permitted them to lawfully enter the house for the purpose of an arrest. It is only the fact that the arrest took place in a private dwelling that brings the facts into a different category. These factors are all, be it said, peripheral to, but not entirely extraneous, to the main issue arising on the facts of this case.
The Trial Judge’s Ruling
21. It is necessary only to briefly describe the circumstances of the case appealed. These are outlined in great detail in the other judgments. I gratefully adopt the description contained in O’Donnell J. and Clarke J.’s judgments. The judge heard legal submissions. She found that the entry into the premises for the purpose of the arrest was unlawful in accordance with the judgment of this Court in Damache. The Chief Superintendent had impermissibly issued the search warrant. The arresting member was, therefore, a trespasser on the premises. It followed immediately from this that the arrest was in breach of constitutional rights of the accused, in that, under Article 40.5 of the Constitution the dwelling of every citizen is inviolable and shall not be forcibly entered, save in accordance with law.
22. Applying the exclusionary rule, as it has been formulated, the trial court held that the fact that the arresting member believed he had lawful authority to enter the premises was not relevant, and held that there were no extraordinary excusing circumstances such as would allow the evidence arising from the arrest to be admitted. Thus, the court ruled all post-arrest evidence should be excluded. On the next day, the court was told, before the jury, that the prosecution, brought on behalf of the people of Ireland, had no evidence to offer on the charges. The judge directed the jury to find the accused not guilty on all six counts. The jury, therefore, had no role to play in the determination of guilt or innocence.
23. The question which arises, squarely, therefore, in this appeal, is whether, as presently applied, the principle of exclusion, as formulated in The People (DPP) v. Kenny [1990] 2 I.R. 110 is consistent with the prior judgments of this Court, and further, whether, in the sense outlined earlier, it was erroneous? Kenny, in its present formulation, is designed to promote good garda conduct and deter misconduct. If, hypothetically, an admission of guilt was, on the face of it, given in this case with full consent and without coercion, a number of questions arise. The first is whether the application of the Rule actually has the consequence of ‘promoting good conduct’ and ‘deterring misconduct’. Can it be said these considerations arise? Did the trial judge’s decision actually promote “good conduct” or deter “misconduct”? If they do not arise, how then is the rationale of Kenny to be assessed? The second question lies at the heart of this appeal: accepting the respect properly due to the eminence of the majority who pronounced and concurred in that judgment, can it be said that Kenny was correctly decided? Two of the rationales advanced for an exclusionary rule are first that it is better to let the guilty go free from time to time, rather than the innocent be wrongly convicted, and second that a judiciary lend itself to ignoble means adopted by the State’s agents used to achieve a conviction. Can it now be said that these considerations now provide a sufficient continuing basis for the retention of the rule?
Some Observations on the Process of Review
24. It cannot be denied that, in the past, this Court has, on occasion, engaged in the determination of what are matters of “judicial policy”. The judgment of this Court in Kenny is, in fact, one such decision. Its provenance can be traced back to an observation in The People (AG) v. O’Brien [1965] I.R. 142 at p. 169 where Walsh J. pointed out:
“If a stage should be reached where this Court was compelled to come to the conclusion that the ordinary law and police disciplinary measures have failed to secure compliance by the police with the law, then it would be preferable that a rule of absolute exclusion should be formulated rather than that every trial judge, when the occasion arises, should also be asked to adjudicate upon the question of whether the public good requires the accused should go free without full trial rather than that the police should be permitted the fruits of the success of their lawless ventures. Apart from the anomalies which might be produced by the many varying ways in which that discretion could be exercised by individual judges, the lamentable state of affairs which would call for such a change in the existing law of evidence would certainly justify absolute exclusion rather than a rule which might appear to lend itself to expediency rather than to principle.” (emphasis added)
What is noteworthy is that Walsh J. specifically countenanced the possibility of a “change in the existing law of evidence”. Such a process is by no means unique. The second question, no less vital, is whether the choice, now, can truly be said to be between “expediency” and “principle”. A third question, addressed in this and other judgments, is whether the choice is so stark as it is sometimes portrayed?
25. In the last two decades, this Court has developed elsewhere an important supervisory jurisprudence, as to whether it was just to allow prosecutions to continue in exceptional cases, where the court considered it necessary, in the interests of justice, to stay such proceedings. Such circumstances arose with regard to the garda conduct of investigations, specifically in the areas of lost or missing evidence, or in the category of long delays in the prosecution of sexual offences. The Court has, too, significantly extended the right of a suspect to have access to a solicitor, even during garda interviews. The fact that these steps were sometimes characterised as a “development” or “review” of the law, did not detract from their legitimacy. But what occurred in each instance were, undoubtedly, significant reformulations of the investigatory duties of members of An Garda Siochana; significant recalibrations of the decision making role in bringing prosecutions of “old” cases; and a broadening of the right of access to legal advice to persons in custody. These arose in the context of balancing constitutional rights.
26. Here the Court is asked again to “formulate” better principles upon which evidence is excluded at a criminal trial. We are asked to rebalance the weighting of the constitutional issues at stake in a manner significantly less radical than that embarked on by the adoption of the exclusionary rule. What is at issue is not, to my mind, a collision of “opposites” but rather part of a process of recalibration. As can be seen from Clarke J.’s judgment herein, the reformulation, now proposed, owes much to the considerations which underlay DPP v. Kenny [1990] 2 I.R. 110, specifically the protection of the suspect. It does not propose reversion to The People (A.G.) v. O’Brien [1965] I.R. 142. The majority of the Court does not here seek to adopt a view diametrically opposed to established precedent, but rather to arrive at a formulation, so as to establish a rule which operates proportionately, fairly, and having regard to each of the constitutional rights and duties which are at play. It is self-evidently not a rule of expediency. It is not a purely inductive rule driven by the exigencies of one case. It seeks to protect the rights of the suspect, and to deter police misconduct. I agree fully with the approach on the issue suggested in Clarke J.’s judgment. It is not useful to paraphrase that approach so as to achieve the maximum clarity. The role which the Court is asked to perform is undoubtedly one which falls within the judicial domain. The question is whether the principle, as presently identified, correctly balances the constitutional interests involved?
27. A rule of evidence may be subject to the same process of analysis and scrutiny as occurs frequently in the development of the common law. Ultimately, the justice of the principle, as expressed, must be tested empirically. We are not dealing here with a principle which is purely abstract. A significant aspect of the concerns, both in support, and in opposition to, the rule, shows the importance of context, and an assessment of police conduct in investigations. The choice is sometimes characterised as lying between two principles, which are described as “protection of the suspect”, and, on the other hand, a “negative deterrence of police misconduct”. In DPP v. Kenny [1990] 2 I.R. 110, as will be seen, in adopting the exclusionary rule, as therein formulated, the majority of this Court sought to couple both that negative deterrent with a positive encouragement to induce gardai to uphold the law. But, in the present judgments, the majority of this Court does not reject these considerations as being inconsistent with a recalibration, but rather seeks to identify a harmonious process, giving due recognition to the rights of protection, the duty of deterrence, and the considerations of public policy, and the rights of all citizens.
28. The issue is to be determined by asking whether it is better to “leave well alone”, or whether a different approach would be adopted, having regard to the rights to be found, not just in Article 40.3.1, but elsewhere in the Constitution also. In Kenny, this Court laid specific emphasis on Article 40.3.1, which provides:
“3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.”
29. The judgment focused upon the protection of personal rights of the suspect. But, as DPP v. Kenny [1990] 2 I.R. 110 shows, the exclusionary principle therein is not itself an absolute, but rather allows a court to determine where “extraordinary excusing circumstances” may apply so as to excuse the breach of the suspect’s Article 40.3.1 rights. We are assessing questions of degree.
30. The question, to my mind, is the extent to which, if at all, the common good, other interests of justice, and specifically Article 40.3.2 should be weighed in the balance. Article 40.3.2 provides:
2° The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
This provision is considered later in this judgment.
The Evolution of the Rule
31. For the purposes of this concurring judgment, it is necessary only to briefly, and selectively, for the purposes of illustration, touch on certain points in the organic evolution of the present exclusionary rule. The point of the analysis which follows is to show that, in the law of evidence, there has been an evolutionary continuum. The rules of evidence have undergone an organic development over the past 60 years from the days when the Constitution had little or no role in the determination of admissibility of evidence to a time when it is, properly, an over-arching consideration. The decision which the Court delivers herein is merely the latest phase in the development of a constitutional process. There is no iron law which dictates that all processes of recalibration must necessarily and always move in one direction, when there are sufficient reasons for adjustment in the interests of justice. This in no way derogates from the principle that the public are entitled, under the Constitution, to a fair trial procedure in which the rights of the accused are fully vindicated.
The People (A.G.) v. McGrath (1960) I.L.T.R. 59
32. Prior to 1960, the law of evidence closely replicated its common law antecedents, permitting a near all-encompassing rule of inclusion (see Karuma v. R [1955] AC 197). In The People (Attorney General) v. McGrath (1960) 99 I.L.T.R. 59, a divisional court of the High Court delivered a judgment which, it may be thought now, lay at the most distant end of the “protection” spectrum. In The People (Attorney General) v. McGrath (1960) 99 I.L.T.R. 59, Davitt P. quoted, with approval, Professor Wigmore’s strong dissent from the exclusionary rule, as it then stood in the United States. Wigmore observed that the judicial rules of evidence were never meant to be an indirect process of punishment of the police. It was not only anomalous to “distort” the rules to that end, Wigmore wrote, but improper to enlarge the fixed penalty of the law, that of fine or imprisonment, by adding to it the forfeiture of some civil rights through loss of the means of proving it. At trial, he suggested, the illegality of obtaining evidence was not condoned, it was merely ignored. Following this approach in The People (A.G.) v. McGrath, the Divisional High Court felt that the admissibility of evidence was not at all affected by the illegality of the means by which the party had been able to obtain that evidence. Davitt P. expressed the view that the court should not confuse the purposes of what he termed “substantive” and “adjectival” law. The first, substantive law regulated legal rights and determined what amounted to infringements. For such infringements the law provided a remedy. The law of evidence, on the other hand, was, to his mind, “adjectival”, and confirmed the rules which govern, as a procedure of the courts, matters of proof and as to what evidence may be accepted or rejected. The then President of the High Court expressed the view that the law was inappropriate for the purpose of remedying civil wrongs, or punishing civil offences by police. Since it could not deal with these matters directly, or fully, at the trial of an accused, it should not allow them to affect its application. This remarkably stark view was radically modified five years later by this Court in The People (A.G.) v. O’Brien [1965] I.R. 142. The rebalancing was undoubtedly in the interests of protecting the suspect, but, as will be seen, introduced a flexible principle which had regard to the circumstances of the case.
The People (A.G.) v. O’Brien [1965] I.R. 142
33. The facts of The People (Attorney General) v. O’Brien [1965] I.R. 142 are familiar. The accused was charged with receiving stolen clothing, which had been identified by the owners, as they were found in the course of a search by members of An Garda Siochana at 118 Captains Road in Crumlin. The search warrant obtained had stated the place to be searched was 118 Cashel Road, Crumlin. The gardai did not notice the mistake before going to the house to be searched. This Court held that as this mistake was pure oversight, and had not been noticed by any member of An Garda Siochana, the evidence should be admitted, absent any indication of illegality or mala fides, or bad faith.
34. The judgments in The People (A.G.) v. O’Brien [1965] I.R. 142 involve the balancing of constitutional rights, just as in DPP v. Kenny [1990] 2 I.R. 110, some 25 years later. The People (A.G.) v. O’Brien [1965] I.R. 142, therefore, no less than DPP v. Kenny [1990] 2 I.R. 110, is a constitutionally based judgment seeking to strike a balance between the values which are applicable. On the question of the admissibility of illegally obtained evidence, Kingsmill Moore J. identified three possible approaches; the first, that the evidence would always be admitted because its provenance in an illegal action could not cause it to be excluded, second, that such illegal acts should be ignored by the court as if they never existed, and third, that there should be a discretion vested in a trial judge to decide whether or not to admit illegally obtained evidence. Confessing that he was adopting an intermediate solution, to be found lying between desirable ends which might be regarded as incompatible, Kingsmill Moore J. considered that it was desirable in the public interest that crime should be detected and punished. It was also desirable that individuals should not be subjected to illegal or inquisitorial methods of investigation. Thus, the State should not attempt to advance its ends by utilising the fruits of such methods. Having pointed out that a determination as to admissibility should be ascertained, having regard to all the circumstances, he observed (The People (A.G.) v. O’Brien [1965] I.R. 142 at p. 160):
“On the one hand, the nature and extent of the illegality have to be taken into account. Was the illegal action intentional or unintentional, and, if intentional, was it the result of an ad hoc decision or does it represent a settled or deliberate policy? Was the illegality one of a trivial and technical nature or was it a serious invasion of important rights the recurrence of which would involve a real danger to necessary freedoms? Were there circumstances of urgency or emergency which provide some excuse for the action?”
Having considered the possibility of police actions amounting to a trick, which he considered might be acceptable, provided there was no illegality, Kingsmill Moore J. stated at p. 160:
“I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime. The nature of the crime which is being investigated may also have to be taken into account.”
He concluded at p. 161:
“It would not be in accordance with our system of jurisprudence for this Court to attempt to lay down rules to govern future hypothetical cases. We can do no more than decide the case now before us, and to lay down that, in future cases, the presiding judge has a discretion to exclude evidence of facts ascertained by illegal means where it appears to him that public policy, based on a balancing of public interests, requires such exclusion. If he decides to admit the evidence an appeal against his decision should lie to a superior Court which will decide the question according to its own views and will not be bound to affirm the decision of the trial judge if it disagrees with the manner in which the discretion has been exercised, even if it does not appear that such discretion was exercised on wrong principles. …”
35. In The People (A.G.) v. O’Brien [1965] I.R. 142, Kingsmill Moore J. expressed his agreement with Walsh J.’s judgment to the effect that, in the event that evidence had been obtained by the State, as a result of a deliberate and conscious violation of the constitutional (as opposed to the common law) rights of an accused person, it should be excluded, unless there were extraordinary excusing circumstances, such as the prevention of the imminent destruction of vital evidence, the need to rescue a crime victim in peril, or where evidence was seized incidental to a lawful arrest, but where the premises had been entered without a search warrant.
36. There can be no doubt that Walsh J.’s language in The People (A.G.) v. O’Brien [1965] I.R. 142 laid a different emphasis on the principle of protecting the rights of the suspect. He wrote to this effect at p. 170:
“The vindication and the protection of constitutional rights is a fundamental matter for all Courts established under the Constitution. That duty cannot yield place to any other competing interest. In Article 40 of the Constitution, the State has undertaken to defend and vindicate the inviolability of the dwelling of every citizen. The defence and vindication of the constitutional rights of the citizen is a duty superior to that of trying such citizen for a criminal offence. The Courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agents as a result of a deliberate and conscious violation of the constitutional rights of the accused person where no extraordinary excusing circumstances exist, …”
37. However, as Walsh J. pointed out in The People (A.G.) v. O’Brien [1965] I.R. 142, there had been no deliberate or conscious violation of the appellant’s right in that case. This was true, even in the circumstance that what was in question was the search of a dwelling house. What had occurred was “an error that the wrong address appeared on the search warrant and that the searching officers were unaware of the error” (The People (A.G.) v. O’Brien [1965] I.R. 142 at 170). This was neither, therefore, a “deliberate nor conscious” act.
38. It must be frankly accepted that in the three decades following The People (A.G.) v. O’Brien [1965] I.R. 142 the courts were called on more than one occasion to address situations where there was strong evidence that the constitutional rights of suspects in custody were imperilled by the consequences of serious garda misconduct. Much of the analysis during this period focused on the meaning of the terms “deliberate and conscious” violation of constitutional rights. I take the view that both these terms are matters of fact going to the state of mind of the actor. I do not consider they can be terms of art. They cannot be so characterised. Other judges took a different view, and the historical background forms an inescapable part of the explanation, chronology and narrative. The instances of garda misconduct lay behind the manner in which the terms “deliberate” and “conscious” were ultimately held to be understood. The courts have had to address allegations of police misconduct which, unfortunately, occurred in various categories of investigation, took various forms, and which, in the absence of designated custody officers, proper supervision, surveillance, monitoring and video taping in garda stations, and proper access to legal and medical advice were not always susceptible to proper sanction.
The People (DPP) v. Madden [1977] I.R. 336
39. In the years following The People (A.G.) v. O’Brien [1965] I.R. 142, therefore, the Court moved toward a “modified” rule of exclusion so as to impute a duty to members of An Garda Siochana. In The People (DPP) v. Madden [1977] I.R. 336, this Court held that there was a positive duty on members of An Garda Siochana to vindicate the constitutional rights of all citizens, including suspects. O’Higgins C.J., at p.347, observed that the lack of regard for, and failure to vindicate, the defendant’s constitutional right to liberty, even though it may not have induced or brought about the making of an incriminating statement, were, nonetheless, in that case “the dominating circumstances surrounding its making”; and that this fact could not be ignored.
40. Nonetheless, as a result of The People (A.G.) v. O’Brien [1965] I.R. 142, the principle generally applied, up to The People (DPP) v. Madden [1977] I.R. 336, was that mistake or error might be excused, and evidence admitted, if there was no conscious violation of any constitutional right. The fact that an act consequential to the illegality, such as entering a premises, was intentional did not alter the situation. Thus, the fact that an omission of a statutory foundation for the issuing of a search warrant might have occurred as a pure oversight, was taken into account, but absent any evidence of deliberate deceit or illegality, or some policy to disregard the provisions of the Constitution, or to conduct searches without a warrant, the evidence was admissible, in circumstances, such as the need to prevent the imminent destruction of vital evidence (see The People (DPP) v. Lawless, Court of Criminal Appeal, 28th November, 1985) In DPP v. McMahon & Others [1986] I.R. 393, in circumstances where gardai entered as trespassers a public house for the purposes of investigation of unlawful gaming machines without identifying themselves, or stating their purpose, and this Court held that “evidence obtained by illegal means not involving conscious and deliberate violation of constitutional rights shall be admissible unless the court, in its discretion, excludes it” per Finlay C.J. at page 399). In so holding the then Chief Justice made specific reference to Kingsmill Moore J.’s judgment in O’Brien.
DPP v. Shaw [1982] I.R. 1
41. In DPP v. Shaw [1982] I.R.1, where the majority and minority of this Court arrived at the same conclusion as to admissibility of evidence, but by different reasoning, Griffin J., speaking for the majority, held that the term “deliberate and conscious” was to be seen in the context of the violation of the rights of the accused, rather than the acts of the gardai. On this basis, therefore, evidence would only be excluded at trial where it was shown that the members of An Garda Siochana knew that they were breaching the rights of the suspect, and nonetheless continued to act in this way. In a clear harbinger for the future, Walsh J., then in the minority, held that the test was whether the action of a garda had been carried out deliberately and consciously, even if the policeman was not aware that the impugned conduct, or his actions, amounted to a breach of constitutional rights. But, he held, the garda concern for protecting the life of a victim of crime would provide extraordinary excusing circumstances for admitting the appellant’s statements into evidence.
DPP v. Kenny [1990] 2 I.R. 110
42. This necessarily selective narrative describing the formulation and application of the principles of admissibility leads us then to The People (DPP) v. Kenny [1990] 2 I.R. 110, where this Court held, by a majority of three to two, that it was immaterial whether a member of An Garda Siochana, was, or was not, aware that what he was doing was in breach of the constitutional rights of the accused.
43. Some analysis of the facts providing the background for DPP v. Kenny [1990] 1 I.R. 110is necessary. The appellant’s flat was searched by Garda Conway, pursuant to a search warrant issued under s.26 of the Misuse of Drugs Act, 1977. Samples of heroin were found. In his application for a search warrant, a Garda Conway had sworn an information before a Peace Commissioner which deposed that:
“… I suspect, on the basis of information within my possession, that (a) a person is in possession on the premises … of a controlled drug, namely, Diamorphine or cannabis resin … I hereby apply for a warrant to search for and seize the articles named above.”
The warrant to search stated, inter alia:
“Whereas I, the undersigned Peace Commissioner, being satisfied on the information on oath of Garda C …”.
However, as the judgments of the Court of Criminal Appeal confirm, there was no evidence before the trial court that any enquiry had been made by the Peace Commissioner as to the basis of the garda suspicion. The admissibility of Garda Conway’s evidence concerning the search turned on the validity of the search warrant.
44. It is beyond question that the procedure in obtaining a warrant adopted was a common-place one. The trial judge held that the warrant had been validly issued by the Peace Commissioner, and admitted the evidence as to the search. That ruling was the sole issue in the appeal.
The Court of Criminal Appeal in DPP v. Kenny [1990] 2 I.R. 110
45. On behalf of the applicant/appellant it was submitted to the Court of Criminal Appeal that the search warrant had been invalid and inadmissible, because it did no more than state that Garda Conway held a “suspicion”. It did not state the information that formed the basis of that suspicion. It was further submitted that no evidence had been led at the trial as to any further information which Garda Conway had put before the Peace Commissioner. In the first of two judgments delivered in the appeal, the Court of Criminal Appeal (McCarthy, O’Hanlon and Lardner JJ) held that the warrant was invalid, because there was no evidence that the Peace Commissioner had enquired into the basis of the garda suspicion. Accordingly, he had failed to exercise his judicial discretion and had failed to carry out his function under the Act. In so finding, the court relied on the judgment of Byrne v. Grey [1988] I.R. 31 (DPP v. Kenny [1990] 2 I.R. 110), a judgment delivered by the High Court three years after the search warrant in DPP v. Kenny [1990] 2 I.R. 110 was obtained.
46. The court required further argument as to whether or not the deliberate and conscious act forcing admission into the appellant’s home was a violation of his constitutional rights, with the results that the fruits of the search were inadmissible in evidence. The second judgment of the court was delivered by O’Hanlon J. The court decided ultimately that the evidence was admissible. It held that while the procedure for obtaining a search warrant had been found to be invalid, and that the consequent entry on the premises was unlawful, there had been no deliberate or conscious violation of the appellant’s constitutional rights. Garda Conway had taken all steps believed to have been necessary for obtaining a search warrant; it had been issued by the Peace commissioner on the basis that there was compliance with the requirements of the Misuse of Drugs Act, 1977. The court held that the admissibility of the evidence obtained on foot of the invalid search warrant was a matter for the discretion of the court of trial. In so holding, the Court applied The People (AG) v. O’Brien [1965] I.R. 142; The People v. Madden [1977] I.R. 226; The People v. Farrell [1978] I.R. 13; The People v. O’Loughlin [1979] I.R. 85; The People v. Walsh [1980] I.R. 295; The State (Quinn) v. Ryan [1965] I.R. 70, and the United States v. Leon, 468, U.S. 897.
47. Applying a “state of mind” test, the court held that the concept of “extraordinary excusing circumstances” had only to be considered when the court was of the view that a deliberate and conscious violation of constitutional rights had taken place; otherwise the admissibility of the evidence was a matter for a trial court’s discretion. The court, therefore, did not follow the dicta of Walsh J. in The People v. Walsh [1980] I.R. 295, at page 317, and The People v. Shaw [1982] I.R. 1, at page 32.
48. A number of passages from the judgments of the Court of Criminal Appeal are noteworthy. The first is from the judgment of McCarthy J. pronounced at conclusion of the first hearing. Speaking for the Court, he held (DPP v. Kenny [1990] 2 I.R. 110 at p. 117):
“In these circumstances, the Court is of opinion that the search warrant was invalid and that, accordingly, the evidence as to the search and the statement of the applicant at the time was admitted on an incorrect basis. That does not conclude the matter. Garda Conway believed the warrant to be valid. He had every reason to do so. His good faith was not in question, but having regard to the run of the case the question did not arise as to whether or not the deliberate and conscious act of forcing admission into the appellant’s home was a violation of his constitutional rights with the result that the fruits of search consequent on such breach were inadmissible in evidence.” (emphasis added)
Two inescapable points arise from these findings by the Court of Criminal Appeal. The first was that Garda Conway believed the warrant to be valid, and had every reason to so believe. The second (related) finding was that his good faith was not in question. In the light of these specific findings as to his state of mind, can it be tenably concluded that what was in question in the appeal to this Court was a “deliberate and conscious” violation of a constitutional right?
49. In the second judgment of the Court, O’Hanlon J. made a specific finding that the circumstances were “not one of deliberate and conscious violation, but of a purely accidental and unintentional infringement of the Constitution”. Then, speaking for the court, he stated at p. 119:
“In such cases, as Mr. Justice Walsh indicates, the evidence normally should not be excluded. …”
Here O’Hanlon J. was referring back to a passage from Walsh J.’s judgment in The People (A.G.) v. O’Brien [1965] I.R. 142 at pp 168 to 169) where he observed:
“In my judgment the law in this country has been that the evidence in this particular case is not rendered inadmissible and that there is no discretion to rule it out by reason only of the fact that it was obtained by means of an illegal as distinct from an unconstitutional seizure. Members of the police make illegal searches and seizures at their peril and render themselves liable to the law of tort and in many instances also to the criminal law. In my view it would properly be within the province of a Court which learns in the course of a trial that evidence proffered has been obtained as a result of an illegal search and seizure, whether on the property of the accused or any other person, knowingly and deliberately carried out by the police, to publicly draw attention to that fact and in that, though perhaps remote, way effectually to control the actions of the police. But to render the evidence inadmissible on that account only and for the purpose of controlling the police would be to prefer the latter purpose to the competing but primary one of conducting a fair trial.”
50. The Court of Criminal Appeal (O’Hanlon J.), referred to a passage from The People v. O’Loughlin [1979] I.R. 85 at p. 91, where O’Higgins C.J. had explicitly found that the gardai had held a witness for many hours in circumstances which in O’Hanlon J.’s words:
“… could not have been due to either inadvertence or oversight. It was done by experienced Garda officers who must have had a special knowledge of citizens’ rights in such circumstances. It would only have been the result of a deliberate decision by these officers who were aware of the applicant’s rights. These rights were disregarded and swept aside because of the concern to continue the investigation into cattle-stealing. This was not such a special circumstance … as could excuse the violation of constitutional rights which took place.” (emphasis added)
51. Later, O’Hanlon J. said at p.123:
“Where, however, what has taken place should not be regarded as a deliberate and conscious violation of the constitutional rights of the accused, then the question of the admissibility of the evidence can be considered as a matter of the court’s discretion without having to consider whether “extraordinary excusing circumstances” existed.” (emphasis added)
To my mind, the findings, as to Garda Conway’s state of mind, and the Peace Commissioner’s conduct, were of fact. I am unable to find any basis for any alternative finding or characterisation.
The Question of Intentionality
52. It is clear that gardai who forcibly entered the house in question at No. 1 Belgrave Place in Rathmines, did so having obtained a warrant which was obtained from a Peace Commissioner in accordance with the procedure which was, at the time, lawful. However, there was no evidence that the Peace Commissioner, before the information was sworn, enquired into the basis of the garda suspicion. Thus, the Court of Criminal Appeal held that the Peace Commissioner had failed to exercise judicial discretion, and therefore failed to carry out his function under s.26(1) of the Misuse of Drugs Act, 1977/84. The offence was alleged to have taken place on the 2nd October, 1984, when a member of An Garda Siochana, armed with a search warrant dated the 29th September, 1984, forced entry into the flat, finding samples of heroin and other incriminating material.
53. But it was three years later by the time the High Court delivered judgment in Byrne v. Grey [1988] I.R. 31 at p. 38. Byrne v. Grey determined that it would be necessary for a Peace Commissioner to exercise a judicial discretion when being “satisfied” that there was sufficient basis for issuing a search warrant. In the second Court of Criminal Appeal judgment (O’Hanlon J.) posed the following weighty and significant rhetorical questions:
“Can it be said that Garda Conway was guilty of deliberate and conscious violation of the constitutional rights of the appellant, by reason of his failure to anticipate the decision of the High Court in Byrne v. Grey delivered on the 9th October, 1987, and of this Court delivered on the 15th June, 1989? And if so, can the peace commissioner who issued the search warrant, in common with the other District Justices and peace commissioners who have acted on the faith of similar informations on oath since the enactment of the Act of 1977, also be regarded as having been parties to deliberate and conscious violation of the constitutional rights of the persons whose homes were entered in reliance upon warrants which must now be regarded as invalid?”
These were pre-eminently questions of fact. Insofar as they were, I infer they allowed only for one answer on the evidence. O’Hanlon J. later quoted Justice White’s opinion in the United States v. Leon [1983] 468 897, who expressed himself in the following terms, on the then extant United States exclusionary rule:
“… The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. “Our cases have consistently recognised that unbending application of the exclusionary sanction to enforce ideals of governmental rectitude would impede unacceptably the truth-finding functions of judge and jury. United States v. Payner 447 U.S. 727, 734 (1980). An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favourable plea bargains. Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty defendants offends basic concepts of the criminal justice system. Stone v. Powell 428 U.S. at 490. Indiscriminate application of the exclusionary rule, therefore, may well “generate disrespect for the law and administration of justice.” Id., at 491. Accordingly, as with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served. …
First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate …
We conclude that the marginal or non existent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” (The law in the United States has since further evolved, most recently Herring v. United States [2009] 555 U.S.; Davis v. United States [2011] 131 S. Ct. 2419).”
54. The Court of Criminal Appeal held, therefore, that there had been no “deliberate or conscious violation of the constitutional rights of the appellant”. This holding could only have been based on the fact that Garda Conway, applying the law as it stood, had taken all steps believe to be necessary and appropriate for obtaining a valid search warrant.
55. On application of counsel for the appellant, the Court of Criminal Appeal certified on these facts that the decision involved a point of law of exceptional public importance, and it was desirable in the public interest that an appeal be taken to this Court. The court, therefore, granted a certificate, pursuant to s.29 of the Courts of Justice Act, 1924. The point of law so certified was whether the forcible entry of the appellant’s home by members of An Garda Siochana, on foot of an invalid search warrant, constituted a deliberate and conscious violation of the appellant’s constitutional rights, such as to render any evidence obtained by the said members, in the course of the ensuing search, inadmissible at the appellant’s trial.
The Decision of this Court in Kenny
56. The principles identified in the earlier judgments referred to herein were reformulated in The People (DPP) v. Kenny [1992] 2 I.R. 110 It is of fundamental importance that The People (DPP) v. Kenny [1992] 2 I.R. 110 be contextualised. One cannot put out of one’s mind the respect due to judicial eminence of those who formed the majority. One cannot exclude from consideration either, why, inferentially, Walsh J.’s warning in The People (A.G.) v. O’Brien [1965] I.R. 142 now came to crystallisation. The context and motivation has been described earlier in this judgment. This Court, therefore, held, by a majority of three to two, that it was immaterial whether the police, or a member of An Garda Siochana, was, or was not, aware that what he was doing was in breach of the constitutional rights of the accused. This departed from the earlier, The People (A.G.) v. O’Brien [1965] I.R. 142 line of authority, to the effect that a “conscious and deliberate” violation of a person’s constitutional rights required that the act of violation should be done deliberately, with a consciousness that the effect of it would be to unlawfully invade a person’s dwelling, or to deprive them of liberty. There can be no doubt that the majority of this Court were, by then, and for significant reasons, persuaded of the desirability of introducing what might be termed an absolute exclusionary rule. This majority (Finlay C.J., Walsh, Hederman, JJ) were plainly persuaded that the hypothetical and “malign” scenario, as to police misconduct, as envisioned by Walsh J. in O’Brien, had become reality, and thus a more rigorous rule should be formulated.
57. Speaking for the majority, Finlay C.J. reasoned that the duty of the court, pursuant to Article 40, s.3, sub-section 1 of the Constitution, was so far as practicable, to defend and vindicate constitutional rights. He held that as between two alternative rules or principles, governing the exclusion of evidence obtained as a result of the invasion of the personal rights of a citizen, the court had an obligation to choose the principle which is likely to provide a stronger and more effective defence, and vindication of the right concerned. He stated at pp. 133 to 134:
“To exclude only evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional.
To apply, on the other hand, the absolute protection rule of exclusion whilst providing also that negative deterrent, incorporates as well a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizens as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights.
It seems to me to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than is a principle with negative consequences only.
The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other exclusionary rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the courts to arrive at the truth and so most effectively to administer justice.
I appreciate the anomalies which may occur by reason of the application of the absolute protection rule to criminal cases.
The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot, however, in my view, outweigh the unambiguously expressed constitutional obligation “as far as practicable to defend and vindicate the personal rights of the citizen.””
A statement of high constitutional principle put in this way, and in its context, is not easily to be ignored or discarded.
There is, however, one passage in the judgment of the majority which is troubling. There, Finlay C.J. observed at p. 134:
“After very careful consideration I conclude that I must differ from the view of the majority of this Court expressed in the judgment of Griffin J. in The People v. Shaw [1982] I.R. 1. I am satisfied that the correct principle is that evidence obtained by invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied that either the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in its (the court’s) discretion.” (emphasis added)
58. The judgment then holds, as a matter of fact, that neither of the two gardai concerned had any knowledge that they were invading the constitutional rights of the accused. Nonetheless, the Court then held the evidence obtained as a result of the forcible entry into the house should not have been admitted at the trial. Accepting that every judgment is to be read its entirety, I nonetheless confess to difficulty in reconciling the passage just quoted and emphasised with the rule which the decision in DPP v. Kenny [1990] 2 I.R. 110 sought to propound. Were the acts constituting the breach not committed unintentionally or accidentally? The Court of Criminal Appeal also held, as a fact, that they were both unintended and accidental. It is difficult to see on what facts any other conclusion could be arrived at, viewing these acts in isolation.
59. While there is no doubt that in DPP v. Kenny [1990] 2 I.R. 110 the actual entry of the dwelling house was neither “unintentional nor accidental”, nor can there be doubt that Garda Conway, and indeed the Peace Commissioner, had entirely in good faith, and in accordance with the law, as then understood. Having considered the form of information used before the Peace Commissioner, Lynch J., obviously speaking at a time well before the judgment of this Court in Damache v. DPP [2012] IESC 11, for the minority, observed in DPP v. Kenny [1990] 2 I.R. 110 at 142:
“The adoption of such an inadequate form of information by the gardai is a far cry from a deliberate intention to violate the appellant’s constitutional rights in relation to his dwelling and neither did it lead to any form of unfairness in the investigation or the trial.”
He continued:
“The inviolability of the citizen’s dwelling must be upheld but this does not mean that evidence obtained in breach of it must always be rejected however relevant it may be to the case at hearing. It must be rejected if there is any element of blame or culpability or unfairness (including any such element to be inferred by the reasonable application of the doctrine “ignorantia juris haud excusat “) in relation to the breach of the right on the part of those who obtained the evidence unless there are adequate excusing circumstances. In all cases heretofore, where evidence has been rejected, including the recent case of The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 there was manifest a deliberate disregard of the accused’s rights. Not only did the gardai deliberately do the acts complained of, but they did them knowing that they contravened the accused’s legal, if not his constitutional, rights. I take the view that if the gardai deliberately do acts which they know or ought to know contravene the accused’s legal rights, but not his constitutional rights, and if the rights are thereafter held to be constitutional rights, the exclusionary rule should apply, but there must be some such element of blame or culpability or unfairness to bring the exclusionary rule into operation.”
60. Seen from the perspective of today, can it now be said the State agents in DPP v. Kenny [1990] 2 I.R. 110 , acting bona fide, and in the prosecution of crime, and applying the law, as it was then understood, had acted in “deliberate and conscious” violation of the Constitution? I find difficulty with this proposition also. I believe the judgment of the majority erred.
61. I do not say that the more recent establishment of a wide range of institutions to protect the public against garda misconduct are, necessarily, and in themselves, a rationale for reformulating the principle as formulated in DPP v. Kenny [1990] 2 I.R. 110 . But what Walsh J. in The People (A.G.) v. O’Brien was calling for was, in modern day terms, the need for a change of police “culture”. It is true, of course, that to reformulate DPP v. Kenny [1990] 2 I.R. 110 runs the risk that all misconduct may be deemed excusable. But the duty of judges, under the Constitution, is to protect the proper administration of justice, including vindication of the rights of accused persons, properly so characterised, in the circumstances of the case. The constitutional imperative underlying that duty is no less in the event that the rule is reformulated. The logic of the present rule is that it can lead to the consequence that an inconsequential and unwitting error may lead to an “imputed”, deliberate and conscious breach of constitutional rights, rather than mere mistake or error. To my mind, such a consequence is disproportionate.
Kenny Overruled O’Brien in Effect
62. There can be no doubt that the deterrence principle is now a fundamental part of our law. It may be characterised as the underlying theme in Attorney General v. O’Brien [1965] I.R. 142, which DPP v. Kenny [1990] 2 I.R. 110 effectively overruled. I would observe here that the majority judgment in Kenny does not appear to refer to the principles identified by this Court in Mogul of Ireland v. Tipperary N.R. Co. Co. [1976] I.R. 260. This is to be seen as coupled with Walsh J.’s indication in O’Brien, referred to earlier, that it might be necessary to “change” the law. What is at issue here are matters of constitutional principle. This Court is entitled to review or to re-analyse such matters in the light of experience. I do not regard the omission of a reference to Mogul of Ireland v. Tipperary N.R. Co. Co. [1976] I.R. 260.as itself being an error, but rather a recognition that, in the context of constitutional rights, the Court is entitled to engage in a careful calibration of the balancing process, such as it did in DPP v. Kenny, and such as now occurs in the present case.
Deterrence and the Balance of Rights and Duties
63. The deterrence principle is both a “private” and a public good precept. It deters individual misconduct by protecting the suspect. It maintains a public good in a police force that operates under the rule of law. The rule, as at present formulated, vests in the suspect constitutional rights under Article 40.3.1 of the Constitution. The intent in such exclusion of evidence, unconstitutionally obtained, is to deter misconduct. But Article 40.3, seen across its entirety, does not ignore the rights of the citizen, or the public interest, or the common good. Moreover, Article 38 of the Constitution provides that no person shall be tried save in due course of law. A trial of serious offences is to be before a jury of citizens. Are these constitutional considerations presently placed in the balance of rights? The duty of a court, in all constitutional questions, is not to isolate, or focus on one constitutional consideration, but rather to arrive at an appropriate balance between the relevant rights and duties. The question which must now be faced is whether, at present, underlying the jurisprudence, there is a dichotomy leading to the fallacy of ignoring other relevant constitutional values, which the courts are also duty-bound to uphold. I do not believe Article 40.3.1 of the Constitution can be then isolated from Article 40.3.2. The inclusion of relevant constitutional considerations is not an approach of ‘expediency’; provided the values are maintained in accordance with the values outlined in the Constitution, including the judicial duty of upholding the law.
64. One of the rationales for an exclusionary rule is that it vindicates rights that cannot elsewhere be vindicated. Is this now true in this State? One cannot ignore that since DPP v. Kenny, in 1990, significant cultural changes have occurred, and attitudes to garda misconduct have certainly altered. Figures provided by the Department of Justice for the period 2002 to 2012 show that during that decade, many millions of Euro were paid out by the State in awards settlements and costs. The fact that this has taken place is hardly consistent with a climate where, at other times and in other jurisdictions, cases involving allegations of police misconduct routinely went un-investigated and civil actions were hard to prove in court before sometimes hostile juries. We are no longer living in a climate where there is no redress for police misconduct. Both branches of the legal profession, under a State funded system of legal aid, act consistently and competently to protect and vindicate the rights of suspects. Cases where challenges are made to competence of counsel are rare if not unknown. Some hundreds of complains are made to the Garda Siochana Ombudsman Commission each year. By contrast to the United States, the judiciary, the prosecution service and senior garda officers do not stand at five yearly intervals for elective office. The context in which DPP v. Kenny [1990] 2 I.R. 110 was pronounced has, too, changed significantly and constitutional statutory protections for suspects are now considerably greater.
65. It is said nonetheless, the absence of a strong exclusionary rule poses a threat to judicial integrity, and that courts may lead themselves to condoning misconduct if there are strong indications of guilt in the evidence irregularly obtained. But the task of a constitutional, independent, judiciary is to uphold the Constitution, including the rights of a suspect and an accused. The integrity of the prosecution and the trial process is fundamental. The interests of justice are surely not diminished by the reformulation of a constitutionally based balancing test, whereby all the constitutional rights engaged may be more properly balanced, having regard to the circumstances. The context in which the courts operate are very far removed from the circumstances pertaining when many of the earlier judgments of the Supreme Court of the United States, favouring a broad exclusionary rule, were pronounced. We no longer must make a Manichean choice between an exclusionary rule, on the one hand, and “no sanction at all” (per Murphy J. in Wolf v. Colorado 38 US 25, 31 [1949]). I do not accept, either, that the choice, now, can be characterised as one simply between “expediency” and “principle”.
66. It is necessary now to look at a number of specific issues. Put briefly, the questions now considered are, the extent to which DPP v. Kenny [1990] 2 I.R. 110 brought clarity in the law, whether it has brought anomalies, whether it has created an “elision” between illegality and unconstitutionality, and whether there is a degree of logical disconnect between the interests which are sought to be vindicated and, finally, whether the context changed.
Clarity
67. Insofar as it is said that DPP v. Kenny [1990] 2 I.R. 110 brought clarity, it may be questioned whether this is so always? In the People (DPP) v. Balfe [1998] 4 I.R. 50, Murphy J., speaking for the Court of Criminal Appeal, considered that the Kenny and O’Brien rules were mutually exclusive alternatives to one another. That court relied on O’Brien, holding that the principles enunciated in there were to be applied where a mistake was apparent on the face of a warrant; and Kenny was to be applied where a warrant was issued without lawful authority. The Court of Criminal Appeal did not address any subject, other than warrants, however, in its judgment. But the Court did not hold that O’Brien had been overruled by Kenny. Nor did the latter judgment explain why O’Brien might have been wrongly decided.
Anomalies
68. As the circumstances of the current appeal show, the range of application of Kenny is quite wide, and, in this case, apparently led to the out-ruling of evidence wherein, without any suggestion of garda misconduct, save in obtaining the warrant, the appellant admitted his guilt in statements.
69. In this appeal, no statistics have been adduced by either side, nor have case histories been cited to illustrate an over-prevalence of acquittals by direction, as a result of the Rule. It is strange that no such studies are apparently available. Now, with the benefit of hindsight, it is possible to identify a number of instances where, as presaged by Walsh J. in O’Brien, and Finlay C.J. in Kenny, the consequence of the application of the rule as formulated, has been to produce certain anomalies. In his judgment herein, O’Donnell J. considers a range of judgments in the Court of Criminal Appeal where the question of exclusionary rule has arisen. One or two further examples are apposite, only in that they illustrate the extent to which a breach, amounting to illegality, reflected through the prism of the rule, becomes magnified and is distorted, in effect, into “unconstitutionality”.
70. In Curtin v. Clerk of Dail Eireann [2006] IESC 14, one issue for consideration by this Court was the validity of the procedures decided on by the Oireachtas for the purpose of undertaking impeachment of a serving judge of the Circuit Court. In the prior criminal trial, the judge’s house had been searched under a warrant which, at the time of the search, had “just” expired by efflux of time (“just” here is used in the sense of “only just”). No garda apparently noticed this fact. The exploration of the judge’s computer taken in that search led to a charge being preferred against the judge for possession of images of child pornography. The trial judge in Curtin, however, bound by Kenny, was constrained to rule that the evidence taken in consequence of the search amounted to a “deliberate and conscious violation” of the accused’s constitutional right to the inviolability of his dwelling under Article 40.5 of the Constitution. There was no doubt that the expiration of the warrant, at a time very shortly before the search, was a simple error on the part of the garda officer. There was no evidence to suggest that anyone had adverted to in any way prior to the search. Even if they had, it would have been possible to apply for another warrant. This Court had no hesitation in pronouncing in its decision that the trial ruling did not immunise the material for all purposes. Whether the outcome enhanced public confidence in the rule, as formulated, might be open to question. When this Court ruled in favour of the Oireachtas Committee, it was on the basis that the trial ruling did not, in fact, render the material immune for all purposes. Public confidence in the law is a fundamental value, especially in terms of rapid social and economic change.
DPP v. Yamanoha
71. A further example of the elision between illegality and constitutionality is to be found in DPP v. Yamanoha [1994] 1 I.R. 565. The accused was detected by members of An Garda Siochana in possession of a very large quantity of cocaine, contrary to the Misuse of Drugs Act, 1977. She was found in a hotel room in Jurys Hotel (this treated for this purpose as “private dwelling”, and thereby protected under the Constitution) wrapping packages, consistent with having been strapped to her body coming through customs. The defect which was found to have occurred was that the Detective Sergeant who had come into confidential information and who was aware that surveillance had taken place by members of An Garda Siochana over a number of hours, provided this, and additional information to a Peace Commissioner, but omitted to swear that information on oath. The consequence was that the evidence was deemed to have been unconstitutionally obtained, in that the appellant’s right of privacy, in a hotel room, temporarily occupied by her, on payment of a charge, had been invaded, and was in breach of her rights of privacy and the inviolability of the dwelling guaranteed by the Constitution. Other such cases have arisen.
The Consequences
72. The consequence of the exclusionary rule has been that, in its application, an unintended mistake or “illegality” becomes elided with an imputed deliberate or conscious “unconstitutionality”. The action impugned was the “deliberate” entry to a dwelling. But there was no deliberate or conscious violation in that entry. There is, surely, a logical disconnection between a bona fide action taken (that of entry or arrest), and an imputed “disregarding” of constitutional rights. Can it be then said that there is proportionality between the protection of the right, and the remedy? I think these questions only allow for one answer; but the response must be measured and proportionate. What is necessary is a readjustment, but with the recognition that the protection of the rights of the suspect consideration must remain a constitutional duty for a trial judge.
In Whom Should Rights be Vested?
73. At the level of principle, it seems that as a consequence of the exclusionary rule, the proper public interest in the maintenance of an orderly public police force itself, subject to the rule of law, becomes a vested right in an accused person. That is, of course, the consequence of a deterrence principle. I do not criticise this consequence. But constitutional rights must be seen in the context of the range of other rights which are inherent in the process of protecting order in society. The rights, which are to be vindicated in a manner which is “as far as practicable”, are not simply those of the State and the accused, but rather encompass a broader range of interests and rights, including the right of the community to have crime prosecuted when offences have been committed, and the interests of victims of crime. An exclusionary rule broadly applied militates against these considerations being taken into account.
74. The history of events after the judgment in O’Brien is a complex one. I adhere to the observation of Brandeis J. quoted earlier, that if it transpires, on the basis of experience, that a rule which can produce lack of clarity, or dis-proportionality or anomalies, it is appropriate for this Court to review it. On balance, I think this is such an occasion.
Conclusion
75. The declaration on entering office for each judge is to execute the office without fear or favour or ill will. The duty of a judge is to uphold the Constitution and the laws with prior requirements in mind. The guarantee contained in Article 40.3 of the Constitution is to vindicate the personal rights of every citizen, as far as practicable. Under the Constitution justice is to be administered in courts established under the Constitution.
76. At other times, this Court has carefully segregated reprehensible conduct on the part of gardai, on the one hand, from the relief claimed on the other, that is, the extradition of the applicant. See Lynch v. Attorney General [2003] 3 IR 416. On balance, I think this process should be adopted in the present appeal.
77. A consequence of the adoption and application of the rule, as it stands, is disproportionate. It applies as much in the case of trivial and unintended infringements as in those more serious. It should not be said that there should be no exclusionary rule. But the phrase “deliberate and conscious”, as now applied, should not, and cannot, encompass steps properly taken on foot of Acts of the Oireachtas, or otherwise, in a bona fide, genuine, and well-founded belief as to their legality. The application of the rule, as it now operates, runs foul of the dictum of Murray C.J. in A v. Governor of Arbour Hill Prison [2006] 4 IR 88, to the effect that the application of the Constitution should not be distorted by focusing on one constitutional principle to the exclusion of all others. Finally, it may be said that the application of the exclusionary rule in our jurisdiction stands out from, and is not consistent with, the approach to the admissibility of unconstitutionally obtained evidence adopted in other common law jurisdictions, which also have written constitutional guarantees on inviolability of the dwelling, or like provisions. This is considered in other judgments of the majority.
78. The reputation and integrity of the system of justice should not be adversely affected by properly and faithfully applied good faith exception to the rule, constitutionally applied here, as in other jurisdictions. The bar set by the majority judgments herein is significantly higher than that to be found elsewhere in the common law world. It is in no way inconsistent with the ECHR (Schenk v Switzerland (1991) 13 EHRR 242). It redresses the balance so as to encompass community interests, while ensuring that egregious breaches of a suspect’s rights and police misconduct are checked. It restores meaning to the terms “deliberate and conscious” which have caused a lack of clarity in the law.
79. For these reasons, I would allow the appeal on this issue. As indicated earlier, however, I do so specifically in the context of constitutional application of s.23 to the extent it may be invoked in this application. I am satisfied that the requirements of s.23(3)(a) are met. I am unaware, at present, of circumstances in this case in which a retrial might be ordered, but will await submissions on the question. As the constitutionality of the “retrial” provision has not been fully argued I go no further.
THE PEOPLE AT THE SUIT OF DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
J.C.
RESPONDENT
JUDGMENT of Mr. Justice John Murray delivered the 15th day of April, 2015
Introduction
1. Justice Owen Roberts of the United States Supreme Court warned that the then stance of his court in overturning contemporary constitutional precedent tended “to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance … that the opinion announced today may not be shortly repudiated and overruled by justices who deem they have new light on the subject”. (Smyth v. Allwright, 321, U.S. 649, 669 [1944]).
2. This statement has a resonance in the present case, even if from a different perspective. In this case the respondent and his counsel relied at the trial in which he was acquitted on the law as laid down by this Court in DPP v. Kenny concerning the exclusion of evidence obtained in breach of the accused’s constitutional rights. Under our constitutional structure the Supreme Court is the final interpreter of the law, statutes and the Constitution. Citizens rely on such definitive statements or interpretations of the law. That is what the respondent did in this case in the conduct of his, successful, defence to the charges against him. The trial judge relied and applied the law precisely as the Supreme Court said she should. She was bound to do so. At the trial the DPP did not take issue with the correctness of her decision, and accepts in this appeal, as she was bound to do so, that the trial judge applied the law correctly and as she was bound to apply it during the trial.
3. A consequence of a successful appeal by the DPP in this case means that the established law, or if you like the ticket, on which the accused relied upon in this case, may have lasted the day but it is to be deemed, retrospectively, not even valid for the journey, since the prosecution seeks to obliterate the fact that the accused’s destination, an acquittal in a jury trial, was reached in accordance with that established law at the trial, and to return the respondent to the starting point of his journey in a new trial, with a new ticket with new restrictive conditions imposed retrospectively. This is the consequence of the DPP relying successfully on s.23 of the Criminal Procedure Act, 2010 by characterising the ruling of the trial judge in this case as retrospectively “erroneous”, because the majority of the Court today considers that the rule in the Kenny case should have a different ‘calibration’. Overruling established law, as set out in The People v. Kenny, of this Court is only incidental to that consequence.
4. A citizen who is tried and acquitted on a criminal charge tried before a judge and jury in accordance with established principles of law, which the trial judge applied and was bound to apply, could well expect that he could not be tried again for the same offence, least of all because the trial judge made an allegedly “erroneous” ruling on the law in the course of the trial. Yet this is what the DPP argued the Oireachtas intended to happen.
5. Such a citizen might be reinforced in that expectation (and perhaps have a sense of frustration and even bitterness) because at his or her trial the People, in whose name the prosecution is brought by the DPP, accepted and approved of the trial judge’s ruling in law, and that it was one which the trial judge was bound to make. Yet the DPP argues in this case says that such a ruling by a trial judge may nonetheless be retrospectively characterised as “erroneous” and thus expose a citizen to being tried again for the same offence.
6. It is one thing for the prosecution to have a right of appeal where a trial judge, in making a ruling at a trial on the admissibility of evidence, acted erroneously where it is claimed that the trial judge during a trial misinterpreted or misapplied the applicable law.
7. It is altogether another matter when the trial judge has correctly applied the applicable law at the trial. This is what makes this case special.
8. The entitlement of the DPP to appeal against an acquittal, a verdict of not guilty, in a trial on indictment is a break from the centuries old common law prohibition against double jeopardy, as applied to the prosecution for serious criminal offences.
9. The legislature, within the limits of the Constitution and the principles of constitutional justice deriving from it, may provide for exceptions to the double jeopardy principle. But such statutory exceptions to fundamental principles must be stated clearly as explained later in this judgment.
Background Facts
10. The facts and circumstances of the case are not in controversy. I would just set out succinctly the salient elements of the case. The respondent, J.C., was tried for certain robbery offences before a judge and jury at the Circuit Criminal Court. During the course of the trial, evidence which the prosecution sought to introduce, was excluded on the basis of an application of the exclusionary rule, as laid down by this Court in DPP v. Kenny [1990] 2 I.R. 110. In an uncontroversial application of the law as laid down by this Court in the Kenny case, the trial judge excluded six statements made by the accused, three of which were inculpatory, because the accused at the time when the statements were made was unlawfully detained in custody by the gardai. It is not disputed by the DPP (and was not at the trial) that the trial judge was bound, as a matter of law, as laid down by this Court in Kenny, to exclude the evidence in question as inadmissible. Following the ruling of the trial judge the case proceeded without the prosecution offering any further evidence. There being insufficient evidence at the conclusion of the prosecution case on foot of which a jury could reasonably convict, the jury were directed by the trial judge to bring in a verdict of not guilty. No issue is raised concerning the correctness in law of the direction to the jury at that point, or the consequential verdict of acquittal of the respondent.
11. That verdict of not guilty, by a court of competent jurisdiction in full accord with the law as applicable at the trial, is final and conclusive, or at least it would be if the rule against double jeopardy, which has been a fundamental principle of the common law, and other legal systems, for centuries (see below), continues to apply.
12. The DPP, being dissatisfied with the existing rule of law, as laid down in Kenny, applied at the time by the trial judge, could have appealed to this Court on that question of law without prejudice to the verdict of not guilty, pursuant to s.34 of the Criminal Procedure Act, 1967 (as amended). This is considered further at paragraph 101 of this judgment.
13. Instead, the DPP has appealed pursuant to s.23 of the Criminal Procedure Act, 2010. This permits, as an exception to the rule against double jeopardy, a ‘with prejudice’ appeal by the DPP to set aside a verdict of not guilty where, inter alia, the trial judge made an “erroneous” ruling “during the course of a trial”, excluding “compelling evidence” as specifically defined in that section.
14. In this case, in seeking to rely on s.23, the DPP seeks to have the rule of law on the admissibility of certain evidence, as laid down in DPP v. Kenny 15 years ago, overruled or limited in its application, so as to provide a basis upon which the evidence excluded by the trial judge at the first trial could be admitted at a second trial of the respondent on the same charges.
15. Thus, the DPP asks the Court to retrospectively deem the correct ruling in law of the trial judge to be nonetheless an “erroneous” ruling.
The First Fundamental Issue
16. The fundamental issue which first arises in this case is whether s.23 of the Act of 2010 can properly be interpreted as giving the DPP a right of appeal in the circumstances of this case, where the trial judge is not alleged to have erroneously applied a rule of law which she was required by judicial decision to apply during the course of the trial, but the rule of law was subsequently changed by a judicial decision of this Court.
17. The relevant provisions of s.23 of the Criminal Procedure Act, 2010 are as follows:
“23.-(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, … may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
…
(3) An appeal under this section shall lie only where –
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) … which erroneously excluded compelling evidence …” (emphasis added)
18. The interpretative issue is whether the Oireachtas, in enacting s.23, creating a right of appeal on the basis of an erroneous ruling at the trial, intended it to apply to a case, such as this, where the trial judge made no error at the trial by applying the law as she was bound to do so. The DPP did not, and does not, argue that during the trial the judge misinterpreted or misapplied the applicable law governing the admissibility of evidence.
19. As appears from s.23, an appeal under this section shall “only” lie where, inter alia, the ruling made by the judge “during the course of the trial” “erroneously excluded” the evidence in issue.
20. The question is, therefore, whether the trial judge can in the circumstances of this case be deemed to have “erroneously excluded” evidence at the trial within the meaning of s.23.
Compelling Evidence
21. Apart from the issue as to whether there truly was an erroneous decision excluding evidence on the part of the trial judge within the meaning of s.23 the Court must also be satisfied that the evidence was of a “compelling” nature. This is a question of fact based on an assessment of the quality of the evidence. Because the evidence was excluded as a matter of law it was not placed before the trial judge. Neither is any of that evidence before this Court. The term compelling evidence is defined in the section, although I do not consider it necessary to refer to it, since the Court has not been asked to evaluate the nature of that evidence for the purpose of determining whether or not it is compelling within the meaning of the section. However, counsel for the respondent in this appeal conceded as a matter of fact that the evidence excluded was indeed compelling evidence, and had effectively so acknowledged that fact in the course of argument at the trial. The reason for this was apparently that some of the admissions made by the respondent in statements while in custody was, on any factual assessment, objectively compelling within the meaning of the section. While I entertained some doubts about the matter, I am persuaded by the arguments of counsel for the DPP that in the circumstances of this particular case that the concession of fact made by counsel on this point is sufficient to fulfil the criterion of compelling evidence for present purposes.
22. However, whether, as a matter of law, there was an erroneous ruling within the meaning of s.23 by the trial judge is a different matter. Insofar as counsel for the respondent conceded that the trial judge’s ruling could be treated as erroneous if this Court should decide to alter the rule of law laid down by Kenny this is not at all sufficient to dispose of the primary interpretative issue. It is purely a question of law, and it is for the Court to be satisfied that an appeal lies, as a matter of law, under the section, and cannot avoid this judicial responsibility, or set aside the verdict of a court, by relying on a concession on a point of law made by a party.
The Second Fundamental Issue
23. The rule of law laid down in DPP v. Kenny is, of course, the one which applies a near absolute exclusionary rule to the admissibility at a criminal trial of evidence which has been obtained in breach of the constitutional rights of the accused, to put it simply. Here the evidence was excluded by the trial judge on a proper application of the law in Kenny. The issue is whether the statement of law laid down by this Court in Kenny should now be restated or amended, or simply overruled, in a way that would accord to a trial judge greater discretion in admitting evidence obtained in breach of the constitutional rights of an accused, and to the extent that would permit a judge in a retrial of the accused in this case to exercise a discretion in favour of admitting at a second trial the evidence excluded at the first trial.
24. If an appeal does not lie under s.23 of the 2010 Act because the trial judge’s ruling in accordance with law, and as she was bound to rule at the trial, could not be considered an erroneous ruling within the meaning of the section, then the second issue does not arise at all.
Context of First Issue
25. There is no doubt that s.23 creates for the DPP a right of appeal which breaches the principle of protection against double jeopardy. Indeed, the long title to the Act itself speaks of providing “for exceptions to the rule against double jeopardy”. The first issue concerns not the existence of an exception, but the extent to which the Oireachtas intended that such exceptions to the rule against double jeopardy should apply.
26. In my view, the interpretation of s.23 for which the DPP argues involves an extreme and wholly exceptional inroads to that centuries old and hallowed principle.
27. The intention of the Oireachtas in this provision falls to be determined, as any provision of an Act does, by having regard to the ordinary and natural meaning of the words used, the nature and context of the body of law which it impacts upon, canons of construction, and the Constitution.
28. As part of that context it is, I feel, important to have regard to the historical and venerated status of the rule against double jeopardy as embedded for centuries in the common law, and indeed other systems.
29. I will, therefore, turn to consider the nature, status and role of that rule to which s.23 creates and exception, in order to place the first issue in its particular context, before going on to consider how the section should be interpreted for the purpose of this case.
The Double Jeopardy Rule
30. The principle of double jeopardy whereby a person cannot be prosecuted twice for the same offence, particularly following an acquittal, stretches back beyond the common law and is one which is at the heart of every system of justice based on the rule of law, and also expressed as the principle of non bis idem.
31. “The rule against double jeopardy has traditionally been thought of as a hallowed canon of the common law, a golden rule which sits at the heart of all English common law systems. Double jeopardy is a revered principle “vital to the protection of personal freedom”. It is claimed that the rule underpins the legitimacy of the legal system because it recognises the incontrovertibility of verdicts, which are transformed, via the declared judgment, into a record of a “high nature”.” (M. Edgely, “Truth or Justice?”; VOL 7 No. 1 Queensland TLJJ 108, the author citing, inter alia, Lord Justice Auld of the U.K. Court of Appeal, and the Australian High Court)
32. Palles C.B. in his judgment in G.S.W. Railway Company v. Gooding [1908] 2 I.R. 429 approved the description which Colridge LCJ gave to the rule against double jeopardy (in R v. Duncan [1881] 7 QPD 198) which was as follows:
“The practice of the courts has been settled for centuries and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted.”
33. Palles C.B. himself stated in the Gooding case (at 431):
“Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that is, if he be once tried before a court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.”
34. The protection against double jeopardy is enshrined in International instruments such as the United Nations International Covenant on Civil & Political Rights [1966] and the European Convention on Human Rights.
35. It is a concept which is to be found in all legal systems and goes back in time to the early embryonic notions of justice. Many commentators point out that it was part of the judeo-christian tradition, and the passage in the old testament Book of Nahum was interpreted as sustaining a common law maxim “not even God judges twice for the same act”. Double jeopardy has been identified as one of the oldest legal concepts in Western civilisation. In 355 B.C. the Athenean Demosthenes said “[T]he law forbids the same man to be tried twice on the same issues.” (cf. Hunter “The Development of the Rule Against Double Jeopardy” 1984 Journal of Legal History). The principle was observed in Greek law and the law of the Roman Republic (cf. Bartkus v. Illinois 359 US 121 at 151-152 (1959).
36. The principle or rule against double jeopardy, while not unique to the common law, is one which has been entrenched for many centuries with its own quality and parameters in the common law.
37. In Bartkus v. Illinois 359 US 121 (1959) Justice Black of the U.S. Supreme Court had this to say about the protection against double jeopardy:
“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a “universal maxim of the common law.” It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognized here as fundamental again and again. Today it is found, in varying forms, not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same.’” (emphasis added)
38. By the end of the 18th Century, Blackstone referred to the right of a person to defend a second prosecution on the basis of a former acquittal as being “grounded on this universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. An hence it is allowed as a consequence, that when a man is once fairly found not guilty upon any indictment, or other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in bar of any subsequent accusation for the same crime”. [Commentaries, 8th Edition, Part IV, CH. 26]
39. Mr. Justice Michael Kirby, former justice of the highest court of Australia, summed up the nature and status of the rule against double jeopardy “… as a principle of justice and a feature which civilised legal systems strive to uphold”.
Underlying Reasons for the Rule
40. In Green v. United States (355 U.S. 184: 1957), the U.S. Supreme Court summarised some of the policies underlying the notion of double jeopardy protection is stating:
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State, with all its resources and power, should not make repeated attempts to convict an individual for an alleged offence, thereby [1] subjecting him to embarrassment, expense and ordeal and [2] compelling him to live in a continuing state of anxiety and insecurity, as well as [3] enhancing the possibility that, even though innocent, he may be found guilty.”
41. As one can imagine there is a great deal of literature on the values underpinning the rule against double jeopardy. These have been well summed up by Mr. Justice Kirby in his paper ‘Carroll, Double Jeopardy & International Human Rights Law’ (2003, 27 Crim. L.J. 231). He referred to a range of separate grounds or explanations offered by the law for upholding the rule against double jeopardy. Leaving aside those specific to an Australian context, I consider it useful, with emphasis added, to cite the most salient of those considerations:
“(1)Controlling state power: It necessary to keep the power and resources of the state in proper check, given that, in every case, they will be greater than those of an individual accused of crime. Unless such controls are maintained by the law, there will be a risk that state power will be deployed to subject an accused “to embarrassment, expense and ordeal … compelling him to live in a continuing state of anxiety and insecurity”. Thus, the principle of double jeopardy is one that helps to define the kind of society that our law defends. In that sense, it is for the benefit of all people, not just the accused;
(2) Upholding accusatorial trial: One of the “fundamental underpinnings” of the criminal trial process in common law countries is its accusatorial character. It is not, as such, a search for the truth of what occurred so much as a search for a conclusion on whether the prosecution, representing the state, has proved the guilt of the accused to the requisite standard. Many of the proponents of weakening the common law principle against double jeopardy, or providing an exceptional legislative basis for doing so, justify their contention on the footing that such modifications will ensure that, in the end, the courts get to the truth of particular events. Notions of this kind tend to undermine, and certainly to qualify, the basal accusatorial character of our criminal process. That feature is one that continues to give effect to Blackstone’s precept that “It is better that ten guilty persons escape, than that one innocent suffer”.
…
(4) Desirability of finality: A criminal trial is a kind of public drama. It is intended to bring closure to a serious and potentially disruptive social event endangering the peace and order of society. This is why, especially in criminal trials before juries, great importance is attached to finality. Ordinarily, finality will be as much for the protection of victims or their families as of the accused and desirable from the point of view of society. The law embraces finality in this respect with open eyes, accepting its imperfections. In the Ampthill Peerage case, Lord Wilberforce explained:
“Any determination of disputable facts may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but in the interests of peace, certainty and security, it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide …”.
(5) Confidence in judicial outcomes: To the extent that convictions, but even more so acquittals, are effectively reopened and resubmitted to a fresh trial, community confidence in the outcomes of jury trial and judicial determination may be weakened or even undermined. This is why “orders and other solemn acts of the courts (unless set aside or quashed) [are] to be treated as incontrovertibly correct”. Sometimes this rule will seem intolerable to those who continue to contest the correctness of the determination. They may have opportunities for appeal and possibly judicial review. Increasingly, they may have further opportunities for executive and judicial reconsideration. But when all these opportunities have been exhausted, continuing the challenges by reopening the orders solemnly arrived at in an earlier trial, weakens public confidence in the justice system. It also undermines the proper conservation of judicial resources and court facilities.
…
(9) Increasing conviction chances: Self-evidently, the larger the number of prosecutions permitted by law, the greater “the possibility that even though innocent [the accused] may be found guilty”. With each new prosecution, dealing in substance with the same alleged criminal deed, the Crown, with all of its resources, secures an increased chance of obtaining a conviction. Not only might this be a form of unjust harassment. It could tip the scales in a way inappropriate to the conventional role of the prosecution in our form of society.
(10)Denial of basic rights: To allow a second proceeding that cast in doubt an earlier acquittal would also undermine the social acceptance of acquittals more generally. It would represent a departure from the fundamental rights hitherto enjoyed by Australian citizens. Although, subject to the Constitution, legislatures can so provide, they must do so, if they are to be successful, in clear terms .” (emphasis added)
Principal Reasons for the Rule
42. It may in any event be adduced from the authorities and the literature that there are at least three essential principles or policies underlying the rule:
(a) Respect for the finality of decisions of a court,
(b) Protection against oppressive prosecutorial system,
(c) The integrity of the judicial process, and public confidence in it.
Exceptions
43. There are exceptions to the double jeopardy protection principle, including modern exceptions, but they are clearly identified and invariably require the prosecution to meet a high threshold, by reference to express criteria, before being entitled to bring an appeal. As Kirby J. pointed out, they do so, must do so, in clear terms. Such exceptions are, of course, different from a retrial arising from some fundamental flaw vitiating a first trial (such as an issue going to the jurisdiction of a court), so that the first trial cannot be considered to have been a trial at all.
44. Among the exceptions to that principle is where the trial process has been factually tainted, such as by bribery or corruption of witnesses or jurors. Recently, the law changed in the 2010 Act to allow a retrial in clearly expressed circumstances, notwithstanding an acquittal, if subsequent to the acquittal verdict new evidence comes to light which would justify placing the accused on trial again. As acknowledgement of the importance of the principle this is clearly expressed and circumscribed by specifying a high threshold, such as that the evidence is new and must be cogent or compelling, of such a nature that, if accepted by a jury, they would be entitled to convict.
45. An important aspect of the first interpretative issue in this case is not whether there ought to be exceptions to the double jeopardy principle, or even to the extent to which such exceptions are constitutionally permissible (since that has not been raised), but whether the exception created by s.23 of the Act of 2010 is sufficiently precise and clear as to apply in the circumstances of this particular case. It cannot be ignored that the rule against double jeopardy is regarded worldwide as a hallowed principle fundamental to the rule of law, and that exceptions which have been made to it have been clearly defined and clearly limited. All of this is material to any interpretation of s.23, and the extent of its reach as an exception to that rule. It counters any notion that a statute could be considered to implicitly whittle away the rule.
Interpretation of Section 23 of the Act of 2010
46. As has been explained, the rule against double jeopardy is a hallowed and long evolved due process of protection of the citizen in a society based on the rule of law, and any whittling away of that protection should be approached with caution. More important, in the context of this case, any exception to that rule made by statute, including the ambit of any such exception, should be clearly defined so that the exception is not extended beyond that which is clearly and unambiguously intended.
47. There is no doubt that s.23 expressly provides for exceptions to the rule against double jeopardy. There is equally no doubt, as one might expect, that it seeks to limit the circumstances in which such an exception can arise.
48. To recall, the relevant provisions of s.23, are as follows:
“23.-(1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, … may, subject to subsection (3) and section 24, appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
…
(3) An appeal under this section shall lie only where –
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) … which erroneously excluded compelling evidence …” (emphasis added)
49. The key interpretative question is whether the Oireachtas intended that the correct ruling at the trial made in this case on the admissibility of evidence should retrospectively be treated as an “erroneous” ruling.
50. The exception to the rule against double jeopardy is strictly limited, and such an appeal shall lie “only” where certain criteria are met. Those set out in sub-paragraph (a) of s.23 are the relevant ones for the purposes of this appeal, namely, whether the trial judge’s ruling was made “erroneously”.
51. The criteria set out in sub-paragraph (a) is that:
(i) a ruling was made by a court,
(ii) during the course of the trial, which
(iii) was erroneous.
Ordinary and Natural Meaning
51. It strikes me as being rather evident that when one speaks of a trial judge making a “ruling” “during the course of a trial” as being erroneous in law, one is speaking of a trial judge who has misinterpreted the law or misapplied the law during a particular trial. In short, an erroneous interpretation or application of the applicable law during the time of the trial.
53. It is clear that the Oireachtas intended that where a verdict of not guilty was arrived at by a jury following the exclusion at a trial by the trial judge of “compelling evidence” (as specially defined), and that exclusion arose from such a misinterpretation of the existing or applicable law, then the DPP should, as an exception to a fundamental principle, have a right of appeal against that verdict.
54. Such an erroneous ruling during a trial can arise in various circumstances. The trial judge may just get the applicable law wrong. The law governing a particular issue or ruling may not always be clear or settled. It may also occur that the trial judge gives an interpretation to a provision of a statute not previously the subject of judicial interpretation, to which the DPP takes exception, and seeks to appeal on the grounds of an erroneous ruling. (Invariably, one would expect that the DPP in the course of the trial would have argued for a particular interpretation, not accepted by the trial judge, which is then pursued on such an appeal). On an appeal under the section, this Court may hold that the interpretation given to the law by the trial judge in his or her ruling, while not wholly unreasonable or was understandable, was nonetheless wrong and erroneous. That is not, however, to say that the ruling was not in error. It is only to say that it was an understandable error.
55. The circumstances in this case are both different and special. This was not even a case of the trial judge applying some generally received understanding of the meaning of a law or statute, but involved the direct application of a rule of law as judicially defined by the Supreme Court.
56. The ruling with which the DPP now takes issue is one where the trial judge ruled as inadmissible six statements made by the respondent to the investigating gardai while he was unlawfully detained in custody, in breach of his constitutional right to liberty. It is not in issue that at the time when the statements were made he was detained in unlawful custody. The ruling of the trial judge that the statements in question were not admissible in evidence at the trial was one which she was bound to make on the basis of established and settled law, as set out in The People (AG) v. O’Brien [1965] I.R., and in particular DPP v. Kenny [1990] 2 I.R. 110. Both are decisions of this Court. They contain statements of the law as judicially determined by the highest court in the land. The trial judge was bound, as a matter of law, indeed as a matter of constitutional law, to make the ruling which she did. The accused person relied on that law and his counsel conducted his defence accordingly. The DPP did not contest, does not contest, and could not contest, that the trial judge was bound, as a matter of law, to make the ruling she did.
57. Moreover, if she made any other ruling, that is a ruling to admit the evidence in issue, it would have been then considered erroneous in law. That is only one of the ironies arising from the decision of the majority in this case.
58. To assert, as the DPP now does, that during the course of the trial the trial judge made a ruling, which she was constitutionally bound to make, was an erroneous ruling seems to me to be a self-defeating assertion.
59. Another irony in this case is that according to the criteria laid down by the majority for the admissibility of evidence obtained in breach of a citizen’s constitutional rights, such breach may be ignored where it “derives from subsequent legal developments”. Thus, the prosecution are to be excused for tendering unconstitutionally obtained evidence, as Mr. Justice Hardiman points out, in effect due to ignorance of the law. But a citizen is to be treated as having been erroneously acquitted notwithstanding that the trial court applied the law at the time of the trial as it was known and as it was bound to do so.
60. More important is the question whether the Oireachtas, in enacting s.23, intended that the section should encompass an appeal by the prosecutor from an acquittal, on the basis of the law on which (i) the citizen was entitled to rely, and could not but rely upon, (ii) the prosecution were bound to accept, and did accept, and (iii) the trial judge was bound to apply and did apply, should nonetheless be the subject of an appeal whereby the verdict of acquittal given by the jury should be set aside and a retrial ordered.
61. Synonyms for “error” include “mistake” and “incorrect”. Having applied the law at the trial, as she was bound to do, the trial judge could not, by reference to any ordinary meaning of the word “erroneously”, be said to have made a ruling which was in law mistaken, incorrect or in error.
62. What the Court is required to do is to examine the quality of the ruling made at the trial. It is not whether the trial judge’s ruling could be labelled “erroneous” in the abstract, let alone whether it was “erroneous” from any selected point of view. The question is whether it was “erroneous” within the meaning of s.23 of the Act. In looking at the quality of the ruling as “made by a court during the course of a trial”, one must look at the quality of the decision as then made by the trial judge. Given that those rulings were made in a manner which the trial judge was legally and constitutionally bound to do, I cannot read into s.23 an intent by the Oireachtas that it should be treated as erroneous for the purposes of providing an exception to the protection against double jeopardy. I emphasise again that the trial judge was applying a principle of law as judicially determined by a higher court. I do not think that the Oireachtas at all had in mind that the quality of such a decision at a trial should be deemed to have changed because of a subsequent decision of the Supreme Court to change the law as declared in its earlier judgments, and as was applied at trial.
63. Moreover, quite independent of the foregoing, it cannot be ignored that the provision of the section speaks clearly of an erroneous ruling of the trial judge “during the course of the trial”. That formulation, in my view, adds real strength to the interpretation which I consider flows from the ordinary and natural meaning of the words used in the section. In making reference to an erroneous ruling “in the course of a trial” the Oireachtas is envisaging the kind of error referred to earlier above, an error in the interpretation of the applicable law at the time of and during the trial. I do not consider that treating a ruling of law during a trial which the trial judge was, as a matter of law, bound to make, as retrospectively erroneous is consistent with what the Oireachtas had in mind.
64. In short, the ruling made by the court “during the course of the trial” was correct. Nothing in the section suggests that parliament intended that such a ruling could be treated as erroneous by virtue of a later change in the law.
Constitutional Considerations
65. I would add, that Article 38 of the Constitution provides that: “No person shall be tried on any criminal charge save in due course of law.” When a citizen is tried, as in this case, before a judge and jury, and this Court has laid down a rule of law which the trial judge is bound to follow, and does follow faithfully, I do not think it can be said that the citizen has received a trial other than “in due course of law”. This objective fact cannot, to my mind, be set aside or diluted by a subsequent decision of this Court to adopt a different view in contemporary circumstances, some 25 years after its earlier declaration in an earlier case, as to what the law should now be henceforth.
66. The Oireachtas is entitled by virtue of Article 34.4.3, and Article 34.3.4, to make provision by law for appeals from the High Court to the Supreme Court, and from the District Court to the Circuit Court against acquittals in criminal cases (pace, recent amendments to Article 34 making provision for appeals to the Court of Appeal, enacted subsequent to the fact of this case). (See The People v. O’Shea [1982] I.R. 384 and Considine v. Shannon Regional Fisheries Trust [1997] 2 I.R. 404, at 422). Such legislation must, of course, conform with the Constitution as a whole and the principles of constitutional justice derived from it.
67. In The People v. O’Shea, O’Higgins C.J. (at 403) stated that “The phrase ‘in due course of law’ denotes fair and just procedures in the conduct of the trial and the due application of the relevant law; it denotes no more.” (emphasis added)
68. In this case, the DPP prosecuted a trial – that it was conducted by the trial judge in accordance with fair and just procedure is not in doubt – but more important it was conducted “in the due application of the relevant law”, namely, as already emphasised, the law as declared by this Court which the trial judge was bound to apply. The trial judge, having duly applied the relevant law, cannot, in the light of Article 38, be said to have acted erroneously in the application of that law. Certainly, not unless a special, or artificial, meaning was given by the Act to the term “erroneously”. And even such a special meaning would be constitutionally questionable. There is no such definition in the Act. I think it would give an extraordinary meaning to an ordinary word to characterise the trial judge’s ruling in this case as “erroneous” within the meaning of s.23 of the Act of 2010. Such an interpretation would conflict with the constitutional notion of trial “in due course of law”, as explained by O’Higgins J., absent some clear and special meaning attributed by the Act itself to the word and phrase “erroneously” and “during the course of the trial”.
69. In short, in looking at s.23, and in particular sub-section (3)(a), from the perception of its ordinary and natural meaning, I do not consider that the Oireachtas intended the limited application to “erroneous” rulings of that section to cover cases where the ruling of the trial judge during the course of the trial was precisely what the trial judge was bound in law and constitutionally to rule.
70. I do not think that the Oireachtas intended to imply such an exception to the hallowed rule against double jeopardy “which civilised legal systems strive to uphold” (see Kirby J. above). Indeed, if the Oireachtas was to change the law after a trial and then seek to have a citizen retried on the basis of some new rule of law with a view to possibly getting a different verdict, it would not stand constitutional muster. Can anything different be said of a subsequent judicial change of a rule of law followed by a retrial of the same accused on the same charges under new and different rules? No issue has been raised in these proceedings concerning the constitutionality of s.23, an interpretation conforming with the Constitution and its principles is a factor to be taken into account in interpreting section 23.
71. To my mind, an acquittal by a jury in due course of law is a final verdict.
Legal [Un]Certainty
72. It is universally recognised that one of the fundamental aspects of the rule of law is legal certainty (see for example the judgment of the European Court of Human Rights in Bujnita v. Moldova, cited below). The legal uncertainty, which I believe will be created by adopting the interpretation of s.23 argued for by the DPP, is another reason for concluding that in the absence of clear words saying so the Oireachtas did not intend a judicial ruling that was correct at the trial should be treated as erroneous by virtue of a subsequent change to an existing rule of law, as defined by a higher court. This uncertainty will arise both in relation to the issues of law during a trial as well as the status of what has always been considered as a final verdict of acquittal by a jury.
Uncertainty at a Trial
73. If the DPP is correct as to the scope of s.23, as regards a case such as this, one may well ask how a citizen, or his counsel, would conduct a defence to a serious criminal charge before a judge and jury if they have to provide for the contingency that any ruling of the trial judge excluding evidence in accordance with well settled law as declared by this Court, might yet result in an acquittal being called in question and potentially set aside if the DPP thought it might be a good idea to ask this Court, in an appeal under s.23, to review the meaning of that law, which the trial judge had been bound to apply. The concept of due process requires that trials be conducted in accordance with law. That is to say, the law as it is known and understood, and as the trial judge is bound to apply.
74. As already pointed out, that is quite a different situation to where a trial judge makes a ruling, invariably contrary to what the DPP actually submits, which is found to be in error in itself. Interpreting s.23 in the manner advocated by the DPP, even where a trial has been conducted in accordance with the constitutional imperative of “due course of law”, will give rise inevitably to speculation from time to time by defence counsel as to whether some accepted rule of law, perhaps debated in academic circles, might be subject of an appeal by the DPP against an acquittal, even though the DPP at the trial would accept that the law as it then was had to be applied by the trial judge. For example, in a case such as this, where statements made by the accused are excluded because he was held in unlawful custody, could, at least in principle, give rise also to a number of other grounds for excluding the evidence, but which it would not be necessary and, indeed perhaps not even possible, to pursue at the trial. For example, where the evidence is excluded because the person is in unlawful custody, or due to some breach of constitutional rights a defence might also be in a position to challenge the admissibility on other and additional grounds, such as that the continuation of a person’s detention (as opposed to the initial arrest) for a period in excess of 24 or 48 hours was done deliberately and unlawfully and that it was during this period that the statements were taken and, therefore, had to be excluded. Alternatively, a defence may have grounds for impugning the admissibility of the evidence on the basis that either the accused was denied access to a solicitor, or that there was no solicitor present when the statements were taken. Again, the admissibility might be opposed on the grounds that they were involuntary, having been obtained by oppressive means, inducement or the like.
75. The trial never reaches a point where these issues need to be raised by the defence, because law settled by this Court compels the trial judge to exclude the evidence at an earlier point. If a citizen has valid grounds, on the basis of judicially settled law, for excluding evidence being tendered by the prosecution, and that resolves the issue of admissibility on the basis of such law, the defence is nonetheless in a dilemma as to whether it should, or could, at the trial raise other entirely valid grounds for excluding the evidence, if the trial ever got that far. In such circumstances, a citizen could find him or herself in the situation that they had several valid grounds for excluding the evidence as inadmissible, but the trial never got to the point where they could rely on them, but nonetheless the trial judge’s ruling excluding the evidence is challenged by the DPP after the trial is over. In such a case he or she would have to wait a second trial to raise those other valid grounds and have the evidence then excluded.
76. Moreover, although I do not think it affects the foregoing considerations, but underscores them, the DPP is under no obligation to give any notice or advance information of any possible appeal against a ruling which he does not contend at the trial was unlawful, and as far as one can see, none was given to the defence in this case. In any event, without raising any issue at the trial itself, the DPP may well post-trial decide that it would be just a good idea, or on the basis of some internal agenda, to circumvent an unsuccessful outcome by seeking to test the established law by way of appeal and claim that the trial judge had acted erroneously. How does a defence provide for such a contingency? The citizen must rely on the law as the judge is bound to apply it.
77. It seems to me that a citizen who is put on trial before a judge and jury, who relies on a principle of law laid down by this Court (by which he or she is bound at the trial) and which the trial judge is bound to apply, and does apply faithfully, that citizen is entitled to expect that there will be a definitive ruling as concerns any verdict of acquittal. Only that is consistent with the “sacrosanct” and “hallowed” principle of protection against double jeopardy and trial in due course of law.
78. I do not think it can be said from the language of the section that the Oireachtas intended to create such unfairness and uncertainties for a citizen when conducting his defence in a serious criminal charge on indictment.
Uncertainty of the Verdict
79. A citizen who is acquitted following a correct application of the law during a trial – in which prosecution evidence was excluded, and there are routinely many such cases, has, in principle, been accorded a final verdict. That is the end of the prosecution.
80. Now, as a result of the interpretation being given to s.23, in such a case the finality of that verdict will depend on the discretion of the DPP, and whether the DPP feels that it might be worth having a go at persuading a higher court to change the established case law and thus win an opportunity to prosecute the accused again. Although s.2 of the European Convention on Human Rights Act, 2003 requires statutes to be interpreted in the light of the obligations created by the Convention, no issue or submission has been made in this case on behalf of the respondent in this respect. Therefore, I do not propose to consider whether, and to what extent, the Convention would, pursuant to s.2 of the Act of 2003, mandate a particular interpretation. However, while there is no case precisely in point with the special circumstances of this case, there are cases which have been decided by the European Court of Human Rights which highlight the importance of the finality of verdicts of acquittal and the need to have due respect for such finality in order to avoid a breach of the principle of legal certainty as guaranteed by Article 6(1) of the Convention. Accordingly, I propose to cite from one of the judgments of the Court of Human Rights, if only for the purpose of highlighting the kind of considerations which might arise in the exercise of the right of appeal argued for by the DPP and the special circumstances of this case would have for the legal certainty and respect for verdicts of acquittal given in accordance with “due course of law”.
81. In Bujnita v. Moldova (36492/02; 16/1/2007) the following passages usefully highlight the kind of issues that can arise when the prosecution is given a wide discretion as to the grounds upon which it may appeal against a verdict of acquittal:
“II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
18. The applicant complained under Article 6 § 1 of the Convention about the quashing by the Supreme Court of Justice of the final judgment of the Court of Appeal of 30 October 2001 following a request for annulment lodged by the Prosecutor General’s Office.
19. The Government pointed out that the request for annulment in the present case had been made in accordance with the procedure prescribed by law. They further maintained that the applicant had had the necessary procedural safeguards during the request for annulment proceedings. Therefore, in the Government’s opinion, there had been no violation of Article 6 § 1 of the Convention.
20. The Court reiterates that the right to a fair hearing under Article 6 § 1 of the Convention presumes respect for the principle of the rule of law. One of the fundamental aspects of the rule of law is legal certainty, which requires that where the courts’ judgments have become final their ruling should not be called into question (see Brumãrescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003-IX).
21. However, although a mere possibility to re-open a criminal case is prima facie compatible with the Convention, including the guarantees of Article 6, certain special circumstances may reveal that the actual manner in which such a review was used impaired the very essence of the right to a fair trial. In particular, the Court has to assess whether, in a given case, the power to launch and conduct the request for annulment proceedings were exercised by the authorities so as to strike, as far as possible, a fair balance between the interests of the individual and the need to ensure the effectiveness of the system of criminal justice (see, mutatis mutandis, Nikitin, cited above, §§ 54-57).
22. In the instant case, the request for annulment was initiated by the Deputy Prosecutor General. In the opinion of the Prosecutor General’s Office, the first-instance and cassation courts had not observed the provisions of the CCP and had wrongly assessed the evidence and thereby reached the conclusion that the applicant had not had forcible intercourse with the victim.
23. The Court notes that the grounds for the re-opening of the proceedings were based neither on new facts nor on serious procedural defects, but rather on the disagreement of the Deputy Prosecutor General with the assessment of the facts and the classification of the applicant’s actions by the lower instances. The Court observes that the latter had examined all the parties’ statements and evidence and their original conclusions do not appear to have been manifestly unreasonable. In the Court’s view, the grounds for the request for annulment given by the Deputy Prosecutor General in the present case were insufficient to justify challenging the finality of the judgment and using this extraordinary remedy to that end. The Court, therefore considers, as it has found in similar circumstances (see, for instance, Savinskiy v. Ukraine, no. 6965/02, § 25-27, 28 February 2006), that the State authorities failed to strike a fair balance between the interests of the applicant and the need to ensure the effectiveness of the criminal justice system.
24. There has, accordingly, been a violation of Article 6 § 1 of the Convention.” (emphasis added)
82. While the circumstances giving rise to an appeal against a verdict of an acquittal in that case were different from those arising in this particular case, the passages cited do highlight the need for a balanced approach in limiting any legitimate exception which permits an appeal against a verdict of acquittal at a trial.
83. It seems to me that these considerations are other grounds for concluding that if the Oireachtas intended that an appeal should lie under s.23 against a correct ruling of a trial judge, but which was to be subsequently treated as erroneous if the Supreme Court changed the law on which the ruling was based, it would have carefully and clearly said so. It is also a reason why, in my view, s.23, apart from its ordinary and natural meaning, should in any event be given a strict interpretation. There are also other reasons why is.23 should be given a strict interpretation.
Strict Construction
84. As is self-evident, the statutory provision is one which relates to an acquittal of a citizen before a judge and jury in a criminal trial, and permits, in specified limited circumstances, a with prejudice appeal against such a verdict as an exception to the principle of protection against double jeopardy. As such, it is not in issue that this provision falls to be viewed as penal legislation and subject to the long established canon of strict construction. The principle or canon of strict construction applies to the provision as a whole and not simply to whether it permits or provides for an exception to the protection against double jeopardy (which it does). To approach it otherwise would be to artificially truncate the application of the canon of construction. It must also apply to the intended scope and ambit of the exception which the Oireachtas intended to create. To view it otherwise would simply avoid the issue.
85. In DPP (Broderick) v. Flanagan [1979] I.R. 256, at 276, Henchey J. underlined the importance of using clear and direct words in penal legislation, stating:
“… a cardinal principle in the judicial interpretation of statutes that the range of criminal liability should not be held to have been statutorily extended except by clear, direct and unambiguous words. If the lawmakers wish to trench on personal liberty by extending the range of the criminal law, they may do so, within constitutional limitations; but an intention to do so should not be imputed to them when the statute has not used clear words to that effect. …”
86. In Mullins v. Harnett [1998] 2 ILRM 304 O’Higgins J. quoted the following passage from Maxwell on the Interpretation of Statutes (12th edition):
“… The strict construction of a penal statute seems to manifest itself in four ways: in the requirement of express language for the creation of an offence; in interpreting strictly the words setting out elements of an offence; in requiring the fulfilment of the letter of the statutory conditions precedent to the infliction of punishment; and in insisting on a strict observance of technical provisions concerning criminal procedure and jurisdiction.” (emphasis added)
87. Although those passages related largely, but not entirely, to penal provisions creating criminal offences, it is clear that these considerations are of equal relevance and importance to penal provisions seriously detrimental to an accused and the trial process which he or she may have to undergo. To provide for an appeal against an acquittal, where that resulted from the exclusion of evidence of a ruling made in accordance with the law which the trial judge was bound by precedent of this Court to apply, on the grounds that it was somehow erroneous, would be to create an egregious exception to a principle and trial process that has been embedded in the jury trial process of this country since the foundation of the State. If the Oireachtas intended to create such an exception, I would have expect it to say so in certain clear and direct terms. It does not.
88. At the very least, a limitation on appeals against an acquittal to cases where a ruling of the trial judge “during the course of a trial” was “erroneous” could hardly be said to clearly, directly or unambiguously convey that it applies to a ruling which the trial judge made in a manner which was constitutionally required at that trial.
89. In Considine v. Shannon Regional Fisheries Board, Hamilton C.J. when considering exceptions to the double jeopardy principle, cited with approval a passage from the judgment of Halsbury L.J. in Cox v. Hakes [1890] 15 A.C. 506 at 522, in the following terms:
“Your Lordships are here determining a question which goes very far indeed beyond the merits of any particular case. It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last court of appeal
…
In the light of the above pronouncements, very clear statutory language would be needed to establish, by way of exception to the general rule, a right of appeal from a decision dismissing a criminal charge …”
90. Hamilton C.J. then went on to cite a statement of Palles C.B. made in the course of his judgment in G.S. & W. Railway Co. v. Gooding [1908] 2 I.R. 429 at 431 that:
“Now, I take it that there is nothing more settled in our law than that (where there is no express provision, such as is contained in the Petty Sessions Act, enabling an adjudication to be made without prejudice) if a person be once in peril in a criminal case, that is, if he be once tried before a Court having jurisdiction to hear and determine, then if there be a determination of acquittal, the matter cannot be brought up a second time for adjudication.”
91. Hamilton C.J. also referred to the citation with approval of Palles C.B. of a statement of Coleridge L.C.J. in another case, to the effect:
“If the legislature thinks fit to declare that the new trials shall be granted after acquittals for felonies, misdemeanours, or both, it may of course do so.”
92. Hamilton C.J. confirmed the view, previously expressed in The People v. O’Shea (cited above), that a trial in due course of law did not necessarily involve the preclusion of a right of appeal in the event of an acquittal. However, he emphasised (at 421):
“It is clear from the foregoing, and many other, authorities that the common law rule that there should be no appeal from an acquittal of a criminal charge was subject to the right of the legislature to provide for such an appeal provided that such right was given in clear and unambiguous language …” (emphasis added)
93. Again, putting it at its lowest, I do not think it can be assumed or simply inferred that when the Oireachtas limited with prejudice appeals against acquittals to cases in which the court had, during the trial, made an erroneous ruling that it intended the DPP’s right of appeal to apply to a ruling which the trial judge was bound constitutionally to make and which was binding on, and necessarily accepted at the trial, by the prosecution and the defence. Certainly, the principles cited above do not, in my view, permit allowing for such an appeal under some extended umbrella of broad interpretation.
Appalling Prospect
94. The consequences of interpreting s.23(3)(a) as argued by the DPP are as follows:
(a) A citizen relies in his defence to a criminal charge on the law as laid down by the Supreme Court;
(b) The trial judge applies that law as she is constitutionally bound to do so, and excludes inadmissible evidence;
(c) The DPP, who is prosecuting in the name of the People, acknowledges at all times that the trial judge was bound to apply that law and the accused entitled to rely upon it;
(d) The citizen is then acquitted after a trial in due course of law, the trial judge not having made any ruling on the admissibility of evidence contested by the prosecution as erroneous and it had no basis in law for so contesting.
95. Following such a verdict of acquittal, heretofore always considered final, the DPP appeals against that verdict under s.23 and seeks to set it aside on the grounds that although the trial judge applied the law, as declared by the Supreme Court, the Supreme Court should set aside its earlier declaration, which in this case was the law for 25 years, as to what the applicable law is. The Supreme Court should change the meaning or ambit or nuance of that law. Once changed, the ruling at the trial by the trial judge should retrospectively be considered “erroneous” in order to bring s.23 into play and allow the verdict to be set aside and a retrial ordered on the basis of the new law.
96. This is to change the goalposts, not during the game, but after the game is over, except it is not about a game or a sport, it is about a criminal trial and justice which the Constitution requires shall be conducted in due course of law. That is to say, in due course of the “applicable law” as O’Higgins C.J. stated in The People v. O’Shea, cited above.
97. If a citizen cannot, with full confidence, rely upon a rule of law as laid down and defined by the Supreme Court, and applicable at the trial, in the conduct of his or her defence to a criminal charge, that is to say, without the risk that a verdict will be set aside because the law is changed by the Supreme Court after the trial, then the integrity of the judicial process is undermined. This is an appalling prospect.
98. These concerns are not at all met by the provision of the section which grants an ultimate discretion to this Court in an appeal of this nature as to whether or not to order a retrial, even if the DPP succeeds on the question of law. The fact is that a verdict of acquittal arrived at in due course of law has been suspended and the accused placed again in the anxious and difficult position of having to put his or her life on hold with a view to a future possible retrial for the same offence. This can have tremendous and devastating consequences for the course of a person’s life while he or she awaits the outcome of an appeal to the Supreme Court and a decision as to whether he or she must then wait further for a retrial to take place.
99. To my mind there is nothing in the wording of s.23 which suggests that such a far reaching and unfair consequence was intended by parliament by such a strained conversion of a trial ruling as mandated by the applicable law into a so-called “erroneous” ruling.
100. It seems to me an extraordinary interpretation of s.23 to consider it as permitting the prosecution to appeal a verdict as erroneous on the basis that it may prove possible to persuade a higher court to change the existing and judicially established law. To do so tends to undermine at least some of the core values at the foundation of the rule against double jeopardy, particularly as concerns respect for the finality of decisions of a court, the integrity of the judicial process and public confidence in it.
Section 34 of the Criminal Procedure Act, 1967
101. There is one other matter which I feel cannot be ignored in the context of an interpretation of s.23 of the Act of 2010. I refer to the provisions of s.34 of the Criminal Procedure Act, 1967, as inserted by s.21 of the Criminal Justice Act, 2006, which provides:
“Where a person tried on indictment is acquitted … the Director of Public Prosecutions may, without prejudice to the verdict or decision in favour of the accused person, refer a question of law arising during the trial to the Supreme Court for determination.”
102. This provision was left untouched and un-amended by the Act of 2010. As is evident from its terms, it is an appeals process (subject now to amendments arising from the establishment of the new Court of Appeal) which allows the State as prosecutor in cases of an acquittal to raise by way of appeal issues of law which arose in a criminal trial, which it may wish to see, for the purpose of future trials, clarified, corrected or even changed, through a refinement or evolution of existing case law, or an overruling of the existing case law. The section expressly provides that the verdict of acquittal remains intact.
103. Accordingly, should the DPP feel that there is some principle or aspect of the criminal law, as applied in a court of trial, which from his or her perspective requires to be clarified, rendered certain or some case law which requires refinement or even overruling by a higher court, then this is a process provided for the DPP to do so. There is no requirement that any ruling in a trial was erroneous, or other provision that such an appeal will only lie if certain criteria are fulfilled. The only requirement is that it is a question of law which arose during a trial. It is, of course, without prejudice to the acquittal of the citizen concerned. It is, as in the case of the Bujnita cited above, an appropriate way of balancing the rights of the citizen, so that a citizen can rest peacefully with a verdict of acquittal and feel free to continue his or her life accordingly.
104. In interpreting s.23, and in particular the meaning of the term “erroneously” in that section, it is well to bear in mind that the Oireachtas was fully aware that if the DPP was unhappy with the state of the existing case law, he has ample opportunity to have this clarified or even overruled for the purpose of future trials by recourse to s.34 of the Act of 1967, as amended. That is another reason why I feel it is counter-intuitive and contrary to the ordinary meaning of “erroneously” to assume that when the Oireachtas used that word in s.23 it was intended to encompass a ruling of a trial judge arrived at in accordance with a principle which he or she was bound to apply.
105. It is true that s.23 confers a discretion on this Court, even where an appeal lies to this Court under the section, and even where the Court considers that a ruling was “erroneously” within the meaning of the section, to decline to set aside the acquittal and order a retrial. This Court may decline to make such orders under s.23 if it does not consider that in all the circumstances it is in the interests of justice to do so.
106. However, such a discretion cannot gainsay the fact that an appeal under s.23 of the Act of 2010 puts in issue the acquittal accorded to the citizen at his or her trial, and leaves him or her in a state of uncertainty or limbo until the matter is resolved one way or the other by the appeal and, in the event, at a retrial. Moreover, the section clearly envisages that the Court should generally, on concluding that the ruling of the trial judge was erroneous within the meaning of s.23, set aside the acquittal and order a retrial. In any event, the fact that the DPP can appeal with prejudice against the verdict of acquittal and seek a retrial means that there cannot be any equation between s.34 of the Act of 1967, and s.23 of the Act of 2010. To approach the issues in this case on the basis that the two sections largely amounted to the same thing or the same process would be to relativise out of existence the legitimate interests and rights of a citizen in the finality of a verdict of acquittal arrived at in due process of law by a judge and jury.
107. It seems to me that the appropriate and apt process for the DPP to raise the issues which he has in this case would have been to bring an appeal pursuant to s.34 of the Act of 1967.
108. For the reasons stated above, I am of the view that an appeal does not lie under s.23 because the ruling of the trial judge, being one which she was bound as a matter of law to make, was not intended by the Oireachtas to be treated as an erroneous ruling within the meaning of s.23.
109. The DPP is perfectly entitled to seek a without prejudice review under s.34 of the Court’s case law on the so-called near absolute exclusionary rule, as laid down in DPP v. Kenny. The protection against double jeopardy is a notion or a concept that has been the subject of discussion and debate in different fora in this country and abroad with many learned and influential articles written on one side and the other.
110. However attractive it may appear to the Court to embark on a review of the balance struck between competing rights in The People v. Kenny under s.23, I feel that in doing so in this case the Court has been unable to resist plucking this tempting fruit from the wrong tree.
111. Having concluded that no appeal lies within the meaning of s.23, I would dismiss the appeal. I agree with the conclusions of Hardiman J. and McKechnie J. to the same effect. In these circumstances, I do not consider it appropriate to address the second substantive issue.
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
and
J.C.
Accused/Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 15th day of April, 2015.
INTRODUCTION
There is hardly a country in the world today which does not boast some form of Constitution, Charter, Bill of Rights or similar document which announces, and promises to respect the Civil and Human Rights of the citizens. But for the great majority of the world’s citizens, those plangent words are of no practical use at all. This is because, though according them verbal respect, most of the world’s courts will not actually enforce the rights which are guaranteed. In particular, they are reluctant to enforce them against their own country’s force publique. I use this phrase to signify not only the police force but the army, the tax collectors, the customs and revenue officials and the whole body of public officials who are vested with coercive and compulsory powers over ordinary citizens, their property, including their homes, their records and papers, their money and monies worth and other aspects of their lives. Even in the area occupied by States who are members of the Council of Europe, the records of the European Courts of Human Rights shows all too clearly that there are States whose courts are unable or unwilling to provide an actual solution to the difficulties of real people who are prejudiced by the unlawful acts of the force publique in the relevant country. Such people are left to seek a remedy in Strasbourg years later.
For many years Ireland was to be ranked amongst those countries, a minority in the world as a whole, whose courts really, and not merely theoretically, took the constitutional rights of its citizens seriously and ensured that they would be enforced immediately and without qualification, as Mr. Justice McCarthy put it in a passage quoted below, even against the force publique. This in turn was because, in the words of Chief Justice Ó Dálaigh:
“… it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights”.
I am gravely apprehensive that the majority decision in this case, overruling the case of Kenny, one of the monuments of Irish constitutional jurisprudence, is a major step in the disengagement of this Court from the rights-oriented jurisprudence of our predecessors.
In Parts I, V and VI of my judgment I endeavour to illustrate the importance of Kenny and the reasons why I fundamentally dissent from its being cut down.
Perhaps even more importantly, I deprecate the manner in which this is done and I see in it the threat of further disengagement from the rights established in earlier decisions of this Court. I try to explain this in Parts II and III of the judgment.
The State have suggested, albeit very obliquely, that protections of the citizens such as those contained in Kenny are perhaps no longer necessary because of developments since 1990. I consider that this is entirely fallacious and have endeavoured in Part IV to give some examples of the serious causes for concern which presently exist, including the finding by a former President of the High Court that “proper discipline has been lost from An Garda Síochána”.
The rights of the ordinary citizen depend in the first place on the Government’s – successive Governments – being rooted in a tradition of legality and lacking any positive desire to cut down the citizens rights. We in Ireland have been fortunate in enjoying several generations of governance which shares this tradition of legality and respect for civil rights. If, almost impossible to imagine, a government were to come about which was not rooted in the tradition of legality then the writing down of the rights of the citizen which I believe this judgment represents would be all the more hazardous. Judicial care for the rights of the citizen must always take into account what Chief Justice Ó Dálaigh called the contingencies of an “improbable but not to be overlooked future”.
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The Director of Public Prosecutions charged Mr. J.C. with certain offences. On the 18th July, 2012 she brought him to trial for these offences in Waterford Circuit Criminal Court.
On the following day, 19th July, 2012, Mr. J.C. was acquitted of all of these charges. The prosecution dropped its case after a legal ruling by the learned trial judge, Her Honour Judge Mary Ellen Ring, S.C. The reasons why the learned trial judge so ruled are set out, in her own words, from the official transcript, at par. 50 of this judgment. This ruling is admitted to have been correct in law.
Nonetheless, the Director now purports to appeal to this Court against the acquittal of Mr. J.C., allegedly in pursuance of s.23 of the Criminal Procedure Act, 2010. I do not accept that this appeal lies, for the reasons set out in s.II of this judgment. The general background, legal and factual, is set out in Part I, and the important legal issues are surveyed there.
The prosecutor wishes to change the law by this appeal and then to retry Mr. C. in the new state of the law. I do not believe that this would be possible in any other State in the world. It would represent a total negation of the fundamental legal values which apply in Ireland up to the present day, and which have applied for centuries, as will be seen in Part II of this judgment.
Even apart from the foregoing, which itself represents a baneful change in the established constitutional jurisprudence of Ireland, this is profoundly saddening development as far as I am concerned. I discuss two especially threatening aspects of it in the following paragraphs. But before turning to them I wish to make it clear that the manner in which the State have suggested that the Court has jurisdiction in this matter is just as depressing, and just as saddening. It is, if possible, still more threatening for the future because it is based on a mode of construction of a statute – s.23 of the Criminal Procedure Act, 2010 – which is at variance with the ordinary meaning of the English language which, if more widely adopted, would mean that words have no specific meaning and therefore that rights, which are expressed in words, can be reduced to meaningless, to mere words on a page without any practical consequences. The State’s submissions in this regard were based on a sort of Orwellian dissonance which I cannot too strongly deplore. This most unfortunate aspect of the present case is dealt with below, at the end of Part II of the judgment.
I object as strongly as I can to two aspects, in particular, of the proposed result of this case. The first is that it would permit a retrial for the same offence after a lawful acquittal on a trial for that self-same offence, and after the law itself had been changed by this Court to the advantage of the prosecution and the gross disadvantage of the defendant. If this is deemed permissible Ireland will, as far as I can see, be unique in the world in permitting it. It does not at all mitigate this concern that this Court may not actually order a retrial in the particular case of Mr. J.C.: a Rubicon has been crossed and the nature of a trial with “due course of law” has been altered for the immediate future and perhaps forever.
The State strongly submitted on the hearing of this appeal that the Court should proceed first to resolve the issue of whether Judge Ring “erroneously” excluded evidence and only if that were so should proceed to a separate hearing on the question of whether or not there should be a retrial. This submission was based on tactical grounds. If no retrial is directed, the acquittal must be affirmed, see s.23(ii)(b). This appears to be agreed by the majority.
Since I consider that this appeal is incompetent and does not lie (because it can “only” be entertained if there has been error by the trial judge and here there was no error by the Judge Ring) it follows that there can be no question of a retrial. Accordingly, I have felt free to express the opinion, in this judgment, which is obviously obiter, that a retrial in the circumstances of this case would be at variance with the Constitution and in breach of our international obligations. The reasoning behind this conclusion is set out at Part II. I adhere to this view even if no retrial is in fact ordered in the present case, on some discretionary ground.
I believe that the foregoing raises serious questions as to whether s.23 of the Criminal Procedure Act of 2010 as construed in this case is consistent with the Constitution or with Article 6 of the European Convention on Human Rights. Neither of these points was argued, for reasons which I do not find easy to understand. I have not discussed the question of constitutionality in view of this omission. I do however conclude that a retrial of Mr. C. would not be a trial in due course of law as required by Article 38.1 of the Constitution. Having regard to the terms of the Human Rights Act of 2003, and its mandatory effect on the manner of construction of s.23, I have ventured briefly to discuss the relevant convention jurisprudence, notwithstanding that the point was not argued. But because of the omission, I have reached no conclusion on the matter. The question of whether the trial judge had erred was not the subject of argument by the respondent. I was more than surprised at this omission. But since the matter is one going to jurisdiction, I have not felt inhibited in addressing it.
The second aspect of the result of this case to which I most profoundly object is the finding that “inadvertence” by public officials with coercive powers will sufficiently excuse a breach of a citizen’s constitutional rights to allow material obtained by such breach to be proved in evidence against that citizen. I regard this as a gratuitous writing down of the respect due to the Constitution, which is an absolutely retrograde step which I deeply deplore.
This is a criminal case and a great many people, predictably, will turn from it thinking that it is irrelevant to their lives since they do not intend ever to involve themselves in crime. No doubt Mr. Frank Shortt F.C.A., a sixty year old chartered accountant, thought just like that until he was perjured into prison by some gardai who bore him no personal ill will, but simply wished to enhance their careers. This sorry tale which went on from 1992 to 2007 is summarised in Part IV of this judgment. The State first convicted Mr. Shortt on perjured evidence; then (years later) agreed to quash the conviction; bitterly opposed his claim that his conviction was a miscarriage of justice, and contested his claim to compensation.
More generally, the criminal law has for centuries been the gold standard of the rights and entitlements of ordinary people. If the rights of the citizen in this context are notably diminished, as I believe they are as a result of this case, then the rights of the ordinary citizen in civil matters – contracts, mortgages, property, taxation, water charges and other levies, planning, and employment – will soon be gravely reduced as well. There have, in recent years, been several cases in which legislation and the workings of public bodies or public officials in Ireland seem determined to impose on the ordinary, competent and thoroughly respectable citizen a level of liability to punishment and public humiliation which is noticeably greater than has been found necessary in other similar jurisdictions. See, for example, Re Tralee Beef and Lamb Company Ltd.[2008] IESC 1, [2008] 2 ILRM 420 as to an attempt to restrict a perfectly respectable chartered accountant from acting as a Company Director without giving any specific reason at all, but leaving him to prove why he should not be so restricted. The contrast with the position in England as established in Barings plc, In re (No 5)/ Baker v. Secretary of State for Trade and Industry [2001] B.C.C. 273 is very striking. See also Corbally v. The Medical Council [2015] IESC 9 (Supreme Court, as yet unreported, 4 February, 2015), where the suggestion was solemnly made by a statutory body that any error whatever by a medical practitioner, even an obvious and trivial one which had no consequences could constitute “poor professional performance”, thereby exposing a distinguished practitioner to public abuse in the media and to the risk of being struck off the register. Again, the contrast with comparable jurisdictions is very striking. See R. (Calhaen) v. The General Medical Council [2007] EWHC 2606.
It is in the area of criminal law that the safeguards for individual citizens have been earliest and most strongly developed. If the traditional entitlements of citizens in this regard – fully acknowledged by our own recent predecessors such as Ó Dálaigh C.J., O’Higgins C.J., Finlay C.J., Walsh J., MacCarthy J., Hederman J. and others – are now to be undermined, as the State’s appeal in this case barefacedly seeks to do; then it must not be expected that the citizens rights in other areas will remain unaffected.
In the present case, the State is attempting to do something which, to my knowledge, has never been done in any other jurisdiction. In the case of a person who has been lawfully acquitted of certain criminal charges brought against him, it seeks to refer the matter to this Court, to have the law changed by this Court and then to have the citizen retried in this new state of the law which, of course, did not exist at the time of the first trial or at the still earlier time when the offence alleged was committed.
If the Court complies with the Public Prosecutor’s request it will be doing something abhorrent to our own existing jurisprudence and to the jurisprudence of the Common Law which existed for centuries before the adoption of our Constitution in 1937. It will very likely conflict with our international obligations.
The Director seeks to do this in a very specific manner which I believe, quite independently, to be absolutely inadmissible. The State does not allege that the learned trial judge herself made any relevant error of law. If the learned trial judge had made an error of law, then s.23, on the face of it, would certainly provide an appeal against such error. But no such error is alleged, because the learned trial judge meticulously followed the decisions of the Superior Courts which were binding upon her and which she was obliged to follow. Instead, the Director attacks one of these authorities itself, in absolutely express terms, and claims that this Court should proceed, and I quote:
“… to overrule the decision of the majority in DPP v.Kenny [1990] I.R. 110 so that it no longer forms part of Irish law”.
(not verified)
That form of “appeal” necessarily concedes, as is the case, that the leading authority of DPP v.Kenny [1990] 2 I.R. 110 did indeed “form part of Irish law” when Mr. J.C. was tried, at the suit of the Director, in July, 2012.
Accordingly, the prosecutor, whose decision it was to bring Mr. J.C. to trial in July, 2012, well knowing the law of Ireland at that time, seeks now, retrospectively to change that law, so that the main feature of it on which Mr. J.C. successfully relied should “no longer form part of Irish law.”
This is not merely an academic exercise. The Director seeks first, to change the law of Ireland from what it was when Mr. J.C. was lawfully acquitted, by persuading this Court to order that DPP v.Kenny [1990] 2 I.R. 110 should “no longer form part of Irish law”; secondly to quash his acquittal which was absolutely lawful when pronounced; and thirdly to order that Mr. J.C. be tried a second time, after the prosecution have succeeded in changing the law from what it was when they put him on trial.
This is absolutely unprecedented and in my view no such retrial would be a trial in due course of law. See Part III below. Multiple trials until a conviction is obtained are a notorious form of oppressive misuse of power. A second or subsequent trial after the law has been changed so as to favour the prosecution and disadvantage the defendant is without any precedent, anywhere, to my knowledge.
If the learned trial judge had made an error then s.23 would on the face of it provide a remedy for that error. But the proof of an error by the learned trial judge is essential to the existence of such a remedy. There has not been any proof that the learned trial judge erred in the course of the trial of Mr. J.C. Accordingly, this appeal is incompetent and does not lie. It is actually conceded by the majority that Judge Ring correctly applied the law which was binding on her.
The right of a citizen not to be tried again in the same matter after he has been lawfully acquitted is more than well established. It was well established long before Ireland was an independent State and long before the adoption of the Constitution in 1937. It was part of what is meant by “due course of law” in Article 38.1 of the Constitution. This Article provides that:
“No person shall be tried on any criminal charge save in due course of law”.
It has been recognised for centuries, as the cases cited below will illustrate, that a right not to be tried again after an acquittal of the same offence is “an ancient and universally recognised constitutional right”. The prosecution ask the Court to cut down that right.
In the submissions on behalf of the prosecutor, written and oral, very little was said, at least directly, as to why precisely this dramatic change in Irish law is demanded. At para. 46 of the State’s written submissions, however, there is a single paragraph which, insofar as I understand it, suggests, or at least hints at, a reason in the phrase that “in the years since the delivery of the judgment in DPP v.Kenny [1990] 2 I.R. 110, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána…”.
The entire of this paragraph is set out at para. 118 of this judgment, at the beginning of Part IV.
If the appellant, the State, is contending the changes since 1990 in some way make the protection of constitutional rights provided by DPP v.Kenny [1990] 2 I.R. 110 unnecessary, I absolutely reject this submission for the reasons set out in Part IV of this judgment. Part V of the judgment analyses the important phrase “deliberate and conscious” as it is used in DPP v.Kenny [1990] 2 I.R. 110, in a passage which attracts the particular ire of the prosecutor; and in Part VI of the judgment I attempt an overview of DPP v.Kenny itself.
In Part IV I set out various most alarming events involving the Gardaí, every one of which happened since the decision of this Court in DPP v.Kenny [1990] 2 I.R. 110 and some of which are absolutely current, indeed ongoing. These to my mind illustrate that, to put it at its mildest, the present is not an appropriate time to consider dispensing with the requirement that the force publique ensure that their actions towards individual citizens do not constitute deliberate and conscious violations of those citizens’ personal rights.
I am horrified that it is proposed in the present case to make “inadvertence” a lawful excuse for State infringements of individuals’ constitutional rights. I would protest strongly about that proposal, even if I were alone in doing so. If once “inadvertence” or mistake is acceptable as an excuse for ignoring, or deliberately failing to ascertain, the constitutional rights of ordinary citizens then “inadvertence” or mistake will be relied upon again and again. I deeply regret to say that the experience of the Courts over the last forty years strongly suggests that “inadvertence” will be accepted very generally as a reason to allow to be proved in evidence the fruits of deliberate and conscious violation of citizens’ rights.
Needless to say, it is not proposed to extend any parallel laxity to ordinary citizens. Earlier in this introduction I quoted two recent cases involving, respectively, a Chartered Accountant and a Medical Practitioner. It will easily be seen that ordinary life would be quite impossible if accountants and doctors could avoid liability for negligent or deliberate acts by claiming that they were the result of “inadvertence”. But that is precisely what is proposed to be done here in the case of State officials, not merely gardaí but that wider class of officials with compulsory powers – tax inspectors, planning officials, water meter installers, customs, and official enforcers of all kinds such as those employed by public bodies. In what follows, I sometimes refer to this wider legally empowered class generally as the “force publique”.
When the State appoint a person to any position which gives him or her coercive, compulsory powers over other citizens, whether those powers are to arrest, to search, to imprison, to confiscate property or documents, levy fines or other charges or whatever, in my view there is an obligation upon the State to ensure that the people whom it chooses to appoint with such powers are fully instructed in the precise legal extent of those powers and in the proper legal manner of applying them. Few would dispute that the State has an obligation, directly or through other bodies, to ensure that people who practise medicine or accountancy (to take the professions involved in the cases cited above) are competent to do so and actually do so in a proper and careful manner. But this case, if the State’s demand is complied with by the Court, will say to members of the force publique that if they can show that their misdeeds are the result of “inadvertence” they will be excused. I regard this as an utterly retrograde step.
Another baneful effect of this decision is that it will render it impossible for an ordinary citizen who was brought before a criminal court to rely with confidence in his or her defence on what were formerly the binding decisions of this Court and of the High Court. This means, to my mind, that such a citizen is deprived of legal certainty and is simply unable to know with confidence of the law under which he is tried. The absolute unacceptability of this undermining of legal certainty has been very comprehensively considered in the judgment of my colleague Mr. Justice Murray and I will only say that I agree with him. This is by no means the least significant aspect of this profoundly regrettable decision.
Any decision of the Court which strengthens the hand of the force publique and exalts it into a position virtually immune from judicial constraint, is profoundly alarming. Part IV of this judgment sets out numerous and recent examples of what may happen even in the present state of the law in the context that, as the Morris Tribunal found “proper discipline has been lost from An Garda Síochána”.
But some comfort might, perhaps, be taken from the deep seated tradition of legality in this country which has ensured that, for generations, governments of every stamp has discountenanced illegal behaviour by the force publique whenever they became aware of it. The risk inherent in judgments such as the present one would obviously be much greater if, almost impossible to imagine, a government came to pass which, or some significant portion of which, was not deeply rooted in the tradition of legality and respect for civil rights which we have been fortunate to enjoy for generations. Judicial decisions about civil and constitutional rights must consider not only the present state of affairs but also what Ó Dálaigh C.J. described in Melling v. Mathghamhna [1962] I.R. 1 as the contingencies of an “improbable but not to be overlooked future”. It is important to bear in mind that the powers and immunities conferred on the force publique will continue to be enjoyed by it notwithstanding the changes of government and of political culture, and that the rights which the Courts must protect, must be sufficiently protected to endure even in the unpredictable contingencies of “an improbable but not to be overlooked future”.
I have already indicated that I consider the case under direct attack by the State in these proceedings, DPP v.Kenny [1990] 2 I.R. 110 to be a most important one, a monument of the revolution in Irish constitutional jurisprudence which took place approximately between the years 1965 and 1990, and an important case in the vital task of the protection of citizens rights which goes on day and daily in the Courts, both civil and criminal. In Part V of this judgment I make some attempt to describe the principled basis of that decision: in Part VI I attempt to explain the mechanism whereby the Kenny test for the admissibility of evidence obtained in an unconstitutional manner is implemented. In particular I expound, in the words of our distinguished predecessors, the reason why the alteration which the decision of the majority would bring about, the provision of a defence of “inadvertence”, would “put a premium on ignorance” and reduce the Kenny protections to incoherence.
I want to express my dissent, in particular, from the new test proposed to address the question of the admissibility of evidence obtained by a deliberate and conscious unconstitutional Act. The revolution proposed in this regard is expressed in the sentence:
“In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the Acts concerned this morning”.
This apparently anodyne form of words fatally undermines the rights-based and rights-respecting Kenny test. For the reasons set out years ago by McCarthy J., O’Higgins C.J., Walsh J. and Finlay C.J., amongst others, this change will “put a premium on ignorance of the law” (Walsh J.) and ensure that “the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and and/or of the Constituted admitted in Court (Ó Dálaigh C.J.).
I survey this question in Part VI of the judgment.
I protest, in particular, against the distinction, created by this part of the decision, between the ordinary citizen and the members of the privileged and legally empowered group whom I have designated the force publique. If the ordinary citizen were provided with a defence of “I didn’t mean it” or “I didn’t know it was against the law”, then many parts of the law would become completely unenforceable. I believe that the application of this rule to the force publique has the effect of exalting that group and conferring a status of virtual, practical, unaccountability upon it. I deeply regret that this is being done.
[I]
Overview
1. This is as significant a case on criminal law and evidence as any that have come before the Court in the last twenty-five years. It affects in an important way the rights and liberties of every citizen.
For that considerable length of time, the citizens of Ireland have been protected from prosecution on foot of unconstitutional, forcible or covert searches, arrests, surveillance, or telephone buggings, or other actions by public officials, gardaí or other members of the force publique, by DPP v.Kenny [1990] 2 I.R. 110. The detailed effect of this case is discussed in the following parts of this judgment, especially in Part VI.
Now, this essential protection is sought to be torn away at the suit of the Director. This is sought to be done without any proper, evidence-based assessment of the effect of the rule that DPP v.Kenny [1990] 2 I.R. 110 lays down. It is sought to be done at the suggestion of the Executive branch of Government, by a procedure which excludes evidence-based inquiry, and which is meant merely to allow the correction of legal errors by trial judges. The trial judge in this case made no error: the target of the Executive is the established law of the land which the trial judge followed faithfully, as she was bound to do.
DPP v.Kenny [1990] 2 I.R. 110, a judgment of Finlay C.J., is one of the monuments of our jurisprudence. It is a case I had specifically in my mind when I undertook, as every judge must, “to uphold the Constitution”. I would protest, even if I did it alone, at the removal of an essential protection of the citizen by a subterfuge. I believe that the State’s demand, if complied with by the judges, will involve the jettisoning, not only of DPP v.Kenny [1990] 2 I.R. 110 but of much of the best of our constitutional jurisprudence and of the Common Law of Ireland. I hope this will be clear from the citations in this judgment, and others that will occur to the reader.
2. The present case appears to me directly to raise two questions of very great importance. These are:
(i) If a citizen is put on trial by jury, and acquitted; is it open to the State, under s.23 of the Criminal Procedure Act of 2010, to have the law under which he was acquitted changed by this Court and then to have the citizen retried, for the same alleged offence, in the new state of the law?
(ii) If the gardaí, or any other branch of the force publique, obtain evidence by a “deliberate and conscious” breach of a person’s constitutional rights, may the State use that evidence against the person, in a trial “in due course of law” before a judge who has undertaken that he or she will “uphold the Constitution and the laws”?
3. As will appear in considerable detail later in this judgment, the answer to the first question has always been “no”, for many centuries before the Constitution was adopted, and after that, right up to our own time. The notion of retrying a person who has been acquitted, especially after the law has been changed to assist the prosecution, has been abhorrent for centuries, long before the development of modern Human Rights law, which also condemns it.
4. At least since this Court decided DPP v.Kenny [1990] 2 I.R. 110, the answer to the second question has been a resounding “no”, absent “extraordinary excusing circumstance(s)” which do not arise in the present case.
5. I was deeply proud that this is so, that Ireland was a country in which the personal rights of the individual citizen are taken seriously. There are few countries, nowadays, which do not boast some form of Constitution or Charter of Rights which purports to recognise and honour the personal and human rights of the citizen. But there are far fewer countries where those rights are actually honoured in practice, even against the police force, army, tax collectors, planning inspectors, or other branches of the force publique. In most countries, the citizen’s rights are merely words on a page. In those countries where the personal rights of the citizen are not merely words on a page but real living rights, that is because they will be enforced by the Courts, fearlessly in discharging the constitutional judicial mandate which is necessarily independent of the Government (under the doctrine of the separation of powers). Where there is a “deliberate and conscious” breach of those rights by agents of the State then such breach; in a free country [1985] I.R. 550 at p. 585):
“… will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned, whatever the consequences may be”.
The matter was put in this way by Mr. Justice McCarthy in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550 at p. 585. I regret that this has now ceased to be so.
This, too, is one of the central bulwarks of freedom in this country, which this decision tears down.
McCarthy J. was correct in what he said because, as Ó Dálaigh C.J. put it in The State (Quinn) v. Ryan [1965] I.R. 70, at p.122:
“… it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights. As a necessary corollary it follows that no-one can with impunity set these rights at nought or circumvent them and that the Courts powers in this regard are as ample as the defence of the Constitution requires”.
The result of this case determines whether the words I have quoted, and the judgments of which they form part, will be relegated to mere shibboleths or whether they will continue to be accurate and meaningful statements of the law of Ireland upon which citizens can rely, precisely because the Courts will enforce them, and not merely pay them lip-service.
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6. In this case, the State is attempting, without any democratic process of legislation or referendum, drastically and quietly to change the constitutionally based law of evidence as it applies to criminal trials. This change, of course, would in every single case favour the prosecution and handicap the defence. The prosecutors seek to set aside the judgment of this Court in DPP v.Kenny [1990] 2 I.R. 110. This was a decision of major constitutional importance, given in this Supreme Court by Finlay C.J. DPP v.Kenny [1990] 2 I.R. 110 construed the Constitution itself to establish a principled and constitutionally mandated structure to deal with the not uncommon situation where agents of the State itself, the Garda Síochána or some other branch of the force publique, themselves breach the Constitution in seeking evidence on which to convict a citizen.
7. The law of Ireland, derived from the Constitution and expressed in DPP v.Kenny [1990] 2 I.R. 110, is that evidence obtained by a “deliberate and conscious” act of a public authority or official which breaches the Constitution, falls to be excluded from consideration as evidence at a trial conducted, as the Constitution requires, “in due course of law”. This is so unless the breach can be justified by “extraordinary excusing circumstances”. It is agreed that no such circumstances arise in the present case. This rule is essential if the rights conferred on citizens in the Constitution are to have any real existence in the lives of citizens, as opposed to being mere words on a page. This is recognised in DPP v.Kenny [1990] 2 I.R. 110.
In this case, Mr. C. has already been tried and lawfully acquitted. The State demands that this Court change the law laid down in DPP v.Kenny [1990] 2 I.R. 110, and wants Mr. C. to be tried again after that has been done under some (as yet-undetermined) new law. This would be grotesquely wrong. The second trial would not be one “in due course of law”. The law of Ireland provides many instances, some discussed below, where the Crown or State have attempted to retry an acquitted person. Up to now, the judges have always prevented this. Now they are asked not only to do this, but to change the law to facilitate a conviction, before setting aside an acquittal and ordering a retrial after the law has been changed. In colloquial terms, we are asked first to move the goalposts and then to order the match, already won and lost, to be replayed with new rules, written by one side and imposed on the other.
The Exclusionary Rule – what is it?
8. The Rule summarised above – that evidence obtained in breach of the Constitution must be excluded (and evidence obtained in breach of law may be excluded at the judge’s discretion) – is the Exclusionary Rule. Since such things as the improper obtaining of evidence have occurred, or are alleged to have occurred, quite frequently, the rule is the subject of much debate and litigation in every country which takes the fundamental rights of its citizens seriously. Up to now, Ireland was such a country.
An Example.
9. An example of the Rule’s operation in practice in Ireland occurred in the DPP v.Burke, Hickey, McEnery and Kissane tried in the Waterford Circuit Criminal Court in July 2011. The case illustrates that, while the rule is typically invoked by a defendant, it raises issues of much broader interest such as – is a public servant entitled to privacy in his or her telephone communications to, from, or with his office? The case is unusual in that it is related to the “bugging” and recording by An Garda Síochána of phone calls to and from a Garda Station, by gardaí, which bugging was objected to by other gardaí. But the principles apply to all citizens. But in the particular case, gardaí were bugging other gardaí.
All the defendants were gardaí. Three were charged with a serious assault on a man in a public street in Waterford. A fourth garda was in charge of the operation of on-street video cameras one of which should have covered the location of the assault and all of which were controlled from the communication room of Waterford Garda Station. This fourth member was charged with acting with intent to impede the apprehension or prosecution of another person, and also charged with acting in a manner intended to pervert the course of justice.
10. In the course of the trial, the prosecution wished to prove in evidence audio recordings of two phone calls, the first allegedly made by one of the accused from her private mobile phone to the fourth accused who answered the call in the communications room at Waterford Garda Station; and the second from the same accused, again to the fourth accused, but this time made from (a presumably state-owned) phone in the Garda Station. The defendants objected to the contents of these calls being proved in evidence on the grounds that the action of covertly recording them by An Garda Síochána was unlawful. The learned trial judge held that:
“The issue to be determined is the lawfulness or otherwise of the practice of An Garda Síochána at Waterford Garda Station in recording all incoming and outgoing calls on their public lines, and the admission of the evidence obtained under the use of such practices”.
11. There was, unfortunately, a stark conflict of sworn evidence between various garda witnesses called for the prosecution and the defence respectively as to whether the practice of recording the relevant calls had or had not been made known to members of the Garda Síochána serving in the relevant station. The learned trial judge held that:
“The fact that the calls were made, and indeed the content on the audio recordings, suggest to me that the defendants couldn’t have been aware that their calls were being recorded. The prosecution in my view has failed to establish beyond reasonable doubt that any of the parties to the phone calls were aware that their calls were being recorded and therefore… could not have consented or even acquiesced in the interception of their calls. In the circumstances I am satisfied that the practice engaged in by the gardaí of recording all incoming and outgoing calls was in breach of the provisions of s.98 of the Postal and Telecommunications Service Act, 1983 as amended by s.1 of the Interception of Postal Packets and Telecommunications Messages (Regulation) Act, 1993. The prosecution have not opened any other authority which would empower the gardaí to carry out such practices, and indeed nor am I aware of any such authority. Further, I reject the prosecution’s contention that the third and fourth-named defendants, as servants or agents of An Garda Síochána, must have consented to the interception of the calls on the basis that they are fixed with the consent of their employer, who was engaged in this practice. It is therefore my view that the evidence obtained in such an unlawful manner cannot be admissible, and it would be dangerous and unsafe to do so”.
12. This case illustrates the operation of the Exclusionary Rule. The defendants claimed that certain telephone calls had been intercepted and recorded in a manner which was not only unauthorised by law but which actually amounted to a criminal offence. It was a case of unlawfully, rather than unconstitutionally, obtained evidence although the defendants did not debar themselves off from arguing, if necessary, that an illegal act of interception infringed their constitutional rights. But they were successful in excluding the relevant evidence on the ground of illegality. In the result, three of the defendants were convicted and one acquitted.
It is pure co-incidence that, in this particular case of DPP v.Burke & Ors. both the officials who intercepted and recorded the calls, and the defendants who objected to the evidence, were, all alike, members of An Garda Síochána. The principles are the same no matter who the victims of unconstitutional or unlawful acts by public officials are, and even if they are Public Officials themselves, as the garda defendants were in that case.
Issues and conflicting values.
13. The case of DPP v.Burke & Ors. is an unusual one in that evidence was excluded on the basis that it had been unlawfully rather than unconstitutionally obtained. It is most unusual to exclude evidence on the ground of mere illegality, but it was fully within the discretion of the trial judge to do so. The rarity of such exclusion was declared by Mr. Justice Hogan in his dissenting remarks in the Report of the Committee on Balance in the Criminal Law, referenced below.
The case also illustrates the policy issues that often arise when considering the Exclusionary Rule.
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Some people would consider that all evidence, however obtained (except perhaps by torture) should be available to the Court or jury provided only that it is relevant or probative. Others would take the view that breach of the law by State officials, like a breach of the law by the humble citizen, must be noticed by the law and must have legal consequences.
14. Accordingly, DPP v.Burke & Ors. raised the issue of whether an employee, even a State employee, including a garda, shares with other citizens an expectation of privacy in her telephone communications (See Kennedy and Arnold v. Ireland [1987] I.R. 587). A garda is entitled to the same rights in this regard as any other citizen. Neither a garda nor anyone else can have this right breached by the State and the result of the breach proved in evidence against her in a serious criminal case. If it were otherwise, the Constitution could be breached with impunity, the rights it assures not vindicated, and there would be no disincentive to a public authority or an individual public official simply ignoring the law and even defying the Constitution. The breach would actually be rewarded when its fruit or result is admitted as evidence on the side of those committing the breach of the Constitution. This is to set the Constitution itself at nought. It is to infringe the Constitution a second time.
Those who take the first view (that all relevant evidence should be admitted, however obtained), might respond that it is not necessary for the vindication of the law and the Constitution that evidence obtained by a deliberate and conscious breach be excluded from the consideration of a court. Gardaí or others who breached the Constitution or the law, they point out, might be separately proceeded against and punished for doing so, without excluding the evidence they have gathered against the original defendant. This, of course, is theoretically possible but it is conclusively answered as an element in this discussion by the fact that, in the whole history of the State, no prosecution for breach of a citizen’s constitutional rights has ever been taken against a public official. This is so despite the fact that there are numerous examples in the judgments of the Court of illegal and unconstitutional activities by State officials. See, by way of example, The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550, DPP v.Shortt [2002] 2 I.R. 696, and the material in the fourth section of this judgment, below.
It now transpires that many thousands of hours of tape recordings of telephone calls to and from Garda stations were illegally recorded in recent years. [See below] Not one guard of any rank has been prosecuted for this.
Save to the extent that they have been specifically raised by the State, (see Part IV below) – this Court is not concerned with the policy issues. It is common case, I believe, that either an illegality or unconstitutionality in the gathering of evidence requires some meaningful reaction from a judge before whom the issue is raised.
15. I consider the Exclusionary Rule to be absolutely sound, and indeed to follow logically from the terms of the Constitution itself. If the Constitution and the rights it guarantees to citizens are to be taken seriously and are to be more than a shibboleth, mere words on a page, it must follow that no official, no matter how high or how important the office which he holds in the State, may breach the terms of the Constitution, and impose on or suspend the constitutional rights of another citizen. No ordinary citizen may do this, and DPP v.Kenny [1990] 2 I.R. 110 is authority for the proposition that officials of the State itself may not do it either. But the object of the present proceedings is to change all that and to permit unconstitutionally obtained evidence to be used at the discretion of a judge. As will appear below, experience shows that this discretion will almost always be exercised in favour of the State. The case of DPP v.Burke and Ors (where by coincidence all the defendants were gardaí) is an outlier. It is to be hoped that an ordinary citizen would be treated in the same way.
16. If the State have their way in this case, it will be possible to disregard breaches of the Constitution, and of constitutional rights and to admit the fruits of them in evidence just as if the Constitution had not been breached at all. In my opinion, that state of affairs, which is ardently desired by the State, would amount to “setting aside or circumventing” constitutional rights. In most cases, the engine of this would be a claim that the breach of constitutional rights was in fact simply inadvertent, a mistake, on the part of the members of the force publique. Experience shows that Courts are historically very receptive to such claims and extremely credulous of them. But a mistake of law, much less constitutional law, on the part of an ordinary citizen affords him no defence, even if he could establish it.
I am ashamed that our State is bringing this situation about.
I am not content that members of the force publique be privileged, and set apart from the citizens who pay them, in this way. I believe that once one breach of this kind is excused as “a mistake”, there would be many more “mistakes” occurring, and claiming to be excused in turn. The constitutional right will remain as words on a page, but all content will be sucked out of it. This result is absolutely foreseeable if the State succeed in its present demand. I am appalled that this Court, knowing all the material set out in Part IV of this judgment, and more, would bring this about.
17. In the present case, that of Mr. C., the objective of the State is to change the law and then to have Mr. C., who has been tried and acquitted, retried under a law radically changed at the behest of the prosecution. I regard this as wholly impermissible in principle, a negation of the concept of due process of law. I view this with abhorrence. It contradicts a long line of principled legal thinking, and our own legal authorities going back to the foundation of the State. This will be discussed below.
Nor can this difficulty be avoided by the Court simply deciding not to order a retrial in the instant case. The State claim that the Statute permits a retrial and it is that proposition that creates the negation, whether the power is exercised or not in any particular case. I have no doubt the State would readily sacrifice a retrial in this particular case to secure the right to retrial in very many others and the ability to avoid the necessity for retrial in still more cases.
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18. The mechanism whereby this change is sought to be brought about is almost equally controversial. It is that of an appeal permitted to the State only since the year 2010, and for a wholly different purpose. This right of appeal was permitted to the State against purported erroneous rulings of law by a trial judge. The trial judge in this case, made no error of law, but merely followed the prior decisions of the Superior Courts which were binding upon her. But the State dislikes these prior decisions in themselves, and DPP v.Kenny [1990] 2 I.R. 110 in particular. The State is, in my opinion, misusing and abusing the limited right of appeal granted in 2010 for a purpose for which it was not intended and for which it is not in any way apt. If the law is to be changed, that is the role of the legislature or of the People. Nowhere in the parliamentary proceedings in Oireachtas Eireann was the prospect of an appeal such as this even hinted at. No-one reading s.23 in Bill form could have guessed that it could it could be read so as to permit what the State now purpose.
19. I also consider that, contrary to what is specifically urged in the State’s submissions, the present time is not a suitable one to make the change of the kind proposed, specifically in light of grave and most alarming difficulties with the gardaí which are in the public domain. I would not have commented on this policy issue had not the State specifically raised it in their submissions. See Section IV, below.
20. In 2010, the Oireachtas passed the Criminal Procedure Act of that year. Section 23 of this measure provides for an appeal by the prosecution against erroneous rulings on law by the Judge who presides at a trial. The Judge in this case of Mr. J.C. was Judge Mary Ellen Ring, a judge of the Circuit Court sitting in the Waterford Circuit Criminal Court. She followed the law as laid down in two cases decided by this Court, Damache v. Ireland [2012] IESC 11, [2012] 1 I.R. 266 and DPP v.Kenny [1990] 2 I.R. 110. In doing so she made no error. She followed the law as laid down by this Court as she was bound to do. The judgments in each case were those of the Chief Justice of Ireland at the time, Denham C.J. and Finlay C.J. respectively.
21. But the prosecution dislike the law as laid down. By a grave abuse of a statute providing an appeal against errors of law by a trial judge, the Director of Public Prosecutions seeks to change that law itself. The Director can not allege that Judge Ring erred in following the law, or even that she could lawfully have done other than follow it, but asks this Court to change the law itself, and to have Mr. C., who has been acquitted on the law as it stands and stood, retried under a new law. This new law, whatever it might transpire to be, did not exist at the time the State put Mr. C. on trial, still less at the earlier time when the offences alleged against him were said to have occurred. If the trial judge had made an error, the retrial would take place under the law as it truly was at the time of the trial. But that is not the position here, and the new law will have been devised after the acquittal, at the request of those whose very purpose is that of setting that acquittal aside, and substituting a conviction for the same offence of which Mr. C. has been lawfully acquitted. This is ex post facto law, something the Common Law has condemned for centuries: see Section III below.
22. I do not believe that such an appeal lies to this Court. I say this for the reasons set out below, in the second Section of this judgment. More particularly, I question if s.23 can be read to allow the Courts to force a citizen to stand trial, and be placed at risk of his liberty, perhaps for many years, in one state of the law and then, when the prosecution lose a properly conducted trial, force him to stand trial again, at the suit of the prosecution, for the same offence but in an altered state of the law, newly procured by the prosecution. And this after they lost a trial which they themselves choose to initiate against the citizen, well knowing exactly the state of the law at that time. This is gamesmanship of the worst and most cynical kind by public officials. It will not be approved in my name.
23. I do not believe, for the reasons set out below, that the 2010 statute permits this, when properly and constitutionally construed. I believe that the prosecution is precluded, by the public prosecutor’s own action in forcing Mr. C. to trial, knowing the state of the law that offered an argument to the defence, from seeking a new and separate trial after the Director has arranged for the rules to be changed. Needless to say, no such right exists in the citizen who is brought to trial. He, just like the prosecution up to now, can appeal against errors in stating or applying the existing law made by the trial judge, but there is no mechanism available to him to bring about a change in the law itself. This position of gross inequality has been aptly described in the authorities as “an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively”, by Finlay C.J., quoted below. It is totally at variance with the notion of “due process of law”.
I wish to emphasise that the underlying rationale of DPP v.Kenny [1990] 2 I.R. 110 is the constitutional necessity and obligation for the Courts to vindicate the words of the Constitution so that they have a practical meaning and are not simply words on a page.
The State’s case on jurisdiction.
24. Having regard to the obvious statutory need (see below) for the State to show error by the trial judge, and to the finding that the learned trial judge in this case did no more than she was obliged in law to do i.e. was obliged in law to do what she did, the State faced obvious difficulty in showing jurisdiction to entertain this appeal. It sought to avoid this on the basis of a peculiar paradox cleverly and beguilingly advanced as representing the true state of the law by Mr. Brian Murray S.C., counsel for the appellants. The argument itself, however, must be attributed to the State and not to counsel personally: I say this because I believe the argument to be meretricious in a high degree. It was this:
“A trial judge who follows the precedent which is itself later found to be wrong by this Court, herself errs in doing so, even if the precedent was binding upon her so that she was obliged to follow it”.
25. This is a sort of self-serving Catch 22 advanced by the State because of the need to show that Judge Ring “erred” in some sense in following DPP v.Kenny [1990] 2 I.R. 110 , even though she was obliged in law to follow that precedent and therefore correct in law in following it. This is a Catch 22 in the sense that, on the State argument, the learned trial judge would have erred no matter what she did. It is conceded that Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110. Therefore she would have erred if she had not followed that case. As one of my colleagues says, she had no option but to follow it. But the prosecutor nonetheless contends that in following that case she erred because (the State anticipates confidently) this Court will shortly overrule DPP v.Kenny at the request of the Director of Public Prosecutions.
26. Once it is conceded or established that Judge Ring was “obliged” in law to follow DPP v.Kenny [1990] 2 I.R. 110, it is obvious that she did not “err” in law in doing so. I do not understand the sense in which it can be said that a trial judge in a court of law who does what the law obliges her to do can nevertheless be said to err in law in doing so, nor how is it said that she erred? She is said to have erred because it is to be assumed that at some later day this Court will find that DPP v.Kenny [1990] 2 I.R. 110 was wrongly decided.
27. There can be no doubt that in July 2012, the date of Judge Ring’s ruling, DPP v.Kenny [1990] 2 I.R. 110 was binding law which the judge was obliged to follow. This, indeed, is stated in the judgment of Clarke J. in this case, para. 2.8 of that judgment. At the place mentioned Mr. Justice Clarke says:
“It is not, as has been pointed out, suggested by anyone that the trial judge did not correctly apply the exclusionary rule in the manner in which that rule is addressed in Kenny, and did not do so in a proper fashion”.
Having conceded that, Mr. Justice Clarke continues, in the same paragraph:
“Can it be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case Law of a higher court, by which that judge was bound…?”
(All emphasis added)
Earlier, at para. 1.2, Mr. Justice Clarke had the following to say:
“There was no dispute on this appeal that, applying the exclusionary rule as so defined .Her Honour Judge Ring was obliged to exclude the evidence concerned”.
That statement is self-evidently true. I therefore agree with it. The case, accordingly, must proceed on the basis that Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110 and to exclude the evidence. Nevertheless the prosecution must contend, and do contend, that the Judge “erred” in following DPP v.Kenny [1990] 2 I.R. 110 and in excluding the evidence. See the pithy statement by Mr. Murray S.C. set out above.
28. Mr. Justice Clarke, in fact, goes further. At para. 1.3 on the draft previously mentioned he says:
“… it is accepted that the trial judge had no option but to decide as she did given that she was bound by the decision of this Court in Kenny.
(emphasis added)
These propositions illustrate the complete bankruptcy of what I have called the “self-serving paradox” on which the State’s case on the jurisdiction issue is fundamentally based. Judge Ring was “obliged” to follow DPP v.Kenny [1990] 2 I.R. 110; she “had no option” but to do so. But nevertheless, it was solemnly contended in the Supreme Court that she “erred” in doing that which she was obliged in law to do, that which she had no option but to do. If that were so the law would indeed be an ass. I am ashamed that our State has stooped to this argument.
29. There is a famous passage in the English case of Liversidge v. Anderson [1942] AC 206 in which the House of Lords in the neighbouring jurisdiction were asked to uphold the proposition that a power of detention during World War II which could be exercised “if the Home Secretary had good reason” to think that it was necessary to do so, should be read as meaning that a person could be detained without the Home Secretary having any demonstrable good reason to believe that, so long as that Minister sincerely believed that he had good reason. Shamefully, the House of Lords, with only one dissent, accepted this utterly illogical argument. Had the decision continued to hold sway, the entire of the subsequent development of Administrative Law in England would have been frustrated. In fact, of course, this embarrassing decision was, as inconspicuously as possible, abandoned over the following five decades. In a famous passage in the original case the sole dissenter, Lord Atkin, (the greatest British jurist of the mid-twentieth century), declined to accept that “if a man has” means the same thing as “if a man thinks that he has”, even if the man in question is the Home Secretary.
In deconstructing the argument for the Crown, Atkin said at p. 241 that the only authority he could think of to support it was Humpty Dumpty’s assertion in Alice through the Looking Glass, “in rather a scornful tone” that “when I use a word it means just what I choose it to mean, neither more or less”. Atkin set out the passage in which that ludicrous statement occurs at some length.
30. I have often thought of Lord Atkin’s citation but have never felt the need to set it out in a judgment, largely because it is so well known to lawyers that a mere mention of the case calls it to mind. I do not set out here, either, but for the quite different reason that there is nothing, even in Alice in Wonderland, Alice through the Looking Glass or elsewhere in the works of Lewis Carroll, which could be cited to justify so manifest a self-serving contradiction as that contained in the paradox which is the basis of the State’s case. But Liversidge v. Anderson [1942] AC 206 shows that the State or Crown is as capable of a meretricious argument to suit its purpose as any other litigant. Joseph Heller’s “Catch 22” is the only authority I can think of to support the paradox which the State has advanced.
That paradox, quoted above as Mr. Brian Murray advanced it to this Court on behalf of his client, means that Judge Ring was obliged to follow DPP v.Kenny [1990] 2 I.R. 110; that she had “no option” but to follow DPP v.Kenny [1990] 2 I.R. 110; that in following DPP v.Kenny and excluding the relevant evidence she acted “correctly” and “in a proper fashion”. But despite this, the State are obliged and willing to argue, she “erred” in following DPP v.Kenny.
31. The reason why I say the State “were obliged to argue” this point is that, to quote Mr. Justice Clarke again:
“It will be seen that, in order for an appeal to lie under s.23(3) there must be an error on the part of the trial judge in the sense that evidence must have been erroneously excluded…”.
(Emphasis added)
32. In other words, in the view of Mr. Justice Clarke, and in my own view, an error “on the part of the trial judge”, must be established for jurisdiction to entertain this appeal being found to exist.
Mr. Justice Clarke, indeed, goes on to say at par. 2.9:
“… if the suggestion that section 23 can not be used as a means of inviting this Court to reconsider clear previous authority which bound the trial judge in question is correct, then three could be no basis for the D.P.P. seeking to invoke that section in the circumstances of this case.”
33. This passage concedes, or appears to me to concede, a number of points. The first is that DPP v.Kenny [1990] 2 I.R. 110 is a “clear previous authority”. The second is that DPP v.Kenny [1990] 2 I.R. 110 is an authority “which bound the trial judge”. It is perfectly true to say that if the argument for the respondent or jurisdiction is well founded then s.23 cannot be used as a means of revisiting DPP v.Kenny. But there is no question of the prosecution being thereby stymied in their attempts to have DPP v.Kenny revisited. At para. 2.11 of the draft of Mr. Justice Clarke’s judgment from which I have been working he says, and I agree that:
“… it would be possible for the DPP to refer a question of law to the Supreme Court “without prejudice” to the acquittal, under s.34 of the Criminal Procedure Act 1967, as substituted”.
I cannot see why the point arising in the present case could not have been referred to the Court under the last mentioned Section. That would avoid what to me is the enormous difficulty, and rank illegitimacy, that we are being invited to change the law and then order a retrial in that changed state of the law. I do not believe that this is possible anywhere in the world. It need not have been proposed here.
Equally, the employment of s.34 would avoid what I can only call the jesuitical paradox used to try to establish jurisdiction under s.23. There is no need, for the purposes of s.34, to establish any “error” by the trial judge, much less whether she “erred” in law by doing that which she was obliged in law to do. This is a quite unnecessary burden imposed by the DPP’s peculiar procedural choice.
Squaring the Circle.
34. I now turn to the substance of the State’s submission and its acceptance in Mr. Justice Clarke’s decision on the jurisdiction point, set out in para. 2.13ff of the draft from which I am working. His “starting point” is to assume, “for the sake of argument”, that DPP v.Kenny [1990] 2 I.R. 110 was “wrongly decided”.
35. It will be noted, therefore, that the mechanism of the decision is an “assumption”. The latter presumes that “…Kenny was wrongly decided, and that, applying the proper test, the relevant evidence should have been admitted.” Therefore, the reasoning goes, “…it is clear that the decision to exclude that evidence was wrong.” ( par. 2.14)
36. But Mr. Justice Clarke goes on to record (para. 2.14) that “even though that decision was wrong, it is suggested that it cannot be said that the trial judge, in making that decision, erroneously excluded the relevant evidence because the trial judge was, it is accepted, bound to follow DPP v.Kenny [1990] 2 I.R. 110.
37. The conclusion set out in the penultimate paragraph which is acquiesced in by the majority of the Court, involves squaring the circle just described by the negatively expressed finding:
“The fact that a trial judge may have been bound to follow what transpires to be an erroneous decision of this Court does not prevent the trial judge from being properly described as having erroneously excluded relevant evidence”.(par. 2.21)
38. I believe this conclusion to be radically wrong. The most fundamental reason for this is that it wholly ignores the actual sequence of events. That is, it wholly ignores the fact that the learned trial judge made a decision at a particular time, and not at a hypothetical later time by which time the law had, it is assumed, been changed. The only vague acknowledgement of the temporal dimension is the phrase “what transpires to be”. But this is the heart of the matter. The argument, accepted by the majority, starts with an assumption, which I have generally found to be an unsound basis for argument. It is a mechanism for ignoring inconvenient facts. The assumption here is that DPP v.Kenny [1990] 2 I.R. 110 “was” wrongly decided.
But in July 2012, the date of Judge Ring’s ruling, DPP v.Kenny [1990] 2 I.R. 110 was binding law which the learned trial judge was obliged to follow and “had no option” but to follow. Therefore she did not in fact err in following DPP v.Kenny and, pace Clarke J., precisely because she did not actually err in following DPP v.Kenny she cannot properly be described as having acted erroneously, by reason of the fact that she followed that case.
39. Moreover, the rather tentative form of words in which the conclusion of the majority has been expressed – “does not prevent the trial court from being properly described as having erroneously excluded relevant evidence” – rather than “erred in excluding relevant evidence” ( Clarke J., par. 2.21) seems to me to imply that the learned trial judge might also, or alternatively, be described with equal propriety as having acted correctly in excluding evidence because she was bound by DPP v.Kenny [1990] 2 I.R. 110 to do so. Indeed, this conclusion seems inescapable because, as Clarke J. said in a passage already cited at par. 27 supra, “it has not been suggested that the judge did not apply the Exclusionary Rule in the manner in which that rule is addressed in DPP v.Kenny [1990] 2 I.R. 110, and did not do so in a proper fashion”.( Clarke J., par. 2.8) This is a double negative (often a sign of discomfort), but its substance is that Judge Ring applied DPP v.Kenny in a proper fashion.
The State’s reasoning on this point, therefore, seems to me to have the absolutely extraordinary consequence that the learned trial judge was both correct (in excluding the evidence), because she was “obliged” to do so and “had no option” but to do so, but, at precisely the same moment, was also wrong in excluding the self-same evidence in the self-same ruling because of the assumed need to act on the basis that DPP v.Kenny [1990] 2 I.R. 110 might, at an unspecified date some unspecified number of years later, be overruled by this Court. I believe that the foregoing mutually contradicting propositions follow inexorably from the self- contradictory paradox which is at the heart of the State’s case, and from the terms in which it was accepted by Clarke J. It must be borne in mind that what is before us is an appeal in a specific case, and not an academic proposition for theoretical discussion.
40. The appeal is not a moot but is from a specific decision, that of Judge Ring in July 2012. We simply cannot, if we have any respect for the law and for our own processes, hold that Judge Ring was both right and wrong simultaneously, in the ruling she made, but that the fact that she was, in some sense, wrong, is enough to ground a s.23 jurisdiction even though she was, simultaneously, in another sense, right (because she was “obliged” in law to follow the precedent and “had no option” but to do so).
There is nothing like this, even in Alice in Wonderland.
41. In my view, the logical dilemma with which the State are confronted is sought to be resolved by ignoring the actual sequence of events. The question is not whether Judge Ring “erred” in some abstract, theological, out of time sense: it is whether she was wrong in making the specific ruling she did, on the day on which she did it, which was the 18th July, 2012. It was made on that day, and not on some later, different hypothetical day. The issue of whether or not she erred must be judged as of the 18th July 2012, and on the basis of the law as it then stood. Anything else is mere speculation, based on a foolhardy decision to ignore the actual, historic and unalterable sequence of past events.
42. As of that date, two relevant features of the law existed and were binding upon Judge Ring. These were (a) the Supreme Court decision in DPP v.Kenny [1990] 2 I.R. 110 and the decisions of the Superior Courts which followed from it and (b) the obligation, discussed elsewhere in this judgment, and in any event undisputed, on the learned trial judge to follow binding precedent in the form of DPP v.Kenny [1990] 2 I.R. 110 and its derivatives.
43. I wish to emphasise that, in my view, the need to follow binding precedent is not simply a matter of judicial comity or respect for the higher courts, or a matter of mere procedure. It is the existence of that duty, and the obligation to follow it which alone makes the law which is to be applied at all predictable and confers on it anything approaching legal certainty at the time of any particular trials. A trial under a law which lacks legal certainty is not a trial “in due course of law”. It is a lottery.
44. I cannot too strongly dissent from the technique which was adopted of using as a “starting point” the assumption that DPP v.Kenny [1990] 2 I.R. 110 was wrongly decided. If one “assumes”, in any circumstances, that either the law or the facts were different from what they manifestly were at the relevant time, some years previously, one will naturally and inevitably (even intentionally) come up with a conclusion that the decision made at the time was wrong. This “assumption” cannot be used to invalidate the decision of Judge Ring, or to stigmatise it as “error”, unless it is also held that Judge Ring was obliged, in July 2012, to “assume” that DPP v.Kenny[1990] 2 I.R. 110 was wrongly decided. She was not so bound. Indeed, since it has been held that she was obliged to follow DPP v.Kenny, she could not be so bound. I have to say that the State’s contention in this regard is nonsense on stilts, full of self-contradiction.
45. In my view the State’s argument is both jesuitical and theological in the worst sense of these terms. It allows the maker to propound a theory which is manifestly at variance with the known facts on the basis of some a priori axiom, which the maker is bound by blind faith to accept. This is here expressed in an unargued assumption, and backdated, and said to apply retrospectively. This is a self-conscious departure from reality and I cannot acquiesce in it, especially not in order to deprive the citizen of the long established constitutional right, not to be retried after acquittal under a new law, but for the same offence.
The known facts are that DPP v.Kenny [1990] 2 I.R. 110 held what it did and was binding on Judge Ring in 2012 and Judge Ring was obliged to follow it in 2012. She had no option but to do so. But these facts are sought to be reduced to irrelevance, in the State’s argument, by ignoring the fact that DPP v.Kenny [1990] 2 I.R. 110 was binding on Judge Ring in July 2012. This was done by the “assumption” that DPP v.Kenny was wrong. This assumption is expressly made. But, to be any use to the State, we must further assume that DPP v.Kenny was then wrong. There is not a word of argument directed to this second assumption. It is not even expressed. But once it is made, it permits as dramatic piece of result oriented jurisprudence as there has ever been in Ireland. It also sets the law dramatically at variance with common sense notwithstanding the well known dictum of Chief Baron Palles that the law and common sense “should walk hand in hand” [Reg. (Mackey) v. Justices of Co. Limerick [1898] 2 I.R. 135]. I do not accept the “legal theory” mentioned at para. 2.15 of Clarke J.’s judgment. It is simply at variance with reality. Clarke J. does not himself go so far as expressly to endorse it.
46. The categories of correctness, on the one hand, and error on the other, used in a legal sense, are as clear and as mutually exclusive as are, for example, the categories of “guilty” and the contrasting and inconsistent category of “not guilty”, or the category of those who are on the “right” or on the contrary on the “wrong” side of the public highway or the category of motorist who goes through a green light, and that other category who goes through a red light.
In philosophical discussion it may be possible to debate whether a person may not be in some sense “guilty” and in some different sense “not guilty” of the same offence and so on. But this form of discussion is not admissible in law because the law is required to make a specific decision, about a specific individual, at a specific time and place, and then to act upon it. Equally, the law is required to be rigorously logical and not to indulge in unreal self- contradictory and overly clever paradox of the sort on which the State case is based.
47. I do not believe that a judge presiding and making rulings at a criminal trial on indictment, with manifestly serious consequences for the defendant on conviction, can be regarded both as having erred, because the binding decision which she followed might at some unstated future time be found to be wrong; and at the same time be said to be correct because she was bound to follow that binding authority, she “had no option” but to do so. I repeat that I regard this argument as meretricious. I am deeply disappointed, indeed aghast, to see this line of argument employed to create an opportunity to override one of this Court’s previous decisions, to the detriment of a citizen who was lawfully acquitted in the State of the Law as it stood when the Public Prosecutor put him on trial, on 18th July 2012 and on no other day.
[II]
48. This is a purported appeal by the prosecution against the acquittal of the defendant, Mr. C., after a trial with a jury in the Waterford Circuit Criminal Court (Her Honour Judge Mary Ellen Ring) on the 19th day of July 2012.
49. It is a “with prejudice” appeal, to use a statutory phrase. That is, the prosecution claim to be entitled to have the defendant retried on the self-same charges on which he has been acquitted. There are other, “without prejudice” procedures available to the State, but they have, very deliberately, not been used.
See s.34 of the Criminal Procedure Act of 1967, as inserted by s.21 of the Criminal Justice Act of 2006.
Neither is it suggested that new or different evidence is available to the prosecution. A statutory right to appeal an “error” by a trial judge is being misused in order to change the law of the land, without any democratic mandate, and even though the trial judge made no error.
50. This is the first attempt, under legislation dating from 2010, to have a defendant retried after an acquittal. Previous attempts to do so, prior to the Act of 2010, had failed. The attempt gives rise to a considerable number of difficulties and to major issues of principle.
51. The first of these is as to whether this appeal lies at all. Irrespective of whether the finality of an acquittal is an aspect of the constitutional right to a trial “in due course of law” (Article 38.1) or to trial by jury (Article 38.5), it is a fundamental right at Common Law, “an ancient and universally recognised constitutional right” according to Lord Birkenhead, cited below.
I do not believe that, apart altogether from questions of constitutionality which are not before us today, for reasons which I do not understand, the right of appeal created by s.23 of the Criminal Procedure Act of 2010 extends to an appeal such as this, where it is sought “to overrule the decision of the majority in DPP v.Kenny [1990] 2 I.R. 110 so that it no longer forms part of Irish law”, and to have a retrial after an acquittal based on that overruling.
I do not believe for a moment that a statutory right of appeal against an error in law by a trial judge extends to an attempt to overrule an established authority, decided twenty-five years previously, which was binding upon that trial judge. The State’s contention in this regard is every bit as contrived as was the Crown’s submission in Liversidge v. Anderson [1942] AC 206 and can be justified only in the manner identified by Lord Atkin in that case.
52. The foregoing is the most deep-rooted of the considerations which have led me to the conclusion that this appeal simply does not lie. But there are other reasons as well, consistent with the first. Based both on commonsense and on authority, there is no doubt that there is a power in a Common Law Court, in restricted circumstances, to arrive at conclusions which develop, or assist in the evolution of, the Common Law. But there is high authority, Irish, English and American, for the view that such development should be “interstitial” only: see below.
Most relevant of all these is an Irish case, Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436. There, this Court was invited to amend the long standing Common Law defence to a defamation action, that of qualified privilege. The Court refused to do so for a number of reasons which are set out on pages 499-450 of the Report. The most immediately significant of these was that the proposed reform should more properly be affected by statute and that the public policy which would be represented by a new formulation of the law should more properly be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”.
The reform of the law of qualified privilege is an important matter. But it does not approach in general importance the issue we are concerned with here, whether a citizen whose constitutional rights have been breached, and evidence obtained by that breach, is liable to have the fruit of the breach adduced against him in a Court of Law, a Court whose presiding judge will have undertaken to uphold the Constitution.
The s.23 procedure is an appeal on a point of law only. It lies, where it lies at all, direct to this Court. There is no scope for factual evidence or cross-examination on the question, for example, of whether policy laid down in DPP v. Kenny [1990] 2 I.R. 110 was wrong, whether it has been overtaken by subsequent events, whether the costs of the Exclusionary Rule have come to outweigh its benefits. There is, in other words, no scope whatever for a fact-and-evidence based inquiry as to whether the conditions under which alone this Court can set aside one of its own previous decisions are met. I therefore find that, apart altogether from the jurisdictional difficulty which must be seen as fundamental, this procedure is inadmissible and should not be followed, unless one is to disregard the authority and the jurisprudence of Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436, as well as that of DPP v.Kenny [1990] 2 I.R. 110.
Finality of Acquittal.
53. There is no doubt that, since the enactment of the Constitution, and for centuries before that up to 2010, an acquittal on a criminal charge by a court of competent jurisdiction was final and conclusive. Non bis in idem: no one can, after acquittal, be again prosecuted for the same offence. This, as a historical proposition, is agreed by the Law Reform Commission, by the Committee on Balance in the Criminal Law, and is established in many judicial decisions. Trial after trial is an acute form of harassment, not least in Ireland where one can easily await trial for years, even in a simple case.
Ne bis in idem, across history, cultures and continents.
54. Before considering the Irish, English and American cases on the principle that no person may be tried twice for the same offence, it is worth noting that the principle itself is of great antiquity and has been recognised across centuries and across many diverse cultures. The briefest account of the ancient roots of the tradition may put the more recent cases in context and may explain why, for many centuries, and even in cultures not renowned for their care of persons accused of criminal offences, this principle has been adhered to.
In ancient Greek times, Demosthenes in his “Speech against Leptines” delivered circa 355BC, almost 2,500 years ago, declared that:
“The law forbids the same man to be tried twice on the same issue”.
The Romans codified this principle in Justinian’s “Corpus Juris Civilis”, between 529 and 534AD. See Olynthiacs, Phillippics (J.H. Vince, trans. Harvard, 1998)
The principle survived the Dark Ages, notwithstanding the deterioration of other Greco-Roman legal traditions, through the Canon Law and the teachings of the early Christian writers. The Corpus Juris (ibid at 199) noted that “an acquittal by a magistrate in a criminal prosecution barred further proceedings of any kind against the accused”. This was so, then, in the fourth century before Christ, and in the sixth century after Christ, in the most civilised parts of the then known world.
The canonical principle “ne bis in idem” is regarded as a principle of natural law based on St. Jerome’s commentary on the prophet Nahum who said in Part I of his Book which is part of the Old Testament:
“Deus non Iudicat bis in id ipsum” – (Nahun 1.9)
“God himself does not adjudicate twice in the same matter”.
55. In Double Jeopardy: a reference guide to the United States Constitution by Professor David Stewart Rudstein (2004) at pages 3 and 4, the historical origins of the principle are taken on from Jerome’s commentaries on Nahum as follows:
“ …[A]round 1140, Gratian, a Camaldolese monk who taught in Bologna published his Concordantia Canoum, known as the Decretum”
This contained a massive citation of authorities from the past including Canons of Church Councils, scriptural passages and decisions of Popes. The Decretum contains at least two references to double jeopardy. The first, which seems to echo the dictum of Nahum as quoted above says “the scripture holds, God does not punish twice in the same matter”. The second states “whether one is condemned or absolved there can be no further action involving the same crime”. (ibid)
According to this authority the Canon Laws prohibition against double jeopardy emanated from the interpretation of St. Jerome of Nahum 1.9. St. Jerome’s interpretation of the verse entered Church Canons by the year 847 and was stated as “not even God punishes twice for the same act”. See Bartkus v Illinois, 359 U.S. 121 (1959) (Black J.)
56. Bartkus v Illinois 359 U.S. 121 (1959) was a case of a man who was tried in Federal Court on a charge of Bank Robbery. He was acquitted by a jury. A few days later he was tried on the same charge in the State Court of Cicero, Illinois. He was convicted and sentenced to imprisonment for life.
His challenge to this failed on grounds to do with the State’s prerogatives against the Federal Government. But no-one dissented from the following historical summary of Justice Black in the U.S. Supreme Court (359 U.S. 121, at pp. 151 to 155):
“Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century it seems to have been firmly established in England, where it came to be considered as a “universal maxim of the common law.” It is not surprising, therefore, that the principle was brought to this country by the earliest settlers as part of their heritage of freedom, and that it has been recognised here as fundamental again and again. Today it is found, in varying forms not only in the Federal Constitution, but in the jurisprudence or constitutions of every State, as well as most foreign nations. It has, in fact, been described as a part of all advanced systems of law and as one of those universal principles “of reason, justice, and conscience, of which Cicero said: ‘Nor is it one thing at Rome and another at Athens, one now and another in the future, but among all nations it is the same’. While some writers have explained the opposition to double prosecutions by emphasizing the injustice inherent in two punishments for the same act, and others have str4essed the dangers to the innocent from allowing the full power of the state to be brought against them in two trials, the basic and recurring theme has always simply been that it is wrong for a man to “be brought into Danger for the same Offence more than once. Few principles have been more deeply “rooted in the traditions and conscience of our people.”
From there, the U.S. jurisprudence is surveyed in Benton v. Maryland 395 U.S. 784 (1969) and other cases discussed in the judgment of Henchy J. in O’Shea v. DPP [1985] I.R. 384, below. See also Kenneth G. Coffin: Double Take 85 Notre Dame L. Rev. 771 (2010).
57. The state of the Common Law of England around the time of American Independence is well stated in Blackstone’s Commentaries as follows (Volume IV, Chp. 26, p. 265, par. 335, CAVENDISH Publishing Ltd., 2001):
“The plea of autrefois acquit… is grounded on this universal maxim of the common Law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” (ibid)
___________________________________________________________
58. This language of Blackstone is echoed in the Fifth Amendment to the United States Constitution which famously states:
“… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb”.
59. Precisely the same principle is found in Article 50 of the Charter of Fundamental Rights of the European Union:
“No-one shall be liable to be tried or punished again in criminal proceedings for which he or she has already been finally acquitted or convicted within the Union in accordance with the law”.
60. Article 4 of Protocol 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms provides:
1. “No-one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State”.
61. Similarly, by Article 54 of the Convention Implementing the Schengen Agreement (2000) (CISA):
“A person whose trial has been finally disposed of in one Contracting State may not be prosecuted in another Contracting Party for the same acts…”.
From the foregoing material it is clear that the principle ne bis in idem has a history going back over thousands of years and was acknowledged in both the Judeo-Christian, Greek and Roman legal traditions, throughout the history of the Common Law, and is now, in our own time, trenchantly expressed in the law of the European Union, the Council of Europe, and the Schengen area. It is also enshrined in the United States Constitution and in Article 14 of the International Covenant on Civil and Political Rights.
62. In Zoran Spacic ([2014] EUECJ, Case C129/14 PPU) the ECJ held that Article 50 of the CFREU, cited above, applied not only trans-nationally in the Member States but also internally within in the jurisdiction of a Member State. The ECJ noted that, by Article 52 of the same Instrument the European Union was permitted to provide “even more extensive protection” than the ECHR. It noted that the guidance notes for the CFREU regarded Article 50 of that Instrument as equivalent to Article 4 of Protocol 7 to the ECHR and specifically requires Member States to uphold Article 50, CFREU.
Spacic was subject to prosecution in Germany for committing fraud against a German citizen following prosecution for the same facts in Italy. The ECJ upheld the condition in Article 54 CISA (above) which allowed subsequent prosecution where his sentence in Italy had not been executed.
The ECJ held:
“Article 54 of the Convention implementing the Schengen Agreement… is compatible with Article 50 of the Charter of Fundamental Rights of the European Union, in which that principle is enshrined”.
In Zoran Spacic [2014] EUECJ, Case C129/14 PPU) , Advocate General Jaaskinen, in his Opinion to the court ([2014] EUECJ C-129/14_O), referred to the seminal ECHR case on Article 4 of Protocol 7, Zolotukhin v. Russia [2009] ECHR 252, (2012) 54 EHRR 16, which held that the Protocol was equivalent to Article 50 of the Convention. He distinguished Article 4 of Protocol 7 from Article 54 CISA, on the basis that the former covered “… both the prohibition of double prosecution and that of double punishment”.
The Advocate General also noted that para. 2 of Article 4 allowed a case to be reopened in accordance with law if either there was new evidence or a defect in the proceedings.
There is no suggestion that new evidence exists in the present case. It may well be that the mention, in s.23, of the need for “error” is designed to comply with the “defect in proceedings” requirement.
In that regard, the Advocate General noted much difficulty and discussions around the concepts of “offence” and “finality”. He noted that in Zolotukhin v. Russia [2009] ECHR 252, (2012) 54 EHRR 16 the Strasbourg Court clarifies the concept of offence or “idem” as “same set of facts”. In that case, the Strasbourg Court emphasised a harmonious approach to the definition of “idem” in line with Article 50 CFREU and the seminal United States case of Blockburger v. United States 284 U.S. 299 (1932), as necessary to the principle of legal certainty. The Strasbourg Court continued at pars. 79 to 82:
“Such an approach would favour the perpetrator, who would know, once he had been found guilty and served his sentence or had been acquitted, he need not fear prosecution for the same act…
It reiterated that the Convention must be interpreted and applied in a manner which rendered its rights practical and effective, and not theoretical or illusory.
Accordingly, the Court takes the view that Article 4 of Protocol 7 must be understood as prohibiting the prosecution or trial of a second ‘offence’ in so far as it arises from identical facts or facts which are substantially the same…”.
I am, accordingly, inclined to the view that the ne bis in idem principle prohibits retrial except in cases of fresh evidence or error.
The State has no locus standi to bring a s.23 application in the absence of either of these exceptions and the Court has no jurisdiction to grant relief either.
63. In the present case, the State itself does not submit that there is new evidence: for the reasons set out in this judgment I do no believe that there was error on the part of the learned trial judge”.
64. In Van Bockel, “The Ne bis in idem Principle in EU Law” (2010) Kluwer Law International, the Netherlands, the learned author placed the rationale of the principle as follows, from the point of view of European Law:
“The principle of ne bis in idem is a fundamental principle of law, which restricts the possibility of a defendant being prosecuted repeatedly on the basis of the same offence, acts or facts. The principle has a long history: the earliest known reference to the ne bis in idem principle originates from approximately 355BC… It is believe that the protection against double jeopardy the equivalent of the ne bis in idem principle at Common Law is as old as the Common Law itself. Although the ne bis in idem principle is universally recognised in its application within domestic legal systems, there is no rule of mandatory public international law offering international protection against double jeopardy in international situations. Because of this, conduct giving rise to criminal liability in more than one jurisdiction is traditionally regarded as constituting separate offences in each of the jurisdictions concerned… the creation of an EU wide ne bis in idem rule would follow logically from the nature of European integration in general, and the increasing criminal law relevance of the EU in particular”.
65. In this judgment I do not offer a final or concluded view of this case of J.C. on the basis of European Union or Council of Europe Law. This is primarily because I have been able to conclude that this appeal is incompetent and does not lie on the basis of Irish law. It is also because the European Law, like Irish constitutional law, was not argued for reasons which I do not understand.
In this instance, of course, the question of “final” acquittal may depend on the view one takes as to whether or not an appeal with the object of changing the law, and obtaining a retrial for the same matter in the changed state of the law, is or is not within s.23.
66. The Court is of course quite free, if it thinks fit to do so, to distance itself from the accumulated wisdom of the European, American and Judeo-Christian cultures in this regard. I do not think that wise, proper or even prudent.
If the Court does think it wise to take this serious step, it is to be hoped that Ó Dálaigh C.J.’s caution will be borne in mind. Safeguards like jury trial (and, I would say, like DPP v.Kenny [1990] 2 I.R. 110) exist to guard against an “improbable but not-to-be-overlooked future” contingency. (Melling v. Ó Mathghamhna [1962] I.R. 1)
67. Oppression and imprisonment, torture, exile or worse without trial or with secret tribunals created by and beholden to some power-wielding body, have not existed in this State for generations. But if, at some stage in the future a government were to come about, difficult as it may be to imagine, without the established tradition of legality, restraint, and respect for Human Rights which have characterised our governments for generations, would the authoritarian tendency of such a government be assisted or hindered by the cutting down of DPP v.Kenny [1990] 2 I.R. 110. I have no doubt it would be assisted, which is one reason why I will have no part in what is proposed.
68. It is true that various countries, led by Great Britain, in the Criminal Justice Act (2003), have permitted retrial after acquittal in very restricted circumstances. These typically include, as in the case of Britain, a “tainted” acquittal i.e. one procured by threats or bribery, or a retrial based on “new and compelling evidence”, unavailable at the time of the first trial. Three Australian States have adopted some variant of the “new and compelling evidence” exception while Canadian provisions seem to focus on errors of law.
But in no State that I have been able to find is a court empowered, as the prosecution claim we are, to change the law from what it was at the time of the previous acquittal, substitute a new law, and order a retrial to take place under that new law. This appears to me to be as abhorrent as it is unique, in the entire world, as far as my researches go.
69. It is important to understand just how long and how strongly established the ne bis in idem principle is. Long before the adoption of Bunreacht na hEireann, the old Irish Court of Appeal, in The Queen v. The Justices of County Antrim [1895] 2 I.R. 603 regarded the principle as “deep rooted” and “cherished”. There, a vagrant had been charged with trespassing on a railway line: he was acquitted, on the basis that the part of the railway line on which he was found was subject to a public right of way. The railway company was very upset about this result. It sought to challenge the acquittal on certiorari , on the basis that the Company claimed that one of the bench of magistrates had an interest in the matter. The Company also sought mandamus to compel the magistrates to re-hear the complaint.
70. The judgment of the Irish Court of Appeal was given by O’Brien C.J., later Lord O’Brien of Kilfenora, LCJ. He said (The Queen v. The Justices of County Antrim [1895] 2 IR 603 at p. 635):
“We are all of opinion that the conditional order cannot be sustained on any of the grounds advanced in support of it. One fatal objection presents itself in limine. The offence of which [the defendant] was charged is one punishable by fine and imprisonment, and the order sought to be quashed is one of acquittal. In the whole range of our law there is no precedent for the granting, or even the making, of such an application in a case where there has been an acquittal by the magistrates. Not only is the application unwarranted by precedent, but principle cannot be referred to in support of it; on the contrary, to grant this application for a writ of certiorari to quash an order for acquittal, and for a writ of mandamus to compel the magistrates to rehear the complaint, would be to act in disregard of one of the most deep rooted principles of the law. It would be a direct infringement of the principle that no-one is to be tried twice for one of the same offence. Nemo debet bis vexari pro unam et eadem causa is a maxim embodying one of the most cherished principles of our law. … In giving judgment in the case of The Queen v. Duncan (1881) 7 QBD 198 Lord Coleridge said:
‘The practice of the Courts has been settled for centuries, and that is that in all cases of a criminal kind, where a prisoner or defendant is in danger of imprisonment, no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted’.
The object of the application for a writ of certiorari and mandamus in this case is to deprive the defendant of the benefit of his acquittal, and to have him tried again for the offence in reference to which he has been acquitted. If, in the exercise of our discretion… we quashed the order of acquittal, we would deprive the defendant of the status of a man innocent of the offence of which he was charged and if we sent the case back to the magistrates, it would be only on the basis that the case could be reheard, though the law says that no man shall be tried twice for the same offences.”
(Emphasis added)
Mr. Justice Johnson concurred with the judgment of O’Brien C.J. in terms that were equally unequivocal. He said (The Queen v. The Justices of County Antrim [1895] 2 IR 603 at pp. 652 to 653):
“In R. v. Russell (1854) 3 El. and Bl. 942, the defendant was tried on an indictment for a public nuisance by the erection and maintenance of a certain embankment. This was a charge of misdemeanour and a criminal proceeding. The defendant was acquitted and a conditional order was obtained for a new trial on the grounds that the learned judge… had misdirected the jury and that the verdict was against the weight of the evidence. Cause was shown and allowed and the conditional order was discharged. In his judgment, Lord Campbell, C.J., says:
‘The ground of my decision is that this is a criminal proceeding, and that the defendant ought not be twice put in peril for the same cause. That rests upon a maxim of English law which will, I hope, always be held sacred… if there be an improper conviction it should be set aside, but I hope the same practice will never prevail in the case of an acquittal’.”
71. Similarly, in R (Kane) v. Tyrone Justices (1906)40 ILTR 181, Palles C.B. held it to be “an elementary principle” that:
“ [A]n acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court”.
72. Kane was a man who had been acquitted by magistrates on a charge of trespass in pursuit of game. The question was whether the prosecution could appeal to the old Court of Quarter Sessions by reason of a statutory provision providing such an appeal to “any party aggrieved by the determination of the Justices”. Palles C.B. held that it was the established policy of the law that a decision of acquittal by a court of competent jurisdiction could not again be brought before any other court. He further held, in a passage adopted in AG v. Kennedy [1946] I.R. 517 below, that in order to show a right of appeal against an acquittal, statutory words must be “clear, express and free from any ambiguity”.
73. Kane is described as “the leading Irish case” by Professor J.M. Kelly in Fundamental Rights in the Irish Law and Constitution. Speaking of the passage just cited Professor Kelly says:
“This doctrine has been consistently followed both in England and in Ireland where the matter was very fully discussed by the Supreme Court in connection with a State appeal against the quashing of a conviction in the case of A.G. v. Kennedy [1946] IR 517”.
(Emphasis added)
74. Post Constitution Irish cases on the same, or cognate, topics will be discussed below. I have referred to cases in which the impossibility of retrying an acquitted person was established as a matter of Common Law (which is continued in effect by the Constitutions of 1922 and 1937) as it stood when Ireland was part of the United Kingdom. This was a time when, in general, the rights of individuals, especially criminal defendants, were less sedulously guarded than at a later date, at least up to the present day. We are creating a new law less favourable to the citizen than was the law prevailing when Ireland was ruled by the Crown.
Does this “appeal” lie?
75. The Irish case referred to by Professor Kelly, AG v. Kennedy [1946] I.R. 517 is of interest on the very relevant topic of the construction of statutes or instruments said to permit a prosecution appeal. There, the accused had been convicted by the Special Criminal Court on a number of charges, but the Court of Criminal Appeal had set the convictions aside. The Attorney General sought leave to appeal that order of the Court of Criminal Appeal to the Supreme Court, but was refused. The Attorney then had recourse to s.29 of the Courts of Justice Act 1924 which, he said, permitted a prosecution appeal. This section provided as follows:
“29. The determination by the Court of Criminal Appeal of any appeal or other matter shall be final, and no appeal shall lie from that Court to the Supreme Court, unless that Court or the Attorney General shall certify that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court in which case an appeal may be brought to the Supreme Court, the decision of which shall be final and conclusive”.
In reliance on this provision, the Attorney General of the day issued a certificate to himself and purported to appeal to the Supreme Court.
76. The Supreme Court dismissed the Attorney General’s appeal in limine, holding that it was incompetent and did not lie. Murnaghan J. said (A.G. v. Kennedy [1946] I.R. 517 at 529):
“In my opinion, s.29, which allows an appeal in general words, does not mean that anyone whosoever can apply for a certificate and enter an appeal. It is only the person convicted… who can make an appeal under the conditions stated in the Section. Similarly, any other person directly affected who can be said to have an appealable interest can, in my opinion, appeal. But… I ask myself have the People, at the suit of the Attorney General, an appealable interest against the decision of a court entering an acquittal on a criminal charge where an appeal is given in general words, and the Attorney General is not specifically named.
In my opinion this point has been decided in several cases in accordance with a long established course of practice. [He referred to R (Kane) v. Tyrone Justices].
… In order to show a right of appeal the words must be clear, express, and free from any ambiguity…”.
I would apply this test in construing s.23(3) of the Criminal Procedure Act of 2010.
77. When the Attorney General lodged his purported Notice of Appeal in, AG v. Kennedy [1946] I.R. 517, Counsel for Kennedy applied to the Court to dismiss the appeal on the ground that it did not lie. Mr. John A. Costello S.C., having established the general non-appealability of an acquittal, argued that “Mere general words are not sufficient to justify interference by the Court with a fundamental right of an acquitted prisoner”.(unverified) He relied for this proposition on Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603.
This case, which arose out of the Irish troubles which were ongoing at the time, is of particular legal interest because it states the Common Law as it stood at almost exactly the moment when that immemorial law was taken over by the Irish Free State by virtue of its Constitution. O’Brien was a man whom the Home Secretary in England had ordered to be arrested in that country and deported to Dublin, there to be interned. The English Court of Appeal granted an order nisi, for the issue of a writ of habeas corpus, because they held that the detention was illegal as the Home Secretary had no power to order a person to be interned in the Irish Free State. The Home Secretary was given a week to make his return to the writ. Before that time had elapsed, instead of making a return to the writ, he purported to appeal to the House of Lords. The House of Lords dismissed the appeal as incompetent, just as the Supreme Court was later to do in AG v. Kennedy [1946] I.R. 517, above. The Home Secretary relied upon the generality of the words providing for an appeal to the House of Lords and said they were broad enough to capture an appeal in Secretary of State for Home Affairs v. O’Brien [1923] A.C. 603.
At p.610 Lord Birkenhead said that:
“It is certainly true that in terms the words are wide enough to give an appeal in such a matter as the present. But I should myself, if I approach the matter without the assistance of authority at all, decline utterly to believe that a section couched in terms so general availed to deprive the subject of an ancient and universally recognised constitutional right”.
(Emphasis added)
But, he said, the point was in any event covered by Cox v. Hakes (1890) 15 App. Cas. 506, referred to below.
At p.611 Lord Birkenhead declared:
“It follows… from Cox’s case, that no appeal lies to the Court of Appeal where discharge has been ordered; and the language of the relevant statutes being for the present purpose indistinguishable, it equally follows by parity of reasoning that no appeal lies in the present matter to the House of Lords, unless upon some ground of principle the present case can be distinguished”.
Lord Dunedin, at p.622 of the Report referred to:
“… what I have ventured to call the cardinal principle of the English law, that a person once found entitled to liberty should not be liable to have that determination again called in question”.
(Emphasis added)
I would be indeed sorry to think that the law of an independent Ireland, almost a century later, is less protective of the liberty of the citizen, than the law declared by Lord Birkenhead and his colleagues in 1923, who regarded the immunity of a citizen after acquittal as “an ancient and universally recognised constitutional right”, which was “the cardinal principle of the English law”.
Cox v. Hakes (1890) 15 App. Cas. 506 was followed by the Supreme Court in The State (Burke) v. Lennon [1940] I.R. 136 and relied upon for the proposition that mere general words “would not suffice to abrogate a rule so important to the subject’s liberty as that by which the grant of Habeas Corpus was final”.
However in The State (Brown) v. Feran [1967] I.R. 147 Walsh J., with whom three judges agreed held that the Canons of Construction applicable to a statute are not the same as those applicable to the construction of a written Constitution, thereby limiting the authority of the Victorian case to statutory, as opposed to constitutional, construction.
78. Statutory provision was made in Ireland, from 1967 onwards, for a reference of a point of law decided during a trial which ended in acquittal by direction, to be made to the Supreme Court. This procedure can clarify the law, but without prejudice to the acquittal of the defendant. See s.34 of the Criminal Procedure Act of 1967, as substituted by s.21 of the Criminal Justice Act of 2006.
79. To summarise: a verdict of acquittal by a Court of Competent jurisdiction is at Common Law absolutely sacrosanct. In Britain, where Parliament reigned supreme, unfettered by any written Constitution or Bill of Rights, that position could of course be changed by legislation. The right not to be subjected to repeated trials is “an ancient and universally recognised constitutional right”; “one of the most deep rooted principles of the law”; “one of the most cherished principles of our law”. The principle of “no retrial after acquittal” had, as long ago as 1881, “been settled for centuries”, before the enactment of the Constitution. It might be charged by Statutes, in the UK, but in that event the statutory words “must be clear, express, and free from ambiguity”.
So long established a right appears to me to be part of what is comprehended in the phrase “due course of law” or “due process of law” to use the phrase which the drafters of the American Constitution preferred but which, on high authority in this jurisdiction, is cognate to “due course of law”. This is guaranteed in Art. 38.1 of the Constitution. But the question of whether statutory provision for a retrial after an acquittal in the circumstances of this case can be consistent with the Constitution is not one raised before us and I do not discuss it.
80. The major modern Irish Authority on this question is People v. O’Shea [1982] I.R. 384, Henchy J. observed at p.434 that:
“The pre-Constitution refusal to entertain any breach of the autrefois acuit rule which continued to be firmly applied in the post -Constitution courts”.
He instanced several cases. One of these is The State (Attorney General) v. Binchy [1964] I.R. 395. This was a case where a verdict of not guilty had been directed by a trial judge. In the unanimous view of the Supreme Court this direction had been wrong in law. But they concluded at p.416:
“To quash the present verdict of “not guilty” would not in any real sense be to quash a verdict of acquittal. Nevertheless, where the jury’s verdict is recorded as a verdict of not guilty simplicter, this Court should act on the record for what it said. It is entirely without precedent to go behind such a verdict, and it is now too late to create one”.
(Emphasis added)
81. Henchy J. at p. 437, concluded on this aspect:
“… the authoritative Irish decisions in both the pre-Constitution and post-Constitution eras show that a plea of previous acquittal will always prevail (save in a statutorily allowed appeal by Case Stated) to defeat any appeal or other proceeding in which it is sought to make a person liable for an offence in respect of which he has already been acquitted within jurisdiction by a court of competent jurisdiction, even where such acquittal has been directed by the trial judge. There is nothing to show that before Conmey’s case it had occurred to any judge, counsel or academic writer that the rule had no application to acquittals obtained in the Central Criminal Court…”.
(Emphasis added)
82. Henchy J. observed at p. 438 that:
“The Common Law Rule that verdicts of acquittal by juries, whether directed by the trial judge or not, should stand irreversible passed with the Common Law Jury to various jurisdictions throughout the world… [t]he Common Law Rule… passed to the United States of America and was given constitutional force there by the Fifth Amendment which provides ‘… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…’.
This prohibition of double jeopardy has been held by the United States Supreme Court to debar the prosecution from appealing against the jury’s verdict of acquittal…
The rationale of the constitutional prohibition against double jeopardy was stated as follows by Mr. Justice Marshall when delivering the opinion of the Supreme Court of the United States in Benton v. Maryland (1969) 395 US 784:
‘The fundamental nature of the guarantee against double jeopardy can hardly be doubted. Its origins can be traced to Greek and Roman times, and it became established in the Common Law of England long before this nation’s [i.e. the United States of America’s] independence…As with many other elements of the Common Law it was carried into the jurisprudence of this Country through the medium of Blackstone who codified the doctrine in his Commentaries: ‘The plea of autrefois acquit, or a former acquittal,… is grounded on this universal maxim of the Common Law of England, that no man is to be brought into jeopardy of his life more than once for the same offence’. Today, every State incorporates some form of the prohibition in its constitution or common Law, as this Court put it in Green v. United States (355 U.S. 184 at 187 (1957))‘the underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’. This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly fundamental to the American scheme of justice’.”
(Emphasis added)
Henchy J., having referred to that passage, said at p.439 “I see no reason why this Court should not reach the same conclusion as to the inviolability of such a verdict in the light of our Constitution”. I agree.
83. Henchy J. was giving his judgment in the context of a claimed right to appeal by the prosecution against a directed verdict of not guilty in the Central Criminal Court. This claim was based on the general words of Article 34 of the Constitution, conferring a general jurisdiction to entertain appeals from all decisions of the High Court on this Court, unless removed by law. That is not, of course, the context of the present purported appeal but, in People v. O’Shea [1982] I.R. 384, Henchy J. raised the question of what order the Supreme Court could make if it did entertain the appeal. He said at p.441:
“It could not order a retrial, for power to do so has been withheld from it, and if the Court were to take such a power to itself, it would be unconstitutionally legislating the abolition, for a restricted class of acquitted persons, to the right to plead a previous acquittal”.
84. As I have mentioned several times, no question of the constitutionality of s.23 has been raised here. But, having regard to the undisputed need at Common Law for any statute purporting to confer a right of appeal against an acquittal to be in clear and unambiguous words, s.23 must be closely analysed to see if, indeed, it permits the present purported appeal. I will shortly turn to this analysis.
85. In People v. O’Shea [1982] I.R. 384 at 414, Finlay P. came to the same conclusion as Henchy J.: that the appeal claimed by the prosecution did not lie. He approached the issue, at least in part, as an aspect of the constitutionally guaranteed right to trial by jury. At p.414ff of the Report he concluded in, a passage of great importance:
“… that the right of trial with a jury provided for in the Constitution includes the right to a trial with a jury, one of the ingredients or essential characteristics of which is the fact that a jury’s verdict of not guilty is not subject to an appeal to any other court. I am satisfied that this right, expressly dealing with the question of criminal trial, must take precedence over the general right of appeal from decisions of the High Court to the Supreme Court and that, accordingly, an appeal such as is sought in the instant case by the appellant against an acquittal entered by a jury within its jurisdiction, even as a result of a direction from the trial judge, is not sustainable”.
(Emphasis added)
86. Although the opinions expressed by Finlay P. and Henchy J. were those of a 3-2 minority in People v. O’Shea [1982] I.R. 384, the effect of the majority judgments, which were posited on the general words of Article 34 of the Constitution, was removed by statute.
In People v. O’Shea [1982] I.R. 384itself, the Court went on to dismiss the Director’s appeal on the merits, with costs to the Respondent.
Section 23.
87. I turn now to the construction of s.23 which is relied upon to confer a right of appeal on the prosecution. I do so in order to see whether the present purported appeal is within its scope. If it is not within the scope of the section, then, clearly, the Court cannot entertain it.
Section 23 of the Criminal Procedure Act 2010 introduced a momentous change. It permitted a with-prejudice prosecution appeal against an acquittal in certain circumstances. These circumstances are strictly delimited by the statute. The first point that logically arises on this appeal is whether the present purported appeal is within those strictly delimited circumstances.
It may be useful to offer an overview of the questions arising on this issue before descending into the necessary detail. Section 23(1) permits the prosecutor “subject to subsection (3) and Section 24”, to “appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court”. It is convenient here to set out s.23(1), (2) and (3), which define the scope of the Section.
The Section provides as follows:
“23.— (1) Where on or after the commencement of this section, a person is tried on indictment and acquitted of an offence, the Director, … may, subject to subsection (3) and section 24 , appeal the acquittal in respect of the offence concerned on a question of law to the Supreme Court.
(3) An appeal under this section shall lie only where—
(a) a ruling was made by a court during the course of a trial referred to in subsection (1) or the hearing of an appeal referred to in subsection (2), as the case may be, which erroneously excluded compelling evidence, or
(b) a direction was given by a court during the course of a trial referred to in subsection (1), directing the jury in the trial to find the person not guilty where—
(i) the direction was wrong in law, and
(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the person’s guilt in respect of the offence concerned.
(Emphasis added)
Requirement for “error”.
88. Subsection (3) of the Section provides that an appeal shall lie “only” where a ruling was made by the Court in the course of a trial “which erroneously excluded compelling evidence”. (Emphasis added), or a direction to acquit was given by the learned trial judge and “the direction was wrong in law”. (Emphasis added). The need for an error of law, by the trial judge, to trigger the entitlement to appeal under s.23 is central to my view of the case.
The ruling of the trial judge in this case.
89. I now set out the ruling of the learned trial judge which was given on the 18th July, 2012. I have, insofar as possible, edited irrelevant material in order to shorten the text. I have excluded, as I am required to do by statute, the name of the Respondent. The facts of the case appear, briefly but sufficiently, from the ruling of the Judge.
The learned trial judge, having heard evidence and submissions ruled:
“… we’ve all been left the consequences of the Damache ([2012] IESC11) judgment which perhaps be forever litigated until a final conclusion.
… Application was made to Chief Superintendent P.V. Murphy on the 10th May, 2011 for a search warrant pursuant to s.29 of the Offences against the State Act as substituted by s.5 of the Criminal Law Act of 1976 to search [premises in Waterford], the home of [the respondent].
A number of gardaí went to this premises in or about 10.30am on the 10th May 2011. Included in the party of gardaí were two who gave evidence before the Court in the voir dire, Detective Sergeant Donoghue and Detective Garda Burke, both of Waterford Garda Station. Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue was in possession of the search warrant issued earlier by Chief Superintendent Murphy. At the premises, Detective Sergeant Donoghue spoke with a sister of [the respondent] and explained to her why the gardaí were there and [she] was shown the search warrant in the possession of the gardaí. In the meantime Detective Garda Burke went upstairs in the premises to a front bedroom where [the respondent] was in bed and proceeded to arrest him after allowing [him] to get dressed. This was at 10.40am.
Detective Garda Burke gave evidence that he was aware that Detective Sergeant Donoghue had a warrant to search the premises under s.29. He further said that he arrested [the respondent] under s.30 of the Offences against the State Act 1939, in relation to possession of firearms on the 5th May 2011… He cautioned [the respondent] and explained that he would be detaining him under the provisions of s.30 for twenty-four hours. He was aware of the search taking place, that’s Detective Garda Burke, and stated that it was his attention to arrest [the respondent] that morning at [the premises].
The State accepts that nothing of an evidential nature arose as a result of the search of [the premises]. The issue here is the lawfulness of the arrest of [the respondent]. His resulting detention is at stake, as well as admissions made while in custody on foot of the arrest.”
90. The learned trial judge next discussed the scope of the powers of search under the Offences against the State Act and continued:
“The power to search a dwelling house under the 1939 Offences against the State Act was only permissible under Section 29 of that Act which permitted, on foot of the search warrant, that buildings, and I quote buildings from the Act, could be searched. Thus, entry into a private dwellinghouse to arrest under s.30 was done by obtaining a search warrant under s.29 of the 1939 Act and arresting once on the premises. It appears that a very convenient practice of issuing search warrants under s.29 of the 1939 Act to allow for searches and contemporaneous arrests under s.30 arose over the years. While the Offences against the State Act, 1939 was originally intended for, and I am quoting from the long title, amongst other things:
‘Actions and conduct calculate to undermine public order and the authority of the State and for that purpose to provide for the punishment of persons guilty of offences against the State etc.’.
The provisions of s.29 and s.30 were increasingly used over recent years for non-politically subversive crime. This was perhaps understandable where few other legislative alternatives to carry out searches and arrests for serious crime were available to the gardaí, but less excusable in more recent years, where laws have been enacted to give the gardaí greater powers of arrest, in particular, and search. Robbery or attempted robbery is the main allegation in all three offences before the Court. This is an arrestable offence within the meaning of s.4 of the Criminal Law Act of 1997. Like s.30, this gives the gardaí power of arrest without warrant in relation to offences where the penalty is five years or more. Robbery is one such offence. Section 6 of that Act gave powers of entry and search to gardaí either with or without warrants for the purpose of arresting the persons. Section 4 and s.6 of the Criminal Law Act 1997 would appear to be, in many ways, the non-subversive crime equivalent of s.29 and s.30 of the 1939 Act. Despite these provisions introduced in 1997, gardaí still rely, or more appropriately relied, on s.29 and s.30 of the 1939 Act, where scheduled offences were involved, most particularly firearm offences. One of the reasons would appear [to be] that s.29, in particular, was more convenient and offered greater scope for entry and search than s.6 of the Criminal Law Act of 1997.
Matters came to a head in February of this year, 2012, as a result of the decision in the Supreme Court in the case of DPP v.Damache ([2012] IESC 11). I’ve considered the submissions from both prosecution and defence in this case and the case law referred to and relied upon and in particular, to the cases of DPP v.Laide and Ryan ([2005] IECCA 24) which is now reported in [2005] 1 IR 209 and the very recent decision of DPP v.Barry O’Brien ([2012] IECCA 68), a decision that was handed down on 2nd July, 2012 in the Court of Criminal Appeal. Neither is on all fours with the case involving [the respondent]. The O’Brien case was heard before the Special Criminal Court and involved an allegation of membership of an unlawful organisation, while in the Laide case, there was no reliance at upon any portion of the Offences against the State Act, primarily because of the nature of the case… under investigation in that matter. However, both deal with the issue of the inviolability of the dwellinghouse and the consequences that can arise as a result of a finding that entry into a dwellinghouse is unlawful.”
91. The learned trial judge, having heard the witnesses, and established the legal parameters of the application before her, proceeded to make certain findings, as follows:
“In this case, I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939. This was the vehicle to get into the door, both to search and to effect the arrest under s.30 of the 1939 Act. If [the respondent] had not been there, I’ve no doubt s.30 would have been employed otherwise, but that doesn’t arise because [he] was present and was arrested under the provisions of s.30. I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case. I note that the Damache ([2012] IESC 11)case was also based in Waterford and that the High Court decision in this case was given, in fact, two days later on the 13th May, 2011. It seems to me that the gardaí in Waterford, in particular, were more alert to possible issues surrounding the s.29 warrants than perhaps other colleagues in the country. So, I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers and that includes the arresting garda, Detective Garda Burke. Insofar as the consequences arise, I have regard to the decision in the Laide ([2005] IECCA 24) case and in particular the final – the penultimate paragraph on p.234where the Court says:
‘It follows in the present case that the act complained of, namely the entry upon the dwelling of a second accused on the 26th September 2000, comes within the concept of an intentional and deliberate action by members of An Garda Síochána in the sense that it was not an accidental or unconscious act on their part. The fact that they believe they had lawful authority so to enter is beside the point. There are no extraordinary excusing circumstances such as to allow the evidence to have been admitted and accordingly, this Court is satisfied that the evidence in question ought not to have been admitted at the trial’.”
(Emphasis added)
92. The learned trial judge then concluded her remarks as follows:
“There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case and it seems that the arrest, having been unlawful, the detention that flowed was unlawful and any interviews or any matters arising during the course of the detention cannot be relied upon and admitted as evidence in the trial against [the respondent].”
Findings of Fact.
93. The learned trial judge gave the ruling quoted above after hearing, by way of voir dire, evidence called by the prosecution on the question of the admissibility of the evidence. She saw and heard the witnesses and arrived at the conclusions noted above. These include, relevant to the present issues, the following findings of fact:-
(i) “I am satisfied that the entry into [the respondent’s] house on the 10th May 2011 was on foot of the warrant issued under s.29 of the Offences against the State Act 1939”.
(ii) “This [i.e., the warrant under s.29] was the vehicle to get into [recte, in] the door”, both to search and to effect the arrest…”.
(iii) “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in the case”.
(iv) “I’m satisfied that the entry was unlawful and, as such, the gardaí were trespassers, and that includes the arresting guard, Detective Garda Burke”.
(v) “There doesn’t seem to be any extraordinary excusing circumstances relied upon by the prosecution in this case…”.
94. All of the foregoing findings appear to me to be findings of fact made by the trial judge upon oral evidence, and having heard the witnesses who gave such evidence examined and cross-examined. Even if one disagreed with them, they could not be regarded as “erroneous” or “wrong”. But I wish to make it emphatically clear that I do not disagree with them in any way.
95. The legal constituent of the finding of the learned trial judge was based on the decision of the Court of Criminal Appeal in DPP v.Laide and Ryan [2005] IECCA 24,[2005] I IR 209, at 234, which itself was grounded on earlier authority, including DPP v.Kenny [1990] 2 I.R. 110.
The Damache case.
96. On the 23rd February 2012 the Supreme Court, (per Denham C.J.) held that s.29 of the Act of 1939, as inserted, was unconstitutional. The finding of the Court, contained in para. 59 of the judgment in DPP v.Damache [2012] IESC 11[2012] 1 IR 266 is as follows:
“This Court will grant a declaration that s.29(1) of the Offences against the State Act 1939, as inserted by s.5 of the Criminal Law Act 1976, is repugnant to the Constitution as it permitted a search of the appellant’s home contrary to the Constitution, on foot of a warrant which was not issued by an independent person”.
97. A warrant under the invalidated s.29(1) was precisely what was relied upon by the gardaí to enter the respondent’s house in this case. One of the gardaí who was present on those premises on foot of the s.29 warrant arrested the respondent. The consequence of that was the issue for Judge Ring, and she ruled as above.
Grounds of the Appeal.
98. The appellant appears to involve certain grounds of appeal which appear to me to be wholly excluded by the factual findings of the learned trial judge. These centre on the on the proposition that the arresting guard, unlike the other gardaí, was physically on the respondent’s premises on a basis that did not involve reliance on the s.29 warrant, which was admitted to be invalid. These factual findings of the judge cannot themselves be challenged since s.23 permits of appeal only for errors of law, or directions which are “wrong in law”. The finding “that the entry into the dwellinghouse was carried out on foot of the s.29 warrant for the purpose both of the search and the arrest” appears to me to be manifestly a finding of fact. In the voir dire at the criminal trial, the onus of establishing the admissibility of the evidence to which objection was taken rested on the prosecution. Accordingly the finding “I’m not satisfied that the Criminal Law Act of 1997 ever figured in the consideration of the gardaí in this case” is also clearly a finding of fact.
The salient factual finding is that entry to the dwellinghouse for the purpose both of search and of arrest was obtained pursuant to a warrant, the s.29 warrant, which was issued under a section of a statute which was itself unconstitutional. That is the factual position for the purposes of this purported appeal.
A concession.
99. It appears to me that the grounds on which an appeal is even potentially available relate entirely to the consequences of those factual findings. This is reflected in the concession, set out at para. 9 of the appellant’s submissions in the present case, that the appellant contended at the trial, and contends before this Court that whereas by reason of the unconstitutionality of the s.29 warrant Detective Sergeant Donoghue and the other gardaí involved in the search were on the premises unlawfully, Garda Burke was lawfully on the premises. It is therefore admitted by the State that all the gardaí, other than Garda Burke, were unlawfully on the respondent’s premises. Since the premises are a dwelling, they were unconstitutionally present there. See Art. 40.5 of the Constitution.
But the learned trial judge found as fact that the entry of all guards including Garda Burke into the respondent’s premises was on foot of the s.29 warrant which was “the vehicle to get [in] the door both to search and to effect the arrest”.
This excludes the possibility that one of the guards entered on some other basis or that the arrest was effected by a guard who was present on some other basis. Since this is a question of fact, and not of law, it cannot be the subject of an appeal by the prosecution. If it had been decided the other way, it could not have been appealed by the defence. Moreover, since it is a finding of fact made after hearing the oral evidence of witnesses, and after hearing their cross-examination, this Court cannot substitute another view of the facts for that of the learned trial judge who had seen and heard the witnesses.
100. It is also important that, as stated in the remarks of the learned trial judge in delivering her ruling, the prosecution did not rely upon any “extraordinary excusing circumstances”, a phrase whose meaning will be discussed below. But it does not arise here, because it was not relied upon at the trial.
101. It appears to me therefore that the only aspect of the appeal which is any way open, even on the State’s construction of s.23, is that set out first at para. 21 of the appellant’s submissions:
“… [T]he appellant will invite the Court to consider again the content and effect of the exclusionary rule”.
In the following paragraph this is expressed as follows:
“Specifically, the appellant invites the Court to overrule the decision of the majority in DPP v.Kenny [1990] 2 IR 110”.
102. At para. 62 of the submissions, under the heading “Conclusion”, the appellant states:
“By reason of the foregoing it is submitted that the strict exclusionary rule of evidence should no longer form part of Irish law.” (Emphasis added)
It is thereby admitted that the Exclusionary Rule was part of the law of Ireland at the time of the trial. (“no longer form part of Irish law”), and is so now.
It is also clear from the State’s submissions that it is asking this Court itself to change the pre-existing law of the land, and order a new trial under a new, judge made, law whose content is at present uncertain. It is far from clear to me how this proposal is consistent with Art. 15.21 of the Constitution:
“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas.”
______________________________________________________________
This aspect of the appeal occupies fully two-thirds of the State’s written submissions. I believe it is the only part of the appeal which is even potentially statable. The other grounds come down to the proposition that the arresting guard, Garda Burke, was in a different position to the other gardaí whose presence on the respondent’s premises is admitted by the State to have been unlawful. This proposition is excluded by the findings of fact of the learned trial judge, from which no appeal lies.
103. It is agreed by the prosecution that the learned trial judge, in excluding certain evidence, followed the established law and in particular the case of DPP v.Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 209, which itself applied the well-known case of DPP v.Kenny [1990] 2 I.R. 110 . She did not grant the direction “wrongly” in point of law and she did not grant it “erroneously”. The prosecution do not complain of error by her in that regard: they complain of DPP v.Kenny [1990] 2 I.R. 110 and wish to “overrule” it. But that appears to be manifestly outside the scope of an appeal which is limited to errors by the trial judge. They ask the Court to declare or arrange that DPP v.Kenny “should no longer form part of Irish law”. But the learned trial judge was obliged to act as she did and had no option but to do so. This, as we shall see, is agreed. Therefore she did not err.
104. The target of the prosecution on this appeal is not, therefore, any alleged error by the learned trial judge who followed the law as she was bound to do. Instead, the prosecutor’s target is that law itself. The prosecution in this appeal invite the Court to depart from its own previous decision in DPP v.Kenny [1990] 2 I.R. 110. But that case, and, DPP v.Laide and Ryan [2005] IECCA 24, [2005] 1 I.R. 20, were undoubtedly binding on the learned trial judge at the time of the acquittal. See below “Obligation of a trial judge to follow the law”.
105. The question that now arises, in my view, is whether the prosecution can lawfully seek to set aside DPP v.Kenny [1990] 2 I.R. 110 in an appeal pursuant to s.23 of the 2010 Act. The Section on the face of it is directed at “errors” by the trial judge. But no error by the trial judge is alleged or can be supported. She followed the law as she was obliged to do. If that is so, then this appeal is not within s.23, and is therefore incompetent and does not lie.
106. As we have seen, conclusivity of a verdict of acquittal is a feature both of the Common Law which existed for centuries before the adoption of the Constitution, and of the Constitutional Order itself. Any alleged statutory deviation from it must be strictly construed and confined within the terms of the legislative enactment. This is the question that first arises. No question has (for whatever reason) been raised of the constitutionality of a departure from the common law and constitutional position, and I shall therefore make no comment on that issue. Section 23 of the Act of 2010 attracts a presumption of constitutionality.
Parliamentary History of s.23.
107. Since this aspect of the case turns on the construction of s.23(1) (2) and (3) of the Criminal Procedure Act of 2010, it is useful to consider the traveaux préparatoires of that provision. Section 23 of the Criminal Procedure Act is the sole basis for this appeal, and it requires the State to show “an error” “by the trial judge”.
108. As it happens, the background to the enactment of s.23 can be ascertained with unusual precision from the observations of the Minister who introduced it (Mr. Dermot Ahern, T.D.) and from the material to which he refers. On 29 June 2010, on the Committee stage of the Bill, the Minister said:
“Section 23 is intended to capture the recommendation of the Balance in the Criminal Law group that a with-prejudice right of appeal against acquittals following trials on indictment should be available to the prosecution in certain circumstances. The Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge which resulted in a judge directing acquittal or weakened the prosecution case that is put to the jury. The report of the group emphasised that a jury acquittal, following receipt of all admissible evidence, should be impregnable under the regime.
This requirement stems from the constitutional right to jury trial…
Both subsections are subject to new subsection (3), which contains the key changes to the [S]ection. It limits the circumstances in which appeals shall lie under subsections (1) and (2) to rulings by the Court which erroneously excluded compelling evidence, in para. (A), and in the case of Judge-directed acquittals, where the direction was wrong in law…”.
(Emphasis added)
From this statement there emerges clearly, in the first place, that the genesis of the Section is the report of the Balance in the Criminal Law group, and secondly, that the right to appeal was intended to be confined to the circumstances specified in the Report and in the Section, and further analysed below.
Balance in the Criminal Law Group Report.
109. This document, which dates from 15 March 2007, was the product of a group chaired by Gerard Hogan, LLD SC, now the Honourable Mr. Justice Hogan, Judge of the Court of Appeal. The group was composed of legal and other figures including two persons employed in important positions in the legal services of the State. There were no other persons engaged predominantly in the practice of Criminal Law; the specialist defence Bar and Solicitors were not at all represented in the Group, for whatever reason.
110. At pp. 196 to 198, the group made the following recommendation which, we know from what was said by the Minister, led to the enactment of the present s.23:
“We ultimately have come to the conclusion that a trial that founders on an error of law made by a trial judge cannot reasonably be described as a trial in due course of law. There must, logically, therefore be a “with-prejudice” right of address against erroneous decisions by a trial judge, whether that it is an interlocutory or evidential ruling… or a directed acquittal… the fact that such a trial judge error might be followed by a jury acquittal does not in our view mean that the principle of jury trial is any way compromised by allowing a with-prejudice appeal. The jury decision on the merits following reception of all admissible evidence is totally impregnable under our proposal. Only where the jury is directed as to its verdict, or wrongly prevented from considering admissible evidence, could the jury verdict be impugned”.
(Emphasis added)
111. At p.188 the Review Group noted that it:
“… does not consider that any fundamental constitutional principle would be infringed by allowing erroneous rulings on law which result in an acquittal to be revisited…”.
(Emphasis added)
Only the trial judge, of course, can make such rulings.
From these references it is quite clear that what the Section was intended to capture was “erroneous rulings by a trial judge which result in a judge directed acquittal”, or “erroneous rulings on law which result in an acquittal”, as the Balance in Criminal Law group put it, or “erroneous rulings by a trial judge which resulted in a judge directing acquittal” as the Minister who introduced the measure put it. The emphasis throughout is on erroneous rulings or “wrong” rulings by a trial judge i.e. the judge who presided over the trial which resulted in acquittal. The error or wrongness must be that of the trial judge and no-one else.
Construction of Section 23.
112. The Criminal Law Procedure Act of 2010 does not offer any special definition of the words “erroneous” or cognate words, such as “erroneously”, nor of the term “wrong in law”. This is in no way surprising since the words are ordinary English words offering no great difficulty in definition. In the absence of any special definition they fall to be construed in their ordinary and natural meaning.
I believe that the ordinary and natural meaning of “erroneously” and cognate words, is accurately stated in the Oxford English Dictionary (2nd Edition) Clarendon Press Oxford, 1991. This defines “err” in its relevant sense as:
“To go wrong in judgement or opinion; to make mistakes, blunders… to be incorrect”.
This act of “erring” by s.23 to be that of the trial judge. No-one else.
113. The term “error” is defined in the same source as:
“The condition of erring in opinion; the holding of mistaken notions or beliefs; an instance of this, a mistaken notion or belief…”.
The same source gives a special definition of the use of the term in a legal context:
“To determine or decide to be erroneous (a decision of a court)”.
All of these acts are required by s.23 to be done by the trial judge. No-one else.
114. The form of the word which appears in the Criminal Procedure Act of 2010, is “erroneously”. It will surprise no-one to learn that this means “in an erroneous manner… in a misguided manner, otherwise than is the fact; “incorrectly”.
115. The word “wrong” is of course a very common one. In its relevant sense, it means, according to the dictionary already cited “that has no legal right, title or claim; not legitimate; unlawful”. This meaning is indistinguishable from the statutory phrase “wrong in law”.
All the words whose sense or senses are given above are verbs, adjectives or adverbs. The action connoted by the verb “to err” must be done by some person; the adjective “erroneous” must be applied to the action of some person; the adverb “erroneously” must be applied to an act of a person.
116. When these terms are examined in the context of the first three subsections of s.23 of the Criminal Procedure Act of 2010, it is in my view clear beyond argument who precisely is the person to whose actions the terms “erroneously” or “wrong in law” are applied. The term “erroneously” where it appears in s.23(3)(a) is applied to “a ruling made by a court during the course of a trial… which erroneously excluded compelling evidence”.
117. The reference to “a court” is a reference to the Judge presiding at a trial, because the presiding Judge is the only person who can make a ruling excluding evidence. Similarly, the phrase “wrong in law” is applied to:
“A direction given by a court during the course of a trial…, directing the jury in the trial to find the person not guilty”.
An appeal lies where such direction is “wrong in law”, by reason of an error by the trial judge and not otherwise.
118. The term “court”, meaning an entity which is entitled to direct a jury to find a person on trial not guilty, can only be a reference to the judge at the trial. It can have no other meaning. No-one else can give such direction.
The effect of the foregoing.
119. It appears to me that both a close verbal analysis of s.23(3), the subsection which creates the “only” circumstances in which an appeal of this kind is possible, and an analysis of the travaux préparatoire confirm the legislative intention, and that each approach leads to precisely the same conclusion. Section 23 is intended to create a right of appeal for the prosecution in the circumstances set out in the Section, and in those circumstances “only”. Those circumstances relate to, and presuppose, an erroneous act. This is not a reference to some theoretical generality of erroneous acts but to an erroneous act by the “court”. There is no doubt, for the reasons given above, that this phrase, “the Court” means the Judge who presides at the trial against whose error the prosecution wish to appeal. The judge’s act, which must be either “erroneous” or “wrong in law”, must be the act either of excluding compelling evidence from the consideration of the jury or, alternatively, the act of giving a direction to acquit, which direction is “wrong in law”. Only a judge can do either of those things, and only the trial judge, in this case Judge Ring.
120. This is the result which follows from a detailed verbal analysis of the provision. It is absolutely consistent with the statements of the Minister who introduced the Bill which became the Criminal Procedure Act of 2010. The legislative intention was “to capture the recommendation of the balance in Criminal Law Group. … the Review Group recommended that rights should be available in the case of erroneous rulings by a trial judge.
121. As we have seen, the Review Group at pages 196-98 of the Report recommended the provision of an appeal only on the basis of “an error of law made by a trial judge” or, “erroneous rulings on law”.
122. This is the scope of the Appeal created by s.23. It provides an appeal against “erroneous” decisions by Circuit Court judges. In the present case there was no such appealable erroneous decision by Judge Ring.
Obligation of a trial judge to follow the law.
123. The former Chief Justice, Finlay C.J., very aptly observed that, in the Irish legal system (as in every Common Law system) there is a hierarchy of courts, though not, he said, a hierarchy of judges. The Supreme Court and the High Court, which are created by the Constitution itself, are Superior Courts. The other ordinary trial courts, the Circuit Court and the District Court are courts of “local and limited jurisdiction”, created by statute. The great majority of the cases dealt with in the Courts of Ireland are dealt with in the Courts of local and limited jurisdiction. In the interest of consistency in the administration of the justice there is a doctrine of precedent which requires that, where a decision of the Superior Courts exists and is directly relevant, a lower court must follow it.
I entirely agree with what is said on this topic by Byrne and McCutcheon in The Irish Legal System (5th Ed. 2009), at para. 12.30, under the heading:
Lower Courts should follow the decisions of higher Courts.
124. Under this heading, the learned authors say:
“The principal rule is that an inferior court must follow the earlier decision of Superior Courts. Accordingly, the High Court must follow the Supreme Court and the Circuit Court must follow both the High Court and the Supreme Court. The rule is so well settled that it has “seldom been questioned by an Irish Court”.
(Emphasis added)
The learned authors however go on to cite several Irish cases where the rule is affirmed, which it is unnecessary to set out here. The plain fact here is that Judge Ring was bound to follow the relevant decisions of the Superior Courts and, in this particular instance, the Supreme Court. It is clear from the long extract from her judgment above, that she did precisely this and made no error. This appeal simply does not lie.
Section 23 Procedure inappropriate.
125. By reason of the foregoing, I do not believe that an appeal by the prosecution pursuant to s.23 lies at all when no appealable error by the learned trial judge can be shown and where she undoubtedly followed decisions of the Superior Courts. These decisions, indeed, were binding upon her. I believe, for the reasons set out above, that the right of appeal created by s.23 is strictly limited to the circumstances set out there and that that provision requires to be strictly construed. There is absolutely nothing in the wording of the statute, or in the traveaux préparatoires to suggest that the appeal created by the Section can be used for any purpose other than to correct errors by the trial judge or, in particular, that it can be used as an opportunity to revisit, with a view to setting aside, a previous decision of this Court, which has been authoritative for twenty-five years.
126. Apart from this jurisdictional issue, I do not consider that the procedure under s.23, even if it were available, is a suitable framework within which to address the question whether we should depart from one of our own previous decisions. The jurisdiction is meant to correct errors in law by a trial judge. It is not a suitable jurisdiction in which to address the question of whether, to quote the State submissions “the strict exclusionary Rule of Evidence should no longer form part of Irish Law”.
The established criterion for overruling or disregarding a previous decision of the Court is that the Court must be “clearly of opinion that an earlier decision was erroneous”. (A.G. v. Ryan’s Car Hire Ltd. [1965] I.R. 642); or be “clearly of opinion that the earlier decision was wrong” (Mogul of Ireland v. Tipperary (NR) County Council [1976] IR 260). It is difficult to see how such a conclusion could be reached without proposing an alternative view, which would not be “wrong” of the interpretation of the constitutional provisions relevant to this topic. The narrow statutory scope of the remedy provided by s.23 of the Act of 2010 is quite unsuitable for the devising of a new form of law to substitute for the one which has, up to now, been accepted.
The case sought to be overruled, DPP v.Kenny [1990] 2 I.R. 110 , which is more fully analysed later on in this judgment, proceeded on the basis of an exegesis of the Constitution which, in all material respects, is unchanged since it was considered by our predecessors who adjudicated in DPP v.Kenny [1990] 2 I.R. 110, in 1989. This being so, it is not obvious to me how their interpretation of the Constitution can be described as “wrong”. Later in this judgment I address what appears to me to be a rather bleak attempt, in the State’s submissions, to suggest; not that so much that DPP v.Kenny [1990] 2 I.R. 110 was wrong when decided, rather that developments since DPP v.Kenny, mainly developments affecting policing and the statutory control of An Garda Síochána, may have rendered the protections found to be constitutionally necessary in DPP v.Kenny either unnecessary or less necessary. But the main finding in DPP v.Kenny, that Article 40 of the Constitution imposes a duty on the judges to vindicate the constitutional rights of the citizens, and that that duty requires the stated action on the part of the judges when a citizen’s constitutional rights are breached, does not appear to me to be capable of attack as being “wrong” or “erroneous”. It is obviously (to use no stronger term) disliked by the public prosecutor but that is a different thing. No evidence or other rational ground for this dislike was advanced, or could be under the s.23 procedure which the State adopted.
127. This difficulty was recognised in this Court in Hynes O’Sullivan v. O’Driscoll [1988] I.R. 436. There, the Court was invited to amend the well established Common Law defence of qualified privilege. The Court refused to do so for a number of reasons, which are set out by Henchy J. at p. 450 of the Report. On the latter page he said:
“… I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case. That is particularly so in a case like this where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature”.
This topic will be further discussed below.
128. For that reason, even if there were jurisdiction to do so in a s.23 appeal, which I find there is not, I would decline to endorse the proposed “radical change in the hitherto accepted law” on this appeal. Still less would I order a new trial of the very counts of which Mr. J.C. has been acquitted, in a new, radically altered, state of the law. I regard this prospect with total abhorrence, as it would negate a “cherished” “constitutional” right of free citizens, enjoyed for centuries, at Common Law, quite apart from the Constitution. It would reduce constitutional rights, which this Court is bound to defend and vindicate, to mere words on a page.
129. It is of course true that there are circumstances in which the Courts are required, in the exercise of their proper role in the evolution of the Common Law, to develop Common Law principles to meet new surrounding circumstances. As one of my colleagues, Clarke J., has remarked in another case, “contract law which developed in the age of the mounted courier and the telegraph has had to adapt, largely without legislative assistance to the electronic age”. But, he continues “In many cases, law (whether the Common Law or Statute Law), which is outdated, no longer fit for purpose and at odds with developments in science, can only properly be changed by legislation”.
130. It is plainly necessary for any Common Law judge confronted with the (often very seductive) temptation to change the law in the interests of what he or she perceives to be justice, to be very clear as to the legitimate scope of his ability to do so.
Justice Oliver Wendell Holmes was Chief Justice of the General Court of Massachusetts and subsequently for twenty-five years a Justice of the United States Supreme Court. He was the author of a well-known treatise on “The Common Law”. He was a scholar, par excellence of the role of the Common Law judge and in particular of the scope for such a judge to develop or evolve that body of law. In Southern Pacific Company v. Jensen 244 US 205(1917), he said in an influential passage at p.221 of the Report:
“I recognise without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say ‘I think the doctrine of consideration a bit of historical nonsense and I shall not enforce it in my court’. No more could a judge exercising the limited jurisdiction of admiralty say ‘I think well of the Common Law Rules of Master and Servant and propose to introduce them here en bloc’.”
We are being asked to dispose of DPP v.Kenny [1990] 2 I.R. 110 in the same fashion that Justice Holmes’s was tempted to disapply the doctrine of consideration.
Justice Holmes language is in part somewhat unusual. But “molar” means of or relating to a very large body or mass; molecular, on the other hand, connotes an almost infinitely small entity.
This passage was adopted in Kleinwort Benson v. Lincoln City Council [1999] 2AC 349 at p. 378, by the distinguished English jurist Lord Goff:
“When a judge decides a case which comes before him, he does so on the basis of what he understands the law to be. This he discovers from the applicable statutes, if any, and from precedents drawn from reports of previous judicial decisions… In the course of deciding the case before him he may, on occasion, develop the Common Law in the perceived interests of justice, though as a general rule he does this ‘only interstitially…’ This means not only that he must act within the confines of the doctrine of precedent, but that the change so made must be seen as a development, usually a very modest development, of existing principle and so can take place as a congruent part of the Common Law as a whole. In this process, what Maitland has called ‘the seamless web’ and I myself… have called the ‘mosaic’ of the Common Law is kept in a constant state of adaptation and repair, the doctrine of precedent, the ‘cement of legal principle’ providing the necessary stability”.
131. It must be very clear that what is proposed in the present case could not possibly be described as an “interstitial” development. This word means pertaining to, forming or occupying interstices, according to the Oxford English dictionary. An interstice is “an intervening, usually empty, space, especially a relatively small or narrow space, a chink, a crevice”: the modest scope of the power described by this adjective is sufficiently suggested by that definition. What is proposed here is emphatically not something that can be done “within the confines of the doctrine of precedent”; indeed it proposes to set aside what is a modern binding precedent. It is in no sense a development of a “seamless web”; it is a proposal to extract a significant part from that web and replace it with something quite different. What is proposed here is plainly not interstitial in any conceivable sense. It is proposed to set aside a decision of this Court on a matter of high constitutional importance, which has been recognised as authoritative for a quarter of a century. The State’s claim is that the decision “should no longer form part of Irish Law”.
This is an invitation to overrule DPP v.Kenny [1990] 2 I.R. 110 and then to lay down law in the area left vacant, and to do so without any evidence-based assessment of the experience of DPP v.Kenny’s operation. If the Court were to accede to the State’s invitation, it would lapse into illegitimacy.
132. With great regret, and a deep consciousness of the responsibility I assume in doing so, I must protest that any action of this Court purporting to overturn DPP v.Kenny [1990] 2 I.R. 110 would be quite illegitimate. This is firstly because s.23 of the Criminal Procedure Act of 2010 creates no power to do this. Secondly and just as fundamentally, the suggestion that the Court should amend the law of the land so as to ensure that the Exclusionary Rule “should no longer form part of Irish law” is quite inconsistent with the gradualist, minimalist and “interstitial” power of the Common Law judges to develop or evolve the law in light of changing circumstances. The objections are quite apart from the merits or demerits of the State’s claim which are discussed below.
133. Mr. Justice Clarke, as we have seen, has referred to the need to develop the law of contract, which took its rise in its modern form “in the era of the mounted courier and the telegraph”, in light of the developments of the electronic era. I doubt if the mounted courier and the telegraph co-existed for very long but the mention of the first of these things indicates the great period of time over which this development has taken place. Further, the developments in question are not developments of principle, but developments intended to take account of the fact that communication, once confined to the speed of a rider on horseback, is now virtually instantaneous. But the principles remain the same.
134. By contrast, what is proposed here is a revolution in principle, an alteration of fundamental decision which is based on exegesis of the Constitution itself. I believe that, for a court to change those principles in a s.23 appeal is quite illegitimate. The legislature may of course enact such a charge, subject to the Constitution or may hold a referendum and invite the people to do so.
135. We have already seen, in Hynes, O’Sullivan v. O’Driscoll [1988] IR 436 that this Court declined an invitation to change the long established Common Law defence to an action for defamation known as qualified privilege on the ground that the suggested change should more properly be effected by Statute. It said that the new public policy which a new formulation of the law would represent should be found by the Law Reform Commission or some other body “in a position to take a broad perspective as distinct from what is discernable to the tunnel vision imposed by the facts of a single case”.
136. In my view, the above caution applies with all the greater force in an area where the constitutional rights of very many individual citizens are intimately involved.
Retrospectivity.
137. There is another aspect of the jurisdiction claimed by the State in this case which argues against its existence or, if it exists, against its exercise. As we have seen on several occasions the demand of the State is to “overrule” a previous decision of this Court “so that it no longer forms part of Irish law”.
The significance of this is very clear and very great. It is a demand to change the law as it was at the time when Mr. C. was tried. This demand was made under a statutory provision which permits, and permits only, an appeal against errors of law by the trial judge. If the law itself can be changed after a trial which resulted in acquittal then it follows that, at the time of the trial, there was no certainty as to what the law might be. If the claimed jurisdiction exists, and is exercised, then Mr. C. will have been forced to trial in an uncertain state of the law and will run the risk of having his acquittal set aside because the law has been changed years afterwards, by this Court.
I believe that there is an entitlement in an accused person to know what the law under which he will be tried is before the trial starts. Only thus can he be properly advised as to his position; only thus can he make the tactical decisions which are required of every innocent person charged with a criminal offence.
In any event, Mr. C. is not only entitled to know the law; he is presumed to know the law. This presumption and entitlement are made mockeries of if the State can have the law changed while the defendant remains in peril. Unlike the force publique, he cannot rely on his own “inadvertence”.
I do not believe that a trial with an incident such as that outlined above is a trial in due course of law or represents due process of law. I do not believe that it is a proper resolution of Mr. C.’s criminal liabilities as envisaged in Article 6 of the European Convention of Human Rights.
In Professor O’Malley’s book “The Criminal Process” (Round Hall 2009), on p.157 at par. 5.13, in his exposition of Article 7 of the Convention, he says that it requires, not simply “that only the criminal law may define a crime or prescribe a penalty” but also “that the criminal law must not be extensively construed to an accused person’s detriment”. (Emphasis added)
Mr. C. is the accused person in this case. He was acquitted because DPP v.Kenny [1990] 2 I.R. 110 was binding on the trial judge. I can think of no more dramatic a form of “extensive construction” of the law than to claim that that case does not, after all, apply and that he is now liable to be retried in a new and different state of the law, as yet unknown.
Later in this judgment I shall be considering the American case of Bouie v. City of Columbia 378 U.S. 347 (1964). There, a conviction was struck down because of an extensive construction of a law which prohibited entry on the premises after the owner had forbidden it so as to include the act of remaining on premises after the owner had requested departure. This resulted from a Civil Rights demonstration in the Deep South in the early 60s. The construction was not merely “extensive”, it was retrospective and so fell foul of what the Americans call the ex post facto clause. The present purported construction is equally retrospective, with regard both to the original trial and, still more so, to the alleged criminal act, and it is no less extensive.
I repeat that this appeal appears to involve the Court in illegitimacy.
III
138. The preceding Section of this judgment is concerned with a question of jurisdiction: whether this appeal lies at all or whether, as it is expressed in Attorney General v. Kennedy [1946] IR 517, cited above, the purported appeal is incompetent and does not lie. I have concluded that Section 23 of the Criminal Procedure Act of 2010 provides an appeal to the prosecution only against an error of law by a trial judge. But here there is no error of law by the trial judge, Judge Mary Ellen Ring, who followed the law as laid down. Section 23 confers no right of appeal against a twenty-five year old decision of this Court, which is effectively what the State contend that it does.
139. I now turn to a different but related issue. If the wholly novel jurisdiction invoked by the prosecution actually exists, would a second trial held pursuant to s.23 be a trial “in due course of law” as the Constitution requires (Article 38(1) ). No other form of trial is admissible: “no person shall be tried on any criminal charge save in due course of law”. (ibid)
140. If such a trial would not be a trial in due course of law, we ought not to hold that the jurisdiction to direct it in these circumstances is conferred by s.23. This is a corollary of the presumption of constitutionality enjoyed by the Act of 2010. In The State (Woods) v. Attorney General [1969] IR 385 at p. 399, Henchy J. describes this “double construction rule” as a refinement of the presumption and compared our “double construction rule” with the American practice.
141. In McDonald v. Board na gCon [1965] IR 217, at 239, Walsh J. said:
“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional unless the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction”.
Trial in due course of law.
142. Trial in due course of law is required by Article 38.1 of the Constitution. But the concept of “due course of law” is both an ancient one and an international one and this has been fully recognised in our cases on the topic. In Conroy v. Attorney General [1965] IR 411 at p.415, Kenny J. said:
“I think that s.1 of the Article [Article 38] is an echo of a clause in the Great Charter of Ireland granted in 1216… This phrase “due process of law” was adopted by those who drafted the Fifth Amendment to the Constitution of the United States of America which prevents any person being deprived of life liberty or property without due process of law. I think that s.1 of the Article gives a constitutional right to every person to be tried in accordance with the law and in accordance with due course or due process of law”.
(Emphasis supplied)
143. Similarly, in Goodman International v. Hamilton (No. 1) [1992] 2 IR 542 at 609, McCarthy J. said that the language of Article 38.1 was “an echo of the phrase ‘due process of law’ in the Fifth Amendment of the Constitution of the United States” and that for that reason the jurisprudence of the United States was particularly relevant.
144. In The State (Healy) v. Donoghue [1976] IR 325 at p. 335, Gannon J. discussed the phrase “due course of law” as follows:
“[It is] a phrase of very wide import and includes in its scope not merely matters of constitutional and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters of practice and procedure, but also the application of basic principles of justice which are inherent in the proper course of the exercise of the judicial function”.
(Emphasis added)
145. Thus, in Enright v. Ireland [2003] 2. I.R. 321 at p. 322 Finlay Geoghegan J. said that one of the rights guaranteed by Article 38 was the right:
“… only to be punished for a crime in accordance with the law which existed at the date of the commission of the crime”.
There are very few examples in this jurisdiction of an attempt after an acquittal, or after an acquittal had become inevitable, to retry a defendant before a different judge, thus opening the prospect of different rulings on evidence, and no precedent whatever for an attempt at all to do this in a judicially changed state of the law.
146. The brutal and inherent unfairness in this situation was recognised thirty-seven years ago in The State (O’Callaghan) v. O hUadhaigh [1977] IR 42. There, the defendant was brought up for trial in the Central Criminal Court. He entered a special plea in bar of the indictment. After legal argument the trial judge was clearly of the view that only one count of the eight count indictment was properly before the Court. The Director of Public Prosecutions then entered a nolle prosequi in respect of all the counts. The defendant was shortly afterwards re-arrested brought before the District Court, and charged with the same offences. He obtained an absolute Order of Prohibition restraining his trial. In the passages from the judgment of Finlay P. which follow, the defendant, in the language of the Judicial Review or “State side” procedures of the time, is referred to as “the prosecutor”, because he was the moving party in the claim for prohibition.
147. Finlay P. (as he then was) said at pp. 53 to 54 of the Report:
“If the contention of the [Director] is correct, the prosecutor having undergone that form of trial, and remand awaiting trial, and having succeeded in confining the issues to be tried, would be deprived of all that advantage by the simple operation of a statutory power on the part of the Director of Public Prosecutions. In this way, the prosecutor would have the entire of his remand awaiting trial set at nought and he would have to start afresh to face a criminal prosecution in which the prosecution, by adopting different procedures, could hope to avoid the consequences of the learned trial judge’s view of the law. No such right exists in the accused; if the trial judge makes decisions adverse to the interest of the accused the latter cannot obtain relief from them otherwise by appeal to the Central Criminal Court, or by appeal or review in the case of an inferior court.
It seems to me that so to interpret the provisions of s.12 of the Act of 1924 [the provision permitting the entry of a nolle prosequi] as to create such an extraordinary imbalance between the rights and powers of the prosecution and those of the accused respectively, and to give the Director such a relative independence from the decision of the Court in any trial, would be to concur in a proposition of law which signally failed to import fairness and fair procedures”.
(Emphasis added)
148. Finlay P. continued at p. 54 by observing that, if the Director’s contention were correct then:
“… if it appeared likely that a contention of the prosecution would fail, there would be nothing to prevent the Director from entering a nolle prosequi and availing himself of the opportunity in a fresh prosecution, on additional or different evidence, to succeed where he had been about to fail: that situation might arise in a discretionary matter involving a decision of mixed law and fact which falls to be determined by the trial judge rather than by the jury – such as the admissibility of a statement alleged to have been made by an accused. Viewed in this light, the basic unfairness of such a contention appears to me to become clear”.
(Emphasis added)
149. I believe this case to be directly in point here. In The State (O’Callaghan) v. O hUadhaigh [1977] IR 42, the prosecution planned to succeed at the second trial by “adopting different procedures”. Here they plan to succeed by changing the law itself. This is to subject Mr. C. to trial on an ex post facto revision of the applicable law, something quite outside the constitutional concept of trial in due course of law.
150. It appears to me that the proposed use of the nolle prosequi procedure in The State (O’Callaghan) v. O hUadhaigh [1977] IR 42 was found to be improper and unfair because it permitted the prosecutor unilaterally to deprive the defendant of an advantage he had obtained in litigation. Accordingly it was not permissible in a trial conducted “in due course of law”.
What is attempted here is considerably more radical.
151. The Courts have long held that retrospective or, to mention the phrase more common in the American cases, ex post facto law, cannot ground a prosecution. This is by reason of Article 15.5.1 of the Constitution.
152. This Article was described in Magee v Culligan [1992] I.R. 223 at p. 272, [1992] I.L.R.M. 186 at p. 190 as constituting:
“… an expressed and unambiguous prohibition against the enactment of retrospective laws declaring acts to be an infringement of the law, whether of the Civil or the Criminal law”.
Thus, in Doyle v. An Taoiseach [1986] ILRM 693 at p.715 a levy on the proceeds of the sale of live cattle was introduced in 1979. Section 79 of the Finance Act, 1980 purported to confirm the validity of those levies. The Supreme Court held that if s.79 was held to have retrospective effect it would be to that extent unconstitutional. This was so, according to Henchy J. at p.715, because it would have the effect:
“… of making, ex post facto, non-payment of the levy in 1979 an infringement of the law. Such a result would make s.79 invalid having regard to Article 15.5 of the Constitution”.
The Section was therefore treated as being prospective only in its effect. But the Article is silent as to judicial decisions which interpret or lay down the law, and whether or not they can have retrospective effect. In any view they can not.
In the American case of Bouie v. City of Columbia 378 U.S. 347 (1964), the United States Supreme Court recognised that ex post facto restrictions apply, through the Due Process Clause, not merely to the legislators but to the judges when they are interpreting criminal statutes. There, at the height of the civil rights era, two black Americans staged a protest – a sit in – in a branch of a shop which served black people in every department except the restaurant. This happened in Columbia, South Carolina. They were prosecuted under a South Carolina law which made it unlawful to enter on premises if one had been prohibited from doing so by the owner. This law was found in par. 16 – 382 of the South Carolina Code of 1960. But the two black men had not been prohibited from entering the premises: they had merely been asked to leave after a lawful entry. The trial court, and later the South Carolina Supreme Court, in an entirely novel view of the law, held that the statute or code extended to failing to leave premises after one had been asked to do so, as well as to entering after prohibition. But the Statute did not say so on its face.
The Supreme Court of the United States set the convictions aside holding at p. 353 that (378 U.S. 347,353):
“If a State legislature is bound by the ex post facto clause from passing an ex post facto law, it must follow that the State’s Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction”.
(Emphasis added)
I believe that this entirely logical conclusion applies in this jurisdiction as well. If that is so, then the purported setting aside of the acquittal of Mr. C. and any retrial in a new state of the law would clearly be void as being held under ex post facto, that is retrospective, law.
153. The US Supreme Court in Bouie v. City of Columbia 378 U.S. 347, 354 (1964), held that a judicial interpretation of a criminal statute may not be given retroactive effect “If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue’.”
See also Hall, General Principles of Criminal Law (2d ed. 1960 at 58-59) cited in the US Supreme Court report, 378 U.S. 347, 354 (1964).
154. The principle enunciated in Bouie v. City of Columbia 378 U.S. 347(1964) is by no means confined to the interpretation of criminal statutes. The US Supreme Court (378 U.S. 347, 355 (1964)), also cited Brinkerhof-Faris Trust and Savings Company v. Hill 281 U.S. 673 (1930). This was a case relating to taxation on a disposal of shares. Under the established judge made law of Missouri, an action in equity to restrain collection of a tax was the appropriate and only remedy “against a discriminating State tax violative of the Equal Protection Clause of the 14th Amendment of the US Constitution” ”( 281 U.S. 673, 678(1930)) . The State Supreme Court, overruling earlier decisions, denied that remedy on the ground that the party seeking it should first have exhausted an administrative remedy which, under the previous law, was never open to him. The judgment was found by the Supreme Court to violate due process of law in its primary sense of an opportunity to be heard in defence of one’s substantive right
155. Justice Brandeis gave the judgment of the Supreme Court and held at pp 679 to 680:
“If the result above stated were attained by an exercise of the State’s legislative power, the transgression of the due process clause of the 14th Amendment would be obvious… The violation is nonetheless clear when that result is accomplished by the State judiciary in the course of construing an otherwise valid State statute. The federal guarantee of due process extends to State action through its judicial as well as through its legislative, executive or administrative branch of government… [w]hether acting through its judiciary or through its legislature, a State may not deprive a person of all existing remedies for the enforcement of a right, which the State has no power to destroy, unless there is, or was, afforded to him some real opportunity to protect it”.
(Emphasis added)
156. What was in issue in the last mentioned case was a procedural change in civil litigation, not a new interpretation of a criminal statute. The position in Bouie v. City of Columbia 378 U.S. 347(1964), since it related to criminal statute, was a fortiori. The position in the present case, where what is proposed is the setting aside of a lawful acquittal and re-trial after the abolition of a constitutionally grounded right to the exclusion of evidence obtained by a deliberate and conscious act in breach of the Constitution, represents a stronger case still. The Oireachtas could not order Mr. C. retried under a new and retrospective law. Neither can this Court.
IV
157. At paragraphs 45 to 48 of the appellant’s (that is, the States) submission there are a number of statements which are not entirely easy to understand. Very significantly, para. 46 consists in its entirety of the following statement:
“It is also of note that in the years since delivery of the judgment in Kenny, there have been a number of significant changes in the legal and regulatory landscape in respect of An Garda Síochána, including the video taping of interviews, the establishment of the Garda Síochána Ombudsman Commission, the introduction of new garda disciplinary regulations and the detailed statutory regulation of An Garda Síochána in the Garda Síochána Act, 2005”.
(Emphasis added)
These statements, so to speak, are left hanging. It is clear that the appellant thinks that changes since the delivery of the judgment in DPP v.Kenny [1990] 2 I.R. 110 are relevant in the present case as well as simply being “also of note”. However, the nature of that relevance is left unstated, though perhaps not difficult to infer.
Is the appellant contending that changes since 1990 in some way make the protection of constitutional rights set out in DPP v.Kenny [1990] 2 I.R. 110 unnecessary; that the need for such protection has been rendered otiose by such developments?. If so, one would have thought that would have been said expressly. If not, it is difficult to know what relevance the changes mentioned have in the context of the present case. Is the appellant contending that the mere enactment of legislation or the establishment, for example, of the Garda Síochána Ombudsman Commission is relevant, or is the Court being invited to consider the efficacy of that body?
In the penultimate sentence of the previous paragraph of its submissions, para. 45, the appellant contends that “there are many ways of vindicating the right to inviolability of the dwelling and to ensure that search warrants are correctly completed”.
158. The first observation which it is important to make about contentions such as these is that they underline the fact that this s.23 procedure, providing for appeals against errors of law by a trial judge, are quite inappropriate to the assessment of arguments based on changes since 1990, or based on the availability of other equally effective methods of vindicating constitutional rights. As appears from the citation of Hynes-O’Sullivan v. O’Driscoll [1988] I.R. 436 elsewhere in this judgment, arguments such as these are more appropriate to a parliamentary forum, or to a body such as the Law Reform Commission than to a court whose scope for intervention is limited to the correction of an error of law in a particular trial.
159. But since arguments of this sort, the sort mentioned in para. 46 of the State submissions have been raised by the State appellant in this case, I must make it as clear as I can that I emphatically disagree with them.
160. Since this matter has been raised by the appellant I have to make it clear that I do not consider that any changes, legal or otherwise, have taken place over the last twenty-five years which would make it desirable, or even safe, to make the change which the present appeal is designed to bring about. On the contrary, there have, during that time, been a considerable number of deeply disturbing developments both in relation to the Garda Síochána itself and to the arrangements for its oversight. These have been expressly acknowledged in impressive and authoritative sources, as will be seen.
161. In the period in question there have been two Tribunals of Inquiry, each presided over by an eminent member of the judiciary, which have each reported in a profoundly disturbing manner, quite inconsistent with the submission at para. 46. The first report of the Morris Tribunal, published in 2004 (there were successive reports over the following years) related to bogus explosive finds by gardaí in County Donegal. The report observed, at p.448, that garda culture:
“…generally militates against open and transparent cooperation with investigations both internal and external and manifests itself in a policy of ‘don’t hang your own’ ”.
This was said in a context of Gardaí “planting” explosives and then “finding” them.
162. This last phrase quoted “don’t hang your own” came from evidence to the Tribunal by Garda Martin Leonard, a Garda Representative Association official, at p.448 of the report:
“It is the nature of the gardaí, we don’t name the names – we don’t want to get anybody into trouble in the Garda Síochána internal matters… we do our best to make sure – we are not going to be hanging our people”.
163. Almost ten years later, in December 2013, the report of the Smithwick Tribunal stated:
“I regret to say… that there prevails in An Garda Síochána today a prioritisation of the protection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty”.
(Emphasis added)
“The Wall of Silence”.
164. The several very detailed reports of the Morris Tribunal show why the very strong words quoted above were used. In the Morris Report “On the detention of suspects following the death of the late Richard Barron and related issues”, the Tribunal reported ((Vol. 3, p.1241, para. 16.01):
“… the Tribunal was faced with gardaí who were determined to hide the truth of what happened. They made statements to their superiors which were in many instances minimalist in their detail and failed to give a fully truthful account; in a number of instances the statements were a complete fabrication. It was disturbing to find a deep seated reluctance to concede that a colleague had acted incorrectly or wrongfully or that the complaints made by the detainees were true – the wall of silence was maintained.Unfortunately this approach extended to and was encouraged by senior officers in this investigation and in the overall approach adopted by An Garda Síochána to external complaints. The Tribunal, however, was able to break through the wall of silence on occasion, sometimes with the assistance of gardaí who eventually admitted wrongdoing and on other occasions by persistent hammering on the wall.”
165. Nor were the problems confined to Donegal:
“The deficiencies observed by the Tribunal in the manner in which An Garda Síochána acted in these matters, by their nature, are not peculiar to Donegal. Issues of accountability, tunnel vision, the proper investigation of offences, the treatment of persons in custody, and response to the leadership of criminal investigations, are all issues related to general policing. The deficiencies in these issues must be addressed throughout the force and at all levels within An Garda Síochána.”
(Emphasis added)
166. Subsequently, at pages 1254 – 1255, para. 16.33, it was stated:
“The Tribunal has already referred to the ‘wall of silence’ that has been experienced in dealing with policemen at home and abroad when they are faced with allegations of misconduct. This may be viewed with the other phenomenon of ‘garda speak’ which the Tribunal has encountered over the last number of years, and an understanding by gardaí that they are expected only to give the minimum amount of detail in respect of any controversy in which the gardaí are involved”.
(Emphasis added)
167. The Tribunal went on, in the same place, to consider the consequences of this for the State itself at p.1255:
“The State must act honourably and honestly in its dealing with plaintiffs in these circumstances. It cannot do so if it is told lies and half truths by the gardaí. This must stop. Senior officers in An Garda Síochána must show leadership in this regard. The difficulties are linked to difficulties faced by ‘whistle blowers’ who wish to tell the truth but fear the consequences from their colleagues or for their careers”.
(Emphasis added)
168. This section of the report ended with the statement that “It is regrettable that such a basic proposition in relation to telling the truth should have to be spelt out in this way”.
“… proper discipline has been lost from An Garda Síochána”.
169. The fifth report of the Morris Tribunal also reported on the arrest and detention of seven persons at Burnfoot, Co. Donegal and said, at p.252, para. 6.05:
“It is obvious that for the security of the State and for the security of its citizens, there must be an effective police force. In the Tribunal’s opinion, what has been lost sight of is that police work requires the safeguard of strict internal discipline. An Garda Síochána cannot be compared in industrial relations terms, or in terms of its internal accounting, to a business… In the Tribunal’s opinion, proper discipline has been lost from An Garda Síochána. Without a managing structure being restored to the gardaí based on strict compliance with orders, and immediate accountability, the danger is extreme that what the Tribunal has reported on in Donegal will be repeated; and such conduct will multiply if allowed to go unchecked”.
(Emphasis added)
170. At p. 254, para. 6.09 the Tribunal stated:
“The Tribunal has been staggered by the amount of indiscipline and insubordination it has found in the garda force. There is a small, but disproportionately influential, core of mischief making members who will not obey orders, who will not follow procedures, who will not tell the truth and have no respect for their officers…
Garda [name redacted], for example, was able to act almost at will: applying to arrest a colleague in an investigation in which he was not involved, not wearing his uniform, lying at will, and continuing testing the waters as to the vulnerability of his colleagues. The behaviour of Sergeant [name redacted] Garda [name redacted] and Detective Sergeant [name redacted] in all of this beggars belief; and yet it happened. In the course of a tribunal hearing that was so much extended by their dissimulation, the Tribunal was used as a sounding board for deceit in the hope that it would be inveigled into believing lies”.
(Emphasis added)
171. The report of the Smithwick Tribunal is just one year old. It is clear from the quotation from it given above that part of its significance is that it clearly demonstrates that there was little or no change in what the Morris Tribunal called “Garda culture” in the intervening period between the two reports. This impression is considerably strengthened by the detail of the latter Tribunal’s findings. For example, the reader will find the following at p.154, para. 10.6.11; of the Smithwick report:-
“Tom Curran retired as a senior officer of An Garda Síochána, and he struck me as an officer of the utmost integrity. I would have thought he is as deserving of the support of the Garda Commissioner as any other former officer. However, it seems to me that because he was giving evidence of which An Garda Síochána did not approve, such support was not forthcoming. I regret to say that this suggests to me that there prevails in An Garda Síochána today a prioritisation of the perfection of the good name of the force over the protection of those who seek to tell the truth. Loyalty is prized above honesty. My life experience tells me that such a culture is not unique to An Garda Síochána; all large organisations have to struggle with this issue. However, given that I have already concluded that political expediency and the prioritisation of the good name of the force contributed to suggestions of collusion in these killings not being properly investigated when they first arose, the fact that such a culture and attitude is still prevalent now, more than twenty years on, in the context of the work of this Tribunal, is disheartening and depressing”.
(Emphasis added)
172. At p.159, para. 11.2.11, the Smithwick Tribunal reported:
“I am drawn to the conclusion that a number of the garda witnesses before this Tribunal, including former and current senior gardaí were not fully forthcoming in their evidence to me. … I accept that any individual witness may not recall, or for some reason may never have encountered, the unease to which I have referred; the evidence of any one individual witness may therefore be truthful. What I find difficult to accept, what I cannot accept, is that so many of the garda witnesses from whom I have heard do not recall or have never encountered such unease. Regrettably, this suggests that there is an ingrained culture of prioritising loyalty to the good name of the force over the legal, moral, and ethical obligation owed to give truthful evidence to this Tribunal”.
(Emphasis added)
A summary.
173. In the Morris Tribunal’s report on “the investigation into the death of Richard Barron and the Extortion calls to Michael and Charlotte Peoples” published 1st June, 2005, the Tribunal recalled that more than ten years had passed since its first enquiry, on bogus explosive finds. The Tribunal held that anybody who read all of its intervening reports would realise “that it has happened again”. The Tribunal concluded, at para. 9.03, pp. 597 to 598:
“The combination of gross negligence at senior level, amounting to the criminal negligence standard in law, and the lack of objectivity and corruption at levels lower than that, caused the scandalous situation to arise that has been detailed in this further report”.
174. In the following paragraph the Tribunal concluded at p. 598, par. 9.04 that:
“In common with the situation uncovered in 1993/1994, the situation through 1996 to 1998 shows appalling management coupled with the manipulation of facts and circumstances in order to present to Garda Headquarters, and to the world at large, an untruthful appearance of honesty and integrity in the Donegal Garda Division. The Tribunal reiterates that it has been lied to repeatedly by former, and serving, garda officers”.
(Emphasis added)
175. In the paragraph following that, par. 9.05, the Tribunal concludes that:
“It has been all too easy for the highest structure of An Garda Síochána to be hoodwinked and misled. In setting up enquiries in an attempt to discover the truth, Garda Headquarters has also been obstructed and lied to. It is obvious that where a situation reaches a point where wrongdoing has become hardened into a habit in certain sections of An Garda Síochána that people are not only unlikely to own up it, they are positively likely to lie about it”.
(Emphasis added)
176. With regard to the atmosphere within the Garda Síochána itself, the Tribunal concluded, at pp.612 to 613, para. 9.36:
“The Tribunal has noted with dismay the obvious reserve, amounting almost to hostility with which members of the gardaí that hold the rank of Sergeant and Garda display towards their superior officers”.
177. The Tribunal went on, in the following paragraph (par 9.37) to find:
“At first, it was hoped that this attitude was indigenous to the Donegal division; and perhaps only to a small section of that division towards specific officers. However, in evidence, and when submissions were made on behalf of some bodies representing sections of the Gardaí, it became apparent that this was not the case. Assuming that these submissions represent the attitude of members of the force of those ranks, then it would appear that there does not remain within the force any proper sense of loyalty or support for higher ranking officers”.
(Emphasis added)
Every single one of the events considered by the Enquiries mentioned took place since DPP v.Kenny [1990] 2 I.R. 110 was decided.
_____________________________________________________________
The Shortt case – “A pot of iniquity”.
178. The case of DPP v.Frank Shortt, [2002] 2 I.R. 696 and Shortt v.Commissioner of An Garda Suiochána & Ors [2007] IESC, [2007] 4 IR 587 [2007] 3 J.I.C. 2102, which came before the Court of Criminal Appeal in 2002 and the Supreme Court, by way of appeal against the High Court’s assessment of the damages due to Mr. Shortt, in 2007, was an appalling example of a deliberate garda conspiracy to perjure an innocent man into prison for no better reason than to enhance the careers of certain gardaí. The President of the High Court (Finnegan P.), held that ([2005] IEHC 311):
“The plaintiff was sacrificed in order to assist the career ambitions of a number of members of the Garda Síochána”.
On the face of it, Mr. Frank Shortt seemed an unlikely victim of a garda conspiracy. At the time when the gardaí succeeded, by perjured evidence, in having sentenced to three years imprisonment, he was a 60 year old chartered accountant and businessman. He was a Fellow of the Institute of Chartered Accountants. He was a married man, the father of five children. What happened to him is aptly summarised in the judgment of Chief Justice Murray of the 21st March, 2007([2007] IESC 9, [2007] 4 IR 587 at pp. 591 to 592):
“The plaintiff, Mr. Shortt, has been the victim of disreputable conduct and a shocking abuse of power on the part of two garda officers, namely a superintendent and a Detective Garda. They both engaged in a conspiracy to concoct false evidence against the plaintiff which in turn resulted in perjured garda evidence being given at his trial for allegedly permitting drugs to be sold in his licensed premises in Co. Donegal in 1992. That perjury procured his conviction by a jury. What followed as a consequence for the plaintiff was a tormenting saga of imprisonment, mental and physical deterioration, estrangement from family, loss of business, public and professional ignominy and despair. Furthermore, as the learned High Court Judge put it, “the plaintiff was sacrificed to assist the career ambitions of a number of members of the Garda Síochána”.
Despite the injustice of his situation he finally obtained an order setting aside his conviction from the Court of Criminal Appeal… when the DPP, for reasons that were never disclosed to that Court, consented to such an order. Finally, in July 2002, the Court of Criminal Appeal certified that he had been the subject of a miscarriage of justice…
Unfortunately, the conduct of the garda officers before during and following the trial and the associated circumstances cannot but reflect negatively on the Garda Síochána…
Unfortunately, as experience in this country and other countries demonstrate, departures, sometimes the gravest of deviations, from normal standards of conduct and professionalism occur in police forces. Left unchecked there is always a risk that low standards will infect elements of such a force”.
[The learned Chief Justice then referred to the Morris Reports, much quoted above in this judgment]. He then continued at p. 593:
“The conduct of those two members probably constitutes the gravest dereliction of duty and abuse of power that one could ever fearfully contemplate would be engaged in by servants of the State and officers of law and order. Partly, but by no means solely, because they have sullied the reputation of the Garda Síochána the gravest view must be taken of their conduct.
This affair is regrettably a stain of the darkest dye on the otherwise generally fine tradition of the institution of An Garda Síochána. The facts and circumstances are a pot of iniquity which may be seen by some as reflecting on the Garda Síochána as a whole much to the potential demoralisation of upstanding members of the force which constitute the vast majority. Such a broad conclusion would be an unwarranted and disproportionate response to this affair however badly it may be viewed…
However, this affair cannot be bracketed as a couple of bad apples in the proverbial barrel. The misconduct penetrated the system of law enforcement too deeply and persisted over too long a period to be discounted in such a fashion. Concrete independent evidence of the wrongful conspiracy against Mr. Shortt only emerged in the course of an official garda investigation into affairs in Donegal. The matters concerning Mr. Shortt may only have been a rather small part of that investigation but the lack of immediacy or action in response to the evidence which emerged concerning his trial does raise questions as to whether there is some complacency at different levels in An Garda Síochána with regard to the exacting standards of integrity which must at all times be observed by its members. The cavalier manner in which those two members set about concocting evidence and subsequently persisted in trying to cover up their misdeeds, not entirely out of sight of other garda members, displayed a worrying confidence on their part that they could get away with it”.
(Emphasis added)
I have cited from the judgment of Chief Justice Murray at some length in order to emphasise the truly appalling nature of what happened to Mr. Frank Shortt. He was regarded by the gardaí involved as a worthless pawn whose life could be ruined with impunity in order to enhance their careers. He was eventually awarded the sum of €4,623,871.00 (four million, six-hundred and twenty-three thousand eight hundred and seventy-one Euros as damages against the State defendants. It was not a penny too much for several years in jail, a ruined business, a shattered career, gross stigmatisation, a damaged family life, and poverty which, due to age, he could have never hoped to remedy and above all for cynical perjury.
In his judgment, Chief Justice Murray was keen to emphasise that the very great majority of members of the Garda Síochána are upright people, that not the least serious aspect of the activities of those gardaí who perjured Mr. Shortt into prison was the damage they inflicted on the reputation of the Garda Síochána itself; and that it would be wrong to conclude that such conduct is widespread or even current at all in the Gardaí Síochána as a whole. I hope this is true but am concerned about the “disproportionately influential” minority who ensure that a “wall of silence” is maintained and that “proper discipline” has been lost from An Garda Síochána. (see par. 125)
I entirely agree that the numbers of gardaí, whether of garda rank or superintendent rank, who would deliberately connive at organised perjury is small indeed. What is worrying about this case, as well as others, is that no steps were taken from within the Garda Síochána, or from within the broader State structures, to remedy the grave wrong done to Mr. Shortt. As Murray C.J. said at p. 593, what the principle gardaí involved in did was done “not entirely out of the sight” of other gardaí. This is the most worrying aspect.
The full details of what was done in the Shortt case are set out in the judgment of the Court of Criminal Appeal dated the 31st day of July, 2002 and reported at [2002] 2 I.R. 696. No doubt for reasons of space, the version in the Irish Reports does not replicate the full detail of the judgment and anyone seriously interested in the subject would be well advised to consult the original judgment, available from the Court of Appeal Office.
For present purposes the salient features of the case itself are:
(1) It was frankly admitted by the State on the application by Mr. Shortt to have his conviction declared a miscarriage of justice that, at the time he was sent forward for trial, there was not, on the statements and other papers presented to the District Court, a sufficient case to put Mr. Shortt on trial.
(2) The guard who was directly responsible for the perjured evidence, Detective Garda Noel McMahon, stated that his understanding was that there was a “semi deal” whereby Mr. Shortt would plead guilty to one count, receive a fine and that would be the end of the matter. Incredibly, Detective McMahon blamed Mr. Shortt’s legal advisers for exposing a man of his age to a prison sentence by not accepting this “semi deal”, by pleading guilty to a crime of which he was innocent.
(3) Notwithstanding the absence of sufficient evidence Mr. Shortt was in fact sent forward for trial.
(4) In the run up to the trial on indictment (which was transferred to Dublin, at the State’s request), a number of gardaí, including the Superintendent, worked at improving Detective Garda McMahon’s statement of evidence. The Superintendent wrote in his own handwriting on the draft statement various suggestions or instructions for changes, absolutely without regard to whether or not they were true.
(5) It was a marked feature of the case that the Garda and the Superintendent were in fear of each other because each knew that the other had information which could destroy his career. The Garda kept the original version of his statement as altered by the Superintendent and told his wife that giving him the statement with the handwriting on it was the most stupid thing the Superintendent had ever done.
(6) Apart from the misdeeds, only some of which were acknowledged, by various gardaí, the other organs of the State emerge with no credit whatever from the DPP v.Shortt (No 2) [2002] 2 I.R. 696 case. When the unfortunate victim of the conspiracy was lodged in jail he suffered a collapse, both mental and physical. While he was incarcerated his wife had to be hospitalised for emergency treatment. His family were left in the care of a teenager. He applied for compassionate leave from prison which was granted regularly to serious criminals, but it was refused, apparently on the recommendation of the Superintendent.
(7) Also while Mr. Shortt was incarcerated, he was made an offer apparently with the authority of the Minister for Justice. This was that he would be immediately transferred to an open prison and shortly thereafter released altogether. But this would take place only if he dropped his appeal.
This was described in the evidence of Mr. Shortt in his High Court proceedings as follows, as recorded by the judge in Shortt v. Commissioner of An Garda Siochána & Ors [2005] IEHC 311:
“In October 1995 his appeal was pending and a proposal was communicated to him. If he should drop his appeal the State would not proceed on six outstanding charges pending against him and he would be transferred to an open prison and shortly thereafter released to join his family. He did not accept the offer. At this time also the six outstanding charges were proceeding. By this stage he had lost some two and a half stone in weight, he attributed to stress anxiety and depression”.
(8) In the plaintiff’s wife’s evidence she said that in the course of her visits to the plaintiff in prison she saw him deteriorate to the point “where he was an old man and like a zombie”. She said she did not think he would survive his prison term. When released from prison the plaintiff was in good form but later went into another state of depression as he was too old to go and look for a job. He had no income and no prospects. His sole income was disability allowance.
(9) Commenting on the plaintiff’s evidence just cited Murray C.J. said in Shortt v Commissioner of An Garda Siochána & Ors [2007] IESC 9, [2007] 4 IR 587 at 603:
“This is but one of the particularly nefarious aspects of the case. The prospect of early release was dangled in front of the plaintiff when he was most vulnerable and open to emotional blackmail. The intent can only have been to avoid any further judicial scrutiny of the case by pressuring the plaintiff to accept the finding of guilt in return for some sort of ‘deal’.
(10) In fairness, I should imagine that the Minister for Justice was advised that such a condition for early release was a normal one, or at least a justifiable one in the circumstances of Mr. Shortt’s case. But who so advised her?
(11) The State authorities opposed Mr. Shortt’s attempts to quash his conviction until quite suddenly, and without giving any reason, they consented to the conviction being quashed. This was in 2002, ten years since the gardaí first became involved in his life and seven years after he went to prison. The ordeal would last another five years.
(12) The State then opposed tooth and nail over a period of seventeen days in the Court of Criminal Appeal, Mr. Shortt’s application to have his conviction declared a miscarriage of justice. This too involved the concealment, and the non-production to the Court, of vital documentation discovered only during the hearing and when further concealment would have been useless.
(13) The State authorities contested Mr. Shortt’s application for damages and when he appealed to the High Court assessment, resisted that appeal in the Supreme Court. Very memorably, the State sought to minimise the damages by urging the Court to consider what sort of property Mr. Shortt could buy in Donegal with the amount awarded and specifically urged on the Court to remember that property was much cheaper in Donegal than elsewhere. In fairness, this submission was withdrawn the following day. But it was made, on the State’s instructions.
(14) The Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, might be regarded as having had a happy ending. But Mr. Shortt should never have been put on trial in the first place. It must be recorded, to the discredit, not simply of the gardaí but of the State itself, that his application to have his conviction deemed a miscarriage of justice – a perfectly normal request for an innocent man who had been perjured into prison – was resisted from start to finish.
(15) There is nothing in the tortuous history of the Shortt case, [2005] IEHC 311, [2007] IESC 9, [2002] 2 I.R. 696, which, even in its purely legal aspects, went on for fifteen years, to suggest that, since the handing down of the DPP v.Kenny [1990] 2 I.R. 110 decision in 1990, there is less need for the protections which, up to the present day, that decision affords the ordinary citizen.
New Enquiries.
179. The Smithwick Tribunal reported in December 2013. On the 27th February, 2014, the Taoiseach, further to a decision of the government, asked Mr. Seán Guerin S.C. to hold a review into allegations made by Garda Sergeant Maurice McCabe and related matters. Mr. Guerin’s terms of reference required him to conduct an independent review and to undertake a thorough examination “of the action taken by An Garda Síochána pertaining to certain allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere made by Sergeant McCabe and specified in a dossier compiled by him and furnished to An Taoiseach on the 19th February, 2014 and in a letter ‘understood to be from Sergeant McCabe’ dated 23rd January, 2012, part of which was furnished to An Taoiseach on the 21st day of February, 2014”.
180. Mr. Guerin S.C. concluded, at p.331, par. 20.12 that:
“Having regard to the number, range and importance of the issues arising, it is desirable in the public interest that a comprehensive Commission of Investigation be established pursuant to the Commissions of Investigation Act 2004 to investigate the issues that remain unresolved arising out of the complaints made by Sergeant Maurice McCabe. Such a commission is, in my opinion, desirable in the public interest to ensure continuing confidence in the institution of An Garda Síochána and the criminal justice system”.
181. Mr. Guerin S.C. went on, at p. 332, to recommend thirteen specific topics which required investigation by the Commission.
“Not fit for purpose”.
182. Following this, Dr. Varadkar, a member of the Government which is collectively responsible for policing, strongly criticised the Department of Justice for its failure to scrutinise the information passed to it by An Garda Síochána. The Minister said, on the 12th May, 2014:
“The Department of Justice is not fit for purpose. They accepted what the gardaí told them”.
(Emphasis supplied)
183. The Minister then observed, of the Government as a whole:
“The Government does get this. We do know there is a big problem with the gardaí and the justice system”.
(Emphasis added)
184. He went on to describe the Garda Síochána Ombudsman Commission, specifically mentioned in the appellant’s submissions in this case, apparently as a reassuring factor:
“GSOC is a toothless dog if ever there was one and they will admit that themselves”.
(Emphasis added)
It will be remembered that the existence of the Garda Síochána Ombudsman Commission was one of the specific reasons mentioned in the Public Prosecutor’s submissions in the present case said to favour the granting of the relief the State seeks in these proceedings. That submission is absolutely at variance with significant material quoted above and below.
“Fortress Garda”
185. While this judgment was being drafted, on the 2nd October, 2014, there was published in the Irish Times on line an interview with Mr. Conor Brady, former editor of The Garda Review and of the Irish Times itself, and author of a history of the gardaí, Guardians of the Peace. Mr. Brady was one of the founding Commissioners of GSOC and the interview records that “his disillusionment is deep”. He said:
“The process for our appointment was even more rigorous than that applying to judges. We could only be removed by a vote of the two Houses for stated misbehaviour. We were appointed at the highest level that is within the State’s capacity to give. But I just could not move the rock. You could not get into Fortress Garda.”
(Emphasis added)
In light of comments such as these, it is very hard to know how, precisely, the State consider that the creation of a “toothless dog” which cannot “get into Fortress Garda” is any form of reassurance or comfort when the Court is asked to set aside one of its own previous decisions and thereby considerably reduce judicial control of unconstitutional forms of evidence gathering.
186. Subsequent to Mr. Guerin S.C.’s report, by statement published on the 8th April, 2014, the government announced the terms of reference for a Commission of Investigation to be conducted by Mr. Justice Fennelly. According to this, the Commission is to investigate:
“- The operation of telephone recording systems to record calls to and from garda stations other than 999 calls to the Emergency Call Answering Service, at a large number of garda stations over many years,
– The garda investigation into the death of Ms. Sophie Toscan Du Plantier in County Cork in December 1996,
– How these matters were dealt with by the appropriate authorities and
– The sequence of events leading up to the retirement of the former Garda Commissioner in March 2014.”
187. The Statement goes on to set out further details of what is to be enquired into including:
“Whether any information obtained from the said telephone recording systems by An Garda Síochána was used by it either improperly or unlawfully and, in particular, whether any recordings as may have been made by An Garda Síochána of solicitor/client telephone conversations were used for any purpose whatsoever”.
188. Also included in the list of matters required to be investigated is:
“… the furnishing to the Minister [for Justice] of a letter dated 10th March, 2014 sent by the former Garda Commissioner, Mr. Martin Callinan, to the Secretary General of the Department of Justice and Equality”.
______________________________________________________________
189. It is therefore clear, that there are now, and have been for many years, serious questions as to the veracity in certain circumstances of a small but “disproportionally influential” number of members of An Garda Síochána. There is the important issue of whether, indeed, discipline and control within the Forces has eroded to the alarming degree badly stated in the report of the Morris Tribunal and whether it is indeed true that, within the Force, loyalty to other members of the Force is prized above honesty.
Most serious of all, is there “a wall of silence” in the Gardaí, as Judge Morris found, and is it true, as he also found, that “proper discipline been lost from An Garda Síochána”, so that there is an “extreme danger” that what the Tribunal reported on in Donegal will be repeated.
190. Quite apart from the reports of the two Tribunals mentioned, there have in very recent days been a number of new and contemporary controversies affecting An Garda Síochána. Many of these arise from the revelations or allegations of a whistle blower, Sergeant Maurice McCabe. It is no exaggeration to say that, in the course of this last calendar year, Sergeant McCabe has become a household name. There have been demands from the Garda Representative Association that these allegations should be resolved by an independent body as soon as possible because of the reputational damage that gardaí are incurring. There has been much public debate as to whether an independent garda authority should be established to oversee the Gardaí and this matter does not appear to have been finally been decided upon as yet.
191. All in all, in the words of the Government Minister quoted above “The Government do get this. We do know there is a big problem with the gardaí and the justice system”.
The Toland Report – “a deferential relationship”.
192. There has been some official reaction to the Morris Report though whether it has gone so far as to make a practical difference to a person suspected of, or charged with, a criminal offence, has yet to be seen. But on 3rd June, 2014 the Minister for Justice, Francis Fitzgerald T.D., who was then newly appointed, established an Independent Review Group to look into the “performance, management and administration of the Department of Justice”. This was done, according to the report of the group, in light of the concerns identified “particularly” in the report of Mr. Seán Guerin S.C. The members of the Independent Review Group consisted of Chairman, Mr. Toland, Chief Executive of the Dublin Airport Authority and a former Chief Executive of Glanbia USA. The other members consisted of a former Attorney General and EU Commissioner; a management consultant, the Chief of Police of Seattle, Washington U.S.A.; an accountant and management consultant; and a former Secretary General of the Department of the Environment. The group concluded on p.20:
“Regarding the role, responsibilities and capabilities of the Department, including concerns in respect of the governance and oversight of external organisations identified particularly in the report of Mr. Guerin S.C., the review group believes that there is a lack of governance with respect to external agencies and bodies. The Department fulfils its statutory obligations but does not hold agencies to account or have real management oversight”.
(Emphasis added)
The “External Agencies” referred to include the Garda Síochána.
193. Commenting specifically on the Department’s statutory role in relation to the gardaí, the group reported at para. 8(c) on p.10:
“The 2005 Garda Síochána Act was intended to reinforce and increase the power and authority of the Minister to set policies through and with the Commissioner. The Act, which was in response to the Morris Tribunal’s revelations, also altered the nature of accountability of An Garda Síochána through the establishment of the Garda Síochána Ombudsman Commission and the Garda Inspectorate. The implementation and operation of the Act is the responsibility of the Minister through his/her department and its Garda Division. The oversight role demands a delicate balance between accountability and respecting the independence of An Garda Síochána. In the view of the review group, there is a deferential relationship with An Garda Síochána and a lack of proper strategic accountability being brought to bear upon them by the department.”
(Emphasis added)
The “deferential relationship with An Garda Síochána”, referred to in the above quotation, is characterised by deference on the part of the Department to the Gardaí, and not the other way round.
194. The next paragraph of the report, par. 9(a) on p. 10, discusses the legislation mentioned above, the Act of 2005 and concludes:
“A major impetus for the enactment of this legislation was provided by the Morris Tribunal Report which, amongst its many findings, warned that ‘An Garda Síochána is loosing its character as a disciplined force’. (para. 13.101) The 2005 Act has been diluted in its implementation. The Department has adopted a passive approach stepping back from taking the opportunity to exercise the necessary power and influence at its disposal to encourage improvements in its management and discipline.”
(Emphasis added)
This report was published on 11th July 2014. Its conclusions are arrived at as of that date. The “deferential relationship” obtained (pertained?) as of that date.
Subsequent to the publication of the report, on 28th July, 2014 the Minister for Justice, Francis Fitzgerald T.D. welcomed the report and stated that:
“Given the significant recent disquiet over the administration and oversight of justice in this State, I believe this report presents another important step in this government’s justice reform programme.”
(Emphasis added)
I believe that this acknowledgement, by the Minister directly in charge of the justice area, that there is “significant recent disquiet over the administration and oversight of justice in this State” is an important part of the context of the present case. Given this disquiet, I really do not know how the complacent statements in the appellant’s submissions, quoted above, can be made. I consider it utterly unwise, to use no stronger word, to grant to the gardaí, in that context, the effective immunity from judicial oversight, which this case does. There is clearly no compensatory supervision or control by the Department. This may change. Equally it may not. Prudence suggests we might wait and see.
195. The Independent Review Group, in summarising its own findings about the Department of Justice made five key findings. These are:
(1) A closed, secretive, and “silo driven” culture.
(2) Significant leadership and management problems.
(3) Ineffective management processes and structures to provide strong strategic oversight of the key agencies both to hold them accountable and to ensure their effectiveness is maximised.
(4) A management advisory committee that is neither sufficiently focussed on key strategic priorities… nor ensuring that emerging that emerging issues with agencies or with political consequences are identified and managed proactively.
(5) Relationships with key agencies tend to be informal and unstructured without strong central management from the Department.
196. In this context, it appears to me to be nothing less than extraordinary for the State to submit that a change in the law which they so ardently desire can now somehow be the more easily conceded because of developments which have taken place since the decision in DPP v.Kenny [1990] 2 I.R. 110. On the contrary, it appears to me that very serious problems of garda culture and practices have been revealed by Tribunals headed by two distinguished members of the judiciary and by the garda whistleblower, and have been expressly acknowledged by members of the Government. It would appear to me absolutely extraordinary, and very damaging to the very concept of due process of law, if, with these matters outstanding and awaiting resolution, this Court were to take a step which would considerably loosen the application of the law of the land, and indeed on the Constitution itself, to members of An Garda Síochána and to provide a positive incentive for them to ignore it.
The matters invoked by the State appellant at paragraphs 45 to 47 of the submissions simply invite the Court to enter into an unreal, non-existent, world in which the authorities ever actually take civil or criminal proceedings against individual State officials for breach of citizens’ constitutional rights by groundless or warrantless searches. This simply does not occur. I am unaware of any such proceedings taken against any guard either at “coalface” or supervisory level for an infringement of a citizen’s constitutional right to the inviolability of his dwelling in the entire period since 1922.
This is illustrated by the case which the Director cites, Lynch v. Attorney General [2003] IESC 44, [2003] 3 IR 416. This was a case where a person was told by a State official (a guard) that an extradition warrant against him “would not be executed” if he gave information about other, quite different, matters.(at p. 416) The Court refused to restrain the person’s extradition to the United Kingdom on that basis. The Director’s submissions quote my judgment as follows (Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 at 435):
“A solemn, reasoned, finding of serious wrongdoing against a member of An Garda Síochána …is not a light matter, either for the member concerned individually or for the Force as a whole”.
I reiterate that this is true as a matter of law and equally true in the moral sphere. But I regret to say that, as matters are presently organised, the finding had absolutely no effect in practice.
There is no evidence whatever that the guard who behaved as outlined above actually suffered anything in the way of civil or criminal consequences. The Courts have from time to time made findings against individual guards in criminal proceedings, and in civil proceedings and of course there are many adverse findings in the reports of Tribunals of Inquiry, as we have seen above.
I am unaware that any of these findings or remarks have had any actual legal effect. If it is true, and it is true as far as I am aware, that in the twelve years since Lynch v AG [2003] IESC 44, [2004] 3 I.R. 416 was decided no steps were taken against the garda in question, that tells its own tale. No steps, notoriously, were taken against either the gardaí or the individual United Kingdom policemen involved in gross misconduct as found in State (Quinn) v. Ryan, [1965] I.R. 70 decided fifty years ago. I do not think that that policy of inaction and sedulous ignoring of the Courts findings has changed.
As I have said, I believe that the State appellant’s submissions in this regard invite the Court to enter an unreal world, which I absolutely decline to do. In any event, how could the gardaí at the doorstep in the present case be made the subject of disciplinary proceedings, on the State’s own case? Is it remotely likely that the Chief Superintendent who issued the warrant, or any of the still higher authorities who directed the policy which led to the capacity to issue the warrant, will be the subject of proceedings? I repeat, this is simply unreal. It has never happened; it has not happened in this case, and it will not happen in any other case. It is not simply the Gardaí which “doesn’t name the names… are not going to be hanging our people”, in Garda Martin Leonard’s phrase. It is the State’s policy as well.
197. I wish to stress in particular that the Guerin Report thought it appropriate to recommend the establishment of a Commission of Inquiry into the matters set out above; that the Fennelly Commission has already been established with the remit to report, if possible; before the end of 2014 (now extended); that the Garda Representative Association has called for an inquiry into the matters of concern which have been raised about the gardaí; and that the view has been expressed by a member of the Government that the Department of Justice is, or was as of last May, “not fit for purpose”, that “there is a big problem with the Gardaí and the justice system”, and that the Minister for Justice acknowledges “significant recent disquiet over the administration and oversight of Justice in this State…”. (28th July 2014)
Against this indisputable factual background, the decision of the majority will virtually preclude judicial supervision of the force publique, will make available to public servants with enormous powers over ordinary citizens a defence of carelessness or inattention, and will exalt already empowered public officials into a virtually impregnable position.
V
Kenny v. DPP [1990] 2 I.R. 110.
198. In my view, the case of Kenny v DPP [1990] 2 I.R. 110 (which the State seek to overrule) is one of the monuments of the constitutional jurisprudence of independent Ireland. It addressed a controversy which the Courts of many countries have been compelled to address. This is: what is to happen when evidence, unconstitutionally obtained by one or other of the coercive forces of the State, is offered in evidence against a citizen in a trial court. This situation immediately raises the question: how seriously are the Courts to take the Constitution which the people have adopted and the rights which are conferred on individuals by that document? Can State officials ignore the Constitution “by mistake” or through ignorance? And will the Courts wink at the ensuing breech of the Constitution?
199. In my view, Kenny v. DPP [1990] 2 I.R. 110 approaches that question in a principled, realistic, and moderate fashion. The result it arrives at, as I hope to show, is a middle-of-the road one. In the submissions made on behalf of the State in this case, Kenny v. DPP [1990] 2 I.R. 110 has been cynically misrepresented as an extreme decision amounting to an “absolute” or “near absolute” (both terms are used) Exclusionary Rule. It is nothing of the sort.
The principled basis of Kenny v. DPP [1990] 2 I.R. 110.
200. Article 40 is the Article of the Constitution which deals with the personal rights of the citizen. The starting point of any discussion of Kenny v. DPP [1990] 2 I.R. 110 must be Article 40.3.1 which provides:
“The State guarantees in its laws to respect and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”.
This is a solemn guarantee by the State. It imposes a special duty upon the Courts. In my view, the claim by the Public Prosecutor in this case would not only overrule Kenny v. DPP [1990] 2 I.R. 110: it would reduce Article 40.3.1 to an empty formula. If that can be done in relation to one of the express personal rights of the citizen, the right to be secure and undisturbed in his dwelling house save in accordance with law, it can, by the same or a similar process, be done in relation to any other right.
201. One of the other cases cited and followed by Judge Ring at the trial in the present case was that of Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266, the case in which, by the judgment of Denham C.J., s.29 warrants were found to be unconstitutional by reason of a lack of independence in the State official issuing them. Judge Ring cannot be said, and is not said, to have erred in following this case.
202. The first thing to be said about that case is that it was far from unexpected.
203. Reference has already been made, at some length, to the several reports of the Morris Tribunal. In its report on the “Burnfoot Module”, published on the 23rd May 1998, the Tribunal addressed the question of s.29 warrants as follows at par. 6.22 on p. 269:
“The Tribunal is satisfied that in many cases the person who issued the warrant was the person who was involved in the investigation of this offence. This cannot instil any confidence in the independence of the decision made to issue the warrant.
In the Ardara case, the Superintendent who was close to the investigation in Ardara was manipulated by Detective Sergeant White. The shocking circumstances as to the issue of the warrants for Burnfoot are detailed in Chapter III of this Report. The danger exists that the warrant would be issued automatically and without proper investigation of the matter by the Superintendent to whom the application is made if he or she is heading the investigation. There is a danger that the power to issue a s.29 warrant thereby becomes a mere formality in which the investigating Sergeant might as well be empowered to issue a search warrant to himself”.
(Emphasis added)
204. In DPP v.Cunningham [2012] IECCA 64, [2012] 2 I.L.R.M. 406 at 418, the Court of Criminal Appeal referred to the passage quoted above and said that it [the Court] found it “difficult to avoid the conclusion that the s.29 warrant procedure represented little more than a convenient and decorous formality which, absent the fundamental safeguards we have described as third party supervision and documentation, was in truth often little better than a warrantless search of the dwelling”. (Emphasis added)
205. The Court went on to observe at p. 418, that the result of Damache v. DPP [2012] IESC 11, [20122] 2 I.R. 266could equally “be said to have been prefigured by earlier case law”. The Court referred in particular to Ryan v. O’Callaghan (unreported) High Court, 22nd July, 1987; the judgment of Barr J. in King v. The Attorney General [1981] IR 233 and DPP v.Dunne [1994] 2 I.R. 537.
206. Similarly, in DPP v.Bolger [2013] IECCA 6 the Court of Criminal Appeal observed at par. 33 that:
“… the conclusion in the Damache case was not an unexpected result”.
207. In giving the judgment of the Court in Damache v. DPP & Ors [2012] IESC 11, [2012] 2 I.R. 266 itself, Denham C.J. at par.53 on p.284 also referred to the passage quoted above from the Morris Tribunal Report and went on:
“In other words, it was plainly stated in 2006 that the frailty of the Section raised an alarm as to its validity”.
208. The Court in Damache v. DPP [2012] IESC 11, [2012] 2 I.R. 266 held, at par. 55 on p. 285, that to conduct a search of a private dwelling on foot of a s.29 warrant involved “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution”.
(Emphasis added)
209. It may be significant that, at the trial in the present case, which led to Mr. C.’s acquittal, the prosecution did not call in evidence the Chief Superintendent who purported to issue the warrant, even though several other garda witnesses were called, all lower-ranking. There is, therefore, no account on the record of why the issuer thought fit to issue it. That being so, the characterisation of the search under a s.29 warrant as “stooping to methods which ignore the fundamental norms of the legal order postulated by the Constitution” must apply to this search. It is presumably not to be thought that a Chief Superintendent of An Garda Síochána was unaware of the contents of the reports of the Morris Tribunal which had been in the public domain for five years. Nor did he lay claim to ignorance or mistake, for he did not give evidence at all.
210. One of the consequences of the DPP v.Kenny [1990] 2 I.R. 110 decision is to promote and encourage a consideration of the rights of the citizen by the coercive powers of the State at the highest level. A strong Exclusionary Rule has a “tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement generally”, as Justice Brennan expressed it in the United State Supreme Court in U.S. v. Leon, 468 US 897 at 953.
211. But that tendency, important though it is, is not the fundamental principled basis underlying the Exclusionary Rule. That fundamental basis, clearly established in this jurisdiction at least, was precisely identified by Finlay C.J. in DPP v. Kenny [1990] 2 I.R. 110 itself. Having fully acknowledged the disadvantages of an Exclusionary Rule, in certain cases, for the detection of crime, the learned Chief Justice went on to hold at p. 134:
“The detection of crime and the conviction of guilty persons, no matter how important they may be in relation to the ordering of society, cannot… outweigh the unambiguously expressed constitutional obligation ‘as far as practicable to defend and vindicate the personal rights of the citizen’.”
(Emphasis added)
212. This chimes precisely with the well known and, to me, inspiring words of Justice Brennan in the United States Supreme Court in U.S. v. Leon 468 US 897 at pp. 929 to 930:
“… what the Framers understood then remains true today __ that the task of combating crime and convicting the guilty will in every era seem of such critical and pressing concern that we may be lured by the temptations of expediency into forsaking our commitment to protecting individual liberty and privacy. It was for that very reason that the Framers of the Bill of Rights insisted that law enforcement efforts be permanently and unambiguously restricted in order to preserve personal freedoms. In the constitutional scheme they ordained, the sometimes unpopular task of ensuring that the Government’s enforcement efforts remain within the strict boundaries fixed by the Fourth Amendment was entrusted to the courts”.
213. Similarly, Chief Justice Finlay spoke as he did notwithstanding that he had already recognised that (at p. 134):
“The exclusion of evidence on the basis that it results from unconstitutional conduct, like every other Exclusionary Rule, suffers from the marked disadvantage that it constitutes a potential limitation of the capacity of the Courts to arrive at the truth…”.
214. These passages are central to my view of the present case. The duty to exclude evidence obtained by a deliberate and conscious breach of the Constitution arises directly from the terms of the duty imposed on the Court by the Constitution itself, in Article 40.3.1. That is a solemn duty whose nature has not changed since DPP v.Kenny [1990] 2 I.R. 110 was decided. If the powers that be consider that the terms of that duty should be changed, they can effect such a change by legislation and, if necessary, seek to refer such legislation to the Court under Article 26 of the Constitution. If it were held that such legislation was not consistent with the Constitution then it would be possible to remedy that difficulty by promoting a referendum to alter the terms of the Constitution itself. But the solemn duty imposed on the Court cannot be changed in the manner now attempted, which I believe to be a subterfuge, for the reasons set out in Part II of this judgment.
An absolute rule?
215. The attack by the State on DPP v.Kenny [1990] 2 I.R. 110 is sought to be carried through on the basis of very general, and very misleading, characterisations of that case. As I have already pointed out, it is described as being “absolute” or “near absolute”. This is quite simply false.
216. The DPP v.Kenny [1990] 2 I.R. 110 decision is in no way a crude, extreme or an unsophisticated one. It arrives at its conclusion that unconstitutionally obtained evidence must, in the absence of some extraordinary excusing circumstance, be excluded in a passage of unanswerable logic, summarised below. I note that one of my colleagues described this in another case as a process of “remorseless logic”, a phrase very different in tone but which seems to concede the central point. The result in DPP v.Kenny [1990] 2 I.R. 110 followed inexorably from the terms of the Constitution itself.
217. The judgment addresses, in a very careful and self conscious way, the principal objection to the conclusion it reaches. This is that, in some cases, it will deprive the Court of relevant evidence. It then sets out “the correct principle” in a manner which is manifestly not absolute.
218. Chief Justice Finlay, at p.133, first identified “two alternative rules or principles” governing the exclusion of evidence obtained as a result of the deliberate invasion of the personal rights of a citizen. These correspond to the distinction drawn in the State submissions in the present case. The Chief Justice then made a number of very basic observations:
(1) “The duty of the Court pursuant to Article 40.3.1 of the Constitution is, as far as practicable to defend and vindicate such [i.e., personal constitutional] rights”.
(2) “As between two alternative rules or principles governing the exclusion of evidence obtained as a result of the invasion of the personal rights of the citizen, the Court has, it seems to me, an obligation to choose the principle which is likely to provide a stronger and more effective defence and vindication of the right concerned”.
(3) “To exclude evidence obtained by a person who knows or ought reasonably to know that he is invading a constitutional right is to impose a negative deterrent. It is clearly effective to dissuade a policeman from acting in a manner which he knows is unconstitutional or from acting in a manner reckless as to whether his conduct is or is not unconstitutional”.
“To apply, on the other hand, the absolute protection rule of exclusion, while providing also that negative deterrent, incorporates as well as positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizen as set out in the Constitution, and the effect of their powers of arrest, detention, search and questioning in relation to such rights”.
(4) “It seems to be an inescapable conclusion that a principle of exclusion which contains both negative and positive force is likely to protect constitutional rights in more instances than a principle with negative consequences only”.
219. I can see no break in this logical chain. I would not, therefore, depart from the conclusion, which is as follows (at p. 134):
“I am satisfied that the correct principle is that evidence obtained by an invasion of the constitutional personal rights of a citizen must be excluded unless a court is satisfied either that the act constituting the breach of constitutional rights was committed unintentionally or accidentally, or is satisfied that there are extraordinary excusing circumstances which justify the admission of the evidence in [the Courts] discretion”.
(Emphasis supplied)
220. I cannot see, with due respect to those who think otherwise, how a rule expressed so as to incorporate the exceptions set out in the foregoing passage by Chief Justice Finlay can properly be described as “absolute”. It is self evidently not absolute since it expressly provides for “extraordinary excusing circumstances”. The nature of such circumstances is, perhaps, prefigured by the judgment of Walsh J. in The People (Attorney General) v. O’Brien [1965] IR 142 at p. 170, where he instances “the imminent destruction of vital evidence or the need to rescue a victim in peril”.
221. Justice Oliver Wendell Holmes of the United States Supreme Court famously declared, in an extra-judicial lecture, that “The life of the law has not been logic: it has been experience”. The role of experience is perfectly exemplified in the exception which Chief Justice Finlay lay down to his own principle. Actual cases will throw up circumstances which could not possibly be anticipated by any process, however logical, before the event. It is for that reason that any jurist of experience will provide for un-anticipatable contingencies, as Chief Justice Finlay has done. But the very fact that he does so means that the principle he laid down is not absolute, or “near-absolute”
222. It must also be recalled that, in one of the relatively early American unlawful search cases, Dodge v. US 272 US 530 at 532, Justice Holmes declared that:
“If search and seizure are unlawful as invading personal rights secured by the Constitution, those rights will be infringed yet further if the evidence were allowed to be used”.
I very respectfully agree with that statement and indeed consider it to be self evident.
223. One of the principal purposes of this excursus on DPP v.Kenny [1990] 2 I.R. 110 has been to emphasise that the fundamental rationale of that case is not deterrence of unconstitutional activity by members of the force publique, though that may be a consequence of the Exclusionary Rule: it is the vindication of the individual citizen’s constitutional rights. Many of the most coherent espousals of this view are to be found in the United States jurisprudence, from the dictum of Justice Holmes above, through Mapp v. Ohio 367 U.S. 643, to the more modern statements of Justices Stevens and Ginsberg. But I do not think that the fundamental rationale of the Exclusionary Rule, that of the obligation on the Courts to vindicate the citizen’s constitutional rights have ever been better expressed than in the passages from Chief Justice Ó Dálaigh and Mr. Justice McCarthy as set out at para. 5 of this judgment. I would in particular refer to the statement of Mr. Justice McCarthy that unconstitutional behaviour by gardaí or other public servants will not “result at most in a judicial rebuke, however severe. It will result in the immediate enforcement, without qualification, of the constitutional rights of the individual concerned whatever the consequences may be”.
224. I cannot see, how in a case where an individual’s constitutional rights have been trampled upon in order to obtain evidence against him, how those rights can be “immediately enforced, without qualification”, other than by exclusion of the evidence obtained by their breach. This is the most obvious, the most practical and indeed the only possible form of restitutio in integrum available in such circumstances.
VI
“Deliberate and Conscious”.
225. I have already pointed out that it is the State’s urgent desire in maintaining this appeal that evidence which has been obtained by a garda or other public servant in deliberate and conscious breach of a citizen’s constitutional right should nonetheless be capable of being used in evidence against the citizen. This is sought to be done in a number of different ways. The question of admissibility of the tainted evidence might be left to the discretion of the learned trial judge; experience suggests that this will rarely lead to its exclusion: see below. Or, the great object of achieving the admissibility of unconstitutionally obtained evidence might be achieved by redefining the established legal significance of the term “deliberate and conscious” in the manner suggested by the State in this case, so that a “mistaken” or inadvertent” trampling on a citizen’s rights will pass muster. This will radically dilute our Constitution’s protection of the citizen’s rights.
226. For many years it has been clearly established that for an evidence-gathering action to be “deliberate and conscious” so as to trigger (absent “extraordinary excusing circumstances”) the Exclusionary Rule, the act itself must be deliberate and conscious but it need not be proved that the State official who committed it knew it to be unconstitutional. This sense of the phrase “deliberate and conscious” is indeed essential to any system of enforcing constitutional rights which has teeth. It is the law which applies to ordinary citizens who have no defence along the lines “It was just a mistake” or “I didn’t know it was illegal”, or “I thought I was entitled to act in that way”, much less “I was just inadvertent”.
227. This topic was discussed by McCarthy J. in DPP v.Healy [1990] 2 I.R. 73, at pp.88 to 89. He said:
“In my view if ‘conscious and deliberate’ is a term of art appropriate to be used in the context of constitutional rights and their violation, the only test is whether or not the act or omission that constituted such violation was itself a conscious and deliberate act; the fact that the violator did not realise that he was in breach of a constitutional right is irrelevant. If it were otherwise then if one jailor could distance himself from the others, as the Superintendent did in the instant case, there need never be such a violation. It is not the state of mind of a violator that matters; it is the objective assessment of the conscious acts or omissions”.
(Emphasis added)
228. The learned judge continued at p.89:
“A violation of constitutional rights is not to be excused by the ignorance of the violator no more than ignorance of the law can enure to the benefit of a person who, at Common Law, and by statute law is presumed to have intended the natural and probable consequences of his conduct. If it were otherwise there would be a premium on ignorance”.
(Emphasis added)
“A premium on ignorance”.
229. I entirely agree with the conclusion expressed above by Mr. Justice McCarthy and with the reasoning which led him to that conclusion. It is most important to point out that every ordinary citizen is presumed to know the law and that ignorance of the law affords him no excuse. Thus, a person charged with failing to make a tax return cannot claim that he believed, or even that he was advised, that he did not need to make a tax return or to return some particular kind of income, or that he did not know that the tax return had to be made on a particular day. This maxim applies even to recondite and technical areas of the law such as the obligation to make a tax return or the obligation in certain circumstances to apply for planning permission. We have recently seen a case (DPP v.Fitzpatrick and Ors., Dublin Circuit Criminal Court, March 2014) where persons charged with a highly technical offence under the Companies Act were not permitted to prove in evidence that they had been professionally advised that the course of action they were taking did not breach the Companies Act: they were presumed to know the law.
230. It is easy to see why this maxim is essential to the administration of justice. If ignorance of the law were a defence then, as Mr. Justice McCarthy pithily put it “there would be a premium on ignorance”. Similarly if inadvertence to the law were an excuse, or mistake as to what the law is. But these are precisely what it is contended should excuse the “inadvertent” breach of an ordinary citizens constitutional rights by the force publique.
This is what exactly what the State intend in this case: that if a garda or other member of the force publique, can establish that he did not know that his action was a breach of a citizen’s constitutional rights, the evidence he obtained by that breach may nonetheless be admissible. This, despite the fact that all gardaí now are highly educated, specifically in law, and are often awarded a diploma in law by their training establishment.
231. The same topic was addressed by one of our most distinguished predecessors, Mr. Justice Walsh, in People v. Shaw [1982] I.R. 1, at p.33. Walsh J. said:
“I might add that there is nothing whatever in People (Attorney General) v. O’Brien [1965] I.R. 142 to suggest that the admissibility of evidence depends upon the state or degree of the violator’s knowledge of constitutional law or, indeed, of the ordinary law. To attempt to import any such interpretation of the decision would be to put a premium on ignorance of the law. The maxim that ignoratia legis neminem excusat does not permit an intentional and deliberate act or omission to be shorn of its legal consequences”.
The opinion of this Court on a similar subject was expressed as follows at p.134 of the Report of the case State [Quinn] v. Ryan, by Ó Dálaigh C.J.:
“… a belief or hope on the part of the officers concerned that their acts would not bring them into conflict with the Courts is no answer, nor is an inadequate appreciation of the reality of the right of personal liberty guaranteed by the Constitution.
To hold otherwise would to be hold what to many people would be an absurd position, namely, that the less a police officer knew about the Constitution and, indeed, of the law itself, the more likely he would be to have the evidence which he obtained in breach of the law and/or of the Constitution admitted in court. If such indeed were the position, it could well lead to a demand that the interest of equality of treatment should permit an accused person to be allowed to be heard to the effect that he did not know that the activity of which he was charged, and which has been proved against him, amounted to a breach of the criminal law”.
(Emphasis added)
232. I entirely agree with the whole of the foregoing quotation. I cannot consider that it is just, fair, or constitutional, to permit a public servant’s ignorance, or incorrect application, of the law of the land (especially constitutional law) to allow him to breach an ordinary citizen’s constitutional rights and then to use against that citizen evidence procured by that breach. I specifically agree with Chief Justice Ó Dálaigh that such a finding would call into question that aspect of the law which presumes an ordinary citizen to know the law in all its labyrinthine detail and prohibits him or her from mounting a defence on the basis that he did not know the law, perhaps because the State had taken no proper steps to draw to his attention. But the States coercive force publique may avail of just that excuse. I reject this.
233. In The People v. Madden [1977] I.R. 336, Chief Justice O’Higgins said, at p.347 of the Report:
“The Court of Trial appears to have sought an element of wilfulness or mala fides in the conduct of the garda officer and, not finding such, to have concluded that the deprivation of constitutional rights was not deliberate or conscious. In the view of this Court, to adopt that approach is to misunderstand the decision in O’Brien’s case and, accordingly to err in law. What was done and permitted to be done by Inspector Butler and his colleagues may have been done or permitted for the best of motives and in the interest of the due investigation of the crime. However it was done or permitted without regard to the right of liberty guaranteed to the defendant by Article 40 of the Constitution and to the State’s obligation under that Article to defend and vindicate that right”.
(Emphasis added)
Whose ignorance is to excuse the breach?
234. I think it is fundamental that, in approaching the question of “deliberate and conscious” breach we should not confine our focus to the individual garda or other State official “at the coal face”, such as a garda on a doorstep, or a garda conducting an interrogation, or a garda directly supervising the custody of a suspect. It will nearly always be possible to make at least a plausible case of ignorance, or mistake or of bona fides in relation to such an individual, the man or woman at the very bottom of the ladder. Very often, indeed, this person will be obeying orders and exercise no personal discretion.
It would, for example, be quite easy to accept that an individual guard in possession of a s.29 Search Warrant may have been totally ignorant of the Damache v. DPP & Ors [2012] IESC 11case or even of the numerous developments since at least 2006 giving reason to doubt the constitutionality of s.29 warrants. But that case is of course much less easy to make about the Chief Superintendent who issued the warrant. In the present case, indeed, that high official did not give evidence at the trial. A case of ignorance would be still less plausible for the higher officers of State who determined the policy in relation to s.29 warrants and for the law officers of the State itself who advised them, and T.D.s who voted the relevant provision through the Oireachtas.
I think it is important in this regard to consider the words of Finlay C.J. in DPP v.Kenny [1990] I.R. 110 at p. 133. Towards the end of that page the learned Chief Justice considered that the Exclusionary Rule:
“… incorporates as well as a positive encouragement to those in authority over the crime prevention and detection services of the State to consider in detail the personal rights of the citizen set out in the Constitution…”.
(Emphasis added)
It appears to me that the underlined phrase in the last quotation expresses the scope of the class of person whose deliberation or consciousness in breaching the Constitution is to be considered. The question of whether a particular unconstitutional action is “deliberate or conscious” cannot be decided in the light of the state of mind of the lowest ranking State official involved. The effect of the Rule enunciated in DPP v. Kenny [1990] 2 I.R. 110 was specifically directed “to those in authority over the crime prevention and detection services of the State”. It is unfair to the ordinary citizen at the receiving end of an unconstitutional act, and perhaps to the lowly public official who is at the end of a chain of events or of authority, to have his actions and his state of knowledge as the determining factor. The high official, the Garda Commissioner, a Garda Chief Superintendent, a high departmental official, the Attorney General, the DPP or even a government minister who initiates or permits a chain of events which is the subject of a complaint, and not the humble official who may have no discretion but to execute his superior’s orders, is the person whose state of knowledge requires to be considered.
Information Note
The Director of Public Prosecutions
Prosecutor/Appellant
and
J.C.
Accused/Respondent
In this case judgments are delivered by Murray J., Hardiman J., O’Donnell J., McKechnie J., Clarke J., MacMenamin J.
1. This appeal raises two main issues:
(i) the scope of appeals which can be brought to this Court by the D.P.P. under s. 23 of the Criminal Procedure Act, 2010; and
(ii) the exclusionary rule.
2. The background to this appeal includes the fact that J.C., the accused/respondent, was on trial before the Circuit Criminal Court (Her Honour Judge Ring) when the trial judge decided to exclude evidence on the basis of the application of the exclusionary rule as stated by this Court in D.P.P. v. Kenny [1990] 2 I.R. 110. It was agreed that the Circuit Criminal Court was required to apply the rule in Kenny and to exclude the evidence in issue. The evidence having been excluded, the case against J.C. collapsed.
3. The D.P.P. brought an appeal under s. 23 of the Criminal Procedure Act, 2010, seeking a review of the decision to exclude the evidence.
4. A question which arose on the appeal was whether Kenny was correctly decided and, if not, what is the appropriate test for the admission or exclusion of evidence obtained in circumstances where the method of taking the evidence involved a breach of constitutional rights.
5. A preliminary question for the Court was whether an appeal lay under s. 23 of the Criminal Procedure Act, 2010. Historically no appeal lay from an acquittal in criminal proceedings. Prior to the enactment of s. 23, the only appeal which lay to this court from an acquittal was a consultative appeal without prejudice to the verdict or decision in favour of an accused person. However, s. 23 of the Criminal Procedure Act, 2010, provides for a form of appeal which, if the Court so directs, can be with prejudice to an accused, as it can lead to a retrial where an accused could be convicted.
6. Section 23 states that the D.P.P. may appeal an acquittal on a question of law, where a ruling was made during the course of a trial which erroneously excluded compelling evidence.
7. A significant issue on this appeal was whether the issue of the exclusionary rule could be raised properly under s. 23 of the Criminal Procedure Act, 2010.
8. A majority of the Court (Denham C.J., O’Donnell J., Clarke J. and MacMenamin J.) considered that the rule could be raised. However, MacMenamin J. was critical of s. 23 in his judgment.
9. Murray J. in a dissenting judgment held, for the reasons stated, that an appeal did not lie under s. 23 because the ruling of the trial judge, being one which she was bound as a matter of law to make, was not an erroneous ruling within the meaning of s. 23.
10. Hardiman J. dissents as to whether there is jurisdiction to entertain this appeal. He points out, and it is agreed, that in order to establish such jurisdiction, error on the part of the trial judge must be established. He says there was no such error by Judge Ring and that this is agreed by the majority. He says that a learned trial judge who follows a binding authority of which a higher court subsequently disapproves, does not commit any error.
Hardiman J. also dissents from the setting aside of the decision of this Court in Kenny. He regards that case as a monument of Irish jurisprudence, essential to the maintenance of the liberties of the citizen. He dissents in particular from the provision of an excuse of “inadvertence” on the basis of which a public official can excuse a breach of the Constitution and have the fruit of such breach admitted in evidence against a citizen. He is apprehensive about the consequences of the majority decision.
11. McKechnie J. in a dissenting judgment analysed in detail s. 23 of the Criminal Procedure Act, 2010, and concludes that the decision of the trial judge could not be said to be “erroneous” as that term should be understood, that in the absence of what has been described as a “concession” it would not have been possible to hold that “compelling evidence” existed but that in any event for the reasons given the section is in practice inoperable. Notwithstanding, he reviewed the Kenny decision, relevant case law both at home and abroad, and stated that he remains unwavering in his view that the justification offered for the rule in Kenny was correct. Moreover the decision itself in accordance with the review jurisdiction could not be said to be plainly wrong for compelling reason. Accordingly, he would dismiss the appeal.
12. A complicating factor in this appeal was that the law in issue appeared to be clear since the Kenny decision.
13. Thus, the Court had to consider whether it could be said that a trial judge erroneously excluded the evidence in question if the trial judge properly applied the established case law of a higher court, by which the judge was bound, even if this Court takes the view that the established case law required to be reviewed.
14. A majority of the Court (Denham C.J., O’Donnell J., Clarke J., MacMenamin J.) held that if it was wrong to exclude that evidence then it was an error, even if the trial judge, because of the hierarchy of courts, was bound to follow Kenny, unless Kenny was redefined by this Court.
15. It should be noted that counsel for both parties agreed that it could be said that a trial judge had erroneously excluded evidence even though the trial judge had properly applied the case law by which that court was bound.
16. The decision in Kenny was a determination of the proper balance to be struck in vindicating the constitutional rights and principles at stake. This Court is concerned with the same question.
17. At issue is a question of the admissibility of evidence.
18. O’Donnell J. has analysed, in his judgment, the sequence of cases in this area of law.
19. A majority of the Supreme Court determined that there should be described a clear test designed to affect an appropriate balance between competing factors.
20. Clarke J. set out a test, in his judgment, with which Denham C.J., O’Donnell J. and MacMenamin J. agreed.
21. The test is as follows:-
(i) The onus rests on the prosecution to establish the admissibility of all evidence. The test which follows is concerned with objections to the admissibility of evidence where the objection relates solely to the circumstances in which the evidence was gathered and does not concern the integrity or probative value of the evidence concerned.
(ii) Where objection is taken to the admissibility of evidence on the grounds that it was taken in circumstances of unconstitutionality, the onus remains on the prosecution to establish either:-
(a) that the evidence was not gathered in circumstances of unconstitutionality; or
(b) that, if it was, it remains appropriate for the Court to nonetheless admit the evidence.
The onus in seeking to justify the admission of evidence taken in unconstitutional circumstances places on the prosecution an obligation to explain the basis on which it is said that the evidence should, nonetheless, be admitted AND ALSO to establish any facts necessary to justify such a basis.
(iii) Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
(iv) Where evidence is taken in deliberate and conscious violation of constitutional rights then the evidence should be excluded save in those exceptional circumstances considered in the existing jurisprudence. In this context deliberate and conscious refers to knowledge of the unconstitutionality of the taking of the relevant evidence rather than applying to the acts concerned. The assessment as to whether evidence was taken in deliberate and conscious violation of constitutional rights requires an analysis of the conduct or state of mind not only of the individual who actually gathered the evidence concerned but also any other senior official or officials within the investigating or enforcement authority concerned who is involved either in that decision or in decisions of that type generally or in putting in place policies concerning evidence gathering of the type concerned.
(v) Where evidence is taken in circumstances of unconstitutionality but where the prosecution establishes that same was not conscious and deliberate in the sense previously appearing, then a presumption against the admission of the relevant evidence arises. Such evidence should be admitted where the prosecution establishes that the evidence was obtained in circumstances where any breach of rights was due to inadvertence or derives from subsequent legal developments.
(vi) Evidence which is obtained or gathered in circumstances where same could not have been constitutionally obtained or gathered should not be admitted even if those involved in the relevant evidence gathering were unaware due to inadvertence of the absence of authority.
22. Applying the said test to the facts of this case, a majority of the Court held that while the trial judge was bound by Kenny, her decision to exclude the evidence in issue was erroneous in the sense in which that term is used in s. 23.
23. A final decision on whether the appeal should be allowed awaits a determination as to whether it is in the interests of justice to quash the acquittal of J.C. This matter was left over until the other issues were determined.
24. The Court will relist this appeal to hear counsel on the issue as to whether J.C.’s acquittal should be quashed and a retrial ordered, or whether his acquittal should be affirmed on the basis that it would not be in the interests of justice, in light of the matters specified in s. 23(12), to order a retrial.
25. The judgments of the Court are delivered today.
The hearing of this appeal proceeded on the acceptance that both sides would have an opportunity to address the question of a retrial.
This matter will be listed shortly to address this and any other outstanding issues.
Kavanagh v. Government of Ireland and Ors.
[1997] 1 I.L.R.M. 321
Barrington J
On 19 July 1994 the appellant was arrested on several charges in connection with the alleged false imprisonment of James Lacey and other persons on 2 November 1993, including robbery, demanding monies with menaces and possession of a firearm. On 20 July 1994 the appellant was charged directly before the Special Criminal Court with those offences, six of which are not scheduled offences. In respect of the non-scheduled offences, on 15 July 1994 the Director of Public Prosecutions had certified under s. 47(2) of the Offences Against the State Act 1939 that the ordinary courts were, in his opinion, inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the appellant on those charges and directed that the appellant be brought before the Special Criminal Court and there charged with those offences.
By order of the High Court made by Lavan J on 14 November 1994 the appellant was given leave to apply by way of application for judicial review for the following reliefs.
(1) A declaration that there is no reasonable plausible factual basis any longer for the first named respondent being satisfied that the ordinary criminal courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary to have the Special Criminal Court with jurisdiction to try persons accused of offences where there is no serious allegation that the offences were committed by or on behalf of or to further the interest of an unlawful or subversive organisation or other subversive body or association.
(2) A declaration that accordingly the first named respondent’s proclamation of 26 May 1972 bringing Part V of the 1939 Act into force is no longer effective and valid and that Part V is not presently enforced at least in respect of alleged common criminals who are not accused of acting for or in the interest of an unlawful organisation or subversive association.
(3) In the alternative a declaration that s. 35(2) of the 1939 Act is invalid and unconstitutional because it makes no provision at all for and/or prevents judicial review of the basis for any government proclamation made under that section of the 1939 Act either at the time of its making or at any time subsequently.
(4) A declaration that in the circumstances directly relating to the prosecution of the applicant:
(i) There is no reasonable plausible factual basis for the director being of the opinion that the ordinary criminal courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
(ii) To prosecute the applicant before the fourth named respondent unfairly discriminates against him in contravention of Article 40.1 of the Constitution and article 6.1 coupled with article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
(iii) The director is acting mala fide .
(iv) Orders quashing and setting aside the aforesaid proclamation of the government made on 26 May 1972 and/or the certificate of the director issued under s. 47(2) of the 1939 Act in relation to the prosecution of the applicant.
(5) Orders:
(i) Orders quashing and setting aside the aforesaid proclamation of the government made on 26 May 1972 and/or the certificate of the director issued under s. 47(2) of the 1939 Act in relation to the prosecution of the applicant.
(6) Orders:
(i) Prohibiting the director from prosecuting the applicant before the fourth named respondent in relation to the charges preferred against him in connection with the alleged false imprisonment of James Lacey on 2 November 1993.
(ii) Prohibiting the fourth named respondent from entertaining the said application.
In the course of the High Court proceedings the applicant abandoned the plea set out at paragraph 3 above that s. 35(2) of the 1939 Act was invalid having regard to the provisions of the Constitution and, in the course of the hearing, also abandoned the plea set out at paragraph 4(iii) above that the Director of Public Prosecutions was acting mala fide . In a wide ranging and careful judgment dated 6 October 1995 Laffoy J rejected all of the applicant’s other grounds and made an order refusing him any relief ([1996] 1 ILRM 133).
Against that judgment and order the applicant appealed to this Court. The submissions of the applicant/appellant in this Court were less wide ranging than in the court below and may be summarised under four heads.
First, the appellant submitted that the government’s proclamation of 26 May 1972 was meant to deal with subversive offences arising out of the crisis in the North of Ireland and it was never intended that the Special Criminal Court should deal with what could be referred to as ‘ordinary crime’. If the Special Criminal Court could be used for the trial of ordinary offences then the government could subvert the constitutional right to trial by jury.
Secondly, the appellant’s counsel, Dr Forde SC, submitted that the government, having once made the proclamation of 26 May 1972 bringing Part V of the Offences Against the State Act 1939 into force, had a duty to keep the situation under review and to revoke the proclamation as soon as it was satisfied that the ordinary courts were adequate to secure the effective administration of justice and the preservation of public peace and order.
Thirdly, the appellant agreed that he could not prove that the director had acted mala fide in issuing the said certificate under s. 47(2) of the Offences Against the State Act 1939 but he submitted that if he succeeded on either of his first two submissions this certificate must also fall.
Fourthly, the appellant relied upon a representation alleged to have been made by the Irish Attorney General to the Human Rights Committee of the General Assembly of the United Nations and referred to in a paragraph from the Report of The Human Rights Committee dated 7 October 1993. The paragraph in question is paragraph 575 and reads as follows:
With respect to the Special Criminal Court, the representative stressed that the court was needed to ensure the fundamental rights of citizens and protect democracy and the rule of law from the ongoing campaign related to the problem of Northern Ireland. The Special Criminal Court differed from ordinary courts in only two respects: that there was no jury and that instead of one judge there were three judges. Otherwise the same rules of evidence applied and the decisions of the court were subject to review by the Court of Criminal Appeal.
Constitutional and statutory provisions
In the course of developing his first two submissions — that the Special Criminal Court was established for the purpose of trying subversive crimes arising out of the Northern crisis and that the government had a duty to keep under review the question of whether the ordinary courts were adequate to secure the effective administration of justice in relation to such offences — the appellant’s counsel, Dr Forde, suggested that the High Court should have launched its own enquiry into these matters and he appealed to certain historical precedents both in this country and abroad. In particular he relied upon the case of R. (O’Brien) v. Military Governor of the Military Interment Camp [1924] 1 IR 32 where the Irish Court of Appeal held that the civil courts were bound, when their jurisdiction was invoked, to decide whether or not there existed a state of war or armed rebellion.
But we are here dealing not with a state of war of armed rebellion but with a specific problem for which the Constitution has made specific provision and the most important thing is to consider that provision and what it means.
Article 38 of the Constitution provides that no person is to be tried on any criminal charge save in due course of law. Article 38.5 provides that, subject to certain exceptions, no person is to be tried on any criminal charge without a jury. One of the exceptions is contained in Article 38.3 which provides as follows:
(1) Special courts may be established by law for the trial of offences where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
(2) The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.
It is clear from the statement that special courts may be established ‘by law’, that the power to decide whether such courts should be established is vested in the legislature in which is invested the sole and exclusive power of making laws for the State. See Article 15.2.
The question of whether the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order is to be determined ‘in accordance with such law’.
The law in question is the Offences Against the State Act 1939. This Act provides at s. 35(2) as follows:
If and whenever and so often as the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this part of this Act should come into force, the government may make and publish a proclamation declaring that the government is satisfied as aforesaid and ordering that this part of this Act shall come into force.
Subs. (4) of the same section provides that if at any time while Part V of the Act is in force the government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the government shall make and publish a proclamation declaring that Part V of the Act shall cease to be in force and thereupon Part V shall forthwith cease to be in force.
It is clear therefore that under our system the question of whether Special Criminal Courts should be established is a matter for the legislature and the question of whether the part of the Offences Against the State Act providing for the establishment of Special Criminal Courts should be brought into force or should cease to be in force is a matter for the government.
Provided these powers have been exercised in a bona fide manner the ordinary courts have no function in relation to them. There is a certain logic in this as the question under consideration is the adequacy or otherwise of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order.
The question of whether the ordinary courts are or are not adequate to secure the effective administration of justice and the preservation of public peace and order is primarily a political question, and, for that reason, is left to the legislature and the executive. The fact that the control intended is primarily a political control is underlined by s. 35(5) which provides that it shall be lawful for Dáil Éireann, at any time where Part V of the Act is in force, to pass a resolution annulling the proclamation by virtue of which Part V was brought into force and that thereupon such proclamation shall be annulled and Part V shall cease to be in force but without prejudice to the validity of anything previously done thereunder.
Dr Forde submitted that the decision of the government to make a proclamation under s. 35(2) of the 1939 Act raised a legal question, and was therefore legally reviewable, because, before issuing such a proclamation, the government had to be ‘satisfied’ that the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order. In support of this submission he relied upon a passage which appears in the judgment of Gavan Duffy J in State (Burke) v. Lennon [1940] IR 136. The question at issue in that case was the validity of a system of internment without trial. Gavan Duffy J in that case noticed that a minister before issuing a warrant for the arrest and internment of a person had to make up his mind upon certain matters of fact. In a passage which appears at p. 150 of the report he drew the conclusion that the minister in weighing up the evidence against the man in question and in deciding whether he should or should not issue a warrant for his arrest and detention was acting judicially. But this was very far from saying that every time a minister had to be ‘satisfied’ about any matter he must be acting judicially. In fact Gavan Duffy J was careful to guard against any such suggestion. The passage referred to begins at p. 148 of the report with the following caveat:
The minister has to be satisfied. There must be countless occasions in the official life of a minister of state on which he has to be satisfied as to particular facts before taking a particular course, occasions on which nobody would for a moment expect him to act judicially in order to be satisfied; otherwise the daily routine of administration would become impossible.
In deciding whether to make a proclamation under s. 35(2) of the Offences Against the State Act 1939 the government is not acting judicially in the sense that it is adjudicating upon the rights of any particular citizen. Rather it is making a political judgment on the adequacy of the ordinary courts to secure the effective administration of justice and the preservation of public peace and order. It is natural that such a political decision should be primarily subject to political control.
Presumption of constitutionality
The trial judge has been criticised for according to the government’s proclamation of 26 May 1972 the benefit of the presumption of constitutionality. From the early days of the Constitution the courts have accorded to Acts passed by the Oireachtas and to Bills passed by the two Houses of Parliament which do not expressly violate the Constitution the benefit of a presumption of constitutionality. This presumption was justified by the Supreme Court in Buckley v. Attorney General [1950] IR 67 by reference to the ‘respect which one great organ of the State owes to another’. The executive is one of the great organs of State and it appears entirely consistent that the courts should show the same respect to it. Under these circumstances I think that the learned trial judge was quite correct in according the benefit of the presumption of constitutionality to the proclamation of 26 May 1972.
Subversive crime and ordinary crime
The appellant submitted that the offences in respect of which he stood charged were ordinary crimes with no political or subversive connection. It was wrong therefore that he should be sent for trial before the Special Criminal Court which was established for the purpose of dealing with subversive crime arising out of the political crisis in Northern Ireland.
The Special Criminal Court, he submitted, had been established for the purpose of dealing with subversive crime associated with the Northern crisis. In support of this proposition he cited a dictum of my own in Eccles v. Ireland [1986] ILRM 343 where I said that the Special Criminal Court ‘was established to cope with crimes of political violence perpetrated by a minority who attempt to solve the political problems of the island by force’.
This statement was true as far as it went and sufficient for the purposes of that case which was a case of subversive crime. However, it is clear from the wording of the Offences Against the State Act itself that the Act is concerned with offences committed in this jurisdiction and in particular with situations where ‘the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order’.
The relevant part of the proclamation issued by the government on 26 May 1972 reads as follows:
The government, in exercise of the powers conferred on them by s. 35(2) of the Offences Against the State Act 1939 (No. 13 of 1939), hereby declare that they are satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that Part V of the said Offences Against the State Act 1939 should come in to force, and they hereby order that the said Part V of the said Act should come into force.
It will be noted that the proclamation, which follows closely the wording of s. 35(2), makes no reference to the Northern crisis or to subversive crime. The framers of the Act and of the proclamation may well have considered it impractical or undesirable to draw a rigid distinction between subversive crime and ordinary crime. For that reason the government has power, under s. 36 of the Act, to declare offences of any particular class or kind or under any particular enactment to be scheduled offences for the purposes of Part V of the Act. For the same reason the Attorney General (now the Director of Public Prosecutions) has power under s. 47(2) of the Act to certify that the ordinary courts are in his opinion inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of a person charged with a non-scheduled offence.
In People (DPP) v. Quilligan [1986] IR 495 Walsh J pointed out that there was a marked contrast between Parts II, III and IV of the Offences Against the State Act, on the one hand, and Part V on the other. Parts II, III and IV were permanent in nature and dealt with activities which were self-evidently subversive. These included, for instance, usurping the functions of government, the activities of unlawful organisations, and the publication of treasonable or seditious matter. Part V of the Act, by contrast, was in the nature of temporary emergency legislation and dealt with the adequacy of the ordinary courts to secure the effective administration of justice and a preservation of public peace and order either generally or in relation to a specific kind of crime.
In People (DPP) v. Quilligan the Supreme Court overruled a decision of the High Court to the effect that the police could not invoke s. 30 of the Offences Against the State Act in respect of a ‘non-subversive’ case of malicious damage even though malicious damage was a scheduled offence under Part V of the Act.
In a paragraph which begins at p. 503 of the report Walsh J said:
After a lengthy consideration of the nature and purpose of the Offences Against the State Act 1939 the learned trial judge came to the conclusion that Part V of the Act, by virtue of which malicious damage was made a scheduled offence, was intended to deal only with the crimes which he described as being of a ‘subversive nature’ and not intended to deal with crimes which may be classified, as to use his own words, ‘ordinary crimes’ that consequently s. 30 had been wrongly invoked to arrest the defendants because there is no ‘subversive’ element in the crime of malicious injury imputed to them.
Later in his judgment (at p. 509) Walsh J spoke of the range of offences which might be caught by Part V of the Offences Against the State Act. He stated:
Equally it does not follow that the power of the government to issue a proclamation to the effect that the ordinary courts are inadequate to secure the effective administration of justice, the preservation of peace and order must necessarily apply only with reference to the type of offences created by Parts II and III of the Act. It is common knowledge, and indeed was discussed in the debates of the Oireachtas leading to the enactment of the Act of 1939, that what was envisaged were cases or situations of a political nature where juries could be open to intimidation or threats of various types. However a similar situation could also arise in types of cases far removed from what one would call ‘political type’ offences. There could well be a grave situation in dealing with ordinary gangsterism or well financed and well organised large scale drug dealing, or other situations where it might be believed or established that juries were for some corrupt reason, or by virtue of threats, or of illegal interference, being prevented from doing justice.
All the offences in respect of which the appellant was charged are scheduled offences or offences in respect of which the Director of Public Prosecutions has issued a certificate under s. 47(2) of the Act. Under these circumstances it avails the appellant nothing to submit that the offences in respect of which he has been charged are not of a ‘subversive’ nature, for the issue involved is not the nature of the offences but the adequacy, in the opinion of the government or the Director of Public Prosecutions, of the ordinary courts to secure the effective administration of justice in relation to them.
Duty of government to keep situation under review
One could accept the submission of the appellant that once the government has made a proclamation under s. 35(2) of the Offences Against the State Act 1939 declaring the ordinary courts to be inadequate to secure the effective administration of justice and bringing Part V of the Act into force, it has a duty to keep the situation under review and to publish a further proclamation declaring that Part V should cease to be in force in the event of being satisfied that the ordinary courts were adequate to secure the effective administration of justice and the preservation of public peace and order. Likewise Dáil Éireann would have a similar duty under s. 35(5) to pass a resolution annulling the government’s proclamation bringing Part V of the Act into force should Dáil Éireann be of the opinion that this proclamation was not necessary.
The fact remains however that the government has not revoked its proclamation and Dáil Éireann has not passed any resolution annulling the proclamation.
On this matter the appellant makes a number of submissions principal among which are the following:
(1) Since 1972 the security situation has greatly changed both in Northern Ireland and in the Republic.
(2) The Criminal Justice Act 1984 ended the requirement for unanimous verdicts by juries and thus made the intimidation or the corrupting of juries more difficult.
(3) The volume of cases coming before the Special Criminal Court has fallen off dramatically.
(4) The appellant has himself, in the past, been tried by a jury in respect of other offences and no one then suggested that the ordinary courts were inadequate to secure the effective administration of justice in relation to his trial.
The appellant’s counsel was not prepared to say at what point in time the ordinary courts again became adequate to secure the effective administration of justice and the preservation of public peace and order but the implication of his submission was certainly that that situation had arrived before the appellant was sent for trial before the Special Criminal Court.
The affidavits filed on behalf of the first, second and third named respondents in this case are not very informative but they are sufficient to indicate that while the government has got the situation under review the present opinion is that it is necessary to keep Part V of the Offences Against the State Act in force and to maintain the Special Criminal Court.
Apart from the foregoing I agree with the trial judge that there is nothing in the appellant’s case sufficient to defeat the presumption of constitutionality enjoyed by the government’s proclamation.
The Attorney General
Finally the appellant sought to rely upon the said representation alleged to have been made by the Attorney General to the Human Rights Committee. It is useful to requote the material part of that alleged representation as set out at paragraph 575 of the report of the Human Rights Committee of 7 October 1993:
With respect to the Special Criminal Court, the representative stressed that the court was needed to ensure the fundamental rights of citizens and protect democracy and the rule of law from the ongoing campaign related to the problem of Northern Ireland.
I very much doubt if these words constitute a ‘representation’, rather are they a general description of the need which required the establishment of the Special Criminal Court. Neither do they purport to be an accurate or technical description of the constitutional and statutory framework within which the Special Criminal Court operates. In my view there is nothing in this statement of the Attorney General’s which in any way inhibits the Director of Public Prosecutions from exercising powers conferred upon him by statute.
This judgment has attempted to stress that the primary control over the powers of the government under Article 38.3 of the Constitution and under Part V of the Offences Against the State Act, is a political control. This means that normally the proclamations of the government under s. 35(2) and (4) of the Offences Against the State Act or the certificates or directions of the Director of Public Prosecutions under s. 47 of the same Act will not be subject to judicial review in the absence of evidence of mala fides.
The appellant has sought to rely upon the principles set out in East Donegal Co-Operative Livestock Marts Ltd v. Attorney General [1970] IR 317. One can readily accept that all constitutional powers and all statutory powers are given for the purposes of the Constitution or of the relevant statute and not otherwise. But in this case there is no evidence of any abuse which would justify this Court in interfering.
I would dismiss the appeal.
I should mention that, after judgment had been reserved in this case, counsel for the appellant properly drew to the attention of the court the fact that his client had been released in respect of the charges referred to earlier and had been re-arrested on other similar charges. In these circumstances the court is satisfied that the appellant had, and has locus standi to institute and maintain these proceedings.
KEANE J
(Hamilton CJ, O’Flaherty and Blayney JJ concurring): I also agree that the appeal should be dismissed.
Ultimately, two major issues were raised in the submissions advanced on behalf of the appellant. The first was as to whether the failure of the government to publish a proclamation declaring that Part V of the Offences Against the State Act 1939 (hereafter ‘the 1939 Act’) should cease to be in force is reviewable by the courts. The second is as to whether, assuming that it is so reviewable, the learned High Court judge was wrong in law in holding that its continuance in force was consistent with the requirements of the Constitution.
Consideration of the first issue must begin with Article 38.3 of the Constitution which provides that:
(1) Special courts may be established by law for the trial of offences in cases where it may be determined in accordance with such law that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
(2) The constitution, powers, jurisdiction and procedure of such special courts shall be prescribed by law.
Part V of the 1939 Act provides detailed legislative machinery intended to give effect to Article 38.3.1°. S. 35(2), echoing its precise wording, provides that:
If and whenever and so often as the government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order and that it is therefore necessary that this Part of this Act shall come into force, the government may make and publish a proclamation declaring that the government is satisfied as aforesaid and ordering that this Part of this Act shall come into force.
It is an important feature of this provision that Part V of the Act may only be brought into force by the government. Article 28.2 of the Constitution provides that:
The executive power of the State shall, subject to the provisions of this Constitution, be exercised by or on the authority of the government.
While among the reliefs sought by the appellant in the present case was a declaration that s. 35(2) of the 1939 Act was invalid having regard to the provisions of the Constitution, that claim was not pursued either in the High Court or in this Court. It follows that the assignment by the legislature to the government of the power to bring Part V of the Act into force must be regarded as constitutionally valid.
The making of a proclamation under s. 35 is thus an exercise of the executive power of the State which is vested exclusively in the government by virtue of Article 28.2. So too is the power conferred by s. 35(4) as follows:
If at any time while this Part of this Act is in force the government is satisfied that the ordinary courts are adequate to secure the effective administration of justice and the preservation of public peace and order, the government shall make and publish a proclamation declaring that this Part of this Act shall cease to be in force, and thereupon this Part of this Act shall forthwith cease to be in force.
In this case, however, a corresponding power is vested in Dáil Éireann by virtue of s. 35(5) to annul the proclamation by resolution.
Article 6 of the Constitution provides:
(1) All powers of government, legislative, executive and judicial derive, under God, from the people, whose right it is to designate the rulers of the State and, in final appeal to decide all questions of national policy, according to the requirements of the common good.
(2) These powers of the government are exercised only by or on the authority of the organs of State established by this Constitution.
The Constitution thus enshrines in emphatic language the principle of the separation of powers. As O’Byrne J, in delivering the judgment of the former Supreme Court in Buckley v. Attorney General [1950] IR 67 at p. 81 pointed out, the subsequent articles of the Constitution (including Article 28.2) are designed to carry into effect this distribution of powers between the legislative, executive and judicial organs of the State.
As has been made clear by this Court in a number of cases (Boland v. An Taoiseach [1974] IR 338; Crotty v. An Taoiseach [1987] IR 713; [1987] ILRM 400) all three organs of government are bound to act in accordance with the Constitution and, where it is alleged that either the executive or the legislative organs have failed so to act, the necessary determination of the issue thus raised can only be made by the judicial organ. This is so, even though the Constitution in Article 28.4 expressly provides that:
The government shall be responsible to Dáil Éireann.
The power thus vested in the High Court and the Supreme Court to declare in an appropriate case that the government or the legislature have failed to observe the provisions of the Constitution is in addition to the power expressly conferred on them by the Constitution to declare Acts of the Oireachtas invalid.
That does not indicate any position of inequality as between the three organs of government. Sovereignty resides in the people alone and the exclusive vesting in the judicial arm of the power to declare unlawful the actions of the government or the Oireachtas is simply part of the system of checks and balances essential to the operation of the separation of powers. It follows that, where the Constitution has unequivocally assigned to either the government or the Oireachtas a power to be exercised exclusively by them, judicial restraint of an unusual order is called for before the courts intervene. That is also no more than a recognition that, while all three organs of State derive their powers from the people, the government and the Oireachtas are accountable, directly and indirectly, to the people in the electoral process.
Where, as here, the exercise by the government of the executive power of the State is challenged as being in breach of the Constitution, it must be presumed, until the contrary is shown, that their actions are a lawful exercise of the power vested in them. In Crotty v. An Taoiseach, Griffin J said at p. 792/467:
No express power is given by the Constitution to the courts to interfere in any way with the government in exercising the executive power of the State. However, the government, and all of its members and the administration in respect of which the members are responsible, are subject to the intervention of the courts to ensure that in their actions they keep within the bounds of lawful authority. Where such actions infringe or threaten to infringe the rights of individual citizens or persons, the courts not only have the right to interfere with the executive power they have the constitutional obligation and duty to do so. But that right to interfere arises only where the citizen or person who seeks the assistance of the courts can show that there has been an actual or threatened invasion or infringement of such rights.
While Griffin J (together with Finlay CJ) was in the minority in that case in holding that the plaintiff had not established his right to the relief claimed, there is no suggestion in the judgments of the majority (Walsh, Henchy and Hederman JJ) that they disagreed with the view of Griffin J as to the onus that rested on the plaintiff.
As to the nature of that onus, Fitzgerald CJ said in Boland v. An Taoiseach (at p. 362):
… The courts have no power, either express or implied, to supervise or interfere with the exercise by the government of its executive functions, unless the circumstances are such as to amount to a clear disregard by the government of the powers and duties conferred upon it by the Constitution.
In considering whether the appellant has discharged that onus in the present case, some further considerations are relevant.
First, the provisions of Article 38.3 and of Part V of the 1939 Act do not envisage the replacement across the whole range of criminal law (or even of particular offences under that law) of the ordinary courts by ‘special courts’. Such courts may only be established for the trial of offences in cases where it is determined in accordance with law that the conditions referred to in Article 38.3 apply to such cases and render trial in the ordinary courts inappropriate.
In turn, Part V avails of that power so as to provide:
(a) for the bringing into force of Part V under s.35(2),
(b) for a declaration by government under s. 36 that offences of a particular class are to be ‘scheduled offences’,
(c) for the giving of directions by the Attorney General (now the Director of Public Prosecutions) under s. 45 for the sending forward for trial of persons charged with scheduled offences to a special criminal court; and
(d) for the certifying by the Attorney General (now the DPP) under s. 46 that a person should be tried before a special criminal court on a non-scheduled offence because, in his opinion, the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order.
Secondly, it is to be noted, as pointed out by Walsh J in the People (DPP) v. Quilligan (No. 1) [1986] IR 495; [1987] ILRM 606, that the power of the government to bring Part V into operation is not confined to circumstances in which it is considered that the trial of offences created by Parts II and III of the Act might, in specific instances, have to be dealt with by a special court rather than the ordinary courts. Parts II and III are concerned with offences such as the usurpation of the functions of government and membership of unlawful organisations and are, in general, concerned with subversive activities. But there is nothing to prevent the government from bringing Part V into force where it is satisfied, for the reasons mentioned in the subsection, that the DPP should have power to require the trial before a special criminal court rather than by a jury of persons engaged in non-subversive crime, e.g. where there appeared to be a significant risk that those engaged in organised crime would resort to the intimidation or corruption of juries.
Thirdly, beyond requiring the government to be ‘satisfied’ that conditions exist which justify the bringing into force of Part V, the Oireachtas has not in any other way limited its powers. The same considerations apply to the annulling of a proclamation under subs. (4), although in this instance the government have no discretion and must annul the proclamation if they are so ‘satisfied’.
In arriving at such a determination in either instance, the government will have to evaluate collectively the information available to it from the various departments of state through the ministers in charge of those departments. This is in addition to any information which may come to ministers as a result of their participation in the normal political process, as Dáil deputies themselves in regular contact with their constituents or through other deputies with an even wider constituency.
As Barrington J has pointed out, these considerations lead inevitably to the conclusion that a decision as to whether Part V of the 1939 Act should remain in force is essentially political in its nature, as is the decision to invoke those powers in the first place. The political character of the decision is further underscored by the power given to Dáil Éireann under s. 35(5) to pass a resolution annulling the proclamation.
For the reasons elaborated by Barrington J in his judgment, I am also satisfied that the appellant has failed to discharge the onus upon him of establishing that in deciding to maintain Part V in force the government were invading or infringing the constitutional rights of individual citizens, including the appellant. The maintenance in being of a Special Criminal Court, the existence of which is expressly envisaged by the Constitution, where, in the judgment of the government, the ordinary courts are inadequate in specified cases to secure the effective administration of justice and the preservation of public peace and order is not, of itself, such an invasion or infringement. The High Court judge was correct, in my view, in holding that the appellant had failed to establish that the point had been reached at which it could plausibly be regarded as such.
It was urged on us in argument that the ordinary courts were functioning at every level throughout the country and that, in these circumstances, it could not be said that conditions were such as to justify the continued existence of the Special Criminal Court. That submission, however, rests on a fundamental misconception. Although it was conceded by Dr Forde that the government in 1972 were justified in bringing Part V into operation, it is a matter of history that the ordinary courts were also functioning at every level throughout the country at that time. The 1939 Act contains a specific and demonstrably lower threshold for the lawful invocation of the relevant powers by the government than the ‘state of war or armed rebellion’ criteria which were under consideration in R. (O’Brien) v. Governor of the Military Internment Camp [1924] 1 IR 32.
A decision of this nature taken by the government, as is clear from the authorities already cited, cannot be regarded as forever beyond the reach of judicial control. As has been pointed out in the course of argument, the powers conferred by Part V of the Act are indeed far reaching and allow of the trial of persons on serious offences, not merely without a jury, but by tribunals composed of persons without any legal qualifications. Save in the exceptional circumstances of war and national emergency envisaged by Article 28.3, the courts at all times retain their jurisdiction to intervene so as to ensure that the exercise of these drastic powers to abridge the citizens’ rights is not abused by the arm of government to which they have been entrusted. I entirely agree, however, that those considerations cannot avail the applicant in the present case.
The State (Sheerin) v. Kennedy.
[1966] IR 379
O’Dalaigh C.J. :
28 July
I have read the judgment which Mr. Justice Walsh is going to read and I agree with it.
LAVERY J. :
I have also read the judgment and agree with it.
HAUGH J. :
I have read the judgment and agree with it.
WALSH J.:
In the cases of Sheerin and McGarry the statutory provision which Mr. Justice Kenny considered to be in conflict with the provisions of the Constitution is s. 2 of the Prevention of Crime Act, 1908. The first question which must arise is whether this statutory provision can be the subject of a case stated under Article 40, section 4, sub-section 3, of the Constitution. That provision of the Constitution reads as follows:
“Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated and may, at the time of such reference or at any time thereafter, allow the said person to be at liberty on such bail and subject to such conditions as the High Court shall fix until the Supreme Court has determined the question so referred to it.”
The immediate question for consideration is whether the law referred to in this sub-section is a law enacted by the Oireachtas only.
The words, “invalidate” and “invalid” and “validity,”when used in reference to a law, appear in a number of places in the Constitution. The first appearance is in Article 28, section 3, sub-section 3, where the following appears:”Nothing in this Constitution shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety . . . . . .” Article 34, section 3, sub-section 2, dealing with the jurisdiction of the High Court, states that it shall extend “to the question of the validity of any law having regard to the provisions of this Constitution . . . . . .” The term “validity”appears again in sub-section 3 of that section and in sub-sections 4 and 5 of section 4 of the same Article. In Article 26 of the Constitution the phrase “repugnant to this Constitution”appears twice in reference to Bills which have passed both Houses of the Oireachtas but which have not yet been signed by the President and have not, therefore, become law. Article 50 of the Constitution, which provides for the carrying over of laws in force in Saorstát Éireann immediately prior to the date of the coming into operation of the Constitution, excludes laws or the provisions thereof which are “inconsistent” with the Constitution. In the Irish text of the Constitution “inconsistent” appears as”ina choinne,” while “validity” appears as “bail,””invalid” as “neamh bhail,” “to invalidate” as “chur ó bhail,” while “repugnant” appears as “in aghaidh.”
These different words and terms in the context in which they appear are not synonymous. In ordinary general speech the words may be regarded as synonymous and have on a number of occasions been so used in judgments with that general meaning where no question arose upon the difference between them. The question of the difference between them arises in this case. So far as Article 50 of the Constitution is concerned it deals with laws which were actually in force and the only question was whether they should continue to be in force to the extent only to which they were not inconsistent with the provisions of the Constitution. No question of validity arises in that context because the laws, if they are in force on the date in question, are dealt with on the basis that they are valid on that date. The situation which is being examined in that Article is whether a law which is valid on a certain date may cease to have effect because, notwithstanding its initial and original validity, it is inconsistent with the provisions of the Constitution. In Article 26 of the Constitution, where the term”repugnant” occurs, what is being dealt with is not a law but something which will only become a law if signed by the President. There the term “repugnant” is used in relation to something which is in effect a proposal in the sense that it expresses the will of Dáil Éireann and Seanad Éireann that it should be law. Unless and until it becomes law it could not be questioned as such and therefore the question of validity as a law would not yet arise. Article 28, section 3, sub-section 3, expressly refers to a law enacted by the Oireachtas and therefore excludes any other law, and the Oireachtas in question is the Oireachtas set up by the Constitution. What is dealt with in that section therefore is the validity of a law of the Oireachtas. Articles 34 and 40, where the law referred to is not expressly referred to as a law of the Oireachtas, in my view must be treated as meaning that the validity in question is a validity to be determined by the provisions of the Constitution in respect of something purporting to have been done within the terms of the Constitution and within the powers conferred by the Constitution. I think it is clear from these various provisions of the Constitution that the laws referred to are statutory provisions, as distinct from non-statutory law, and the validity of any statute can only be examined in the light of the powers of the parliament which enacted it. The Oireachtas established by the Constitution is the only parliament which is, or was, subject to the provisions of the Constitution and therefore the question of determining the validity of a law having regard to the provisions of the Constitution can only refer to laws enacted by the Oireachtas established by the Constitution. All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them, but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitutionnot as to their validity but, even assuming they were valid, as to whether or not they are inconsistent with the provisions of the present Constitution.
So far as Article 40, section 4, sub-section 3, in particular is concerned, it is important to recall the fact that this was an amendment of the Constitution and followed upon the decision in The State (Burke) v. Lennon and the Attorney General (1) where the judgment and order of the High Court involved the determination that a provision of an Act of the Oireachtas, namely, the Offences against the State Act, 1939, was invalid having regard to the provisions of the Constitution. The then Supreme Court decided that an appeal from this decision of the High Court did not lie because the order made was one of habeas corpus. For the purposes of this case it is unnecessary to examine the decision in The State (Burke) v. Lennon and the Attorney General (1) and I refer to it only for the purpose of indicating the circumstances which led to the amendment of the Constitution which is now sub-section 3 of section 4 of Article 40. The background discloses that it was an Act of the Oireachtas which was in question and that the amendment was designed to deal with such case.
In Sullivan v. Robinson (2), at p. 174, O’Byrne J., in the course of delivering the judgment of the then Supreme Court expressed the opinion that while the power of the Courts to determine the validity of a law having regard to the provisions of the Constitution and the jurisdiction of the Supreme Court in the case of a Bill referred to it by the President under Article 26 of the Constitution were quite separate and distinct matters they were nevertheless intimately connected and that they are both included in the clause in Article 58, “subject to the provisions of this Constitution relating to the determination of questions as to the validity of any law.” The purpose of this observation was to indicate that in the view of the Court the words as they appeared in Article 58, which was one of the transitory provisions, were used in a general sense and were construed as conferring upon the then High Court and the then Supreme Court powers in relation to these matters which are conferred by the Constitution on the High Court and the Supreme Court set up under the Constitution. While it is unnecessary to go into this matter for the purpose of this case it is sufficient to observe that the opinion there expressed was not one dealing with the distinction between the terms “repugnant”,”inconsistent” and “validity . . . . . . having regard to the provisions of this Constitution”, because nothing in that case turned upon that distinction and in the particular context of Article 58 the words from that Article already referred to were construed in a wide general sense relative only to the transitional period between the coming into operation of the Constitution and the setting up of the Courts under the Constitution. The Court was not attempting to equate them for all purposes with the words”repugnant” and “inconsistent” which appear in the other Articles of the Constitution already referred to and each of which, in the context in which it appears, must be regarded as a term of art.
While the scope of the phrase “validity . . . . . . having regard to the provisions of this Constitution” has not previously been the subject of any decision directed expressly to that point, it has by implication on a number of occasions been interpreted by this Court and by the former Supreme Court as referring only to laws enacted by the Oireachtas set up under the present Constitution. On occasions in both Courts opinions by more than one judge have been pronounced in cases dealing with the question of whether or not certain provisions of Acts of the Oireachtas of Saorstát Éireann and of the Parliament of the former United Kingdom of Great Britain and Ireland were inconsistent with the provisions of the Constitution or were carried over as law by virtue of Article 50. In The State (Shanahan) v. The Attorney General (1) the statutory provision in question was s. 62 of the Courts of Justice Act, 1936, and in The State (Quinn) v. Ryan (2) the statutory provision in question was s. 29 of the Petty Session (Ireland) Act, 1851. Both of these cases were decisions of this Court based on the several opinions pronounced. In Melling v. Ó Mathghamhna (3) the judges of the former Supreme Court pronounced separate opinions upon s. 186 of the Customs Consolidation Act, 1876. In each of these cases it is clear that the Court was of opinion that the provisions of Article 34, section 4, sub-section 5, of the Constitution did not apply in cases dealing with statutes of the Oireachtas of Saorstát Éireann or of the Parliament of the former United Kingdom of Great Britain and Ireland. In contrast, decisions concerning the validity of an Act of the Oireachtas have always been pronounced in accordance with the provisions of Article 34, section 4, sub-section 5, of the Constitution. The Cases Stated by Mr. Justice Kenny for the opinion of this Court in terms raise the question of the validity of a law having regard to the provisions of the Constitution, but in fact it is a question raised in reference to a statute of the former United Kingdom of Great Britain and Ireland and, therefore, in reality is one asking whether or not the statutory provision in question is inconsistent with the provisions of the Constitution. This is a matter which falls to be determined under Article 50 of the Constitution and, for the reasons which I have already given, it is my opinion that the question does not lie to be raised for the opinion of this Court under the provisions of Article 40, section 4, sub-section 3, of the Constitution. The learned Judge has in effect found the provisions of s. 2 of the Prevention of Crime Act, 1908, to be inconsistent with the provisions of the Constitution and that must be regarded as his decision on the matter from which there cannot be an appeal in the form of a case stated for the opinion of this Court. However, I propose to express my opinion on the question in view of the fact that the matter was fully argued in this Court and for the reason that we have been asked to give an opinion on it as it will govern the O’Hanlon proceedings, in which the respondents appeal from a decision of Davitt P. quashing the order of the District Justice on a different ground.
O’Hanlon has been sentenced to two years’ detention in St. Patrick’s Institution under s. 2 of the Prevention of Crime Act, 1908, for the offence of escaping from a reformatory school contrary to s. 72 of the Children Act, 1908. Sect. 2 of the Prevention of Crime Act, 1908, deals with youthful offenders convicted of the offence of committing a breach of the rules of a reformatory school, of inciting to such a breach, or of escaping from such school. The section provided that where in such cases the Court might, under the Act which made such activities criminal offences, sentence the offender to imprisonment, he may be sentenced to detention in a Borstal Institution for a term not less than one year nor more than three years in lieu of sentencing him to imprisonment. By virtue of s. 11 of the Criminal Justice Administration Act, 1914, the minimum term of sentence to Borstal was altered to two years. Sects. 71 and 72 of the Children Act, 1908, as amended by ss. 17 and 18 of the Children Act, 1941, are the sections which create the offences referred to in s. 2 of the Prevention of Crime Act, 1908. The offence of being guilty of a wilful breach of the rules of a reformatory school renders the offender liable, upon summary conviction, to a term of imprisonment not exceeding three months provided he is of the age of 17 years or upwards. Below that age he cannot be sent to prison save in accordance with s. 102, sub-s. 3, of the Children Act, 1908. The effect is, therefore, that s. 2 of the Prevention of Crime Act, 1908, is applicable only to youthful offenders of not less than 17 years of age. Sect. 13, sub-s. 1, of the Criminal Justice Act, 1960 (hereinafter called “the Act of 1960”), provides that where a person who is not less than 17 nor more than 21 years is convicted of an offence for which he is liable to be sentenced to a term of imprisonment he may in lieu be sentenced to be detained in St. Patrick’s Institution for a period not exceeding the term for which he might have been sentenced to imprisonment. Sect. 12 of the Act of 1960 provides that the term “Borstal”should be discontinued and that all references in any statute, or instrument made under statute, to a Borstal Institution should be construed as references to St. Patrick’s Institution. In my view it is quite clear that when a youthful offender is convicted of the offence of breach of the rules contrary to s. 71 of the Children Act, 1908, and he is not less than 17 years old the District Justice may send him to St. Patrick’s Institution for a period not exceeding three months.
The prosecutors, David McGarry and Francis Sheerin, were each convicted of an offence under s. 71 of the Children Act, 1908, on the 17th September, 1965, in the District Court at Mullingar, County Westmeath, and the District Justice ordered, pursuant to s. 2 of the Prevention of Crime Act, 1908, as amended, that each of them be detained for a period of two years in St. Patrick’s Institution. According to the evidence in the Cases the learned District Justice said that he had no option but to pass such sentences, which seems clearly to indicate that his attention had not been directed to s. 13 of the Act of 1960 and that he was under the impression that the minimum term to which he could sentence each of the accused was two years’ detention in St. Patrick’s if he was not sentencing them to the three months’ imprisonment to which he could have sentenced them. Among the facts found by Mr. Justice Kenny are the facts that Sheerin was born on the 9th or 10th March, 1948, and that McGarry was born on the 6th November, 1946. Accordingly, it appears that when McGarry was sentenced to the reformatory whose rules he subsequently broke he was already over the age of 17 years, the conviction being on the 13th November, 1963, and the order of conviction erroneously stating that he was then under 17 years. Sect. 57, sub-s. 1, of the Children Act, 1908, as amended by s. 9, sub-s. 1, of the Children Act, 1941, provides that no person shall be sent to a reformatory school unless he is under the age of 17 years. The conviction which resulted in Sheerin being ordered to be sent to a reformatory school was on the 8th June, 1965, he being then also over the age of 17 years. They had each pleaded guilty to an offence under s. 71 of the Children Act, 1908, which led to the order being made under s. 2 of the Prevention of Crime Act, 1908, as amended. The provisions of sub-s. 2 of s. 13 of the Act of 1960 refer to persons less than 17 years but not less than 16 years of age who are convicted of an offence for which they would be liable to be sentenced to a term of imprisonment if they were not under 17 years old. This sub-section has no bearing on the offences created by ss. 71 and 72 of the Children Act, 1908, because, as has already been mentioned, these only provide for imprisonment upon conviction of persons of not less than 17 years.
The question whether or not s. 13 of the Act of 1960 effects a repeal or an amendment of s. 2 of the Prevention of Crime Act, 1908, could only arise if s. 2 of that Act was in force in 1960. If the provisions of s. 2 of that Act are inconsistent with the provisions of the Constitution, they were not carried over on the coming into operation of the Constitution and, by virtue of Article 50 of the Constitution, ceased to be in force. The learned Judge of the High Court was of the opinion that the latter section was inconsistent with Article 38, section 5, of the Constitution in that it permitted a sentence of detention in St. Patrick’s Institution for a period of three years to be imposed in respect of an offence which was only triable summarily and which, measured in the terms of the imprisonment which it attracted under the section creating the offence, namely, s. 71 of the Children Act, 1908, was only a minor offence. The effect of s. 2 of the Prevention of Crime Act, 1908, as amended by the Act of 1914, is said to take the offence out of the category of minor offences; and, if it be not a minor offence, it cannot under the said provision of the Constitution be triable other than by a jury. The question is therefore whether an offence which may attract a punishment of detention for a period up to three years in St. Patrick’s Institution can be held to be a minor offence. It is therefore necessary to examine the nature of detention in St. Patrick’s Institution.
The object of Borstal Institutions, as stated in s. 4 of the Prevention of Crime Act, 1908, was to provide places in which young offenders, while detained, might be given such industrial training and other instruction and be subjected to such disciplinary and moral influences as would conduce to their reformation and the prevention of crime. It was also provided by the same section that regulations for the rule and management of the institutions and for the classification, treatment, employment and control of persons sent to them might be made by the General Prisons Board for Ireland and that, subject to any adaptations, alterations and exceptions made by such regulations, the Prisons (Ireland) Acts, 1826 to 1907, including the penal provisions thereof and the rules thereunder, should apply in the case of every such institution as if it were a prison. Sect. 13 of the Act of 1960 empowers the Minister for Justice to make regulations providing for the rule and management of St. Patrick’s Institution in so far as it is being used for the detention of persons sentenced under that section and for the classification, treatment, employment and control of such persons; and enables him by regulations to apply, to such extent and subject to such modifications, if any, as may be specified therein, the Prison Acts, 1856 to 1956, and the rules made thereunder whether before or after the commencement of the Act of 1960 and the regulations made, whether before or after the commencement of the Act of 1960, under sub-s. 2 of s. 4 of the Prevention of Crime Act, 1908. The Act of 1960, however, contains no provision in terms similar to those of s. 4, sub-s. 1, of the Prevention of Crime Act, 1908, setting out the purposes of St. Patrick’s Institution. Saint Patrick’s Institution is not a Borstal Institution and by the Act of 1960 is made a place for the detention of persons within the age group of 17 to 21 years who are liable to be sentenced to a term of penal servitude or imprisonment and who may in lieu be sentenced to be detained in St. Patrick’s. The only exception is provided in sub-s. 2 of s. 13, which deals with a case of a young person less than 17 years but not less than 16 years old who is convicted of an offence for which he would be liable to be sentenced to a term of penal servitude or imprisonment if he were not under 17 years old. Sect. 102, sub-s. 3, of the Children Act, 1908, as amended by the Children Act, 1941, provides that a young person who is 15 years of age or upwards and under the age of 17 years shall not be sentenced to imprisonment for an offence or committed to prison in default of payment of a fine, damages or costs unless the Court certifies that the person is of so unruly a character that he cannot be detained in a place of detention provided under Part V of the Act, or that he is of so depraved a character that he is not a fit person to be so detained. It follows, therefore, that a person under the age of 17 years must be a person not less than 16 years old falling into that category before he can be sentenced to detention in St. Patrick’s Institution. It is equally clear from the statistics furnished to this Court during the course of the hearing, and which were contained in the annual prison reports, that most of the persons detained in St. Patrick’s Institution are serving short sentences, that is, sentences of six months and less. While, no doubt, these persons while detained are given useful instruction and are subject to discipline which may assist in the formation of good character and self-discipline, the institution is primarily a place of detention and not primarily a place for relatively long terms of detention for industrial training and other instruction, as were the Borstal Institutions, for periods of not less than two years. According to the affidavit of Superintendent Barr of the Garda SÃochána, filed in the O’Hanlon proceedings, St. Patrick’s Institution is governed as a department of Mountjoy Prison.
The question therefore is whether an offender between the ages of 17 and 21 years, that is to say, a near adult, may be deprived of his liberty for a period up to three years upon being convicted of an offence while leaving that offence in the category of minor offences. In my opinion the answer is “No.”
I think the fact that the prosecutors in these cases each pleaded guilty is immaterial to the question to be considered. In my view there is no constitutional difficulty in giving the District Court power to pass sentences of any duration upon a person who pleads guilty to an offence which is by law within the jurisdiction of the District Court. Indeed, it appears to me that there is no constitutional difficulty in giving the District Court power to deal with every criminal offence upon a plea of guilty. On the other hand, it would be contrary to the constitutional provision to give to any Court, whether it be the District Court or any other Court, the power to try persons without a jury save in the case of minor offences, except where permitted by the Constitution in the case of the special criminal courts and military tribunals which are referred to in Article 38, sections 3 and 4. In the decision of this Court in Conroy v.The Attorney General (1) and the decision of the former Supreme Court in Melling v. Ó Mathghamhna (2) it was decided that the factor which primarily determines, and is the most important factor in determining, the question of whether or not an offence may be regarded as a minor offence is the amount of punishment which it may attract. It can scarcely be contended that a sentence to a period of detention in St. Patrick’s Institution is not a punishment even if the punishment may produce more beneficial results by way of reform or rehabilitation in the offender than would an equal period in an ordinary prison. The deprivation of liberty is the real punishment. The views expressed in Melling’s Case (2) and Conroy’s Case (1) were to the effect that a period of up to six months’ imprisonment was not such a punishment as would take an offence out of the category of minor offences. In my view the punishment of detention in St. Patrick’s Institution for the same period would not take an offence attracting that punishment out of the category of minor offences. It is unnecessary to determine what precise period in excess of the period of six months would constitute the boundary line between minor offences and other offences. However, I have no doubt that an offence which attracts as a punishment the deprivation of liberty for a period of up to three years cannot be regarded as a minor offence. Where such a period of deprivation of liberty is involved the real difference, if any, between suffering that loss of liberty in prison or in St. Patrick’s Institution is of no material consequence. In my view s. 2 of the Prevention of Crime Act, 1908, as amended, even if in force at the date of the coming into operation of the Constitution, is inconsistent with the provisions of Article 38, section 5, of the Constitution and was not carried over as law after the coming into operation of the Constitution. Therefore, until the passing of the Criminal Justice Act, 1960, the offences referred to in s. 2 of the Prevention of Crime Act, 1908, fell to be dealt with only by ss. 71 and 72 of the Children Act, 1908, as amended by the Children Act, 1941. It is to be noted also that save for the limited scope of s. 2 of the Prevention of Crime Act, 1908, the power to sentence offenders to a term of detention in Borstal was never exercisable by Courts of summary jurisdiction.
During the course of the argument counsel for the Attorney General invited the Court to hold to be inconsistent with the provisions of the Constitution s. 7 of the prevention of Crime Act, 1908, which gave power to the Lord Lieutenant, by adaptation the Minister for Justice, to commute the unexpired residue of the terms of detention of persons detained in a Borstal Institution, who are reported by the visiting committee to be incorrigible or to be exercising bad influence upon the other inmates of the institution, to a term of imprisonment with or without hard labour as the Lord Lieutenant might determine, but in no case exceeding such unexpired residue of the period of detention. This unusual request was made to the Court because, in the course of the arguments submitted on behalf of the prosecutors, attention was directed to the provisions of s. 7 of the Prevention of Crime Act, 1908, for the purpose of supporting the arguments that detention in St. Patrick’s Institution is equivalent to a period of imprisonment. If there is any essential difference between what is referred to as a term of imprisonment and a term of detention in that institution, then the provisions of s. 7 of the Prevention or Crime Act, 1908, are inconsistent with the provisions of the Constitution relating to the exercise of the judicial power of the State: see the judgment of this Court in Deaton v. The Attorney General and the Revenue Commissioners (1); and in such a case it would be my opinion that the section was not carried over on the coming into operation of the Constitution. The question of substituting St. Patrick’s Institution for the term “Borstal”would not arise because if the section was inconsistent with the provisions of the Constitution it had already ceased to be part of the law before the establishment of St. Patrick’s Institution. If there is no essential difference between a term of imprisonment and a term of detention, then I think the only portion of the section inconsistent with the provisions of the Constitution is the words “with or” following the words “term of imprisonment,” the absence of which would abolish power to commute detention to a term of imprisonment with hard labour. In my opinion there is no essential difference between detention and imprisonment, and in my opinion, therefore, s. 7 of the Prevention of Crime Act, 1908, was carried over save for the words “with or”which I have referred to. The effect of my opinion is, therefore, that the transfer of incorrigibles from St. Patrick’s Institution to a prison may be effected under s. 7 of the Prevention of Crime Act, 1908, on the order of the Minister for Justice but without the addition of hard labour. This is complementary to the power contained in s. 3 of the Prevention of Crime Act, 1908, which enables the Minister for Justice to transfer a person, within the limits of the age at which a person may be detained in St. Patrick’s Institution, from prison to St. Patrick’s Institution, there to serve the whole or any part of the unexpired residue of the sentence of imprisonment, when the Minister is satisfied that the offender might with advantage be detained in St. Patrick’s Institution rather than in prison.
I should like to add that I do not consider the objects of St. Patrick’s Institution in any way less beneficial than the objects of the Borstal Institutions and the view which I have expressed as to the constitutionality of the section would be the same even if the objects of St. Patrick’s Institution were declared in the same terms as those of the Borstal Institutions in s. 4 of the Prevention of Crime Act, 1908.
For the reasons I have given I am of opinion that the prosecutors have been unlawfully sentenced and detained under the District Court orders referred to because the statutory provision under which they were sentenced was no longer in force. Accordingly, the orders of conviction in all three cases should be quashed by the High Court.
O’KEEFFE J. :
I have read the judgment and agree with it.