DPP v JC (No 2): retrial would not be in the interests of justice

lady-justiceA unanimous seven judge panel held that it would not be in the interests of justice to direct a retrial in this case. All seven judges wrote judgments; however, only five are currently available on the Court’s website.


For detailed background information on the first judgments, see the Court’s information note here and my previous post here. In brief, gardai entered JC’s home on foot of a warrant issued under s 29 of the Offences Against the State Act 1939, which the Supreme Court later determined to be contrary to the Constitution. While under arrest, JC made incriminating statements. The trial judge disallowed the evidence under the exclusionary rule in DPP v Kenny. The DPP brought an appeal under s 23 of the Criminal Procedure Act 2010 (here), which gives the Supreme Court jurisdiction to order a retrial where the the Circuit Court has erroneously excluded admissible evidence. The DPP successfully challenged the rule from Kenny and then sought an order directing a retrial. The 2010 Act states

23 (12) In determining whether to make an order under subsection (11)(a) [direct a retrial], 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.

Supreme Court

In her majority opinion (here), Denham CJ held that, as the case changed the law, and a retrial would be subject to new legal principles, and as there had been three years since JC’s acquittal, and the DPP presented no evidence that the crimes had an effect on the victims, it would not be in the interests of justice to direct a retrial [29].  O’Donnell, Clarke and MacMenamin JJ concurred.

Murray J (here) was critical of the DPP for not pursuing the case under s. 34 of the Criminal Procedure Act 1967, which allows the Circuit Court to ask the Supreme Court to clarify a question of law without prejudice to an acquittal, rather that under s 23 of the 2010 Act. Citing his own judgment in DPP v JC (1):

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.

He stated the opinion that in every case such as this, where the trial was conducted under the law as it was understood to be, “s.23 will always be pointless and doomed to failure” [24]. He believed that it would be contrary to the essential principles of constitutional justice and the rue of law for the Court to direct a retrial under the circumstances of this case.

O’Donnell J (here) said that, “one of the relevant factors [whether s 34 or s 23 is appropriate] in my view is whether the case is one in which any clarification of the law is incidental to the order overturning the conviction in an individual case, or whether the clarification of the point of law is the most important feature of the case, and individual circumstances are incidental to that” [4]. This case fell into the latter, and would be more appropriate for an s 34 application. O’Donnell J believed there is likely a significant number of cases where an acquittal was ordered as a combined result of the Kenny and Damache judgments, and there would be an element of arbitrariness in singling out JC for a retrial.

Clarke J (here) addressed the issue of what test should be applied by the Court in assessing whether to direct a retrial. Under other relevant matters (23 (12) (d)), Clarke said the Court ought to consider whether a retrial could be conducted on the same legal basis as the original trial. This consideration, Clarke said, ought to be given great weight [5.10]. And as a retrial could not be conducted on the same legal basis as the trial, the Court, Clarke said, should not direct a retrial. O’Donnell and MacMenamin JJ concurred.

MacMenamin J  (here) distinguished this case from others, such as DPP v MC (post), where a court misinterprets the law and there is a clear rational for a retrial. In this case, the trial judge applied a Supreme Court precedent which was binding at the time. This case, therefore, presented a real risk of double jeopardy [8]. However, he said he would reserve consideration of the constitutional status of s 23 until an appropriate case arose.

Hardiman J (here) and McKechnie J (link to follow) wrote concurring judgments. O’Donnell J briefly addresses some of the issues discussed by McKechnie.

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