New Appeal: Is the defence of officially induced error (or entrapment by estoppel) available in this jurisdiction?

In this determination, Director of Public Prosecutions v Casey, the Supreme Court granted Casey, former chief executive of Irish Life and Permanent, leave to appeal on whether the trial judge should have allowed him to raise the defence of officially induced error at his trial for conspiring to mislead investors (Anglo Irish case). The Court granted leave on the questions:

whether the defence of “officially induced error” is available in this jurisdiction and, if so, what its parameters are and whether it was open to the applicant on the evidence in this case.

 

Background

The Dublin Circuit Criminal Court found Casey (and others) guilty of a single count of conspiring to mislead investors by circulating funds between Irish Life Assurance and Anglo-Irish Bank for the purpose of inflating Anglo’s deposit balance by €7.2 billion. At trial, Casey sought to introduce a defence of officially induced error, which is known in the US as entrapment by estoppel. It was his case that the financial regulator, the Central Bank and the Department of Finance knew of and approved of the scheme.

The trial judge refused to allow Casey raise that defence, finding that the evidence presented could only go towards mitigation.

The Court of Appeal dismissed Casey’s appeal, setting out the test for a defence of officially induced error as:

(i) The accused must have considered the legal consequences of their actions and sought legal advice;

(ii) The legal advice must have been obtained from appropriate government officials who were involved in the administration of the law in question;

(iii) The legal advice must have been erroneous;

(iv) The legal advice must have been relied upon;

(v) The reliance must have been objectively reasonable.

Casey sought leave to appeal to the Supreme Court. He argued that the authorities from the US and Canada did not support the CoA’s finding that it was necessary that an accused show that they had obtained legal advice on the illegal act.

The Supreme Court determined that Casey had raised an issue of general public importance and granted leave to appeal.

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New Appeal: When can the Oireachtas provide for mandatory prison terms without trespassing on the judicial function?

In this determination, Ellis v Minister for Justice and Equality & Ors, the Supreme Court granted Ellis leave to appeal challenging the constitutionality of s 27A(8) of the Firearms Act 1964. The Court determined that the case raised the following questions of general public importance:

 

i) Whether, and in what circumstances, the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases;

ii) Whether the ability of the Oireachtas to legislate for fixed penalties is only in breach of the separation of powers where the sentence fixed is disproportionately heavy;

iii) Whether a mandatory term of five years imprisonment in all cases of a second of subsequent offence under Section 27A of the Act is disproportionately heavy.

 

Background

In the Circuit Court, Ellis pleaded guilty to possession of a firearm contrary to s 27A(1) of the Firearms Act 1964:

27A. — (1) It is an offence for a person to possess or control a firearm F27 [ or ammunition ] in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.

Although Ellis had two previous convictions for carrying a firearm, the Circuit Court imposed a five year prison term, suspended in its entirety.

The DPP appealed the sentence to the Court of Appeal. Imposing a five year custodial sentence, the CoA held that the trial judge was bound by s 27A(8) of the 1964 Act:

(8) Where a person (except a person under the age of 18 years) —

( a ) is convicted of a second or subsequent offence under this section,

( b ) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

In 2016, Ellis issued plenary proceedings in the High Court challenging the constitutionality of s. 27A(8). Twomey J dismissed those proceedings.

Following Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 and Lynch and Whelan v Minister for Justice [2012] 1 IR 1, the CoA upheld the High Court decision.

Ellis applied to the Supreme Court for leave to appeal under Article 34.5.3° of the Constitution.

New Appeal: Should fines imposed before commencement of the Fines (Payments and Recovery) Act 2014 be dealt with under that Act or the law at the time?

In this determination in two joined cases, Owens v Director of Public Prosecutions & Ors and Dooley v Director of Public Prosecutions & Ors, the Supreme Court granted the DPP leave to appeal on the question:

Whether unpaid fines that had been imposed by way of sentence before the coming into force of the Fines (Payments and Recovery) Act 2014 should, after that date, be dealt with under that measure or under the law as it stood at the time of sentence.

 

Background

Prior to the commencement date of the Fines (Payments and Recovery) Act 2014 (January 2016), both respondents were convicted at district court level and issued with fines of €500. Both failed to pay the fines and were, subsequent to the commencement of the 2014 Act, sentenced to terms of imprisonment for that failure to pay.

Both respondents challenged the lawfulness of the warrants on the basis that they were deprived to the protections of s 7 of the 2014 Act.

Quashing both warrants, the High Court (Eagar J) stated that if the 2014 Act was only to act prospectively it would create a two tier system, that the DPP failed to show that this would not lead to unfairness and injustice, and that it would deprive the respondents and society of the protections of the 2014 Act. Eagar J directed that the DPP initiate proceedings under s 7 of the 2014 Act.

The DPP appealed that decision to the Court of Appeal, arguing that if the Óireachtas had intended the 2014 Act to act retrospectively it would have expressly stated so.

The Court of Appeal (here) dismissed the DPP’s appeal, distinguishing between a statute that creates a new offence (which cannot apply retrospectively) and a statute such as the 2014 Act, which creates a new mechanism of collecting unpaid fines.

The Supreme Court determined that the case raised an issue of general public importance and granted the DPP leave to appeal.

DPP v Solowiow: Trial judge must assess defendant’s lies in time, nature and circumstances of offence when directing jury

In this case, Director of Public Prosecutions v Solowiow, the Supreme Court held that the trial judge had given the jury adequate warning on the inferences they could draw from Solowiow’s original false accounts of events. That he did not direct the jury that Solowios’s lies were not evidence of guilt of murder rather than manslaughter did not cause an injustice.

 

Background

In May 2012, Solowiow murdered his girlfriend Mary Ryan by fracturing her larynx and causing her blunt force trauma. When first interviewed by gardai, Solowiow stated that Ryan’s injuries were caused by three men who assaulted her on the street. Later he admitted to causing Ryan’s death while in a fit of rage. But he alleged that he did not mean to harm her.

The DPP prosecuted Solowiow for murder; he argued a partial defence of provocation, which, if accepted by a jury, reduces the offence of murder to manslaughter. In October 2013, the Central Criminal Court convicted Solowiow of murder. Solowiow appealed that decision to the Court of Appeal on a number of grounds, all arguing that the trial judge failed to direct the jury correctly.

In April 2016, the Court of Appeal (here) dismissed Solowiow’s appeal. That judgment quotes extensively from the trial judge’s direction to the jury. [22 – 29] dealt with the trial judge’s direction to the jury on how they should consider Solowiow initially lying to gardai. Solowiow sought leave of the Supreme Court for a further appeal on that one issue.

In granting leave to appeal, the Supreme Court summarised Solowiow’s argument on the trial judge’s direction to the jury relating to his early denial of causing Ryan’s injuries:

It is said that it requires to be made clear to the jury in the judge’s charge that such evidence is not evidence of guilt of murder as such but rather is evidence which may go to the credibility of the accused and, to the extent that it may lead to a legitimate questioning of that credibility, may be taken into account by the jury in conjunction with all of the evidence on provocation which may be given at the trial. It is said that the charge in this case does not do so, that there is no Irish authority on the question and that the question of whether a charge should so do raised an issue which meets the constitutional threshold.

However, the Court also allowed the DPP to argue that it was not open to Solowiow to appeal on the grounds raised, as he did not make a requisition to the trial judge to amend his jury direction on that issue.

 

Supreme Court

MacMenamin J wrote the judgment for the unanimous five judge panel. He outlined the law in relation to direction of a jury where a defendant had given a false account of their involvement, known as the “Lucas Warning”:

35. Standing back from the facts of this case, it is clear that the core principle in R v Lucas [1981] QB 720, is that, where an accused’s lies are capable of constituting corroboration, the jury must be instructed that there are many possible reasons why people lie, and that, before relying on the lie in question, it must be satisfied that the motivation behind the lie was a realisation of guilt, and a fear of the truth.

 

That test was later refined in England and Wales for cases where the defence of provocation is raised: R v Richens [1994] 98 Cr App Rep 43. MacMenamin J outlined the relevant facts:

41. Richens was a case where the circumstances showed that not only could the partial defence of provocation arise, but have a close connection with the offence. The judgment concerned a 17 year old accused, who, the defence claimed, was enraged that the victim claimed that the defendant’s girlfriend, who he had raped, had actually consented to have sex. Both the defendant and the girl disposed of the body. The defendant maintained a false account of what occurred for a considerable period. Critically, the accused denied any involvement at all in the crime. He was arrested 17 days after the crime and on the following day admitted his involvement.

 

In this case, the trial judge had given a Lucas Warning, but Solowiow argued that the trial judge should have gone further and specifically directed the jury that his lies could not provide proof of his guilt of murder as opposed to manslaughter.

MacMenamin J approached this appeal from the question of the overall adequacy of the trial judge’s direction. Dismissing the appeal, he stated:

  1. The charge, as a whole, was detailed and fair. It is not to be parsed and analysed with a view to finding some small detail or omission which contains a flaw of no significance. One might rhetorically ask what more should the judge have said on the basis of the evidence before the jury? It is, theoretically, possible to criticise the charge on the basis that the omission of what I might characterise as a Richens warning. But this charge did contain a detailed warning in a case where the issue was entirely obvious: was the defendant guilty of murder or manslaughter? The judge took care to ensure that the jury were aware of the fact that the defendant accounted for his lies on the basis that he was afraid, and then “thought about telling the gardaí about the three guys.” He accounted for the fact that he told his friends the lies, on the basis that he did not know whether or not the deceased was going to die. The judge gave the essence of the Lucas warning. He gave illustrations of the application of the warning. And, by the time of the trial, what was in the lies was not in dispute, and was by then a secondary issue. It was clear that the defendant had committed a homicide, and did not dispute that. It was no longer the central issue.
  2. The question must be, how material was the omission of this one hypothetical sentence, which counsel for the defendant now suggests? Was the charge fundamentally flawed? In my view, it was not. No injustice was done in this case. One must assess the relationship of the lies both in time, and in their nature, to the circumstances of the offence. The jury might have paid regard to the lies, but this was not the central consideration when in the trial itself the vista had changed. This case does not concern theoretical possibilities. It must be anchored in its own facts. I do not consider the omission to be fatal to the charge or the subsequent conclusion.

 

On the second issue of whether Solowiow had a right to appeal at all, given that he had not made a requisition to the trial judge to amend his jury direction, MacMenamin J held for the DPP, citing Kearns J in Cronin (No 2) [2006] 4 IR 329:

Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of the trial itself. …

New Appeal: Must a trial judge give an accomplice warning, even where that’s not requested by counsel for the defence?

In this determination, Director of Public Prosecutions v Fitzgerald, the Supreme Court granted Fitzgerald leave to appeal on the question:

Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.

 

Background

A jury convicted Fitzgerald of murder. At trial, Kelly gave evidence for the prosecution that Fitzgerald had been in her home prior to the killing; that he was in possession of a shotgun; that he left her home with the shotgun; that she heard shots fired at a neighbouring house; and that Fitzgerald returned to her home with the shotgun claiming to have killed the victim.

Fitzgerald was represented at trial by a solicitor, barrister and Senior counsel. The trial judge inquired whether Fitzgerald wanted the jury to be given an accomplice warning. Fitzgerald’s legal team did not request a warning.

After his conviction, Fitzgerald changed solicitor and appealed his conviction to the Court of Appeal. Among other grounds, he claimed that his conviction was unsound due to the trial judge not giving the jury an accomplice warning on Kelly’s evidence. The Court of Appeal accepted that Kelly was an accomplice but dismissed his appeal on grounds that the trial judge was not required to give a warning where the defendant had not requested one. Fitzgerald applied to the Supreme Court for leave to appeal.

 

Supreme Court

The State objected to Fitzgerald’s application, arguing that the law in this area is clear and no issue of general importance arose. Also, it argued that Fitzgerald chose to undermine Kelly’s evidence by other means, and if the trial judge had done so it would have been an interference with Fitzgerald’s right to conduct his defence in the manner of his own choosing.

But the Court determined that:

In the circumstances of this case, it is clear that the Court of Appeal viewed Ms. Kelly as an accomplice; notwithstanding that view, having regard to the way in which the defence was conducted, it concluded that no corroboration warning was necessary in respect of her evidence. The question therefore arises as to whether such a warning is required or not. The Court is satisfied that the Applicant herein has raised an issue of general public importance, namely:

“Whether a trial judge is required to give an accomplice warning, even where the trial judge is not requested to do so by counsel for the defence.”

DPP v Wilson: Re s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence)

Here, the Supreme Court held that s 19 of the Criminal Justice Act 1984 (admission of adverse inference evidence) “may not be utilised in a trial for an offence other than the offence in respect of which the inference caution was expressly invoked” [50].

 

Background

S 19 of the 1984 Act (as amended by s 29 of the Criminal Justice Act 2007) (here) allows for an inference to be drawn from a suspect’s failure to account for their presence at a place when an offence was committed.

In 2009, two men entered a house in Blanchardstown, one armed with a meat cleaver and the other with a gun. Two shots were fired. Witnesses at the scene identified Wilson as the one in possession of the meat cleaver.

Gardai arrested Wilson on suspicion of having been involved in the unlawful discharge of a firearm. During questioning, gardai invoked the adverse inferences provision of s 19 of the 1984 Act.

The DPP charged Wilson under s 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001. It is alleged that he entered the building as a trespasser and committed an assault causing harm.

At trial before the Dublin Circuit Criminal Court, the DPP proposed to rely on s 19 of the 1984 Act. Wilson objected on grounds that he was questioned in relation to the unlawful discharge of a firearm, not assault, and that s 19 cannot be invoked in relation to an offence for which he was not questioned. The trial judge ruled in favour of the DPP. On appeal, the Court of Appeal upheld the trial judges decision on grounds that the offences for which Wilson was questioned and charged were inextricably linked. Wilson sought leave to appeal that decision to the Supreme Court.

In this determination (DPP v Wilson), the Supreme Court granted Wilson leave to appeal on “whether the section [s 19 of the Criminal Justice Act 1984] may be utilised in a trial for an offence other than the offence about which the accused was questioned when the section was invoked”.

 

Supreme Court

Chief Justice Denham wrote the main judgment for a unanimous five judge panel; McKechnie J wrote a concurring judgment.

The case raised only an issue of statutory interpretation.

Denham CJ set out An Garda Síochána’s obligations under s 19 and the operation of the adverse inference thereafter:

31. … First, the member concerned must reasonably believe that the presence of the accused at a relevant place and time may be attributable to participation in the commission of “the offence”. Second, the member concerned must inform the accused that he or she is of that belief being a belief that the presence of the accused may be attributable to participation in the commission of “the offence”. Third, the member concerned must, in accordance with s 19(3)(a), tell the accused in ordinary language what the effects of failure or refusal to account may be. However, that effect may be that an inference might be drawn in relation to guilt of “the offence charged”. It is clear, therefore, that the inferences caution must relate to “the offence” which obviously relates back to the offence in respect of which, in the words of the first phrase of s 19 itself, there are “proceedings against a person”.

32. There is no ambiguity in that aspect of the section. The inferences caution must relate to the same offence as is involved in the proceedings ultimately brought and thus the same offence as that with which the accused is charged.

33. Then, if the accused failed or refused to give an account explaining his presence, the Court, in determining whether the accused is guilty of the offence charged (or of any other offence of which he could lawfully be convicted on that charge) may draw such inferences as appear proper, and the failure or refusal may on the basis of such inferences, be treated as, or capable of amounting to, corroboration of any evidence in which the failure or refusal is material.

 

Allowing Wilson’s appeal, Denham CJ held:

50. Section 19 may not be utilised in a trial for an offence other then the offence in respect of which the inference caution was expressly invoked. Any other approach would require further legislation.

DPP v Wharrie: Not a mitigating factor that accused did not give false evidence at trial

Here, in answer to a case stated from the Court of Criminal Appeal, the Supreme Court held that:

it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.

 

Background

In 2007 Perrie Wharrie and three accomplices were arrested in County Cork when their rib sunk as they attempted to bring 1.5 tonnes of cocaine ashore. One of the men pleaded guilty to offences under the Misuse of Drugs Acts. The three others were convicted before a judge and jury. At trial, Wharrie did not give evidence. His accomplices, however, gave evidence which the judge described at sentencing as an “insult to the intelligence of the jury”. The trial judge determined that it was a mitigating factor that Wharrie did not give false evidence, but sentenced him to 30 years imprisonment.

The Court of Criminal Appeal upheld the trial judge’s finding that it was a mitigating factor that Wharrie did not give false evidence. But it found that the trial judge did not give Wharrie credit for that. The Court of Criminal Appeal reduced Wharrie’s sentence to 22 years and allowed a further five years reduction in mitigation.

The DPP certified a question for appeal to the Supreme Court:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?

 

Supreme Court

Charleton J wrote the judgment for a five judge panel. Overruling the statements on mitigation by the trial judge and the Court of Criminal Appeal, he stated:

30. … An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

DPP v O’Shea: Not necessary to establish mens rea in a prosecution for careless driving which results in a death

Here, DPP v O’Shea, the Supreme Court overturned the Court of Appeal finding that it is necessary to establish mens rea in a prosecution for careless driving which results in a death.

 

Background

On the 9th of January 2013, O’Shea, who was seventy years of age at the time, was driving on a public road in County Kildare. He collided with a JCB which was performing roadworks, pinning Kevin O’Sullivan, who was on traffic control duty, to the JCB, causing his death. O’Shea was not speeding, nor was he intoxicated and his car was fully roadworthy. He claims that there was no pre-warning sign, the sun was low in the sky and he was blinded by strong sunlight.

The DPP charged O’Shea with careless driving causing the death of Kevin O’Sullivan under s 52 of the Road Traffic Act 1961, as substituted by s 4 of the Road Traffic Act (No 2) 2011 (here). At trial, the trial judge instructed the jury that careless driving is a strict liability offence. The jury found O’Shea guilty. The trial judge fined O’Shea €5,000, suspended him from driving for four years and ordered that he re-sit a driver competency test before his licence is returned.

O’Shea appealed his conviction to the Court of Appeal. The CoA (here) overturned O’Shea’s conviction on grounds that dangerous or careless driving are not strict liability offences.

The Supreme Court granted the DPP leave to appeal on the question: “what are the ingredients of the offence created by, and what must be proved in order to sustain a conviction under s 4 of the Road Traffic (No 2) Act 2011?”

 

Supreme Court

O’Malley J wrote the judgment for the five judge panel. Clarke J wrote a concurring opinion.

O’Malley J reviewed the statutory history and case law on driving offences and clarified the elements of the offences of dangerous driving and careless driving. Dangerous driving is “driving that a reasonably prudent driver would, in the circumstances, recognise as causing a direct, immediate and serious risk of harm to the public. There is therefore no requirement to prove that the accused adverted to that risk – the test is objective” [47]. Careless driving is a lesser offence even though it many cause the same result. It is driving with “a lack of care and attention that a reasonably prudent driver would give when driving in a public place, having regard to the circumstances as they actually exist [48]. A careless driver is less blameworthy than a dangerous driver for the same result [49].

Supreme Court will ask the CJEU to define “trial” within the Framework Decision on European Arrest Warrants

In this judgment, Minister for Justice & Equality v Lipinski, the Supreme Court held it necessary to make a reference to the Courts of Justice of the European Union on the scope of “trial” within Article 4a of the Framework Decision on European Arrest Warrants. Should trial be interpreted narrowly, limiting its application to a criminal prosecution? Or should trial be interpreted broadly, to also include later proceedings such as hearings to suspend sentences and hearings to revoke the suspension of sentences?

 

Background

In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.

 

Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court will make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

New Appeal: Must the DPP clarify inconsistencies in a witness’s statement before deciding to prosecute?

In this determination, DPP v DH, the Supreme Court granted the DPP leave for a leapfrog appeal from the Central Criminal Court on three questions:

 

(i) Does either the prosecution or the defence have a right of appeal against an order of a trial judge staying a trial pending the taking of further steps by the prosecution?

(ii) In considering whether to stay a criminal trial after its commencement, is a trial judge bound to apply the same test as that appropriate to judicial review proceedings aimed at quashing a decision to prosecute?

(iii) Does the Director of Public Prosecutions have a duty to clarify serious inconsistencies in a witness’s statements before deciding to prosecute, where such inconsistencies may go to the reliability of that witness’s evidence, or is it sufficient that disclosure of such inconsistencies is made to the defence?

 

Background

This case concerns allegations of numerous counts of rape and indecent assault of a young girl dating back to 1987 – 1989.

At trial, DH sought to have the prosecution stayed on grounds of culpable prosecutorial delay. In a voir dire trial, the trial judge did not accept DH’s arguments on delay. However, it emerged that the girl’s social worker (Ms C) had noted in 1995 that the girl was not certain that intercourse had taken place; although at the time of trial the complainant was certain that it had.

The trial judge ordered a stay on the prosecution of the rape charges, stating:

This is a piece of evidence that might indicate that [the complainant’s] evidence to the Court, while truthful and honest might not be reliable and the duty was on the prosecution to explore that evidence, bearing in mind that the risk of an unfair trial that everyone accepts can follow from long delay.

The DPP sought leave for a leapfrog appeal against that order directly to the Supreme Court. The constitutional threshold for a leapfrog appeal are (1), an appeal must be in the interests of justice and (2), there must be exceptional circumstances.

The DPP did not argue that she could not fulfill the terms of the stay. She argued that she met the constitutional threshold as she had no right of appeal to the Court of Appeal where the Central Criminal Court order is not an acquittal, conviction or sentence (1), and it would lead to an inequality between her and the accused if the Supreme Court did not grant leave (2).

The Court determined that the DPP met the constitutional threshold and granted leave.

On appeal “the Director intends to argue that the trial judge applied an incorrect test in exercising her jurisdiction to impose a stay; that she failed to have regard to the limited grounds upon which a decision to prosecute can be reviewed by the courts; that she erred in considering that there was a real risk of an unfair trial having regard to the fact that the documents in question had been disclosed; that she focussed disproportionately on the hearsay accounts of words used by the complainant in the earlier investigations; and that she erred in concluding that the alleged inconsistencies justified the staying of a prosecution”.

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