DPP v Colbert: Appellate court can interfere with trial judge’s sentence where the justice of the case demands

Prison2As a general rule, an appellate court cannot consider events which occurred after a trial when reviewing a sentence and should not interfere with a sentence unless it is satisfied that the trial judge committed an error in principle. That general rule is “subject however to an exception that the court should do so where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial” O’Donnell J [21] (here).


In February 2010, Colbert was convicted of a number of offences of rape and sexual assault and was sentenced to eight years in prison. In July 2011, the Circuit Court convicted Colbert for 10 other offences of sexual assault. The trial judge considered Colbert’s previous conviction and sentenced him to four years in prison for each of the 10 offences, to run concurrently with his previous sentence.

In October 2011, the Court of Criminal Appeal quashed Colbert’s 2010 conviction and ordered a retrial. The complainant decided not to give evidence in the retrial, and the DPP entered a nolle prosequi.

In 2012, Colbert appealed against the sentence for the 2011 conviction. In 2013, the Court of Criminal Appeal dismissed Colbert’s appeal, holding that it was precluded by  The People (DPP) v Cunningham [2002] 2 IR 712 from interfering with the trial judge’s sentence where no error in principle was identified. However, it released Colbert on bail, as he had served three years in prison since his first conviction, and certified two questions for an appeal to the Supreme Court:

(1) Whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody by the appellant for a conviction subsequently quashed, and

(2) whether in an appeal against severity of sentence to the Court of Criminal Appeal the court should, as a matter of law, take into account time spent in custody on remand by the appellant even where he was at the same time serving a sentence for a previous conviction subsequently quashed.

Supreme Court

The Court issued two judgments and was unanimous in its decision. O’Donnell J wrote a judgment clarifying the jurisdiction of appellate courts to review sentencing. Denham CJ, O’Donnell, Clarke, Charleton and O’Malley JJ concurred  Charleton J and O’Malley J wrote a joint judgment (here) relating to the application of the law to this case. The other three judges concurred.

O’Donnell accepted that it is understandable that the general rule from Cunningham became interpreted as a strict rule. In Cunningham it was held that an appellate court cannot consider a prisoner’s good behaviour as a grounds to reduce a sentence on appeal. That would offend the separation of powers, as there is statutory guidelines on remission for good behaviour and clemency is at executive discretion. However, O’Donnell points out that Cunningham was distinguished almost immediately in People (DPP) v Duffy and O’Toole [2003] 2 IR 192. There, the Court of Criminal Appeal reduced the appellants’ sentences where a third defendant had received a lesser sentence for the same offence by a differently constituted Special Criminal Court. And, in that case, there was no error in principle by the sentencing judges.

O’Donnell adopted the more flexible approach from the minority judgment by Denham J in Cunningham, which considered s 3 of the Courts (Establishment and Constitution) Act 1961 and s 34 of the Courts of Justice Act 1924, which states:

The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.

ODonnell stated that the general rule that an appellate court will not interfere with a sentence unless the trial judge committed an error in principle must be qualified. An appellate court must allow an exception “where it is required to do so by the demands of justice in the case, the most obvious example of which is where those subsequent events have significantly falsified basic assumptions common to all sides present at the trial”. He concurred with Charleton and OMalley’s judgment and orders.

Charleton and O’Malley held that “to attempt give rigid answers to the questions posed by the Court of Criminal Appeal would unnecessarily trammel sentencing discretion” [17]. Dealing with the case before them, they held that, as the trial judge passed sentence on Colbert with the view that, at the time, he had a prior conviction, the sentence must be reviewed. But, as Colbert had not argued that the sentence was wrong in principle or excessive, the Court did not reduce the term. As Colbert had served three years and was entitled to 25% remission, the Court ordered his release.


New Appeal: Supreme Court approves a second appeal relating to the CoA’s application of Hay v O’Grady

Here (Donegal Investment Group v Danbywiske & Ors), the Supreme Court granted Danbywiske leave to appeal a Court the Appeal (Finlay Geoghegan J, Hogan J & Cregan J) decision to overturn the High Court (McGovern J) finding of fact as to the value of company shares. The Court approved three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

In determining that Danbywiske satisfied the constitutional test for an appeal to the Supreme Court, the Court stated that it is “of the opinion that an issue of general public importance has arisen from the Court of Appeal judgment in relation to expert evidence and the role of such testimony in enabling a trial judge to make a choice as to the varying opinions and as to the proper approach to determining issues of fact in context”.

This is the second appeal that the Supreme Court has granted this year concerning the Court of Appeal’s application of the rule from Hay v O’Grady. In February, the Court granted leave in Leopardstown Club v Templeville Developments. The CoA judgments (2) in that case were written by Finlay Geoghegan J and Hogan J. See post here.

Redmond v Ireland: Special Criminal Court cannot convict solely on opinion of Chief Superintendent

Prisoner+in+jail+cell+prison1Here, the Court held “that a constitutional construction of s 3(2) of the Act of 1972 [Offences Against the State (Amendment) Act] requires that the belief evidence of a Chief Superintendent be supported by some other evidence that implicates the accused in the offence charged, is seen by the trial court as credible in itself, and is independent of the witness who gives the belief evidence”.


In April 2002, three judges sitting in the Special Criminal Court found that Redmond was guilty of membership of an illegal organisation (the IRA) and sentenced him to four years imprisonment. It issued a written judgment outlining the reasons for its decision: the opinion evidence of a Garda Chief Superintendent and supporting physical evidence connecting him to items uncovered in an arms dump. In 2004, the Court of Criminal Appeal affirmed that decision and refused to certify a further appeal to the Supreme Court (Irish Times report, here).

In 2006, Redmond brought High Court proceedings seeking a declaration of unconstitutionality against s 3(2) of the Offences Against the State (Amendment) Act 1972, which states:

(2) Where an officer of the Garda Síochána, not below the rank of Chief Superintendent, in giving evidence in proceedings relating to an offence under the said section 21, states that he believes that the accused was at a material time a member of an unlawful organisation, the statement shall be evidence that he was then such a member.

In 2009, McMahon J (here) refused to grant an order that s 3(2) of the 1972 Act is unconstitutional. Redmond appealed that decision to the Supreme Court.

Supreme Court

Hardiman J reviewed the caselaw on s 3(2) of the 1972 Act and noted that although it was the practice of the Speial Criminal Court not to convict a defendant of membership of an illegal organisation solely on the opinion of a Chief Superintendent, the law as it was up to now interpreted allowed for that possibility. However, he stated that:

24. I do not consider that s.3(2) would be consistent with the Constitution if it permitted the conviction of a person solely on the basis of the opinion evidence. This is even more obviously the case if privilege is successfully asserted over the material which led to the formation of the opinion. This is because these matters in combination tend to exclude any “examinable reality” from the case and thereby undermine any potential avenue to effectively challenge the opinion evidence. The effect of this is wholly to subvert the prospects of useful cross-examination and to exclude even the theoretical possibility of undermining the opinion by cross-examination. This creates scope for the possibility of a conviction on opinion evidence only, which evidence is effectively unchallengeable.

That did not decide the case, though. Citing Walsh J in East Donegal Co-operative Limited v. Attorney General [1970] I.R. 317, that:

An Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution: and it is not only a question of preferring a constitutional construction to one which would be unconstitutional, where they both may appear to be open, but it also means that in interpretation favouring the validity of an Act should be given in cases of doubt.

Hardiman J held that s 3(2) does not offend the Constitution as it is applied in current practice.  Therefore he held that:

32. I believe that a constitutional construction of s 3(2) of the Act of 1972 requires that the belief evidence of a Chief Superintendent be supported by some other evidence that implicates the accused in the offence charged, is seen by the trial court as credible in itself, and is independent of the witness who gives the belief evidence.

Denham CJ, McKechnie J and MacMenamin J concurred. Charleton J dissented in part (here).


New Judgment: Reynolds v Blanchfield, High Court shouldn’t have made award not sought in pleadings

Here, the Supreme Court allowed Blanchfield’s appeal, as:

28. The approach adopted in the High Court of awarding the sum of €75,000 to the Respondent against the Appellant for services rendered on a quantum meruit basis was incorrect in that:

(a) neither a claim for such relief nor the matters which would have established an entitlement to it had been pleaded; and

(b) there was insufficient evidence before the High Court to arrive at a proper valuation of the quantum meruit, even assuming entitlement to payment on a quantum meruit basis could be established.


The parties were to be partners in a joint venture property development in France, in which Reynolds was to invest €750,000 (2006). That partnership did not proceed. Reynolds claimed that, subsequently, Blanchfield agreed to pay him €200,000 for services to ensure the successful outcome of the development. That involved, among other things, attending site meetings and meetings with the local mayor, prospective investors and prospective sales agents. Blanchfield denied that he had an agreement with Reynolds for the provision of those services, that he had agreed to pay any sum to Reynolds or that he owed any sum to Reynolds.

In October 2008, Reynolds issued High Court proceedings by summary summons seeking judgment against Blanchfield for €200,000 for alleged breach of contract. In January 2010, the Master of the High Court granted judgment for that sum, including interest from November 2008, plus costs. In February 2010, the High Court (McKechnie J) vacated that order and ordered that the case proceed to full hearing. The trial took place in April 2011.

High Court

During evidence, the trial judge (Kearns P) stated that the crucial issue to be resolved was whether there had been an express agreement between the parties on payment for Reynolds’ services. He asked the parties whether, if he was unsatisfied as the terms of any agreement between them, he should decide what sum might be owed on a quantum meruit basis. Blanchfield objected on grounds Reynolds had not sought that in his pleadings. The trial judge said he would therefore resolve the case on an all or nothing basis.

In an ex tempora judgment, the trial judge said that he was satisfied that Blanchfield had agreed that he must pay Reynolds for his services; and that a sum of €200,000 was mentioned. But on the balance of probabilities, he was not satisfied that Blanchfield had agreed to pay that sum. Despite Blanchfield’s objections though, the trial judge was satisfied that he had enough information to make a fair assessment on a quantum meruit basis of the value of the services provided and made an award on €75,000 in favour of Reynolds. Blanchfield appealed that decision to the Supreme Sourt.

Supreme Court

Blanchfield argued that Reynolds made no claim in his pleadings for an award based on quantum meruit; that Reynolds provided no witness evidence of the value of the services provided, that could be challenged in cross examination; and that the issue of resolving the case on a quantum meruit basis was raised by the trial judge–neither party invited him to do so.

Laffoy J cited from Delany and McGrath on Civil Procedure in the Superior Courts and from settled case law that neither party to proceedings will be allowed to make a case that is materially different to that asserted in their pleadings; to allow that would put the other party in the unfair disadvantage of not knowing in advance the case they have to answer. Reynolds, in his pleadings, sought a specific sum of €200,000 which he claimed was contractually owed. The trial judge found that, on the balance of probabilities, that was not the case.

Laffoy J allowed Blanchfield’s appeal and overturned the High Court order.

Ulster Bank v O’Brien:“Is ionann toil ‘s éisteacht”, silence can be, not must be, acquiescence in a statement


In this case, the Court made a statement on when failure to deny an allegation, which might otherwise be excluded under the rule against hearsay evidence, can be treated as evidence that the allegation is true:



21. Thus, analysing whether a failure to respond in the face of an accusation can amount to a declaration against interest must depend upon a myriad of factors. What follows cannot be definitive but merely indicative: an analysis of the nature of the relationship between the parties is essential; the circumstances under which an allegation is made must be taken into account, what is solemn, being different from what is social and from what is jocular or mischievous; the nature of what is claimed may amount, on the one hand, to a bare allegation or, on the other, to an apparently definitive statement backed-up by documentary proof; but finally, the test must be that a failure to respond, in circumstances when a denial would clearly be required, would amount in terms of the conduct of reasonable people to an admission.


Ulster Bank issued a letter of demand to O’Brien (and his co-defendants) seeking repayment of €900,000 provided under two loan facilities. O’Brien did not respond to the letter or repay the debt. The Bank issued proceedings seeking summary judgment, displaying the letter of demand. O’Brien submitted a defence that the Bank’s affidavit was grounded on evidence that was inadmissible under the rule against hearsay evidence. The Master of the High Court accepted that argument and dismissed the proceedings. The Bank appealed that decision.

High Court

As the averments in the Bank’s affidavit were similar in form and content to affidavits which frequently provided the courts with sufficient evidence to grant summary judgment, and as O’Brien had not denied that the debt was owed, Hedigan J overturned the Master’s order and granted the Bank summary judgment plus costs. O’Brien appealed that decision to the Supreme Court.

Supreme Court

Charleton J (here) held, firstly, although similar evidence was admitted in thousands of other cases  that does not make it admissible: if it offends against the hearsay rule it must be excluded. However there is an exception to that rule provided for in the Bankers’ Books Evidence Act 1879. But banks are not the only entities that provide credit. Trust that money lent and goods delivered will be honoured by payment is necessary for industry to flourish; and it would be extremely odd if banks could admit details of their business records into evidence and other commercial entities could not also do so.

Secondly therefore, Charleton J conducted a review of the case law on the hearsay rule and concerning where failure to refute an accusation can be determined to be an admission of its truth. He determined that it is not a case that failure to deny an accusation amounts to an admission, but the “ancestral adage” “Is ionall toil’s éisteach” (silence can be, not must be acquiesence) comes closer, and he outlined some of the factors that a court must consider, [21] as quoted above.

In relation to this case, “the swearing of an affidavit and its service in court proceedings which make allegations that a sum is due, can be accepted in the absence of denial, where the form and the content of what is deposed to and the exhibits supporting it carry sufficient indications of reliability”. He therefore dismissed the appeal stating that the judgment by Hedigan J in the High Court cannot be said to be in any way at fault. MacMenamin J issued a concurring opinion (here), as did Laffoy J (here).

Cussens v Brosnan (Inspector of Taxes): new argument allowed on appeal where State refused to provide clarity on law

electronic-form-rss1Here, the Court allowed the Appellants to amend their notice of appeal to include reference to a derogation the State held to full implementation of an EU Directive on VAT, as the State had previously refused to provide the Appellants with the wording of the derogation, and as the new argument was closely related to the argument made in the High Court.


Cussens, Jennings and Kingston (Cussens) built a scheme of fifteen holiday homes in County Cork in 2001. In March 2002, they granted a lease of twenty years and one month for the properties to company that they owned (Shamrock Estates). On the same day they leased the properties back from Shamrock Estates for two years. Cussens paid the Revenue the VAT due on the creation of the twenty year lease. In April 2002, the two leases were extinguished by mutual consent, and Cusssens became the owner of the full freehold title again. In May 2002 (and soon after) they sold all of the properties for approximately €3 million in aggregate. Due to the Value Added Tax Act 1972, then in force, no VAT was due on the sale of the properties–because VAT had been paid on the creation of the twenty year lease.

In 2004, Revenue assessed that Cussens owed additional VAT on the sale of the properties. Revenue did so on grounds that the leases had no commercial reality and were created solely to reduce the tax burden. As such, the leases could be disregarded (subject to Sixth Council Directive 77/388/EEC of 17 May 1977) for the purposes of calculating the VAT due. Although the State had sought a derogation and had not fully implemented the Directive, Revenue argued that it had direct effect.

In July 2005 a Revenue Appeals Commissioner refused an appeal. Cussens brought a further appeal to the Circuit Court, which was rejected in October 2006. However, on request, the Circuit Court made a case stated to the High Court, dated October 2007: whether the creation of the lease, leaseback and surrender should be disregarded for the purposes of VAT as an abusive process as set out by the ECJ in the Halifax case?

In Case C – 255/02 Halifax Plc v Customs & Excise [2006]the ECJ held that:

For it to be found that an abusive practice exists, it is necessary, first, that the transactions concerned, notwithstanding formal application of the conditions laid down by the relevant provisions of the Sixth Directive and of national legislation transposing it, result in the accrual of a tax advantage the grant of which would be contrary to the purpose of those provisions. Second, it must also be apparent from a number of objective factors that the essential aim of the transactions concerned is to obtain a tax advantage.

Charleton J upheld the decision of the Circuit Court. Cussens appealed that decision to the Supreme Court.

Supreme Court

The issue in this judgment relates to an application to amend the notice of appeal to include an argument not made at trial. In the original notice of appeal Cussens argued that the Halifex decision did not have direct effect [14]. He sought to amend that to, that the State could not enforce the Halifex decision where the national legislation was retained due to the State having a derogation to full implementation of the provisions of the Direective.

The test as to whether a new argument will be allowed on appeal was set out by O’Donnell in  Lough Swilly Shellfish v Bradley [2013] 1 IR 227, quoted at [32]. One circumstance where an appellate court will allow a new argument to be advanced is where it is closely related to an argument made at trial.

Laffoy J held that, as Revenue had refused to provide Cussens with the wording of the derogation when requested [38], as the new argument was closely related to the argument made in the High Court, as the argument arose from the case stated, and as it would not prejudice Revenue [39], Cussens should be allowed to amend the notice of appeal.

O’Donnell Donal J, Clarke J, MacMenamin J and Dunne J concurred.


Inland Fisheries v O’Baoill & Ors: appellant could not be expected to uncover evidence of State ownership that State failed to uncover

John-McLaughlin-Playing-the-fish-at-Gweebarra-480x360Evidence of State ownership of property rights, which a State body failed to uncover prior to trial, but which an appellant later uncovered, could be admitted as new evidence on appeal under the test from Murphy v. Minister for Defence [1991] 2 IR 161–if it met the other two criteria.


The High Court (Laffoy J) gave judgment in module one of a complex case on the management of fishing rights in the Gweebarra River in County Donegal. She determined that Inland Fisheries had the right to manage the contested fishing rights in part of the river because O’Baoill did not establish a stronger claim than that possessed by a third party, O’Donnell, from whom Inland Fisheries acquired a contractual right. O’Baoill appealed that decision to the Supreme Court.

Supreme Court

On appeal, O’Baoill sought to introduce new evidence uncovered by his solicitor which suggested that the Minister for Communications, Energy and Natural Resources had a stronger claim to the fishing rights than O’Donnell. Although this new evidence would not affect the outcome of the High Court’s module one decision on Inland Fisheries’ right to manage the fishing rights, O’Baoill argued that it was necessary that the appeal be allowed to clarify the record for later modules in the case. There was no dispute between the parties that the test on introducing new evidence in such circumstances was set out in Murphy v. Minister for Defence:

1. The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with reasonable diligence for use at the trial;

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive;

3. The evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be incontrovertible.

Clarke J (here) held that as the new evidence that O’Baoill sought to introduce was in existence before the trial, and as Inland Fisheries failed to uncover it, it met the first criteria from Murphy. However, as it was unlikely to affect the outcome, as it could only establish Inland Fisheries’ right through a different chain of title, it did not meet the second criteria from Murphy. He, therefore, dismissed the application. MacMenamin and Charleton JJ concurred.

DPP v JC: is a Get Out of Jail card a balanced remedy for an unintentional unlawful entry of a premises?

FreeJailOn the morning of the 10th of May 2011, gardai called to JC’s home in Waterford as part of their investigations into burglaries at a commercial premises. They presented a warrant, issued under s 29 of the Offences Against the State Act 1939, and JC’s sister allowed them to enter the premises. The gardai arrested JC, who had been sleeping inside, and brought him to a garda station. They searched JC’s home but found nothing of evidential value. While in custody, under caution and after consulting with a solicitor, JC made inculpatory statements.

The warrant was valid on its face, and it was fully in compliance with s 29 of the 1939 Act and the general law on warrants. JC’s custody was in compliance with the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Siochána Stations) Regulations 1989 and 2006. The arrest would have been legal if conducted in a public place. And s 6(2) of the Criminal Law Act 1997 allows gardai to lawfully enter a premises to make  an arrest without a warrant, and to perform a search of the premises while there.

Three days after the search, in a separate case ,the High Court reject a challenge to the constitutionality of s 29 of the 1939 Act. That section allowed a senior garda to issue a warrant. It was argued in the High Court that, as a garda involved in an investigation could issue a warrant, there was not sufficient independent oversight of the process to guarantee the protection of constitutional rights. Before JC’s trial, though, the Supreme Court overturned that decision on appeal (Damache v. DPP [2012] 2 IR 266). The Court accepted Damache’s argument on independent oversight and held that s 29 0f the 1939 Act was unconstitutional.

In the intervening period, the DPP charged JC with offences relating to the burglaries. At trial, JC argued that, as s 29 of the 1939 Act was unconstitutional, the warrant was invalid. And, as the warrant was relied upon to gain entry to the premises to make the arrest, the gardai had breached his constitutional rights in making the arrest. Therefore, under the rule from DPP v Kenny [1990] 2 I.R. 110, any evidence recovered as a result was inadmissible—including the statement he made while in custody. The DPP argued that, although any evidence recovered in the search was inadmissible under the rule in Kenny, the arrest and detention was lawful and the statement was admissible. The trial judge accepted JC’s argument and ruled the statements were inadmissible. As the prosecution did not submit any other evidence, the judge directed the jury to find JC not guilty.

The DPP appealed the Circuit Court decision under s 23 of the Criminal Procedure Act 2010. That allows an appeal where the DPP believes that a trial judge has “erroneously excluded compelling evidence”. The case raised two issues:

  1.  could a trial judge be said to have erroneously excluded compelling evidence by applying the relevant precedent correctly, even if the precedent was overturned afterwards on appeal? And if so,
  2. was DPP v Kenny decided correctly?

Erroneous exclusion

The three dissenting justices (Murray, Hardiman and McKechnie JJ) argued that the trial judge could not be held to have erroneously excluded evidence where she applied the correct precedent is a correct manner. Murray J stated at [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.

Addressing the issue of whether an appeal under s 23 of the 2010 Act could be taken to challenge a precedent which was binding at the time of trial, Clarke J stated that, there may be constitutional issues where s 23 is used to challenge an issue of substantial law.  The Óireachtas is constitutionally precluded from enacting retrospective legislation. If, however, an appeal under s 23 will have the retrospective effect of making an act an offence which was not an offence at the time, it could be doing what the Constitution precludes the Óireachtas from doing. And that could have constitutional implications. But where, as here, the issue is in respect to the law of evidence the constitutional implications are less significant: a person has either committed a criminal act, or not; and overturning a decision that relates to the law of evidence does not make an action illegal which was legal at the time.

Clarke J stated that it is unlikely that the 2010 Act will achieve the Governments’s purpose without review.  McMenamin J expressed additional reservations at [12]: “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”.

The majority, however, held that the fact that the trial judge was obliged to follow an erroneous precedent does not prevent an appeal arguing that she excluded the evidence in error. The Court, therefore, reviewed the decision in Kenny.

Kenny decision

O’Donnell J, writing for the majority (here) conducted a detailed analysis of both The People (Attorney General) v. O’Brien [1965] I.R. 142 and Kenny; and of the international jurisprudence on admissibility of evidence obtained in breach of fundamental rights. He found that the test in Kenny went further in excluding evidence than the rules in any other common law jurisdiction.

In O’Brien, gardai entered O’Brien’s home on foot of a warrant which had an error in the address. O’Brien argued that the warrant was invalid and entry was therefore in breach of his constitutional rights to the inviolability of the dwelling; and as a result, the evidence was inadmissible. The Supreme Court held that only a deliberate and intentional act which breached constitutional rights could warrant the exclusion of evidence. And as the error on the face of the warrant was not deliberate or intentional, the evidence was admissible.

In Kenny, gardai entered a premises, on foot of a warrant issued by a Peace Commissioner under s 26 of the Misuse of Drugs Act 1977, and recovered evidence. At trial, Kenny argued that, as the Peace Commissioner had not demonstrated that he made sufficient inquiries regarding the basis of the gardai’s suspicions that there was illegal drugs on the premises, the warrant was invalid, the search was in breach of the property owner’s constitutional rights and the evidence recovered was inadmissible. On appeal, the Court, citing O’Brien, held that as the gardai had deliberately and intentionally entered the premises on foot of an invalid warrant, the evidence was inadmissible. That interpretation of the rule from O’Brien has been binding on the courts until the decision in this case.

As both O’Donnell J and Clarke J (here) pointed out, though, if the interpretation of the deliberate and intentional action from Kenny was applied in O’Brien, the evidence in O’Brien would have been ruled inadmissible, as the gardai had deliberately and intentionally entered the premises on foot of an invalid warrant. Therefore, either O’Brien or Kenny was decided incorrectly, or Kenny overruled O’Brien without stating so. Whichever it was, the majority held that O’Brien did not adequately protect constitutional rights, and Kenny went too far in excluding evidence. Concurring, McMenamin (here) [77] stated that the rule in Kenny as it was applied was disproportionate, as it applied the same remedy regardless of the severity of the breach of rights.

Clarke J outlined the correct test which the majority held the courts must now apply in such cases ( see the Court’s Information Note here).

Murray J (here) did not believe that a review of Kenny could be conducted under a s 23 appeal, and he would have dismissed the appeal without considering the issue. But he did express his objection to overturning established authority–citizens rely on definitive statements and interpretations of the law, and overruling long-held authority could bring the administration of justice into disrepute.

McKechnie J said that Kenny was decided correctly and resolved the issue of conflicting judgments that had arisen since O’Brien. He also expressed his difficulty in accepting that the new procedure is workable.

Hardiman J (here) stated that “[f]or 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”. He went on to say that he is “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”.

The majority, however, stated that the courts had to balance the sometimes competing interests of remedying infringements of rights and the courts’ duty to establish guilt or innocence in criminal trials. To do the latter, however, it is necessary to admit all relevant evidence. In addition, the exclusion of evidence which can establish facts for an inadvertant infringement of rights is not a balanced remedy. In many cases, such as this one, the exclusion of compelling evidence can lead to the complete collapse of a trial, even though the investigating gardai had complied fully with the law as it was at the time and did not intend to breach the accused’s rights. There are more appropriate and balanced remedies available to a citizen whose constitutional rights have been infringed, such an an action in tort.

The Court re-listed the case for argument whether a retrial should be permitted.

Possible future developments

O’Donnell J has given a clue to how the rule on admissible evidence could be recalibrated again in a suitable case. In relation to the exemption of extraordinary excusing circumstances, O’Donnell J, with whom three other justices concurred, stated at [34] that:

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.

DPP v C: Court’s Information Note

imgresBelow is the Information Note provided by the Courts Service to members of the media.

Six of the seven justices delivered judgments; all except the Chief Justice.

A post with background details will follow.

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.

  1. 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.
  2. A complicating factor in this appeal was that the law in issue appeared to be clear since the Kenny decision.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. At issue is a question of the admissibility of evidence.
  8. O’Donnell J. has analysed, in his judgment, the sequence of cases in this area of law.
  9. A majority of the Supreme Court determined that there should be described a clear test designed to affect an appropriate balance between competing factors.
  10. Clarke J. set out a test, in his judgment, with which Denham C.J., O’Donnell J. and MacMenamin J. agreed.
  11. The test is as follows:-
    1. 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.
    2. 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:-
    1. that the evidence was not gathered in circumstances of unconstitutionality; or
    2. 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.

    1. Any facts relied on by the prosecution to establish any of the matters referred to at (ii) must be established beyond reasonable doubt.
    2. 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.
    3. 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.
    4. 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.


  1. 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.
  2. 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.
  3. 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.
  4. 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.

McNulty v Ireland: there are limits to which a statute can specify that proof of one fact is evidence of another fact

imagesWhere a statute declares that proof of one fact is evidence of another fact, the fact proven must be reasonably capable of inferring the other fact.


S 41 of the Criminal Justice Act 1999 states:

(1) Without prejudice to any provision made by any other enactment or rule of law, a person—
(a) who (whether inside or outside the State) harms or threatens, menaces or in any other way intimidates or puts in fear another person who is assisting in the investigation by the Garda Síochána of an offence or is a witness or potential witness or a juror or potential juror in proceedings for an offence, or a member of his or her family, or his or her civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010,

(b) with the intention thereby of causing the investigation or the course of justice to be obstructed, perverted or interfered with, a member of his or her family,

shall be guilty of an offence.

(3) In proceedings for an offence under this section, proof to the satisfaction of the court or jury, as the case may be, that the accused did an act referred to in subsection (1)(a) shall be evidence that the act was done with the intention required by subsection (1)(b).”
(5) A person guilty of an offence under this section shall be liable –

(a) on summary conviction, to a fine not exceeding €2,500 or imprisonment for a term not exceeding 12 months or both, and
(b) on conviction on indictment, to a fine or imprisonment for a term not exceeding 15 years or both.

McNulty was convicted of assaulting Jones, who was the partner of McNulty’s ex-wife. And between the time of the assault and its trial date, McNulty threatened to assault Jones again. The DPP issued proceedings against McNulty under s 41 of the 1999 Act for attempting to interfere with a witness. McNulty claimed that the threat was a domestic dispute, not an attempt to interfere with a witness.

High Court

McNulty issued plenary proceedings in the High Court seeking a declaration that s 41 of the 1999 Act is unconstitutional as it interferes with the presumption of innocence. He claimed that the statute provided that proof of the act is proof of the intention to commit the offence. That, McNulty argued, is contrary to the requirement in criminal law that the prosecution must prove all the elements of a crime, including intention. The DPP argued that the statute only provided that proof of the act is evidence of intention–not proof: the burden of proving all the elements of the crime remained with the prosecution. The High Court dismissed the action. McNulty appealed to the Supreme Court.

Supreme Court

In argument in the Supreme Court, the justices were mainly concerned with whether it was necessary for conviction under s 41 that the accused had knowledge that the victim was a witness (or other classified person). O’Donnell J referred to The People v Murray and asked counsel whether that assisted McNulty’s case. The DPP conceded that, although s 41 does not state so, for the provision to be constitutional, the prosecution would have to prove that an accused had knowledge that the victim was a classified person.

Rejecting the appeal, Denham J (here) held that under the double construction rule, East Donegal Co-Operative Livestock Marts Ltd v The Attorney General, it was possible to construe s 41 of the 1999 Act in accordance with the Constitution. The other four justices concurred.

Murray J delivered a concurring opinion. In it he held that “there must be limits to which a statute can specify that proof of one fact is evidence of another fact”. The proven “fact must be reasonably capable of giving rise to a conclusion that the latter fact may be inferred” (link to follow). Hardiman, O’Donnell and MacMenamin JJ concurred.

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