Brohoon v Ireland

JurisdictionIreland
Judgment Date04 March 2011
Docket Number[2009 No.
Date04 March 2011
CourtHigh Court

High Court

[2009 No. 1343P]
Brohoon v. Ireland
Noel Brohoon
Plaintiff
and
Ireland, The Attorney General and The Director of Public Prosecutions
Defendants

Cases mentioned in this report:-

Dillane v. Ireland [1980] I.L.R.M. 167.

Director of Public Prosecutions v. Kelliher(Unreported, Supreme Court, 24th June, 2000).

S.F. v. Murphy [2009] IEHC 497, (Unreported, High Court, Hedigan J., 18th November, 2009).

Fitzgerald v. Director of Public Prosecutions [2003] 3 I.R. 247; [2003] 2 I.L.R.M. 537.

Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218; [1998] 1 I.L.R.M. 1.

Phipps v. Hogan [2007] IESC 68, [2008] 3 I.R. 221; [2008] 2 I.L.R.M. 208.

The State (Hunt) v. O'Donovan [1975] I.R. 39.

Todd v. Murphy [1999] 2 I.R. 1; [1999] 1 I.L.R.M. 261.

Constitution - Statute - Constitutionality - Personal rights - Equality - Discrimination - Legitimate interest - Criminal proceedings - Mutuality - Right of appeal - Whether defendants had legitimate interest - Whether legislative measure objectively justified - Application to determine whether sufficient case to put accused on trial - Appeal against order deeming sufficient case - Appeal on decision not available to accused but available to prosecution -Mutuality of procedures - Whether affording right to appeal to prosecution and not to accused unconstitutional - Whether right to mutuality of procedures - Criminal Procedure Act 1967 (No. 12), s. 4E(7) - Constitution of Ireland 1937, Articles 38.1, 40.1 and 40.1.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Kearns P., infra.

The plaintiff issued his proceedings by way of plenary summons dated the 12th February, 2009. The plaintiff challenged the constitutionality of s. 4E(7) of the Criminal Procedure Act 1967 and sought a declaration that the said section was in breach of Articles 38.1, 40.1 and 40.3 of the Constitution.

The matter was heard by the High Court (Kearns P.) on the 20th January, 2011.

The plaintiff was charged with a criminal offence and was returned for trial to the Circuit Criminal Court. The plaintiff applied in the Circuit Criminal Court to have the case against him dismissed pursuant to s. 4E of the Criminal Procedure Act 1967 on the basis that the his actions as alleged in the book of evidence did not amount to the offence with which he had been charged. The trial judge refused the application.

The plaintiff claimed that he wished to appeal the decision of the trial judge to the Court of Criminal Appeal but there was no procedure conferring a right of appeal on the plaintiff pursuant to the Act or otherwise. Such an entitlement was available in to the prosecution only. The plaintiff submitted that the provision confining the right of appeal to the prosecution was unconstitutional and discriminatory. The defendants submitted that there was no invasion of the plaintiff's constitutional rights and that there was no requirement in Irish law for an absolute equality of entitlements in every respect on procedural matters between the prosecution and a defendant.

Held by the High Court (Kearns P.), in dismissing the plaintiff's claim, 1, that there was no absolute right to a mutuality of procedures in criminal proceedings. Procedural disparities might be appropriate to take account of quite different considerations facing the prosecution and the defence. The defendants had identified a legitimate concern which required and justified different treatment in the instant case between the prosecution and defence.

Fitzgerald v. Director of Public Prosecutions [2003] 3 I.R. 247 applied; Director of Public Prosecutions v. Judge Kelliher(Unreported, Supreme Court, 24th June, 2000),Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218 and Dillane v. Ireland [1980] I.L.R.M. 167considered.

2. That the absence of a right of appeal for a defendant would not necessarily offend the equality guarantee contained in the Constitution or otherwise amount to an unjust attack on an accused person's constitutional rights in circumstances where, objectively viewed in the light of the different role and function of the two parties, the legislative provision might be seen as necessary or desirable to address a legitimate concern.

The State (Hunt) v. O'Donovan [1975] I.R. 39,Todd v. Murphy [1999] 2 I.R. 1 and S.F. v. Murphy [2009] IEHC 497, (Unreported, High Court, Hedigan J., 18th November, 2009) followed.

Cur. adv. vult.

Kearns P.

4th March, 2011

[1] In these proceedings the plaintiff challenges the constitutionality of s. 4E(7) of the Criminal Procedure Act 1967 and seeks a declaration that the said section is in breach of Article 40.1 and/or Article 38.1 and/or Article 40.3 of the Constitution in that it discriminates against the plaintiff by not providing an appeal against the decision of the Circuit Criminal Court to the Court of Criminal Appeal in a particular circumstance where the third defendant enjoys such a right of appeal. The plaintiff also seeks a declaration that the said section is in breach of articles 6 and 14 of the European Convention on Human Rights 1950 on the same grounds. However, in the course of the hearing before this court, counsel for the plaintiff elected to confine his attack on the statutory provision in question to arguments relating to the Constitution.

[2] Section 4E of the Criminal Procedure Act 1967, as inserted by s. 9 of the Criminal Justice Act 1999, provides as follows:-

"(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused …

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge …

(7) Where a charge is dismissed by the trial court under subsection (4), the prosecutor may within 21 days after the dismissal date, appeal against the dismissal to the Court of Criminal Appeal."

Background

[3] The facts of this matter may be briefly stated. In April, 2007, the third defendant instituted criminal proceedings against the plaintiff by way of charge sheet no. 741253 in respect of a criminal offence alleged to have been committed on the 19th January, 2008.

[4] The plaintiff was charged that on that date, whereas another person had committed an arrestable offence, namely robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, knowing or believing that said person to be guilty of the said offence or some other arrestable offence, the plaintiff did without reasonable excuse an act with intent to impede the apprehension or prosecution of the said person contrary to s. 7(2) and (4) of the Criminal Law Act 1997.

[5] On the 23rd July, 2008, the plaintiff was returned for trial to the Circuit Criminal Court for Dublin.

[6] On the 10th November, 2008, counsel for the plaintiff applied in Dublin Circuit Criminal Court to have the case against him dismissed pursuant to s. 4E of the Criminal Procedure Act 1967 which said application was heard by Judge McCartan.

[7] The basis of the application was that the plaintiff's alleged actions as described in the book of evidence did not amount to impeding the apprehension or prosecution of another named person. In particular, it was argued that while the plaintiff's alleged actions as described in the book of evidence could lead to an inference that he was complicit in the crime of robbery, they did not establish that he was in some way complicit in impeding the apprehension or prosecution of an individual. It was submitted that a proper construction of the statutory offence of impeding the apprehension or prosecution of a person as set out in s. 7(2) of the Criminal Law Act 1997 requires that the prosecution establish that the accused, by some positive action, assisted another person to escape either apprehension or prosecution.

[8] The trial judge refused the said application on the following grounds:-

  • (a) he was satisfied that there was more than sufficient evidence to put the plaintiff on trial;

  • (b) the interpretation of the offence of assisting an offender as set out in s. 7(2) of the Criminal Law Act 1997 was not as narrow as had been contended...

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