Brohoon v Ireland and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Kearns P.
• Judgment Date: 04 March 2011
• Neutral Citation: [2011] IEHC 74
• Judgment citation (vLex): [2011] 3 JIC 0402
• Date: 04 March 2011

[2011] IEHC 74

THE HIGH COURT

[No. 1343 P/2009]

Brohoon v Ireland & Ors

BETWEEN

NOEL BROHOON

PLAINTIFF

AND

IRELAND, THE ATTORNEY GENERAL AND THE DIRECTOR OF PUBLIC PROSECUTIONS

DEFENDANTS

CRIMINAL PROCEDURE ACT 1967 S4(E)(7)

CONSTITUTION ART 40.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 14

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S14

CRIMINAL LAW ACT 1997 S7(2)

CRIMINAL LAW ACT 1997 S7(4)

CRIMINAL JUSTICE ACT 1999 S9

CRIMINAL JUSTICE ACT 1999 PART III

24TH INTERIM REPORT OF THE COMMITTEE ON COURT PRACTICE & PROCEDURE PARA 30(A)

PHIPPS v JUDGE HOGAN & DPP 2008 3 IR 221

SUMMARY JURISDICTION ACT 1857 S2

COURTS (SUPPLEMENTARY PROVISIONS) ACT 1961 S51

COURTS (SUPPLEMENTARY PROVISIONS) ACT 1961 S52

KILLEEN v DPP & ORS 1997 3 IR 218

DPP v KELLIHER UNREP SUPREME 24.6.2000 2000/8/2984

CONSTITUTION ART 34

FITZGERALD v DPP 2003 3 IR 247

CRIMINAL JUSTICE ACT 1994 S40

CRIMINAL JUSTICE ACT 1994 S39

CRIMINAL JUSTICE ACT 2006 S116

CONSTITUTION ART 34.3.4

STATE (HUNT) v DONOVAN 1975 IR 39

TODD v MURPHY 1999 2 IR 1

COURTS AND COURTS OFFICERS ACT 1995 S32

DILLANE v IRELAND 1980 ILRM 167

DCR R.67

F (S) v JUDGE MURPHY & ORS UNREP HEDIGAN 18.11.2009 2009/22/5400 2009 IEHC 497

CONSTITUTIONAL LAW

Statute

Constitutionality of legislation - Personal rights - Equality - Discrimination - Legislative measure objectively justified - Legitimate interest - Whether provision constitutional - Whether defendants had legitimate interest - Whether legislative measure objectively justified - Circuit Court - Preliminary issue - 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 - Fitzgerald v DPProsecutions [2003] 3 IR 247 applied; DPP v Judge Kelliher (Unrep, SC, 24/6/2000), Killeen v DPP [1997] 3 IR 218 and Dillane v Ireland [1980] ILRM 167 considered; State (Hunt) v Donovan [1975] IR 39, Todd v Murphy [1999] 2 IR 1 and SF v Murphy [2009] IEHC 497 (Unrep, Hedigan J,18/11/ 2009) applied - Criminal Procedure Act 1967 (No 12) s 4E (7) - Constitution of Ireland 1937, Articles 38.1, 40.1 and 40.1 - Claim dismissed (2009/1343P - Kearns P - 4/3/2011) [2011] IEHC 74

Brohoon v Ireland

Facts Originally the third named defendant had instituted criminal proceedings against the plaintiff. Counsel for the plaintiff applied pursuant to s.4(E) of the Criminal Procedure Act, 1967 to have the case dismissed. The Circuit Court Judge held that there was more than sufficient evidence to put the plaintiff on trial and refused the said application. The plaintiff wished to the Court of Criminal Appeal but there was no right of appeal available to the plaintiff under the Criminal Procedure Act, 1967. Such an entitlement was available to the prosecution only. The plaintiff instituted proceedings contending that s.4 (E) of the 1967 Act was discriminatory and unconstitutional. On behalf of the State it was submitted that there was no invasion of an accused person's constitutional rights affected by the section. The section conferred a right on an accused to apply for dismissal of charges prior to trial. Even if unsuccessful an accused brought all his rights to the trial and could still complain again at that point about an insufficiency of evidence. There was no requirement in Irish law for an absolute equality of entitlements in every respect on procedural matters as between the prosecution and a defendant. Even when an accused was unsuccessful at his criminal trial he could still appeal to the Court of Criminal Appeal if convicted and thereafter could still seek leave to appeal to the Supreme Court on a point of law. The prosecution had been given a statutory opportunity to appeal a s.4 (E) ruling to dismiss a case on the basis that, without this opportunity, an erroneous ruling on a legal matter with implications for other cases might not again arise as the prosecution would have terminated.

Held by Kearns P in dismissing the case. The prosecution and the defence were in quite different positions and had quite different entitlements in the context of pre-trial applications to dismiss criminal proceedings. Where an application by an accused person to dismiss charges in the Circuit Criminal Court was unsuccessful, the accused had a number of options including judicial review, a case stated to the Supreme Court on a point of law and an appeal on the point to the Court of Criminal Appeal. The need of the prosecution, based on its different role and situation, for such a right was clear and self-evident. A decision by the Circuit Court to dismiss a prosecution under s.4 (E) (4) would mean that the prosecution would not have any recourse to the Court of Criminal Appeal were it not for s.4 (E) (7) of the 1967 Act as the prosecution would have terminated. Procedural disparities might be appropriate to take account of the quite different considerations facing prosecution and defence and the absence of a right of appeal for a defendant would not necessarily offend the equality guarantee contained in Article 40.1 of the Constitution.

Reporter: R.F.

1 JUDGMENT of Kearns P. delivered the 4th day of March, 2011.

2 In these proceedings the plaintiff challenges the constitutionality of s. 4 (E) (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 Court to the Court of Criminal Appeal in a particular circumstance where the third named defendant enjoys such a right of appeal. The plaintiff also seeks a declaration that the said section is in breach of Article 6 and Article 14 of the European Convention on Human Rights on the same grounds. However, in the course of the hearing before this Court, counsel elected to confine his attack on the statutory provision in question to arguments relating to the Constitution.

3 Section 4(E) of the Criminal Procedure Act 1967 provides as follows:

4 2 "4E-(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…

5 (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.

6 (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

7 The facts of this matter may be briefly stated. In April 2007, the third named 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 19 ^th January, 2008.

8 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, 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.

9 On 23 ^rd July, 2008, the plaintiff was returned for trial to the Circuit Criminal Court for Dublin.

10 On 10 ^th November, 2008 counsel for the defendant applied in Dublin Circuit Criminal Court to have the case against him dismissed pursuant to s. 4(E) of the Criminal Procedure Act 1967 which said application was heard by his Honour Judge McCartan.

11 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.

12 The learned Circuit Court Judge refused the said application on the following grounds:

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

14 (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 for by the plaintiff.

15 It is asserted on behalf of the plaintiff that he wishes to appeal the said order but that there is no procedure conferring a right of appeal on the plaintiff pursuant to the Criminal Procedure Act, 1967 or otherwise. Such an entitlement is available to the prosecution only.

16 The present proceedings were commenced by plenary summons on 12 ^th February, 2009, some three months after the order in question was made and some two months after a trial date was set.

SUBMISSIONS OF THE PARTIES

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