Director of Public Prosecutions -v- J.C., [2015] IESC 31 (2015)

Docket Number:398/2012
Party Name:Director of Public Prosecutions, J.C.
 
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THE SUPREME COURT[Appeal No: 398/2012]

Denham C.J.

Murray J.

Hardiman J.

O’Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Between/

THE DIRECTOR OF PUBLIC PROSECUTIONSProsecutor/Appellantand

J.C.Accused/Respondent

JUDGMENT of Mr. Justice Hardiman delivered the 15th day of April, 2015.

INTRODUCTION

There is hardly a country in the world today which does not boast some form of Constitution, Charter, Bill of Rights or similar document which announces, and promises to respect the Civil and Human Rights of the citizens. But for the great majority of the world’s citizens, those plangent words are of no practical use at all. This is because, though according them verbal respect, most of the world’s courts will not actually enforce the rights which are guaranteed. In particular, they are reluctant to enforce them against their own country’s force publique. I use this phrase to signify not only the police force but the army, the tax collectors, the customs and revenue officials and the whole body of public officials who are vested with coercive and compulsory powers over ordinary citizens, their property, including their homes, their records and papers, their money and monies worth and other aspects of their lives. Even in the area occupied by States who are members of the Council of Europe, the records of the European Courts of Human Rights shows all too clearly that there are States whose courts are unable or unwilling to provide an actual solution to the difficulties of real people who are prejudiced by the unlawful acts of the force publique in the relevant country. Such people are left to seek a remedy in Strasbourg years later.

For 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, as Mr. Justice McCarthy put it in a passage quoted below, even against the force publique. This in turn was because, in the words of Chief Justice Ó Dálaigh:

“… it is not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights should be set at nought or circumvented. The intention was that rights of substance were being assured to the individual and that the Courts were the custodians of those rights”.

I am 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.

In Parts I, V and VI of my judgment I endeavour to illustrate the importance of Kenny and the reasons why I fundamentally dissent from its being cut down.

Perhaps even more importantly, I deprecate the manner in which this is done and I see in it the threat of further disengagement from the rights established in earlier decisions of this Court. I try to explain this in Parts II and III of the judgment.

The State have suggested, albeit very obliquely, that protections of the citizens such as those contained in Kenny are perhaps no longer necessary because of developments since 1990. I consider that this is entirely fallacious and have endeavoured in Part IV to give some examples of the serious causes for concern which presently exist, including the finding by a former President of the High Court that “proper discipline has been lost from An Garda Síochána”.

The rights of the ordinary citizen depend in the first place on the Government’s – successive Governments – being rooted in a tradition of legality and lacking any positive desire to cut down the citizens rights. We in Ireland have been fortunate in enjoying several generations of governance which shares this tradition of legality and respect for civil rights. If, almost impossible to imagine, a government were to come about which was not rooted in the tradition of legality then the writing down of the rights of the citizen which I believe this judgment represents would be all the more hazardous. Judicial care for the rights of the citizen must always take into account what Chief Justice Ó Dálaigh called the contingencies of an “improbable but not to be overlooked future”.

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The Director of Public Prosecutions charged Mr. J.C. with certain offences. On the 18th July, 2012 she brought him to trial for these offences in Waterford Circuit Criminal Court.

On the following day, 19th July, 2012, Mr. J.C. was acquitted of all of these charges. The prosecution dropped its case after a legal ruling by the learned trial judge, Her Honour Judge Mary Ellen Ring, S.C. The reasons why the learned trial judge so ruled are set out, in her own words, from the official transcript, at par. 50 of this judgment. This ruling is admitted to have been correct in law.

Nonetheless, the Director now purports to appeal to this Court against the acquittal of Mr. J.C., allegedly in pursuance of s.23 of the Criminal Procedure Act, 2010. I do not accept that this appeal lies, for the reasons set out in s.II of this judgment. The general background, legal and factual, is set out in Part I, and the important legal issues are surveyed there.

The prosecutor wishes to change the law by this appeal and then to retry Mr. C. in the new state of the law. I do not believe that this would be possible in any other State in the world. It would represent a total negation of the fundamental legal values which apply in Ireland up to the present day, and which have applied for centuries, as will be seen in Part II of this judgment.

Even apart from the foregoing, which itself represents a baneful change in the established constitutional jurisprudence of Ireland, this is profoundly saddening development as far as I am concerned. I discuss two especially threatening aspects of it in the following paragraphs. But before turning to them I wish to make it clear that the manner in which the State have suggested that the Court has jurisdiction in this matter is just as depressing, and just as saddening. It is, if possible, still more threatening for the future because it is based on a mode of construction of a statute – s.23 of the Criminal Procedure Act, 2010 – which is at variance with the ordinary meaning of the English language which, if more widely adopted, would mean that words have no specific meaning and therefore that rights, which are expressed in words, can be reduced to meaningless, to mere words on a page without any practical consequences. The State’s submissions in this regard were based on a sort of Orwellian dissonance which I cannot too strongly deplore. This most unfortunate aspect of the present case is dealt with below, at the end of Part II of the judgment.

I object as strongly as I can to two aspects, in particular, of the proposed result of this case. The first is that it would permit a retrial for the same offence after a lawful acquittal on a trial for that self-same offence, and after the law itself had been changed by this Court to the advantage of the prosecution and the gross disadvantage of the defendant. If this is deemed permissible Ireland will, as far as I can see, be unique in the world in permitting it. It does not at all mitigate this concern that this Court may not actually order a retrial in the particular case of Mr. J.C.: a Rubicon has been crossed and the nature of a trial with “due course of law” has been altered for the immediate future and perhaps forever.

The State strongly submitted on the hearing of this appeal that the Court should proceed first to resolve the issue of whether Judge Ring “erroneously” excluded evidence and only if that were so should proceed to a separate hearing on the question of whether or not there should be a retrial. This submission was based on tactical grounds. If no retrial is directed, the acquittal must be affirmed, see s.23(ii)(b). This appears to be agreed by the majority.

Since I consider that this appeal is incompetent and does not lie (because it can “only” be entertained if there has been error by the trial judge and here there was no error by the Judge Ring) it follows that there can be no question of a retrial. Accordingly, I have felt free to express the opinion, in this judgment, which is obviously obiter, that a retrial in the circumstances of this case would be at variance with the Constitution and in breach of our international obligations. The reasoning behind this conclusion is set out at Part II. I adhere to this view even if no retrial is in fact ordered in the present case, on some discretionary ground.

I believe that the foregoing raises serious questions as to whether s.23 of the Criminal Procedure Act of 2010 as construed in this case is consistent with the Constitution or with Article 6 of the European Convention on Human Rights. Neither of these points was argued, for reasons which I do not find easy to understand. I have not discussed the question of constitutionality in view of this omission. I do however conclude that a retrial of Mr. C. would not be a trial in due course of law as required by Article 38.1 of the Constitution. Having regard to the terms of the Human Rights Act of 2003, and its mandatory effect on the manner of construction of s.23, I have ventured briefly to discuss the relevant convention jurisprudence, notwithstanding that the point was not argued. But because of the omission, I have reached no conclusion on the matter. The question of whether the trial judge had erred was not the subject of argument by the respondent. I was more than surprised at this omission. But since the matter is one going to jurisdiction, I have not felt inhibited in addressing it.

The second aspect of the result of this case to which I most profoundly object is the finding that “inadvertence” by public officials with coercive...

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