Director of Public Prosecutions -v- McKevitt, [2014] IECCA 19 (2014)

Docket Number:263CPA/12
Party Name:Director of Public Prosecutions, McKevitt
Judge:MacMenamin J.


[CCA No. 263/CPA/12]

MacMenamin J.

McGovern J.

Edwards J.





JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.

In this application the court is asked to certify two questions set out below as being matters of exceptional public importance such that it is in the interests of justice that they be heard and determined by the Supreme Court. These matters are:

“(i) Whether a subsequent judgment which establishes that unconstitutionally obtained evidence was adduced against a convicted person at trial could amount to a “newly discovered fact” within the meaning of S. 2 of the Criminal Procedure Act 1993

(ii) Whether a convicted person must have expressly raised or demonstrated, either at their trial or prior to their conviction, their objection to the use of an unconstitutional statutory provision, in order to avail of a later declaration of unconstitutionality of the said provision obtained by another litigant”.

The circumstances in which this application arises are described in the judgment of this court delivered on 19th April 2013. It is unnecessary to reiterate them here. The gist of this application is to the effect that the judgment of the Supreme Court in DPP v Damache [2012] might arguably amount to a “newly discovered fact” within the meaning of S. 2 of the Criminal Procedure Act 1993. Second that the principles annunicated in The People (DPP) v Cronin (No 2) [2006] 4 I.R. 329 should apply in such a situation.

In Damache this court held that S. 29 of the Offences against the State Act 1939 was inconsistent with the Constitution of Ireland. The section permitted a member of An Garda Síochána not below the rank of Superintendent to issue a search warrant in certain specified circumstances. The Section did not stipulate that such a warrant might only be issued by members of that rank who are independent of the relevant investigation. The Section was found to be repugnant to the Constitution on the basis that the administrative act of issuing a warrant should not be carried out by a Garda Superintendent who was involved in an investigation or prosecution as this offended against the principles of fair procedures and nemo udex in sua causa.

As the earlier judgment of the court set out the search carried out on the applicant’s house now more than 10 years ago took place on foot of a warrant issued by Detective Superindent Peter Maguire of An Garda Síochána who was involved in the investigation and prosecution of the applicant. On the basis of judgment in Damache the applicant sought to...

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