DPP v Campbell

• Jurisdiction: Ireland
• Judge: Keane, C.J.,FENNELLY J.
• Judgment Date: 23 April 2004
• Neutral Citation: [2004] IESC 26
• Docket Number: [S.C. No. 93 of 2004]
• Court: Supreme Court
• Date: 23 April 2004

[2004] IESC 26

THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

Hardiman J.

Fennelly J.

93/04

DPP v. CAMPBELL

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROESECUTIONS

RESPONDENT

AND

LIAM CAMPBELL

APPLICANT/APPELLANT

Citations:

OFFENCES AGAINST THE STATE ACT 1939 S21

CRIMINAL LAW ACT 1976 S2(6)

COURTS OF JUSTICE ACT 1928 S5(1)(B)

OFFENCES AGAINST THE STATE ACT 1939 S19

COURTS OF JUSTICE ACT 1939 S19

COURTS OF JUSTICE ACT 1924 S29

UNLAWFUL ORGANISATION (SUPPRESSION) ORDER 1939 S R & O 162/1939

DPP V O'CALLAGHAN 2004 1 ILRM 438

DPP V SWEETMAN UNREP CCA 30.7.2002

AG V KENNEDY 1946 IR 517

Synopsis:

- [2004] 2 IR 64 - [2004] 2 ILRM 412

The Court of Criminal Appeal (CCA) quashed the applicant's conviction of membership of an unlawful organisation. The court, however, in the exercise of its jurisdiction under s. 5(1)(b) of the Courts of Justice Act, 1928 ordered a retrial. Subsequently, the CCA granted a certificate pursuant to s. 29 of the Courts of Justice Act, 1924 to the applicant that its decision of 19/12/03 involved a point of law of exceptional public importance namely and that it was desirable in the public interest that an appeal should be taken to the Supreme Court from that decision. The respondent raised a preliminary issue that in circumstances where the applicant's conviction had been quashed he was not entitled to seek a certificate pursuant to s.29.

Held by the Supreme Court (Keane C.J., Denham, Murray, Hardiman, Fennelly JJ) in deciding the preliminary issue in favour of the respondent: That section 29 did not confer a right of appeal to this court on an applicant whose conviction had been quashed and a retrial ordered by the CCA.

D.P.P v Keith O' Callaghan (unreported decision of Supreme Court; judgment delivered 16 January, 2004) followed and applied.

Reporter: L.O'S.

1 JUDGMENT delivered the 23rd day of April2004by Keane, C.J.

Introduction

2 The applicant was prosecuted in the Special Criminal Court on a charge of membership of an unlawful organisation, i.e., an organisation styling itself The Irish Republican Army, otherwise Oglaigh na hÉireann,otherwise the I.R.A. contrary to s. 21 of the Offences Against the State Act, 1939as amended by s. 2(6) of the Criminal Law Act, 1976. He was convicted of that offence and sentenced to a term of five years imprisonment, the last three months being suspended. Leave to appealboth the conviction and the sentence having been refused by the court of trial, he applied to the Court of Criminal Appeal for leave to appeal both as regards conviction and sentence.

3 A number of grounds of appeal were relied on before the Court of Criminal Appeal. Some of them related to rulings made by the Special Criminal Court during the course of the trial. In the judgment of the court delivered by

4 M ^cGuinness, J. on the 19 ^th December, 2003, one of these grounds – that a particular line of cross-examination of the applicant should not have been permitted – was upheld. On that ground, accordingly, the applicant's appeal was allowed and his conviction quashed. The court, however, in the exercise of its jurisdiction under s. 5(1)(b) of the Courts of Justice Act, 1928ordered a retrial.

5 The applicant had also relied before the Court of Criminal Appeal on the following ground of appeal:-

"[The Special Criminal Court] erred in holding that the"Real I.R.A." was a proscribed organisation within the terms of theSuppression Order published pursuant to s. 19 of the Offences Against the State Act, 1939."

6 In its judgment the court concluded that this ground had not been established. The applicant thereupon applied to the court for a certificate pursuant to s. 29 of the Courts of Justice Act, 1924that its decision of the 19 ^th December, 2003 involved a point of law for exceptional public importance, i.e.

"does the Unlawful Organisation (Suppression) Order (S.R.& O. No. 162 of 1939) issued in 1939, pursuant to s. 19 of the Offence against the State Act, 1939, have application to an organisation which came into existence in or about the year 1997?"

7 and that it was desirable in the public interest that an appeal should be taken to this court from that decision. That application was granted by the Court of Criminal Appeal on the 23 ^rd February 2004. It appears from the ex-tempore judgment of the court, again delivered by McGuinness, J. on that occasion, that the respondent opposed the application, principally on the ground that in a situation where the applicant's conviction was quashed it was not open to him to seek a certificate pursuant to s. 29. It also appears that the court was informed on that occasion that the retrialwas listed for next May, that the applicant was also facing an additional charge of membership of the Real I.R.A. and that the trial on that charge was listed for July.

8 It was submitted on behalf of the applicant that he was entitled to know what the law was when he was facing a retrial. While the court accepted that it would be functus officio if no retrial had been ordered, it was of the view that the situation was somewhat different where the applicant was facing a retrial. Since the court was satisfied that the point of law relied on by the applicant was of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court on that point, it granted the certificate sought by the applicant.

9 In the written submissions lodged on behalf of the respondent to this court, this preliminary objection to this court's jurisdiction to hear the appeal was renewed. The court decided to hear oral submissions from both parties on this preliminary issue as to its jurisdiction to hear the appeal and, having heard the submissions, reserved itsjudgment.

Submissions of the parties

10 On behalf of the respondent, Mr George Birmingham SC submitted that the determination of the Court of Criminal Appeal was ordinarily final and that it was only in limited circumstances that an appeal could be brought to this court. No such appeal could be brought save in the case of a convicted person, and the applicant's conviction...