DPP v Mackin (No. 2)

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice Hardiman.
• Judgment Date: 19 July 2010
• Neutral Citation: [2010] IECCA 82
• Date: 19 July 2010

[2010] IECCA 82

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Budd J.

O'Keeffe J.

297/08

DPP v Mackin (No. 2)

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

GERARD MACKIN (No. 2)

Applicant

AG, PEOPLE v GRIFFIN 1974 IR 416

DANGEROUS DRUGS (RAW OPIUM, COCA LEAVES & INDIAN HEMP) REGS 1937 SI 64/1937

CRIMINAL LAW

Evidence

Failure to prove - Proper form - Whether retrial appropriate - The Emergency Powers Bill 1976 [1977] 1 IR 159 applied; People (Attorney General) v Griffin [1974] 1 IR 416 distinguished - Dangerous Drugs (Raw Opium, Coca Leaves and Indian Hemp) Regulations 1937 (SI 64/1937) - Application treated as appeal; appeal allowed; retrial ordered (297/2008 CJA - CCA - 19/7/2010) [2010] IECCA 82

People (DPP) v Mackin (No 2)

Mr. Justice Hardiman.

1 There's one thing I should raise, it has just occurred, reflecting on what had been said in the argument, there is a reference to the other points raised on the grounds of appeal. This point surely would be dispositive of the appeal? Yes? Good.

2 In the circumstances of the case the Court would not feel able to apply the so-called proviso because the points raised in relation to the conduct of the trial go very much to the fundamental nature of a criminal trial in itself and specifically to the nature of a criminal trial as discussed by Chief Justice O'Higgins in the 1976 Bill reference. We would therefore not feel able to suggest or to countenance the view that a departure from the fundamental nature of the criminal trial could nevertheless be dismissed or deprived of effect by virtue of the proviso.

3 The question of a retrial is more difficult because on the one hand it is a case which on our precedents would normally lead to a retrial and it would seem, for the reasons I put to Mr. McDermott, that no injustice would be caused by opting for a retrial since the prosecution either can or cannot prove in proper form the relevant material. One is however giving pause by the strong words of Mr. Justice Henchy in theGriffin case. It occurs to court however that the Griffin case may have presented a rather simpler and less nuanced appearance to those involved in it at the trial and on appeal than this one does. Griffin was to do with a statutory instrument creating the offence charged, Regulations of 1937, and as Mr. Justice Henchy pointed out...