Murphy v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 06 November 2015
• Neutral Citation: [2015] IECA 300
• Date: 06 November 2015
• Court: Court of Appeal (Ireland)
• Docket Number: 62/12 63/12

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Conan Murphy and Philip McKevitt

Appellants

[2015] IECA 300

62/12

63/12

THE COURT OF APPEAL

Conviction — Possession of an explosive substance — Re-trial — Appellants seeking to appeal against convictions — Whether there is a clear public interest in a re-trial

Facts: The appellants, Mr Murphy and Mr McKevitt, following a trial in the Special Criminal Court, were convicted of possession of an explosive substance contrary to s. 4 of the Explosives Substance Act 1883. The trial took place between the 29th November, 2011 and the 24th February, 2012. On the 9th March, 2012, each appellant was sentenced to eight and a half years imprisonment. Later, on the 27th July, 2012, both appellants were admitted to bail. The appellants appealed to the Court of Appeal against their convictions on grounds raising issues as to the decision of the Special Criminal Court to admit into evidence material seized on foot of a s. 29 Offences Against the State Act 1998 warrant. There was a stand-alone ground in that respect arising from the refusal of the Special Criminal Court to allow defence counsel to address the court on the significance of the Damache case which had recently been delivered. There were also challenges to the entry onto the premises pursuant to s. 6 of the Criminal Law Act 1997.

Held by Birmingham J that the decision in Damache changed the landscape in a really fundamental way and that the basis on which the Special Criminal Court had been approaching the case that there had been a search conducted on foot of a valid s. 29 warrant was no more. In those circumstances, Birmingham J held that there was clearly a need to permit and indeed require the parties to address the changed circumstances; the parties ought to have been given an opportunity to make submissions and indeed in all likelihood following the submissions the evidence should have been re-opened. In those circumstances the Court of Appeal felt that it must quash the convictions. The Court was of the view that the case for a re-trial was overwhelming; the events which were the subject of trial in substance bomb making were matters of extreme seriousness and the interests of justice required that guilt or otherwise should be determined in a trial conducted to conclusion in due course of law. Birmingham J held that there was a clear and obvious public interest in a re-trial. The Court was satisfied that none of the appellants’ arguments as to the form of the indictment, the ingredients of the offence, whether the items seized came within the terms of the legislation, the lack of evidence, and the challenge to entry, arrest and detention could affect that issue.

Birmingham J held that the Court would quash the conviction and order a re-trial.

Appeal allowed.

Judgment of the Court (ex tempore) delivered on the 6th day of November 2015 byMr. Justice Birmingham

Mr. Justice Birmingham

1 Following a trial in the Special Criminal Court the appellants were convicted of possession of an explosive substance contrary to s. 4 of the Explosives Substance Act 1883, as amended by s. 15(4) of the Offences Against the State Act 1998. The trial took place between the 29^th November, 2011 and the 24^th February, 2012. On the 9^th March, 2012, each appellant was sentenced to eight and a half years imprisonment. Later, on the 27^th July, 2012, both appellants were admitted to bail.

2 A very large number of grounds of appeal have been identified. In summary these raise issues as to the decision of the Special Criminal Court to admit into evidence material seized on foot of a s. 29 Offences Against the State Act warrant.

3 There is a stand alone ground in that respect arising from the refusal of the Special Criminal Court to allow defence counsel to address the court on the significance of theDamache case which had recently been delivered. The court will turn to that issue momentarily.

4 There were also challenges to the entry onto the premises pursuant to s. 6 of the Criminal Law Act 1997. A number of arguments are addressed to that issue and in essence the case made was:

(i) That the court erred in holding that it was open to the gardaí to arrest for a scheduled offence under s. 30 of the Offences Against the State Act, when initial entry was purportedly affected under s. 6 of the Criminal Law Act 1997.

(ii) There were issues raised in relation to arrest and detention. The position of the appellant Mr. McKevitt is differentiated somewhat in that he claimed to have been assaulted by gardaí during the course of the operation.

(iii) There are...