A review of the jurisprudence of the court of criminal appeal 2002-2004: principles and general themes

• Author: J. Paul Mccutcheon - Laraine Hanlon
• Position: School of Law, University of Limerick
• Pages: 213-270

AREVIEW OF THE JURISPRUDENCE OF THE

COURT OF CRIMINAL APPEAL 2002-2004:

PRINCIPLES AND GENERAL THEMES

PROFESSOR J. PAUL MCCUTCHEON AND LARAINE

HANLON*

I. INTRODUCTION

The Court of Criminal Appeal (CCA) plays a crucial role in

shaping criminal law, criminal procedure and sentencing. The

significance of its judgments reaches beyond the courts over which it

exercises appellate jurisdiction. In this context, the rulings of the

Court on the interpretation of the law and on the principles, policies

and methodology of sentencing are as relevant to the District Court

as they are to the courts that try indictable offences. In turn, District

Judges can properly expect guidance on these matters from the

jurisprudence of the CCA.

This paper reviews judgments delivered by the CCA between

1January 2002 and 31 July 2004. The purpose of the survey is to

sketch the general themes in the case law and to identify the

principles invoked by the Court. The subject matter of this review is

the documented decisions of the CCA in the relevant period,

consisting of reserved judgments, approved ex tempore judgments

and unapproved ex tempore judgments.1The first two categories of

judgment may be cited in courtand accordingly they enjoy the

authority that is attributed to decisions of the CCA. In general,

unapproved ex tempore judgments are not cited and they lack any

real weight as precedents. Moreover,the manner in which such

judgments arerecorded is often uneven and hence they are not

especially reliable. Nevertheless, for several reasons, it is useful to

2005]

A Review of the Jurisprudence of the Court of

Criminal Appeal 2002-2004:

Principles and General Themes

213

*School of Law, University of Limerick. The authors were facilitated with access to the Office

of the Courtof Criminal Appeal. They wish to express their gratitude to Ms Geraldine

Manners, Registrar of the Court of Criminal Appeal, and her staff for their support and

unfailing courtesy. A version of this paper was delivered to the National Judicial Conference

in November 2004. The authors are grateful for the comments and suggestions made by

members of the judiciary.Any errors are exclusively those of the authors.

1Judgments that were not recorded in written form were not considered. The reasons for

undocumented judgments include faulty audio recording of hearings, delays in the receipt of

written judgments and judgments missing from the files.

include the unapproved judgments in this review.2First, those

judgments form a significant portion of the output of the Court.

Second, such judgments provide evidence of the general trends in the

jurisprudence. Third, occasionally an unapproved judgment may

contain a novel point or judicial pronouncement. In any event, a

more complete picture of the work of the Court is provided when the

full corpus of available judgments is considered.

The current study reviewed 446 judgments, of which 174

were delivered in 2002, 168 in 2003 and 104 between 1 January and

31 July 2004.3Reserved judgments were delivered in 82 cases, while

131 approved ex tempore judgments and 233 unapproved ex

tempore judgments werehanded down in the review period. Appeals

against conviction and appeals against sentence accounted for the

majority of cases. Other cases that were dealt with by the Court

include appeals by the Director of Public Prosecutions against

leniency of sentence, bail applications and applications for section

29 certificates account. Table 1 sets out the details of the judgments

that have been reviewed.

214 [5:1Judicial Studies Institute Journal

2Unapproved ex tempore judgments are identified in this paper in the following manner:

People (DPP) v Kelly 21 March 2002 (ex temp).

3The data presented by the authors in this paper (the UL data) differs from that provided by

the Court of Criminal Appeal office (the CCA data). The CCA data discloses that 556 cases

were disposed of in 2002 and 2003 (figures for 2004 are currently unavailable): of those cases

226 are recorded as having been abandoned, leaving a total of 330 cases. The UL total for the

same period is 342 cases. In the main, the CCA data records inputs (cases initiated) while the

UL data reflects outputs (judgments delivered). The principal methodological differences are:

(i) CCA practice is to count each applicant/appellant once irrespective of the number of

hearings involved in his/her case; the UL data counts each judgment delivered. It is conceivable

that four judgments might be delivered in relation to one set of proceedings: the CCA data will

recordone case while the UL data will record four judgments. (ii) DPP appeals and miscarriage

of justice cases areincluded in the UL data but areexcluded from the CCA data.

Table 1: Judgments of Court of Criminal Appeal Jan 2002-July

2004

Appeals against conviction, appeals against sentence, appeals

against both conviction and sentence and DPP appeals accounted for

381 cases. The outcomes of those appeals arelisted in Table 2. In all,

just shortof half of all appeals weresuccessful: appeals were allowed

in 47% of the cases reviewed and rejected in 50% of such cases.

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A Review of the Jurisprudence of the Court of

Criminal Appeal 2002-2004:

Principles and General Themes

215

2002 2003 Jan-July Total

2004

Appeal against 45 (26%) 31 (18%) 30 (28%) 106 (24%)

conviction

Appeal against 77 (44%) 89 (53%) 36 (34%) 202 (45%)

sentence

Appeal against 5 (3%) 11 (7%) 8 (8.5%) 24 (5%)

conviction and

sentence

DPP appeal: 18 (10.5%) 17 (10%) 14 (13%) 49 (11%)

leniency of

sentence

Activated 1 (0.5%) 1 (0.5%) 1 (1%) 3 (0.75%)

suspended

sentences

Suspension of 1 (0.5%) - - - - 1 (0.25%)

balance sentence

Suspension of 1 (0.5%) - - - - 1 (0.25%)

conditions

Restoration of - - 1 (0.5%) - - 1 (0.25%)

licence

Section 29 9 (5%) 4 (2%) 7 (7.5%) 20 (4.5%)

certificate

Section 9 2 (1%) - - - - 2 (0.5%)

certificate

New evidence - - - - 2 (2%) 2 (0.5%)

Bail application 15 (9%) 9 (5%) 4 (4%) 28 (6.25%)

pending appeal

Variation of bail - - 1 (1%) - - 1 (0.25%)

conditions

To amend on - - 1 (0.5%) - - 1 (0.25%)

grounds of appeal

Disclosure - - 1 (0.5%) - - 1 (0.25%)

application

Copy/transcript - - 1 (0.5%) - - 1 (0.25%)

application

Application for - - - - 1 (1%) 1 (0.25%)

legal aid

Application for - - - - 1 (1%) 1 (0.25%)

costs

Omitted from - - 1 (0.5%) - - 1 (0.25%)

judgment

Total 174 168 107 446