The People (Director of Public Prosecutions) v J.C.

JudgeMr. Justice John Murray,Mr. Justice Hardiman,O'Donnell J.,Mr. Justice William M. McKechnie,Mr. Justice Clarke,Mr. Justice John MacMenamin
Judgment Date15 April 2015
Neutral Citation[2015] IESC 31
CourtSupreme Court
Docket Number398/2012,[S.C. No. 398 of 2012]
Date15 April 2015
The People at the Suit of the Director of Public Prosecutions

[2015] IESC 31

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.



Criminal Procedure Act 2010, S.23

Crime & sentencing – Evidence –Admission – Exclusion of evidence – DPP v Kenny rule – Appeals to Supreme Court by DPP –S 23 Criminal Procedure Act 2010

Facts: The respondent was on trial at the Central Criminal Court in respect of alleged offences involving robberies at a bookmaker’s premises. The trial judge decided to exclude evidence on the basis of the rule on excluding evidence set out in DPP v Kenny [1990] 2 IR 110. The appellant appealed to the Supreme Court under s 23 of the Criminal Procedure Act 2010. Two issues arose, namely whether such an appeal could be brought under s 23, and whether the DPP v Kenny rule was correct.

Held by a majority of the Court, that an appeal did lie under s 23. If the decision to exclude evidence was incorrect, then that was an error even if the trial judge was bound to follow the DPP v Kenny rule. Having considered the relevant evidence, The Court was satisfied the evidence excluded could be described as “compelling” for the purposes of s 23.

In respect of the DPP v Kenny rule, the Court reviewed the earlier case law on the matter, and proposed that a new test be set out in order to balance competing factors where a dispute arose about the admission of evidence. Clarke J proposed a new test, with which the majority agreed, notwithstanding Hardiman J’s criticisms. DPP v Kenny [1990] 2 IR 110 departed from, People (Attorney General) v O'Brien [1965] IR 142 considered.

JUDGMENT of Mr. Justice John Murray delivered the 15th day of April, 2015

Justice Owen Roberts of the United States Supreme Court warned that the then stance of his court in overturning contemporary constitutional precedent tended to bring adjudications of this tribunal into the same class as a restricted railroad ticket, good for this day and train only. I have no assurance … that the opinion announced today may not be shortly repudiated and overruled by justices who deem they have new light on the subject”. ( Smyth v. Allwright, 321, U.S. 649, 669 [1944]).


This statement has a resonance in the present case, even if from a different perspective. In this case the respondent and his counsel relied at the trial in which he was acquitted on the law as laid down by this Court in DPP v. Kenny concerning the exclusion of evidence obtained in breach of the accused's constitutional rights. Under our constitutional structure the Supreme Court is the final interpreter of the law, statutes and the Constitution. Citizens rely on such definitive statements or interpretations of the law. That is what the respondent did in this case in the conduct of his, successful, defence to the charges against him. The trial judge relied and applied the law precisely as the Supreme Court said she should. She was bound to do so. At the trial the DPP did not take issue with the correctness of her decision, and accepts in this appeal, as she was bound to do so, that the trial judge applied the law correctly and as she was bound to apply it during the trial.


A consequence of a successful appeal by the DPP in this case means that the established law, or if you like the ticket, on which the accused relied upon in this case, may have lasted the day but it is to be deemed, retrospectively, not even valid for the journey, since the prosecution seeks to obliterate the fact that the accused's destination, an acquittal in a jury trial, was reached in accordance with that established law at the trial, and to return the respondent to the starting point of his journey in a new trial, with a new ticket with new restrictive conditions imposed retrospectively. This is the consequence of the DPP relying successfully on s.23 of the Criminal Procedure Act, 2010 by characterising the ruling of the trial judge in this case as retrospectively “ erroneous”, because the majority of the Court today considers that the rule in the Kenny case should have a different ‘calibration’. Overruling established law, as set out in The People v. Kenny, of this Court is only incidental to that consequence.


A citizen who is tried and acquitted on a criminal charge tried before a judge and jury in accordance with established principles of law, which the trial judge applied and was bound to apply, could well expect that he could not be tried again for the same offence, least of all because the trial judge made an allegedly “ erroneous” ruling on the law in the course of the trial. Yet this is what the DPP argued the Oireachtas intended to happen.


Such a citizen might be reinforced in that expectation (and perhaps have a sense of frustration and even bitterness) because at his or her trial the People, in whose name the prosecution is brought by the DPP, accepted and approved of the trial judge's ruling in law, and that it was one which the trial judge was bound to make. Yet the DPP argues in this case says that such a ruling by a trial judge may nonetheless be retrospectively characterised as “ erroneous” and thus expose a citizen to being tried again for the same offence.


It is one thing for the prosecution to have a right of appeal where a trial judge, in making a ruling at a trial on the admissibility of evidence, acted erroneously where it is claimed that the trial judge during a trial misinterpreted or misapplied the applicable law.


It is altogether another matter when the trial judge has correctly applied the applicable law at the trial. This is what makes this case special.


The entitlement of the DPP to appeal against an acquittal, a verdict of not guilty, in a trial on indictment is a break from the centuries old common law prohibition against double jeopardy, as applied to the prosecution for serious criminal offences.


The legislature, within the limits of the Constitution and the principles of constitutional justice deriving from it, may provide for exceptions to the double jeopardy principle. But such statutory exceptions to fundamental principles must be stated clearly as explained later in this judgment.

Background Facts

The facts and circumstances of the case are not in controversy. I would just set out succinctly the salient elements of the case. The respondent, J.C., was tried for certain robbery offences before a judge and jury at the Circuit Criminal Court. During the course of the trial, evidence which the prosecution sought to introduce, was excluded on the basis of an application of the exclusionary rule, as laid down by this Court in DPP v. Kenny [1990] 2 I.R. 110. In an uncontroversial application of the law as laid down by this Court in the Kenny case, the trial judge excluded six statements made by the accused, three of which were inculpatory, because the accused at the time when the statements were made was unlawfully detained in custody by the gardai. It is not disputed by the DPP (and was not at the trial) that the trial judge was bound, as a matter of law, as laid down by this Court in Kenny, to exclude the evidence in question as inadmissible. Following the ruling of the trial judge the case proceeded without the prosecution offering any further evidence. There being insufficient evidence at the conclusion of the prosecution case on foot of which a jury could reasonably convict, the jury were directed by the trial judge to bring in a verdict of not guilty. No issue is raised concerning the correctness in law of the direction to the jury at that point, or the consequential verdict of acquittal of the respondent.


That verdict of not guilty, by a court of competent jurisdiction in full accord with the law as applicable at the trial, is final and conclusive, or at least it would be if the rule against double jeopardy, which has been a fundamental principle of the common law, and other legal systems, for centuries (see below), continues to apply.


The DPP, being dissatisfied with the existing rule of law, as laid down in Kenny, applied at the time by the trial judge, could have appealed to this Court on that question of law without prejudice to the verdict of not guilty, pursuant to s.34 of the Criminal Procedure Act, 1967 (as amended). This is considered further at paragraph 101 of this judgment.


Instead, the DPP has appealed pursuant to s.23 of the Criminal Procedure Act, 2010. This permits, as an exception to the rule against double jeopardy, a ‘with prejudice’ appeal by the DPP to set aside a verdict of not guilty where, inter alia, the trial judge made an “ erroneous” ruling “ during the course of a trial”, excluding “ compelling evidence” as specifically defined in that section.


In this case, in seeking to rely on s.23, the DPP seeks to have the rule of law on the admissibility of certain evidence, as laid down in DPP v. Kenny 15 years ago, overruled or limited in its application, so as to provide a basis upon which the evidence excluded by the trial judge at the first trial could be admitted at a second trial of the respondent on the same charges.


Thus, the DPP asks the Court to retrospectively deem the correct ruling in law of the trial judge to be nonetheless an “ erroneous” ruling.

The First Fundamental Issue

The fundamental issue which first arises in this case is whether s.23 of the Act of 2010 can properly be interpreted as giving the DPP a right of appeal in the circumstances of this case, where the trial judge is not alleged to have erroneously applied a rule of law which she was required by judicial decision to apply during the course of the trial, but the rule of law was subsequently changed by a judicial decision of this Court.


The relevant provisions of s.23 of the Criminal Procedure Act, 2010 are...

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