The Gazette 1983

MARCH 1983

GAZETTE

appeal procedure, and relegates the status of the Court of Criminal Appeal. It will cause discrimination on an arbitrary basis between accused persons tried in the different Courts. It imposes, I submit, an unfair burden on an accused who has been acquitted in the Central Criminal Court. For these reasons, I would submit that the strong dissenting judgments of Henchy J. and Finlay P. are to be preferred. However, the majority decision is now settled law, and it is to be hoped that when the Court eventually comes to give its judgment on the substantive issue, it will set out proper detailed safeguards which will go someway to alleviate some of the problems associated with the decision. •

treatment on Appeal within the ambit of the "saving clause" in Article 40.1. Furthermore, how can the life and person of an acquitted accused be protected and vindicated as is required by Article 40.3. if, as Henchy J. states, he can be vexed with the question of his guilt or innocence again and again? For that reason alone, an acquittal ought to be final. Article 34.4.3° The final criticism of the "O'Shea" decision is based on the very wording of article 34.4.3° itself. The Legislature is empowered under that sub-section to prescribe exceptions and make regulations curtailing the appellate jurisdiction of the Supreme Court. The original Court of Criminal Appeal was set up in 1924. 33 The present Court was established in 1961. 34 Its decisions are expressed to be final and unappealable. Until "Conmey", with possibly two exceptions 35 neither the Attorney General nor defence practitioners ever sought (or perhaps ever thought) to by-pass this Court and proceed directly to the Supreme Court. In some circumstances, it was felt that the Supreme Court ought to have jurisdiction to rule on a particular point and so the Legislature had enacted Section 29 of the Courts of Justice Act 1924. If a Certificate was granted under this Section, an appellant could appeal on to the Supreme Court. There was nothing specific in this section preventing the A.G. appealing against an acquittal in the Court of Criminal Appeal, but in People (A. G.) v. Kennedy 36 the Supreme Court, following the principles earlier outlined, held that such appeal did not lie. The rule in " O'Shea " now renders Section 29 obsolete in relation to decisions of the Central Criminal Court. The Legislature also enacted Section 34 of the Criminal Procedure Act 1967 in a conscious effort to remove a problem associated with the sanctity of acquittals. If a trial judge directed a jury to acquit an accused on a point of law, the .A.G. was empowered under this Section to refer that point of law to the Supreme Court for their decision, but without prejudice to the verdict of acquittal. The Supreme Court could therefore lay down the correct interpretation of the law for future cases. The Legislature therefore recognised that a problem existed but they were not prepared to enact legislation allowing for an appeal against acquittals based on an erroneous view of the law. This section is now redundant in relation to trials before the Central Criminal Court. None of this legislation was expressed to be for the purpose of excepting from or regulating the appellate jurisdiction of the Supreme Court, but it is difficult to imagine the Legislature creating a new Court administration and new rules and procedures governing that administration unless that is what the Legislature intended to do. Not all legislation that impinges on constitutional provisions is expressed to be for that purpose, and I would submit that the main reason the legislation and regulations do not mention the constitution is that for a period of fifty years, nobody had adverted to the fact that the enactments might conflict with Article 34.4.3°. The O'Shea decision therefore reverses over one hundred years of precedent and almost eighty years of legislation. It interferes drastically with the constitutional right to trial by jury, and it may eventually lead to the substitution of a decision of a non-jury court for the verdict of a jury. It will cause confusion in the whole

Footnotes 1. [1908] 2 IR. 431.

2. D.P.P. v. O'Shea. On the 19 January, 1983 the Supreme Court heard the appeal of the DPP on its merits and dismissed it without reserving judgment. Mr. O'Shea was discharged. 3. 7 Q.B.D. 198. 4. [1964] IR. 395. 5. [1975] IR. 341. 6. Section 11 Courts (Supplemental Provisions) Act 1961. 7. In this part of his judgment Walsh J. appears to indicate that an appeal can be taken to the Supreme Court from a decision in the Circuit Criminal Court which involved a constitutional matter. This point was not taken up by any of his colleagues and to date, there has been no attempt to lodge such an appeal. 8. D.P.P.«v. O'Shea. Supreme Court unreported 2/11/82 at page 17. Henchy J. 9. See generally J. P. Casey "Confusion in Criminal Appeals — The Legacy of Conmey" 1975 Irish Jurist N.S. page 300. 10. See footnote 17. J. P. Casey op. cit Page 301. 11. [1980] IR. 294. 12. D.P.P. v Byrne. 29th November 1979 Supreme Court. Unreported. 13. [1981] ILRM. 398. 14. D.P.P. v. Christopher Anthony Lynch [1981] ILRM 389 at 402. 15. Shaw v. People (D.P.P.) Supreme Court. Unreported 17/12/80. 16. D.P.P. v. McCann. Supreme Court reference 163/80. D.P.P. v. Coffey. Supreme Court reference 181/80. D.P.P. v. O'Shea. Supreme Court reference 190/80. 17. The People (A.G.) v. Conmey. [1975] IR. 341 at page 348. 18. D.P.P. v. Patrick Leo O'Shea. 2/11/82. Supreme Court Unreported. 19. D.P.P. v. Patrick Leo O'Shea. at page 15. O'Higgins C.J. 20. [1967] IR. 147. 21. D.P.P. v. Patrick Leo O'Shea at page 10. O'Higgins C.J. 22. D.P.P. v. Patrick Leo O'Shea at page 1. Hederman J. 23. D.P.P. v. Patrick Leo O'Shea at page 15. Henchy J. 24. This Committee, which reported in 1966, advocated by a large majority, the abolition of the Court of Criminal Appeal and the transfer of its jurisdiction to the Supreme Court. 25. De Burca v. The Attorney General. [1976] IR. 38. 26. D.P.P. v. Patrick Leo O'Shea at Page 12. Finlay P. 27. D.P.P. v. Patrick Leo O'Shea at Page 34. Henchy J. 28. D.P.P. v. Patrick Leo O'Shea at Page 62. Henchy J. 29. Cf. Casey op. cit. Page 306. He is of the opinion that there is no statutory power enabling the Supreme Court to order a new trial. O'Higgins C.J. stated in "O'Shea" that inherent in the power to hear appeals was the power to order a new trial. 30. D.P.P. v. Patrick Leo O'Shea at Page 27. O'Higgins C.J. 31. 1975 53 D.L.R. (3d) 161. See Casey op. cit. page 311. 32. This part of the Courts Act 1981 has now come under challenge in the High Court, but the cases have not yet come to hearing. 33. The Courts of Justice Act 1924. 34. Section 3. Courts (Establishment and Constitution) Act 1961. 35. Cf. The People (A.G.) v. Cullen. Supreme Court unreported 18/8/71, The People (A.G.) v. Bell [1969] IR. 24. 36. [1946] IR. 517. 33