The Supreme Court has allowed an appeal by the Director of Public Prosecutions, ruling that a person appealing a District Court conviction remains “charged” with the offence during the Circuit Court rehearing. That means the Circuit Court may use section 5(6) of the Road Traffic Act 2010 to substitute a conviction for the related section 4 offence, even if it is the first time that offence has resulted in a conviction.
The case arose from an incident on 9 September 2016 at Beaghy, Stradone, County Cavan. The District Court convicted Simon Gordon of being in charge of a vehicle while over the alcohol limit, contrary to section 5(4) of the Act. He appealed the conviction and sentence to the Circuit Court.
At the appeal hearing, the Circuit Court judge considered evidence that Gordon had attempted to drive the vehicle. The judge said that if there had been an attempt to drive, the section 5 offence—which applies where there was neither driving nor an attempt—could not be proved. The judge also considered there was sufficient evidence for the alternative offence of driving or attempting to drive while over the limit under section 4(4), but questioned whether he could impose that conviction on appeal.
The Circuit Court referred questions to the Court of Appeal, which concluded that the section 5(6) power applied only to a person who was presently charged and had not yet been convicted. It answered that imposing the alternative conviction on appeal would breach due process.
In a judgment delivered on 11 July 2024, the Supreme Court rejected that interpretation. It said a Circuit Court appeal against a District Court conviction is a complete rehearing: the prosecution must prove the case, and the accused benefits from the presumption of innocence. In that setting, the accused remains charged with the offence for the purposes of section 5(6), despite the District Court conviction.
The court also rejected the argument that the lack of a further appeal from a first-time section 4 conviction made the substitution inherently unfair. It said there was no necessary unfairness because the accused faced the possibility of the alternative conviction under section 5(6) throughout the proceedings. The judgment noted that a court may decline to consider an alternative verdict and acquit if doing so would cause irremediable prejudice; the absence of a further appeal, by itself, is not such prejudice.
The Supreme Court allowed the DPP’s appeal and replaced the answers given by the Court of Appeal with “No” to both questions in the Consultative Case Stated. The judgment resolved the legal questions about the Circuit Court’s power; it does not state that the Circuit Court ultimately convicted Gordon of the section 4 offence.