The Court of Criminal Appeal refused an application by Emanuel Ashibougwu for a certificate that would have allowed him to appeal to the Supreme Court over the court’s earlier refusal of leave to appeal his rape conviction.
The judgment, delivered by Justice Fennelly on 27 July 2007, said a certificate under section 29 of the Courts of Justice Act 1924 requires the decision to involve a point of law of exceptional public importance and for an appeal to be desirable in the public interest.
Ashibougwu was convicted by a jury in the Central Criminal Court of rape arising from an incident in Limerick on 27 December 2004. The jury returned a majority guilty verdict on 24 November 2006, after a trial that began four days earlier. He was sentenced to nine years in prison.
The Court of Criminal Appeal dismissed his application for leave to appeal on 9 July 2007. At that hearing, the defence argued that the case for acquittal was so strong that racial prejudice was the only basis on which the jury could have convicted. The judgment said Ashibougwu accepted that sexual intercourse occurred but maintained it was consensual.
The court’s account of its earlier decision said the defence had not argued at trial that the case should be withdrawn from the jury, nor asked the trial judge for a direction concerning race. The appeal court said there was nothing in the case to justify suspicion that the jury had been racially prejudiced. It also said properly established racial prejudice disclosed during a trial could very likely provide grounds to set aside a conviction.
For the certificate application, counsel proposed questions about whether a trial judge should warn a jury to take particular care about possible prejudice where a defendant from an ethnic minority was not represented on the jury, and whether such a warning should be mandatory or discretionary.
The court accepted that how a trial judge should address a real risk of racial bias could raise a point of exceptional public importance. But it said the proposed questions were not involved in its decision to refuse leave to appeal: no risk of jury bias had been raised at any stage of the trial. It therefore refused the certificate. The ruling did not determine the proposed questions about jury directions.