The Court of Criminal Appeal refused an application by Daniel Doherty for a certificate that would permit an appeal to the Supreme Court. The court said the proposed legal questions were substantial but specific to the case and did not meet the threshold of exceptional public importance.
The application followed the Court of Criminal Appeal’s judgment delivered on 26 February 2009. It concerned the court’s view that an inappropriate procedure for admitting statements from two witnesses outside the State did not make the trial a nullity.
The statements lacked declarations required by section 21 of the Criminal Justice Act 1984, which applied to statements from people outside the State. The declarations were to state that each statement was true to the best of the maker’s knowledge and belief. Neither statement contained one. At trial, there had been confusion over whether section 21 or section 22 applied, and a small portion of one statement was not read to the jury by agreement.
In the certificate application, the defence relied in particular on *Mapp (A minor) v Gilhooley* [1991] 2 IR 253. The court noted that the requirement for evidence to be given on oath, affirmation or as provided by statute was significant, but said that not every departure from proper procedure makes a trial a mistrial. It referred to circumstances in which a challenge could be barred by an express or clearly implied waiver, or where allowing it would amount to a virtual fraud or abuse of court process.
The court recalled its earlier finding that the procedure at trial had been followed at the defence’s request and to facilitate its strategy, which treated the statements as helpful. It had also found that the strategy had not been shown to be so clearly erroneous or misguided that the trial could not be regarded as one conducted in due course of law. Those were prior findings; the present ruling addressed only whether to grant a certificate.
To obtain a certificate under section 29 of the Courts of Justice Act 1924, as substituted by section 22 of the Criminal Justice Act 2006, it was not enough that the issues mattered to the applicant. They had to transcend the specifics of the case and be points of law of exceptional public importance for which the Supreme Court’s views were desirable. The Court of Criminal Appeal was not satisfied that the proposed points met that test and refused the application.