A Supreme Court judge would have dismissed the Director of Public Prosecutions’ appeal against J.C.’s acquittal, finding that the trial judge had correctly applied the law in force at the time of the trial.
In a judgment delivered on 15 April 2015, Mr Justice John Murray said section 23 of the Criminal Procedure Act 2010 did not allow the DPP to treat a ruling as “erroneous” simply because the Supreme Court later changed the relevant law. His conclusion was a dissent: he said he agreed with Justices Hardiman and McKechnie that the appeal should be dismissed.
J.C. had been tried before a judge and jury in the Circuit Criminal Court on robbery charges. The trial judge excluded six statements he had made while unlawfully detained in custody, applying the Supreme Court’s earlier ruling in DPP v Kenny. The DPP did not dispute that the judge was bound to exclude the statements under the law then in force.
With the prosecution offering no further evidence after the ruling, the jury was directed to return a not-guilty verdict because there was insufficient evidence on which it could reasonably convict. Murray said no issue had been raised about that direction or the resulting acquittal.
The DPP appealed under section 23, which permits an appeal against an acquittal in limited circumstances, including where a court “erroneously excluded compelling evidence”. The respondent conceded that the excluded evidence was compelling, and Murray accepted that concession for the appeal. He said that did not settle the separate legal question of whether the trial judge’s ruling was erroneous within the section’s meaning.
Murray said the judge had followed binding Supreme Court decisions and therefore had not made an error during the trial. He read section 23 as covering a judge’s misinterpretation or misapplication of the law applicable at the time, not a ruling later affected by a change in Supreme Court precedent. He also stressed the importance of clear statutory language when creating an exception to the protection against being tried twice for the same offence.
The judgment noted that section 34 of the Criminal Procedure Act 1967 provides a route for the DPP to refer a question of law to the Supreme Court without putting an acquittal at risk. Murray considered that route appropriate for seeking a review of the exclusionary rule in DPP v Kenny.
Murray would have dismissed the appeal because it did not lie under section 23. Having reached that conclusion, he did not address the separate question of whether the Kenny rule should be changed. This account covers Murray’s judgment and does not state the Court’s overall disposition of the appeal.