The High Court barred a third trial of an anonymised applicant on charges relating to one complainant, ruling that after two jury disagreements a further prosecution would not be a trial in due course of law under the Constitution.
In a judgment delivered on 16 October 2006, Mr Justice O’Neill held that the common law protection against repeated trials applied in the circumstances. The applicant had sought judicial review of the Director of Public Prosecutions’ intention to proceed with another trial in Cork Circuit Criminal Court. The court concluded that the applicant was entitled to the relief claimed.
The charges relating to the complainant had first been tried in July 2003, when the jury disagreed. At a retrial in March 2004, the jury again disagreed on two counts and acquitted the applicant on a third. The judgment also records that the applicant had been acquitted on all counts in a separate trial concerning allegations by another complainant.
The applicant argued that another trial would offend the prohibition on double jeopardy, be oppressive and amount to an abuse of process. He also relied on an alleged long-standing practice against seeking a third trial after two jury disagreements. The DPP disputed that such a practice existed in Ireland and argued that the applicant had not shown that a further trial would be unfair. A separate ground based on delay in bringing criminal proceedings was not pursued at the hearing.
Justice O’Neill considered the competing interests in allowing the prosecution a fair opportunity to obtain a jury verdict and protecting an accused from the risks of repeated trials. He held that two trials ending in jury disagreement gave the public a full and fair opportunity to present the case to a jury. Further trials, he said, could increase the risks of prejudice, adjustment of evidence and a verdict influenced by repeated prosecution. He noted that potential witnesses came from the same rural area and the trial was scheduled to take place locally.
The ruling set a limit in this case: a third trial for the same offences after two jury disagreements would breach Article 38(1) of the Constitution. The judgment did not determine the underlying allegations of sexual assault. The source records the applicant’s entitlement to the relief claimed but does not reproduce the formal terms of the resulting order.