The Court of Appeal has quashed the acquittal of J.P.C. in a robbery case and ordered a retrial, ruling that a trial judge wrongly excluded identification evidence from an informal Garda identification parade.
The judgment, delivered by Ms Justice Isobel Kennedy on 29 July 2022, followed a prosecution appeal under section 23 of the Criminal Procedure Act 2010. The court considered whether the trial judge had erroneously excluded compelling evidence. It did not determine the respondent’s guilt.
The respondent had been arraigned on one count of robbery on 13 May 2021. During the trial, the judge held a voir dire on whether evidence from the informal identification procedure could be admitted. The judge ruled that admitting it would be inherently unfair and directed the jury to acquit. The Court of Appeal later found that ruling erroneous.
The alleged robbery took place on 5 August 2020. Mrs B told gardaí that a man approached her at her back door after she returned from the Post Office, shouted at her and took her purse and its contents. She said she had seen the man’s eyes and that he wore a black hoodie.
After the respondent declined to take part in a formal identification parade following legal advice, a sergeant unconnected with the investigation organised an informal procedure at a Garda station. Seven men, selected from 15 photographed participants as similar in age, height and appearance to the respondent, walked along a corridor past Mrs B. She squeezed her daughter’s hand when the third participant appeared and again as he passed. Mrs B’s daughter and the sergeant also gave evidence about those reactions. The third participant was the respondent, and he was the only one who spoke during the procedure.
The defence argued that this and other features made the process unfair, including that the respondent had not been told an informal procedure might follow his refusal. The prosecution submitted that Mrs B had identified him before he spoke and that the identification was reliable and of significant probative value. The respondent disputed its reliability and argued that the prosecution had not explained why the informal procedure was necessary.
The appeal court said the respondent’s speech was not central because the identification had already been made twice. It also held that the Garda procedure was not rendered unfair by being informal and that there was no obligation to explain the consequences of refusing a formal parade. The court found the evidence met the statutory test for compelling evidence and that a jury could reasonably be satisfied of guilt on that evidence alone.
The court allowed the appeal, quashed the 20 May 2021 acquittal and ordered a retrial under section 23. The judgment records no finding of guilt; the case is to be tried again.