The Court of Criminal Appeal has refused to certify two questions for appeal to the Supreme Court in Martin Morgan’s case, finding that neither met the requirements of section 29 of the Courts of Justice Act 1924, as amended.
In a judgment delivered on 21 December 2011, Finnegan J said the first proposed question concerned whether failing to keep a note of a search-warrant application breached fair procedures to the point that a trial was unfair. The court had previously dealt with Morgan’s grounds of appeal in a judgment delivered on 5 July 2011.
Evidence at trial established that no notes were taken of applications for the search warrants at issue. The record also contained no account of oral evidence, questions from the District judge or answers. Morgan submitted that the absence of a record hampered his ability to test the scrutiny applied to the warrant applications and risked an unfair trial.
The court considered English and Welsh judicial-review decisions concerning search warrants issued under the Police and Criminal Evidence Act 1984. It said those cases arose under a different statutory scheme and in judicial review proceedings, where the court’s role and the available evidence differed from those in an Irish criminal trial. In the court’s view, the absence of a note was not necessarily fatal to a warrant if other evidence made good a defect in the application. It was not satisfied that the proposed question met the section 29 criteria.
The second proposed question asked whether an accomplice warning was redundant where a co-operating witness could not have been tried for the same offences. At the certification hearing, Morgan’s counsel argued orally that a warning should also be given where a witness was involved in the offence but was not an accomplice in the strict legal sense. The prosecution argued that the witness, identified in the judgment as Miss Rogan, was not an accomplice because she could not have been convicted of the offences charged against Morgan.
The court said the broader submission had not been addressed in Morgan’s written submissions and was not clearly flagged in the grounds. It had therefore not been fully argued, and the prosecution had not had the opportunity to provide a detailed response. Although describing the issue as substantive, the court said it would not, save in the most exceptional circumstances, certify a question that had not been argued at the leave application. It declined to certify the second question for that reason.
The ruling addressed certification only. The judgment refused to certify either proposed question for appeal to the Supreme Court.