The High Court has rejected a challenge to the constitutionality and Convention compatibility of the law on witness intimidation, holding that the prosecution must still prove its case beyond reasonable doubt and that a court is not bound to draw an inference under the provision at issue.
The case concerned section 41 of the Criminal Justice Act 1999. Sam McNulty was charged with allegedly threatening Edward Jones, described in the judgment as a witness in proceedings for an offence. The charge alleged that on 20 November 2011, at Deerpark Downs, Tallaght, Mr McNulty threatened or intimidated Mr Jones intending to obstruct, pervert or interfere with the course of justice.
The judgment said Mr McNulty had previously been charged with assaulting Mr Jones, his former wife’s current partner, in October 2010. That charge was struck out on a technicality in November 2011. The judgment recorded that he was later recharged, convicted of the assault and given the benefit of the Probation Act. The separate intimidation charge was before the court in the proceedings described in the judgment.
Mr McNulty argued that section 41(3), which says proof of an act such as threatening or intimidating a witness “shall be evidence” of the required intention, could allow conviction without separate evidence of intent to interfere with justice. He contended that this violated the constitutional presumption of innocence and Article 6 fair-trial rights. He also maintained that the alleged words arose from a domestic dispute and were not intended to intimidate Mr Jones.
The State and Attorney General disputed that interpretation. They argued that the subsection permits an inference from proven facts but does not shift the legal burden of proof or require a court to accept the inference.
Mr Justice Paul Gilligan held that section 41(3) did not make the evidence conclusive and did not oblige a judge or jury to draw an inference. The court retained discretion to assess the evidence, and the prosecution remained responsible for proving the charge beyond reasonable doubt. The judge also said the court must ensure that any inference is fair and allow the accused an opportunity to rebut evidence against him.
The court was not satisfied that section 41 was incompatible with Article 38 of the Constitution or Article 6 of the Convention. It refused the reliefs sought. The judgment addressed the legal challenge; it did not determine the separate intimidation charge.