The Supreme Court affirmed J.C.’s acquittal and ordered no retrial in an appeal brought by the Director of Public Prosecutions. The court’s judgment was delivered on 22 June 2015 by O’Donnell J, who wrote separately in agreement with the decision and added observations about the reasons for not ordering a retrial.
O’Donnell J said the case was close to the “systemic” end of a spectrum, where clarification of the law is the main feature, rather than a case centred on an individual error. He said there had been a significant number of acquittals following the Supreme Court’s decision in The People (Director of Public Prosecutions) v Kenny, and a smaller but not insignificant number resulting from Kenny combined with Damache v The Director of Public Prosecutions & Ors, as in this case.
He said people in almost precisely similar circumstances had benefited from the Kenny decision and would not face retrial. Ordering one for J.C. would add an element of arbitrariness, he wrote, and he saw no reason to single the respondent out. He also accepted the respondent’s counsel’s submission that, without diminishing the seriousness of the offences, the individual circumstances did not provide an additional reason to favour retrial beyond the appellate court’s conclusion that the acquittal was erroneous.
The judgment discussed the relationship between prosecution appeals under the Criminal Procedure Act 1967 and section 23 of the Criminal Procedure Act 2010. O’Donnell J said the 1967 procedure had been intended to clarify important legal issues without affecting the individual conviction. He considered that the 2010 Act gives the court broad discretion over whether to order a retrial, including where the legal issue’s importance is limited to an individual case.
O’Donnell J agreed that the 1967 Act procedure would have been preferable, but said it would have had the same legal consequence in this case: the acquittal would remain in place while the ruling established that it had been reached erroneously. He did not consider it necessary to express an opinion on issues addressed in MacMenamin J’s judgment, reserving them for a case where they required consideration.
The extract is O’Donnell J’s concurring judgment. It records the court’s disposition as no retrial and the acquittal affirmed; it does not set out the underlying offences or the court’s full reasoning across the other judgments.