The Supreme Court has dismissed Sam McNulty’s appeal against a High Court decision upholding the constitutionality of a law that makes certain acts against witnesses evidence of an intention to obstruct justice.
The appeal concerned section 41(3) of the Criminal Justice Act 1999. It provides that proof of an act covered by the section is evidence that it was done with the required intention. The Supreme Court held that this does not remove the prosecution’s obligation to prove every element of an offence beyond reasonable doubt.
The Court’s construction requires the prosecution to prove that an accused knew the person harmed, threatened or intimidated was a “classified person” under the law, such as a witness or a person assisting a Garda investigation. The Court said the accused’s knowledge could also be established through facts from which the accused could infer that status, or through recklessness. If that knowledge cannot be established, the alleged act cannot serve as evidence of the required intention under section 41(3).
McNulty was charged over an alleged threat made in Tallaght on 20 November 2011 to Edward Jones, described in the judgment as a witness in criminal proceedings. The charge alleged that McNulty threatened or intimidated Jones intending to obstruct or interfere with the course of justice. The judgment also recounts an earlier prosecution arising from an alleged assault on Jones. Those matters are background allegations; the Supreme Court appeal concerned the validity and interpretation of the legislation, not whether McNulty committed the alleged intimidation.
McNulty argued that section 41(3) could allow a conviction without separate evidence of the required intention, undermining the presumption of innocence and the right to a fair trial. The State and the Director of Public Prosecutions argued that the provision allowed an inference but did not shift the prosecution’s legal burden of proof.
The Supreme Court concluded that, on its interpretation, the presumption of innocence remained and the prosecution retained the burden of proving its case beyond reasonable doubt. It also rejected the request for a declaration that the provision was incompatible with Article 6 of the European Convention on Human Rights. The Court dismissed the appeal from the High Court’s judgment.