harp graphic.
THE COURT OF APPEAL
Neutral Citation: [2025] IECA 103
Record Number: 007/2024
Edwards J.
McCarthy J.
Burns J.
BETWEEN/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
-AND-
JAMES FLYNN
APPELLANT
JUDGMENT of the Court delivered on the 10th day of April, 2025 by Ms. Justice Tara Burns
1. On 10 March 2025, this Court delivered judgment in the appellant's appeal against conviction by the Special Criminal Court wherein we quashed the appellant's conviction on Count 3 on the indictment. The Special Criminal Court returned a verdict of not guilty on Count 4 on the indictment.
2. On 18 March 2025, the matter was listed to hear submissions on the question of ordering a retrial.
Reason for Overturning Conviction
3. The circumstances which caused this Court to quash the appellant's conviction on Count 3 on the indictment are set out in the earlier judgment of this Court (See The People (DPP) v. Flynn, Unreported, Court of Appeal, Burns J., 10th March 2025).
4. In summary, Count 3 on the indictment reflected a charge against the appellant of conspiracy to burgle various properties within the State between 11 September 2012 and 23 January 2013. On foot of a direction application made in conjunction with closing speeches (which is the practice in the Special Criminal Court), the Special Criminal Court determined that there was insufficient evidence to convict the appellant of the offence as particularised in Count 3. The decision of the Special Criminal Court in that regard was made by the court exercising its function as the decider of law when determining the direction application, and not as a trier of fact. This is clear from the same decision it made in respect of the appellant's co-accused wherein, the court indicated that it was directing an acquittal of the co-accused on the same charge.
5. Having indicated its decision with respect to Count 3, the court proceeded to determine that there was sufficient evidence before it to convict the appellant of the same offence, but on a narrower basis which was restricted to a single burglary occurring on 23 January 2013. The court amended the particulars of the conspiracy to burgle offence to reflect this narrower offence.
6. The court made this amendment in the course of delivering its verdict without advance notice to the parties and without any facility being given to them to make any submissions in relation to the proposed amendment. In light of this, we were of the opinion that the requirements of constitutional and natural justice were not complied with.
The Parties Submissions Regarding a Retrial
7. In relation to the question of a retrial on Count 3, the respondent sought for this Court to order a retrial of the appellant on Count 3. She submitted that the correct order for this Court to make was to order a retrial on Count 3 on the indictment as it was reflected prior to the unlawful amendment made by the Special Criminal Court.
8. Counsel for the appellant argued that there should not be a retrial in this matter. He relied upon the length of time which the appellant had already spent in custody; the substantial period of time which had passed since the offences were committed; and the delay in prosecuting this matter. In the alternative he argued that should this Court be minded to order a retrial, the appropriate offence to be retried was the amended Count 3 offence, which this Court had found was unlawfully made. However, to do so, it was submitted that this Court would have to make various determinations which it had declined to make in its judgment on the conviction appeal, to include whether the rule of specialty prohibited the amendment to the indictment in light of the appellant being extradited from the United Kingdom on foot of a Trade and Co-operation Agreement ('TCA') Warrant; and whether an amendment to the original charge could be made in light of the respondent's certificate which reflected that charge. It was also argued that a separate point of appeal relating to evidence which had been adduced as expert evidence in the trial and which was asserted by the appellant to have been unlawfully admitted by the Special Criminal Court, would have to be determined by this Court so that we could assess the strength of the case against the appellant in determining where the balance of justice lay with respect to ordering a retrial.
Discussion and Determination
9. With respect to the length of time the appellant has spent in custody, on 21 December 2023, the trial court sentenced the appellant to eight years imprisonment which was backdated to reflect his time in custody. As we understand it, the appellant has spent almost three years in custody. Accordingly, unlike the position pertaining in DPP v. Forsey [2019] 2 IR 417, the appellant is not in the situation of having fully served the sentence imposed upon him prior to a retrial being ordered. Indeed, a substantial period of time remains to be served in respect of the sentence imposed. Accordingly, we are of the opinion that this is not a reason for not ordering a retrial in the matter.
10. In relation to the submission that memories will have faded in light of the time which has elapsed since the offence particularised in Count 3 occurred, it is the case that over 12 years have passed since the events giving rise to this prosecution and that some witnesses have given evidence in a related trial. However, 12 years is not an inordinate length of time. Any issues arising with respect to a lack of recall are, in any event, more appropriate for a trial court to deal with.
11. While there is an assertion that there was a delay in prosecuting the matter, we are aware that the appellant was the subject of a TCA Warrant and it was confirmed to us that the appellant challenged the TCA Warrant in the neighbouring jurisdiction. While this was his right, it is clear that not all of the time which has passed since the time of the commission of these offences can naturally be laid at the respondent's door. Furthermore, we have not received evidence, nor have we even been informed of the details of the delay alleged on the part of the respondent and therefore we are of the opinion that this is an argument not well made out and one which we should not entertain in light of the manner it has been presented before us.
12. Accordingly, we are of the opinion that none of these arguments are sufficient reasons whether taken alone or collectively as to why there should not be a retrial in this matter. Serious criminal offending was alleged against the appellant arising from which there is an important public interest in permitting a retrial of this matter so that it can be brought to a valid final verdict. A situation has not arisen where the appellant has been deprived of his fair trial rights resulting from the time elapsed from the offending or has been subjected to an unfair or oppressive process.
13. The question which therefore arises is what a retrial should be in respect of, namely the original particulars reflected in Count 3 of the indictment, or the amended particulars.
14. The consequence of overturning the appellant's conviction is that all legal rulings of the Special Criminal Court have no legal, binding effect. This is of importance in determining the issue which has arisen.
15. This Court has determined that the Special Criminal Court's amendment of Count 3 was invalid, breaching, as it did, the rules of constitutional and natural justice. Hence, a valid order amending Count 3 does not exist and the particulars of that Count remain as they originally stood. This Court has no jurisdiction to effect an amendment to the indictment. Obviously, such an amendment would be required for this Court to order a retrial on Count 3 as it was proposed to be amended by the Special Criminal Court. Accordingly, while Counsel for the appellant has argued that s. 3 of the Criminal Procedure Act 1993 restricts this Court to ordering a retrial in respect of the offence which the appellant was convicted of, namely the wrongfully amended Count 3, in circumstances where the amendment was invalid, the only jurisdiction which this Court can have, if it is to order a retrial, is to order the retrial of the appellant for the offence which lawfully remains in being, namely the original charge proferred against the appellant and reflected in the original Count 3.
16. With respect to ordering a retrial of the appellant on the original charge proferred, Counsel for the appellant asserts that principles of double jeopardy and autrefois acquit arise in light of the determination of the Special Criminal Court that there was not sufficient evidence to return a verdict of guilty in respect of Count 3.
17. In relation to a plea of autrefois acquit, Finlay CJ in The People (DPP) v. Quilligan (No. 3) [1993] 2 IR 305 said at p 326 of the report:-
"It is fundamental to the concept of a plea in bar of autrefois acquit or autrefois convict that there is a subsisting valid acquittal or conviction on the precise charge available."
18. An acquittal was not recorded in respect of the original Count 3 on the indictment, rather the Special Criminal Court took the step of amending the indictment in circumstances which rendered the amendment invalid. While the Special Criminal Court ruled on foot of the direction application that there was insufficient evidence before it for a verdict of guilty to be returned on Count 3 as it originally stood, the effect of this Court quashing the appellant's conviction is that all rulings made by the trial court are now not binding and have no legal effect. Accordingly, aside from the fact that there is not a recorded acquittal on Count 3, the direction ruling of the Special Criminal Court does not have a legal effect.
19. Accordingly, there is no subsisting valid conviction on the only charge available, namely the original charge reflected at Count 3, as the amendment was unlawful having been made in excess of jurisdiction. Further, the effect of quashing the conviction means that there is no verdict in being.
20. As we have quashed the conviction of the appellant on the basis of the Special Court in effect depriving itself of jurisdiction in light of the manner it sought to effect an amendment of Count 3 on the indictment, it seems to us that the interests of both sides are best served by permitting a retrial to take place on the original charge reflected in Count 3 so that a valid verdict can be returned.
21. Naturally, it will be a matter for the respondent as to whether she pursues that option and what evidence she ultimately will call in that prosecution.
22. Finally, while the appellant has sought that we determine his ground of appeal in relation to purported expert evidence admitted in the course of his original trial, so that we can assess the strength of the case against him, we remain of the view that it would be inappropriate for us to do so in light of the fact that we are ordering a retrial. Ultimately, it will be a matter for the respondent to decide whether she calls such evidence in a future trial and if she does, then it will be for the trial court to determine whether to admit such evidence and if so, what weight it places on same.
Conclusion
23. Having regard to all of the matters canvassed in this matter, we are of the opinion that the balance of justice lies with permitting a retrial. Accordingly, pursuant to s. 3(1)(c) of the Criminal Procedure Act 1993, we are ordering a retrial in respect of Count 3 of the indictment as originally charged against the appellant.
Approved
No Redaction Needed