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THE COURT OF APPEAL
Neutral Citation: [2025] IECA 104
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 March, 2025 by Ms. Justice Tara Burns
1. This is an appeal against conviction. The appellant was tried before the Special Criminal Court on two counts, namely conspiracy to burgle contrary to common law (Count 3) and robbery contrary to s. 14 of the Theft and Fraud Offences Act, 2001.
2. The appellant had been extradited from the United Kingdom for the purpose of prosecuting him on these charges on foot of a Trade and Co-operation Agreement ('TCA') Warrant which reflected the two charges proffered against him.
3. On 25 July 2022, the respondent certified her opinion pursuant to s. 46(2) of the Offences Against the State Act 1939 ('the 1939 Act') that the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the appellant on the two charges proffered against him. Accordingly, he was returned for trial to the Special Criminal Court.
4. The trial of the appellant and a co-accused commenced on 1 February 2023. On 11 of September 2023 the appellant was convicted of Count 3 on the indictment, namely conspiracy to burgle. However, the particulars of the offence with which he had been charged were amended by the trial court in the course of delivering its verdict. The appellant was acquitted of the robbery count. His co-accused, who had been charged with the same offences as the appellant, was acquitted on both counts.
5. On 21 December 2023, the trial court sentenced the appellant to eight years imprisonment in respect of the conspiracy to burgle offence which was backdated to reflect his time in custody.
Background
6. The robbery charge, of which the appellant was acquitted, related to an armed robbery which occurred at Lordship Credit Union, Bellurgan, County Louth. It was the respondent's case that a Volkswagen Passat was involved in that robbery, and that it had been stolen from Clogherhead, County Louth in the early hours of 23 January 2013. The conspiracy to burgle offence, of which the appellant was found guilty, related to a burglary which had taken place at the house of the owner of the Passat when the keys to the Passat were stolen from the house and the car was taken from outside the premises.
7. The original charge of conspiracy to burgle proffered against the appellant related to a number of burglaries which were alleged to have occurred over a four-month period in a variety of locations. The conspiracy alleged was to unlawfully enter dwellings with the intention of stealing the keys of the householders' motor vehicle. Count 3 on the indictment reflected the charges proffered against the appellant, which were also contained in the TCA warrant and the respondent's certificate. The particulars of offence relating to Count 3 read:-
"James Flynn, between the 11th day of September 2012 and 23rd day of January 2013, both dates inclusive, within the State, conspired with Brendan Treanor, Aaron Brady and others to enter residential premises as trespassers with the intention of stealing the keys of the householders' motor vehicles."
8. The trial court determined that the appellant's involvement in a conspiracy to burgle various properties had not been established due to a lack of proof connecting mobile phone cell location information generated by the network providers to the cell site locations asserted by the respondent, which was a proof the respondent relied upon to establish this offence. However, the trial court was satisfied, having regard to other evidence in the case, that the appellant was guilty of a more limited conspiracy to burgle offence relating to the Clogherhead property from where the Volkswagen Passat was stolen on 23 January 2013.
9. In the course of delivering its verdict, the trial court amended the particulars of offence of Count 3, in the following manner:-
"James Flynn, on the 22nd of January 2013 and the 23rd of January 2013, at various locations within County Louth, conspired with Aaron Brady and another to enter residential premises at 2 Hillcrest, Clogherhead, County Louth, with the intention of stealing the keys of the householder's motor vehicle."
10. The trial court thereupon returned a guilty verdict in respect of the appellant on the amended Count 3 of the indictment. No advance notice was given by the trial court that it would take this course of action, or indeed was considering taking this course of action, and no opportunity was afforded to either of the parties to make any submissions with respect to this proposed amendment. As a result, the appellant did not have an opportunity to make any legal argument as to whether the trial court could take this step, to include the arguments made before this Court to the effect that as a court of limited jurisdiction, the trial court did not have jurisdiction to make this amendment; that in light of the fact that the appellant was extradited, the rule of specialty prohibited this amendment being made; and that the respondent's certificate limited the trial court to only considering the charges referred to in that certificate. In addition, the appellant was not afforded an opportunity to make a direction application in relation to the particulars of the offence now reflected in Count 3, nor did he have an opportunity to consider his position with respect to the amended count.
Grounds of Appeal
11. By notice of appeal dated 9 January 2024, the Appellant appealed against his conviction. The grounds which the appellant focused upon in oral argument before this Court, in summary related to the amendment of the indictment by the trial court and the admission of evidence into the trial proper which was purported to be of an expert nature.
Amending the Indictment
12. The grounds of appeal in relation to the amendment of the indictment are as follows:-
15. The Court erred in law or in a mixed question of law and fact in amending the Indictment in the manner and circumstances in which it did.
16. The Special Criminal court had no jurisdiction to amend the Indictment as it did, or at all.
17. Without prejudice to the foregoing the Court had no such jurisdiction where the Appellant was before the Court pursuant to section 47(2) of the [1939 Act].
18. The Court had no power to amend the Indictment in circumstances where the DPP's certificate issued pursuant to section 47(2) was not, and could never be, lawfully amended.
19. The Court further lacked jurisdiction to amend the Indictment in circumstances where the Appellant was before the Court on foot of a Trade and Cooperation Agreement Arrest Warrant which did not permit the amendment of charges.
20. The decision of the Court to amend the Indictment at the time it did was unlawful and contrary to principles of fair procedures and also natural and Constitutional justice.
21. Without prejudice to the foregoing the amendment to the Indictment was made without notice to any party and without any party being given the opportunity of making submissions and was thus unfair and contrary to the principles of fair procedures and also natural and Constitutional justice.
22. The timing of the amendment to the Indictment also prejudiced the defence in the manner in which they approached the trial, inter alia, in giving and taking instructions; in giving advices; in making decisions as to plea; in making decisions as to questions to be asked; in determining what other legal applications to make (including renewing severance application); and in determining what other submissions might be made most particularly in closing.
23. The Appellant in this case, possibly uniquely in Irish criminal history, was convicted on a Count never put to him, a Count never before mentioned in the course of his trial until he had been convicted of it and a Count upon which he was never given any opportunity whatsoever to make any submissions at all. Thus, the trial herein amounted to an unfair process and was not a trial in due course of law as guaranteed by Article 38 of the Constitution of Ireland, 1937.
Statutory Provisions
13. Section 6 of the Criminal Justice (Administration) Act, 1924 ("the 1924 Act"), permits the amendment of an indictment. It states:-
"Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the court be made without injustice..."
14. Section 41(4) of the 1939 Act provides:-
"Subject to the provisions of this Act, the practice and procedure applicable to the trial of a person on indictment in the Central Criminal Court shall, so far as practicable, apply to the trial of a person by a Special Criminal Court, and the rules of evidence applicable upon such trial in the Central Criminal Court shall apply to every trial by a Special Criminal Court."
The Parties Submissions
The Appellant's Submissions
15. The appellant submitted that the offence which the trial court returned a guilty verdict, was of a completely different character to the offence with which he had been charged, despite having the same nomenclature. The broad conspiracy he had been charged with had narrowed to a particular, specific and singular conspiracy. Furthermore, the persons he conspired with; the location where and the dates when the conspiracy took place; and the locations which were the subject of the conspiracy to burgle, had all changed. In those circumstances, the offending he was found guilty of was of a completely different character to the offending with which he had been charged. It was submitted that the Special Criminal, being a statutory court with limited jurisdiction, did not have jurisdiction to make such fundamental changes to the particulars of the offence charged such that a different offence was in reality at issue.
16. It was further argued that the amendment made by the trial court was prohibited having regard to the fact that the appellant was extradited from the United Kingdom. In these circumstances the rule of specialty applied, specifically Article 27 of the Framework Decision on the European Arrest Warrant and Surrender Procedures between Members States and s. 22 of the European Arrest Warrant Act 2003, which prohibited the appellant being tried for any other offence other than that in respect of which he was surrendered, without the returning jurisdiction consenting to such trial.
17. The respondent's certificate pursuant to s. 46(2) of the 1939 Act was also relied upon in this regard, in that she had certified her opinion that the ordinary courts were inadequate to secure the effective administration of justice in relation to the two original charges attached to her certificate. Her certification grounded the jurisdiction of the Special Criminal Court in relation to these two non-scheduled offences. It was argued that in those circumstances, it was not possible to try the appellant for what was asserted to be a different offence in respect of which a certificate pursuant to s. 46(2) of the 1939 Act did not exist.
18. In the alternative it was submitted that if the trial court had the power to effect this amendment, it was not lawfully executed in the instant case as the court effected the amendment when exercising its function as trier of fact. It was submitted that this would never have occurred in the Central Criminal Court as a jury would not be in a position to effect an amendment of the charge before it, of its own accord. Accordingly, the argument that s. 41(4) of the 1939 Act permitted the amendment to be made, did not avail the respondent in the particular circumstances arising.
19. Lastly, it was submitted that what had occurred was a breach of the appellant's right to natural and constitutional justice and offended the principle of audi alteram partem. It was argued that the trial court erred by not indicating that it was going to adopt this course before taking it and by not inviting submissions from the parties. As a result, the appellant was not afforded an opportunity to make any submissions in relation to the amendment ultimately made; and was not in a position to avail of particular procedural steps which could have been to his benefit, namely he was not in a position to make a direction application in respect of the offence which was subsequently considered by the court, or plead guilty to the amended offence.
Respondent's Submissions
20. The Respondent submitted that the amendment which was effected by the trial court was permissible having regard to s. 6 of the 1924 Act in conjunction with s. 41(4) of the 1939 Act.
21. In addition, it was submitted that the arguments made in relation to the rule of specialty and the respondent's certification pursuant to s. 46(2) of the 1939 Act were of no application as the offence remained the same offence, it being only the particulars of offence which were amended by the trial court.
22. It was submitted that the amendment made by the trial court was in ease of the appellant as he was found guilty of an offence of a less serious nature to that with which he had been charged (it being a sub-set of the wider conspiracy offence charged) and that he had not suffered any prejudice as a result of the narrowing of the particulars of offence.
Discussion and Determination
Audi Alteram Partem
23. While this issue was argued as a final submission in the arguments made by the appellant with respect to the amendment of the indictment, we are of the view that this is the principal issue which arises in the appeal and that the other submissions which were made under this heading establish the difficulty which arises with the trial court's approach.
24. The appellant asserts that the manner in which the trial court effected the amendment to the indictment breached his right to natural and constitutional justice as the principle of audi alteram partem was not observed resulting in an unfair trial.
25. The trial court, in the course of exercising its function as trier of fact, announced, without notice, that it was amending the particulars of Count 3 of the indictment to reflect a narrower offence. This was not an amendment which had been sought by the respondent and neither party was provided with an opportunity to make submissions regarding the proposed amendment.
26. The power to amend an indictment pursuant to the 1924 Act is a wide power and can be exercised at any stage during the trial process. In DPP v. Walsh [2010] 4 IR 746, Fennelly J in the Court of Appeal explained the power as follows at p. 752 of the report:-
"The court is satisfied that s.6(1) of the Act of 1924 confers a broad discretionary power on the trial judge to amend the indictment. The purpose of any amendment must be to ensure that the jury will address the true issues when they come to deliberate on their verdict. The counts in the indictment should correspond as closely as is reasonably possible with the real case for the prosecution. The section requires such amendments to be made as 'the court thinks necessary to meet the circumstances of the case.' The section sets no time limit to the exercise of this power. It may occur 'at any stage of a trial'. It may well be that, in a particular case, a late amendment cannot be 'made without injustice'. A court should not exercise the power in circumstances involving prejudice to the defendant in the defence of the charges against him. This is prejudice in the legal sense. It does not mean that an appropriate amendment should be refused merely because it would lessen the chance of an acquittal."
27. An amendment to an indictment may take place at a very late stage in the trial, to include the period after the jury have commenced their deliberations but before they have been discharged. In R v. Dossi (1918) 13 Cr. App. Rep. 158, the indictment was amended after the jury indicated the date in respect of which they would find the accused guilty of the crime alleged, which was not the date specified in the indictment. Late amendments of the indictment after the jury commenced their deliberations were upheld in R. v. Collison (1980) 71 Cr. App. Rep. 249 and McCowan v. DPP [2004] 1 IR 211. However, the overriding consideration for a trial court, if an amendment is being effected, is whether an accused will be prejudiced by the amendment.
28. With respect to the procedure applicable when an amendment to an indictment is being made, Archbold, Criminal Pleading, Evidence & Practice (2003 ed.) states at paragraph 1-148:-
"Where no application to amend the indictment has been made by either side, the judge, in exercising his discretion whether to direct an amendment or not, should invite the parties, in particular the defence, to express their views on the matter before deciding to do so."
29. Walsh on Criminal Procedure 2nd Edition states at paragraph 18-112:-
"Where a significant amendment is made to the indictment during the course of the trial, it will usually be necessary to adjourn the proceedings in order to give the defence an opportunity to assess how their position has been affected. Moreover, if it is desired to make a substantial amendment after arraignment, the interests of justice normally dictate that the accused should be re-arraigned on the amended indictment. Indeed, the court may postpone the trial if it considers that that is expedient as a consequence of an amendment to the indictment. In this event the jury may be discharged and the trial may proceed at a later date as if it was being commenced for the first time."
30. The peculiar features of a trial in the Special Criminal Court where the court acts as both the decider of law and the trier of fact means that this amendment was made by the trial court after it had exercised its function as trier of fact. Accordingly, having determined that it was not satisfied to the requisite standard of the appellant's guilt on the wider conspiracy charge, the trial court narrowed the particulars of the conspiracy to burgle charge to what it was satisfied had been established to the requisite standard.
31. However, the appellant had no input into the decision to amend the indictment, and was given no opportunity to make any legal argument which might arise, such as the arguments which have been aired before this Court. Indeed, as an appeal court, we are unusually being invited to determine legal issues which were never argued before the lower court. This arises, not because of fault on the side of the parties but rather because the trial court did not provide anyone with an opportunity to make any submissions on the proposed amendment. In addition, the appellant was not given the opportunity to make a direction application on the amended count, or indeed decide whether to plead guilty, both of which, in the normal course, are important procedural features in a criminal trial which an accused is entitled to avail of.
32. We agree with the appellant that the manner of the amendment in this matter, and the fact that the appellant was not afforded any opportunity to engage with the proposed amendment, was a very unusual occurrence. It seems to us that this course of action offended the very bases of the principle of audi alteram partem and that this failure had a real consequence for the appellant as he was unable to make any legal argument with respect to the validity of the proposed amendments or to avail of the normal procedures which an accused has in a criminal trial.
33. Accordingly, without determining whether the trial court could have lawfully amended the indictment for the reasons which have been argued before us, we are of the opinion that the manner in which the court effected the proposed amendment breached the appellant's right to constitutional and natural justice and resulted in his trial not being conducted in due course of law, as required pursuant to Article 38 of the Constitution.
34. For this reason, we will quash the appellant's conviction on Count 3. We will hear further submissions from the parties with respect to ordering a retrial in the matter.
35. In light of the decision of the Court, it appears to us that it is inappropriate for the Court to proceed to consider the remainder of the grounds of appeal.
Approved
No Redaction Needed