Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2009/C43.html
Cite as: [2009] 2 ILRM 235, [2009] 4 IR 147, [2009] IECCA 43

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Judgment Title: DPP -v- Feichín Hannon

Neutral Citation: [2009] IECCA 43

Court of Criminal Appeal Record Number: 228/08

Date of Delivery: 27 April 2009

Court: Court of Criminal Appeal

Composition of Court: Hardiman J., Herbert J., Mac Menamin J.

Judgment by: Hardiman J.

Status of Judgment: Approved


Judgments by	Result
Hardiman J.	Other (see notes)

Notes on Memo: Applicant entitled to certificate pursuant to Section 9 Criminal Procedure Act
1993

THE COURT OF CRIMINAL APPEAL

Hardiman J. 228/08
Herbert J.
MacMenamin J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

and
FEICHÍN HANNON

Defendant/Appellant

JUDGMENT of the Court delivered on the 27th April, 2009 by Mr. Justice Hardiman.
This is a most alarming and disturbing case. The applicant, Mr. Hannon, who it is now accepted is an entirely innocent man, was despite this all important fact convicted of the offences of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990l; and of common assault of the same person on the same date, the 27th January, 1997. The alleged victim of these offences (neither of which ever took place at all) was one Una Hardester then of Aughrismore, Cleggan, Co. Galway, born on the 1st October, 1986 now twenty-two years old. At the time of the assault which she alleged, she was approximately ten years and approximately four months old. The applicant, Mr. Hannon, was born on the 14th August, 1975 and was accordingly some twenty-two years old at the time of the alleged assaults. He is now about thirty-four years of age. There was a history of animosity between the families of the complainant and of the present applicant. This related to disputes about land, rights of way and similar matters, not uncommonly found in country districts. This led to a number of confrontations. Some short time (a matter of days), before the alleged assault, the complainant had been present in court when her father, one Crofton Hardester, had been convicted of assaulting the applicant’s father. The Hardester family had arrived form the United States to live in the area some years before.

The complainant’s allegation of sexual assault and common assault was made in detailed terms. It was conspicuous for its graphic and coherent language and for the correct use of various medical/anatomical terms. After the alleged assault the complainant had arrived, in a muddy and dishevelled state, at the nearby house of a friend and had convinced that friend, a child herself, and her mother, that something untoward had occurred. Despite the absence of any medically significantly injury she seemed to have convinced a nurse and doctor by whom she was seen that she had been assaulted. The present applicant was arrested and questioned at some considerable length about her allegations during which process various gardaí had suggested to him that it was incredible that a young child could make up allegations of this sort: they simply did not believe it could happen. There is no evidence other than that the complainant invented this story on her own.

The applicant was charged with the offences mentioned. The court has seen the Transcripts of his Trial and no criticism can be made of the conduct of his defence, which was competent and resourceful throughout. The applicant himself constantly denied the allegations and when questioned by the gardaí, did not make any admission of guilt. The trial was entirely properly conducted by the learned trial judge (His Honour Judge Carroll Moran) but the alarming and disturbing fact is that, notwithstanding being entirely innocent, the defendant was convicted of these offences by a jury.

Very fortunately, the learned trial judge dealt with the case by a four year suspended sentence. He did this principally in light of evidence from Una Hardester’s father, in which the hope was expressed that better relations might prevail in the future, and the judge’s view that the applicant was not predisposed to be a criminal and had perhaps been unfortunately influenced by the family feud that had gone on.

It may be worth saying, though it will of course be obvious to legal readers, that once the jury had convicted the applicant, the learned trial judge was bound by that decision and had to proceed to sentence accordingly.

How the truth came out.
This case is unlike any miscarriage of justice application we are aware of in that the defence made no complaint whatever about the conduct of the investigation or the trial. The applicant did not lodge an appeal: since the trial had turned entirely on questions of credibility, and since there was no complaint to be made about the conduct of the trial, there was little or no prospect of success on an appeal. This, indeed, was conceded by counsel for the Director of Public Prosecutions on the hearing of this application, and very properly so. The applicant simply absorbed what had happened and tried to get on with his life. He moved abroad for a period and then took up residence in Galway City, about fifty miles from his home. He is entitled now to have his good name restored.

The complainant confesses.
About nine years after the alleged offence, in November/December 2006, the complainant, now an adult, and resident in America, arrived back to the Aughrismore area for the purpose of retracting her allegations. She told her own mother that she had made up the allegations against Mr. Hannon. She met Mr. Hannon’s sister by chance at a Filling Station in Clifden and told her the same. She made a number of statements to the gardaí. In all of them she confessed to having wholly invented a completely false allegation against Mr. Hannon:

“… I wish to state that my evidence was false as was my complaint in its entirety. Feichín Hannon never assaulted me. I have never spoken to him. We never had any contact because of the trouble between the families. I wish also to add that I was never coerced to make the complaint, never coached, and never encouraged by anyone. I am the only party at fault. I now wish to tell the truth about this matter. I wish to right the wrong that [I] have done to Feichín Hannon insofar as I can. I am twenty years old now, and I have lived with my cancerous guilt every day for the last ten years. It has been present at every moment. It has eaten away at me. Every happy event, every accomplishment, every friendship and every love affair has been stolen. My entire life since I left Ireland has been stolen. I know how awfully wrong what I did was, and I am deeply, deeply remorseful, more than anyone will ever understand. I know that Feichín Hannon has lived with the shadow of his conviction over his life for many years now, and I can only imagine the rage, the injustice, the pain and the shame he must have felt. I want to see justice done now. I wish there was some way I could apologise to Feichín Hannon and his family and tell them how much I regret what I did. I also wish there was some way to apologise to the State and its employees for wasting their time and money.

… I would like to end this statement by saying I have changed, and I have lived the cleanest life I could in the years since I left Ireland. I would like to say that I found God, and I am attempting to pay back my moral debt to society through good deeds. But all of that would be a cop out. I did something terribly wrong and I got away with it. Other people paid a heavy price, Feichín Hannon most of all. I want to clear his name now. That is all.”

In relation to her motivation for her doing such a wicked thing as to make a false allegation of sexual assault she said:

“I had no reason for making the allegation against Feichín, just that he was one of the Hannons.”

This application, as will be seen, is mostly concerned with a technical point raised by the Director of Public Prosecutions which, he says, prevent the events summarised above from constituting a miscarriage of justice. Accordingly, a significant part of the judgment will be technical in nature. The court wishes to emphasise that this fact does not mean that it is unimpressed at the wickedness or gravity of what was done. The applicant here was falsely and maliciously accused of the offence of sexual assault which is an offence involving the risk of a substantial prison sentence and the certainty of substantial social opprobrium and stigmatisation. It is a grave disgrace to the convicted person himself and, unfortunately, to his family and would exclude him from many forms of respectable employment.

The complainant, Una Hardester, also made the statement “I have never been able to understand why he did not appeal”. As explained above, however, having regard to the nature of the case it is utterly improbable that an appeal could have succeeded. Indeed, on the facts as known to this court, no competent lawyer would advise an appeal and to do so would simply be holding out false hopes. An Appeal Court cannot simply substitute its own view of the facts for that of that jury which heard and saw the witnesses.

The present application.
Having considered the complainant’s withdrawal of her statement and confession to having lied, the Director of Public Prosecutions very properly did not object to the applicant’s application, late though it was, to bring an appeal against his conviction in these changed circumstances. This application was made on the basis of Ms. Hardester’s retraction. The applicant also applied for the court to certify:

“that a newly discovered fact - to wit that the complainant’s evidence at trial was untrue and fabricated in its entirety - shows that there has been a miscarriage of justice in this case.”

This application, unlike the application to quash the conviction, is opposed by the Director of Public Prosecutions.

The present application.
The present application is brought under s.9 of the Criminal Procedure Act, 1993 which provides as follows:

“Compensation 9.- (1) Where a person has been convicted of an

for offence and either-

miscarriage of

justice.

(a)(i) his conviction has been quashed by the Court on an application under section 2 or on appeal, or he has been acquitted in any re-trial, and

(ii) the Court or the court of re-trial, as the case may be, has certified that a newly-discovered fact shows that there has been a miscarriage of justice.

(b)(i) he has been pardoned as a result of a petition under section 7, and

(ii) the Minister for Justice is of opinion that a newly-discovered fact shows that there has been a miscarriage of justice.

the Minister shall, subject to subsections (2) and (3), pay compensation to the convicted person or, if he is dead, to his legal personal representatives unless the non-disclosure of the fact in time is wholly or partly attributable to the convicted person.

(2) A person to whom subsection (1) relates shall have the option of applying for compensation or of instituting an action for damages arising out of the conviction.

(3) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Minister for Justice.

(4) The compensation shall be of such amount as may be determined by the Minister for Justice.

(5) Any person who is dissatisfied with the amount of compensation determined by the Minister may apply to the High Court to determine the amount which the Minister shall pay under this section and the award of the High Court shall be final.

(6) In subsection (1) “newly-discovered fact” means-

(a) where a conviction was quashed by the Court on an application under section 2 or a convicted person was pardoned as a result of a petition under section 7, or has been acquitted in any re-trial, a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings, and

(b) where a conviction was quashed by that Court on appeal, a fact which was discovered by the convicted person or came to his notice after the conviction to which the appeal relates or a fact the significance of which was not appreciated by the convicted person or his advisers during his trial.”

It is apparent from the foregoing that the exercise of a jurisdiction vitally depends on the court being satisfied that a newly discovered fact shows that there has been a miscarriage of justice. Although the phrase “newly discovered fact” is defined in subsection (6) of s.9, neither in that Section nor in s.1, the interpretation Section, is the phrase “miscarriage of justice” defined.

On the hearing of this application it was stated by counsel for the applicant and agreed by counsel for the Director of Public Prosecutions that the applicant was innocent in fact of the charges brought against him and was convicted despite being innocent.

The entire issue argued on the hearing of this appeal was as to whether the state of facts described in the last paragraph constituted a “miscarriage of justice”. Mr. Hugh Hartnett S.C. for the applicant contended that the conviction of an innocent person was the very essence of a miscarriage of justice and was able to refer to recent Irish authority in support of that proposition. Mr. Garnet Orange, who argued the Director’s case with notable good sense and ingenuity, submitted that what occurred in this case was extremely unfortunate and disturbing but was not a “miscarriage of justice” because there could be no miscarriage of justice without there being fault on the part either of the prosecutor or of the garda investigators or other State agents.

The applicant’s arguments.
Mr. Hartnett S.C. pointed out that the applicant’s innocence in fact was conceded by the respondents. This, he said, was a feature which distinguished the case from any of the other miscarriage of justice cases. He conceded that there was no definition of “miscarriage of justice” in the statute but he submitted that, on the cases, a concept of “miscarriage of justice” included, as its most obvious meaning, a conviction of an innocent person.

The chief authority relied on was DPP v. Peter Pringle (No. 2) [1997] 2IR 225. This was an application under the same Section, brought after the Court of Criminal Appeal had set aside a conviction on the basis that a newly discovered fact showed that the conviction was unsafe and unsatisfactory. But the court did not find that the applicant had been improperly convicted. Giving the judgment of this court, O’Flaherty J. said:

“It is clear that the pertinent legislation envisages that it is not in every case where a conviction is quashed that a certificate should issue from this court. That is to preserve the consistency of the two methods by which convictions may be quashed, viz. under the old but still existing legislation where for example there was a misdirection by the trial judge in his charge to the jury as well as to the procedure provided by s.2 of the Act of 1993.

Where it is established that the applicant was innocent of any involvement in the crime alleged that would provide ample justification for a granting of a certificate

. Further, for example, if in a given case the courts were to reach the conclusion that a conviction had resulted in a case where a prosecution should never have been brought in the sense that there was no credible evidence implicating the applicant, that would be a case where a certificate most likely should issue.” (Emphasis added)

The case was appealed to the Supreme Court on a certificate pursuant to s.29 of the Courts of Justice Act, 1924. Giving the principal judgment, concurred in by Denham, Barrington, and Murphy JJ., Blayney J. said:

“I agree with the reasoning on the basis on which the Court of Criminal Appeal reached its decision. The court did not attempt an exhaustive definition of the term ‘miscarriage of justice’ and in my view this court should not attempt such a definition either. It is sufficient to show that the term cannot be applied to the facts of this case…”.

But Lynch J., who delivered a separate concurring judgment had this to say, at p.245 of the report:

“This brings me to my third question above that is to say, what is the meaning of the phrase ‘miscarriage of justice’ as used in the Act of 1993? The Act of 1993 does not define the term. Council for the applicant referred this court to a number of Australian cases. However it is apparent from a reading of these cases that they turn on the particular wording of the Australian ‘common criminal appeal provisions’… they are of no assistance in considering the question whether or not a certificate should be granted pursuant to s.9 on the ground that a newly discovered fact shows there has been a miscarriage of justice such as to entitle the applicant to compensation…

The primary meaning of miscarriage of justice in s.9 of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted

…” (Emphasis added)

In the present case, of course, the applicant is beyond doubt innocent. In the view of the Court of Criminal Appeal in Pringle that fact in itself is “ample justification for the granting of a certificate”.

In the Supreme Court, Lynch J. was clearly also of that view, and went somewhat further in that he held that this state of having been convicted despite being innocent is “the primary meaning of ‘miscarriage of justice’ in s.9”. The other four members of the Supreme Court expressed no view on the meaning of the phrase since they did not consider that it was necessary to do so in order to resolve the issues in Pringle’s case.

Dictionary meaning.

On consulting the shorter Oxford English Dictionary the first thing that strikes one is that the word “miscarriage” is said now to be rare (and indeed archaic). It is seldom used now except in the phrase “miscarriage of justice”. It was formerly used to convey a variety of meanings including misdemeanour or misdeed, mismanagement or failure of an enterprise, a blunder or as well as in the medical/obstetrical sense.

See R. (Smeaton) v. Secretary of State for Health (QBD), The Times May 2, 2002.

The older, but now largely abandoned meanings of the word “miscarriage” are very well illustrated in s.2 of the Statute of Frauds(Ireland) 1695, 7 William III Cap 12:

“To charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person…”.

This form of words describes a contract of guarantee. It does not seem to require any fault or malice on the part of the defaulting party but simply a default in fact.

The phrase “miscarriage of justice” is defined as “a failure of the judicial system to attain the ends of justice”.

Mr. Hartnett further cited the case of DPP v. Wall and McCabe at pp3-4 to the following effect, per Kearns J:-

“From an examination of the jurisprudence the applicable legal tests appear to be as follows: …

(4) Examples of circumstances which may constitute a miscarriage of justice include, but are not limited to the following -

(a) Where it is established that the applicant was innocent of the crime alleged…”.

_____________________________

For the respondent, Mr. Orange made the point that the Director of Public Prosecutions had certain obligations where he believed there was a prima facie case. The Director, he submitted, can consider the credibility of the witnesses but need not go so far as to warrant their truthfulness in deciding to commence a prosecution based on their testimony. He pointed out that in Wall and McCabe there were failures on the part of the State which caused or contributed to the conviction, thus a strong element of State “culpability”. He said that in all of the reported miscarriage of justice cases culpability was a feature, not necessarily in the sense of a morally evil act or omission but in the sense of some shortcoming by the guards or the Director. There was none here. He submitted that culpability was a necessary component of a “miscarriage of justice”. He invited the court not to put an undue fetter on the Director’s prosecutorial discretion, and said there was no case where a miscarriage had been found without culpability. He invited the court to consider the possibility of two people getting together, one to give false evidence against the other to share the compensation. He agreed there was no actual case of this happening and, of course, each person would have to be prepared to go to jail.

Mr. Hartnett also drew the court’s attention to two English cases and to certain provisions of the Human Rights Act, 2003, and another International Instrument, the International Covenant on Civil and Political Rights.

The first of the English cases was Mullen v. Home Secretary [2004] 3 AER 65. Mr. Mullen had been convicted after trial in the United Kingdom of conspiracy to cause explosions. He was sentenced to thirty years imprisonment. After he had been in jail for ten years the Court of Criminal Appeal quashed his conviction on a late appeal on the basis that his deportation from Zimbabwe to the U.K. to stand trial had involved a rather gross abuse of process. At no stage during the appeal did Mullen claim that he was innocent of the offence of which he had been convicted but he subsequently applied for compensation under s.133 of the Criminal Justice Act, 1988, a provision similar to our s.9. Compensation was refused and this decision was eventually upheld by the House of Lords. But the Lords (who reversed the Court of Appeal) were far from unanimous on the basis of their decision. The majority view, which represents the ratio decidendi of the case, is expressed in the speech of Lord Bingham. In his view the case could be disposed of on the basis that s.133 only envisaged compensation where there had been a failure in the trial process. In this case there was none, as the abuse of process predated the trial. Lord Steyn, however, in a full and careful analysis of the background to the statutory provision, was categorical in concluding that the words ‘a miscarriage of justice’ in its statutory context denoted that factual innocence was a prerequisite to an entitlement to compensation. Lord Bingham made it clear that he did not necessarily share this view.

Lord Steyn, in his speech in the House of Lords, pointed out that the English legislation of 1998 was intended to give effect to the international obligations of the United Kingdom. Ireland has also undertaken these obligations. They arise, firstly, under the International Covenant on Civil and Political rights (ICCPR) which was adopted by the General Assembly of the United Nations on December 16th, 1966. Almost ten years later, on the 20th August, 1976 the required number of ratifications was attained at the United Nations and the Covenant entered into force. Ireland signed in 1973, but the Covenant did not come into force in the State until December, 1989. Article 14(6) of this Covenant contains two relevant provisions, namely:

“(2) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

…

(6) When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him”.

The effect of this instrument is obviously a very significant one: it obliges States bound by it to provide compensation for a miscarriage of justice “according to law”. There can be no doubt, especially when the similarity in wording is considered, that s.9 of the Act of 1993, like s.133 of the English Criminal Justice Act, 1988, is an attempt to comply with the relevant State obligations arising under this Covenant and perhaps otherwise.

This provision of the Covenant bound many other countries as well. It is instructive to look to the French text of Article 14(6) already quoted in English:

(3) “Lorsqu’une condemnation pénale définitive est ultérieurement annulée, ou lorscque la grâce est accordée, parce qu’un fait nouveau ou nouvellement révélé prouve qu’il s’est produit une erreur judiciaire, la personne qui a subi une peine a raison de cette condemnation sera indemnisée, conformément à la loi, à moins qu’il ne soit prouvé que la non-révélation en temps utile du fait inconnu lui est imputable en tout ou partie.”

This was given effect to in France by Article 626 of the Code de Procédure Pénal which provides:

“Sans préjudice des dispositions des deuxième et troisième alinéas de l’article. L.781-1 du code de l’organisation judiciaire,

un condamné reconnu innocent

en application du présent titre a droit à réparation intégrale du préjudice matériel et moral que lui a causé la condemnation. Toutefois, aucune réparation n’est due lorsque la personne a été condamnée pur des faits dont elle s’est librement et volontairement accusée ou laissé accuser à tort en vue de faire échapper l’auteur des faits aux poursuites”. (Emphasis added)

At paragraph 47 of the judgment of the report in Mullen, Lord Steyn comments:

“From the words “reconnu innocent” in Article 626, it is clear that in France the obligation in Article 14(6) was narrowly construed by the legislature viz. as extending only to a miscarriage in the sense of the conviction of an innocent person.”

I consider that the words “reconnu innocent” might be rendered in English as “[a person] recognised to be innocent”. That phrase is apt to describe Mr. Hannon’s current condition.

At paragraph 48 of the report Lord Steyn continued:

“This is the view which I would expect to prevail if the European Court of Human Rights is called upon to interpret Article 3 of the 7th Protocol [as to which seen below]. When that happens the European Court of Human Rights will have before it the explanatory report prepared by the 21 members steering committee for human rights appointed by the Council of Europe. It accompanied the 7th Protocol when it was published. The Committee of Ministers emphasised in September 1984 ‘the importance of the explanatory report for the purpose of interpreting the protocol’. In paragraph 25 the steering committee observed about Article 3: ‘The intention is that State should be obliged to compensate persons only in clear cases of miscarriages of justice, in the sense that there would be acknowledgement that the person concerned was clearly innocent. The Article is not intended to give a right to compensation where all the preconditions are not satisfied, for example where an appellate court has quashed the conviction because it had discovered some fact which introduced a reasonable doubt as to the guilt of the accused and which had been overlooked by the trial judge.”

The European Convention on Human Rights.
In further argument, counsel referred to the European Convention on Human Rights Act, 2003. He referred first to s.2(1):

“In interpreting and applying any statutory provision or rule of law, a court shall, insofar as is possible, subject to the Rules of Law relating such interpretation and application, do so in a manner compatible with the State’s obligations under the Convention provisions.

This Section applies to any statutory provision or rule of law in force immediately before the passing of this Act or any such provision coming into force thereafter.”

Mr. Hartnett also referred to s.1 of the same Act which defined the phrase “convention provisions” as meaning:

“… Articles 2 - 14 of the Convention and the following protocols thereto as construed in accordance with Article 16 - 18 of the Convention …

(d) Protocol No. 7 to the Convention done at Strasbourg on the 22nd November, 1984.”

This Protocol forms the 5th Schedule to the Act. It provides at Article 3 as follows:

Article 3

Compensation for wrongful conviction

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed, or he has been pardoned, on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to the law or the practice of the State concerned, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

The similarity in language between this Article of the 7th Protocol, the paragraphs of the Covenant quoted above and s.9 of the Irish Statute also quoted above, will be noticed.

Ireland became party to the Convention in 1953, and to the 7th Protocol on August 3, 2001.

Conclusion.
Mr. Hartnett also referred the court to other materials which however do not appear to add substantially to those already referred to. These include a second English Case, R (Murphy) v. The Secretary of State for the Home Department [Neutral Citation: 2005/EUHC 140 (Admin)].

It is necessary to point out that the issue in this case is a very narrow one viz. whether a convicted person who is now recognised to have been at all times innocent of the charges against him, by virtue of that fact alone, entitled to a certificate under s.9 of the Act of 1993. This is not to be confused with the cognate but quite separate question as to whether only a person whose innocence is recognised or uncontrovertible is entitled to such a certificate, although no doubt this question will arise at no very remote date.

It appears to the court in light of the material cited that Lynch J. was entirely correct in what he said in the passage cited earlier in his judgment:

“The primary meaning of ‘miscarriage of justice’ in s.9 of the Act of 1993 is that the applicant for the certificate is on the balance of probabilities innocent of the offence of which he was convicted…”.

The wording of the International Instruments which bind Ireland appear, at a minimum, to require compensation of a person who is “reconnu innocent”, and that phrase is of course helpful in the construction of those Articles. The Instruments do not contain the additional requirement that the State or its agents must be in some way culpable. For the State or the Court to add this requirement would appear to prevent s.9 from complying with the State’s international obligation in full.

While the English and International materials were extremely helpful, that is not to say that the court would have come to a different conclusion in their absence. Indeed, it is difficult to know what is more obviously within the ordinary or dictionary meaning of the phrase “miscarriage of justice” than the conviction of an innocent person.

It is equally difficult to know how a person could more clearly and obviously be in the position where a new or newly discovered fact “shows conclusively that there has been a miscarriage of justice”, to quote the Covenant language, that a person whose accuser has, almost a decade after the event, confessed that her allegation was wholly false and contrived. However these observations may be obiter on the present facts.

The court accordingly considers that the applicant is entitled to a certificate since a fact which is both new and newly discovered - the complainant’s confession of having fabricated the allegation - shows that his conviction was a miscarriage of justice.

In arriving at this conclusion, it is not necessary for the court to concur in the entire of the findings of the House of Lords, or even of Lord Steyn, in Mullen.

The citation from the judgment of Lynch J., set out above, makes it clear that the construction of the phrase “miscarriage of justice” which favours the present applicant is the “primary”, and therefore not the only construction of that form of words. The court would point out that there is in this country an authoritative statement in the judgment of Mr. Justice Geoghegan in DPP v. Meleady (No. 3) [2001] 4 IR 16 at p.33. There, speaking in the context of an application of this sort, the learned judge said:

“… the exercise with which this court is concerned under the Criminal Procedure Act, 1993, is whether newly discovered facts are tantamount to proving a miscarriage of justice and that is not confined to the question of

actual innocence

but extends to the administration in a given case of the justice system itself.”

This passage was approved in DPP v. Shortt (No. 2) [2002] 2IR 696 where the court observed, having quoted the passage from Geoghegan J. set out above “… this is because, in many cases, it would be quite impossible for an applicant affirmatively to demonstrate his innocence in the ordinary sense of the term”.