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Clarke C.J.
McKechnie J.
O’Malley J.
Irvine J.
THE SUPREME COURT
[Supreme Court Appeal No: 67/2018]
BETWEEN:
The People (At the Suit of the Director of Public Prosecutions)
PROSECUTOR/APPELLANT
-AND-
FE
ACCUSED/RESPONDENT
JUDGMENT of Ms. Justice Iseult O’Malley delivered on the 26th day of February 2020.
1. The substantive judgment in this appeal was delivered on the 6th December 2019 by
Charleton J., with whom all members of the Court agreed (see Director of Public
Prosecutions v. F.E. [2019] IESC 85). The key finding was that the Court of Appeal had
erred in its approach to the sentence imposed on the respondent, with that approach
being to examine the rape offence in isolation from the surrounding circumstances. The
parties have now made further submissions as to the order that should be made having
regard to the judgment.
2. I agree with the order proposed by Charleton J. and his reasons therefor. I deliver this
judgment principally in order to give my views on, firstly, the jurisdictional issue and,
secondly, on the question of the appropriate approach of this Court where it finds an error
in sentence in an individual case. The following summary of the issues raised
concentrates, therefore, on the matters relevant to these aspects.
3. The respondent’s principal submission is that the order of the Court of Appeal should be
left in place, despite the finding of error. The first ground put forward is that the Court
has no jurisdiction to interfere with the sentence in the absence of any express statutory
provision. The only existing statutory framework for prosecution appeals to this Court in
relation to sentence is that set out in s.29 of the Courts of Justice Act 1924, and that
provides only for a “without prejudice” appeal. The People (DPP) v. Quilligan (No.2)
[1989] I.R. 46 is relied upon in support of the proposition that the absence of statutory
parameters for a “with prejudice” appeal means that the Court cannot arrogate to itself
such a jurisdiction. Counsel contends that this analysis is supported by the judgments of
Prosecutions v. J.C. (No.2) [2016] IESC 50, arguing that the Court made it clear that the
jurisdiction to order a re-trial in that case would not have existed absent the relevant
statutory provision.
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4. A query is raised as to what principles would apply in the event that the Court did propose
to quash the order and re-sentence the respondent. The alternatives open, it is
suggested, would be to approach the issue on the basis of the criteria for an “undue
leniency” appeal, or on the basis that an error of principle was sufficient to justify
variation. Counsel suggests that this is “dangerous territory” for the Court in the absence
of statutory criteria.
5. The final submission made on behalf of the respondent, to be considered in the event that
the Court finds that it has jurisdiction to proceed, is in support of the sentence as varied
by the Court of Appeal as being appropriate in the circumstances. Evidence has been
furnished as to the respondent’s conduct in custody. The Court is urged to apply what
appears to be described by practitioners as a “disappointment” discount – this term refers
to the practice of the Court of Appeal of acknowledging that, where the Director succeeds
in an “undue leniency” review of sentence, an increase in the term to be served will
inevitably cause extra stress and upset to the accused.
The statutory background
6. Given the thrust of the respondent’s submissions it is helpful to consider, firstly, the
existing statutory framework for sentence appeals by the prosecution.
7. For many decades the only statutory provision of this nature was s.29 of the Courts of
Justice Act 1924. The section has had a complex and somewhat unusual history, and was
extensively amended in the current century. As it now stands, (as amended by way of
substitution by s.22 of the Criminal Justice Act 2006, by s.59 of the Criminal Justice Act
2007 and by s.31 of the Criminal Procedure Act 2010) it provides, in summary, for an
appeal from the determination of “any appeal” by the Court of Criminal Appeal to the
Supreme Court. Clearly, therefore, it covers both conviction and sentence appeals. The
right of appeal is exercisable only on foot of a certificate granted by either that court, the
Attorney General or the Director of Public Prosecutions that the decision involved a point
of law of exceptional public importance and that it is desirable in the public interest that
there should be an appeal. The certificate can be given for the benefit of the person who
was the subject of the appeal or matter determined by the Court of Criminal Appeal, but
the Attorney General or the Director of Public Prosecutions can also give such a certificate
for the purposes of an appeal on their own behalf. In this latter case, by virtue of s.29(3),
the appeal is to be without prejudice to the decision in favour of the accused person. The
accused can be heard in such an appeal if he or she wishes, with the benefit of legal aid,
but in any event the Supreme Court can assign counsel to argue the case.
8. The prosecution authorities were given a right to take “with prejudice” appeals against
sentence, in cases tried on indictment, with the introduction of a right to apply for a
review of sentence on grounds of “undue leniency” by s.2 of the Criminal Justice Act
1993. The initial appeal was from the court of trial to the Court of Criminal Appeal.
Section 3 of the Act provided for an appeal to the Supreme Court on foot of a certificate
from the Court of Criminal Appeal, the Attorney General or the Director that the decision
involved a point of law of exceptional public importance and that it was desirable in the
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public interest that an appeal should be taken. Section 3 was repealed by the Court of
Appeal Act 2014, with effect from the 28th October 2014.
9. Section 29 of the Act of 1924 has been legislatively earmarked for repeal on two
occasions. The first was the Courts and Courts Officers Act 1995, which contemplated the
transfer of the functions of the Court of Criminal Appeal to the Supreme Court. However,
the relevant provisions were never brought into operation.
10. The section is also scheduled for repeal in the Court of Appeal Act 2014. The
establishment of the Court of Appeal, as a result of the 33rd Amendment of the
Constitution, required the amendment or repeal of various items of legislation pertaining
to, inter alia, the Court of Criminal Appeal. Section 73 of the Act of 2014 repealed a
number of such measures, as listed in the First Schedule to the Act. This repeal provision
has been brought into force in part only, in that some of the scheduled items have been
repealed but others have not. Section 29 of the Act of 1924 was one of six measures
intended to be repealed by virtue of S.I. 259/2018, which appointed the 31st August
2018 as the date on which the provisions of the Act of 2014 relating to the abolition of the
Court of Criminal Appeal should come into operation. Section 3 of the Courts
(Establishment and Constitution) Act 1961 (which established the Court of Criminal
Appeal for the second time) was also to be repealed. However, the Minister revoked the
order some weeks before the specified date, in S.I. 313/2018.
11. The case made by the respondent is that s.29 remains in force and is the only statutory
provision dealing with the jurisdiction of this Court in determining a sentence appeal. It is
argued that the Court has no inherent power to alter a sentence to the detriment of the
accused. On that basis, it is submitted, on the authority of Quilligan (No.2), that this
Court lacks jurisdiction to interfere with the order made by the Court of Appeal, despite
finding that that Court erred in its reasoning.
DPP v Quilligan (No.2)
12. To put this decision in context it is necessary to give a brief history of the prior relevant
case-law. In The State (Burke) v. Lennon [1940] I.R. 136 the then Supreme Court held
that under the terms of Article 34 as it then stood there could be no appeal against the
granting of an absolute order of habeas corpus. In so holding, the Court followed the
the deeply-rooted common law rule against an appeal in such cases could not be
destroyed by the general words, used in the Judicature Act of 1873, conferring power to
“hear and determine appeals from any judgment or order”. In essence, the majority of
the Supreme Court applied the same principle of interpretation to the reference in Article
34 to “all decisions of the High Court”. (For the sake of historical accuracy, it should
perhaps be noted that it was pointed out in Sullivan v. Robinson [1954] I.R. 161 that
Article 34 did not in fact apply pending the establishment of the courts provided for under
the Constitution of 1937 – this did not occur until 1961.)
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13. In The State (Browne) v Feran [1967] I.R. 147 the Court came to the opposite conclusion
to that in State (Burke) v Lennon and held that it did indeed have jurisdiction to hear an
appeal against the making of an absolute order of habeas corpus. All members of the
Court agreed with Walsh J. that the canons of construction applicable to a statute were
not equally applicable to the construction of a written Constitution.
“In the construction of a Constitution words, which in their ordinary meaning import
inclusion or exclusion, cannot be given a meaning other than their ordinary literal
meaning save where the authority for so doing can be found within the Constitution
itself.”
14. In Attorney General v. Conmey [1975] I.R. 341 a person convicted in the Central Criminal
Court had unsuccessfully appealed to the Court of Criminal Appeal. Having failed to obtain
a certificate for the purposes of a further appeal to the Supreme Court, he then applied
for an extension of time within which to lodge an appeal against the conviction in the
Supreme Court. O’Higgins C.J. (with the agreement of Walsh J.) expressed the view that
there could in some cases be a direct right of appeal from the Central Criminal Court (that
being the title of the High Court when exercising its criminal jurisdiction) to the Supreme
Court. However, on the facts of the case the Court held that the appellant had exhausted
his remedies in appealing to the Court of Criminal Appeal.
15. In The People v. O’Shea [1982] I.R. 384 a majority of the Court held (in ruling on a
preliminary issue) that the Court had jurisdiction to hear a prosecution appeal against a
directed verdict of acquittal in the Central Criminal Court. Any pre-existing common law
rule to the contrary was considered to be inconsistent with the scope of the appellate
jurisdiction conferred on the Supreme Court by Article 34. The majority judgments were
delivered by O’Higgins C.J. and Walsh J. Hederman J. agreed with them insofar as the
preliminary issue of jurisdiction was concerned, but expressly reserved his position on the
“important matters of substance and procedure” that could only be decided after hearing
the substantive appeal. (As it happened, all members of the Court subsequently agreed
that the trial judge had acted correctly, and no further issue arose.)
16. Finlay P. dissented on the jurisdictional issue, taking the view that the immunity of a
verdict of “Not Guilty” was one of the essential ingredients of the right to a jury trial
guaranteed by Article 38.5 and that this took precedence over the general right of appeal
from the High Court to the Supreme Court. Henchy J. also dissented. He did not accept
that it was appropriate to adopt a literal interpretation of Article 34.4.3º, given that many
of the decisions routinely made in the High Court were generally acknowledged as not
being subject to appeal, or indeed as intrinsically unappealable. The overall principle was
seen by Henchy J. as being that appeals would not be entertained in certain
circumstances because they would be inconsistent with the due administration of justice.
17. It is noteworthy, for present purposes, that at p. 428 of the report Henchy J. said:
“It is, in my understanding, a fundamental of our jurisprudence that a right of
appeal to a particular court requires, at the least, that there be vested in that court,
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by the Constitution or by statute, a right to vary in whole or in part the decision of
the lower court at the instance of an appellant who is, in the legal sense, aggrieved
by that decision.”
18. The point, as he developed it, was that to permit an appeal to be entertained was to
concede that it could be successful. However, if a successful appeal would entail breach of
a particular constitutional right, then permitting the appeal to be brought would be a
departure from the principle of harmonious interpretation of the Constitution. Henchy J.
made it clear that, like Finlay P., he saw the immunity of a jury verdict of acquittal as
being constitutionally guaranteed.
19. The decision of the majority in O’Shea established that there was a jurisdiction to hear a
prosecution appeal against an acquittal in the Central Criminal Court, and that issue was
not reopened when the Court came to deal with The People (DPP) v. Quilligan [1986] I.R.
495. In that case the Court heard and unanimously allowed an appeal by the Director
against a directed acquittal. The verdict was ordered to be set aside. However, the next
question, which was the subject of a separate hearing, was whether a retrial should be
ordered. The prosecution contended that the power to do so could be found either in O.87
the Rules of the Superior Courts 1986 (which specifically provided for an order for a new
trial after an appeal to the Supreme Court from the Central Criminal Court), or in the
inherent jurisdiction of the Court to make such orders as were necessary after exercising
its appellate jurisdiction by setting aside an erroneous decision. This issue was the subject
of the judgments reported in Quilligan (No.2).
20. The Court divided on the question. Walsh and McCarthy J.J. would have ordered a retrial.
Henchy J. (with whom Griffin J. agreed) considered that the Court had no jurisdiction to
make such an order. It is therefore necessary to consider the reasoning of the judgments
in some detail, but I intend focussing only on those aspects relevant to the instant case.
21. In summary, Henchy J. concluded as follows.
(i) Order 87 of the 1986 Rules of the Superior Courts could not avail the prosecution
because if it were to be properly construed as permitting an order for a retrial after
an acquittal, it would go beyond matters of pleading, practice and procedure and
would be ultra vires. In any event the 1986 rules could not apply as they had come
into force after the acquittal of the accused, and the previous version (dating from
1962) had not dealt with appeals taken directly from the Central Criminal Court to
the Supreme Court.
(ii) Whether the jurisdiction to hear an appeal against an acquittal derived from the
Constitution or not, it did not necessarily follow that there was an ancillary
jurisdiction to order a retrial. The Court of Criminal Appeal, established in 1924, did
not have that power until 1928 when it was specifically conferred by statute. Even
then, the Supreme Court had held (in The People (Attorney General) v. Griffin
[1974] I.R. 416) that it could be exercised only in certain circumstances. Henchy J.
concluded that it followed that the jurisdiction to hear an appeal did not necessarily
Page 6 ⇓
carry with it an ancillary jurisdiction to order a retrial, and that such a jurisdiction
would have to be conferred by statute.
(iii) If legislation were to provide for such a jurisdiction, its constitutionality would be
questionable on grounds of equality (if it applied only to cases tried in the Central
Criminal Court), or on grounds of incompatibility with fundamental fairness or the
constitutional guarantee of a trial by jury. It would have the effect of
unconstitutionally discriminating between different persons acquitted by direction in
the Central Criminal Court, and between those acquitted in that Court and those
acquitted in the Circuit Criminal Court or the Special Criminal Court.
(iv) The legislature had expressed its will on the issue by providing, in s.34 of the
Criminal Procedure Act 1967, for a “without prejudice” appeal on a point of law
following an acquittal. This provision would be negatived for practical purposes if
the jurisdiction now claimed to exist could be utilised instead. The Court would
therefore be unconstitutionally subverting the legislature by exercising it.
(v) The most “compelling and practical” reason for refusing the order was perceived as
being the possibility that, if the accused were put on trial again, they could
successfully raise a plea of autrefois acquit, on the basis that they had been tried
and acquitted by a court of competent jurisdiction. The jury had acted within
jurisdiction in entering the verdict on the trial judge’s direction, and the judge,
while erring in law, had not acted without jurisdiction.
(vi) The Supreme Court should not construe its appellate jurisdiction in such a way as
to either enlarge or diminish the powers or functions of another court. The High
Court was not an inferior court subject to corrective orders such as mandamus, but
the order now sought would in effect be such an order.
22. Walsh and McCarthy J.J. reached the opposite conclusion. Taking the above points in turn,
their combined views were, in summary, that:
(i) The Court was not creating a new jurisdiction, but exercising one that had been
recognised since Conmey and O’Shea. The Oireachtas had not sought to exercise its
power under Article 34 to limit the right the right of appeal, or the consequential
results, after those decisions. The 1986 Rules had been made some years after
O’Shea and made it clear that, as a procedural matter, the Court could order a new
trial where it thought it proper.
(ii) The jurisdiction to set aside an erroneous decision in law must necessarily carry
with it the necessary competence to ensure that the mistakenly interrupted trial
proceedings were brought to a conclusion in accordance with law. It would be
inconsistent with the administration of justice enjoined by Article 34 that a court of
final appeal, hearing appeals from a court with full original jurisdiction, would not
have an ample armoury to ensure that justice was done. In the case of the Court of
Criminal Appeal, it had been necessary to provide the power to order a retrial by a
Page 7 ⇓
specific statutory provision – that court was a creature of statute and had no
jurisdiction save that conferred by statute. The Oireachtas had not chosen to give it
a power to quash acquittals. This Court, by contrast, was a creature of the
Constitution, with a jurisdiction derived solely from the Constitution, and had the
right to entertain appeals from all decisions of the High Court save in the case of
such decisions as were excepted by law.
(iii) The right of appeal from the High Court was provided for in the Constitution. An
argument based on constitutional equality could not be raised against a provision of
the Constitution.
(iv) Section 34 of the Criminal Procedure Act 1967 was a special provision for a case
stated procedure, as distinct from an appeal. The argument on this point was seen
as similar to one rejected in Conmey and O’Shea, to the effect that the
establishment of the Court of Criminal Appeal deprived the Supreme Court of
jurisdiction to hear an appeal against conviction. It had been clearly laid down that
any statutory provision purporting to limit or abolish the right of appeal to this
Court must be clear and unambiguous. The 1967 Act did not establish such a limit
but in fact conferred an extra jurisdiction in addition to the Court’s appellate
jurisdiction.
(v) The respondents could not claim to have been tried “in accordance with law”, since
the trial had been stopped by reason of an erroneous interpretation of the law by
the trial judge. It had never proceeded to a verdict considered and chosen by the
jury.
23. In a very brief judgment, Hederman J. referred to his judgment in O’Shea and again
stated that he reserved his position on the issue. He agreed with Henchy and Griffin J.J.
that a retrial should not be ordered. However, he gave no indication of his reasons for
that conclusion, whether by way of agreement with the reasoning of Henchy J. or
disagreement with anything said by Walsh J. or McCarthy J. In those circumstances, the
ratio of the case is difficult to discern.
24. This line of authority comes to an end with Quilligan (No.2). Section 11 of the Criminal
Procedure Act 1993 abolished the right of appeal from the Central Criminal Court to the
Supreme Court. However that section was, in turn, repealed by the Court of Appeal Act
2014.
Jurisdiction under the Constitution
25. Prior to the 33rd Amendment, Article 34.4.3º of the Constitution provided for the
jurisdiction of the Supreme Court in the following terms:
The Supreme Court shall, with such exceptions and subject to such regulations as
may be prescribed by law, have appellate jurisdiction from all decisions of the High
Court, and shall also have appellate jurisdiction from such decisions of other courts
as may be prescribed by law.
Page 8 ⇓
26. It is important to stress here that in accordance with this provision the Oireachtas was
clearly entitled to exclude (as well as to regulate) categories of cases from the Court’s
jurisdiction. The provision for the conferral by law of an appellate jurisdiction is also
relevant in this case, with the jurisdiction in respect of appeals from the Court of Criminal
Appeal being a clear example. The Court of Criminal Appeal was itself established by
statute (originally by s.8 of the Act of 1924, and subsequently under s.3 of the Courts
(Establishment and Constitution) Act 1961), rather than by the Constitution, and the
appeal jurisdiction and machinery was, similarly, created by law.
27. The 33rd Amendment provided for the establishment of the Court of Appeal. Article
34.4.1º sets out the appellate jurisdiction of that Court in the following terms:
4.1º The Court of Appeal shall –
i
save as otherwise provided by this Article, and
ii
with such exceptions and subject to such regulations as may be prescribed by
law,
have appellate jurisdiction from all decisions of the High Court, and shall also have
appellate jurisdiction from such other courts as may be prescribed by law.
28. The reference to the possibility of exceptions and regulations, as prescribed by law,
mirrors the previous position relating to the Supreme Court. There is a clear example of
the legislative conferral of a further appellate jurisdiction in s.8(3) of the Court of Appeal
Act 2014, which provides for the vesting in the Court of Appeal of all jurisdiction which
was, immediately before the establishment day, vested in or capable of being exercised
by the Court of Criminal Appeal. This was subject only to a transitional provision (s.78)
which stipulated that the Court of Criminal Appeal should continue to have jurisdiction in
respect of any proceedings that had been initiated and heard, in part or in full, before the
establishment day. Thus, although s.3 of the Courts (Establishment and Constitution) Act
1961 has not been repealed, the Court of Criminal Appeal could have no jurisdiction in
respect of any matter not coming within this exception. It seems to me that in those
circumstances the continued existence of s.29 of the Act of 1924 may be explicable by
reference to the possibility that some case dealt with and determined by the Court of
Criminal Appeal may yet give rise to an application for a certificate for an appeal to this
Court.
29. The 33rd Amendment also altered both the scope of the Supreme Court’s jurisdiction and
the machinery for its exercise. Article 34.5. deals with appeals to this Court from
decisions of the Court of Appeal and the High Court as follows:
5.3º The Supreme Court shall, subject to such regulations as may be prescribed by law,
have appellate jurisdiction from a decision of the Court of Appeal if the Supreme
Court is satisfied that –
i
the decision involves a matter of general public importance, or
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ii
in the interests of justice it is necessary that there be an appeal to the
Supreme Court.
5.4º Notwithstanding section 4.1º hereof [i.e. the jurisdiction of the Court of Appeal],
the Supreme Court shall, subject to such regulations as may be prescribed by law,
have appellate jurisdiction from a decision of the High Court if the Supreme Court is
satisfied that there are exceptional circumstances warranting a direct appeal to it,
and a precondition for the Supreme Court being so satisfied is the presence of
either or both of the following factors:
i
the decision involves a matter of general public importance;
ii
the interests of justice.
30. There is no longer any reference to the possibility of the creation by the legislature of
exceptions to the Court’s jurisdiction, or to the possibility that any further jurisdiction
could be conferred by law on the Supreme Court, as opposed to the Court of Appeal.
Whether, in the circumstances, a certification procedure such as that operated in the past
in respect of appeals from the Court of Criminal Appeal should be considered as an
exclusion, as regulation, or as the conferral of an additional appellate jurisdiction from the
decisions of a court that is not the High Court or the Court of Appeal may be open to
question. The right of appeal set out in Article 34 relates only to decisions of those courts,
and furthermore is now based on a requirement that this Court be satisfied that certain
constitutional criteria are met. However, while these issues may fall to be resolved in the
future, they do not require to be addressed in this case.
31. What is certainly clear is that there is no category of decisions, of either the High Court or
the Court of Appeal, that may not be appealed to this Court. The key question in every
case will be the criteria set out in the Act. Thus, the Court has granted leave to appeal
against decisions of the High Court made under statutes that provided that such a
decision was to be final and unappealable, or appealable only with a certificate from the
[2017] IESC 10 for examples dealing with, respectively, Circuit Court appeals and the
Planning and Development Act 2000). That situation arises because the Constitution no
longer permits the exclusion of any category of case from the appellate jurisdiction of this
Court (in contrast to that of the Court of Appeal). Given the terms in which the
Constitution has conferred the Court’s jurisdiction, legislative intervention has not been
necessary to enable such appeals.
Discussion
32. Given the foregoing description of the Court’s jurisdiction, I cannot see that the
Constitution envisages any category of case in which the Court would have jurisdiction to
hear an appeal, and to express a view, but would not have jurisdiction to make an order
to put its decision into effect. In my view Quilligan (No.2) is not of assistance here.
Assuming, for the purposes of the discussion, that Hederman J. favoured the analysis of
Henchy J. over that of Walsh and McCarthy J.J. (although not to the point of expressing
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agreement with it), nonetheless I do not consider that the analysis can determine the
outcome in this case, given the constitutional arrangements now in place.
33. Taking in turn the issues that are relevant in the instant case, the first point is that O.58
of the Rules of the Superior Courts (S.I. 583/2018) is, obviously, directly concerned with
the operation of the new jurisdiction post the 33rd Amendment. The questions in Quilligan
(No.2) as to the applicability of the Rules do not, therefore, arise. Order 58 r. 29 provides
that, subject to the provisions of the Constitution and of statute, the Supreme Court has
on appeal, and may exercise or perform, all the powers and duties of the court below, and
may give any judgment and make any order which ought to have been made, and may
make any further or other order as the case requires. It seems to me that, rather than
being ultra vires as suggested by Henchy J., this provision is entirely consistent with his
analysis in O’Shea, quoted above, as to the fundamental characteristics of an appellate
jurisdiction in our jurisprudence. The essential point is that the 33rd Amendment did not
create an advisory jurisdiction, and the basic task of this Court is to play its part in the
administration of justice by determining cases. As O’Donnell J. observed in McDonagh v.
Sunday Newspapers [2017] IESC 59 (at paragraph 15):
“It is important to recall that the purpose of any appeal is not in itself just to decide
points of law: it is to decide cases. The reason why a party appeals is to seek an
order different from that made by the court below, not merely a different
determination as to law, however interesting that might be.”
34. If the Court has jurisdiction to hear an appeal, I think that it follows that it must, as
Henchy J. said in O’Shea, be able to vary the decision of the lower court at the instance of
the party legally aggrieved by it. There is nothing in the terms of the 33rd Amendment to
suggest the possibility that the Court might, in some instances, lack that power.
35. Henchy J. felt that, at the very least, legislation would be required to give jurisdiction to
order a retrial. I do not believe that the example relied upon by him, in relation to the
jurisdiction of the Court of Criminal Appeal to order a retrial, is apposite in the context of
the current constitutional regime. The Court of Criminal Appeal, a creature of statute, had
been expressly conferred with power to uphold or to quash a conviction. Either result
would represent the finding of the Court on the issues presented to it. It was in no sense
a necessary consequence of those powers that it should be able to order a retrial where
the conviction was quashed. The legislature having made such provision, this Court
interpreted it (in Griffin) as not being intended to be used as an instrument of
harassment, or to allow the prosecution to mend its hand after failing to adduce an
essential proof. While couched in terms of statutory interpretation, the ruling could just as
well have been expressed in terms of fundamental fairness, or the need to exercise
statutory powers in a manner consistent with constitutional rights.
36. The respondent has also cited the judgments in J.C., without pointing to any particular
part of any particular judgment. It is submitted that the judgments make it clear that
there would have been no jurisdiction to order a retrial without the statutory provisions
under consideration. However, that goes almost without saying. The trial under
Page 11 ⇓
consideration had taken place in the Circuit Court. Section 23 of the Criminal Procedure
Act 2010 permitted the Director to appeal on a point of law to the Supreme Court and the
Court could, in certain circumstances, direct a retrial. Without that provision there could
not have been an appeal to the Supreme Court in the first place. Its constitutionality was
not in issue in the case. It is noteworthy that s.23 has been amended by s.71 of the Court
of Appeal Act 2014, and that such a case would now go from the Circuit Court to the
Court of Appeal. In addition, the section now acknowledges the constitutional jurisdiction
of this Court by providing that there may be an appeal from the Central Criminal Court to
the Supreme Court subject to the terms of Article 34.5.4, and an appeal from the Court of
Appeal subject to the terms of Article 34.5.3.
37. I think it also worth stressing that in this case the Court is not concerned with a jury
verdict, and the special considerations attending a verdict of acquittal (especially where
that verdict is on the merits rather than by direction). This appeal relates only to
sentence, which is a matter reserved to the trial judge and the appellate courts. In
principle, judicial errors are subject to correction by an appellate court exercising lawful
jurisdiction.
38. The respondent in the instant case seeks to rely upon the provision of a “without
prejudice” appeal in s.29 of the Courts of Justice Act 1924 as exemplifying the legislative
will that the Court should not have jurisdiction to increase a sentence in the absence of
express legislation to that effect, in the same way that Henchy J. found that the “without
prejudice” provision in s.34 of the Criminal Procedure Act 1967 ruled out the possibility
that the Constitution conferred a power to order a retrial. To be clear, the application for,
and grant of, leave to appeal to this Court was made by the Director in accordance with
the constitutional criteria. It was not presented or argued as being governed by s.29. The
only potential relevance of the provision lies in the proposition that it exemplifies a
constitutional principle that there can be no “with prejudice” sentence appeal in the
absence of specific legislative provision.
39. In my view, the omission from the current version of Article 34 of any reference to a
possibility that the Oireachtas could legislate to exclude (as opposed to regulate) any
class of case from the appellate jurisdiction of the Court means that such exclusion
cannot be brought about by implication or inference, any more than it could by express
legislative provision. Again, if the Court has jurisdiction to hear an appeal it seems to me
to follow that it must have jurisdiction to make such order, subject to the Constitution and
any relevant legislation, as is appropriate in the interests of justice.
40. The issue of autrefois acquit does not arise in the circumstances, and nor does any
question of treating the High Court as an inferior court.
The approach of the Court in a sentence appeal
41. In this case the accused exercised his right to appeal the sentence imposed in the Central
Criminal Court, on the basis of an argument that the trial judge had erred in principle.
The Court of Appeal having given judgment on that issue, the Director has exercised the
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right, available to any litigant in that Court, of seeking leave to appeal to this Court in
relation to that judgment.
42. No constitutional principle applicable to sentencing has been identified that could prevent
this Court from making an appropriate order if it finds an error in the judgment of the
Court of Appeal. However, in seeking to identify the appropriate order it seems to me that
the Court should bear in mind certain factors. The first is that the correct approach to the
outcome will be largely dictated by the nature or categorisation of the appeal. The second
is that this Court does not have, and is not likely to accrue, the day-to-day experience of
sentencing that is undoubtedly possessed by the trial judges and the Court of Appeal. It is
therefore undesirable in principle that the Court should take on the role of a sentencing
court where it is not necessary. It seems to me that, as a general principle, it is only if
the Court concludes that both of the lower Courts erred in principle that it should embark
on the sentencing process itself. However, I would not wish to be taken as excluding the
possibility that it might be appropriate in other, exceptional circumstances.
43. In this case, those factors lead me to conclude that, in the first place, the Court cannot
apply the criteria that it might in an “undue leniency” appeal. This was not a prosecution
appeal, and the Court of Appeal did not, accordingly approach it as such. As it was the
respondent’s appeal, the task was to determine whether the trial judge had erred in
principle. This Court has found that the Court of Appeal erred in carrying out that task.
The consequence of that finding is, in my view, that the sentence imposed by the trial
judge should stand unless the Court considers that, for a reason other than that identified
by the Court of Appeal, it represents an error in principle. In this particular case, I agree
with Charleton J. that the trial judge approached the matter correctly and did not err.
44. I do not find any exceptional circumstances in the case that might justify the Court in
substituting its own sentence. The evidence adduced on his behalf shows that the
respondent has made reasonably good use of his time in custody. However, there is
nothing exceptional about his good conduct, especially given that the trial judge had built
in an incentive for rehabilitation in suspending part of the sentence.
45. I acknowledge that the respondent has been put through some extra stress as a result of
the Director’s appeal. However, it does not seem to me that the situation is the same as
that arising in an “undue leniency” appeal. In such cases, the accused person has, from
the date on which the trial judges passes sentence, an expectation of being released on a
specified date and is likely to focus intently on that date. A successful prosecution appeal
will almost certainly mean extra stress, particularly where the original sentence was
relatively short. In this case, it was the respondent who took the initiative in appealing,
and thus opened up the possibility that the sentence would actually be increased in his
own appeal. In the circumstances, the Director’s appeal to this Court has served simply to
deal with the error of the Court of Appeal and to bring about the restoration of the
original sentence.
46. In this case, since the Court considers that the trial judge assessed sentence correctly
and did not err in principle, I would not consider it appropriate to interfere with her order.
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47. I would therefore set aside the order of the Court of Appeal and affirm the order of the
Central Criminal Court.
Result: Quash Court of Appeal order and restore decision of the Central Criminal Court re imposed sentence.