About this case:

• Citation:
  [2023] IEHC 664
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Delivering judgment for the High Court, Ms Justice Garrett Simons found that the decision of the Special Criminal Court was “not invalidated by the absence of a finding that the acquitted person is ‘factually innocent’ (as opposed to merely presumptively innocent)” and that a miscarriage of justice “may be certified on the distinct ground that there has been a grave defect in the administration of justice”.

Background

On 12 April 2021, the Special Criminal Court certified pursuant to s.9 of the Criminal Procedure Act 1993 that there had been a miscarriage of justice in relation to the conviction of the second respondent of membership of an unlawful organisation pursuant to s.21 of the Offences against the State Act 1939.

On appeal, the conviction was set aside. The second respondent was acquitted in a subsequent retrial following the emergence of a newly-discovered fact — that an assertion made by a high-ranking garda officer while giving belief evidence was “seriously incomplete and misleading” as a result of his likely “double counting” of certain matters when forming his belief.

Without the option of a statutory appeal, the DPP sought leave to apply for judicial review, which was granted on 2 March 2022. The DPP sought to quash the certificate on the basis that the Special Criminal Court erred in finding that a miscarriage of justice had occurred where the court had made a finding that the second respondent was “not factually innocent”.

The DPP further contended that the conduct of the prosecuting authorities had not given rise to a grave defect in the administration of justice, contrary to the criticisms of the court.

The High Court

Mr Justice Simons noted the concept of “double counting” to play a pivotal role in the decision to issue a certificate. Stating that the offence in s.21 of the 1939 Act is unique in that opinion evidence as to guilt is admissible, the court noted the Supreme Court’s decision in Redmond v. Ireland [2015] 4 I.R. 84 to the effect that belief evidence must be supported by other evidence independent of the witnesses giving the evidence which implicates the accused in the offence charged.

Explaining that “double counting” describes the risk that the independent evidence supporting the belief might have contributed to the formation of the belief, Mr Justice Simons continued: “To avoid this risk, it has become the norm for the officer giving belief evidence to state that the belief is not based on anything that arose during the investigation of the offence or from the arrest and detention of the accused.”

The judge explained that the prosecution had sought to rely on “independent” evidence relating to the movement of two vehicles on 16 December 2014, one of which was found to contain two explosive devices, and the other of which the second respondent was alleged to have been the driver.

Mr Justice Simons acknowledged: “The difficulty with this supposedly independent evidence is that the intelligence file, upon which the belief evidence was based, contained a summary of the events of 16 December 2014. Unless the high ranking garda officer had consciously discounted this information, the circumstantial evidence in relation to the events of 16 December 2014 could not be regarded as independent evidence.”

Finding that the Special Criminal Court had certified a miscarriage of justice “solely on the ground of a grave defect in the administration of justice”, Mr Justice Simons clarified: “The case law makes it clear that it is open to a court to grant a certificate on this basis alone, i.e. in the absence of a finding of factual innocence.”

The court considered the complaint that the certification was irrational where the Special Criminal Court had apparently decided that the second respondent was involved in the movement of explosive devices and had made a ‘positive finding’ to that effect, with the consequence that the Special Criminal Court considered that the second respondent could not be regarded as “factually innocent”.

Mr Justice Simons noted the DPP’s contention that the above finding established that the second respondent was “not factually innocent”, remarking: “It amounts, in essence, to a finding that the acquitted person is guilty of a criminal offence… The acquitted person is still presumed innocent but has not established factual innocence such as would justify certifying a miscarriage of justice on that specific basis.”

The court determined that it was not open to a certifying court to purport to impute guilt to the second respondent as such would undermine the presumption of innocence under the Constitution and the European Convention on Human Rights. Therefore, the judge rationalised, the DPP’s argument that the Special Criminal Court found ‘beyond reasonable doubt’ that the second respondent was involved in the movement of explosive devices was not well founded as it would have involved the criminal court making a finding in respect of an offence for which he had not been tried.

Turning to the DPP’s contention that the presumption of innocence has no place in an application for a certificate under s.9 of the 1993 Act, Mr Justice Simons warned that “this submission goes too far. A person who has been acquitted continues to enjoy the presumption of innocence… It is correct to say that an acquittal does not imply factual innocence.” The judge continued: “It does not, however, follow as a corollary that the certifying court is equally entitled to determine that that person is ‘not factually innocent’.”

Addressing the assertion that the certifying court erred in finding a grave defect in the administration of justice justified the certification, Mr Justice Simons pinpointed the applicable test in People (DPP) v. Abdi [2022] IESC 24, that if innocence was not demonstrated in consequence of an acquittal following the discovery of a new fact, what was required to be demonstrated for a certificate to issue was such bad faith on part of the State undermining the justice system, or such a failure in the administration of justice due to the error, that the prosecution is fundamentally undermined.

Finding that it was not for the court in a judicial review to consider de novo whether there had been a miscarriage of justice, Mr Justice Simons observed that the Special Criminal Court had properly identified the criteria to be considered in determining whether a miscarriage had occurred, and so he could only determine whether the conclusion reached was one that no reasonable decision-maker could reach.

The judge confirmed that the Special Criminal Court’s decision lay within the range of reasonable decisions which could have been made, and that the DPP had failed to identify any error in the its approach, noting that “any suggestion that the High Court should apply a more exacting standard of review because there is no statutory right of appeal against the Special Criminal Court’s decision is incorrect”.

Conclusion

Reiterating that a miscarriage of justice may be certified “on the distinct ground that there has been a grave defect in the administration of justice”, the court dismissed the judicial review.

Director of Public Prosecutions v. Special Criminal Court & Anor [2023] IEHC 664