Supreme Court rules third trial of alleged kidnappers can go ahead

About this case:

• Judgment:
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Niall Byrne and David Byrne had been listed for trial together before the Dublin Circuit Criminal Court in the first term of 2015 on offences of kidnapping the wife and two children of an employee of Securicor and of robbing that firm of a large sum of money.

The question at trial had been whether the prosecution had proof beyond reasonable doubt that the accused were part of the criminal gang that committed the kidnapping and robbery.

Judicial review had been sought, prohibiting the third trial from going ahead.

The High Court judge Hogan J had refused to prohibit a third trial in the case of David Byrne, but had agreed to prohibit the third trial of Niall Byrne. The determining issue was the emergence of new evidence: while a third trial might tender new evidence against David Byrne, this was unlikely in the case of Niall Byrne.

The judge observed that there was a general presumption against third trials, but this was not a firm rule of law.

David Byrne appealed the decision in respect of his third trial, and the Director of Public Prosecutions appealed the decision in respect of Niall Byrne.

The Supreme Court first considered whether there was a working presumption against permitting a third trial of an accused person on a criminal charge.

After reviewing the relevant case law, the Supreme Court determined that “while there is no working presumption that a third trial ought to be prohibited, it is also apparent that a point can come where further trials will be regarded as so oppressive as not to be in accordance with the constitutional guarantee of a criminal trial in due course of law in Article 38.1.”

The second issue was therefore to identify the circumstances whereby a third trial would not be subject of an order of prohibition.

After again considering relevant case law in both Ireland and other jurisdictions, the Court found that relevant considerations included:

How serious the crime under prosecution was; whether the complexity of the case may explain how a jury has been unable to agree a verdict previously; whether the evidence is on the face of it such that a reasonable prosecutor would regard the case are strong; whether there is evidence of oppression of an accused beyond what might be expected in the course of a re-trial; whether the defence has contributed to jury disagreements through unfair means.

The third issue was that the role of the Director of Public Prosecutions in making such decisions should be respected, but could be demonstrated to be wrong, with the burden of proof resting on the applicant seeking to challenge the decision to prosecute again.

The Supreme Court then turned to the facts of the specific case.

The Court acknowledged that if a third trial took place it would be ten years since the offences, but noted that the delay had been due to the complexity of the case and by judicial review “taken by Niall Byrne claiming an entitlement to have the entire Internet swept of any comment in relation to him; Byrne v DPP IEHC 383.”

The Court also acknowledged the serious nature of the crime: “children were held and abducted at gunpoint, people were tied up in a forest on the understanding of those who imprisoned them that ties which held them could eventually be undone but with no expectation and no thought of care for their safety should that be a miscalculation. A loving husband and father was coerced into acting contrary to his duty and instincts as a family man and as a loyal employee. Overall, an air of menace hung over the fate of each member of the family that was made captive and subjected to armed duress.”

The Court considered the High Court’s decision to differentiate on the grounds of new evidence, finding that the availability of fresh evidence is merely part of the balance.

Finally, the Supreme Court observed that a trial should be focused, and that a lack of focus in a prior trial may also be examined in the overall balance as to whether a further retrial should be permitted.

Concluding, the Court observed that “While a decision by the Director of Public Prosecutions to order a third criminal trial after juries have failed to agree a verdict on two prior occasions is at the extreme pole of prosecutorial discretion, it is not necessarily an abuse of process or an infringement of the right of the accused to a trial in due course of law.”

“Where cases involve unusually grave crimes and an assembly of complex facts, a third trial remains possible where two prior juries have disagreed. The case facing Niall Byrne and David Byrne meets the criteria identified in the case law for permitting a third trial notwithstanding two prior jury disagreements and should not, therefore, be prohibited.”