Criminal law Update, January 2012 June Bar Council CPD. Siobhán Ní Chúlacháin BL Saturday 29 JUNE 2013

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1 Criminal law Update, January 2012 June 2013 Bar Council CPD Siobhán Ní Chúlacháin BL Saturday 29 JUNE 2013 Recent Supreme Court decisions of interest to Practitioners in Criminal Law What follows is a whistle-stop tour of recent decisions of the Supreme Court with a view to high-lighting issues of potential relevance to practitioners of criminal law. Readers should note that issue highlighted and quotes featured are selective. In most cases, the facts have been butchered to fit the time allocated: In all cases, the legal arguments and reasoning have been butchered for the same reason, with the author s apologies to the Court. A. Statutory Interpretation A.1. McAuley v Governor of Mountjoy Prison 1 This was a decision delivered by Hardiman J refusing an Order of certiorari of a Governor s decision to suspend privileges. The applicant prisoner had a large number of P19s and a very bad disciplinary record. He was sanctioned for possession of a mobile phone in his cell in August, The hearing into that breach of prison rules was adjourned until the prison officer was available, it reconvened on the 7 th September 2012 and the sanction imposed was loss of privileges for 42 days from 7 th September to 19 th October. On 7 th September, the applicant was again found with a mobile phone in his cell and a hearing took place on the 11 th September, 2012, whereby the applicant lost privileges for 56 days to commence on the 26 th October, He took issue with the Prison Governor s powers to defer the loss of privileges. The Court concluded that an express statutory power carries implied ancillary powers where needed and ruled that the power to carry out an inquiry and 1 McAuley v Governor of Mountjoy Prison [2012] IESC 57 1

2 impose sanctions was not derived from a penal statute nor was the fixing of a date on which a sanction was to commence, a penal procedure:- Where a statute creates a power to convene an inquiry or other formal hearing there is much which, although unspecified, has to be regarded as a necessary incident of a power to convene a hearing. The person presiding at such a hearing must necessarily have incidental powers. A good example of such an incidental power is a power to adjourn the hearing in the absence of a witness, as actually occurred in this case. Equally, the presiding officer must have a power to determine the order in which the various persons interested can address the hearing and other incidental matters. I believe the date of the commencement of the sanction is such a matter. To hold the contrary would be, for the reasons set out above, actually to cut down the Governor s statutory jurisdiction. If it were necessary to do so, I would hold that a power of the kind in question here can be implied into the plain statutory provisions providing for an inquiry into an alleged breach of discipline, and for the sanctions required by statute to be at the disposal of the Governor in the event that a complaint is upheld. A.2. DPP v Cagney 2 This was a case stated from Circuit Court in a prosecution for drink driving of an accused who failed to provide a breath sample. The decision determines that the accused was entitled to an acquittal where the relevant Garda had not warned her that a failure to provide a blood or urine sample would preclude her from relying on a defence of having a special and substantial reason for failure to provide a breath sample. The decision is of wider significance than just driving offences insofar as it a) establishes that the Courts will infer that there are obligations on Gardaí where fair procedures and/or interests of justice so require; b) comments in relation to the operation of law in the context of absolute offences; c) distinguishes the operation of the defence under s23 from other legal defences which may not be mentioned to Gardaí in questioning but which can be relied upon at a later stage, even if certain inferences can be drawn from a failure to mention them at an earlier stage. In the course of his judgment, Clarke J stated:- There is nothing in the Road Traffic Acts themselves which require, as a matter of statute, that any such warning be given. However, it is clear from the line of authority to which reference has been made that, at least in the circumstances then under 2 DPP v Cagney [2013] IESC 13 (Clarke J, 11 March 2013) 2

3 consideration, this Court was prepared to imply such an obligation. 3 In my view there would be serious questions as to the consistency with constitutional rights of an absolute offence of failing to provide a breath sample to which there was no defence based on inability or incapacity. While there would be a an obvious connection between a failure to provide a breath sample and the question of drunk driving, it must be open to very considerable doubt as to whether an absolute offence, allowing for no defence based on inability or incapacity, would interfere with the rights of a potential accused to as little extent as was reasonably practicable so as to attain the end of the proper prosecution of those who drive drunk. 6.4 On that basis it seems to me to be appropriate to approach this question, having regard to the nature of the offence in this case, on the basis that some form of defence based on an actual and non contrived inability or incapacity is one which is constitutionally mandated. 6.5 It must be recalled that there was an important constitutional backdrop to the decision of this Court to find inherent in the Road Traffic Acts a requirement to warn persons required to give a sample as to the consequences of failure so to do. That constitutional backdrop was the fact that persons, ordinarily, are not ordinarily obliged to take steps which might involve or require such persons to provide evidence or materials which might be relied on in a prosecution brought against them. The requirement, under pain of criminal penalty, to provide a sample which might have the effect of helping to establish an offence of drunk driving, was, therefore, a deviation, albeit a permissible one, from the normal constitutional regime. Against that backdrop this Court considered it necessary to hold that there was an obligation to inform even though nothing in the wording of the relevant legislation expressly provided for such a requirement. A.3. Delaney v Judge Coughlan 4 The Supreme Court was asked to consider the powers of a District Judge to detain cash when satisfied that cash consisted of the proceeds of crime. The 1994 legislation had originally only applied to cash which was the proceeds of drug trafficking but it was amended in 2005 to broaden its application to the proceeds of crime. The 1994 legislation allowed for initial detention by Gardaí of the cash for up to 48 hours to be extended on application to the District Court. When the legislation was amended, the extension Order by the Court in cases of proceeds 3 At paragraph Delaney v Judge Coughlan, 27 th June

4 of crime (as opposed to drug trafficking) was not apparently covered by the amendment. The Court declined to decide whether the provisions were penal or not and held that regardless of whether or not the statute was a penal statute for the purposes of interpretation, section 5 of the Interpretation Act 2005 allowed the intention of the legislature to be ascertained from the Act as a whole. The long title of the Act stated it to be An Act To Make Further Provision In Relation To The Recovery and Discovery Of Proceeds Of Crime and MacMenamin J found that unquestionably, the espoused intention of the legislature was to broaden the scope of the legislation so as to encompass the proceeds of crime generally, rather than those exclusively confined to drug trafficking. The Court followed the earlier authority of DPP v Moorehouse 5 and held that even a provision in a penal statute identifying the ingredients of an offence should not be read so as to lead to an artificial or absurd result. The section under scrutiny did not create an offence but set out the grounds for jurisdiction upon which a District Judge may order the continued detention of goods which have already been seized. The Court found the meaning of the provision to be clear by necessary implication 6 and ruled that the argument on strict construction failed. In conclusion, the Court stated:- Of course, in interpreting a statute a court must take the greatest care to lean against the possibility of doubtful penalisation, but this is not such a case. If there is an issue here, it is simply one of unhappy drafting; the error is very minor and the legislative purpose is clear. The court is permitted to and should read the Act in its proper construction. 7 A. 4. DPP v Donnelly (s16 case stated) 8 The appellant was driving a car on which both his parents were insured but he was not. A prosecution for driving without insurance ensued in the District Court and having lost there, the appellant went to the Circuit Court, where he raised points of law in his defence, including that the insurer would still have been liable 5 DPP v Moorehouse [2006] IR Delaney v Judge Coughlan, 27 th June 2012, at para 45 7 Delaney v Judge Coughlan, 27 th June 2012, at para DPP v Donnelly (s16 case stated) [2012] IESC 44, 23 rd July,

5 for the damage caused to any third party. Teehan J stated the following questions of law to the Supreme Court:- a) In section 56(1) of the Road Traffic Act 1961, does reference to a Vehicle Insurer being liable for injury caused by the negligent use of a vehicle include liability to pay damages to, or to satisfy judgment obtained by a third party claimant pursuant to section 76 of the said Act? b). If the answer to Question 1 is yes, save where a vehicle was stolen, can liability be avoided by the Vehicle Insurer on the basis of a clause or provision in the contract of insurance which limits cover to persons who are either named or indicated in the Policy of Insurance having regard to [EU law]? The Court answered the first question in the negative, finding that a motor insurance policy is a policy of indemnity and that:- the liability of an insurer, in the event of injury caused by the negligent driving of an insured, is to indemnify the latter. The duty is owed to the insured, whose liability the insurer is bound to meet. It is not a liability owed directly to the injured party. That liability remains the liability of the insured. 9 The second question didn t arise as a result of the negative answer to the first. This case also involved some consideration about the rules to be applied when interpreting penal statutes, which the Court held did not require to be applied as the wording of the Statute was clear and unambiguous. B. Delay Cases B.1. Enright v DPP 10 This was the applicant s second set of proceedings to prohibit his trial for the offence of forgery dating from The first proceedings considered certain issues of delay and prejudice (2008), which the Court held were res judicata. The applicant then applied to the ECtHR in respect of the delay. That application was settled by way of a sum of monetary compensation following on from the ECtHR decision in MacFarlane. The Supreme Court considered the impact of that upon the case. 9 DPP v Donnelly [2012] IESC rd July, 2012 (Fennelly J) 10 Enright v DPP [2012] IESC 54 (MacMenamin J, 26 October 2012) 5

6 The applicant complained of systemic delay and delays within the Court system. He was a solicitor and was acquainted with the Judge assigned to his area so a special Judge was assigned for his case. Various delays occurred arising from the case was adjourned being on 8 occasions because of the assigned Judge s absence (13 months delay). No application was made to assign any other Judge. The State Solicitor also knew the applicant so the case was dealt with by another State Solicitor who fell ill. There was no appearance by the DPP on a couple of occasions and no suitable trial slot available. When the trial date of April 2011 was fixed, there had been an accumulation of about 30 months delay. It was submitted that this delay had to be considered in light of the earlier Supreme Court determination in his case and the antiquity of the charges. MacMenamin J concluded that there was an added obligation on the prosecution in the circumstances of the case. He found the delay on the part of the DPP to be blame-worthy but rejected the contention that the applicant had no effective remedy to ensure a fair trial, finding that the applicant had failed to take reasonable steps to vindicate his right, such as applying for another Judge to hear his case. However, as there was no prejudice to the applicant and there existed a large number of pieces of documentary evidence, the Order for prohibition was refused. The applicant was unable to point to any counterbalancing factor in favour of prohibition as against the public interest in the prosecution of crime. The test in PM v Malone was applied. With regard to the EctHR aspect, the Court held that the right to compensation for failure to provide an expeditious trial was quite different from the grounds for the relief of prohibition. The Court re-stated the import of the ECtHR decisions about delay which do not require trials to be stopped only to a monetary award, which has no consequence for pending prosecutions. B.2 Kennedy v DPP 11 The applicant sought to prohibit a prosecution initiated against him in 2010, arising from events dating from 1992, based on accusations of having given money to County Councillors in corrupt circumstances. One of the issues in the case arose as a result of an Order for discovery of certain documents in the JR proceedings, on foot of which the DPP claimed privilege. The 11 Kennedy v Director of Public Prosecutions [2012] IESC 34 6

7 High Court Judge viewed the documents in question and held that the public interest was against the documents being discovered. The Supreme Court judgment had to consider whether that was an appropriate procedure in the case and gave some consideration to the EctHR decision in Edwards & Lewis v UK. 12 The Court declined to intervene in the trial Judge s determination on the issue. The Court refused to consider the question of objective bias which arose as a result of the determination of the question of privilege on the grounds that it had not been opened to the High Court judge. However, Fennelly J s judgment sets out a very useful summary of the law on objective bias. With regard to the right to an expeditious trial, Denham CJ reiterated the three interests set out in Barker v Wingo relevant to the grant of prohibition when the issue of a right to an expeditious trial arises. She pointed out that:- blameworthy prosecutorial delay is not of itself sufficient to prohibit a trial. An applicant would have to establish also that one of his interests protected by his right to an expeditious trial has been interfered with. Even if I were satisfied that there was blameworthy prosecutorial delay by the DPP a further analysis would be required to determine if there had been consequential prejudice to the appellant. 13 She considered the effect of a decision of the ECtHR in the context of an applicant s claim for prohibition. She stated:- The remedy sought in this Court by the appellant was to prohibit his criminal trial. That is a remedy open to an accused under Irish jurisprudence. I have had no case opened to me where a decision of the ECHR determined that as a consequence of delay a trial shall be prohibited. Consequently as the remedy sought by the appellant was to prohibit his trial, an option under Irish law, but not apparently under the ECHR, this claim has been determined on Irish law. 14 In the same case, Clarke J also considered the impact of a determination by the ECtHR on the continuance of domestic criminal proceedings. He followed the above reasoning but added that it does not follow that every case in which the ECtHR determines that there has been a breach of a right to a reasonably expeditious trial necessarily gives rise to a situation where the accused could not have a fair trial, whether for the purposes of the ECHR or under the Constitution. He also gives an excellent analysis of the procedure relating to trial judges viewing documents in privilege claims. 12 Edwards & Lewis v UK [2005] 40 EHRR Kennedy v Director of Public Prosecutions [2012] IESC 34 at paras Kennedy v DPP, at para 80 7

8 Hardiman J dissented, his judgment contains consideration as to whether or not the prosecutorial delay in the case was excusable. He was critical about crucial information being contained in a Garda affidavit as opposed to an affidavit sworn on behalf of the prosecuting authorities, which may be of interest in a submission about the right to cross-examination being subverted. B.3. Cunningham v DPP 15 This decision related to an application for costs in a moot case. The High Court made a finding of prosecutorial delay in the prosecution of Ms Cummingham but not such as to merit prohibiting the trial, an appeal was lodged. No Order for costs was made. Before the appeal came on, the DPP entered a nolle prosequi following the death of an expert witness for the prosecution. When the matter came before the Supreme Court, the case was moot and the only outstanding issue was costs. The Court set out the normal rule and the normal basis for departing from the rule (exceptional public interest, test cases etc). It pointed out that in this case, due to the moot issue, there was no normal result for costs to follow but in the event that that arose as a result of the unilateral actions of one party, costs should be awarded against that party. C. CONTEMPT OF COURT c.1. IBRC v Quinn 16 The judgment in the case sets out the facts at the centre of this case. Sean Quinn Jr was jailed for three months for contempt of Court by Dunne J, following her finding that he had participated in a payment of US 500,000 in September 2011 in breach of a restraining Order made by Clarke J in July 2011 to in relation to the Quinn family assets. Mr Quinn had appealed on the basis that there was no evidence to support his participation in the payment but failed on that point as the majority of the Supreme Court found ample evidence of same and said that the High Court Judge was entitled to reach the conclusion that the contempt of court was outrageous and it upheld the sentence of three months imprisonment. The Supreme Court also found that the High Court did not exceed its powers by 15 Cunningham v DPP [2012] IESC 39, 21 st June, 2012, per Clarke J, Denham CJ and Hardiman J concurring 16 IBRC v Quinn [2012] IESC 51, judgment by Fennelly J, Hardiman J dissenting, 24 October,

9 requiring him to reverse or undo a large number of separate transactions in respect of which there was no contempt finding or even allegation against him. However, Mr Quinn succeeded in relation to his appeal against such part of the High Court Order as related to some of the relief granted which it was conceded, did not flow from any finding of contempt against any party, but were justified by the general need to police the order of Clarke J. This was not permissible. The Court found that as a person who has been found guilty of contempt of court may be required by an order of a court to purge his contempt and may be imprisoned or have another sanction imposed, such as a fine or having assets sequestered. As Fennelly J said: - The point is, however, that the contemnor is required to cease and desist from doing the act which he has committed and which has been held to be a contempt or, where appropriate, to act positively so as to remedy the wrong. In either event, it is the contempt which must be purged. I have not come across any case where a contemnor has been required, pursuant to the contempt jurisdiction, to undo an act in respect of which he has not been found to be in contempt. 17 The Bank had not amended its case so as to allege a broader range of acts of contempt against the appellant (they didn t originally have sufficient evidence to plead those acts). The Court held that in the event that the Bank wished to allege other acts of contempt against the appellant, they should have taken steps either to apply to the High Court to amend the existing motion or to issue a new one. The Court held that:- severity of the remedy of committal to prison for contempt of court necessarily requires due respect for the rights of the parties to be subjected to it. The simplest and most basic of all the requirements of justice is due and fair notice be afforded to the party charged. Lawyers call it audi alteram partem. 18 The Court found that although the case had commenced as:- a perfectly fair and proper hearing on foot of a notice of motion alleging specific acts of contempt against three respondents, but only one against the appellant in the guise of further consideration of the contempt finding, a wide range of new orders were sought against the appellant. While described as coercive orders, they went far beyond the subject-matter of the single finding of contempt. They could not truly be regarded as coercive measures. In their content, they could conceivably have 17 IBRC v Quinn [2012] IESC 51, at paragraph IBRC v Quinn [2012] IESC 51, at paragraph

10 formed the subject-matter of an application for interlocutory injunctions. The judgments of both Fennelly J and Hardiman J discuss the distinctions between civil and criminal contempt, the standard of proof to be applied and the requirement for fair procedures. Indeed, the lack of fair procedures was the basis on which part of the High Court Order was set aside. There is some consideration about whether the Courts have inherent jurisdiction to protect its own Orders. D. CONSTITUTIONAL CASES C.1. Fleming v Ireland [2013] IESC 19 Denham CJ (judgment of the court, Murray, Hardiman, Fennelly, O Donnell, McKechnie, Clarke JJ): The appellant challenged the constitutionality of s2(2) of the Criminal Law (Suicide) Act, 1993 and also sought a declaration of incompatibility with the ECHR. Under the Act, suicide ceased to be a crime but s2(2) created the criminal offence of aiding or abetting the suicide of another and provides for a potential sentence of 14 years. It is worth noting that the Irish Human Rights Commission, was granted liberty to appear as amicus curiae in the case. The case is of interest on the topic of locus standi (and there has been a recent ruling in the case of Slab Murphy in this regard.) In the special circumstances of this case, which included the fact that the appellant has a terminal illness and is facing imminent death, and that she asserted a right to be assisted to commit suicide, which she submitted she could not do because of s2(2) of the Act, the Court was satisfied that the appellant had locus standi. The case also involves consideration of the presumption of constitutionality and the Court accepted the State s submission that the legislation in question called for a careful assessment of competing and complex social and moral considerations, which legislative branches of government are uniquely well-placed to undertake. Consideration is given to Article 8 of the ECHR and the concept of proportionality in the law. 10

11 On the specific issue of the right to assistance to commit suicide, the Court found that although suicide had ceased to be a crime, that did not establish a constitutional right to commit suicide. The repeal of the common law offence of suicide meant that it is now legally open to a person to do an act which was previously prohibited. The Court found no explicit right to commit suicide, or to determine the time of one s death, in the Constitution. Therefore, the appellant had to argue that the right she was seeking to assert was to be found as part of another expressed right or in an unenumerated right. In the absence of specific authority, the appellant s arguments depended on general principle, too difficult to summarise here. However, the Court concluded that;- the Constitution guarantees rights of general application for the benefit of every citizen and person entitled to assert such rights. The Court accordingly does not accept the submission that there exists a constitutional right for a limited class of persons, which in this case would include the appellant, deducible from their particular personal circumstances. While it is clear that the appellant is in a most tragic situation, a Court has to find and protect constitutional rights anchored in the Constitution... It has not generally been the jurisprudence of the Irish Constitution that rights can be identified for a limited group of persons in particular circumstances no matter how tragic and heartrending they may be. 19 The equality arguments which had been raised were disposed of, as follows:- The Court concludes that there is no constitutional right to commit suicide or to arrange for the determination of one s life at a time of one s choosing. Thus, the appellant has no right which may be interfered with by any disability. As there is no right to commit suicide so issues, such as discrimination, do not arise; nor do values such as dignity, equality, or any other principle under the Constitution, apply to the situation and application of the appellant, as discussed above. 20 Some of the cases above turn on their own facts but others have potential application to different situations. Sometimes, seemingly innocuous cases throw up very unusual and interesting law. ENDS Siobhán Ní Chúlacháin BL. 19 Fleming v Ireland [2013] IESC 19 at para Fleming v Ireland [2013] IESC 19at paras