The People v James Flynn - Criminal Appeal on Retrial Powers

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  The People at the suit of the Director of Public Prosecutions v James Flynn (Approved) [2026] IESC 21 (25 March 2026)

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[2026] IESC 21 | | |
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AN CH?IRT UACHTARACH

THE SUPREME COURT

[2026] IESC 21

Supreme Court Record No.: S:AP:IE:2025:000069

Court of Appeal Record No.: CCAO0007/2024

Special Criminal Court Bill No.: SCDP0009/2021

Charleton J.

O'Malley J.

Woulfe J.

Hogan J.

Donnelly J.

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Between/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

AND

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JAMES FLYNN

Appellant

JUDGMENT of Ms. Justice Donnelly delivered on the 25 th of March 2026

1. This appeal is concerned with the proper interpretation of s. 3 of the Criminal Procedure Act, 1993 which provides for the power of the Court of Appeal to order a retrial, and the exercise of that power.? The appellant was prosecuted for an offence of conspiracy to commit burglary, the details of which were particularised in the indictment.? The particulars of the offence on which the appellant was originally charged were amended by the Special Criminal Court during the delivery of its 'reasoned verdict'.? The appellant was convicted on foot of this amended indictment.? On appeal, this conviction was quashed.? The Court of Appeal ordered a retrial. ?As set out in this Court's determination ([2025] IESCDET 116) published on 18 September 2025, the question arises "as to whether a retrial can be ordered in respect of an offence of which the accused was not convicted."

2. As recorded in the first judgment of the Court of Appeal ([2025] IECA 104), in July 2022, the Director of Public Prosecutions ("the respondent") certified her opinion pursuant to s. 46(2) of the Offences Against the State Act, 1939 ("the 1939 Act") that the ordinary courts were inadequate to secure the effective administration of justice and the preservation of public peace and order in relation to the trial of the appellant on the two charges preferred against him.? In 2023, the appellant was tried before the Special Criminal Court on two counts: conspiracy to burgle contrary to common law, and robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.? On 11 September 2023, the appellant was convicted of conspiracy to burgle and acquitted of the robbery count.

3. The original indictment contained a single count of conspiracy to burgle related to various properties over an approximately four-month period. ?The appellant's conviction under the amended indictment was for an offence of conspiracy to burgle related to a single property over the course of one night (covering two calendar days).? The issue in this appeal arose because of the amendment to the indictment made by the Special Criminal Court during what has been described as its 'judgment' (by the Registrar of the Special Criminal Court when calling the case), the 'delivery of its verdict' (by the Court of Appeal) and 'a reasoned verdict' (in textbooks).? Unfortunately, none of these phrases quite capture the full nature of the rulings that the Special Criminal Court was delivering on the 56 th day of the appellant's trial.? This Court has been informed that the Special Criminal Court was following a general practice where the defence does not make a separate direction application from the closing speech.? The judgment or reasoned verdict of the Special Criminal Court therefore dealt with both the direction points and the verdict points. ?As a consequence, it is difficult to see how a similar scenario could arise in a jury trial where there is a clear demarcation between the application for a direction before the judge and the consideration of verdict by the jury. ?The Special Criminal Court has built up a huge expertise in dealing with complex trials in a fair and efficient manner and there is no doubt that the difficulties which arose here by the manner of amending the indictment will not recur. ?For simplicity, I will use the phrase 'reasoned verdict' in this judgment, but that use should not take from the fact that in this trial it encompassed both the rulings on the direction application and on the verdict.

4. In delivering its reasoned verdict, the trial court found that there was insufficient evidence to convict the appellant of the conspiracy to burgle offence as particularised.? That largely resulted from the finding by the Special Criminal Court that they did not have a basis on which they could cross check or validate the assignment of certain physical cell site locations to the references to the original call data records.? Those links between phone records and geographical locations were an important part of the prosecution case. ?The respondent takes issue with that finding but she did not seek to exercise any right of appeal that may or may not lie against that finding.? The trial court determined that there was sufficient evidence to convict the appellant of an offence of conspiracy to burgle but on a narrower basis concerning conspiracy in respect of a single burglary. ?The Court directed that the particulars of offence be amended and a guilty verdict recorded on that offence.?

5. No advance notice was given by the trial court that it would make this amendment, and no opportunity was afforded to the parties to make submissions on same.? The appellant appealed against his conviction on grounds related to this amendment of the indictment and to the admission of certain evidence.?

Court of Appeal Judgments

6. The grounds of appeal before the Court of Appeal came under two broad headings:

a. Grounds related to the amendment of the indictment, including a breach of natural justice and a claim of lack of jurisdiction of the Special Criminal Court to make the amendments, in particular where these were non-scheduled offences and the respondent had certified her opinion under s. 46(2) of the 1939 Act; and,

b. the admissibility of certain evidence purported to be of an expert nature.

7. On 10 March 2025, the Court of Appeal (delivered by Burns J.) quashed the appellant's conviction on the basis that:

"[T]he manner in which the court effected the proposed amendment breached the appellant's right to constitutional and natural justice and resulted in his trial not being conducted in due course of law, as required pursuant to Article 38 of the Constitution."

Having made that finding, the Court of Appeal determined that it would be inappropriate to consider the remainder of the grounds of appeal.

8. The Court of Appeal subsequently heard further submissions on the issue of whether a retrial should be ordered.? The respondent submitted that the correct order was a retrial on the charge as it was prior to the amendment made by the trial court.? The appellant submitted that no retrial should be ordered.

9. In its second judgment dated 10 April 2025 ([2025] IECA 103), the Court of Appeal (delivered by Burns J.) ordered a retrial of the conspiracy to burgle indictment as originally charged (the order of the Court of Appeal referred to a retrial "for the offence the subject of said conviction").? The Court rejected the appellant's contention that a retrial should not be ordered because of the length of time that he had spent in custody.? It determined that the lapse in time since the alleged offence occurred was not an inordinate amount of time and similarly, was not a reason to refuse to order a retrial.? The Court did not consider that the respondent had delayed in prosecuting the matter.? The Court found that none of the appellant's arguments were sufficient reasons, whether taken alone or collectively, as to why there should not be a retrial in this matter.

10. Having determined that there was a public interest in permitting a retrial, the Court turned to the issue of the offence to which the retrial order ought to be directed: namely the offence as set out in the original particulars or on the amended particulars.? At para [14], Burns J. observed that the effect of overturning the appellant's conviction was that "all legal rulings of the Special Criminal Court have no legal, binding effect."? Thus, the Court held that a valid order amending the original particulars did not exist and that the particulars remained as they originally stood. ?Burns J. stated that the "only jurisdiction which this Court can have, if it is to order a retrial, is to order the retrial of the appellant for the offence which lawfully remains in being, namely the original charge proferred [sic] against the appellant".

11. In his submissions to the Court of Appeal, the appellant said that the principles of double jeopardy and autrefois acquit were engaged in circumstances where the trial court had found that there was not sufficient evidence to convict him on the offence as originally indicted.? The Court of Appeal observed that in respect of the count relating to the conspiracy to burgle offence, an acquittal was not recorded.? It was also highlighted that the effect of the Court's decision in its previous judgment was that all rulings made by the trial court had no legal effect.? Accordingly, the direction of the trial court ruling on the application that there was insufficient evidence before it for a verdict of guilty to be returned on the original particulars did not have legal effect.? Burns J. determined at para [19] that "there is no subsisting valid conviction on the only charge available, namely the original charge reflected at Count 3, as the amendment was unlawful having been made in excess of jurisdiction. ?Further, the effect of quashing the conviction means that there is no verdict in being."? Pursuant to s. 3(1)(c) of the Criminal Procedure Act, 1993, the Court ordered a retrial on the indictment as originally charged against the appellant.

The Legislative Overview

12. The relevant provisions of s. 3 of the Criminal Procedure Act, 1993 ("the 1993 Act") are as follows:

"(1) On the hearing of an appeal against conviction of an offence the Court may?

(a) affirm the conviction ..., or

(b) quash the conviction and make no further order, or

(c) quash the conviction and order the applicant to be re-tried for the offence, or

...

(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may?

(a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda S?och?na to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced;

(b) order the production of any document, exhibit or other thing connected with the proceedings;

(c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings;

(d) receive the evidence, if tendered, of any witness;

(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court."

13. Section 4(1) of the 1993 Act provides:

"Where a person is ordered under this Act to be re-tried for an offence he may, notwithstanding any rule of law, be again indicted and tried and, if found guilty, sentenced for that offence."

The Appeal

14. The submissions of the parties can be divided into a) the issue concerning the Court of Appeal's jurisdiction to order a retrial under s. 3(1)(c) of the 1993 Act and b) the question of whether there ought to be an order for a retrial in a case such as this.

Interpretation of s. 3(1)(c) and the jurisdiction of the Court of Appeal to order a retrial

15. On the issue of statutory interpretation, the appellant submitted that the following principles can be derived from the case law:

"(i) Statutes must [be given] their plain and ordinary meaning;

(ii) All of the words of the relevant provision should be considered;

(iii) Judges should not be tempted to interpret provisions in a manner which they view as resulting in a sensible outcome;

(iv) Where penal statutes are concerned, a particularly strict interpretation must be given to the relevant provision;

(v) The rules of interpretation which apply to penal statutes should not be confined to interpreting offences, but apply to 'any form of detriment'."

The respondent agreed with these principles but added that where the literal approach would result in an unclear, ambiguous or absurd result, then a purposeful approach would be necessary having regard to the scheme of the section, including s. 3(3)(e) of the 1993 Act.? There was also some disagreement as to whether the subsection could be considered a penal provision.? In any event, it is clear from the decision of this Court in Heather Hill Management Co CLG v An Bord Plean?la [2024] 2 IR 222, [2022] IESC 43 (" Heather Hill ") that the context and purpose of the Act form part of the interpretation of every statutory provision.

16. In ordering a retrial as it did, the appellant contended that the Court of Appeal exceeded its jurisdiction.? He submitted that the words used in s. 3(1)(c) of the 1993 Act are clear and unambiguous.? A person can only be sent for retrial of the offence for which they were convicted and not an offence for which they were acquitted.? The appellant also submitted that the wording of s. 3(3) did not permit that Court to make any other order; it did not provide for a residual discretion to order a retrial. ?According to the appellant, the Court of Appeal held that the consequence of finding that the trial court had unlawfully amended the indictment was that it could not send the matter back for retrial on the amended charge.? As summarised by the appellant, the Court found that the "only charge available" was the original charge.? He emphasised that he had not been convicted of this charge.

17. The respondent submitted that the Court of Appeal was correct in its interpretation of s. 3 of the 1993 Act in ordering a retrial.? The respondent said that the order of the Court did not purport to order a retrial of the appellant for an offence of which he was not convicted, but rather it ordered that the appellant be re-tried for the offence of conspiracy to burgle contrary to common law - the same offence for which the appellant was returned for trial and subsequently convicted of.? The respondent noted that the order states as much: "[T]hat the said James Flynn be re-tried for the offence the subject of said conviction".

18. The respondent submitted that s. 3(1)(c) permits the Court of Appeal, on the hearing of an appeal against conviction "of an offence", to quash the conviction and order a retrial "for the offence".? She submitted that, at all times the relevant "offence" for which the appellant was indicted was one of conspiracy to burgle contrary to common law, and that while the particulars were erroneously amended by the trial court prior to conviction, the offence itself remained the same.? She noted that the particulars of the amended indictment were, as referred to by the trial court, "encompassed in and extracted from the particulars originally set out in the indictment". ?The respondent added that what s. 3(1)(c) describes, namely that the Court of Appeal may "quash the conviction and order the applicant to be re-tried for the offence", is exactly what occurred in the present case.? The respondent submitted that the appellant's interpretation would require reading into the subsection words that were not there, i.e. that the retrial could only be for the statement and particulars of offence as set out in the indictment at the time of conviction.

19. The respondent submitted that the subsection is not so prescriptive and rightly so, as indictments are often amended during the course of trials, sometimes on multiple occasions.? The respondent contended that the Oireachtas has equipped the Court of Appeal with the power to order a retrial for the same offence but not to prescribe the scope, breath or wording of the offence as contained in the particulars.

20. The respondent submitted that where the prosecution proceeds with a retrial, they are not restricted to presenting their case in the same manner as the first trial, and they can do this even if it means taking advantage of the opportunity to mend their hand regarding a defect that occasioned the quashing of the conviction.? An accused could also present their case differently.? The respondent relied on McNulty v DPP [2009] 3 IR 572, [2009] IESC 12 (" McNulty ") in this regard. ?The respondent submitted that it would be for the trial court to remedy any potential unfairness.?

Retrial and Abuse of Process

21. With reference to The State (Healy) v Donoghue [1976] IR 325, the appellant submitted that the guarantee of a trial in due course of law is all-encompassing.? He observed that there are circumstances where a retrial would amount to a violation of due process.? The appellant relied on The People (Attorney General) v Griffin [1974] IR 416 (" Griffin ") to demonstrate that the prosecution should not be entitled to obtain an unfair advantage through a retrial where they failed to tender evidence sufficient to sustain a conviction.? He also relied extensively on the decision of this Court in The People (DPP) v JS [2025] IESC 32.? He said that the analysis of O'Malley J. in that decision is focused on the principle of fairness, and that in the present case it would be unfair if the prosecution were allowed to mend their hand with respect to the failure to prove certain phone records.

22. In response, the respondent reiterated that she is not restricted to presenting the case in the same manner as the first trial.? This was made clear in McNulty by Hardiman J. who concluded that while there may be circumstances where a change of approach between trial and retrial could be oppressive, this would be a matter for the judge presiding at the second trial and not for judicial review.?

23. The appellant's submissions also focussed on the issue of autrefois acquit.? He referred to Sweeney v Judge Brophy [1993] 2 IR 202 and Stephens v Connellan [2002] 4 IR 321, [2001] IEHC 221.? He also referred to Sheehan v District Judge Reilly [1993] 2 IR 81 which was cited in Stephens v Connellan as authority for the proposition that where a plea of autrefois acquit is rejected, that is not a bar to not remitting the matter for retrial.? In that case, Finlay CJ. had regard to "considerations of fairness and due procedure".? The appellant relied on Dineen v Judge Delap [1994] 2 IR 228 and on DS v Judges of the Cork Circuit Court [2008] 4 IR 379, [2008] IESC 37 for further support of that proposition. ?In my view however, these cases concern remittal after an order of certiorari has issued and thus, are not directly relevant to the exercise of the Court of Appeal's jurisdiction to order a retrial after quashing a conviction on appeal.

24. The appellant noted that the Special Criminal Court operates as both triers of fact and law and that he was at a particular disadvantage by virtue of this.? He submitted that while it may be difficult to parse the trial court's findings in a manner which would allow him to rely on a plea of autrefois acquit, that difficulty did not mean the finding could not be construed as a verdict. ?Whether or not he comes within the definition of autrefois acquit, the appellant submitted that the interests of justice weigh against the making of an order for a retrial as he said that "the unfairness which pertains to his continued prosecution is so extreme that same should be prohibited."

25. The respondent submitted that the arguments in relation to double jeopardy and autrefois acquit cannot be relied upon by the appellant because an acquittal was not recorded on the original conspiracy charge, relying on The People (DPP) v Quilligan (No 3) [1993] 2 IR 305. ?The respondent submitted that such pleas in bar are normally made at the arraignment stage of the trial but may be made at any stage of the trial, and can be made as part of or in conjunction with an application to the trial court pursuant to the principles enunciated in The People (DPP) v PO'C [2006] 3 IR 238, [2006] IESC 54 (" PO'C ") ** (concerning the jurisdiction to prevent a trial from proceeding should matters arise which render the trial process unfair).

26. The appellant submitted that in considering the question of due process and fairness, this Court must consider all relevant factors bearing on the potential fairness of directing a retrial.? The first factor was the unexplained delay. ?The alleged offence occurred between 2012 and 2013 (the offence on which he was convicted occurred in 2013).? The respondent directed that the appellant should be prosecuted on 25 May 2021.? A European arrest warrant was issued for his arrest on 12 July 2021.? The trial began on 1 February 2023.? The appellant submitted that during the trial his counsel stressed the unfairness arising from the delay and the passage of time between the commission of the alleged offence and the commencement of the trial.? The appellant submitted that a period of more than nine years passed before the respondent directed that he be tried in respect of the alleged offence.? He noted that he was extradited within one year of the issuing of the warrant.? It was contended that the delay in the present case is a factor which should be weighed in considering whether to order a retrial.

27. The respondent submitted that the lapse of time was not such an excessive period that a retrial should not take place.? She further noted that the appellant had not pointed to any specific prejudice arising from the lapse of time nor had he set out why his ability to defend himself is compromised by the delay nor had he made the case that he had lost a useful line of defence.? Any issues regarding delay could be dealt with by the trial judge in accordance with the principles in PO'C.? The respondent also contended that the appellant himself contributed to a portion of the delay in prosecuting this case in pointing towards his resistance to being extradited.?

28. Second, the appellant submitted that he was denied a full appeal.? In submitting that a core part of his appeal in the Court of Appeal was the admissibility of what was referred to as "expert evidence" in relation to car comparisons, the appellant contended that the net effect of the lack of a ruling on this issue by the Court of Appeal is that he may have to go through a lengthy process again in seeking to have it ruled inadmissible, including potential appeals to the Court of Appeal and to this Court.? It was submitted that given the centrality of this evidence to his conviction, this is a factor which this Court can have regard to in carrying out a balancing exercise.? The respondent submitted that matters of admissibility of evidence fall to be dealt with by the trial judge and do not arise in the within proceedings.

29. Third, the appellant highlighted that he had now served four years in custody despite having his conviction of conspiracy to burgle quashed.? He submitted that this is a significant period in detention in circumstances where "the offence is effectively the burglary of a house for the purposes of stealing the keys to a vehicle", he is no longer convicted and the fact that prior to his arrest in relation to this matter he had never previously been in custody.? The respondent submitted that the time the appellant had already spent in custody was not a reason for not ordering a retrial in this matter.? The respondent noted the difference circumstances in The People (DPP) v Forsey [2019] 2 IR 471, [2018] IESC 66 where that appellant has fully served the sentence imposed on him prior to a retrial being ordered.

30. Fourth, while the appellant accepted the seriousness of the offence, he did not accept that the harm outweighed the other factors which he said breached his rights to a fair trial. ?The respondent contended that the appellant had mischaracterised the offence with which he was charged.? The respondent noted that the trial court concluded as a matter of fact in the reasoned verdict, that the appellant was complicit in the organisation of the robbery of Lordship Credit Union on 25 January 2013 including by virtue of his role in the conspiracy to burgle the getaway car on 22 and 23 January 2013.

31. The respondent referred to the sentencing remarks, noting that the trial court stated that measuring the gravity of a conspiracy involves assessing its nature, purpose and extent, and the extent to which the accused "had knowledge of the full sweep of the conspiracy or whether he was reckless as to such matters."? The trial court held that there was no doubt but that "this was not a random burglary but was designed to steal a fast car particularly suitable for use as a getaway vehicle in a preplanned and organised robbery by a criminal combine."? The trial court identified a number of aggravating factors in the appellant's offending.

32. The appellant submitted that the totality of the circumstances is fundamentally unfair to a level which cannot be rectified.? According to the appellant, serious failings had occurred which cumulatively had the effect of amounting to a serious breach of his right to due process and his right to a fair trial.? The appellant sought for this Court to set aside the order of the Court of Appeal directing a retrial and that further prosecution of this offence should not be permitted.

33. On the respondent's case, the judgment of the Court of Appeal should be upheld, and this case should proceed to retrial.? She submitted that the appellant had not established that this is one of the exceptional cases in which it can be determined a priori that a trial will be unfair such that it is appropriate to prevent that trial taking place.? The respondent submitted that the trial court would be in the best position to assess the fairness of the retrial or to determine, in light of the conduct of the trial, whether a fair trial remains possible, and that it is open to the appellant to make a PO'C application to the trial court should any issue of alleged unfairness arise.

Discussion and Decision

The Jurisdiction to Remit

34. The conviction of the appellant was quashed because the Court of Appeal ruled that there was an unfairness in the trial on the basis that the appellant had not been on notice of the amendment of the indictment.? The Court of Appeal expressly did not determine "whether the trial court could have lawfully amended the indictment ...". ?The Court held that the manner in which the trial court effected the amendment resulted in the trial not being conducted in due course of law, as required by Article 38.1 of the Constitution (para [33] of the first judgment).? On the issue of a retrial, the Court of Appeal considered that the Special Criminal Court had in effect deprived itself of jurisdiction and that it was in the interests of both sides to permit a retrial on the original charge reflected in the indictment.? That raises issues about the nature of the jurisdiction the Court of Appeal is exercising when it quashes a conviction on appeal from an indictment and also about the role of the indictment in the criminal process.? I will therefore explore the role of the indictment and the nature of the jurisdiction being exercised in a criminal appeal in addressing the meaning of s. 3 of the 1993 Act and the Court of Appeal's power to order a retrial.

The indictment

35. Fennelly J. in Conlon v Kelly [2002] 1 IR 10, [2001] IESC 17 stated that from the return for trial onwards, the criminal process "attaches central importance to the indictment." ?O'Malley in The Criminal Process (Round Hall 2009, [12-46]), stated that the indictment "formulates the charge(s) upon which an accused person is to be tried and is consequently of central importance to the entire trial." ?In Wyatt v DPP [2020] 1 IR 658, [2020] IECA 31, the Court of Appeal referred to "the centrality of the indictment to the trial process."?

36. Section 4(1) of the Criminal Justice (Administration) Act, 1924 makes general provision for the contents of the indictment:

"Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge."

37. The form of the indictment is set out in the Indictment Rules which are found in the First Schedule to the Criminal Justice (Administration) Act, 1924.? The "Statement of Offence" must be set out first and shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence.? Where the offence is created by statute, the section of that statute must be included.? As a general rule as to description, the Indictment Rules provide that:

"[I]t shall be sufficient to describe any place, time, thing, matter, act, or omission whatsoever to which it is necessary to refer in any indictment, in ordinary language in such a manner as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to."

38. O'Malley in The Criminal Process states that the European Court of Human Rights has stressed that the principle of legal certainty requires that the acts with which a person has been charged should be clearly outlined in the indictment, even and perhaps especially when the accused is charged with a continuing offence.? He refers to Kamasinski v Austria (1991) 13 EHRR 36, which concerned a defendant who did not understand the language of the domestic court. ?The Court stated at para [79]:

"An indictment plays a crucial role in the criminal process, in that it is from the moment of its service that the defendant is formally put on written notice of the factual and legal basis of the charges against him."

39. A good description of the role of the indictment in criminal proceedings can be found in the Court of Appeal decision in The People (DPP) v Synnott [2016] IECA 270 where Edwards J. stated:

"42. An indictment performs a number of functions. It is a public record of the formal charge or charges preferred against an accused, and in respect of which the accused will be required to answer by pleading either 'guilty' or 'not guilty' upon arraignment. It is also the formal notification to the accused of the charges or charges that he/she faces, and in that respect in part fulfils the fundamental natural justice requirement of audi alteram partem which is an integral part of due process. An accused is entitled to know the case that he or she has to meet and as one aspect of that is entitled to expect that he or she will be informed in advance of the trial, and with some precision, of the charge(s) to be preferred against him or her. The indictment provides, or should provide, that information. It is for this reason that s. 4(1) of the Criminal Justice (Administration) Act, 1924 requires that an indictment should contain 'a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge'.

1. Another important function of the indictment is that it provides a template for the drafting of the issue paper to be given to the jury at the end of the trial. ..."

40. The case of The People (DPP) v MR [2010] 1 IR 577, [2009] IECCA 87 illustrates the importance of particularising the indictment.? In that case, the indictment contained one count of sexual assault and another count of sexual assault 'other than that in the first count'.? Evidence was given by the complainant that she was touched in two separate areas of the body and that these incidents were separate sexual assaults.? In evidence, the accused admitted to touching the complainant in one area of the body only and that there was no second incident at all.? He was convicted in the Circuit Criminal Court by a unanimous verdict on the first count and by a majority verdict on the second count.? The convictions were quashed on appeal, partly due to a lack of particularity on the counts.? The lack of particularisation meant that the basis on which the jury convicted the accused was unclear.? This was especially so where one set of facts was admitted.? The Court found that the charge to the jury was confused and the jury had not been told that they must be unanimous on the act or acts which grounded their verdict.? The verdicts were held to be unsafe.? The finding in that decision is illustrative of the importance of the particulars on an indictment so that there can be no doubt as to the precise offence to which the accused has pleaded guilty.? Indeed, a clear and precise particularisation may be a reason an accused will plead guilty to an indictment where there is dispute over broader culpability.

41. There is a further important function of the indictment.? A plea of autrefois acquit or autrefois convict arises only where a person has been charged with an offence "which is either the same, or is substantially the same, as one in respect of which he has been acquitted or convicted or as one in respect of which he could have been convicted" (per Lord Morris in Connelly v DPP [1964] AC 1254 at page 1306 approved by this Court (Kenny J.) in O'Leary v Cunningham [1980] IR 367). ?In Connelly v DPP, Lord Morris also stated that the pleas are "not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is being charged with [the same or substantially the same] offence" as previously acquitted or convicted.? Thus, while not the only way of proving the special plea, the particulars set out in the indictment will be the starting point for the examination.

The legislative background

42. Bearing in mind the centrality of the indictment to the criminal process, it is helpful to look at the legislative position prior to the 1993 Act.? The Court of Criminal Appeal was established by s. 8 of the Courts of Justice Act, 1924 ("the 1924 Act").? Section 34 of that Act provided:

" The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court."

43. The 1924 Act therefore gave the Court of Criminal Appeal jurisdiction to affirm or reverse a conviction but did not give it the right to order a retrial on any offence.? That lacuna was identified by Kennedy CJ. in Attorney General v Smith [1927] IR 564 when he said the "appeal suggests the question whether it would not be desirable that the Court should have power in certain cases to order a new trial."? He said it was "unfortunate" only to have the power to quash the verdict when the issue was that the real issues in the trial had not been tried at all.? As Henchy J. pointed out in The People (DPP) v Quilligan (No 2) [1989] IR 46, that finding was made despite the apparent amplitude of the jurisdiction of the Court of Criminal Appeal given by ss. 30 and 34 of the 1924 Act. ?In particular, s. 30 provided that the Court was to have "full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it." ??Henchy J. commented that the Oireachtas responded to the complaint of lack of jurisdiction to order a retrial by passing s. 5 of the Courts of Justice Act, 1928 ("the 1928 Act").

44. Section 5(1) of the 1928 Act provided:

"In addition to the jurisdictions conferred on the Court of Criminal Appeal by section 34 of the [1924 Act], the Court of Criminal Appeal or, on appeal, the Supreme Court shall have the following jurisdictions, that is to say:?

(a) ...

(b) where the Court reverse a conviction in whole, the Court shall have jurisdiction to make an order [for a retrial] authorising the person in respect of whom such conviction was obtained to be re-tried for the same offence as that which was the subject of such conviction ...".

Section 5(2) provided that where such an order for a retrial was made, the person "may, not-withstanding any rule of law, be again indicted and tried and, if found guilty, sentenced for the offence which was the subject of such conviction."

Case law on the 1928 Act

45. Section (5)(1)(b) of the 1928 Act was considered in the case of The People (Attorney General) v Gilmore & Cunningham (1951) 85 ILTR 99 in which this Court refused to order a retrial. ?That case involved a conviction for, inter alia, conspiracy to defraud in relation to running a certain dog under the false name of another dog.? The jury were instructed that they only had to be certain that the dog who ran was doing so under the false name.? In other words, the jury did not have to be certain of the name of the dog who actually ran provided that they were satisfied that the dog that ran did so under the false name.? Gavan Duffy P. did not agree with the trial judge or the Court of Criminal Appeal that the particulars that had been set out in the indictment did not matter.? In his view, the particulars told an accused in plain language the case they had to meet, and it was not open to the prosecution to seek a conviction by establishing "a different offence".? A conspiracy charge was one of the most difficult charges for an accused person to meet.? The accused had come to court to meet a particular imputation, and the court knew nothing of the defence they might have had to this other imputation.? Gavan Duffy P. was not satisfied therefore that there had been no miscarriage of justice and quashed the conviction.? It was not proper in that case for the court to use its discretion to order a retrial because "there appeared to be no power, though there ought to have been, to order a trial on any charge other than that which was the subject of the conviction in the Court of Trial."?

46. The case of The People (Attorney General) v Gilmore & Cunningham was not referred to when this Court again considered s. 5(1)(b) of the 1928 Act in Griffin. ?The situation facing this Court in Griffin was that a retrial had been ordered by the Court of Criminal Appeal where the conviction had been quashed on the basis that an essential proof - proof of the relevant Dangerous Drugs Regulations - was not adduced by the prosecution.? Henchy J. noted that an order for a retrial in those circumstances was unprecedented.? In his view, s. 5(1)(b) was passed by the Oireachtas to enable the Court of Criminal Appeal to order the retrial because of a faulty trial (e.g. misdirection, inadmissible evidence, or a procedural irregularity) but not due to the inadequacy of the prosecution case.? Henchy J. stated:

"It seems to me that any wider interpretation of the jurisdiction to order a retrial would be outside the intendment of the legislature.? In the present case the Court of Criminal Appeal considered that the jurisdiction extends to cases where the conviction is quashed because of the prosecution's failure to adduce an essential proof - if it was merely a technical error.? But where is the line to be drawn?? The boundary between what is and what is not a technicality is hopelessly blurred.? To limit the jurisdiction to order a retrial by that test would be to introduce uncertainty into an area of the criminal law where reasonable certainty is required.? A more fundamental ground of objection is that, if the section is held to authorise a retrial merely to enable the prosecution to proceed afresh against an accused on evidence augmented by what was neglected to be tendered at the first trial, it would become an instrument of harassment.? A construction of the section leading to that result would be contrary to the rule of interpretation that a penal provision such as this should be deemed to be intended to restrict as little as possible the pre-existing rights of the individual."

47. Henchy J. also said that before an accused could be subjected to the worry of a retrial where the prosecution had failed to tender the evidence necessary to sustain a conviction there would have to be clear statutory authority.? Section 5 of the 1928 Act did not provide that authority. ?In The People (DPP) v Quilligan (No 2), Henchy J. said of Griffin that the "ostensibly untrammelled jurisdiction" in s. 5 to order a retrial was limited by the terms of that decision. ?He viewed the judicial authorities as clarifying "that a jurisdiction to hear an appeal arising from a trial on indictment does not ipso facto carry with it jurisdiction to order a retrial.? The latter jurisdiction must be specifically conferred by statute and, even then, its exercise will be limited to cases which fall within the strict intendment of the statutory provision." ?In that case, this Court had overturned the acquittals in the Central Criminal Court of the respondents on a count of murder.? New rules of court appeared to give the Supreme Court a power to order a retrial where they quashed a verdict.? This Court refused the DPP's application for a retrial but there was no overall majority as to the reasons why that application was being refused.

48. Griffin was expressly applied by the Court of Criminal Appeal in The People (DPP) v Marley [1985] ILRM 17.? At trial there was no proof of cheque journals which were "essential to sustain a conviction in respect of the charges of obtaining money on foot of forged instruments".? The Court held that it followed "that the conviction of the accused on these counts must be quashed" and no retrial in respect of these counts was ordered. ?In The People (DPP) v Mackin (No 2) [2010] IECCA 82, the Court of Criminal Appeal did not dissent from the principle laid down in Griffin but distinguished it in unusual circumstances where the proof of certain evidence "went off ... course in circumstances not entirely of [the prosecution's] own making."? That case can be distinguished in the present case. ?The 'missing link' in the trial of this appellant, as identified by the Special Criminal Court, namely cell site locations/phone data records evidence, was a matter for the prosecution (even if the respondent continues to assert that the ruling of the Special Criminal Court was erroneous).

49. The foregoing demonstrates that Griffin sets a boundary to the circumstances in which an order for a retrial is permitted by s. 5(1)(b) of the 1928 Act.? It cannot be interpreted as permitting a retrial in a case where the prosecution did not tender sufficient proof to support a conviction.? The Griffin restriction on a retrial is therefore applicable only where there was no other evidence placed by the prosecution before the trier of fact (be it judge or jury) on which the judge or jury, as the case may be, could have been satisfied that the offence was proven to the requisite standard.

50. There have been other cases which did not mention Griffin but dealt with the issue of a retrial under the 1928 Act.? This Court considered the meaning of s. 5 of the 1928 Act in McCowan v DPP [2004] 1 IR 211, [2004] IESC 18.? This was an unusual case in some respects.? First, it was not entirely clear how the provisions of the 1928 Act were applicable in that case given the enactment of the 1993 Act.? Second, the applicant had been indicted on a single count of robbery but when the matter was before the jury, two further counts were added.? He was found not guilty on the original count but was convicted on the additional counts.? These convictions were overturned and a retrial ordered on the counts for which he was convicted.? Inexplicably he was indicted again on the original count, but that count was then withdrawn. ?He was then indicted on a single count for which he had previously been convicted.? The applicant sought to prevent the respondent from taking any further steps in his prosecution on the basis that, once the original charge had been withdrawn, there were no further charges on the indictment.? However, this Court held that the authority given by the Court of Criminal Appeal to retry the applicant had not been exercised and remained a valid authority.?

51. McCowan v DPP is cited along with the case of The People (Attorney General) v Singer (1961) 1 Frewen 214 (which dealt with the specifics of whether retrials on certain counts ought to be ordered but not whether they could be ordered) at footnote 263 (Ch 64) of Walsh on Criminal Procedure (3rd edn, Round Hall 2025, [64-121]).? The author states that the "Criminal Procedure Act 1993 ss.3 and 4 would appear to contemplate a retrial on the original charge or charges only."? It is possible that what the author meant by that statement was that even after a conviction is quashed, the retrial must go back on the original charge even if the indictment had been amended subsequently.? Such a view is unlikely because it is not substantiated by way of argument or reference to case law. ?More significantly, it is contrary to what is stated within the text proper of the book ("[w]hen a retrial is ordered, it would appear that it must be for the same charge or charges which were quashed by the Court of Appeal").? In my view, what the author seeks to convey is that, in light of the case law referred to, the sections permitted the retrial to be for the original charge, i.e. the same charge for which the person was convicted and not any other charge.? That was so held in McCowan v DPP and by referring to that case the author appears to view the 1993 Act as not having changed that interpretation.

52. In her written submissions to this Court, the respondent did not engage with the decision in The People (Attorney General) v Gilmore & Cunningham or in Griffin.? The thrust of the respondent's submission was that s. 3 of the 1993 Act was to be interpreted as meaning that the Court of Appeal was entitled to order a retrial.? In her submission, the most relevant decision was McNulty where Hardiman J. explained that at a retrial the prosecution is entitled to mend its hand:

"Almost every trial, especially if it proceeds to the point where the defendant is given in charge to the jury, will develop in a way which could not be wholly predicted before it started ... Where there is a second trial, almost inevitably, each side will know more about the other side's case than it did when the first trial started ... It would be a wholly unrealistic form of gamesmanship to hold that because the prosecution had not thought it necessary to prove a particular fact at the first trial, they were stuck with that decision at a retrial."

53. McNulty dealt with an entirely different scenario from that which presents itself here.? In McNulty, there was a jury disagreement and afterwards, in anticipation of the retrial, the DPP served notice of additional evidence to which the accused objected, as the additional material purported to cure defects of evidence in the first trial.? McNulty is not therefore directly relevant to the interpretation of s. 3 of the 1993 Act. ?In McNulty, there was no conviction whereas in Griffin a conviction was overturned because the prosecution had failed to tender the evidence necessary to sustain that conviction, and the question in Griffin was whether the statute permitted an order for a retrial in such a case.

The meaning of 'offence' in s. 3(1)(c)

54. The foregoing is the legal context in which the parties' submissions on the wording of s. 3 must be assessed. ?In support of the respondent's contention that the word 'offence' in s. 3(1)(c) must be interpreted as referring to the "Statement of Offence" on the indictment and does not mean the "Particulars of Offence" on the indictment, counsel relied upon the provisions of s. 4 of the 1993 Act that when a retrial is ordered the person may "be again indicted".? In his submission, this meant that everything to do with the trial recommences in the trial court; the case must go back to the point in the trial court to where the parties were pre-trial.? In that situation it was argued that the DPP had full powers in respect of drafting the indictment and counsel questioned whether the Court of Appeal had the power to limit the DPP's discretion with respect to the indictment.?

55. This interpretation of the meaning of s. 4 is not sustainable.? A similar provision was found in s. 5(2) of the 1928 Act as set out at para [44] above.? The importance of that provision was to clarify that, "not-withstanding any rule of law", the order of a retrial meant that there was a power to have another trial despite the previous conviction.? The 1993 provision is similar to the 1928 provision, save for the fact that s. 4 of the 1993 Act reflects the wording of s. 3(1)(c) of that Act and s. 5(2) of the 1928 Act reflects the wording of s. 5(1)(b) of that Act.? There is an interesting reference in The People (Attorney General) v Kennedy [1946] IR 517 to the "older practice of the Criminal Courts analogous to appeal". ?In brief synopsis, it can be said that prior to the 1924 Act, by writ of error, matters of law appearing on the face of the record could be reviewed by the Court of King's Bench either in the case of conviction or acquittal.? The manner in which the record was kept made it impossible to call into question rulings on points of law such as illegality, insufficiency of evidence, misdirections on points of law and many other matters.? In cases of felony, a new trial was never ordered. ?The 1924 Act was "in a general sense" introduced in the interests of convicted persons.?

56. In my view s. 4, and its predecessor s. 5(2), must be viewed having regard to the legal background against which s. 5(2) was first enacted.? The 1924 Act created a totally new jurisdiction in relation to an appeal.? The 1924 Act and the 1928 Act granted a broad jurisdiction to allow an appeal from a conviction on indictment in relation to a wide range of issues including those matters which could not be addressed by way of judicial review. ?The power to order a retrial was addressed in the 1928 Act with particular clarity by confirming that the power to order a retrial was not to be constrained by other rules of law.? There is nothing to indicate that the section was intended to grant the Attorney General (now the DPP) powers with respect to amending indictments or preferring new indictments.? The case of McCowan v DPP is also authority for the proposition that the order of a retrial is the overriding consideration for the indictment on which the retrial will proceed. ?Contrary to the respondent's submission, s. 5 of the 1928 Act and s. 4 of the 1993 Act were intended to secure the right to a retrial despite any prior rule as to autrefois convict or other provision that might have prevented such a retrial.? As the decision in Griffin demonstrates however, neither section grants a right to a retrial in every situation.?

57. A question also arises as to whether there is a relevant difference between "to be re-tried for the same offence as that which was the subject of such conviction" (s. 5(1)(b) of the 1928 Act) and "quash the conviction and order the applicant to be re-tried for the offence" (s. 3(1)(c) of the 1993 Act).? I do not think there is a relevant difference.? The difference in wording appears to be stylistic rather than substantive.? That is apparent from a comparison of how the sections are drafted.? Section 5(1) of the 1928 Act commences by conferring additional jurisdiction on the Court of Criminal Appeal (additional to s. 34 of 1924 Act).? The 1993 Act repealed both s. 34 of the 1924 Act and s. 5 of the 1928 Act.? This required s. 3 to be drafted differently.

58. Section 3(1) commences as follows: "On the hearing of an appeal against conviction of an offence the Court may? ...". ?The appellant submitted that, on the plain and ordinary wording of s. 3 of the 1993 Act, " the conviction" in subsection (1)(c) refers back to the "conviction of an offence" at the beginning of s. 3(1).? I agree; the use of the definite article in " the conviction" has "a demonstrative and specific connotation" that makes it more likely that the section was referring to the conviction for the offence which was the subject of the appeal to the Court of Appeal (see Dublin Corporation v Trinity College Dublin [1985] ILRM 283). ?It follows therefore that the reference to " the offence" (emphasis added) in s. 3(1)(c) is to the offence that was the subject of the "hearing of an appeal against conviction of an offence".? In other words, the offence for which the person may be retried is the offence which was the subject of the appeal and therefore the subject of the conviction.? Thus, the wording is the same; the retrial is for the offence for which the person was convicted.? I note that the respondent accepts that the wording in the order of the Court of Appeal is the same.

59. The respondent's argument is to the effect that the 'offence' must only mean the statement of offence and not the particulars of offence (and that the Court of Appeal could not be prescriptive as to the scope, breadth or wording of the offence as contained in the particulars).? There is one case which provides some support for the respondent's view that the "retrial" is for the offence; The People (DPP) v McKevitt [2018] IECA 188. ?That case involved an amendment to the indictment that had been made after a retrial had been ordered.? The amendment added certain words to the particulars on the indictment which addressed legal issues raised at the first trial in order, so it appears, to avoid controversy in the second trial.? The amendment to the particulars did not change the date, place or substance used as set out on the original indictment.

60. The Court of Appeal held that what was ordered was a retrial for "the offence", which was contrary to s. 4 of the Explosive Substances Act, 1883, as amended.? The Court held that it was the particulars of the offence and not the offence itself which were sought to be amended.? The Court of Appeal said that the Special Criminal Court had the power to amend a defective indictment pursuant to s. 6 of the Criminal Justice (Administration) Act, 1924 because pursuant to s. 41(4) of the 1939 Act, the Special Criminal Court, as far as practicable, applies the practice and procedure of the Central Criminal Court.

61. In my view, the decision in The People (DPP) v McKevitt cannot be understood to have intended that a retrial for "the offence" meant that a trial court was at large to amend an indictment (or that the DPP was at large to seek an amendment) so as to permit a retrial to bear no relationship to the conviction which was quashed so long as it was for ?the same type of "offence" on the "Statement of Offence".? Indeed, the respondent at the appeal conceded as much; she could not amend the particulars to charge a person with the murder of X when they had been convicted of, and a retrial ordered for, the murder of Y.? The facts of The People (DPP) v McKevitt bear that out, the amended particulars were relatively constrained, and it could be said that the offence was in effect the same "offence".

62. Contrary to the respondent's argument, as has been set out above, the statutory provisions of the Criminal Justice (Administration) Act, 1924, the case law and the academic commentary all point to the centrality of the indictment to the criminal process.? To be a valid indictment, the indictment must contain a statement of offence or offences together with such particulars as may be necessary for giving reasonable information as to the nature of the charge (s. 4(1) of the Criminal Justice (Administration) Act, 1924).? In other words, it is a non sequitur to contemplate an indictment that does not particularise the nature of the charge. ?In that sense, a person is not convicted of, for example, the offence of robbery, rather the person is convicted of the offence of robbery committed on a certain day at a certain place of a certain person as set out in the indictment. ?That in a legal, as well as a semantic sense, would appear to be the meaning of "conviction of an offence".

63. The contents of s. 3(1)(d) of the 1993 Act were raised by this Court.? This provision permits the Court to:

"quash the conviction and, if it appears to the Court that the appellant could have been found guilty of some other offence and that the jury must have been satisfied of facts which proved him guilty of the other offence?

(i) substitute for the verdict a verdict of guilty of the other offence, and

(ii) impose such sentence in substitution for the sentence imposed at the trial as may be authorised by law for the other offence, not being a sentence of greater severity." ?

64. A question was posed by this Court as to the position of a retrial if a person was convicted of a burglary where two items were stolen but the Court of Appeal was satisfied that there was only sufficient proof on a single item.? The response of the respondent was that such an indictment would be void for duplicity.? The recourse to duplicity cannot be a complete answer because it is quite normal to charge on a single count all the items taken in a single burglary, robbery or theft.? It would be rare indeed for the prosecution to lay separate counts for each item stolen in a burglary; the TV, mobile phone and jewellery will be contained in the particulars of the single offence of burglary.? It is, however, entirely possible for a situation to arise where that may give rise to a difficulty.? For example, the indictment could read "entered as a trespasser and stole therein a purse containing a diamond ring".? If no evidence as to the theft of the diamond ring was given in court but there was clear evidence of the burglary resulting in the theft of the purse, the conviction would be liable to be quashed.? What would be the position with respect to a retrial?

65. According to the respondent's argument, a court could then send the accused back for the purpose of a retrial in respect of the entire offence of burglary including the theft of the diamond ring despite there being no evidence before the trial court as to the commission of such an offence.? That would be contrary to the decision in Griffin referred to above.? Moreover, the logic of the respondent's argument is that the Court of Appeal would have no jurisdiction to find him guilty of that "other offence" of burglary resulting in the theft of the purse because that was not an "other offence" but the same offence of burglary (as per the Statement of Offence).? The logic behind the need for such an ouster of jurisdiction on the part of the Court of Appeal in favour of an order (leaving aside that it would be prohibited as per Griffin) for retrial is difficult to understand.? Even if Griffin did not cover that situation, it is difficult to see why the section should be interpreted to take away the Court of Appeal's power to substitute an appropriate verdict of guilty for that other offence of burglary and instead permit the costly and not necessarily risk-free retrial of the offence.

66. None of those arguments made by the respondent are persuasive in setting aside what is the plain language of the Act and the legal context in which the section was enacted. ?Section 3 of the 1993 Act deals with appeals from convictions and not from acquittals.? If a legal issue arises at trial which leads to an acquittal, then provided the relevant conditions are met, the DPP has the power to appeal (see s. 34 of the Criminal Procedure Act, 1967 and s. 23 of the Criminal Procedure Act, 2010).? The right to order a retrial could only arise in the latter application.

67. Finally, the appellant referred the Court to s. 3(3)(e) of the 1993 Act but submitted that this did not change the underlying meaning of the power to order a retrial.? Section 3(3)(e) provides that the Court of Appeal may "generally make such order as may be necessary for the purpose of doing justice in the case before the Court."? It was submitted by the appellant that this provision does not provide a "catch-all" power as it pertains to the ordering of a retrial.? The appellant emphasised that s. 3(3)(e) relates to the hearing of an appeal against a conviction or sentence and allows the Court to make various orders in order to facilitate such a hearing.? He stated that the provision must be read in context.? With reference to the fact that ss. 3(3)(a)-(d) set out potential issues which may arise with witnesses or evidence, it was submitted that s. 3(3)(e) is not a standalone power for the Court "to effectively do anything it wishes."

68. The appellant further submitted that were it the case that s. 3(3)(e) allowed the Court to make any order, then the entirety of s. 3(1) would be rendered superfluous.? In addition, the appellant stated that the legislature intended s. 3(1) to be an exhaustive list of the options open to the Court in coming to a decision in relation to a matter as there is no catch-all provision in it.

69. I agree with that submission of the appellant.? I do not accept that the subsection bears the interpretation placed upon it by the respondent.? The broader subsection, s. 3(3), is directed explicitly to the hearing of the appeal ("on the hearing of an appeal") and is addressed to those situations where the Court of Appeal may be called upon to look at new or additional evidence or to examine documents or witnesses.? I am satisfied that it was not intended by the Oireachtas that the phrase "generally make such order as may be necessary for the purpose of doing justice" would be utilised to amend in any way the jurisdiction of the Court as to its powers of disposal of the appeal subsequent to the hearing of that appeal as set out in sub-s. (1) of s. 3.? Significantly, there was a similar power in s. 34 of the 1924 Act "to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court" which remained part of the Court of Criminal Appeal's express jurisdiction by virtue of the introductory part of s. 5(1) of the 1928 Act.? This Court in Griffin did not accept that this recourse to the purpose of doing justice gave a general power to order a retrial in all circumstances.? Having regard to the decision of this Court in Griffin, if there had been an intention to broaden the jurisdiction of the Court in terms of how it may dispose of the appeals before it, this would have been set out clearly in the 1993 Act. ?In the absence of any such provision, I am satisfied that the powers of the Court of Appeal are limited to those provided for in s. 3(1) of the 1993 Act.

The exercise of the jurisdiction to remit

70. In the present case, the Court of Appeal approached its role as if it had exercised powers of judicial review instead of its appellate role conferred by the 1993 Act.? The Court considered that the "consequence of overturning the appellant's conviction is that all legal rulings of the Special Criminal Court [had] no legal, binding effect."? The Court held that there was no subsisting valid conviction "on the only charge available", i.e. the charge on the original indictment, "as the amendment was unlawful having been made in excess of jurisdiction."?

71. Unfortunately, the Court of Appeal made an error in how it addressed the jurisdiction to order a retrial.? The power of the Court of Criminal Appeal was, as the decision in The People (Attorney General) v Kennedy demonstrates, a jurisdiction to hear an appeal which was conferred by statute.? Section 2(1) of the 1993 Act allows a person convicted on indictment to apply for an order quashing the conviction or sentence, the Court's jurisdiction is then set out at s. 3 of the said Act. ?The Court of Criminal Appeal was not, however, exercising a jurisdiction of judicial review. ?Its statutory role was to hear the appeal, quash the conviction if appropriate and thereafter to order a retrial if appropriate. ?Unlike a judicial review, its rulings did not extend to quashing decisions taken in the course of a trial; its only power was to quash the conviction.? That is in essence an ability to set aside, or to reverse the conviction.

72. Since the enactment of the Court of Appeal Act, 2014 following the Thirty-third Amendment of the Constitution (Court of Appeal) Act, 2013, references to the Court of Criminal Appeal are to be construed as references to the Court of Appeal exercising its criminal jurisdiction (s. 77 of the 2014 Act).? Article 34.4.1? of the Constitution provides:

"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 decisions of other courts as may be prescribed by law." (Emphasis added)

Section 44(1) of the 1939 Act now amended by s. 32 of the Criminal Procedure Act, 2010 provides that a person convicted by a Special Criminal Court of any offence or sentenced by a Special Criminal Court may appeal to the Court of Appeal from such conviction or sentence.? In so far as an appeal from a Special Criminal Court (and from a conviction/sentence on indictment by the Circuit Court) is concerned, the Court of Appeal is exercising a statutory jurisdiction, i.e. an appellate jurisdiction as may be prescribed by law within the meaning of Article 34.4.1?.? Unless amended by statute, that statutory jurisdiction is the same jurisdiction as the Court of Criminal Appeal exercised.? It is unnecessary to address in this judgment whether the jurisdiction of the Court of Appeal when exercising its constitutional appellate jurisdiction from the Central Criminal Court (the High Court), extends beyond that provided by statute.

73. The same type of jurisdiction is being exercised under the 1993 Act as was exercised before its enactment, even though the 1928 Act and the 1924 Act are worded slightly differently from the 1993 Act.? The earlier statutes used the word "reverse" whereas the latter uses "quash".? The word 'quash' may give rise to some confusion because it is language that is more commonly associated with judicial review.? That does not change the essential point that when dealing with criminal appeals, the Court of Appeal is exercising a statutory jurisdiction which sets the limits on what may be done. ?This is apparent from some of the academic treatment of this subject.? The annotation on the 1993 Act contained in the Irish Current Law Statutes Annotated, 1993-1994 notes that ss. 3(1)(a), (b) and (c) "restates, without major modification (although the word 'quash' in the subsection is used to replace the word 'reverse' in the earlier Acts), the provisions of section 34 of the 1924 Act and section 5(1) of the 1928 Act."? In Walsh on Criminal Procedures at para [64-86], the author states that "the grounds upon which the court may quash a conviction are not set in stone" and cites a "useful summary" of those grounds given by the Court of Criminal Appeal in The People (DPP) v Madden [1977] IR 336; a case which obviously refers back to the pre-1993 framework.? The fact that before and after 1993, the Court of Criminal Appeal exercises the same jurisdiction is also apparent from O'Malley's The Criminal Process where at para [23-22] he states that "[t]he Courts of Justice Act 1928 made provision for ordering a retrial when the Court of Criminal Appeal or the Supreme Court quashed a conviction" (emphasis added).

74. The High Court decision in The State (DPP) v The Special Criminal Court (also known as " Hamill's case " because a joint judgment was delivered in Hamill v DPP) (High Court, Barrington J., 18 May 1983) was referred to during the appeal. ?As Barrington J. stated, the background is "to say the least, complicated". ?Mr Hamill sought an order restraining the DPP from proceeding with a prosecution pending against him in the Special Criminal Court. ?The DPP sought an order quashing the conviction of Mr Hamill on the grounds that the conviction was made without jurisdiction. ?Mr Hamill had been convicted of two scheduled offences by the Special Criminal Court.? He was acquitted of five other charges, a nolle prosequi was entered on three charges and another was withdrawn. ?The DPP had sought various amendments to the indictment which had been accepted in respect of the scheduled offences for which Mr Hamill was convicted.? The amendments were rejected in the case of the non-scheduled offences and on each of those the DPP entered a nolle prosequi.

75. On appeal to the Court of Criminal Appeal, that Court had held that the Special Criminal Court had no jurisdiction to try the applicant, allowed the application for leave to appeal (and treated it as the hearing of the appeal) and released Mr Hamill.? Barrington J. noted that the Court of Criminal Appeal took the view that the proceedings before the Special Criminal Court were, from the point that it purported to amend the charges, void in so far as those counts were concerned.? The Court of Criminal Appeal "did not therefore purport to reverse the decision of the Special Criminal Court" instead it said the decision had been made without jurisdiction and directed the release of Mr Hamill (emphasis added).? Barrington J. noted that it was not surprising that the Court of Criminal Appeal did not direct a retrial and said that "[t]he Court of Criminal Appeal did not purport to quash the order of the Special Criminal Court" (emphasis added). ?Following the Court of Criminal Appeal decision, seven new charges were laid against Mr Hamill and these corresponded in large part with the matters on the original indictment but with amended dates, even for the offences for which he was convicted.? Mr Hamill sought to restrain his prosecution on these matters and also contested the application to quash the convictions.

76. Barrington J. concluded that from the time of the amendment of the indictment, the trial of all the charges was a nullity and formed "no bar to a further prosecution." ?Of particular significance to the present case, Barrington J. stated "that what happened in the Court of Criminal Appeal in the present case was not a formal quashing of the order of the Special Criminal Court." ?He held that it was reasonable for the DPP not to have moved to quash the order of the Special Criminal Court until Mr Hamill had attempted to make use of that order to defeat his prosecution.? With respect to all the charges (non-scheduled and scheduled), Barrington J. rejected the claim of Mr Hamill for an injunction preventing his prosecution. ?The DPP was granted an order quashing the convictions on the basis that they were made without jurisdiction.

77. Hamill's case is somewhat difficult to understand in the absence of a judgment from the Court of Criminal Appeal, which would provide a basis for full understanding, and also without full information as to the grounds on which the Special Criminal Court had purported to amend the indictment.? What is apparent is that the High Court (Barrington J.) interpreted the Court of Criminal Appeal order as not being one to either quash or reverse the order of the Special Criminal Court.? There is no such argument here; in the present case, the Court of Appeal quashed the conviction in the exercise of its statutory jurisdiction. ?The legal position is that the conviction by the Special Criminal Court was the basis for the appeal and the fact that it had been made erroneously did not affect its status as a conviction that grounded the jurisdiction to hear the appeal.? In those circumstances, the jurisdiction of the Court of Appeal was constrained by the 1993 Act.? Having quashed the conviction, that Court was restricted in its power to order a retrial.? It could either refuse to order a retrial or it could order a retrial for the offence for which the appellant had been convicted.? Therefore, any decision it made could not have quashed the amendment of the indictment.

78. Finally, it should be noted that the decision in The People (DPP) v McKevitt also referred to Hamill's case, but there the Court of Appeal, relied upon s. 6 of the Criminal Justice (Administration) Act, 1924 to hold that a defective indictment could be amended. ?As Harrison, the author of The Special Criminal Court: Practice and Procedure (Bloomsbury Professional 2019), says at para [3-88]: "It is not clear whether the Court of Criminal Appeal in Hamill's case considered either the powers available under s 6 of the [Criminal Justice (Administration) Act, 1924] to rectify errors in an indictment or the question of whether the amendments were material in nature." ?The appellant raised an issue about the power of the Special Criminal Court to amend his indictment but that was an issue that was never argued before the trial court because of the manner in which the indictment was amended. ?Moreover, as set out above, the Court of Appeal did not determine that matter and it was not part of the appeal before this Court. ?It would be open to the appellant to make that argument at any retrial.? Of further relevance to that argument are s. 41(4) of the 1939 Act and also s. 1(1) of the Criminal Justice (Verdicts) Act, 1976.

The reasoned verdict of the Special Criminal Court

79. The original indictment before the Special Criminal Court particularised the conspiracy to burgle charge as follows: "[The appellant], between the 11 th day of September 2012 and the 23 rd day of January 2013, both dates inclusive, within the state, conspired with Brendan Treanor, Aaron Brady and others to enter residential premises as trespassers with the intention of stealing the keys of the householder's motor vehicles."? In the course of its reasoned verdict, having excluded the evidence of the cell site location and the call data, the Special Criminal Court had "to look backwards and forwards to see whether there is any other evidence on other dates consistent - other dates specified in the indictment and within the ambit of the dates in the indictment, consistent with [the appellant] being party to an agreement to burgle houses in order to steal vehicles."? The Special Criminal Court went through the various burglaries leading up to the burglary on 22 and 23 January 2013 and in respect of each they commented about the effect of the exclusion of the relevant evidence.? The Special Criminal Court then said that "[t]his leaves only the events at Clogherhead on the 23 rd of January 2013 to be considered in the context of the conspiracy to burgle charges."? The Court concluded that "every aspect of the evidence is consistent with the prosecution case that [the appellant] actively conspired with his two companions that night to burgle Mr S...'s house and effect the removal of his Volkswagen Passat to be secreted away for subsequent criminal use."? The Special Criminal Court went on the say:

"That being the case, we propose to exercise our power to amend the particulars of Count No. 3 to conform with the evidence so as to read as follows: '[The appellant], on the 22 nd of January 2013 and the 23 rd of January 2013, at various locations within County Louth, conspired with Aaron Brady and another to enter residential premises at 2 Hillcrest, Clogherhead, County Louth, with the intention of stealing the keys of the householder's motor vehicle.'? These particulars are encompassed in and extracted from the particulars originally set out in the indictment and, as we are satisfied beyond reasonable doubt of the fact that [the appellant] was directly involved as a conspirator in this burglary, we direct the registrar to record the amendment of the indictment as aforesaid and to enter and record a guilty verdict on the amended Count No. 3."

80. It is no small irony that the 'Return of Prisoner' warrant from the Special Criminal Court for the detention of the appellant records that he had been convicted of the offence of conspiracy to burgle with the original particulars set out therein.? That was not of consequence as the Court of Appeal could speak to the order of the Special Criminal Court or, if defective, could amend that order.? The appellant is before us on a different order, namely one that quashes his conviction and remits his conviction for retrial.

81. Of primary importance, however, is that the Special Criminal Court decided that there was not enough evidence to convict on the original indictment and proceeded to direct the amendment of the indictment and thereafter convict him on the only offence for which he could have been convicted based upon the admissible evidence in the trial.? It is unnecessary to decide whether that could or would amount to a plea of autrefois acquit but it is highly relevant for understanding the nature and content of the offence for which he was in fact convicted and in deciding whether s. 3(1)(c) permits an order for a retrial of any other offence.

Applying s. 3(1) of the 1993 Act

82. For the reasons set out, I am satisfied that s. 3(1)(c) does not provide authority for the retrial of this appellant in respect of the offence set out in the indictment initially preferred against him.? Such an interpretation is contrary to the plain wording of the section.? Moreover, the provision was enacted against the background of this Court having said that the previous iteration of the section did not permit a retrial where the conviction was quashed because the prosecution had failed to tender the evidence necessary to sustain a conviction. ?The Court of Appeal only had the power to order a retrial in respect of the offence for which the appellant was convicted.? In this case, while there may not have been a recorded verdict of the acquittal in respect of the count, the record of the Special Criminal Court and in particular the reasoned verdict of that Court states quite clearly that there was no basis for convicting on the indictment as originally preferred against him.? The only basis for a conviction was for the offence set out on the amended indictment.? While it is not necessary to make a formal finding that there had been a previous acquittal (a situation of autrefois acquit), the position in the present case is that, in effect, the appellant was not convicted of the wider conspiracy to burgle because the prosecution had not come up to proof.? The only offence for which he was convicted was the offence of conspiracy to burgle, the particulars of which were set out in the amended indictment as indicated by the Special Criminal Court in its reasoned verdict.?

83. The Court of Appeal in its second judgment said that the "consequence of overturning the appellant's conviction [was] that all legal rulings of the Special Criminal Court [had] no legal, binding effect" and that extended to the "direction application that there was insufficient evidence before it for a verdict of guilty to be returned on Count 3 as it originally stood". ?The Court said that applied "aside from the fact that there [was] not a recorded acquittal on Count 3". ?The Court also said that there was no subsisting valid conviction on the only charge available "namely the original charge reflected at Count 3, as the amendment was unlawful having been made in excess of jurisdiction." ?The Court said that the effect of quashing the conviction meant that there was no verdict in being.

84. Those findings do not fully reflect the nature and effect of the quashing of a conviction by the Court of Appeal.? It is correct to say that certain rulings in one trial are not binding on another judge if there is a retrial. ?The trial court would be bound by any findings of law that the Court of Appeal made, but if none were made each application that was made at the first trial may be made at the second trial and the judge at the second trial is at liberty to make their own decision in accordance with the law and evidence before them.? If there had been a subsisting valid acquittal by direction at the trial court, then such a direction would have legal effect (The People (DPP) v Quilligan (No 3)).

85. Problems arise with this reasoning because of the incorrect assumption of a judicial review type jurisdiction by the Court of Appeal.? The decision to quash the conviction did not have the effect that all previous rulings in the trial were 'quashed' by the overturning of the conviction.? In particular, the Court of Appeal decision to quash the appellant's conviction did not amount to a formal quashing of the amendment to the indictment.? That amendment to the indictment had legal effect in so far as it was on that indictment that the appellant was convicted.? The quashing of the conviction does not reach back into the trial process and 'undo' or set aside that amendment. ?The first judgment of the Court of Appeal had not purported to quash the amendment, instead what it did was quash the conviction because the manner in which the indictment was amended "resulted in [the appellant's] trial not being conducted in due course of law, as required pursuant to Article 38 of the Constitution." ?That was a finding that the Court of Appeal was well within its jurisdiction to make but, importantly, it was not a finding that the amendment was quashed and therefore had no legal effect.? Instead, it was the conviction that gave jurisdiction to the Court of Appeal to hear the appeal, and it was the quashing of the conviction that gave the power to the Court of Appeal to order a retrial for the offence for which the appellant was convicted under that amended indictment.?

86. As that was the only power the Court of Appeal had to order a retrial, it is not necessary to decide whether the conclusion of the Special Criminal Court, that there was insufficient evidence to convict the appellant on the indictment as it originally stood, amounted to a formal decision which would ground a plea in bar of autrefois acquit.? What is clear from the statutory provisions as interpreted is that there is no power to remit for trial on that offence.

87. The issue now is whether this Court should permit a retrial on the amended indictment.

88. The Court having been appraised of further information, the issue of whether a retrial should be ordered in the circumstances of this case will be listed for another hearing.

Conclusion

89. Section 3(1)(c) of the Criminal Procedure Act, 1993 sets out the power of the Court to quash the conviction and to order a retrial "for the offence". ?The relevant provisions of the 1993 Act must be understood by the wording used in the section when reading the statute as a whole in light of the background and context of that Act. ?The plain wording of the provision demonstrates that the Court of Appeal may hear an appeal against a conviction of an offence and that having quashed the conviction, the power to order a retrial is the power to order a retrial for " the offence".? The order for a retrial must therefore be directed to a retrial for the offence of which the person has been convicted.? It is well recognised that the indictment is central to the trial process.? Section 4 of the Criminal Justice (Administration) Act, 1924 requires an indictment to contain a statement of the specific offence together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.? The offence can only be understood as meaning the offence which has been particularised on the indictment on which the appellant has been convicted.

90. In Griffin, this Court held that there was no statutory authority to permit a retrial where a conviction was quashed because the prosecution failed to tender the evidence necessary to sustain a conviction.? Section 3 of the Criminal Procedure Act, 1993 which replaced s. 34 of the Courts of Justice Act, 1924 and s. 5 of the Courts of Justice Act, 1928 does not provide such clear authority.? In the present case, the Special Criminal Court held in its reasoned verdict that there was insufficient evidence to convict the appellant on the conspiracy to burgle charge as set out in the particulars of offence on the indictment.? That Court directed the Registrar to amend the particulars of the offence to a much more limited time frame and to one identified residential premises.? It then proceeded to convict the appellant on that amended indictment.

91. The Court of Appeal quashed that conviction on the ground that there was a breach of fair procedures in amending the indictment without giving the appellant the opportunity to make submissions on it. In quashing the conviction, the Court of Appeal was not exercising a jurisdiction that was equivalent to judicial review.? On the contrary, it was exercising its statutory jurisdiction under the 1993 Act. ?Having quashed the conviction, its remaining jurisdiction was that contained in s. 3(1)(b), (c) or (d).? As sub-s. (1)(d) had clearly no relevance, the jurisdiction of the Court was to make no further order or to order that the appellant be retried for the offence for which he had been convicted. ?It follows that the order quashing the conviction did not and could not amount to an order quashing the amendment to the indictment. ?That order was made in the course of the trial and was not an order that could be quashed by the Court of Appeal in the exercise of its statutory jurisdiction dealing with appeals from convictions on indictment.? The only matter that could be sent back for retrial was the offence of conspiracy to burgle on the amended particulars of offence as set out by the Special Criminal Court in its reasoned verdict.

92. There will be a further hearing on the issue of whether in the circumstances of this case a retrial should be ordered.

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