Supporting Documents:

THE SUPREME COURT

DETERMINATION

IN THE MATTER OF SECTION 23 OF THE CRIMINAL PROCEDURE ACT 2010

BETWEEN

Result: The Court does not grant leave to appeal.

Reasons Given:

Background

1. The applicant was tried before a jury on a charge of perverting the course of justice. He was acquitted by direction of the trial judge after certain evidence had been excluded. The respondent intends to appeal to the Court of Appeal with a view to seeking a retrial.

2. While the notice of application refers to s.8 of the Criminal Procedure Act 2010 (which deals with applications by the prosecution for a retrial grounded upon new and compelling evidence), it seems clear from the papers that what the respondent is invoking is the procedure provided for in s.23 of that Act (as amended by s.71 of the Court of Appeal Act 2014), concerning an appeal by the prosecution on a question of law. Section 23(4) as amended stipulates that an appeal referred to in the section “shall be made on notice to the person who is the subject of the appeal within 28 days or such longer period not exceeding 56 days” as the Court may direct. (Emphasis added.)

3. The Act does not specify any particular form of notice for such an appeal. O.86C of the Rules of the Superior Courts does not refer to the s.23 procedure, although Rule 6 of that Order makes provision in respect of other applications by the respondent under the 2010 Act and other statutory provisions. In some such applications the requirement is that a copy of the notice lodged is to be “served on” the accused person. However, notice of an appeal by the prosecution against an order for costs is to be “delivered to” that person or to his or her solicitor. (Emphasis added.)

4. Order 86C, rule 22 provides as follows:

“Except where otherwise provided by this Part, every application to the Court of Appeal in proceedings begun in the Court of Appeal shall be by notice of motion in accordance with the Form No. 36 and shall be lodged with the Registrar and served on the other party to the proceedings and such other person, if any, as the Court of Appeal directs.” (Emphasis added.)

5. The respondent applied to the Court for a ruling as to whether the notification given to the applicant was sufficient. The evidence grounding the application was adduced by way of an affidavit sworn by a superintendent of An Garda Síochána and, although it is clearly hearsay, was not challenged as such or contradicted. The superintendent averred that he had been told that a Garda English went to the applicant’s family home, where he spoke to the applicant’s mother. She telephoned her son who, according to the affidavit, spoke on the phone to the garda and told him to serve the papers on his mother. The garda did so.

6. The relevant papers were also served on the solicitor who had acted for the applicant in the trial.

7. The respondent submitted that personal service was not required and that she had complied with the Act by serving the applicant’s mother in accordance with his direction. The applicant contended that the phrase “on notice” implied personal service, and pointed out that this appeared to have been the respondent’s understanding at the relevant time.

8. In an ex tempore ruling the Court of Appeal held that the section required “notice to” the person concerned and that personal service was not necessary. In circumstances where the applicant had instructed the garda to serve his mother, the service was sufficient.

The issues

9. The notices filed by the parties are available on this website. The applicant contends that the case raises an issue of general public importance as to the jurisdiction of the Court of Appeal to deem service good. He submits that it has not been conferred with such a jurisdiction by statute. He further submits that the Court of Appeal erred as to the service required in such applications.

Discussion

10. As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. Even where, as in the instant case, the impugned decision is one against which there is no other appeal, the constitutional criteria must be met.

11. It is against that background that it is necessary to consider the basis on which it is said that the constitutional threshold is met in this case.

12. The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues in respect of which leave to appeal have been granted will in due course be disposed of in the substantive decision of the Court.

Decision

13. The argument now sought to be made in respect of the jurisdiction of the Court of Appeal is, in the view of this Court, clearly unstateable. Every court must have jurisdiction to rule on a question as to whether a party has been properly notified of proceedings before it. In any event no objection to jurisdiction was raised in the Court of Appeal.

14. On the question of service, the Court does not consider that the ruling of the Court of Appeal on the very specific facts of this case raises a point of general public importance or that the interests of justice are engaged.

15. Leave to appeal to this Court will accordingly be refused.

And it is hereby so ordered accordingly.