Supporting Documents:

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Respondent to appeal to this Court from the Court of Appeal

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by the prosecutor in the underlying proceedings (“the DPP”) for leave to appeal, under Art. 34.5.3 of the Constitution, from a judgment of the Court of Appeal (Sheehan and Peart JJ, Hedigan J. dissenting) delivered on the 20th March 2012. The order appealed against was made on the 21st March 2017 and perfected on the 23rd May 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court.

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 a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings

These proceedings arose out of the fact that the applicant in the underlying proceedings (“Mr. S.”) was charged with a count of rape alleged to have occurred between the 1st January 1970 and the 21st May of the same year. In these proceedings Mr. S. brought an application before the High Court seeking to prohibit his trial on the grounds of delay. The High Court, for the reasons set out in a judgment of McDermott J. (B.S. v. D.P.P. (2016) IEHC548), refused the relief. Mr. S. appealed to the Court of Appeal.

3. The Order appealed against

The majority judgment of the Court of Appeal was delivered by Sheehan J. [reference]. For the reasons set out in that judgment, Sheehan J. concluded first that Mr. S. had established sufficient prejudice so as to give rise to a real risk of an unfair trial which could not be overcome by any type of delay warning. Second, Sheehan J. concluded that this case came within what he described as the “wholly exceptional circumstances category” identified in H. v. D.P.P. (2006) 3 I.R. (number). On that basis the appeal was allowed and the trial was prohibited. It is as against that order of prohibition that the D.P.P. now seeks leave to appeal to this Court.

4. The Contentions of the Parties

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

In essence, the D.P.P. in her notice of application, suggests that important issues of law arise having regard to what is said to be an apparent departure by the Court of Appeal from what is said to be the now established jurisprudence in respect of delay in the criminal context. In addition it is suggested, at Ground 3, that some of the issues on which the Court of Appeal based its ultimate determination had not been the subject of the grant of leave to appeal. Furthermore, at Ground 4, it is suggested, implicitly, that, having regard to the fact that the D.P.P. is charged by law to bring prosecutions, an issue of general public importance arises where the Courts are called on to determine the circumstances in which the D.P.P. is not to be permitted to proceed with a criminal prosecution.

On the other hand, Mr. S. suggests that the Court of Appeal applied well established principles to the particular facts of this case.

5. Discussion

As is clear from a range of determinations made by this Court since the 33rd Amendment to 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 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 clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 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 interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

It obviously follows from what has just been set out that it can rarely be the case that the application of well established principles to the particular facts of the relevant proceedings can give rise to an issue of general public importance. It must, of course, be recognised that general principles operate at a range of levels. There may be matters at the highest level of generality which can be described as the fundamental principles applying to the area of law in question. Below that there may well be established jurisprudence on the proper approach of a Court to the application of such general principles in particular types of circumstances which are likely to occur on a regular basis. The mere fact that, at a high level of generality, it may be said that the general principles are well established does not, in and of itself, mean that the way in which such principles may be properly applied in different types of circumstances may not itself potentially give rise to an issue which would meet the constitutional threshold.

However, having said that, the more the questions which might arise on appeal approach the end of the spectrum where they include the application of any principles which might be described as having any general application to the facts of an individual case, the less it will be possible to say that any issue of general public importance arises. There will, necessarily, be a question of degree or judgment required in forming an assessment in that regard in respect of any particular application for leave to appeal. However, the overall approach to leave is clear. Unless it can be said that the case has the potential to influence true matters of principle rather than the application of those matters of principle to the specific facts of the case in question then the constitutional threshold will not be met.

Applying that approach to the circumstances of this case the Court is not persuaded that the judgment of the majority in the Court of Appeal involves anything other than the application of established principles to the facts of this case. A careful reading of the judgment of Sheehan J. makes clear that he identified the appropriate principles and proceeded to consider whether, in the light of those principles, the trial of Mr. S. should be prohibited. There will always be cases where the application of general principles to the facts of an individual case involves a matter of judgment and possibly a judgment on which reasonable people may differ. Indeed it may even be possible to suggest that the application of accepted principles to the facts of a particular case is in error.

However, as pointed out earlier, this Court is no longer a Court for the correction of error but rather a Court which has the principal constitutional task of determining issues of general importance. It follows that the fact that Hedigan J. (and indeed the High Court) took a different view as to the application of established principles to the facts of this case does not mean that there truly is an issue of general importance involved. Rather, it simply means that it may be possible to take two different views as to the application of those principles to the facts of this case or, indeed, that it might be possible to argue that one or other view was erroneous. But none of that means that this potential appeal would involve anything other than the application of established principles to the facts of this case.

For those reasons the Court is not satisfied that this is an appropriate case in which to grant leave to appeal.

6. Conclusion

The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And It is hereby so ordered accordingly.