Denham C.J.
Hardiman J.
O’Donnell J.
Dunne J.
Charleton J.


Between/




JUDGMENT of Mr. Justice Hardiman delivered the 17^th day of February, 2015.

GENERAL BACKGROUND.

1. These are two separate appeals in judicial review proceedings. Niall Byrne and David Byrne are two men with the same surname. But this is pure coincidence and they are entirely unrelated. Each of these men stands charged with serious offences, allegedly committed in the course of a tiger kidnapping of an employee of a security firm, his wife and family. The offences with which they are charged included robbery and false imprisonment, in respect of which sentences of life imprisonment are available.

2. In the High Court (Hogan J.), Mr. Niall Byrne was successful in prohibiting a third trial on these charges, two juries having already disagreed. This result is expressed in the judgment of the learned trial judge delivered the 5^th day of September, 2013 and the order of the High Court perfected the 23^rd day of July, 2014, (the actual order bears the date 23^rd July, 2013 but this cannot be correct since it predates the judgment. I assume that 2014 is intended).

3. The Director of Public Prosecutions has appealed the order in favour of Mr. Niall Byrne. Mr. David Byrne, on the other hand, was unsuccessful in the High Court, according to the terms of the same judgment and order. He has appealed against this order.

FACTS OF THE CASE.

4. On the 13^th March, 2005, almost ten years ago, a tiger kidnapping took place. The victim was one Mr. Paul Richardson and he and his employer, Securicor, were robbed of 2.28 million euro.

5. On the 27^th April, 2005, Niall Byrne was arrested under s.30 on suspicion of possession of information concerning the possession of a firearm at 28 Ashgrove, Raheny on the 13^th March, 2005. He was released the following day without charge.

6. On Monday 8^th May, 2006, just over a year after his initial arrest, Mr. Byrne was arrested and charged with various offences. These were the robbery of Paul Richardson, the false imprisonment of four members of the Richardson family at Ashgrove, Raheny on the 13^th/14^th March, 2005. He was brought before the Dublin District Court where the Director of Public Prosecutions objected to bail. He was remanded in custody to Cloverhill Prison.

7. On the 12^th May he applied again to the District Court at Cloverhill for bail. The DPP continued to object and he was refused bail.

8. On Monday 15^th May, 2006, he sought bail before the High Court. The Director continued to object to bail. He was however granted bail, on his own surety of €3,000, €1,000 of which was required to be lodged and an independent surety of €90,000, €30,000 of which was required to be lodged. There were further onerous conditions including a need to sign on twice daily at Sundrive Road Garda Station, to reside at a particular address in Crumlin; to remain in the jurisdiction; provide the gardaí with a mobile number at which he could be contacted at any time; surrender his driving licence; surrender his passport and undertake not to apply for a duplicate; have no contact whatever with any of the witnesses; have no contact whatever with any of the Richardson family; have no contact whatever with any Securicor staff.

9. The applicant’s father, Anthony Byrne, a retired bus driver who was in a poor state of health was accepted as a surety.

10. While Niall Byrne was in custody he was held “on protection” because two of his brothers are prison officers. This is a more severe and more isolated form of detention.

11. The Book of Evidence was served on Mr. Byrne in August 2006. Two of the witnesses are his older brothers, Gary Byrne and Paul Byrne and another is Graham Coleman, his wife’s brother. Accordingly, Mr. Byrne was prohibited from being in contact with these people. In an effort to have this condition lifted he informed the High Court that their evidence would not be disputed at the trial but the Director maintained his objection to any variation in the conditions of bail. This occurred on the 22^nd January, 2007.

12. The Book of Evidence which was served on Mr. Byrne was one 1,252 pages long and incorporated the statements of proposed evidence of one hundred and fifty-three witnesses and a list of thirty-four exhibits.

13. On the 16^th January, 2008, a trial date was fixed for the 12^th January, 2009, about one year later.

14. On the 5^th August, 2008, three and one quarter years after his initial arrest, he sought a variation of his bail in order to allow him to attend at his stag party in Kilkenny and to attend at his wedding in the period commencing the 3^rd October, 2008. He was required to sign on on a daily basis in Kilkenny Garda Station while at the stag party and was excused signing on for the day of his wedding and the following day. He had to sign on everyday during his honeymoon which ended on the 19^th October, 2008 and had to have this holiday within the State. The terms of signing on were altered from twice daily to once daily on that occasion.

15. In January 2009, when the case came on for trial, four co-accused sought an adjournment due to the late service of a notice or notices of additional evidence. Four such notices were also served on Mr. Byrne between November, 2008 and January, 2009. He himself did not seek an adjournment of the trial and his counsel pressed for the matter to proceed. He opposed the adjournment on the basis of his entitlement to an expeditious trial and of the length of time which had elapsed since the alleged crime, almost four years. The case was however adjourned and relisted on the 20^th April, 2009.

16. The respondent’s first trial proceeded from April until July 2009 and was reported as having been the longest running Circuit Court Criminal trial in the history of the State. The Court sat on sixty-five separate days to hear it and three counsel appeared for the prosecution.

17. The case against Mr. Byrne was entirely circumstantial. It was not alleged that he had physically robbed the victim or imprisoned him and his family but rather it was alleged that he provided information and thereby acted as part of a joint enterprise with others who had done so.

18. It may be important to note that in the last sentence at para. 19 of the respondent’s affidavit he categorically denies any involvement in “these heinous crimes”.

19. At the close of the prosecution case the respondent’s counsel unsuccessfully applied for a directed acquittal. The learned trial judge however commented that the case against him was the weakest of those before the Court.

20. Nine further notices (further, that is, to the four which had earlier been served), of additional evidence were served by the prosecution between January and July 2009 making a total of 13 notices of additional evidence. These included the statements of more than 150 further witnesses and thirty-one further exhibits, to add to the thirty-four already notified. Accordingly, both the number of witnesses and the number of exhibits increased by almost 100% by way of notices of additional evidence.

21. More than 200 witnesses gave evidence before the jury.

22. The jury commenced its deliberations on the 27^th July, 2009 and continued to deliberate on the 28^th, 29^th and 30^th July, 2009.

On the 30^th July, 2009, the jury convicted three of the co-accused but were unable to reach agreement in relation to the charges against Niall Byrne and another accused. The case against Mr. Byrne was remanded to the 2^nd November, 2009.

23. On the day the trial ended the media carried reports of an interview with Mr. Richardson saying that justice had been done and that he and his family could now get on with their lives.

24. On the 19^th October, 2009, the Chief State Solicitor notified Mr. Byrne’s solicitor that a new trial date would be sought. Mr. Byrne says:

“The prospect of another lengthy trial imposed enormous psychological pressure upon my family and himself and affected the mental health of both his wife and himself adversely”.

25. On the 2^nd November, 2009, counsel for the prosecution sought a new trial date, but requested that it be not before October, 2010, because of the publicity the previous trial had attracted. He also said he would have witness difficulties in the summer months of 2010. The court adjourned the matter for one week. On the 9^th November, 2010, it fixed the retrial date for the 1^st February, 2010. It also ordered a transcript of the previous trial, which runs to several thousand pages.
26. On that date, also, the Court varied the conditions of bail to relax the prohibition on him contacting Anthony Byrne, who is his father, and Arena Coleman, his sister-in-law. It also excused him from signing on on Christmas day 2009.
27. On the 17^th December, 2009 the applicant sought a relaxation of his bail conditions but this was refused, except to the extent that on being informed that Mr. Byrne was expecting the birth of a child to his wife he was excused from signing on the day of the child’s birth and the following day.
28. A further application to review the bail conditions was refused on the 21^st December, 2009.
29. In the meantime, on the 14^th December, 2009, Mr. Byrne was granted leave by Mr. Justice Peart to apply for various reliefs by way of judicial review in relation to prejudicial publicity which was occurring all the time.

In January, 2010, the Circuit Criminal Court vacated the trial date of 1^st February, 2010 because of this pending judicial review.
30. The judicial review application was heard in late October, 2010 and refused on 11^th November. The States application for costs, however, was also refused and an order under the Attorney General scheme was made in favour of Mr. Byrne.

On 1^st December, 2010, Mr. Byrne answered his bail in the Circuit Criminal Court. The case was adjourned until the 3^rd November, 2011.
31. On the 3^rd February, 2011, the retrial was listed for six weeks commencing on the 24^th October, 2011, about nine months later. However, on the 8^th June, 2011 the Director of Public Prosecutions applied to have the trial date vacated and a further date fixed, due to the unavailability of prosecuting counsel. This application was resisted on behalf of Mr. Byrne and was refused.
32. On the 24^th October, 2011 when the retrial came on, the Court expressed concern about the estimated duration of the trial or whether it could finish before Christmas. It was said on behalf of Mr. Byrne that he was subject to very onerous bail conditions and was most anxious that the trial would proceed. There was no judge available to hear the trial on that date so it was adjourned until the following day when it was again adjourned until the 27^th November, 2011.
33. On that day the jury was empanelled to hear the trial which then proceeded. This was six years and seven months after the alleged offences. It proceeded in a manner similar to the first trial. Five further notices of additional evidence had been served between October and November 2011, making an astonishing total of eighteen notices of additional evidence in all.
34. The statement of the respondent’s father, Anthony Byrne, was read, by agreement, by prosecuting counsel on the basis that he was gravely ill in hospital.
35. This second trial proceeded for twenty-five sitting days. The jury commenced its deliberations on the 30^th November, 2011 and continued them on the 1^st and 2^nd December, 2011. On the latter day the jury announced that it was unable to come to a majority verdict on any of the counts against Niall Byrne and he was further remanded.
36. On the 15^th December, 2011, prosecuting counsel informed Judge Nolan that the Director was seeking another trial date and sought a date for six to eight weeks in January, 2013. At that time those convicted at the respondent’s first trial had an appeal pending before the Court of Criminal Appeal. Prosecuting counsel said that if the co-accused were successful in their appeals the prosecution would be seeking that any retrial take place at the same date as the third trial of the respondent. After the hearing of the appeal, the Irish Independent of 22^nd January, 2015, report the acquittal of the two of the co-accused.
37. On the 15^th December, 2011, counsel for Mr. Byrne further responded to strongly oppose the application pointing out that Mr. Byrne had been on very strict conditions of bail for more than five and a half years and asserted his right to an expeditious trial. The registrar said the earliest date available was the 1^st October, 2012 and the judge fixed that date. He also ordered a transcript of the second trial which runs to several thousand pages.
38. The Director on this occasion consented to a relaxation of the terms of bail so that signing on was required twice weekly, on Tuesdays and Thursdays. This was six years and nine months after the alleged offence.
39. The second trial involved the evidence of 163 witnesses and the tendering of sixty-seven exhibits. In total, the applicant has been subject to two trials which took a total of ninety sitting days, not to speak of remand bail and mention dates. He has been required to attend before the Criminal Court in excess of one hundred and twenty times, has spent one week in custody “on protection” and has been subject to onerous conditions of bail. These have impacted on his ability to organise and enjoy his working, personal, family and social life, with conditions that require the expenditure of vast amounts of time expense and inconvenience due to the requirements to sign on twice everyday for over 5¾ years. He has been unable to leave the State. These conditions have affected his freedom of movement and his ability to work with considerable distress to his family. He, his mother, and his wife have all been compelled thereby to seek medical assistance.

Personal circumstances.

40. Mr. Byrne and his wife have two children under the age of six with whom they live. They also each have children from previous relationships one of whom aged fourteen lives with them and another of whom, aged eight is in their custody on several days during the week.
41. Mr. Byrne says that they are a “close, decent, hardworking, respectable and law abiding family”. Two of his brothers are prison officers and his wife works full time for the Revenue Commissioners. She has suffered illness as a result of stress and has had to take sick leave both before and after his second trial. She has lost so much time at work that she is not qualified for annual incremental pay increases.
42. Both he and his wife have been prescribed tranquilisers and sleeping tablets to help them to cope with the stress of anxiety arising from the circumstances.
43. He says that his elderly mother believes that the trial process is over and the family have not been able to bring themselves to tell her that a third trial is listed. He says this is because they are gravely concerned for her health if she were to learn that they will have to go through it all again for a third time.
44. At para. 42 of his affidavit, Mr. Byrne says that the proceeding have caused him and his family considerable “stress, anxiety, uncertainty, hardship and disruption of their social and personal lives”.
45. At the time of his arrest he was twenty-three years old and had been employed for five years as a full time permanent employee of Securicor. He had himself been the victim of several Securicor robberies and suffered post-traumatic stress as a result.
46. On the day of his original arrest he lost his job with Securicor and has had considerable difficulty finding and keeping full time work since then because of the proceedings, the stringent conditions of bail, the two lengthy trials, and the publicity.
47. After he was let go by Securicor he got a job as a driver. But he lost this replacement job when his employer learnt of his being charged, in May 2006. He then set up as a courier and was getting work from a local firm until the gardaí made enquiries of the firm, after which he was no longer retained to do any work. He then got a job with a transport company as a driver and was working with them for a year when the first trial was about to commence in April 2009. He was told by the manager that the company could not be seen to be associated with him, given the offence alleged against him and the publicity the trial would attract and was told that his services were no longer required. He got paid in lieu of notice and received a good reference.
48. After the first trial it took him some weeks to find new work and he eventually got a job as a part-time driver. He was offered a full time position in October 2011 but he was unable to take it up because of the pending second trial. He is still employed only on a part-time basis.
49. The respondent further claims that he has been “socially ostracised”. He says that a public house where he used to socialise will no longer permit him on the premises because of his alleged association with the crimes. He cannot go abroad on holidays with his wife and children and the children often ask why that is not possible.

Overall affect.
50. The applicant says, at para. 44, that his wife and children live “in absolute dread” of his being convicted in the third trial and having to go to prison for a long time.
51. In summary, the applicant says that he is a thirty-two year old married man with children who cannot plan for the future and who is severely handicapped on a daily basis in his employment and otherwise. He says the criminal trial process “has wholly absorbed my life since May, 2006” (para. 45). He has been subjected to two lengthy trials, during which over 465 witnesses have given evidence.
52. He claims that he has been denied a right to trial with reasonable expedition and refers to Article 6(1) of the European Convention.
53. According to the statement of opposition, the three people convicted on the first trial were sentenced to between twelve and twenty-five years imprisonment.
54. None of the information set out above seems to me to have been contradicted in the affidavit on behalf of the State.
55. I doubt if there is a case, not involving a delay in complaint or unavailability of the accused, where a third trial has taken place so long after the alleged offence. None was cited and neither was any case of a third trial after two jury disagreements.

Applicable law.

56. It appears from the statement of the facts set out in the first part of this judgment that the Public Prosecutor proposes to put the respondent on trial for a third time before a jury. On each of the two previous occasions the trial was heard to a conclusion and on each occasion the jury disagreed notwithstanding that the first jury had no difficulty in convicting other prisoners charged with the same offence. I conclude, as did the learned trial judge, that this was, in each case, a disagreement on the merits, a result at which there was scope for a conscientious and independent jury to arrive.

57. The learned trial judge held (para. 32) that “… it is not clear to me whether there has ever been a third retrial in this jurisdiction following two jury disagreements in circumstances such as the present one “.

58. On the hearing of this appeal I asked precisely this question of counsel for the Director of Public Prosecutions, but he was unable to answer it. I have to say that I find this extremely surprising since the Director has had the conduct of Public Prosecution other than a few exempted categories such as fisheries prosecutions, since 1976. Prior to that the Attorney General had the conduct of such prosecutions. If the law officers of the State do not know whether there is has ever been a precedent for a third retrial, I can only conclude that that is because no proper search was conducted. I believe that such a search would have been conducted if there were any reason to believe that there was any precedent for a third trial in circumstances such as the present.

59. As it happens, this Court has been concerned with the question of retrials after disagreements or discharges between two relatively recent cases. I agree with the learned trial judge that:


“It is clear from the Supreme Court’s decision in DS. v. Judges of the Cork Circuit Court [2008] 4 I.R. 379 that while there is no firm ex ante rule in this regard, there is what amounts to a working presumption against permitting a third trial following two successive jury disagreements. Much will, however, depend on the circumstances of the case.”

In DS, there were two judgments delivered in the Supreme Court, that of Denham J. (as she then was, with which Hardiman, Fennelly and Finnegan JJ concurred and that of Kearns J. with which Fennelly and Finnegan JJ concurred.

60. Again, I agree with the learned trial judge’s summary of what was agreed by all in that case. This is set out with great clarity at para. 10 of the judgment of the present case. Three points emerge:

(i) There is no ex ante rule prohibiting a third trial,

(ii) While the double jeopardy rule does not, as such, apply to this situation, if the trial is indeed prohibited it will be by reason of the broader conception of “fundamental fairness of procedures inherent in our Constitution”: see DPP v. Quilligan (No. 2) [1989] I.R. 46 at 57 per Henchy J.

(iii) While the Court must exercise its jurisdiction to prohibit a third trial with some caution it must also seek to protect the due process rights of the accused.

61. Denham J. proposed to prohibit a third trial for a variety of reasons including “the fact that the trials have consumed six years of the accused’s life”; distress imposed on the accused and his family and the fact that there was no change of the evidence proposed to be tendered at the third trial. She concluded that:


“The Court is required to exercise a supervisory role, and to take into account all the circumstances of the case which have been set out in the judgment. Bearing in mind all of the circumstances of the case, I am satisfied that it would be oppressive and unfair to prosecute a further trial in this case.”


62. In the judgment of Kearns J. he summarised a survey of the authorities as follows:

“There must come a time in the criminal process where repeated trials of a citizen may come to be seen as oppressive and an abuse of discretion on the part of the Director of Public Prosecutions. It may become an unfair procedure in itself to retry. Put another way, a ‘breaking point’ may be reached where no further trial should be permitted if the fairness and due process requirements of Article 38(1) of the Constitution and Article 6 of the European Convention on Human Rights are to be properly observed…”.


63. Kearns J. continued:

“… I think that in the ordinary course two trials which end in a jury disagreement should be seen as an adequate discharge of the public’s interest in the prosecution of crime unless there are unusual factual circumstances which suggest otherwise”.


64. Later in his judgment Kearns J. said:

“… reviewing the case as a whole, however, I see no circumstances which suggest that there are unusual or exceptional circumstances which would justify treating this case as one where a third trial should be permitted following the two jury disagreements to date.”

65. It is important to note what is said in a publication of the Office of the Director of Public Prosecutions, “Guidelines for Prosecutors” (November 2010). This provides, at para. 4.33:

“If a jury fails to reach a verdict in a particular case, or a trial otherwise does not proceed to a conclusion, consideration should be given to whether the public interest requires a second or subsequent trial of the issue. That consideration should include an assessment of the likelihood that a jury on a retrial could deliver a verdict on the available evidence. Where a second jury disagrees the public interest would not normally require a third trial of the accused person but every case should be decided on its own merits”.

66. Another recent Irish case was cited, which I believe to be so different on its facts as not to be helpful in the present case. This is AP v. DPP [2011] 1 I.R. 729. Here, the applicant had been charged with fourteen counts of sexual assault but in three trials in succession the jury was discharged as a result of what was said by the first witness. None of the trials went beyond the first witness. The Supreme Court refused, in those circumstances, to prohibit a further trial. The judgments of those of Denham J., Fennelly J. and myself. Fennelly J. considered that it was important to bear in mind, that unlike the case of DS, the preceding trials:

“… never reached the stage where the jury was required to consider its verdict. On each occasion the trial came to a halt during the evidence of the complainant. The Court has at best incomplete evidence as to the precise reason for the discharge of the jury… ultimately I do not believe that the applicant has shown grounds for prohibiting a further trial.”

67. Elsewhere in the Common Law world, on recent authority, the usual practice appears to be very similar to that outlined above in the case of Ireland. The case of Carter v. The State [2000] 1 WLR 384 was cited with approval by Kearns J. in DS. This was a capital murder case from Trinidad decided by the Judicial Committee of the Privy Council in London. The appellants were arrested the day after a murder in the year 1990 and held in custody, much of the time under sentence of death, until 1999. The circumstances are admirably summarised in paragraphs 21 and 22 of the learned trial judge’s judgment in this case. The general position in Common Law countries was set out with great brevity and lucidity in the
opinion of Lord Slynn in the Privy Council:
“The respondent [the Crown] accepts that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed but that the position here is different; only one jury was unable to reach a verdict… [the other convicted but this was reversed on appeal].

… it may be contrary to due process and unacceptable, as a separate ground from delay, that the prosecution having failed twice should continue to try to secure a conviction. In this case however both factors fall to be considered. Their Lordships recognise that the trial judge has a great margin of discretion in these cases and that they will not readily interfere with the exercise of this discretion. After careful consideration, however, they are satisfied that the combination of these two factors require the trial judge in this case to stay the trial. For the prosecution to continue was wrong in principle and constituted a mis-use of the criminal process”.

It therefore appears that in Ireland, and in the Common Law world generally, there is a practice, expressed in various ways, of not proceeding to a third prosecution after a jury has disagreed twice after full trials. In the present case the trials were of quite unusual length, the first one was stated to be the longest Circuit Criminal Court trial in the history of the State. This practice has been expressed in various ways, the Irish DPP has said, in the document quoted above:
“Where a second jury disagrees the public interest would usually not require a third trial of the accused person but every case should be decided on its own merits.”.

The Privy Council stated the position of the Crown as being:
“… that it is a common practice, though not a rule of law, for the prosecution to offer no evidence where two juries have disagreed…”.
That latter concession, of course, was made because the Crown could argue that only one jury had disagreed: the others verdict had been quashed by the Court of Appeal. But the statement of the practice remains.

Application of the Rule of Practice.

68. In DS, cited above, Kearns J. concluded that:
“I see no circumstances which suggest that there are unusual or exceptional circumstances which would justify treating this case as one where a third trial should be permitted following the two jury disagreements to date.”

Decision.

69. In my view, it is not possible to refuse Mr. Niall Byrne the relief he seeks, consistently with the decision of this Court in DS. I agree with the isolation of three factors, in particular, in the judgment of Denham J., as she then was:
(i) The trials have consumed six years of the accused’s life,
(ii) The stress imposed on the applicant and his family,
(iii) The fact that there was no change in the evidence to be tendered.

70. The accused in the present case was arrested on the 27^th April, 2005, very nearly ten years ago. For the great bulk of that time, and in particular since he was charged in May 2006, the applicant, his wife and children “live in absolute dread” of his being convicted and having to go to prison for a long time. This assertion is not merely uncontradicted: it is entirely natural and predictable, especially having regard to the very long sentences, up to twenty-five years, imposed on those convicted at the first trial. The fact that these peoples convictions were set aside on appeal and that two at least of them have been acquitted on a retrial, gives little comfort to the applicant or his family in this regard. This case has consumed over nine and a half years of Mr. Byrne’s life, and that of his family.
71. Similarly, the applicant’s uncontradicted assertion that the trial process “has wholly absorbed my life since May 2006” is entirely credible. It has grossly interfered with the ability, so important to a young married man with children, to develop a career or business so as to support them, and in furtherance of his constitutional right to earn a livelihood. The conditions of his bail are the most severe that I have ever encountered. The necessity to “sign on” at a garda station twice daily is a constant reminder of the proceedings, is difficult to reconcile the exigencies of a normal job and a major constraint on normal family life.
72. Finally, it is conceded that the evidence at any third trial will be the same as the previous two trials.
73. I consider, for the reasons given above, that the case for granting the relief sought by Mr. Niall Byrne is a fortiorari from the decision in DS.
74. It appears to me that the verdict of the jury at the first trial is a highly discriminating one. That jury obviously had no difficulty with conviction as a thing in itself, given that they convicted three of the five defendants. The learned trial judge commented that the case against Niall Byrne, though sufficient to get past the direction stage, was the weakest of those before the Court. A second jury after another lengthy trial also disagreed. The proposal of the prosecution is to have a third trial on the same evidence and I consider this an oppressive procedure, especially having regard to what has befallen Mr. Byrne over the last ten years.
75. There is some reason to believe that the prosecution had not fully thought out its case for charging Mr. Byrne in the first place. I have never known a criminal trial where the statements of proposed evidence of witnesses and the exhibits, were augmented by a total of eighteen notices of additional evidence. Of these, five were served after the first trial had concluded. One must bear in mind that the prosecution’s proofs must have been advised well in advance of the first trial. One can only say that the prosecution case was augmented to an extraordinary degree prior to the first trial, during the first trial and prior to the second trial.
76. Counsel for the Director of Public Prosecutions was unable to refer us to any case where a third trial has taken place after two full trials which proceeded to a conclusion. If there were any precedent for this, the Director is in a unique position to provide it, for the reasons set out above. In my view, if there is to be a third trial something in the nature of “unusual or exceptional circumstances” in the words of Kearns J., must be demonstrated. In my opinion, the statement of opposition in Mr. Niall Byrne’s case makes no attempt to do so.
77. I would accordingly dismiss the appeal in the case of Mr. Niall Byrne and uphold the order of the learned High Court Judge. In the case of Mr. David Byrne I would dismiss the appeal for the reasons given by the learned High Court judge in refusing relief to this applicant.