Report on Prosecution Appeals and Pre-Trial Hearings

106 Pages·2006·0.52 MB·English

REPORT

PROSECUTION APPEALS AND PRE-TRIAL HEARINGS

(LRC 81-2006)

IRELAND
Law Reform Commission
35-39 Shelbourne Road, Ballsbridge, Dublin 4

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© Copyright Law Reform Commission 2006
First Published November 2006

ISSN 1393-3132
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THE LAW REFORM COMMISSION

Background
The Law Reform Commission is an independent statutory body whose main aim is
to keep the law under review and to make practical proposals for its reform. It was
established on 20 October 1975, pursuant to section 3 of the Law Reform
Commission Act 1975.
The Commission’s Second Programme for Law Reform, prepared in consultation
with the Attorney General, was approved by the Government and copies were laid
before both Houses of the Oireachtas in December 2000. The Commission also
works on matters which are referred to it on occasion by the Attorney General under
the terms of the Act.
To date the Commission has published 79 Reports containing proposals for reform
of the law; 11 Working Papers; 41 Consultation Papers; a number of specialised
Papers for limited circulation; An Examination of the Law of Bail; and 26 Annual
Reports in accordance with section 6 of the 1975 Act. A full list of its publications
is contained on the Commission’s website at www.lawreform.ie

Membership
The Law Reform Commission consists of a President, one full-time Commissioner
and three part-time Commissioners.
The Commissioners at present are:
President: The Hon Mrs Catherine McGuinness, former
Judge of the Supreme Court

Full-time Commissioner: Patricia T. Rickard-Clarke, Solicitor

Part-time Commissioner: Professor Finbarr McAuley

Part-time Commissioner: Marian Shanley, Solicitor

Part-time Commissioner: Donal O’Donnell, Senior Counsel

Secretary/Head of
Administration: John Quirke

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Research Staff
Director of Research: Raymond Byrne BCL, LLM, Barrister-at-Law

Legal Researchers: John P. Byrne BCL, LLM (NUI), Barrister-at-Law
Áine Clancy BCL
Philip Flaherty BCL
Caren Geoghegan BCL, LLM (Cantab), Barrister-
at-Law
Cliona Kelly BCL
Joanne Lynch BCL, LLM (NUI)
Margaret Maguire LLB
Jane Mulcahy BCL, LLM (NUI)
Tara Murphy BCL, LLM (Essex)
Richard McNamara BCL, LLM (NUI)
Catherine Ellen O’Keeffe LLB, LLM (NUI)
Charles O’Mahony BA, LLB, LLM (Lond)
David Prendergast LLB, Barrister-at-Law
Sinéad Ring BCL, LLM (NUI)
Keith Spencer BCL, LLM (Dub), BCL (Oxon),
Barrister-at-Law
Nicola White LLB, Attorney-at-Law (NY)

Administration Staff
Project Manager: Pearse Rayel

Executive Officer: Denis McKenna

Legal Information Manager: Conor Kennedy BA, H Dip LIS

Cataloguer: Eithne Boland BA (Hons), HDip Ed, HDip LIS

Information Technology
Officer: Liam Dargan

Private Secretary to the
President: Debbie Murray

Clerical Officer: Ann Browne

Principal Legal Researcher on this Publication
Sinéad Ring, BCL (Law and German), LLM (NUI)

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Contact Details
Further information can be obtained from:

Secretary/Head of Administration
Law Reform Commission
35-39 Shelbourne Road Ballsbridge Dublin 4

T: [phone]
F: [phone]

E: [email protected]
W: www.lawreform.ie

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ACKNOWLEDGEMENTS/THE PROJECT

The Commission is grateful for the assistance it received from the following
people in the preparation of this Report.

Ian Clark, Scottish Court Service
Mark Curley, Irish Prisons Service
Joe Costelloe, TD
Claire O’Regan, Solicitor
Dianne Drysdale, Scottish Executive, Justice Department
James Hamilton, Director of Public Prosecutions
Gordon Hook, Ministry of Justice, New Zealand
Howard C Hooper, Scottish Executive, Justice Department
Professor Dermot Walsh, University of Limerick
Nigel Gibbs, Crown Prosecution Service Policy Directorate
James MacGuill, Solicitor
Dr Paul A. McDermott, Barrister-at-Law
Claire Loftus, Chief Prosecution Solicitor
Steve Mihorean, Department of Justice, Canada
Professor Ian O’Donnell, Institute of Criminology, UCD
Professor David Ormerod, University of Leeds
Sara Parsons, National Crime Council
John Perrott, Department for Constitutional Affairs, UK
David Perry, Queen’s Counsel
Mary-Ellen Ring, Senior Counsel
Noel Rubotham, Director of Reform and Development, Courts Service
Helen Williams, Department for Constitutional Affairs, UK

Full responsibility for the contents of this Report, however, rests with the
Commission.

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TABLE OF CONTENTS

Table of Legislation xi

Table of Cases xiii

INTRODUCTION 1
CHAPTER 1 UNDERLYING PRINCIPLES 5
A Introduction 5
B Prosecution Appeals in Cases brought on Indictment 5
(1) The Double Jeopardy Rule 6
(2) The Double Jeopardy Principle and Appeals by
Defendants 7
(3) Would the Introduction of a ‘With Prejudice’ Right of
Prosecution Appeal be Unconstitutional? 11
(4) When is an Accused Person in Jeopardy in the Irish
Criminal Justice System? 13
(5) Further Considerations 14
C Prosecution Appeals in Summary Cases 15
D Pre-trial Hearings in Cases brought on Indictment 16
E Conclusions 17
(1) Report Recommendation 17
CHAPTER 2 PROSECUTION APPEALS IN INDICTABLE CASES 19
A Introduction 19
B The Existing Powers of Appeal 19
(1) Without Prejudice Appeals under Section 34 of the
Criminal Procedure Act 1967 19
(2) Case Stated under Section 16 of the Courts of Justice
Act 1947 20
C Consultation Paper Proposals 21
(1) Narrow ‘Without Prejudice’ Model 21
(2) Broad ‘Without Prejudice’ Model 21
(3) Narrow ‘With Prejudice’ Model 21
(4) Broad ‘With Prejudice’ Model 21
(5) Comprehensive ‘With Prejudice’ Model 21
D Developments since the Consultation Paper 22
(1) The Report of the Working Group on the Jurisdiction of
the Courts: The Criminal Jurisdiction of the Courts 22
(2) Oireachtas Committee Report on a Review of the
Criminal Justice System 22
(3) The Criminal Justice Act 2006 23
E Discussion 25
(1) Report Recommendation 25
(2) Report Recommendations 27
F Case Stated Appeals 28
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CHAPTER 3 PROSECUTION APPEALS FROM SENTENCES
IMPOSED IN THE DISTRICT COURT 29
A Introduction 29
B Existing Law on Prosecution Appeals 29
(1) Appeals de novo 30
(2) Case Stated 30
(3) Judicial Review 32
(4) Comparative Review 32
C Consultation Paper Recommendation 33
D Discussion 34
(1) Proportionality and the Information Deficit 35
(2) Lapsed Appeals 36
(3) Report Recommendation 36
E Further Reform 37
(1) The Role of Prosecuting Counsel 38
(2) The Information Deficit in Sentencing 39
(3) Provision of Reasons by the Sentencing Judge 41
(4) Report Recommendations 43
F The Use of Prison and Alternatives to Imprisonment 43
(1) Enforcement of Fines Bill 45
(2) Criminal Justice Act 2006 45
(3) Discussion 46
(4) Report Recommendations 47
G Prosecution Appeals against Sentences on Indictment 47
(1) Appellate Rights of the Convicted Person following a
Review on the Grounds of Undue Leniency 48
(2) Report Recommendation 49
CHAPTER 4 PRE- TRIAL HEARINGS IN INDICTABLE CASES 51
A Introduction 51
B Current Pre-trial Procedure: Case Management 52
(1) Case Management Today 54
C Proposals for Reform of Pre-Trial Processes and
Comparative Developments 56
(1) The Report of the Working Group on the Jurisdiction of
the Courts: The Criminal Jurisdiction of the Courts 56
(2) Oireachtas Committee Report 57
(3) Report on Videoconferencing 57
(4) Report of the National Crime Council 58
(5) Pre-trial Procedures in Other Jurisdictions 60
D Discussion 75
(1) Judicial Case Management – Reallocating
Responsibilities 76
(2) Report Recommendation 79
E Pre-trial Hearings 80
(1) Issues Relating to Pre-trial Hearings 81
(2) Conclusion 86
(3) Report Recommendation 88
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CHAPTER 5 SUMMARY OF RECOMMENDATIONS 89

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