Court dismisses s. 2 application as unarguable due to lack of retrospective effect on new legal principle.

COURT OF CRIMINAL APPEAL

RECORD NO. 263 CPA/12

IN THE MATTER OF SECTION 2 OF THE CRIMINAL PROCEDURE ACT 1993

MacMenamin J.

de Valera J.

McGovern J.

BETWEEN

MICHAEL McKEVITT

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court of Criminal Appeal delivered the 19th day of April 2013.

1. This judgment arises from an application made by counsel for the respondent herein (“the Director”), to strike out an application

under s. 2 of the Criminal Procedure Act 1993 (“the s. 2 application”) brought by Michael McKevitt (“the applicant”) as being an abuse

of process. Whilst strictly speaking, the Director is the moving party in this application to strike out it will be more convenient to refer

to her as being “the respondent”, and Mr. McKevitt as “the applicant”, this being their status in the s. 2 application.

The s. 2 application brought by Michael McKevitt

2. Section 2 of the Criminal Procedure Act 1993 permits an application be made to this Court to a quash conviction on the basis that

a newly discovered fact or facts shows that there has been a miscarriage of justice in relation to that conviction.

3. Section 2 of the Criminal Procedure Act 1993 provides as follows:

“2(1) A person –

(a) who has been convicted of an offence either -

(i) on indictment, or

(ii) after signing a plea of guilty and been sent forward for sentence under Section 13(2)(b) of the

Criminal Procedure Act 1967, and

who, after appeal to the court including an application for leave to appeal, and any subsequent re-trial,

stands convicted of an offence to which this paragraph applies, and

(b) who alleges that a new or newly discovered fact shows that there has been a miscarriage of justice in relation

to the conviction or that the sentence imposed is excessive,

may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the

conviction or reviewing the sentence.

(2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the

conviction or sentence.

(3) In subsection (1)(b) the reference to a new fact is to a fact known to the convicted person at the time of the

trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a

reasonable explanation for his failure to adduce evidence of that fact.

(4) The reference in subsection (1)(b) to a newly discovered fact is to a fact discovered by or coming to the notice

of the convicted person after the relevant appeal proceedings have been finally determined or a fact the

significance of which was not appreciated by the convicted person or his advisors during the trial or appeal

proceedings

(5) Where –

(a) after an application by a convicted person under subsection (1) and any subsequent retrial

the person stands convicted of an offence, and

(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of

the application and any subsequent retrial or a fact the significance of which was not appreciated

by him or his advisors during the hearing of the application and any subsequent retrial shows that

there has been a miscarriage of justice in relation to the conviction, or that the sentence was

excessive,

he may apply to the court for an order quashing the conviction or reviewing the sentence and his

application shall be treated as if it were an application under that subsection”.

4. Michael McKevitt was convicted of offences by the Special Criminal Court on the 6th August, 2003. Details of these offences are

set out later in the judgment. He seeks in his application made under s. 2 of the Act to contend that those convictions were a

miscarriage of justice, as the convictions arose from a trial where the court relied on evidence of corroboration obtained on foot of s.

29 of the Offences Against the State Act 1939, as amended, which section, the Supreme Court held in Damache v Director of Public

Prosecutions [2012] IESC 12 was repugnant to the Constitution.

The test in an application to strike out

5. The task which faces this court is to consider whether the s. 2 application which has been brought by Mr. McKevitt raises a point

which is arguable and comes within the terms of s. 2. If both those conditions are satisfied, then it follows that it could not be held to

be an abuse of process. If, on the other hand, this court were to conclude that the point raised is unstateable and cannot come

within the terms of s. 2 of the Act, then, it must accede to the application brought by the Director.

6. The court must bear in mind that what is in issue here is a balance of constitutional rights. The litigant has a continued right of

access to the courts. The courts have the entitlement and duty to protect their processes and procedures from being abused by

claims which cannot possibly succeed. There is no factual issue in dispute in this application. The statement of law which best

expresses the balance of rights which should be applied in an application of this type is that identified in Barry v Buckley [1981] I.R.

306.

7. As identified in Barry, the question to be determined by this court therefore is whether, as is urged by counsel for the Director, the

substantive application under s. 2 of the Act is “bound to fail”. An application is bound to fail if the very basis for it does not come

within the statutory remit of the section said to permit it.

8. The point raised by the applicant should now be explained in some more detail. The applicant was convicted by the Special Criminal

Court on the 6th August, 2003, of directing the activities of an unlawful organisation, contrary to s. 6 of the Offences Against the

State (Amendment) Act 1998, and of being a member of an unlawful organisation contrary to s. 21 of the Offences Against the State

Act 1939. He contends that an essential part of the prosecution case was based on the evidence of David Rupert, a man who

infiltrated the unlawful organisation in question. Michael McKevitt contended at the trial, and in this appeal, that Mr. Rupert’s

evidence was simply not credible, and that he had never met Mr. Rupert at any time, and that his evidence was invention.

9. In its judgment, the Special Criminal Court found that Mr. Rupert was a credible witness. This conclusion was based on Mr. Rupert’s

own testimony which had been subject to rigorous cross-examination. But the court’s conclusion was also based on corroboration. On

the one hand, there was testimony from garda witnesses who swore that they had seen Mr. Rupert and the applicant together on a

significant number of occasions. The Special Criminal Court held this tended to corroborate Mr. Rupert’s account of his engagement

and infiltration of the organisation and his evidence that he had met and been with Mr. McKevitt, not once but on a significant

number of occasions.

10. The corroboration evidence however also took another form. The trial court found corroboration and support for Mr. Rupert’s

narrative as a result of a search which had been made of the applicant’s house which had been conducted pursuant to s. 29 of the

Offences Against the State Act 1939. This resulted in the finding of a computer which Mr. Rupert had earlier testified he had actually

installed in Michael’s McKevitt’s house. Also found in the search of the house was a guide book on Yugoslavia and photographs both of

which Mr. Rupert testified that he had seen in the house when he had been in it. The Special Criminal Court concluded that this

evidence corroborated Mr. Rupert’s account and undermined the case made on the applicant’s behalf that they had never met. A

number of events took place at the trial which will be set out in more detail below.

11. The applicant was convicted of the offences in question following a lengthy trial. He did not testify. On the twenty-fourth day of

the trail, he discharged his counsel and refused to attend the trial any further. He remained in his cell at the courtroom. Arrangements

were made so that he could hear the proceedings. Thereafter, he appealed his conviction to the Court of Criminal Appeal on grounds

unrelated to this application. He brought a further appeal to the Supreme Court on a point of law. This also failed. He had also

brought an application by way of judicial review prior to his trial in the Special Criminal Court in relation to the disclosure of evidence

and other materials relevant to the then forthcoming trial. In all of these appeals, and in the judicial review proceedings, he was

represented by highly experienced solicitors and counsel.

12. The applicant was convicted by the Special Criminal Court, as long ago as the 6th August, 2003. Almost 10 years have elapsed

since that conviction. In 2012, the Supreme Court issued its judgment in the case of Damache v The Director of Public Prosecutions.

There, the Court held that s. 29 of the Offences Against the State Act 1939 was unconstitutional. This section permitted a member

of An Garda Síochána, not below the rank of superintendent, to issue a search warrant in certain specified circumstances. However,

the section did not stipulate that such warrant might only be issued by members of that rank who were independent of the relevant

investigation. The section was found to be repugnant to the Constitution on the basis that the administrative act of issuing a warrant

should not be carried out by a garda superintendent who was involved in an investigation or prosecution as this offended against the

principles of fair procedures and nemo iudex in sua causa.

13. The search which was carried out on Michael McKevitt’s house, now more than 10 years ago, took place on foot of a warrant

which was issued by Detective Chief Superintendent Peter Maguire of An Garda Síochána, who was involved in the investigation and

prosecution of the applicant. On the basis of the decision in Damache, the applicant now seeks to contend that there was a

miscarriage of justice in his case, which comes within s. 2 of the Act of 1993. He contends that the court relied on corroborative

evidence which should have been ruled inadmissible, as it had been obtained under a statutory provision which was subsequently

found repugnant to the Constitution. The question which the court must determine is whether the application is patently without

merit.

What occurred at the trial in the Special Criminal Court

14. As in the other proceedings mentioned above, the accused was fully and competently represented at his trial. Mr. Rupert was

subject to a most searching cross-examination. As well as the garda evidence of sightings of the two men together, Detective Chief

Superintendent Peter Maguire formally testified at the trial in relation to the search carried out at the applicant’s residence. The Chief

Superintendent gave evidence that he had issued this warrant for the search pursuant to s. 29 of the Act of 1939, and thereafter

signed it.

15. At the trial, the Detective Chief Superintendent referred to the terms of the warrant in detail. It was made an exhibit in the case.

It was provided to defence counsel to be examined and was admitted into evidence. The Chief Superintendent then went on to give

further formal evidence in relation to the detention of the accused. The balance of his evidence and cross-examination was put back

to a time later in the trial

16. After the formal evidence, counsel for the prosecution in the trial accepted that the defence was not making any concession in

relation to the validity of the accused’s custody. An issue arose in relation to the extent of the evidence the Detective Chief

Superintendent was to cover. It was agreed that he would tender the formal evidence outlined. The Chief Superintendent was stood

down and was to continue his testimony on another day. At no point then or at any other time during the trial was any challenge, or

intimation of a challenge, made as to the validity of the s. 29 warrant itself. The trial proceeded.

17. On the twenty-fourth of the trial, the applicant decided to discharge his legal team and not to engage any other lawyers. He

decided not to defend himself but to remain in a cell. Just prior to embarking on this course of action, he made a statement indicating

his reasons for so acting. The reasons are not material to this application. The Special Criminal Court expressed itself as satisfied that

the applicant had waived his right to further legal representation both intelligently and understandingly. That court concluded that the

decision had not been reached lightly, but rather had been arrived at with deliberation. The court noted that his reasons for the

decision had been read from a prepared, typed script, and that the applicant had indicated he did not wish to act in his own defence,

or to attend at the trial in the courtroom. Instead he wished to remain in his cell.

18. On the same day as these unusual events, Detective Chief Superintendent Maguire was recalled to complete his testimony. The

court asked the applicant whether he wished to see the search warrant which had been produced by Detective Chief Superintendent

or whether he wanted to ask him any questions. There was no response.

19. Counsel for the applicant now submits to this court that in the circumstance where the applicant had discharged his legal

advisors, the Special Criminal Court had taken it on itself to consider all arguments that might legitimately and appropriately be raised

by a defence legal team, and also to vindicate the accused’s right to a fair trial under Article 38.1 of the Constitution. He now

contends that the court failed to express concern or dissatisfaction with the fact that the search of the accused’s dwellinghouse had

been authorised by the Detective Chief Superintendent who was leading the investigation into the respondent’s activities in the illegal

organisation in question. It is pointed out the procedure laid down in s. 29 of the Offences Against the State Act 1939, as amended,

were held to be unconstitutional in Damache. It is now contended that conviction is unsafe as the corroboration evidence should not

have been admitted.

20. Does the application brought by Michael McKevitt arguably come within the terms of s. 2 of the Act of 1993? By reference to s.

2(1)(b) of that Act, the first requirement to consider is whether there are any further proceedings pending in relation to the appeal;

and whether by reference to s. 2(4), any relevant appeal proceedings have been “finally determined”. Clearly, these tests are

satisfied. There are now no extant proceedings by way of appeal before the courts, although this court has been informed that the

applicant still has a claim standing before the European Court of Human Rights. It is not said that the claim changes the situation.

21. There then arises a point which, it might be thought, is very obvious. It is whether the decision of the Supreme Court in Damache

can be characterised as a “newly discovered fact”. Counsel for the applicant has sought to characterise the “new fact” as arising or

derived from the judicial determination that searches carried out pursuant to s. 29 of the Offences Against the State Act 1939 were

unconstitutional and that the fruits of such searches were, therefore, inadmissible in evidence.

22. The question of what is a newly discovered fact has been considered in great detail by this Court in The People (Director of Public

Prosecutions) v Kelly [2008] 3 I.R. 697. In Kelly, Kearns J. on behalf of the court pointed out at para. 34:

“It is a basic principle of statutory interpretation that words be given their natural and ordinary meaning. The

Concise Oxford English Dictionary contains the following useful definition of the word "fact": "a thing that is

indisputably the case"; "the truth about events as opposed to interpretation". The word "opinion" on the other hand

is defined as: "a view or judgement not necessarily based on fact or knowledge".”

23. The judgment in Kelly engaged in an exhaustive review of the authorities where this point was considered. In the seminal decision

of The People (Director of Public Prosecutions) v Meleady [1995] 2 I.R. 517, the “newly discovered fact” was evidence of a fingerprint

found on the inside of a front passenger door window in a car. The effect of the fingerprint was to give credence to a person who

accepted he and a number of other youths had been involved in the criminal enterprise, but who testified that the two applicant’s had

not been so engaged despite their having been identified by the owner of the car as the driver and the front seat passenger.

Following a further conviction after re-trial, it emerged for the first time that the fingerprint of a person who was not either of the

applicants had been found on the inside of the front passenger door window. This was clearly a “newly discovered fact”. An enquiry

which was then undertaken in the Chief State Solicitors Office by a principal solicitor in that office led to the discovery of a written

memorandum prepared by R.W., a solicitor in the District Court section of the office (“the Walker Memorandum”), which was

addressed to the Circuit Court Section of the office and referred to a particular garda having mentioned that the main prosecution

witness, the owner of the motor car, had been shown a book of photographs and had identified one of the applicants therefrom.

Kearns J. points out in Kelly the vital point that the two matters which persuaded this court to receive evidence were clearly factual

matters and not matter of opinion. Both matters were directly relevant to the trial, and could and should have been disclosed to the

defence prior to the trial.

24. In DPP v Pringle [1995] 2 I.R. 547, the relevant matters were (a) evidence of the CUSUM technique (regarding speech patterns)

assuming if admitted that it would have raised a doubt in the mind of the jury as to a statement given to An Garda Síochána; (b)

evidence that a piece of tissue had not been forwarded to the State Forensic Laboratory for analysis so that the court of trial was

deprived of the results of an analysis, which might have been of assistance in establishing the innocence of the accused; (c) the

non-disclosure of the circumstances surrounding the forwarding, or not forwarding, of that tissue to the State Forensic Laboratory,

and the non-disclosure of the conflict between two members of the Gardai as to what had happened to that tissue. Again, these

were matters of fact and not opinion. The scope of the matters that might have been disclosed or made available to the defence

might have raised doubts as to the credibility of prosecution testimony or the investigation procedure itself. The first matter came

within the category of scientific evidence that might have had direct relevance to a critical issue in the trial.

25. In The People (Director of Public Prosecutions) v Gannon [1997] 1 I.R. 40, two documents came to light, copies of which had not

been furnished to the applicant’s legal advisors at the time of his trial. The first consisted of notes taken by a guidance counsellor

who was the first person to whom the complainant had reported a rape, the second, a report which a garda had prepared, based

upon those notes which she had received from the counsellor. Both the notes and the garda report contained details of the

description given to the counsellor by the complainant of the man who raped her. This was also material which was factual in nature

and would have come within the range of documents which should have been disclosed.

26. In The People (Director of Public Prosecutions) v McDonagh [1996] 1 I.R. 305, the “newly discovered fact” evidence consisted of

a signed statement brought into existence subsequent to the appeal to this Court, in which the applicant’s co-accused sought to

exonerate the applicant and accept sole responsibility for a sexual assault – again, plainly, a factual matter only.

27. In The People (Director of Public Prosecutions) v Shortt (No 1) [2002] 2 I.R. 686, the non-disclosure prior to trial of serious

allegations raised against a principal state witness was conceded by the State to constitute a newly discovered fact within the

meaning of s. 2 of the Act of 1993. No issue of opinion evidence arose in that case.

28. In Kelly, Kearns J., speaking for this Court, outlines how the applicant in that case applied for an order quashing his conviction

pursuant to s. 2(1) of the Act of 1993, submitting that the following constituted newly discovered facts: (i) newly commissioned

expert reports questioning the pathology evidence, (ii) an expert report on the origin of a fire, and (iii) a report disputing the

voluntary nature of the inculpatory statement made by the applicant to Gardai before his trial based on a CUSUM (Cumulative Sum

Analysis), a technique not available at the time of trial. During the preparation of the application, the solicitor for the applicant also

received from the Chief Prosecution Solicitor a booklet of photographs taken from the post mortem examination of the victim, which

had not been disclosed to the defence at the time of the trial. A further expert report was produced that addressed these

photographs.

29. Speaking for the court, Kearns J. stated that for expert opinions to be admissible as newly discovered facts a state of scientific

knowledge as of the date of trial must be invalidated or thrown into significant uncertainty by newly developed science. By way of

contrast, the court held that the photographs of the post mortem that had not been disclosed to the defence and the CUSUM

analysis were capable of being newly discovered facts within the meaning of the Act of 1993.

30. In each instance identified, therefore, the matter in question had a clear proximate connection to the trial itself; and came within

the range of material which if it had been raised as evidence in the trial may have raised significant doubts in the minds of the court.

The question therefore must be posed, can it be argued that a decision of the Supreme Court on the constitutionality of a statutory

provision came within the same general range?

31. Importantly in Kelly, the court also reiterated that the nature of the statutory obligation, which devolved upon it in a s. 2

application. This was to evaluate the evidence in relation to the newly discovered fact, firstly, to ascertain if the evidence

established the material was newly discovered; and, secondly, to assess the weight and credibility of such evidence by reference to

an objective standard, to determine whether defence counsel could have utilised the newly discovered material in such a way as to

realise a reasonable doubt in the minds of the jury about a significant element of the prosecution case (see The People (Director of

Public Prosecutions) v Gannon [1997] 1 I.R. 40). These observations again raise the question as to the status of the Supreme Court

judgment in Damache. Can it tenably be argued that such a judgment might come within the category of a newly discovered fact?

32. Gannon is an important authority also in that it establishes that what the Court of Criminal Appeal is required to do is to carry out

an objective evaluation of the newly discovered fact with a view to determining, in the light of it whether the applicant’s conviction

was unsafe and unsatisfactory. The Supreme Court in Gannon held that this court cannot have regard solely to the course taken by

the defence at trial.

33. Proceeding on the basis of Gannon, it is important to point out that the task which devolves on the court is a somewhat nuanced

one. Per contra the submissions made on the behalf of the Director, this court is not to have regard to the “run of the trial” or what

tactical line the defence took at the trial. The task which devolves upon the court is, rather, to consider whether the conviction was

“unsafe and unsatisfactory”. As is pointed out in O’Malley, “The Criminal Process” (published in 2009), the phrase “unsafe and

unsatisfactory”, which were for a long time the governing criteria in English appeals, does not appear in the Act of 1993, where the

reference throughout is to “miscarriages of justice”. However, the author points out that this does not detract from the soundness of

the principle enunciated by the Supreme Court as the course taken by the defence at trial might be entirely different if the newly

discovered fact had been known at the time.

34. It is material to point out here that the applicant is not confined to relying on newly discovered facts known to him at the

commencement of s. 2 proceedings, before discovery or disclosure. Where material matters have been withheld from an applicant, it

would be unfair to confine that applicant to a pleading filed at a time when relevant evidence existed but which was entirely unknown

to him (People (DPP) v Shortt (No 2) [2002] 4 I.R. 696 at 711). In the case before this court, the fact that the applicant pursued

judicial review proceedings regarding the very issue of disclosure must be a relevant consideration. Putting matters another way, the

first matter for determination is whether it is arguable or stateable to contend that the decision in Damache is a newly discovered

fact?

35. The following questions or tests arise on the basis of the authorities:

(a) Can a judgment of the Supreme Court be described as a matter of fact or evidence without doing violence to

those terms?

(b) Can such a judgment, delivered nine years after the trial, be seen as appertaining to an evidential issue which

could or might have been adduced at the trial which might have raised a doubt in the minds of the deciding court?

(c) Does the judgment appertain to matters which might have come within the realm of trial disclosure?

(d) Does that judgment come within the category of admissible expert opinion evidence under s. 2 in the sense

described in Kelly?

In the view of the court to pose the questions in this way demonstrates the frailty of the applicant’s case that the Damache

judgment can come within the definition of a newly discovered fact which could give rise to an apprehension that there had been a

miscarriage of justice.

36. In fact, an objective analysis of the authorities demonstrates the limited range of matters captured by s. 2 of the Act. The

legislative intendment relates to material which could, should or might have been adduced at a trial of an evidential or factual nature,

and which, seen objectively, would render the conviction a miscarriage of justice such that it should be quashed.

37. In the view of the court to characterise the judgment in Damache as a “newly discovered fact” runs counter to all the authorities.

A Supreme Court judgment delivered in 2012 cannot on any tenable basis be characterised as a “newly discovered fact”, appertaining

to the trial or the prosecution of that trial such as would render the conviction a “miscarriage of justice”.

38. However, the s. 2 application faces a further fatal frailty. It is this: even were the court to be persuaded that the Damache

judgment was a newly discovered fact, it is a determination of law applicable only in a narrow range of situations which arose in cases

which were pending or which still remained before the courts. The Damache judgment cannot, even arguably, be said to be

retrospective for a period of ten years or more. The determination as to constitutional repugnancy cannot be “read back” into

decisions made by courts many years before the judgment declaring such repugnancy was delivered. It is necessary to explain now

why this proposition becomes unarguable.

39. Even if the Damache judgment were to be extended by some strained process of taxonomy, it cannot in its very terms be

retrospectively applied to the applicant’s conviction. In C.C. v Ireland [2006] 4 I.R. 1, the Supreme Court held that s. 1(1) of the

Criminal Law (Amendment) Act 1935 is repugnant to the Constitution. The section did not allow for a defence of reasonable belief

regarding age to be raised by an accused when charged with unlawful carnal knowledge of a girl under the age of 15 years. The

extent to which that declaration of repugnancy could be held to be retrospective or applicable to other cases decided prior to C.C.

was addressed in the subsequent decision of the Supreme Court of A. v Governor of Arbour Hill Prison [2006] 4 I.R. 88. The

observations of the Supreme Court in the A. case are entirely on point here.

40. In A., the applicant was serving a sentence at the time of the C.C. judgment, following a conviction pursuant to s. 1(1) of the

Criminal Law (Amendment) Act 1935. It is true that by way of distinction to the instant case, he had pleaded guilty to the offence. It

was unreasonable to suppose that any defence of reasonable belief as to the victim’s age would have been likely as the victim was

aged 12 years old and was the daughter of a friend of the perpetrator. A was initially released by the High Court having held that the

legal basis for his conviction and imprisonment had been declared void by the decision in C.C. On appeal, the Supreme Court ordered

his re-imprisonment. It upheld the validity of his original conviction. The court explicitly rejected the proposition that it was a principle

of Irish constitutional law that cases which have been finally decided and determined before the courts on foot of a statute later

found to be unconstitutional must invariably be set aside as being of no effect. Murray C.J. pointed out that the applicant in A. was,

engaged in a “collateral attack” on the verdict in his case on a basis that he had not at any time sought to raise a constitutional

issue during the course of his prosecution, or prior to it.

41. The Supreme Court made clear that when an act is declared unconstitutional, a distinction is to be made between the making of

such a declaration, on the one hand, and its potential retrospective effects on cases which have already been determined by the

court. This distinction must be made in the interest of legal certainty, to avoid injustice and having regard to the overriding interests

of common good in an ordered society.

42. Murray C.J. explained the principle further at para. 125 of his judgment in the following terms:

“In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused

does not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him

or her, including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then

the final decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling

that the statute, or a provision of it, is unconstitutional. That is the general principle.”

43. The Chief Justice pointed out that “the common law has never conceived as consistent with any ordered administration of justice

that previously decided and finally determined cases could necessarily be set aside or re-opened in the light of a new precedent”.

44. Counsel for the applicant in a detailed submission sought to make the case that the motion here hinges on the distinguishing

factor that the applicant, as an accused man, discharged his legal team. He asserts that this arguably renders the s. 2 application an

exceptional case. It is not suggested that any challenge had been, or would have been advanced to the admissibility of the warrant.

In fact, the warrant had already been admitted in evidence before the Special Criminal Court without objection. However, it is now

said that the position here is distinct in that the applicant, as an accused man, had discharged his legal team and therefore a special

duty devolved upon the Special Criminal Court to vindicate his constitutional rights.

45. In the view of this court, the argument is not tenable or stateable for the following reasons. First, decisions of this Court,

subsequent to Damache, have made clear the very limited range of instances where the decision may be found to have a

“retrospective” effect. This court has permitted applicants in other cases to benefit from the finding in Damache only on the basis

that those applicants had, in fact raised issues in relation to the validity of the s. 29 warrant utilised in their prosecutions at their

trials, and had appeals pending before this court which raised grounds of appeal relating to the s. 29 warrants utilised prior to the

decisions in Damache (see People (DPP) v Cunningham [2012] IECCA 6); People (DPP) v Kavanagh [2012] IECCA 65 and People (DPP)

v Barry O’Brien [2012] IECCA 68. In these cases, this Court ordered re-trials. However, fundamental to each decision was the fact

that each case had been undergoing an appeal process when the decision in Damache was pronounced. In the instant case, not only

can it be said, that the proceedings in relation to the applicant had been finalised, they have been finalised for many years past. The

Special Criminal Court conviction in 2003 could not even come within the range of retrospectivity, even if hypothetically there had

actually been a challenge to the constitutional validity of the warrant issued under s. 29 of the Act.

46. In this court’s judgment in O’Brien, Hardiman J. distilled the relevant points from the decisions in Kavanagh and Cunningham. These

were (i) that the matter had been raised at the court of trial and that the applicant had not taken any steps which might suggest

that he had acquiesced or waived the point, for example by pleading guilty; and (ii) that the criminal proceedings against the

appellant had not been “finalised”; that is that a trial or an appeal from a conviction arising from a trial was still pending.

47. But the range of retrospectivity is so circumscribed that even taking the argument at its high point, it cannot now be seen as

arguable.

48. For the purposes of arguability, this court will go so far as to assume that, rather than there having been any suggestion of

acquiescence and waiver, the applicant had in fact continued to be represented and had raised the s. 29 point. How does this render

the case arguable? Does it distinguish the instant case from the very many other cases where a point of this nature might actually

have been raised in the past? In Cunningham, Hardiman J. reiterated that retrospectivity can only operate within the boundaries of

feasibility and practicality.

“ …the first duty of the courts is to provide redress to those whose constitutional and legal rights have

been infringed, there may also be circumstances where this is not simply not feasible or practicable.”

In so holding, he was merely echoing the observations of Murray C.J. in the A. case, recited earlier. This is in effect a “collateral

attack” on a criminal prosecution where the State relied “in good faith on a statute in force at the time” and where the accused did

not seek to impugn the constitutionality of the statute before the case reached finality.

49. To seek to redress a point which has been finally determined for many years goes beyond the point of feasibility or practicality.

One cannot either ignore the logic of the argument that might inexorably involve many other past cases which were expressly

precluded from the limited range of retrospectivity of Damache, identified in subsequent judgments of this Court. The many instances

where the courts have restricted the retrospective effect to a finding of unconstitutionality of a statutory provision are instanced in

the Cunningham judgment.

50. It cannot of course be suggested that the conduct of the applicant here constituted a waiver or acquiescence. The position was,

rather, that the trial proceeded on the basis of the law as it then stood. The constitutional status of s. 29 was not challenged at the

trial, or in any judicial review proceedings such as those initiated without any procedural difficulty by the applicant in Damache. At

the time of the applicant’s trial in 2003, the law was, at it was subsequently expressed to be in the People (DPP) v Birney and Others

[2007] 1 I.R. 337. In Birney, this court specifically held that s. 29 of the Offences against the State Act 1939 did not preclude a

superintendent who is in charge of an investigation from issuing a search warrant in the course of an investigation in which he was

involved (see the judgment of this court at p. 372). The law, as it stood at the time, provided that the procedure which had been

adopted by the Detective Chief Superintendent in issuing the s. 29 warrant was lawful. On the principle outlined by Murray C.J. in A.,

it is now not open to the applicant herein to argue that his case should be re-opened. The proposition is not arguable.

51. The point which the applicant seeks to raise falls far outside the attenuated range of retrospectivity which has been identified by

this Court in its decisions subsequent to Damache. Insofar as it can be said that there are distinguishing facts in this case, it cannot

be legitimately said that those facts are even arguably sufficient to make a difference to the merits of the point sought to be raised.

Further, the applicant is placed in the difficult position of having to rely on one hypothesis based upon another, that is to say that

the Special Criminal Court should have applied a legal principle which was not the law, which the applicant might have then raised by

judicial review or challenge at the trial, and that arising from the fact that a declaration of repugnancy made in a decision ten years

later in circumstances which now establish that the principle could not be retrospective so as to encompass his case.

52. The jurisdiction to strike out an application brought under s. 2 of the Act of 1993, is one which must be exercised sparingly. There

must be a high threshold. But the invocation of the jurisdiction, conferred by s. 2, must be framed on the terms of that section itself.

If, as here, facts and circumstances of the case are such as to render an application of this type unstateable, it is the duty of the

court to dismiss the application. The court must therefore accede to the application which has been brought on behalf of the Director

of Public Prosecutions, and strike out the s. 2 application as unstateable and unarguable.