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Report on Prosecution Appeals and Pre-Trial Hearings REPORT PROSECUTION APPEALS AND PRE-TRIAL HEARINGS (LRC 81-2006) IRELAND Law Reform Commission 35-39 Shelbourne Road, Ballsbridge, Dublin 4 i © Copyright Law Reform Commission 2006 First Published November 2006 ISSN 1393-3132 ii 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 iii 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) iv Contact Details Further information can be obtained from: Secretary/Head of Administration Law Reform Commission 35-39 Shelbourne Road Ballsbridge Dublin 4 T: +353 1 637 7600 F: +353 1 637 7601 E: [email protected] W: www.lawreform.ie v 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. vi 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 vii 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 viii CHAPTER 5 SUMMARY OF RECOMMENDATIONS 89 ix TABLE OF LEGISLATION Courts (Supplemental Provisions) Act 1961 1961. No. 39 Irl Courts and Court Officers Act 1995 1995, No.. 31 Irl Courts of Justice Act 1924 1924, No. 10 Irl Courts of Justice Act 1928 1928, No. 15 Irl Courts of Justice Act 1947 1947, No. 20 Irl Crimes (Criminal Trials) Act 1999 1999, No. 35 Vic Crimes (Local Courts and Appeal) Act 2001 2001, No. 120 NSW Criminal Appeal Act 1907 1907, c. 23 Eng Criminal Appeal Act 1968 1968, c. 19 Eng Criminal Justice (Administration) Act 1924 1924, No.. 44 Eng Criminal Justice Act 1972 1972, c. 71 Eng Criminal Justice Act 1984 1984, No.. 22 Irl Criminal Justice Act 1987 1987, c. 38 Eng Criminal Justice Act 1988 1988, c. 33 Eng Criminal Justice Act 1993 1993, No.. 6 Irl Criminal Justice Act 1999 1999, No.. 10 Irl Criminal Justice Act 2003 2003, c. 44 Eng Criminal Justice Act 2006 2006, No. 26 Irl Criminal Law (Rape) Act 1981 1984, No.. 10 Irl Criminal Procedure (Scotland) Act 1995 1995, c. 46 Scot Criminal Procedure Act 1967 1967, No.. 12 Irl Criminal Procedure Act 1993 1993, No.. 40 Irl Criminal Procedure and Investigations Act 1996 1996, c.25 Eng European Arrest Warrant Act 2003 2003, No. 45 Irl European Convention on Human Rights Act 2003 2003, No.. 20 Irl Fisheries (Consolidation) Act 1959 1959, No. 14 Irl Misuse of Drugs Act 1977 1977, No. 12 Irl Police and Criminal Evidence Act 1984 1984, c. 60 Eng Probation of Offenders Act 1907 7 Edw. 7. CH. 17 Eng Safety, Health and Welfare at Work Act 2005 2005, No. 10 Irl Safety, Health and Welfare at Work Act 2005 2005, No. 10 Irl Summary Jurisdiction Act 1857 20 and 21 Vic c.43 Eng Summary Proceedings Act 1957 1957, No.. 87 NZ xi Terrorism Act 2006 2006, c. 11 Eng xii TABLE OF CASES Attorney General's Reference (No [2004] EWCA Crim 1025 Eng 1 of 2004) Attorney General's Reference (No. [1975] QB 773 773 1 of 1975) Attorney General's Reference (No. [2001] 2 AC 91 Eng 3 of 1999) Attorney General's Reference [1975] QB 773 Eng (No.1 of 1975) CC v Ireland [2005] IESC 48 Irl Considine v Shannon Regional [1997] 2 IR 404 Irl Fisheries Board Corigliano v Italy (1983) 5 EHRR 334 ECtHR Director of Public Prosecutions v [1984] ILRM 171 Irl Nangle
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