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Director of Public Prosecutions v JB; Director of Public Prosecutions v SM (Approved)
Factual and Procedural Background
In early 2021 a teenager (“Victim”) was shot and seriously injured on a street in The City. The incident involved the discharge of an automatic firearm and endangered bystanders as well as the intended target. Two individuals, “Appellant 1” and “Appellant 2”, were charged with attempted murder, possession of a firearm with intent to endanger life, and, in the case of Appellant 1, criminal damage.
During the 2023 trial in the Central Criminal Court, the trial judge directed the jury to acquit both appellants at the close of the prosecution case. The Respondent (“The DPP”) appealed under s. 23 of the Criminal Procedure Act 2010, contending that the direction was legally erroneous because the trial judge failed to consider adverse inferences permissible under ss. 18–19 of the Criminal Justice Act 1984. In an earlier judgment, [2024] IESC 57, the Supreme Court agreed that the direction was wrong in law. The present judgment, delivered by Judge Murray, addresses the consequential question of whether the acquittals should now be quashed and a re-trial ordered.
Legal Issues Presented
- Whether, pursuant to s. 23(11) of the Criminal Procedure Act 2010, it is “in all the circumstances, in the interests of justice” to quash the directed acquittals and order a re-trial of Appellant 1 and Appellant 2.
Arguments of the Parties
Respondent’s Arguments (The DPP)
- A re-trial can be conducted fairly because the evidence is largely preserved in CCTV, forensic material and recorded interviews.
- The time lapse from the 2021 incident to any 2025 re-trial is not excessive or prejudicial.
- The gravity of Victim’s injuries and the public interest in prosecuting attempted murder strongly support a re-trial.
Appellants’ Arguments
- The expected delay until 2025 undermines finality and is disruptive, particularly for Appellant 1 who has already spent two years in custody awaiting trial.
- Victim showed little interest in the original proceedings and may be unwilling to cooperate, which militates against a further trial.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| The People (DPP) v JC [2015] IESC 50 | Outlined the criteria for ordering a re-trial under s. 23 of the 2010 Act. | Referenced as part of the body of authority governing the present decision. |
| The People (DPP) v A McD [2016] IESC 71 | Confirmed that a re-trial is not routine; the DPP bears the burden of justifying it. | Relied on for the proposition that errors of law do not automatically mandate a re-trial. |
| The People (DPP) v TN [2020] IESC 53 | Discussed factors relevant to the “interests of justice” test. | Provided general guidance on weighing competing factors under s. 23. |
| DPP v DK and MK [2021] IECA 32 | Illustrated circumstances where victim non-cooperation militated against a re-trial. | Cited to contrast with the present facts, where public interest outweighed victim non-participation. |
| The People (DPP) v BK [2023] IESC 38 | Re-affirmed that the DPP must actively persuade the court that a re-trial is warranted. | Applied in allocating the persuasive burden to the Respondent. |
Court's Reasoning and Analysis
Judge Murray applied the statutory checklist in s. 23(12) of the Criminal Procedure Act 2010:
- Fair Trial (s. 23(12)(a)): The evidence is mainly documentary or forensic; no prejudice to defence was identified. The court accepted that a fair re-trial is feasible.
- Passage of Time (s. 23(12)(b)): Approximately four years will have elapsed by any new trial, but this was not deemed inordinate given the seriousness of the offences and the preserved nature of the evidence.
- Interests of Victim (s. 23(12)(c)): Although Victim did not actively assist at the first trial, the court held that victim interest encompasses objective factors such as the gravity of injuries and public safety concerns, both favouring a re-trial.
- Other Relevant Matters (s. 23(12)(d)): The court weighed Appellant 1’s two-year pre-trial custody and general disruption but found these considerations were outweighed by the public interest in prosecuting an attempted murder committed in a public place.
The court emphasised that attempted murder with firearms in a city centre is an offence of the utmost gravity, engaging a strong public interest in identifying and punishing offenders. Given the earlier finding that a jury could reasonably convict on the available evidence and the absence of any unfairness, the balance of justice favoured a re-trial.
Holding and Implications
HOLDING: The directed acquittals of Appellant 1 and Appellant 2 are QUASHED, and a re-trial is ORDERED pursuant to s. 23(11) of the Criminal Procedure Act 2010.
Implications: The case will return for a fresh jury trial, preserving the possibility of conviction on all charges. While no novel legal principle was established, the judgment underscores the rigorous application of the s. 23 factors and re-affirms that public interest considerations can outweigh delays and other defence concerns when serious violence is alleged.
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