dismissal

Something new HERE and further evidence of deficiency in my legal education.

However, I look forward to the case where I inform a court that my client will so plead.

The House of Lords has just endorsed the decision in R v Morais (1988) 87 Cr App R 9. In that case the judge had given leave to prefer a voluntary bill against the accused, who was arraigned on six counts in the bill. The accused pleaded not guilty, was convicted on four counts and was sentenced. Relying on the Administration of Justice (Miscellaneous Provisions) Act 1933, he appealed on the ground that the bill had never been signed by the proper officer: without a signature, he argued, there could be no indictment, and without an indictment there could be no valid trial.

In Morais the Court of Appeal agreed with the submission. The court endorsed a statement of Peter Pain J in an earlier case:

It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the bill of indictment does not become an indictment until it is signed”.

In Ireland the relevant legislation is the Criminal Justice (Administration) Act 1924. It mandates the form of the indictment in the Act and in the First Schedule to the Act. The choice of indictment is limited to the charges expressed or implied in the documents known as the “Book of Evidence� served on the accused.

The 1924 Act permits amendment of an indictment before the conclusion of the trial but neither this power nor the restriction on the defence to take issue with the form of the indictment will avail if the situation in Morais is present, for the reason that, until it is signed, the indictment is not an indictment.

It is currently unchallenged, in Ireland, that an accused person is entitled to access to the evidence, prior to trial, that the State intends to adduce against him/her at trial.

In Ireland, for many years, the procedure to secure that entitlement for the accused was set out in the Criminal Procedure Act 1967. That Act conferred a role on the District Court, in indictable cases, in deciding whether to send a person forward for trial to the Circuit Court or not; the District Justice had to be satisfied that there was a sufficient case to put the accused on trial before sending the accused forward.

The Book of Evidence, which the State was required to serve on the accused, was the main basis for the judgment to be made by the District Justice.

The Criminal Justice Act 1999 changed that position.

The obligation to serve the Book of Evidence persists, but the District Justice has lost his/her assessment role. That assessment now rests with the Circuit Court. The 1999 Act made provision in Section 9 for application to be made to the Circuit Court:

(1) At any time after the accused is sent forward for trial, the accused may apply to the trial court to dismiss one or more of the charges against the accused.

(2) Notice of an application under subsection (1) shall be given to the prosecutor not less than fourteen days before the date on which the application is due to be heard.

(3) The trial court may, in the interests of justice, determine that less than 14 days notice of an application under subsection (1) may be given to the prosecutor.

(4) If it appears to the trial court that there is not a sufficient case to put the accused on trial for any charge to which the application relates, the court shall dismiss the charge.

In Cruise v Judge O’Donnell the accused was charged with drugs offences. He was facing a minimum sentence of ten years on conviction. His lawyers believed the prosecution case was defective, in that the search warrant on foot of which the evidence against the accused was obtained was defective and invalid (and consequently the evidence located on foot of the warrant was unlawfully obtained and inadmissible). The accused applied to Court under Section 9 (1). The Notice to the prosecution did not refer to the basis for the application. The prosecution protested that they did not know on what basis the accused was making the application. The Court directed the accused to reveal to the prosecution the basis for the application in the Notice.

The accused applied to the High Court on Judicial Review to reverse this and lost.

The Director of Public Prosecutions opposed the propositions of the accused, arguing that the meaning of Section 9 did not allow the accused to make a case to strike out the charges against him before the Circuit Court judge, in the absence of the calling on for trial of the proceedings against the accused.

The accused appealed to the Supreme Court and won.

The Supreme Court confirmed that an accused person has no obligation to assist the prosecution. Furthermore there was nothing in the 1999 Act indicating the Oireachtas
intended such an obligation by requiring the accused to conform to “case management� directions of the Circuit Court Judge. As the Supreme Court acknowledged, many defences will consequently be canvassed in this application procedure in the future, without the need for the empanelling of a jury and/or the scheduling of witnesses and at much greater speed than if the accused was compelled to await the listing of the trial.