11 Prosecution Appeals and Sentence Reviews

11.1 The prosecution has no right of appeal against an acquittal.

11.2 The prosecution has the following powers to appeal or seek a review of certain decisions of a trial court:

  1. sentence reviews under section 2 of the Criminal Justice Act, 1993. The Director may apply to the Court of Criminal Appeal for review of a sentence imposed by a court on conviction of a person following trial on indictment where it appears to the Director that the sentence was unduly lenient. This provision does not apply to convictions in courts of summary jurisdiction;
  2. under section 34 of the Criminal Procedure Act, 1967 where, on a question of law, a verdict in favour of an accused person is found by direction of a trial judge, the Director may refer the question of law to the Supreme Court for determination. A reference under section 34 is without prejudice to the verdict in favour of the accused. References under section 34 arise very rarely. It should be noted that the section covers a limited class of legal rulings against the prosecution. For example, section 34 does not entitle the Director to refer a question of law which leads to the exclusion of evidence, which in turn fatally weakens the prosecution case. Nor does it cover a misdirection of law by a trial judge to a jury which falls short of an express direction to find a verdict in favour of the accused;
  3. judicial review lies to the High Court against the orders of courts of local and limited jurisdiction (in practice this means trial courts other than the Central Criminal Court) where those courts act in excess of jurisdiction. This remedy is not a general right of appeal. It does not lie to correct errors made within jurisdiction. It does not lie to overrule findings of fact. Among the orders which may be sought are orders seeking to compel a court under a duty to act to do so; seeking to prohibit a court from embarking on an incorrect course of action; or quashing a decision of a court made in excess of its jurisdiction. Once a jury trial is embarked upon the High Court is reluctant to intervene by way of judicial review;
  4. under section 52 of the Courts (Supplemental Provisions) Act, 1961 the prosecution as well as the defence may request the District Court to refer any question of law arising in the proceedings to the High Court for determination. This is known as a 'consultative case stated'. A similar provision permits of consultative cases stated from the Circuit Court to the Supreme Court;
  5. by section 2 of the Summary Jurisdiction Act, 1857, as amended and extended, any party, including the prosecution, may, following determination of proceedings by the District Court, if dissatisfied with the determination as being erroneous on a point of law, seek to appeal to the High Court by way of case stated. The appeal is not a re-hearing but is confined to the point of law at issue. Under Order 102, rule 15, of the District Court Rules, 1997, the judge of the District Court may not refuse to state a case where the case stated is sought by or under the direction of the Director of Public Prosecutions.

11.3 The accused has a full right of appeal by way of a complete re-hearing from the District Court to the Circuit Court, and a right of appeal based on a transcript of the evidence against conviction or sentence from the Circuit Criminal Court, the Special Criminal Court or the Central Criminal Court to the Court of Criminal Appeal. In some cases the accused may further appeal from the Court of Criminal Appeal to the Supreme Court. The defendant may also seek a judicial review or seek to have a case stated.

11.4 It is the duty of any prosecutor appearing on behalf of the Director, who is of opinion that a court has erred in law and that one of the remedies referred to in paragraphs 11.2(b), (c), (d) or (e) may be available to the Director so to advise the Director as soon as possible.

Sentence Reviews under Section 2 of the Criminal Justice Act, 1993

11.5 The Court of Criminal Appeal has held that in relation to sentence reviews the onus lies on the Director to show that the sentence is not merely lenient but unduly so. In such a review, great weight is attached to the trial judge's reasons for imposing the sentence. Since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the court in order to increase the sentence: Director of Public Prosecutions v. Byrne (1995) 1 ILRM. There must have been an error of principle by the sentencing court to justify altering the sentence: Director of Public Prosecutions v. Redmond, Court of Criminal Appeal, 21 December 2000.

11.6 The Court of Criminal Appeal will not, therefore, increase a sentence because of a mere disagreement with its severity. It is necessary that there be a substantial departure from the accepted range of appropriate sentences for the offence committed in the circumstances of the case, including the specific elements relating to the offender, or an error of principle in the way in which the trial judge approached sentencing.

11.7 In order to ensure the effective and consistent application of the Director's power to seek a sentence review it is important that the solicitor and counsel representing the Director in all cases heard on indictment which result in conviction and sentence indicate when reporting to the Director whether, in their opinion, an issue arises as to whether the sentence passed was unduly lenient bearing in mind the short time limit of 28 days from and including the date the sentence is handed down during which the Director may seek a review. If either solicitor or counsel take the view that the sentence was unduly lenient or thinks the question is one which the Director ought properly consider, the Director's Office should be contacted at once.

11.8 As the Court of Criminal Appeal has held that great weight should be attached to the trial judge's reasons for the sentence imposed, it is therefore important that when deciding whether to seek a sentence review the Director is fully aware of those reasons as well as of the evidence before the court at the sentencing hearing. The solicitor dealing with the case should seek a transcript on becoming aware that the question of a review is being actively considered. In all cases counsel for the prosecution should take a careful note of the trial judge's reasoning for the sentence including, in particular, any mitigating factors which the trial court has taken into account.

11.9 The report from the solicitor and counsel should set out their view as to:

  1. whether or not the judge made a material error of law, misunderstood or misapplied proper sentencing principles, or wrongly assessed or omitted to consider some salient feature of the evidence, as may be apparent from the judge's remarks when passing sentence;
  2. any inadequacy of the sentence which may imply an error of principle by the judge;
  3. the range of sentences (having regard to comparable cases) legitimately open to the judge on the facts;
  4. the conduct of the proceedings; and
  5. the likelihood of an application for review being successful.