S.I. No. 114/2012 - Rules of the Superior Courts (Criminal Procedure Act 2010) 2012.

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 10th April, 2012.

We, the Superior Courts Rules Committee, constituted pursuant to the provisions of the Courts of Justice Act 1936 , section 67, by virtue of the powers conferred upon us by The Courts of Justice Act 1924 , section 36, and the Courts of Justice Act 1936 , section 68 (as applied by the Courts (Supplemental Provisions) Act 1961 , section 48), and the Courts (Supplemental Provisions) Act 1961 , section 14, and of all other powers enabling us in this behalf, do hereby make the following Rules of Court.

Dated this 25th day of May, 2011.

John L.Murray

Nicholas Kearns

Joseph Finnegan

Elizabeth Dunne

John Edwards

Paul McGarry

Sasha Gayer

Patrick Groarke

Patrick O’Connor

Mary Cummins

Noel Rubotham

I concur in the making of the following Rules of Court.

Dated this 31st day of March, 2012.

ALAN SHATTER,

Minister for Justice and Equality.

S.I. No. 114 of 2012

RULES OF THE SUPERIOR COURTS (CRIMINAL PROCEDURE ACT 2010) 2012

1. (1) These Rules, which may be cited as the Rules of the Superior Courts (Criminal Procedure Act 2010) 2012, shall come into operation on the 28th day of April 2012.

(2) These Rules shall be construed together with the Rules of the Superior Courts.

(3) The Rules of the Superior Courts as amended by these Rules may be cited as the Rules of the Superior Courts 1986 to 2012.

2. Nothing in these Rules shall affect the validity of any step taken or any other thing done in any proceedings on any application for leave to appeal to the Court of Criminal Appeal initiated before the coming into force of section 31(b) or, as the case may be, section 32 of the Criminal Procedure Act 2010 , and any such proceedings shall, save where the court in those proceedings otherwise orders, be continued and completed as if these Rules had not been made.

3. The Rules of the Superior Courts are amended:

(i) by the substitution for rule 24 and sub-rules (1), (2) and (3) of rule 25 of Order 58 of the following rule and sub-rules respectively:

“24.(1) Where an appeal is made to the Supreme Court in accordance with section 29(2) of The Courts of Justice Act 1924 , the appellant shall serve a notice, in the Form No. 1, Appendix FF, on the prosecutor and shall lodge the original certificate as to the point of law of exceptional public importance concerned in the Office of the Registrar of the Supreme Court when entering the notice of appeal in accordance with rule 11.

(2) Where an appeal is made to the Supreme Court in accordance with section 29(2A) of The Courts of Justice Act 1924 , the appellant shall serve a notice in the Form No. 4, Appendix FF, together with a copy of the certificate as to the point of law of exceptional public importance concerned, on the prosecutor and shall lodge the original of such certificate in the Office of the Registrar of the Supreme Court when entering the notice of appeal in accordance with rule 11.

(3) Where an appeal is made to the Supreme Court in accordance with section 29(3) of The Courts of Justice Act 1924 , the appellant shall serve a notice in the Form No. 2, Appendix FF, together with a copy of the certificate as to the point of law of exceptional public importance concerned, on the accused person concerned and shall lodge the original of such certificate in the Office of the Registrar of the Supreme Court when entering the notice of appeal in accordance with rule 11.

(4) Where, in an appeal made to the Supreme Court in accordance with section 29(3) of The Courts of Justice Act 1924 , the accused person concerned intends to be heard on the appeal, he or his legal representative shall give notice in writing of this intention to the Registrar of the Supreme Court not later than fourteen days after service on him of the notice mentioned in sub-rule (3), and give a copy of such notice to the appellant within the same period.

25. (1) In the case of any appeal under section 29 (2), section 29 (2A) or section 29 (3) of The Courts of Justice Act 1924 , the notice of appeal shall be served not later than twenty-one days from the issuing of the certificate referred to in section 29(2), section 29(2A) or section 29(3) of that Act, as the case may be.

(2) The Supreme Court, whether on an application made by a party on notice to every other person entitled to be heard, or of its own motion, may make such orders and give such directions as to the conduct of the appeal as seem appropriate.

(3) Where, in any appeal under section 29 (2), section 29 (2A) or section 29 (3) of The Courts of Justice Act 1924 , the appellant wishes to seek a determination in relation to any part of the decision of the Court of Criminal Appeal concerned other than the point of law of exceptional public importance which is the subject of a certificate, the appellant shall apply to the Supreme Court, by motion on notice to every other person entitled to be heard, for an order granting leave for argument to be heard and a determination made in relation to such part.”;

(ii) by the insertion immediately following rule 27 of Order 58 of the following rules:

“28.(1) Where an appeal is made to the Supreme Court in accordance with section 23 of the Criminal Procedure Act 2010 , the appellant shall serve a copy of a notice of appeal, in the Form No. 5, Appendix FF, on the person acquitted, within the period provided in section 23 (4) of that Act (or such longer period determined by the Supreme Court in accordance with that section) and shall enter the original notice of appeal in the Office of the Registrar of the Supreme Court in accordance with rule 11.

(2) Where, in an appeal made to the Supreme Court in accordance with section 23 of the Criminal Procedure Act 2010 , the person acquitted intends to be heard on the appeal, he or his legal representative shall give notice in writing of this intention to the Registrar of the Supreme Court not later than fourteen days after service on him of the notice mentioned in sub-rule (1), and give a copy of such notice to the appellant within the same period.

(3) The Supreme Court, whether on an application made by a party on notice to every other person entitled to be heard, or of its own motion, may make such orders, including any order mentioned in section 25 of the Criminal Procedure Act 2010 , and give such directions as to the conduct of the proceedings as seem appropriate.

29. Where an appeal is made to the Supreme Court in accordance with section 14 of the Criminal Procedure Act 2010 , the appellant shall serve a notice of appeal, in the Form No. 6, Appendix FF, on the opposing party and shall lodge the original certificate as to the point of law of exceptional public importance concerned in the Office of the Registrar of the Supreme Court when entering the notice of appeal in accordance with rule 11.”;

(iii) by the insertion in rule 2 of Order 85 following the word “trial” of the words “(or re-trial)” on each occasion on which they appear;

(iv) by the substitution in rule 1 of Order 86 for the definition of “appellant” of the following definition:

“ “appellant” includes, unless the context otherwise requires, an applicant under section 2 of the Criminal Procedure Act 1993 ”;

(v) by the insertion in rule 1 of Order 86 immediately following the definition of “appellant” (as so amended) of the following provision:

“References in this Order to any record, transcript, exhibit, document or report in connection with a trial shall, in the case of an application pursuant to section 9(3) of the Criminal Procedure Act 2010 , include references to any such record, transcript, exhibit, document or report in connection with the trial which resulted in the conviction relied upon for the purposes of section 9(1)(b) of that Act in that application.”;

(vi) by the substitution for the title of Part III and of rules 4, 5, 6, and 7 of Order 86 of the following title and rules respectively:

“III. Notices of appeal and notices of application

“4.(1) A person desiring to appeal to the Court shall serve on the Registrar a notice of appeal in the Form No. 2. The notice so served shall answer the questions and comply with the requirements set forth on the said form. An appeal against a conviction may be argued only on grounds which have been set out in the notice, save where the Court, on application being made to it not less than fourteen days before the date fixed for the hearing of the appeal, may direct the addition of grounds of appeal.

(2) An application by the Director of Public Prosecutions to the Court pursuant to section 8 (3) or section 9 (3) of the Criminal Procedure Act 2010 shall be commenced by originating notice of application entitled in the matter of an application pursuant to section 8(3) or, as the case may be, section 9(3) of that Act, as between the Director as applicant and the person who has been acquitted as respondent. The original notice shall be served on the Registrar and a copy of the notice shall be served on the respondent. The notice shall set out in summary:

(a) in the case of an application under section 8(3) of the Criminal Procedure Act 2010 , the relevant offence concerned and the grounds on which it is alleged (a) that there is new and compelling evidence against the respondent in relation to the relevant offence concerned, and (b) that it is in the public interest that a re-trial order be made, or

(b) in the case of an application under section 9(3) of the Criminal Procedure Act 2010 , particulars of the conviction relied upon for the purposes of section 9(1)(b) of the Act and the grounds on which it is alleged (a) that there is compelling evidence against the respondent in relation to the offence to which the application for a re-trial relates, and (b) that it is in the public interest that a re-trial order be made.

5. (1) Subject to sub-rules (2) and (3), every other notice of appeal against a determination of a trial Court shall be served within twenty one days from the date of the determination appealed against.

(2) Every notice of appeal under section 24 of the Criminal Justice Act 2006 shall be served on the Registrar within the period referred to in section 24 (2) of that Act and shall be in the Form No. 29.

(3) Sub-rule (1) does not apply to an application under section 2 of the Criminal Procedure Act 1993 .

(4) Every notice of appeal under section 29 (6) of the Road Traffic Act 1961 shall be in the Form No. 27.

6. (1) When the Registrar receives a notice of appeal or notice of an application under section 2 of the Criminal Procedure Act 1993 , he shall give notice thereof in the Form No. 4 to the following persons:

(a) the Director of Public Prosecutions;

(b) the proper officer of the Court of trial;

(c) the Commissioner of the Garda Síochána;

and also, if the appellant is in prison, or has been released on bail—

(d) the Governor of such prison, and

(e) the Secretary General of the Department of Justice and Equality;

provided that the Registrar shall not be required to give such notice to the Governor of a prison if the appellant’s notice of appeal shall have been forwarded to the Registrar by such Governor.

(2) When the Registrar receives a notice of application under section 8 (3) or section 9 (3) of the Criminal Procedure Act 2010 , he shall give notice thereof to the following persons:

(a) the proper officer of the Court of trial of the respondent and, if different, the proper officer of the Court of trial which made the conviction relied upon for the purposes of section 9 (1)(b) of the Criminal Procedure Act 2010 ;

(b) the Commissioner of the Garda Síochána;

and also, if the respondent is in prison, or has been released on bail—

(c) the Governor of such prison, and

(d) the Secretary General of the Department of Justice and Equality.

7. Every intending appellant or applicant shall lodge with the Registrar proof of service on the opposing party of the notice of appeal or, as the case may be, the originating notice of application.”;

(vii) by the substitution for sub-rule (3) of rule 9 of Order 86 of the following sub-rule:

“(3) Where any person has been convicted and is thereupon sentenced to the payment of a fine, and is desirous of appealing against his conviction or sentence to the Court, the Judge of the Court of trial shall fix recognisances, with or without sureties, to prosecute his appeal, and subject thereto, may order that payment of the said fine shall be made at the final determination of his said appeal, if the same be dismissed, to the Registrar, or as the Court may then order. The recognisances under this rule shall be entered into within the period permitted for notice of appeal to be served and shall be in the Forms Nos. 6 and 7. A surety becoming duly bound by recognisances under this rule shall be deemed to be, for all purposes and shall have all the powers of, a surety under the provisions of rule 20. The proper officer of the Court of trial shall forward the recognisances of the appellant and his surety to the Registrar.”;

(viii) by the substitution for rule 26 of Order 86 of the following rules:

“26. If it appears to the Registrar that any notice of appeal does not show any substantial ground of appeal, the Registrar may list the case before the Court for directions without obtaining for the use of the Court a transcript of the record of the proceedings at the trial.

26A.The Court may, in proceedings on an application for a re-trial order under section 8 or 9 of the Criminal Procedure Act 2010 , on the application made by a party on notice to every other person entitled to be heard, or of its own motion, make such orders, including any order mentioned in section 12 of the Criminal Procedure Act 2010 , and give such directions as to the conduct of the proceedings, as seem appropriate.”;

(ix) by the substitution for sub-rules (5) and (6) of rule 31 of Order 86 of the following sub-rules and rule:

“(5) Any notice required or authorised to be given to the Court shall be addressed to and served upon the Registrar, The Court of Criminal Appeal, Criminal Courts of Justice, Parkgate Street, Dublin 8.

(6) In every case in which an appellant is not in prison or is represented by a solicitor, his notice of appeal or notice of application for leave to appeal shall be served on the Registrar personally or by delivering the same to the proper officer at the Office of the Court at the Criminal Courts of Justice, Parkgate Street, Dublin 8.

(7) In all other cases not specifically provided for service of any notice or other document may be effected on a person—

(a) by delivering it to the person or to his solicitor,

(b) by addressing it to the person and leaving it at the person’s usual or last known residence or place of business or by addressing it to the person’s solicitor and leaving it at the solicitor’s office,

(c) by sending it by registered post to the person at the person’s usual or last known residence or place of business or to the person’s solicitor at the solicitor’s office, or

(d) in the case of a body corporate, by delivering it, or sending it by registered post, to the secretary or other officer of the body at its registered or principal office.

(8) For the purposes of sub-rule (7), a solicitor retained to appear on behalf of a convicted person at his trial shall be deemed to continue to be retained on his behalf unless that solicitor has been discharged by the Court.

31A. Every application for a certificate of the Court referred to in section 29 (2), section 29 (2A) or section 29 (3) of The Courts of Justice Act 1924 shall be made upon the delivery of the Court’s judgment on the appeal concerned or within twenty-one days thereafter.”, and

(x) by the substitution for rule 3 of Order 87 of the following rule:

“3.Order 58, rule 28 shall apply in the case of an appeal under section 23 (1) of the Criminal Procedure Act 2010 . In every other case, the notice of appeal shall be a ten day notice and subject to the provisions of this Order, shall be served not later than twenty-one days from the date of the decision in question.”.

4. The consequential amendments in Schedule 1 to the provisions of Order 86 and to the forms in Appendix U of the Rules of the Superior Courts shall have effect in accordance with that Schedule.

5. The Rules of the Superior Courts are amended by the insertion of the forms in Schedule 2 as Forms No. 4, 5 and 6 respectively in Appendix FF.

Schedule 1

Consequential amendments to Order 86

Schedule 2

No. 4

THE SUPREME COURT

O.58, r. 24

NOTICE OF APPEAL

The Courts of Justice Act 1924 , Section 29(2A)

The People at the suit of the Director of Public Prosecutions –v– ....................................... (appellant)

TAKE NOTICE that on the expiration of ten days from the service hereof or at the first available opportunity thereafter, the appellant, who has appealed his conviction for ................................................................ to the Court of Criminal Appeal and who has been granted a re-trial by that Court, will apply to the Supreme Court by way of appeal from the judgment and order of the Court of Criminal Appeal given and made on ........................................ 20 ....... , for the following order(s) and determination(s):

[insert particulars of order(s) sought]

The said order(s) and determination(s) are sought in respect of a matter raised by the appellant in the Court of Criminal Appeal, namely

[insert particulars of matter raised in the appeal to the Court of Criminal Appeal to which the order(s) sought relate]

The Court of Criminal Appeal †[did not make a determination] †[made a determination against the appellant] in respect of the said matter. The said matter which is the subject of this appeal is one that is relevant to the conduct of the appellant’s defence in the re-trial because

[insert grounds on which it is alleged that the matter raised in the appeal is relevant to the conduct of the appellant’s defence in the re-trial]

The *[Court of Criminal Appeal] *[Attorney General] *[Director of Public Prosecutions] has certified that the said matter involves a point of law of exceptional public importance and that it is desirable in the public interest that the appellant should take an appeal to the Supreme Court. A copy of that certificate is served together with this notice.

AND TAKE NOTICE that the grounds of this appeal are as follows:

[set out grounds of appeal]

[Where the appellant is applying to the Supreme Court pursuant to Order 58, rule 25(3), for an order granting leave for argument to be heard and a determination made in relation to a part of the decision of the Court of Criminal Appeal concerned other than the point of law of exceptional public importance which is the subject of a certificate, the appellant shall specify here the part of the decision concerned, the determination sought, and the grounds for seeking such determination.]

AND FURTHER TAKE NOTICE that the said appeal will be grounded on the proceedings already had herein, the judgment and order of the Court of Criminal Appeal, the nature of the case and the reasons to be offered.

Dated 20

Signed ______________

To: the Director of Public Prosecutions

And to the Registrar of the Supreme Court

*Insert as appropriate

†Delete where inapplicable

The Supreme Court will, in such appeal, hear argument, if the accused person so wishes, by counsel on his or her behalf or, with the leave of the Supreme Court, by the accused person himself or herself.

If the accused person intends to be heard on the appeal, he or she or his or her legal representative should give notice in writing of this intention to the Registrar of the Supreme Court not later than fourteen days after service of this notice, and give a copy of such notice to the person named above within the same period.

No. 5

O.58, r. 28

THE SUPREME COURT

NOTICE OF APPEAL

Criminal Procedure Act 2010, Section 23

The People at the suit of the Director of Public Prosecutions –v– ...............................

TAKE NOTICE that on the expiration of ten days from the service hereof or at the first available opportunity thereafter the *[Attorney General] *[Director of Public Prosecutions] will apply to the Supreme Court by way of appeal on a point of law:

*from the acquittal on ...................... 20.......... by the ...................... Court (in this notice, the “Court of trial”) of the above-named accused in respect of the offence of ..........................................., which acquittal did not follow a re-trial ordered under subsection (1) or (2) of section 10 of the Criminal Procedure Act 2010 ,

*from the judgment and order of the Court of Criminal Appeal given and made on ...................... 20.......... , quashing the conviction by the ........................................... Court of the above-named accused in respect of the offence of ........................................... , and making no order for the re-trial of the said accused in respect of the said offence,

and will apply for the following order(s) and determination(s):

[insert particulars of order(s) sought]

AND TAKE NOTICE that the grounds of this appeal are that:

*a ruling was made by the Court of trial during the course of the trial of the said accused, which erroneously excluded compelling evidence (within the meaning of section 23(14) of the Criminal Procedure Act 2010 ),

*a ruling was made by the Court of Criminal Appeal during the course of the hearing of the appeal to that Court, which erroneously excluded compelling evidence (within the meaning of section 23(14) of the Criminal Procedure Act 2010 ),

*a direction was given by the Court of trial during the course of the trial of the said accused, directing the jury in the trial to find the said accused not guilty where—

(i) the direction was wrong in law, and

(ii) the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the guilt of the said accused in respect of the offence concerned.

[insert particulars of the ruling alleged to be erroneous and the nature of the evidence alleged to be compelling or, as the case may be, of the direction alleged to be wrong in law]

AND FURTHER TAKE NOTICE that the said appeal will be grounded on the proceedings already had herein, the judgment and order of the *Court of trial *Court of Criminal Appeal, the nature of the case and the reasons to be offered.

Dated 20

Signed ______________

To ............................ of ........................................................., the said accused

And to the Registrar of the Supreme Court

*Insert as appropriate

Note: section 23(9) of the above-mentioned Act provides that the accused person may, in relation to such appeal, apply for a legal aid (Supreme Court) certificate to the Supreme Court either—

(a) by letter addressed to the Registrar of the Supreme Court setting out the facts of the case and the grounds of the application, or

(b) to the Supreme Court itself

and that the Court shall grant the certificate if (but only if) it appears to the Court that the means of the accused person are insufficient to enable him or her to obtain legal aid.

If a legal aid (trial on indictment) certificate was granted in respect of the accused person in relation to the earlier proceedings in respect the offence concerned, a legal aid (Supreme Court) certificate shall be deemed to have been granted in respect of the accused person in relation to such appeal.

No. 6

THE SUPREME COURT

O.58, r. 29

NOTICE OF APPEAL

Criminal Procedure Act 2010, Section 14

The People at the suit of the Director of Public Prosecutions –v–..................... (respondent)

TAKE NOTICE that on the expiration of ten days from the service hereof or at the first available opportunity thereafter, the *[prosecutor] *[respondent] will apply to the Supreme Court by way of appeal from the determination of the Court of Criminal Appeal given and made on ...................................... 20....... , under section *[10(1)] *[10(2)] of the Criminal Procedure Act 2010 *[making] *[refusing] a re-trial order quashing the respondent’s acquittal of the offence of ........................................... and directing that the respondent be re-tried for that offence

and will apply on appeal for the following order(s) and determination(s):

[insert particulars of order(s) sought]

The *[Court of Criminal Appeal] *[Attorney General] *[Director of Public Prosecutions] has certified that the said determination involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. A copy of that certificate is served together with this notice.

AND TAKE NOTICE that the grounds of this appeal are as follows:

[set out grounds of appeal]

AND FURTHER TAKE NOTICE that the said appeal will be grounded on the proceedings already had herein, the judgment and order of the Court of Criminal Appeal, the nature of the case and the reasons to be offered.

Dated 20

Signed ______________

To: ............................. of ..........................................................

And to the Registrar of the Supreme Court

*Insert as appropriate

Note: section 14(4) of the above-mentioned Act provides that the respondent may, in relation to such appeal, apply for a legal aid (Supreme Court) certificate to the Supreme Court either—

(a) by letter addressed to the Registrar of the Supreme Court setting out the facts of the case and the grounds of the application, or

(b) to the Supreme Court itself.

and that the Court shall grant the certificate if (but only if) it appears to the Court that the means of the respondent are insufficient to enable him or her to obtain legal aid.

If a legal aid (re-trial order) certificate was granted in respect of the respondent in relation to the application for a re-trial order, a legal aid (Supreme Court) certificate shall be deemed to have been granted in respect of him or her in relation to the appeal.

EXPLANATORY NOTE

(This does not form part of the Instrument and does not purport to be a legal interpretation.)

These rules amend Orders 58, 85, 86 and 87 of the Rules of the Superior Courts to prescribe new procedures and forms consequent upon the coming into operation of certain provisions of the Criminal Procedure Act 2010 .