By Ann O'Loughlin
The Supreme Court has directed a retrial in the case of Brian Rattigan who last year won his appeal against his conviction for the murder of a man in Dublin more than 17 years ago.
Last December, the Supreme Court, by a three to two majority, overturned Rattigan's 2009 conviction for the murder of Decan Gavin (21) who died after he was stabbed outside Abrakebabra in Crumlin Shopping Centre on August 25 2001.
Rattigan remains in jail on foot of his conviction in 2013 for drug dealing while in custody.
In seeking a retrial on the murder charge, Pauline Walley SC, for the DPP, said the Director had conducted a genuine review of the matter and considered there should be a retrial for this serious crime.
Brendan Grehan SC, for Rattigan, argued a retrial would be unfair on grounds including lapse of time and alleged prejudicial publicity.
Giving the court’s ruling, the Chief Justice, Mr Justice Frank Clarke, said the test for a retrial is whether it is in the interests of justice that a retrial be ordered.
In that regard, the DPP maintained the matter concerns a serious criminal offence, murder, and that it is in the public interest the matter is retried and decided while Mr Rattigan argued there were several factors against retrial.
Mr Justice Clarke said the most common reason not to permit a retrial was not present in this case.
A retrial should not be permitted if it is intended to allow the prosecution mend its hand after being unable to prove its case at the original trial but that was not an issue here.
The trial judge is obliged to ensure a fair trial, that all procedural requirements are complied with and, if there is a conviction or sentence, all relevant matters would be considered, he said.
The court should only refuse a retrial if there was a clear case there could not be a fair trial for reasons such as delay or prejudicial pretrial publicity, he also said.
Having considered the arguments on those grounds, the court had concluded it would direct a retrial and remit the matter to the Criminal Courts of Justice for that purpose.
Rattigan, with an address at Cooley Road, Drimnagh, Dublin, denies the murder of Mr Gavin.
He won his appeal against conviction after the majority Supreme Court found some closing comments by the trial judge, Mr Justice George Birmingham, to the jury involved the trial judge unintentionally engaging in "a piece of advocacy in favour of the prosecution". The comments suggested the defence had advanced a defence of unusual coincidence, which it had not, and then subjected that unadvanced defence to "sustained sarcasm", Ms Justice Iseult O'Malley said.
During Wednesday's retrial application, in addressing the claims of prejudicial publicity, Ms Walley said the courts have dismissed arguments to halt trials on such grounds and the advent of social media also changed matters.
It was for the trial judge to manage issues concerning publicity, there is a contempt jurisprudence, "noone is above the reach of the law" and the court has jurisdiction to protect its own process, she said.
Mr Grehan said issues of prejudicial publicity are generally addressed here in contempt proceedings but there are no specific statutory procedures to address them. The law is "very far behind" social media with procedures dating back to the 1970s, "a very different time", he said.
Mr Justice Peter Charleton noted trial judges generally warn juries not to access social media. The fact people access social media is a fact of life and it is "silly" to suggest such warnings from judges to jurors about its use could direct juries to social media, he added.
Ms Justice Elizabeth Dunne said social media is a reality the courts have to deal with and trial judges have to have regard to the possibility people may do something online they should not. The courts retain power to police procedure to ensure a fair trial and cases in the UK indicate jurors can be jailed for conducting inappropriate research on social media, she said.
When Mr Grehan said, in relation to social media, "we’re all the time playing catch up", Ms Justice Dunne said that was "probably true" but "not a reason not to act". Concerns about prejudicial publicity could be addressed in the usual way, directions from the trial judge, when a jury is being empanelled.
When Mr Justice William McKechnie told Mr Grehan: "We simply cannot close shop", counsel said he appreciated trials still have to be conducted.