Application of Precedent in Irish Law
The Application of Precedent
• The process: relevant circumstances in the present case; rule to be applied to the case must be discovered by examining previous similar cases (precedent); rule applied to the circumstances of present case.
Example 1
• Considine v Shannon regional Fisheries Board [1994] Costello J: ‘principle of precedent is easy to state, but is difficult to apply in practice’
• The issue: after a not guilty verdict (acquittal) in the District Court, could an appeal could be brought to the Circuit Court by the prosecution as provided for in S. 310 of the Fisheries (Consolidation) Act 1959?
• The relevant precedent: The People (DPP) v O’Shea [1982].
• 3-2 majority of the SC: an appeal against an acquittal lies to the Supreme Court from the Central Criminal Court.
• Two members of the majority (O’Higgins and Walsh JJ) suggested the SC could order a retrial if the appeal was successful; other majority judge (Hederman) expressed no opinion; two dissenting judges (Finlay and Henchy JJ) held that no right of appeal
• In Considine, two points were different from O’Shea; o O’Shea dealt with Article 34.4.3 (appeals to Supreme Court from High Court), while Considine dealt with 34.4.4 (appeals from lower courts, eg. District Court to the Circuit Court) o O’Shea dealt with an appeal from a jury verdict while Considine dealt with a judge’s decision.
• Costello J felt the principles laid down by the SC were binding on him. But what were those principles? The decision in O’Shea was:
•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.5 (trial by jury) (2: yes, 2: no, 1: maybe)
•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.1 (trial in the course of law) (2:yes, 2: no, 1: maybe).
• Although the ‘maybe’ here, Hederman J’s judgment, did not deal expressly with the point, Costello J felt that, by implication, he must have agreed with the other two majority
• The process: relevant circumstances in the present case; rule to be applied to the case must be discovered by examining previous similar cases (precedent); rule applied to the circumstances of present case.
Example 1
• Considine v Shannon regional Fisheries Board [1994] Costello J: ‘principle of precedent is easy to state, but is difficult to apply in practice’
• The issue: after a not guilty verdict (acquittal) in the District Court, could an appeal could be brought to the Circuit Court by the prosecution as provided for in S. 310 of the Fisheries (Consolidation) Act 1959?
• The relevant precedent: The People (DPP) v O’Shea [1982].
• 3-2 majority of the SC: an appeal against an acquittal lies to the Supreme Court from the Central Criminal Court.
• Two members of the majority (O’Higgins and Walsh JJ) suggested the SC could order a retrial if the appeal was successful; other majority judge (Hederman) expressed no opinion; two dissenting judges (Finlay and Henchy JJ) held that no right of appeal
• In Considine, two points were different from O’Shea; o O’Shea dealt with Article 34.4.3 (appeals to Supreme Court from High Court), while Considine dealt with 34.4.4 (appeals from lower courts, eg. District Court to the Circuit Court) o O’Shea dealt with an appeal from a jury verdict while Considine dealt with a judge’s decision.
• Costello J felt the principles laid down by the SC were binding on him. But what were those principles? The decision in O’Shea was:
•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.5 (trial by jury) (2: yes, 2: no, 1: maybe)
•Article 34.4.3 (appeals to Supreme Court from High Court) was not limited by Article 38.1 (trial in the course of law) (2:yes, 2: no, 1: maybe).
• Although the ‘maybe’ here, Hederman J’s judgment, did not deal expressly with the point, Costello J felt that, by implication, he must have agreed with the other two majority