Retrial following two jury disagreements was permissible

Charleton J (majority judgment): Judicial review - failure of jury to reach verdict - whether to try accused again following two lengthy trials - "tiger kidnapping" - kidnapping of family of security employees to facilitate robbery - issue whether accused involved in offence - circumstantial evidence - whether victims member of gang - family members tied up and brought to Dublin mountains untied themselves and found public road - whether rule against third trial where two successive jury disagreements - multiple trials - "working presumption" against third trial - held in High Court that absence of fresh evidence meant further trial should be prohibited - whether oppressive or unfair to permit a third trial to take place - - circumstances in which further trial should take place - role of DPP should be respected - focus of trial - seriousness of alleged offence - comment on contested facts.

"This crime is of the grossest dimensions. Children were held and abducted at gunpoint, people were tied up in a forest on the understanding of those who imprisoned them that ties which held them could eventually be undone but with no expectation and no thought of care for their safety should that be a miscalculation. A loving husband and father was coerced into acting contrary to his duty and instincts as a family man and as a loyal employee. Overall, an air of menace hung over the fate of each member of the family that was made captive and subjected to armed duress. "

"While a decision by the Director of Public Prosecutions to order a third criminal trial after juries have failed to agree a verdict on two prior occasions is at the extreme pole of prosecutorial discretion, it is not necessarily an abuse of process or an infringement of the right of the accused to a trial in due course of law. ... Where cases involve unusually grave crimes and an assembly of complex facts, a third trial remains possible where two prior juries have disagreed. The case facing Niall Byrne and David Byrne meets the criteria identified in the case law for permitting a third trial notwithstanding two prior jury disagreements and should not, therefore, be prohibited."

Hardiman J (partially dissenting): Judicial review - criminal trials - extensive trial - over 200 witnesses - personal circumstances of accused - stress of awaiting trial - effect on family - whether there had ever been a third retrial in Ireland following two jury disagreements - whether any rule preventing third trial - fundamental fairness - years of accused's life consumed in awaiting trial - no change in evidence to be tendered.

"It therefore appears that in Ireland, and in the Common Law world generally, there is a practice, expressed in various ways, of not proceeding to a third prosecution after a jury has disagreed twice after full trials. In the present case the trials were of quite unusual length, the first one was stated to be the longest Circuit Criminal Court trial in the history of the State. "

"Counsel for the Director of Public Prosecutions was unable to refer us to any case where a third trial has taken place after two full trials which proceeded to a conclusion. If there were any precedent for this, the Director is in a unique position to provide it, for the reasons set out above. In my view, if there is to be a third trial something in the nature of “unusual or exceptional circumstances” in the words of Kearns J., must be demonstrated. In my opinion, the statement of opposition in Mr. Niall Byrne’s case makes no attempt to do so."