By entering a nolle prosequi (not proceeding with the prosecution) during the trial of Mr Liam Keane for murder, the Director of Public Prosecutions left open the possibility of proceeding with the prosecution at a later date.
While until then Mr Keane enjoys the presumption of innocence, he has not been acquitted and double jeopardy does not apply.
A nolle prosequi can be entered by the DPP at any stage during a trial, before the jury begins its deliberations. It means that the trial is not going ahead, but technically allows a fresh trial of the accused on the same charge in the future.
Counsel for the DPP, when seeking the nolle, said the director was reserving his position in relation to a future prosecution.
The alternative to this course is to allow a case to run. If there is no evidence brought forward, which looked likely in this case given the reluctance of the witnesses, then the trial would have gone on to the end, with the trial judge having no alternative but to direct the jury to acquit in the absence of evidence.
This would have meant that the accused could never have been tried on this charge again, even in the extreme hypothetical circumstance of him boasting publicly that he committed the crime.
However, second prosecutions following a nolle are rare and the courts will not allow it if it appears the DPP is trying to avoid a ruling by a trial judge in favour of the accused during the trial.
In this case, though, there has been no such ruling by the trial judge. Indeed, Mr Justice Carney asked for the transcript of this case and another related case to be sent to the DPP, which suggests that the Central Criminal Court would not be adverse to a fresh prosecution.
This would require a significant change of circumstances, mainly the production in court of witnesses who were both able and willing to give evidence against the accused. It was the refusal of witnesses to stand over statements they had given to gardaí which caused this trial to be abandoned.
The reasons for their refusals can only be the subject of speculation. However, if they arose from intimidation, it is conceivable that at some future date the source of this intimidation might disappear from the scene for a lengthy period of time, which might allow these witnesses to come forward and say they were now able and willing to give evidence in court. Theoretically, this would provide the basis for a new prosecution.
But this would not necessarily be successful. Even if the DPP crossed the hurdle of traditional judicial reluctance to allow a second trial following a nolle prosequi, he would have to face a defence which would undoubtedly home in on the reliability of his witnesses.
If they had changed their story once, the defence might say, why believe them now? In reality, the chances of a successful prosecution in the future seem remote.
This raises questions about the conduct of this trial and whether it could have been done differently.
Some commentators, notably the Fine Gael spokesman on justice, Mr John Deasy, have asked why it did not take place in the Special Criminal Court.
The DPP can refer a case to the Special Criminal Court if, on the advice of the Garda, he feels a proper trial cannot take place in an ordinary court, either at Circuit or Central Criminal Court level. The normal justification for the use of the Special Criminal Court is the fear of jury intimidation.
But this was not an issue in this trial. The trial was abandoned because of the refusal of witnesses to testify. There is no reason to think they would have been any more willing to testify in the Special Criminal Court, although the court itself operates in a more secure fashion than do the courts in the Four Courts complex, like the Central Criminal Court.
In recent years, the Special Criminal Court has been used for major criminal trials, such as that of John Gilligan, where witness protection programmes were involved. However, the operation of these programmes are problematic, with two judgments of the Court of Criminal Appeal criticising the way they were conducted.
Following the move of a second trial involving a member of the Keane family from Limerick to Dublin because it was not possible to empanel a jury, it is clear there are specific problems associated with trials involving a number of individuals from specific families in the Limerick area. There does not appear to be an immediate easy answer.