CA156 McCabe -v- Governor of Mountjoy Prison & ors [2015] IECA 156 (22 July 2015)


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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> McCabe -v- Governor of Mountjoy Prison & ors [2015] IECA 156 (22 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA156.html
Cite as: [2015] IECA 156

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Judgment

Title:
McCabe -v- Governor of Mountjoy Prison & ors
Neutral Citation:
[2015] IECA 156
Court of Appeal Record Number:
2014/1433
Date of Delivery:
 22/07/2015
Court:
Court of Appeal
Composition of Court:
Finlay Geoghegan J., Irvine J., Mahon J.
Judgment by:
Ms. Justice Finlay Geoghegan and Mr. Justice Alan Mahon
Status:
Approved
    ___________________________________________________________________________




THE COURT OF APPEAL

Finlay Geoghegan J.
Irvine J.
Mahon J.
[Appeal No. 2014/1433]

[Article 64 Transfer]

In the Matter of an Inquiry under Article 40.4 of the Constitution
      Between
Damien McCabe
Applicant/Respondent
And

Governor of Mountjoy Prison

Respondent/Appellant
And

And In the Matter of Plenary Proceedings

      Between
Damien McCabe
Plaintiff/Respondent
And

Ireland and Attorney General

Defendants/Appellants
And

The Director of Public Prosecutions

Notice Party/Appellant

Judgment delivered on the 22nd day of July 2015 by Ms. Justice Finlay Geoghegan

1. This appeal and cross appeal, raises once again interpretative difficulties of s. 99 of the Criminal Justice Act 2006. As recently observed by O’Donnell J. in the Supreme Court in DPP v Carter and DPP v Kenny [2015] IESC 20, at para. 1:

      “Section 99 of the Criminal Justice Act 2006 (‘the 2006 Act’) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation. . . . One thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.”
2. The factual background to the High Court proceedings is as follows. Mr. McCabe was convicted in the District Court on the 24th June, 2013 of a road traffic offence, and sentenced to five months imprisonment. He appealed his conviction and sentence to the Circuit Court. On the 29th October, 2013, the Circuit Court upheld his conviction, but altered the sentence to one of six months suspended for a period of two years on conditions. On the 26th May, 2014, he was convicted of a public order offence before the District Court. He was then remanded to the Circuit Court pursuant s. 99(9) of the 2006 Act. On the 27th May, 2014, the Circuit Court made an order “that said suspension be revoked and [Mr. McCabe] shall serve the entire sentence of six months”. Mr. McCabe was remanded in custody to the District Court on the 28th May, 2014, for the purpose of that court imposing sentence in relation to the public order offence. The District Court at the time of the High Court judgment had adjourned its decision as to sentence presumably by reason of the intervening High Court proceedings.

3. On the 28th May, 2014, the High Court (Hogan J.) made an order for an inquiry pursuant to Article 40.4.2 of the Constitution. The return of the Governor of Mountjoy Prison certified that Mr. McCabe was held pursuant to the committal warrant of the Circuit Court of the 27th May, 2014. The legality of Mr. McCabe’s detention in the Article 40 application was challenged on three grounds: (1) that the word “convicted” in s. 99(9) of the 2006 Act, as amended, can only refer to a person sentenced by the District Court; (2) that the warrant was bad on its face and (3) that the absence of a right of appeal against the decision of the Circuit Court to reactivate the suspended sentence in the case of Mr. McCabe rendered s. 99 of the 2006 Act or parts thereof unconstitutional.

4. In the Article 40 application, in accordance with established principles Hogan J. initially decided the non constitutional grounds of challenge. In a judgment delivered on the 3rd June, 2014, he held against the applicant and in favour of the validity of the warrant in relation to grounds (1) and (2) above.

5. Thereafter it was suggested by the trial judge that rather than proceeding with a hearing in relation to the constitutional ground of challenge in the Article 40 proceeding, that separate plenary proceedings should be commenced on behalf of Mr. McCabe. This appears to have been by reason of the challenge to the validity of s. 99 and the provision for a case stated in such circumstances in Article 40.4.3. On the 3rd June, 2014, in the Article 40 proceedings, an order was made giving Mr. McCabe liberty to issue a plenary summons raising the constitutional issues already identified and staying execution on the committal warrant. Mr. McCabe was also admitted to bail on terms.

6. Plenary proceedings were commenced on behalf of Mr. McCabe against Ireland and the Attorney General on the 27th June, 2014. In those proceedings a declaration was sought that s. 99 was invalid having regard in particular to Articles 34.3.4, Article 38 and Article 40.1 of the Constitution. In addition a declaration was sought that the Oireachtas was obliged to enact legislation such as would have provided for an appeal against the decision from the Circuit Court made on the 27th May, 2014, activating the suspended sentence. The statement of claim expressly pleaded that the Oireachtas had not provided a right of appeal in respect of the order of the 27th May, 2014, and reference was made to s. 18(3) of the Courts of Justice Act, 1928. In the defence and in subsequent submission to the High Court, the only potential type of appeal identified as being available to Mr. McCabe in the circumstances in which the Circuit Court made its decision to activate the suspended sentence, was the provision made by s. 16 of the Courts of Justice Act, 1947, for a reference by the Circuit Court to the Supreme Court of a case stated on a question of law. It was not expressly pleaded, nor was a submission made to the High Court that Mr. McCabe had a right of appeal pursuant to s. 99(12) of the 2006 Act, to the Court of Criminal Appeal.

7. On the 30th September, 2014, Hogan J. delivered a written judgment in the plenary proceedings. He conveniently summarised his principal conclusions at paras. 53 to 56:

      “53. First, the starkly different treatment of the rights of appeal of convicted persons whose suspended sentence in respect of summary offences was originally imposed by the Circuit Court rather than the District Court is not objectively justifiable and amounts to a breach of the equality guarantee in Article 40.1. This is especially so given that s. 99(12) of the 2006 Act (as amended) pre-supposes that all such offenders will enjoy a right of appeal against the re-activation of such a sentence and as s. 99(10) makes it clear that such re-activation was not intended to operate automatically in every single case.

      54. Second, the failure to provide a right of appeal against the re-activation of a suspended sentence by a court of local and limited jurisdiction involves a failure to provide a right of appeal in the manner determined "by law" for the purposes of Article 34.3.4, at least, where, as here, no objective justification for such failure has been supplied. By failing to providing for such a right of appeal, the Oireachtas has failed to comply with fundamental constitutional norms in the sense identified by Henchy J. in King v. The Attorney General [1981] I.R. 233 and, more recently, by O'Donnell J. in Murphy v. Ireland & Ors [2014] IESC 19.

      55. Third, given the unconstitutionality which has been just identified relates not to what is contained ins. 99 of the 2006 Act, but rather to that which it does not contain, it would be both inappropriate and unnecessary to make a formal declaration of unconstitutionality invalidating s. 99 itself.

      56. Fourth, the plaintiff is nonetheless entitled to a real remedy to ensure that his constitutional rights are not further infringed. In these circumstances, adapting by analogy the solution devised by the Supreme Court in Carmody in respect of the unconstitutional legislative omission identified in that case, I propose to grant an order declaring that it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal against the decision of the Circuit Court to re-activate the sentence.”

8. As appears from the earlier part of his judgment, those conclusions were reached upon what appears to have been the agreed position between plaintiff and defendants that notwithstanding the terms of s. 99(12) of the 2006 Act, Mr. McCabe had no statutory right to appeal the decision of the Circuit Court to reactivate the suspended sentence to the Court of Criminal Appeal. At para. 9 of his judgment, the trial judge having set out s. 99(12) stated:-
      “9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.”
9. Later in the judgment having concluded that there was a constitutional right to appeal the decision of the Circuit Court to re-activate the sentence he expressly considered whether the provisions of s. 16 of the 1947 Act, and its case stated procedure met the constitutional requirement. He concluded that it did not at para. 25 of his judgment. This was the only available form of statutory appeal then relied upon by the defendants.

10. The only High Court Order following delivery of the judgment in the plenary proceedings, produced on appeal was an order made in the Article 40 proceedings which refers also to the plenary proceedings and the fact that both proceedings came on before the judge on the 30th September, 2014. The order refers separately initially to both sets of proceedings and then states:-

      “And the court being of the opinion in so adjudging that the said return to the Order made herein and dated the 28th day of May 2014 is insufficient to justify the detention of the Applicant as aforesaid.

      IT IS ORDERED that the applicant be released forthwith from such detention.

      AND IT IS ORDERED That the within proceedings and the related plenary proceedings be consolidated."

11. An order was then made for the applicant to recover costs against the respondent including reserved costs and subsequent orders relating to a stay on the order for costs on certain terms. In the course of the appeal it was indicated that the intention of the trial judge was to consolidate the article 40 and plenary proceedings for the purposes of costs only. No issue arose in the appeal as to the entitlement of the High Court to consolidate an application under Article 40 of the Constitution with plenary proceedings.

12. I have recorded the form of order made because it is relevant to the relief to be granted on appeal.

Appeal
13. On the 24th October, 2014, the respondent in the Article 40 proceedings and defendants in the High Court proceedings appealed to the Supreme Court the judgment delivered in the plenary proceedings on the 30th September, 2014 and the order of the same date. The appeal was entitled in the consolidated proceedings.

14. By direction of the Chief Justice given with the concurrence of the other judges of the Supreme Court pursuant to Article 64 of the Constitution on the 29th October, 2014, the appeal was transferred to this Court.

15. The appeal came before Kelly J. in the Court of Appeal for directions on the 4th December, 2014. Counsel for Mr. McCabe indicated that they wished to serve a notice of cross appeal and were given liberty to do so. That notice of cross appeal was served on the 11th December, 2014, and in addition to seeking alternative relief and orders pursuant to the conclusions of the trial judge in the plenary proceedings, it also sought to cross appeal from the judgment of the trial judge delivered on the 3rd June, 2014, in the Article 40 proceedings. Mr McCabe was permitted to pursue the cross appeal.

16. Accordingly, at the hearing of the appeal before this Court, following full written submissions, there were two sets of issues. They were referred to as the constitutional issues and sub-constitutional issues. The former were the issues raised on the notice of appeal and notice of cross appeal in relation to the judgment of the trial judge in the plenary proceedings. The sub-constitutional issues were those raised by the notice of cross appeal in relation to the judgment of the trial judge in the Article 40 proceedings.

17. I read in draft the judgment of Mahon J. in relation to the sub-constitutional issues on the cross appeal and agree with his conclusion that the cross appeal of Mr. McCabe against the determinations made in the judgment of the 3rd June, 2014, should be dismissed for the reasons given.

18. I propose in this judgment considering the issues raised by the notices of appeal and cross appeal in relation to the judgment given in the plenary proceedings and the consequences for the order made by the trial judge in the Article 40 proceedings on the 30th September, 2014, in the light of all the judgments of this Court.

Section 99(12) of the Criminal Justice Act 2006.
19. The appellants in their notice of appeal against the conclusions of the trial judge on the constitutional issues, added as an alternative and final ground of appeal:-

      “In the alternative, in failing to hold that, having regard to the presumption of constitutionality and the double construction rule, s. 99(12) of the Criminal Justice Act 2006 (as amended), may properly be interpreted as providing that where a suspended sentence which had been imposed by the Circuit Court in the exercise of its appellate jurisdiction is later revoked by that court in accordance with s. 99(10) of the Act of 2006, the person whose sentence is thereby revoked has a statutory right to appeal to the Court of Criminal Appeal.”
20. As appears from the history of these proceedings, in the High Court already set out in this judgment, no plea to this effect was made in the defence delivered and no submission to this effect was made to the High Court. However, since the service of the notice of appeal, Mr. McCabe and his representatives were aware that the appellants proposed, if permitted, to rely on this ground of appeal in reliance on s.99 (12) of the 2006 Act.

21. The issue raised by this ground of appeal is the interpretation of s. 99(12) of the 2006 Act and in particular whether it grants a statutory right of appeal from a decision of the Circuit Court to revoke a suspended sentence which had been imposed on the hearing of an appeal from the District Court. That issue was not raised before the High Court judge.

22. It is not suggested that the circumstances in which this Court may or should hear and determine an issue which was not tried in the High Court should differ in any away from the prior jurisdiction of the Supreme Court hearing an appeals from the High Court. The principle as stated by Finlay C.J. in K.D. v. M.C. [1985] I.R. 697, at p. 701, “that, save in the most exceptional circumstances, the court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or principle there may be exceptions, but they must be clearly required in the interests of justice”.

23. The court permitted submissions in relation to the issue. The issue is a question of law. It arises in circumstances as will appear below where the Oireachtas has expressly purported to provide an appeal from a decision such as at issue in these proceedings and yet by reason of other and prior legislative provisions a view appears to have been taken by both sides in the High Court that the appeal provided for in s. 99(12) did not apply to the decision of the Circuit Court to activate the suspended sentence imposed on Mr. McCabe. The issue of the interpretation of s. 99(12) is one of general importance. The interests of justice require that the court consider the issue prior to determining the constitutional issues raised on behalf of Mr. McCabe. It would be contrary to the public interest and the interests of justice if the Court were now to determine this appeal without considering the proper interpretation of s. 99(12) of the 2006 Act because it had not been raised in the High Court. However Mr McCabe should not be prejudiced by the Court’s agreement to consider the issue. I will return to this.

24. The scheme created by s. 99 of the 2006 Act, as amended, insofar as relevant to the issue of the right of appeal created by s. 99(12) is evident from ss. (1),(2), (9) and (10) which provide:-

      “99. Power to suspend sentence

      (1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

      (2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—


        (a) the period of suspension of the sentence concerned, or

        (b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned,

        and that condition shall be specified in the order concerned.

        (...)


      (9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of the order under subsection (1), the court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.

      (10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody other than a period spent in custody by the person in respect of an offence referred to in subsection (9) pending the revocation of the said order.

      (11)...

      (12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.”

25. As appears the statutory scheme created by s. 99 in relation to the suspension of sentences and subsequent revocation (as it is put) of the suspension or as is sometimes stated the activation of the suspended sentence is the following. The court is now given an express statutory power to suspend a sentence pursuant to s. 99(1). It may do so subject to the person entering into a recognisance to comply with the conditions imposed. Section 99(2) now makes it mandatory to impose (amongst others) a condition that a person keep the peace and be of good behaviour during one of the periods specified in that subsection. If during the relevant period a person is convicted of a second offence, then pursuant to subs. (9) the court before whom the person is convicted must before imposing sentence for the second offence remand the person to the next sitting of the court that made the order suspending the first sentence.

26. The court which imposed the first suspended sentence is then bound to revoke the order suspending the sentence unless it considers that the revocation would be unjust in all the circumstances of the case. Where an order of revocation is made, the convicted person may be required to serve either the entirety of the sentence originally imposed or such part of the sentence as the court which revokes the suspension considers just less periods already spent in custody.

27. It is to that scheme that the Oireachtas has then given a right of appeal in s.99 (12). In accordance with the ordinary meaning of the words used in s. 99(12) in the context of the statutory scheme created by the section, it appears to me that the following is the position:

      (1) A statutory right to appeal is expressly given against all decisions to revoke orders made pursuant to s.99(1) to suspend all or part of a sentence.

      (2) The decision to revoke or revocation is made pursuant to s. 99(10). In making such an order a court is now exercising a statutory jurisdiction created by s. 99(10).

      (3) The description of the court to which the appeal may be taken is such court as would have jurisdiction to hear “an appeal against any conviction of, or sentence imposed on a person for an offence by the court that revoked that order” [emphasis added]. The wording of s. 99(12) does not require that the appeal court have jurisdiction to hear appeals against all convictions for all offences.

      (4) Importantly, by the words used, the court to which the appeal may be brought is not limited to a court with jurisdiction to hear an appeal against the original sentence suspended pursuant to s.99(1). Rather it includes a court with jurisdiction to hear an appeal against “any. . . sentence imposed . . . for an offence by the court” that makes the revocation order.

28. On the facts herein the Circuit Court revoked the order to suspend the first sentence. The Court of Criminal Appeal (and now the Court of Appeal) is a court which has jurisdiction to hear an appeal against a conviction or sentence imposed by the Circuit Court albeit in cases of trial on indictment pursuant to s. 63 of the 1924 Act. Nevertheless it is a court which comes within the general description in s.99(12) of a court which “would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order”.

29. Accordingly I would interpret s. 99(12) as giving by its express terms a statutory right of appeal to the Court of Appeal (and previously the Court of Criminal Appeal) against all orders made by the Circuit Court pursuant to s.99(10) to revoke a suspended sentence irrespective of the nature of the proceeding in which it imposed the first sentence and suspended all or part of the sentence pursuant to s.99(1).

30. The remaining issue is whether s. 18(3) of the Courts of Justice Act 1928, (as amended by s. 58 of the Courts of Justice Act 1936) precludes such an appeal where the s.99(1) order was made in respect of a sentence imposed in an appeal from the District Court. The operative part of that section provides:

      “Every appeal under this section from an order of a justice of the District Court shall lie to the judge of the Circuit Court . . . and the decision of such judge on such appeal shall be final and conclusive and not appealable.”
31. I do not consider that a decision or order made pursuant to s.99 (10) of the Act of 2006 to revoke an order made pursuant to s. 99(1) suspending part or all of a sentence, is a decision on the appeal from the District Court within the meaning of s. 18(3). The decision on the appeal was the first sentence imposed including the order pursuant to s. 99(1) that the sentence be suspended. The order to revoke the suspension of the sentence is made pursuant to s. 99(10) and is a separate and distinct decision made in exercise of a different statutory jurisdiction. On the facts of this appeal it was not even made by the same Circuit Judge. Irrespective of whether it was made by the same Circuit Judge or not it is a separate and distinct decision and requires in accordance with s.99 (10) the exercise of discretion having regard to different considerations beyond those which would have arisen at the time of the hearing of the appeal.

32. Whilst it is true that a Circuit judge who makes a decision pursuant to s. 99(10) to revoke an order made pursuant to s. 99(1) that a sentence be suspended then activates or reactivates a sentence in whole or in part imposed on the hearing of the appeal. However, where a person is remanded under s.99(9) by reason of conviction of a second offence the Circuit Judge is making a new and different decision under s. 99(10) as to the period of suspended sentence then to be served from the decision taken by the Circuit Judge hearing the appeal from the District Court. It is not a decision on the appeal.

33. I find support for the view that it is a separate decision and sentence in the judgment of the Court of Criminal Appeal delivered by Denham J. (with Feeney and McGovern JJ.) in Richard Kiely v. Director of Public Prosecutions (Unreported, Court of Criminal Appeal, 19th February, 2008). The applicant had pleaded guilty to several driving offences before the Circuit Court and on the 18th October, 2006, the Circuit Court had imposed aggregate consecutive sentences of six years imprisonment with the entire six years suspended on conditions. Subsequently in 2007 the applicant was convicted in the District Court of public order offences. The circuit judge reactivated four years of the sentence on the 8th March, 2007, and suspended the last two years on further conditions. In its judgment the Court per Denham J. stated at the outset:-

      “This is not an appeal from the sentencing on the 18th October, 2006. This is an appeal from the reactivated sentence, the sentence imposed on the 8th March, 2007. On the reactivation of the sentence the trial judge has a discretion, which is under appeal.”
34. The court then considered whether or not the trial judge had erred in principle in the reactivation and the discretion exercised under s. 99(10) of the 2006 Act.

35. A submission was also made on behalf of Mr. McCabe that there was no procedure for appeal to the Court of Criminal Appeal or now to this Court for an appeal pursuant to s. 99(12). Whilst there may not be any express reference to an appeal pursuant to s. 99(12) in the Rules of Court, nevertheless O. 86C, r. 3(1) of the Rules of the Superior Courts (which is the successor to O. 86, r.4(1) RSC applicable in May 2014), sets out a procedure for any convicted person who wishes to appeal to the Court of Appeal on a notice of appeal in Form No. 9. That form permits the person to indicate that he or she is appealing against sentence only. An applicant such as Mr. McCabe would of course only have a right of appeal against the reactivated sentence. As appears from the judgment of the Court of Criminal Appeal referred to in Kiely such appeals have been brought to that Court against a reactivated sentence pursuant to section 99.

36. My conclusion therefore is that Mr. McCabe had a statutory right of appeal pursuant to s. 99(12) of the 2006 Act, against the order of the Circuit Court made on the 27th May, 2014, to reactivate the sentence and to require that he serve the full six months custodial sentence. This as appears from the above, is a new right of appeal given by section 99(12). By reason of this conclusion, it is unnecessary to consider the remaining grounds of appeal against the conclusions reached by the trial judge in the plenary proceedings. His constitutional conclusions were premised on the absence of a statutorily conferred right of appeal for Mr. McCabe against the decision of the Circuit Court to re-activate the sentence.

37. It remains to consider what order should be made in the appeal having regard to the conclusion reached in this judgment (with which I am aware my colleagues concur) and the conclusion reached in the judgment to be delivered by Mahon J. (with which I and Irvine J. also concur).

38. In the High Court no order was made in the plenary proceedings pursuant to the judgment of the 30th September, 2014, save the order of consolidation and order for costs. Costs will be separately dealt with when the parties have had an opportunity of considering these judgments.

39. In the High Court, the operative order of the 30th September, 2014, made in the Article 40 proceedings was that the applicant be released from detention by reason of the opinion of the trial judge that the return to the order was “insufficient to justify the detention of the applicant”. That it appears was by reason of the conclusions reached in his judgment in the plenary proceedings that it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal against the decision of the Circuit Court to re-activate the sentence.

40. As has been set out in this judgment, the appellants did not submit at any stage in either proceedings in the High Court that s. 99(12) should be interpreted as granting the right of appeal to Mr. McCabe to the Court of Criminal Appeal against the reactivation of the sentence by the Circuit Court on the 27th May, 2014. Whilst this Court has exceptionally and in the interests of justice permitted the appellants to include this successful ground of appeal it is also in the interests of justice that Mr. McCabe should not be prejudiced by this late albeit correct change of approach by the appellants.

41. It follows from the decisions on this appeal that the warrant of the Circuit Court of the 27th May, 2014, is valid. Mr. McCabe was released pursuant to the order of the High Court of the 30th September, 2014, made in the Article 40 proceedings. In order that Mr. McCabe not be prejudiced by the leave given to the appellants to pursue the successful ground of appeal, notwithstanding the validity of the warrant, it is in the interests of justice that the Court should not vacate the High Court order for the release of Mr. McCabe and for clarity should place a permanent stay on the execution of the warrant of the Circuit Court issued on the 27th May, 2014.

42. I would propose therefore that the following orders be made on the appeal and cross appeal:-

      1. A declaration that s.99(12) of the Criminal Justice Act 2006 (as amended) provides a right of appeal to the Court of Appeal against any order of the Circuit Court made pursuant to s. 99(10) of the Act of 2006, to revoke an order made pursuant to s. 99(1) suspending a sentence and to reactivate in whole or in part the suspended sentence including in circumstances where the suspended sentence was imposed on the hearing of an appeal from the District Court.

      2. An order that the execution of the warrant of the Circuit Court issued on 27th May, 2014 committing Mr. McCabe to prison be permanently stayed.

      3. An order dismissing the cross appeal.

      4. No variation to the substantive order of the High Court of 30th September, 2014.

43. I would add that this Court’s decision does not in any way affect the proceeding before the District Court in respect of the public order offence of which Mr McCabe was convicted and may remain to be sentenced.




Judgment delivered by Mr. Justice Alan Mahon on the 22nd day of July 2015.

1. This judgment concerns the cross appeal by Mr McCabe against the judgment of Hogan J. delivered on 3rd June, 2014, relating to Article 40 proceedings in which he challenged the validity of his detention on and after 28th May, 2014.

2. The High Court judgment concerned two of the three challenges of Mr. McCabe to his detention, namely, firstly, that the word “convicted” in s.99(9) of the Criminal Justice Act 2006 (as amended) can only refer to a person sentenced by the District Court and, secondly, that the warrant dated 27th May, 2014 was bad on its face. The third challenge was the subject of a second judgment delivered by Hogan J. on 30th September 2014, and the appeal relating to the constitutional issue arising therein is the subject of a separate judgment delivered by Finlay Geoghegan J. and which I am in agreement with.

3. The factual background to the proceedings and a summary of those proceedings in the High Court are set out in the judgment of Finlay Geoghegan J. and it is therefore unnecessary for me to refer again to them in detail in this judgment.

4. In his judgment of 3rd June 2014, Hogan J. rejected the submissions made on behalf of Mr. McCabe as to the meaning of the words convicted of an offence, and he also rejected Mr. McCabe’s submissions that the Circuit Court warrant was defective.

5. Mr McCabe contends that Hogan J. erred in law or in fact or on a mixed question of law and fact in the course of his said judgment delivered on 3rd June 2014:-

6. In DPP v Carter and DPP v Kenny [2015] IESC 20, O’Donnell J. stated at para. 1:-
      “Section 99 of the Criminal Justice Act 2006 (“the 2006 Act”) is an apparently innocuous procedural provision. It has already been amended twice in its short life (section 60 of the Criminal Justice Act 2007, and section 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless, it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: section 99 is in need of urgent and comprehensive review.”

The meaning of the words ‘convicted of an offence’
7. Section 99(9) of the Criminal Justice Act of 2006 (as amended) provides:-
      “Where a person to whom an order under sub section (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of an order under subsection (1), the court before which proceedings for the offence were brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order.”
8. Section 99(9) of the Act of 2006 (as amended) therefore provides that where an individual is convicted of an offence during the period of suspension of an earlier sentence, that individual must, before being sentenced for that offence, be referred to the court which imposed the suspended sentence, and for that court to consider if that suspended sentence should be activated in whole or in part, or not at all, before returning the individual to the court which convicted him of the offence which triggered this process, to be sentenced by that court for that offence.

9. What is the meaning of the words convicted of an offence, and is it possible for a conviction to occur and to exist independently of, and prior to, a sentence being imposed therefore?

10. It is contended by Mr. McCabe that s.99(9) of the Act of 2006 is not operable because it is incompatible with the nature of convictions in summary courts. It is his contention that conviction and sentence cannot exist independently of each other with the effect that in this case, and because the District Court, having convicted Mr. McCabe of the public order offence in the District Court, but not sentenced him in respect thereof, could not remit the matter to the Circuit Court. It is his contention that in those circumstances the Circuit Court was being asked to consider a conviction which was not in reality a conviction because it had not resulted in a sentence at that point in time.

11. The respondents in these proceedings contend that a conviction is capable of meaning the completion of the judicial process of both making a finding of guilt and imposing a sentence, and also the completion of the judicial process of making a determination of guilt alone. They refer to the judgment of Lord Upjohn in S(Infant) v. Recorder of Manchester [1971] A.C. 481, as follows, at p. 506:-

      “But the word ‘conviction’ is used also in a secondary sense, that is to express a verdict of guilty or acceptance of a plea of guilty before the adjudication which is only completed by sentence. Not only is the word used frequently in this sense in many judgments, but also in many places and statutes dealing with these matters. As Tindal C.J. said in Burgess’s case, 7 Man. & G. 481, 504: ‘the word “conviction” is undoubtedly verbum equivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court’.

      Mr. Hodgson for the respondents drew our attention to a number of sections in the Magistrates’ Courts Act, 1952, where the word ‘conviction’ was used in its primary sense of an adjudication upon the whole matter and to other sections where it was used in the sense of verdict. Indeed, in section 126(3) it is used in the one sense and in section 126(9) in the other sense. So, too, in the Coinage Offences Act 1861, the word ‘conviction’ was used in its secondary sense. This was clearly pointed out by Hawkins J. in Reg. v. Blaby [1894] 2 QB 170, 171 and 172, but for the purposes of that case it was not necessary that there should have been a judgment.”

12. In Blaby, it was stated:-
      “From the language used it is as clear as anything well can be that the intention of the legislature in this section was that the finding of the jury that the accused was guilty should be treated as a conviction; ‘convicted’ meant ‘found guilty’, and the sentence was to follow on the conviction. And a plea of guilty would equally be a conviction”.
13. In the course of his judgment, Hogan J. referred to the provisions of s. 18(1) of the Courts of Justice Act 1928 (which provided for the right of appeal from the District Court in criminal matters being confined to those cases where a sentence has been imposed). He quoted the provision as follows, at para. 11:-
      “An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the undergoing of any term of imprisonment by the person against whom the order shall have been made”.
14. Hogan J. also referred to an extract from the judgment of McCarthy J. in Muntean v. Hamill [2010] IEHC 391 as follows para. 14:-
      “As will be seen from this provision, for the purpose of brevity in the present context, an appeal can be taken only after sentence and, by definition, accordingly, only after the matter is completely concluded, and not merely after conviction even if, sentence happens to be adjourned following conviction, for whatever reason”.
15. McCarthy J. in Muntean pointed out at s. 50 of the Courts (Supplemental) Provisions Act 1961, provides for a special exception to the general rule that an appeal had to be against both conviction and sentence.

16. While it is undoubtedly the case that the term conviction when used in relation to a summary offence often means the combined judicial process of finding a person guilty of committing an offence and imposing a sentence in respect thereof, it is nonetheless clear that this definition is not absolute and that the legislature has decided, on occasion, to separate conviction and sentence. One such example is s. 50 of the Courts (Supplemental) Provisions Act 1961, as already indicated. Hogan J. aptly summarised the position thus at para. 15:-

      “But, if, in general, the law (and specifically the statutory law) treats conviction and sentence as inseparable, this does not mean that this is so for all purposes or, more particularly, that the Oireachtas is not free to depart from these concepts. It follows that the meaning of the word 'conviction' has not been fixed unalterably by some sacred legal tablet of stone which has permanently abridged the capacity of the Oireachtas to give this word any different meaning, even in the plainly different legal context of the 2006 Act”.
17. In its true and ordinary meaning, s. 99(9) of the 2006 Act (as amended) can only operate and make sense if, in circumstances where an individual commits an offence while enjoying a suspended sentence relating to a previous offence, the court which imposed the suspended sentence is in a position to decide whether all or part (or none) of the suspended sentence should be activated prior to the new sentence for the new offence being imposed. There has to be a separation in the processes that lead to conviction and sentence in those circumstances. It could not be necessary in those circumstances that a conviction must include a sentence, in order for it to be a conviction.

18. I agree with the decision of Hogan J. and which he explained in the following terms at para. 20:-

      “The entire language, structure and format of s. 99 - and particularly s. 99(9) and section s. 99 (10) - expressly presupposes that the second court will transfer the question of the re-activation of the suspended sentence to the first court and that this will be done before the second court imposes sentence. If the phrase 'convicted of an offence' were to have the meaning for which the applicant contends, then these provisions would be otiose and unworkable.”

The Warrant
19. On 27th May, 2014, the Circuit Court revoked the earlier suspension of the appellant’s six month sentence and a warrant duly issued. It is headed “In the matter of Section 99 (10A), Criminal Justice Act 2006, (as amended by section 60, Criminal Justice Act, 2007)" and states as follows:-
      “Whereas the above named accused is a person to whom an order made under Section 99(1) of the above mentioned Act of 2006 applies, such order having been made by this Court on 29th day of October 2013 on which date he was sentenced to six months imprisonment to be suspended on his entering into a bond to keep the peace and to be of good behaviour for a period of two years - see attached schedule.

      And whereas the said accused was convicted in the District Court of an offence on 26th day of May 2014 and was remanded under Section 99(9) of the said Act of 2006 to appear before Court no. 16 on the 27th day of May 2014.

      And whereas the said accused was this day before the Court and the Court being satisfied upon reading the said Order that the accused was convicted before the District Court on the 26th day of May 2014 and that such conviction occurred during the two year period of suspension of a six month sentence of imprisonment imposed by this Court on 29th day of October 2013 in the above entitled proceedings; The Court makes an Order under Section 99(10) of the above mentioned Act of 2006.

      THAT SAID SUSPENSION BE REVOKED and Damien McCabe of 10 Rossmore Drive, Ballyfermot, Dublin 10 shall SERVE THE ENTIRE SENTENCE OF SIX MONTHS.

      And the Court doth further order that the accused be remanded in custody to appear at the sitting of District Court at Court 3 Criminal Courts of Justice on the 28th May 2014 at 10.30 a.m. for the purpose of that Court imposing sentences on the said accused for the offence referred to in Section 99(9) of the said Act 2006 and to be further dealt with according to law.

      TO THE GOVERNOR, MOUNTJOY PRISON

      This is to command you to receive into your custody the above named accused who appeared before Court 16, Circuit Court, on this date and caused to be imprisoned therein in accordance with the Order of the Court.”

20. The warrant was signed on behalf of the County Registrar and was dated 27th May 2014. On its face, it set forth the following facts:-
      (i) That Mr. McCabe is a person to whom an Order made under Section 99(1) of the 2006 Act applies.

      (ii) That by Order of the Circuit Court made on 29th October 2013, Mr. McCabe was sentenced to six months imprisonment which was suspended for a period of two years on condition that he keep the peace and be of good behaviour for a period of two years.

      (iii) That the accused was later convicted of an offence in the District Court on 26th May 2014, and was remanded under Section 99(9) of the 2006 Act to appear before the Circuit Court on 27th May 2014.

      (iv) That the Circuit Court Judge on 27th May 2014 being satisfied that Mr. McCabe had been convicted before the District Court on 26th May 2014, that being within the two year period of suspension of the six month sentence imposed by the Circuit Court on 29th October 2013, made an Order revoking the earlier suspension with the consequence that he would then serve the entirety of his six month sentence.

      (v) That Mr. McCabe be remanded in custody to appear before the District Court on 28th May 2014, for the purposes of that date imposing sentence in relation to the Section 99(9) offence.

21. The issue of warrants (or, as they are commonly referred to, commital warrants), and possible deficiencies in such warrants, have been considered in a number of cases.

22. The case of G.E. v. Governor of Cloverhill Prison [2011] IESC 41, involved an appeal to the Supreme Court in respect of an application brought under Article 40.4.2 from a decision of the High Court which had found that the applicant’s detention was in accordance with law. In that case, the applicant had been refused permission to enter the State on 1st August 2011. He apparently had not been in a position to provide the gardaí with any form of identification. At the garda station he filled out a landing card stating he was from Sierra Leone. This was not accepted by the gardaí and he was asked to fill out another landing card in which he stated his nationality was Nigerian. The applicant’s solicitor in the High Court application averred to the fact that the appellant had instructed him that he had already been an asylum seeker in the State and that he had felt pressurised into completing the second landing card.

23. The evidence given to the High Court was that the gardaí had given the appellant three documents, each of which set out the reason why he was been refused leave to land. These specified:-

      (a) That he did not have a valid passport;

      (b) That he did not have a valid visa; and

      (c) That he intended to travel to Great Britain or Northern Ireland where he would not qualify for admission.

24. As a result of these events the appellant was refused permission to enter the State and was detained pending his removal under s. 5 of the Immigration Act 2003 as amended.

25. A detention order was made out in the following terms:-

      “In exercise of the powers conferred on me by s. 5(2) of the Immigration Act, 2003 I direct that pending the making of arrangements for his/her removal from the State, that:-

        Gerard Ejerenwa Date of Birth 28.10.1978

      be detained in Cloverhill Prison, a prescribed place for the purpose of section 5(2)(a) of the Immigration Act, 2003 in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in charge of that place.”
26. It was submitted that the detention order was invalid because it did not show on its face that the relevant officer suspected that the applicant had been unlawfully in the State for a period of less than three months, that being the reason for the applicant’s arrest and detention.

27. Section 5 of the 2003 Act provides, inter alia,:-

      5(1)(a) “subject to s. 5 of the Refugee Act 1996 and s. 4 of the Criminal Justice (United Nationals Convention against Torture) Act 2000, this section applies to:-
            (a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946 (S.R.O. & 1946 No. 395) (“the Order”),

            (b) a non-national who has failed to comply with Article 5(1) of the Order’,

            (c) a non-national who has entered the State in contravention of Article 6 of the Order,

            (d) a non-national deemed to be a person to whom leave to land has been refused under the order, whom an immigration officer or a member of the Garda Síochána with reasonable cause, suspects has been unlawfully in the State for a continuous period of less than three months,

      5(2)(a) subject to paragraph (b), a person to whom this section applies may be arrested by an immigration officer or a member of the Garda Síochána and detained under warrant of that officer or member in a prescribed place and in the custody of the office of the Minister or member of the garda siochaná for the time being in charge of that place.”
28. The court found that the detention order referred to s. 5(2)(a) of the Immigration Act 2003, and that this was insufficient to show jurisdiction because it did not state on its face the reason for the arrest and detention. The court stated that s. 5(2) confers the power of arrest and detention of “a person to whom this section applies”, and that it was therefore necessary to see what provisions of s. 5(2) applied. The court noted that the detective garda appeared to rely upon three of them, as per the three documents furnished to the appellant, but found that the defect in the detention order was the failure to state that the appellant had been refused permission to land and, as required by s. 5(1) of the Immigration Act 2003, that the gardaí had “with reasonable cause” suspected that the appellant had been “unlawfully in the state for a continuous period of less than three months.” These were the facts that triggered the power under s. 5(2) of the act. Accordingly, as these facts were not on the document, the court released the appellant.

29. At para. 31 of the court’s judgment it was stated that a document such as a detention order should contain clear information on its face as to the basis of its jurisdiction. This was required so that it be available to, for example, (a) the person in custody, such as the appellant; (b) the governor of the prison, or any other designated official, who is holding a person in custody; and (c) the court which is requested to inquire into the custody pursuant to Article 40 of the Constitution.

30. Also, of relevance is the decision of Hogan J. in Joyce v. The Governor of the Dochas Centre [2012] 2 I.R. 666. In that case the applicant was convicted of an offence under the Criminal Justice (Theft and Fraud) Offences Act 2001 in the District Court on 4th March 2011. She appealed the conviction to the Circuit Court where the conviction was affirmed on 9th May, 2012. The applicant was detained on foot of a committal warrant dated 9th May, 2012 which did not record the offences of which the applicant had been convicted. There was no separate conviction order. Hogan J., on an application made to him pursuant to Article 40.4.2 of the Constitution, found that the warrant was invalid as it did not contain the requisite information as would satisfy an examination as to the jurisdiction on the face of the warrant. He concluded that the warrant was fatally flawed because it did no more than record that the applicant had been committed to prison for nine months following a decision of the Circuit Court which heard and determined a District Court appeal. It did not record the offence for which the accused was convicted but simply referred to the “above mentioned criminal case”. In reaching his conclusion Hogan J. relied upon the decision in GE.

31. The information on the face of the warrant in this case is, I believe, sufficient to identify clearly to all concerned, and with precision, the jurisdiction which was exercised at each stage of the process pursuant to which the appellant was ultimately taken into custody. The warrant on its face demonstrates the reason why he was taken into custody. The jurisdictional basis is clear from the sequential referencing in the warrant to the statutory power invoked at each stage of the process. Likewise, the reasons are clearly stated. The relevant case law does not require that the warrant recite each of the proofs that would have been necessary for the relevant orders to have been made by the District Court judge on 26th May 2014, and subsequently by the Circuit Court judge on 27th May 2014.

32. The District Court judge on 26th May 2014, as per the face of the warrant, exercised his powers under s. 99(1), and also under s. 99(9) of the 2006 Act. The warrant recites that the Circuit Court judge on 27th May 2014 exercised his powers as provided for in s. 99(10) and made an order revoking the suspended sentence earlier imposed by that court on 29th October 2013.

33. Not only is the jurisdiction which was exercised and which led to the appellant being taken into custody clearly set out in the warrant, but the reasons are there for all to see. The fact that on the face of the warrant no reference is made to the fact that a bond was entered into by the appellant following the imposition of sentence on 29th October, 2013, is irrelevant. This would have been one of the proofs to be placed before the court to satisfy the District Court judge on 26th May 2014 that the appellant was a person to whom s. 99(1) of the 2006 Act applied. The warrant recites that the appellant is a person to whom that section applies. Further, the fact that the warrant on its face does not show that the second offence was committed during the period of suspension does not render the warrant invalid. Again, proof of that fact would have been required by the District Court judge before he made his order and exercised his jurisdiction under s. 99(9) of the 2006 Act, it is known from the face of the warrant that he made an order under that section. It is not in my view a requirement that the proofs that would be necessary in order for the relevant judges to exercise their jurisdiction must be found on the face of the warrant. It is the jurisdiction and the reasons for the exercise of that jurisdiction that is required and that has been complied with in the present case. The facts of the present case are quite different to those in GE.

34. I am satisfied therefore that the content of the warrant in this case is sufficient to meet the requirements of the decision of the Supreme Court in GE and is therefore valid. I agree with the judgment of Hogan J. in this respect. Hence I would dismiss the cross appeal of Mr McCabe against the High Court judgment of 3rd June 2014. I agree with the orders to be made on the appeal and cross appeal proposed by Finlay Geoghegan J in her judgment.


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URL: http://www.bailii.org/ie/cases/IECA/2015/CA156.html