Boyle v DPP
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 03 March 2021 |
| Neutral Citation | [2021] IEHC 159 |
| Docket Number | [2019 No. 746 JR] |
| Year | 2021 |
| Court | High Court |
[2021] IEHC 159
Niamh Hyland
[2019 No. 746 JR]
THE HIGH COURT
Judicial review – Remand – Custody – Applicant seeking judicial review in respect of an order of the Circuit Court remanding him in custody – Whether the warrant remanding the applicant in custody showed jurisdiction on its face
Facts: The applicant, Mr Boyle, applied to the High Court for judicial review in respect of an order of the Circuit Court of 17 October 2019 remanding him in custody. A challenge was made to the jurisdiction of the Circuit Court to remand a person in custody or on bail pending a hearing under s. 99(17) of the Criminal Justice Act 2006 as amended on revocation of a suspended sentence, with the applicant contending that s. 99 does not contain any such power. The applicant further argued that the warrant remanding him in custody did not show jurisdiction on its face. The respondent, the Director of Public Prosecutions, argued that s. 99 of the 2006 Act must be interpreted as implicitly providing for such a power or that an ancillary power to remand must be inferred, and, in the alternative, that the court has an inherent jurisdiction to remand the applicant in custody or on bail pending a hearing under s. 99(17). The respondent considered the warrant valid on its face.
Held by the Court that there is no power under s. 99, either explicit, implicit or ancillary, to remand a person pending a revocation hearing under s. 99(17). The Court considered that, in the circumstances of this case, including the length of time for which the applicant was remanded in custody (4 days, 2 of which were a weekend), the Circuit Court enjoyed an inherent jurisdiction to remand the applicant. The Court found that the warrant of 17 October 2019 was bad on its face as it did not recite the basis upon which the applicant was remanded i.e. pursuant to the inherent jurisdiction of the Court.
The Court quashed the order of the Circuit Court of 17 October 2019 remanding the applicant in custody.
Application granted.
This is an application for judicial review by Mr Boyle (“the applicant”) in respect of an Order of the Circuit Court of 17 October 2019 remanding him in custody. A challenge is made to the jurisdiction of the Circuit Court to remand a person in custody or on bail pending a hearing under s.99(17) of the Criminal Justice Act 2006 as amended (“the 2006 Act”) on revocation of a suspended sentence, with the applicant contending that s. 99 does not contain any such power. The applicant further argues that the warrant remanding him in custody does not show jurisdiction on its face.
The Director of Public Prosecutions (“the respondent”) argues that s. 99 of the 2006 Act must be interpreted as implicitly providing for such a power or that an ancillary power to remand must be inferred, and, in the alternative, that the court has an inherent jurisdiction to remand the applicant in custody or on bail pending a hearing under s.99(17). The respondent considers the warrant valid on its face.
For the reasons set out in this judgment, I have concluded that there is no power under s.99, either explicit, implicit or ancillary, to remand a person pending a revocation hearing under s.99(17).
On the other hand, I consider that, in the circumstances of this case, including the length of time for which the applicant was remanded in custody (4 days, 2 of which were a weekend), the Circuit Court enjoyed an inherent jurisdiction to remand the applicant.
However, I find that the warrant of 17 October 2019 is bad on its face as it does not recite the basis upon which the applicant was remanded i.e. pursuant to the inherent jurisdiction of the Court. I therefore quash the Order of the Circuit Court of 17 October 2019 remanding the applicant in custody.
Leave to seek judicial review was granted by Allen J. by an Order dated 18 October 2019 and a Notice of Motion was filed on 19 November 2019. The applicant seeks various reliefs including an Order of certiorari quashing the Order of the Circuit Court of 17 October 2019 remanding the applicant in custody in the matter of s. 99 of the 2006 Act and a Declaration that the Circuit Court judge had no jurisdiction to make such an Order.
The background to this case is as follows. On 4 April 2016 the applicant was sentenced to four years imprisonment by Judge Greally, with the final twelve months of the sentence suspended upon the applicant entering a bond with various conditions attached. One of these conditions was supervision by the Probation Service of the applicant. The applicant was released from custody on 30 May 2018.
On 11 December 2018 the applicant was the subject of a Notice issued pursuant to s. 99(15) of the 2006 Act made returnable to 23 January 2019, which stated that Mr. Darren Ferguson, probation officer, had applied under s.99(14) to fix a date for the hearing of an application for an Order revoking the Order made by the Court suspending part of the sentence of imprisonment imposed on the application, due to failure to comply with the conditions of suspension. The Order directed him to appear before Judge Greally on 23 January 2019 for the hearing of an application for an Order revoking the Order of 12 April 2016. A further Notice was issued on 23 January 2019 and made returnable to 20 February 2019.
The applicant became subject to a bench warrant on 20 February 2019 and the bench warrant was executed on 3 September 2019. The applicant was admitted to bail on consent and required to attend at Dublin Circuit Court on 9 October 2019. The applicant failed to appear on this date and a further bench warrant was issued under s.99(16).
That bench warrant was executed at Dublin Circuit Criminal Court on Thursday 17 October 2019. Judge Nolan, the presiding judge at the time, suggested that the case be adjourned to Judge Greally, who had seisin of the case, that day at 2pm. However, the respondent indicated that a probation officer who was a necessary witness to the case would be unavailable at that time. The presiding judge remanded the applicant in custody until Monday 21 October 2019 so the hearing could be listed before Judge Greally and the probation officer available.
Counsel for the applicant submitted to the Court that there was no jurisdiction to remand the applicant in custody or on bail, was opposed in that by counsel for the respondent and Judge Nolan determined he had jurisdiction and refused bail, remanding the applicant in custody. On th date an Article 40 Inquiry was ordered.
On 18 October 2019 the Article 40 Inquiry was struck out and leave to seek relief by way of judicial review was granted with the consent of the respondent, given the significance of the issue raised. The applicant was admitted to bail.
The first question that arises is whether the Circuit Court has jurisdiction under s.99 to remand in custody or on bail a person pending a s.99(17) hearing in the circumstances of this case i.e. where the person has been brought before the Court on foot of a bench warrant issued under s.99(16), issued by reason of that person's failure to attend court following the issuing of a notice to attend under s.99(15).
The applicant contends there is no such power. The respondent argues that such a power derives from s.99 properly construed. Deciding this issue necessitates a detailed consideration of s.99.
Under s.99(1) where a person is sentenced to a term of imprisonment, the court may suspend whole or part of that sentence subject to the person entering into a recognisance to comply with the conditions of the order.
Under s.99(2), one such condition is that the person keep the peace and be of good behaviour. Under s.99(3) specific conditions tailored to the individual person may be imposed. Under s.99(4) the following conditions may be imposed:
(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;
(b) that the person undergo such—
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment, as may be approved by the court;
(c) that the person be subject to the supervision of the probation and welfare service.
If there is a suspicion that a person has breached conditions, including those identified at s.99(4), there is a procedure identified for bringing that person back to court to determine breach as follows:
(14) A probation and welfare officer may, if he or she has reasonable grounds for believing that a person to whom an order under subsection (1) applies has contravened a condition imposed under subsection (4), apply to the court to fix a date for the hearing of an application for an order revoking the order under subsection (1).
(15) Where the court fixes a date for the hearing of an application referred to in subsection (13)(13A) or (14), it shall, by notice in writing, so inform the person in respect of whom the application will be made, or where that person is in prison, the governor of the prison, and such notice shall require the person to appear before it, or require the said governor to produce the person before it, on the date so fixed and at such time as is specified in the notice.
(16) If a person who is not in prison fails to appear before the court in accordance with a requirement contained in a notice under subsection (15), the court may issue a warrant for the arrest of the person.
There is no explicit identification of the court in question before which...
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