Brennan v Minister for Justice

• Jurisdiction: Ireland
• Judgment Date: 28 April 1995
• Date: 28 April 1995
• Docket Number: [1994
• Court: High Court

Brennan v. The Minister for Justice

Patrick J. Brennan

Applicant

and

The Minister for Justice, Ireland and The Attorney General

Respondents

Ciaran Burns, Sean Keegan, Noel Maloney, Michael Sweeney and Another, Notice Parties

[1994 No. 67 J.R.]

High Court

Constitution - Power to remit sentences - Separation of powers - Notice parties convicted of offences and fined - Petitions to Minister - No exceptional circumstances advanced in support of petitions - Remission of fines by Minister - Whether exercise of power to remit a judicial function - Whether Minister obliged to consult with trial judge prior to making decision - Whether Minister obliged to exercise power in public - Whether decision to remit ultra vires - Criminal Justice Act, 1951 (No. 2), s. 23 - Constitution of Ireland 1937, Article 13, s. 6 and Article 34, s. 1.

Constitution - Statute - Validity - Statute conferring power to remit sentences - Whether invalid having regard to provisions of Constitution - Criminal Justice Act, 1951 (No. 2), s. 23 - Constitution of Ireland, 1937, Article 13, s. 6.

Judicial review - Certiorari - Locus standi - Notice parties convicted of offences by District Court - Petitions to remit penalties granted by Minister - Applicant the trial judge - Whether locus standi on part of applicant to apply for orders of certiorari quashing Minister's decisions.

Article 13, s. 6 of the Constitution provides:—

"The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities."

Section 23 of the Criminal Justice Act, 1951, provides:—

"(1) . . . the Government may commute or remit, in whole or in part, any punishment imposed by a Court exercising criminal jurisdiction, subject to such conditions as they may think proper.

(2) The Government may remit, in whole or in part, any forfeiture or disqualification imposed by a Court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture,

(3) The Government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegations."

The first to fourth notice parties were convicted in the District Court of a variety of criminal offences, and fines were imposed upon them. The applicant was the trial judge in each case. None of the convictions or penalties was appealed. Petitions seeking remission of the fines were brought to the first respondent on behalf of the first to fourth notice parties. In three of the cases the petition was grounded on the individual's inability to pay and family circumstances; in one case, no mitigating factors were advanced. Having consulted with the Garda superintendent for the area in which each petitioner resided, the first respondent remitted the fines pursuant to s. 23, sub-s. 2 of the Criminal Justice Act, 1951.

The applicant applied by way of judicial review for orders of certiorari quashing the first respondent's decisions to remit the fines. It was submitted on his behalf, inter alia, (i), that the remission of the fines by the first respondent was an exercise of a function which was judicial in nature, and which ought, accordingly, to be exercised in public; (ii) that the first respondent ought not to have remitted the fines without first consulting the applicant, and (iii) that s. 23 of the Act of 1951 was invalid having regard to the provisions of the Constitution on the grounds, inter alia, that Article 13, s. 6 required the power of remission and commutation to be exercised sparingly. On behalf of the respondents it was submitted that the applicant had no locus standi to bring the proceedings.

Held by Geoghegan J., in granting a declaration that the first respondent had not properly exercised her power of remission and in refusing all other reliefs, 1, that the only person who would have a real interest in challenging a decision to remit a sentence would be the trial judge, and that accordingly, the applicant had locus standito bring the instant application.

2. That the power to commute or remit sentences conferred upon the Government by Article 13, s. 6 of the Constitution was an executive, not a judicial, power.

Dictum of Walsh J. in The State (O.) v. O'Brien[1973] I.R. 50 not followed;dictum of McLoughlin J. in The State (O.) v. O'Brien[1973] I.R. 50 followed; The People (Director of Public Prosecutions) v. Aylmer (Unreported, Supreme Court, 18th December, 1986); The People (Director of Public Prosecutions) v. Cahill[1980] I.R. 8; McDonald v. Bord na gCon (No. 2)[1965] I.R. 217 and Goodman International v. Mr. Justice Hamilton[1992] 2 I.R. 542 considered.

3. That, accordingly, it was unnecessary for the first respondent to exercise in public the power to remit sentences.

Per curiam: That it was necessary, having regard to the provisions of the Constitution and to the special nature of the power to remit, that all the evidence leading up to a decision, and the reasons for that decision, be recorded. It was, in addition necessary, that the first respondent be accountable by way of judicial review in respect of decisions made.

4. That there was not necessarily an obligation upon the first respondent, in considering whether to exercise her power to remit a sentence, to consult the judge who had imposed it.

Quare: Whether it would be proper for the first respondent to consult the trial judge prior to deciding whether to remit a sentence, having regard to the separation of the judicial and executive powers imposed by the Constitution.

5. That the power to commute or remit sentences conferred by Article 13, s. 6 of the Constitution should only be exercised in the most exceptional of circumstances.

6. That s. 23 of the Criminal Justice Act, 1951, was not invalid having regard to the provisions of Article 13, s. 6 of the Constitution, since there was no reason why that section could not be operated in accordance with the requirement that the power to commute or remit sentences be exercised sparingly.

7. That there was no evidence before the first respondent of such special circumstances as would justify interference with an order of the District Court.

Per curiam: That the circumstances advanced on behalf of the first to fourth notice parties in support of their petitions were all matters which might have been considered by the trial judge in considering sentence.

8. That, accordingly, the remission by the first respondent of the first to fourth notice parties' fines was ultra vires s. 23 of the Criminal Justice Act, 1951, and Article 13, s. 6 of the Constitution.

Per curiam: That in wholly or partially remitting sentences in cases in which no special circumstances existed, the first respondent was, in effect, administering a system of justice parallel or alternative to that provided under the provisions of Article 34 of the Constitution.

9. That having regard to the fact that the notice parties' cases were selected by the applicant for the purposes of testing the validity of the first respondent's exercise of her power to remit sentences, it would be unfair to quash the decisions she made in their cases.

Cases mentioned in this report:—

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542; [1992] I.L.R.M. 145.

McDonald v. Born na gCon (No. 2) [1965] I.R. 217; [1965] 100 I.L.T.R. 89.

The People (Director of Public Prosecutions) v. Aylmer (Unreported, Supreme Court, 18th December, 1986).

The People (Director of Public Prosecutions) v. Cahill [1980] I.R. 8.

The State (O.) v. O'Brien [1973] I.R. 50.

Judicial review.

The facts have been summarised in the headnote and are fully set out in the judgment of Geoghegan J., infra.

On the 22nd February, 1994, the High Court (Flood J.) granted the applicant leave to apply by way of judicial review for orders of certiorariquashing the first respondent's decision to remit the fines of the first to fourth notice parties, together with a declaration that s. 23 of the Criminal Justice Act, 1951, was invalid having regard to the provisions of Article 13, s. 6 of the Constitution of Ireland, 1937. Before the proceedings came on for hearing, the applicant abandoned his claim against the fifth notice party on learning that the decision to reduce his fine had been made by another judge of the District Court.

The application was heard by the High Court (Geoghegan J.) on the 7th, 8th and 9th February, 1995, pursuant to notice of motion dated the 2nd March, 1994.

Cur. adv. vult.

Geoghegan J.

This is an application for judicial review brought pursuant to an order made by Flood J. on the 22nd February, 1994, granting leave. The applicant was at the date of application and at the date of hearing a senior judge of the District Court and had for many years been the District Court Judge for the district that covers a large part of County Mayo. He has recently retired. In essence, the applicant's complaint against the Minister for Justice which has led to these proceedings is that the Minister, in purported exercise of her powers under s. 23 of the Criminal Justice Act, 1951, had been improperly reducing or remitting fines which he had imposed. For the purposes of the proceedings he adopted five examples involving the notice parties. Before the proceedings came to a hearing, the applicant realised that he was mistaken in relation to the case of the fifth notice party and that although the fine was reduced in that case, it had not been a decision of his but a decision of a replacement District Court Judge while he, the applicant, was ill. Accordingly, the judicial review proceedings relate to the other four cases only. The four men whose fines were conditionally reduced by the Minister were all made notice parties to these proceedings but did not appear and were not...