Cash v Judge Halpin

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 15 October 2014
• Neutral Citation: [2014] IEHC 484
• Court: High Court
• Docket Number: [2014 No. 499 JR]
• Date: 15 October 2014

[2014] IEHC 484

THE HIGH COURT

[No. 499 J.R./2014]

Cash v District Judge Halpin & Ors

JUDICIAL REVIEW

BETWEEN

MICHAEL CASH

APPLICANT

AND

DISTRICT JUDGE ANTHONY HALPIN, DIRECTOR OF PUBLIC PROSECUTIONS AND GOVERNOR OF MOUNTJOY PRISON

RESPONDENTS

CONSTITUTION ART 40

ROAD TRAFFIC ACT 1961 S56(1)

ROAD TRAFFIC ACT 1961 S107

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S15(1)

CRIMINAL JUSTICE (THEFT & FRAUD OFFENCES) ACT 2001 S15(5)

CONSTITUTION ART 40.4.2

RSC O.84

JOYCE v GOVERNOR OF THE DOCHAS CENTRE 2012 2 IR 666 2013 2 ILRM 366 2012/19/5564 2012 IEHC 326

DUNNE JUDICIAL REVIEW OF CRIMINAL PROCEEDINGS 2011 PARA 14.47

RYAN v GOVERNOR OF MIDLANDS PRISON UNREP SUPREME 22.8.2014 2014 IESC 54

PAYNE v DISTRICT JUDGE BROPHY 2006 1 IR 560 2006/48/10203 2006 IEHC 34

WHELTON v DISTRICT JUDGE O'LEARY UNREP BIRMINGHAM 19.12.2007 2007/60/12903 2007 IEHC 460

STEFAN v MIN FOR JUSTICE & ORS 2001 4 IR 203 2002 2 ILRM 134 2001/23/6290

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2006 S99(1)

CRIMINAL JUSTICE ACT 1951 S5

CRIMINAL JUSTICE ACT 1984 S12

CRIMINAL JUSTICE ACT 1967 S104(2) (UK)

R v SAPIANO 1968 52 CAR 674

R v GOODLAD 1973 1 WLR 1102 1973 2 AER 1200 1973 57 CAR 717

SWEENEY v GOVERNOR OF LOUGHLAN HOUSE OPEN CENTRE & ORS UNREP SUPREME 3.7.2014 2014 IESC 42

R (SMITH) v PAROLE BOARD 2005 1 WLR 350 2005 1 AER 755 2005 HRLR 8 2005 UKHL 1

O'SULLIVAN v CHIEF EXECUTIVE OF THE IRISH PRISON SERVICE & ORS 2010 4 IR 562 2011 1 ILRM 350 2010/42/10645 2010 IEHC 301

Judicial Review – Consecutive Sentences – Prisoner – Constitution – Criminal Justice Act, 1951

Facts: The applicant was convicted and sentenced at Tallaght District Court by the first named respondent on 9th December, 2013 for three separate offences: (1) driving without insurance; (2) providing a false name and address; and (3) an offence contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001.The judicial review under consideration related to the sentences imposed by the District Judge following on these three convictions and from the fact that each sentence was suspended in part. The District Judge ordered that the three individual sentences be served consecutively, the second and third of which were to be served immediately upon the termination of the previous sentence. Questions arose over the status of a series of consecutive sentences directed to run immediately after the expiration of previous sentences when some or all of those were suspended. Specifically, the question before the Court, was how a court, or a prison governor detaining a convicted person, was to interpret and apply such suspended and consecutive sentences. The other question which arose for consideration was whether the Court could order the unconditional release of the applicant by way of an order of mandamus, or whether such relief could be granted only by application for an inquiry under Art. 40 of the Constitution. The applicant claimed that the District Judge erred in law in imposing three part suspended consecutive sentences and argued it was legally impermissible to suspend a sentence in part and thereafter to make another sentence consecutive upon the expiration of the first sentence. It was argued that each of the three sentences, had to be dealt with separately and that the correct means of interpreting the sentence was that the applicant should be released for the period of each of the two periods of suspension, so that after the three months were served on the first sentence, he should have been released for the period of suspension and later imprisoned on the expiration of the full five month sentence imposed on him, with a similar treatment to be afforded to the second sentence. It was further argued that the orders made and warrants made on foot of those orders were not capable of being lawfully carried into effect, and that they were void for irregularity and uncertainty and could not be interpreted. Both respondents argued that the orders were made within jurisdiction and the way in which the Governor dealt with those warrants was also within jurisdiction.

Held by Justice Baker that he accepted the argument that he could not quash the orders of the District Court as they were not before him and that as the sentences which informed the first and second warrants had been served, the only question before him was the validity and effectiveness of the third sentence and warrant. Both respondents had argued that the applicant was out of time and that time began to run on 9th December, 2013 when the warrants were made, and that the applicant was long outside the time permitted by Or.84 of the Rules of the Superior Courts. With reliance on Joyce v Governor of Dóchas Centre 2012 IEHC 326, Justice Baker reasoned that if he were to refuse an extension of time he would be denying the applicant a remedy and he stated that the applicant was entitled to an extension of time for bringing the application. It was accepted by the Court that the District Judge had the power to suspend in part the sentence he imposed and that he also had the power to impose consecutive sentences. Accepting that the warrant under consideration was void for uncertainty and was incapable of being properly interpreted, the Court reasoned that a warrant must not only be clear but capable of clarity in its application and interpretation. The legal nature of the sentence under consideration was reasoned not to be clear in that it could not be said with any degree of certainty on the date it was perfected, what the commencement date of the sentence was. Accordingly, the warrant was deemed to be defective and could not lawfully detain the applicant. Justice Baker made an order of certiorari quashing the third warrant and a further warrant directing the immediate and unconditional release of the applicant.

1 1. The applicant was convicted and sentenced at Tallaght District Court by the first named respondent on 9 ^th December, 2013. This judicial review relates to the sentences imposed by the District Judge following on these three convictions and from the fact that each sentence was suspended in part. The District Judge ordered that the three individual sentences be served consecutively, the second and third of which were to be served immediately upon the termination of the previous sentence.

2 2. This judicial review raises the question of the status of a series of consecutive sentences directed to run immediately after the expiration of previous sentences when some or all of those are suspended. In particular, the question before me is how the court, or a prison governor detaining a convicted person, is to interpret and apply such suspended and consecutive sentences.

3 3. The other question that arises for consideration before me is whether I may order the unconditional release of the applicant by way of an order of mandamus, or whether such relief may be granted only by application for an inquiry under Art. 40 of the Constitution.

Facts

4 4. In each case the applicant was convicted on 9 ^th December, 2013, at Tallaght District Court. The three offences arose from separate incidents. The first sentence was imposed for a conviction in respect of the offence of driving without insurance contrary to s. 56(1) of the Road Traffic Act 1961, as amended. The District Judge imposed a sentence of five months imprisonment in respect of this charge, and suspended the final two months of the five month term. The warrant of execution directed to the Governor of Mountjoy Prison commanded him to imprison the applicant for a period of the aforesaid sentence from 9 ^th December, 2013. I will call this "the first sentence".

5 5. The second sentence was imposed in respect of a conviction under s. 107 of the Road Traffic Act 1961, as amended, for the offence of providing a false name and address. A sentence of three months imprisonment was imposed in respect of this offence with one month suspended. The District Judge specified that this sentence was to be served consecutively on the expiration of the sentence of five months imposed on the first offence referred to above, and one month of the three month sentence was suspended. I will call this "the second sentence".

6 6. The third sentence was imposed in respect of an offence contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001, in respect of which a sentence of twelve months imprisonment was imposed, the last three months to be suspended. This sentence was ordered to be served on the legal expiration of the sentence of three months imposed on second sentence, and the warrant so stated. I will call this "the third sentence".

7 7. The net effect of the three convictions and sentences is that the applicant was sentenced to three separate periods of imprisonment, in each case with one part of the sentence suspended, and in the case of the second and third sentence to be served consecutive upon and immediately after the expiration of the previous term of imprisonment.

Arguments

8 8. The applicant claims that the District Judge erred in law in imposing three part suspended consecutive sentences and argues it is legally impermissible to suspend a sentence in part and thereafter to make another sentence consecutive upon the expiration of the first sentence. It is argued that each of the three sentences, albeit they were ordered to be served consecutively, had to be dealt with separately and that the correct means of interpreting the sentence was that the applicant should be released for the period of each of the two periods of suspension, so that after the three months were served on the first sentence, he should have been released for the period of suspension and later imprisoned on the expiration of the full five month sentence imposed on him, with a...