Clarke v The Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 27 May 2016
• Neutral Citation: [2016] IEHC 278
• Court: High Court
• Docket Number: [2016 No. 459 SS]
• Date: 27 May 2016

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

PAUL CLARKE

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

[2016] IEHC 278

[2016 No. 459 SS]

THE HIGH COURT

Constitution – Art. 40.4.2 of the Constitution of Ireland, 1937 – S. 99 of the Criminal Justice Act 2006 as substituted by s. 60 of the Criminal Justice Act 2007 – Lawfulness of detention – Revocation of suspended sentence – Fair procedures

Facts: The present application was instituted under art. 40.4.2 of the Constitution of Ireland, 1937, for an inquiry into the lawfulness of the applicant's detention following the judgment of the High Court in Moore and others v Director of Public Prosecutions, Ireland and the Attorney General [2016] IEHC 244, which declared that s.99 ss. (9) and ss. (10) of the Criminal Justice Act, 2006, as substituted by s. 60 of the Criminal Justice Act, 2007, were invalid. The applicant had challenged the procedure under s.99 (9) and s. 99 (10) of the Act of 2006 pursuant to which the applicant was remanded by the District Court before trying the applicant for committal of new offences to the original Circuit Court for determination of the revocation of his suspended sentences in relation to offences initially committed.

Mr. Justice McDermott held that the detention of the applicant was lawful and in accordance with the Constitutional provisions. The Court distinguished the case of the present applicant with the applicants in Moore and others v DPP and held that the present applicant was not a person convicted after trial in the District Court who wished to appeal that conviction and faced difficulties pending determination of an issue of suspension of sentence. The Court observed that the applicant was found guilty and the learned judge had mitigated the sentences by imposing certain conditions, which was duly agreed to by the applicant. The Court found that the applicant never challenged the legality of the procedure under s.99 (9) and s. 99 (10) of the Act of 2006 at any stage and did not allege any unfairness. The Court noted that the applicant had been convicted after following due procedures of law and had been given every opportunity to appeal his conviction, which he had failed to do within prescribed time limit. The Court observed that the present case was not a fit case to apply the declaration of invalidity of a statue with retrospective effect as there had been no fundamental denial of justice for giving rise to a collateral attack on a criminal trial. The Court found that the applicant had undertaken to abide by the conditions laid down for his suspension of sentence and later on, he breached those conditions in blatant disregard to the resources expended by the State for his rehabilitation.

JUDGMENT of Mr. Justice McDermott delivered on the 27th May, 2016

1 This is an application for an inquiry into the lawfulness of the applicant's detention following a judgment by the High Court on the 19th April, 2016 declaring that s. 99 subs. (9) and (10) of the Criminal Justice Act 2006 (the 2006 Act) as substituted by s. 60 of the Criminal Justice Act 2007 (the 2007 Act) were repugnant to the Constitution and consequently invalid.

Background

2 On the 7th July, 2010 the applicant appeared before Dublin Circuit Criminal Court in respect of a number of counts upon three indictments, namely, Bill Numbers 1498/2008, 1383/2009 and 699/2010. On Bill No. 1498/2008 the applicant pleaded guilty to robbery and possession of a firearm. A sentence of five years imprisonment was imposed. On Bill No. 1383/2009, the applicant pleaded guilty to a count of robbery of €25,000, none of which was recovered. A sawn-off shotgun was discharged during the robbery to blast away a glass barrier surrounding the area in which staff were working. A sentence of eight years imprisonment was imposed with the final seven years suspended. The applicant also pleaded guilty to a further count of possession of a firearm in respect of which a sentence of seven years imprisonment was imposed, which was suspended in its entirety. These sentences were to be consecutive to that imposed on Bill No. 1498/2008. The applicant also pleaded guilty to a count of robbery on Bill No.699/2010. This concerned the robbery of a shop with an accomplice using two knives and an imitation gun. He was sentenced to five years imprisonment with the final four years suspended. This sentence was also to be served consecutively to that imposed on Bill No.1498/2008.

3 The suspended elements of the sentences were imposed pursuant to s. 99(1) of the 2006 Act. The conditions imposed in respect of the suspension were that:

(a) The applicant agreed to keep the peace and be of good behaviour towards all the people of Ireland for a period of seven years from the date of his release from prison;

(b) He would place himself under the supervision of the probation service for a period of two years from the date of his release;

(c) He would abide by all the directions of the probation service including attendance at a drug treatment course (residential or otherwise) and provide urine samples for testing as necessary;

(d) He would come up, if called upon to do so, at any time within the said period of seven years to serve the balance of the sentence imposed.

4 The conditions were imposed pursuant to s. 99(2) and (4). The condition that he should keep the peace and be of good behaviour during the period of suspension was mandatory under s. 99(2); the other conditions were imposed under section 99(4) on the exercise of the trial judge's discretion.

5 Having served the custodial element of the sentences, the applicant was released from custody in October 2013 but continued to serve the suspended sentence and of course was bound to comply with the conditions imposed. He failed to do so.

6 On the 9th September, 2014 the applicant appeared before Cloverhill District Court and pleaded guilty to charges arising out of two separate cases involving separate cars on the 10th February and 2nd April 2014. The charges included driving a vehicle without insurance and a driving license, failing to produce these documents when required and driving a vehicle with a bald tyre. The District Court remanded the applicant in custody to Dublin Circuit Court on the 10th September, 2014 under s. 99(9) and s.99(10) of the 2006 Act for a determination as to whether the suspended portions of the sentences should be revoked.

7 The relevant sub-sections provide as follows:

‘(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, 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.

(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.’

Section 60 of the 2007 Act inserted a new subs. 10(a) after subs. 10 which required that the court back to which the matter has been referred under subs. 9 (in this case the Circuit Court), must remand the person concerned in custody or on bail to the next sitting of the referring court to enable that court to impose sentence (in this case the District Court).

8 On the 10th September, 2014 the s. 99 reactivation application was adjourned in the Circuit Court and finally determined by His Honour Judge McCartan on the 4th November, 2014. The learned judge reactivated all the sentences that had been previously suspended and directed that they should run concurrently from the 30th April, 2014. Thereafter the applicant was remanded back to Cloverhill District Court on the 5th November, 2014 for the imposition of sentence in respect of the Road Traffic Act offences. A five month sentence of imprisonment, itself suspended, and a thirty year driving ban were imposed in respect of the offence of driving without insurance and the other charges were marked as taken into consideration.

9 By Notice of Appeal dated the 17th November, 2014, the applicant appealed against the sentence imposed on the 4th November. This was received in the Court of Appeal on the 21st November, 2014 (Record No. CCA236/2014). The sentence is described at para. 3 of the Notice as ‘7 yr reactivated sentence plus 4 yr. reactivated sentence’. The grounds of appeal were to be supplied by the applicant's solicitor. However, the Court has been informed that no grounds of appeal have been filed to date nor have any legal submissions been lodged, despite directions to do so. A date for the appeal has not therefore been assigned although undoubtedly the court's jurisdiction has been invoked and the appeal must be regarded as pending.

The Sentences

10 It is clear from the transcript of the original Circuit Court sentencing hearing on the 7th July, 2010 that the Court regarded the offences committed as very serious and requiring lengthy terms of imprisonment. The applicant had a chronic drug addiction problem. The Court was satisfied that he had made efforts to rehabilitate himself from...