Conroy v Governor of Castlerea Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 02 November 2017
• Neutral Citation: [2017] IECA 289
• Date: 02 November 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 289 Appeal No. 2017/19

[2017] IECA 289

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

Neutral Citation Number: [2017] IECA 289

Appeal No. 2017/19

In The Matter of an Application

Pursuant to Article 40.4.2 of the Constitution of Ireland

Edward Conroy

Applicant/Appellant

-and-

The Governor of Castlerea Prison

Respondent

Warrant – Assault – Sentences – Appellant seeking to challenge sufficiency of Circuit Court order – Whether Circuit Court judge was influenced by the existence of two District Court convictions subsequently quashed

Facts: The appellant, Mr Conroy, had two warrants from the 9th February, 2016, each for nine months imprisonment. The second was consecutive to the first. They were both in respect of District Court convictions for assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997. He was subsequently sentenced in the Circuit Court, on the 26th May, 2016, to five years for firearms offences with concurrent sentences of four months for RTA offences. Those sentences were to commence on the legal termination of the 18 months received in the District Court. The appellant entered a guilty plea to all of the offences. The appellant, in an Article 40.4.2 application, challenged the sufficiency of the Circuit Court order. On the 15th December, 2016, Noonan J held that the Circuit Court order was sufficient and the appellant was detained in accordance with law. He applied the decision in Kovacs v Governor of Mountjoy Women's Prison [2015] IEHC 418. That appeal was dismissed as the decision of the High Court judge was found to be correct. The appellant appealed to the Court of Appeal against the judgment and order of Noonan J, submitting that the Circuit Court warrant was bad in law for five reasons: (i) the District Court sentences did not terminate, legally or otherwise, having never commenced; (ii) under the ordinary meaning of "terminate" a sentence comes to an end due to the lapse of time, yet this sentence never started so it did not come to an end; (iii) the Circuit Court commencement date was uncertain and lacked precision; (iv) the Circuit Court sentences were without jurisdiction as they were consecutive to sentences that were not operative; (v) there were errors on the face of the warrant.

Held by Hedigan J that the decision in Kovacs was correctly decided and that the High Court judge was correct in following that decision. Hedigan J noted that it was conceded that the result of this appeal would be determined by the decision of the Court of Appeal in Kovacs; all the grounds of appeal brought by the appellant were answered in that judgment save for the ground that related to the possibility that the judge in the Circuit Court may have been influenced by the existence of the two District Court convictions subsequently quashed. Hedigan J held that this argument was wholly hypothetical and flew in the face of the facts.

Hedigan J held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Hedigan delivered on the 2nd day of November 2017

Introduction

1 This is an appeal against the judgment and order of Noonan J., made on the 15th December, 2016, in an Article 40.4.2 application. The appellant had two warrants from the 9th February, 2016, each for nine months imprisonment. The second was consecutive to the first. They were both in respect of District Court convictions for assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997. He was subsequently sentenced in the Circuit Court, on the 26th May, 2016, to five years for firearms offences with concurrent sentences of four months for RTA offences. These sentences were to commence on the legal termination of the 18 months received in the District Court. The appellant entered a guilty plea to all of the offences.

2 On consent, subsequent to the Article 40 inquiry, on the 2nd March, 2017, an order of certiorari was made in the High Court in relation to the two District Court warrants. This was perfected on the 6th April, 2017. The sentences exceeded the maximum permitted by law being six months. This was acknowledged at the Article 40 inquiry and it was noted that the detainer was no longer standing over those warrants.

3 These proceedings challenged the sufficiency of the Circuit Court order. Noonan J. held that the Circuit Court order was good and sufficient and the appellant was detained in accordance with law. He applied the decision in Kovacs v. Governor of Mountjoy Women's Prison [2015] IEHC 418 which was also appealed to this Court. Both of these appeals were heard at the same time and Mr. O'Higgins S.C. appeared for both appellants. The decision in Kovacs was given in this Court on the 31st July, 2017. That appeal was dismissed as the decision of the learned High Court judge was found to be correct.

The appellant's submissions

4 It was submitted by the appellant that the Circuit Court warrant was bad in law for five reasons. First, the District Court sentences did not terminate, legally or otherwise, having never commenced.

5 Second, under the ordinary meaning of 'terminate' a sentence comes to an end due to the lapse of time. This sentence never started so it did not come to an end. The latter sentences were contingent on an event which never happened.

6 Third, the Circuit Court commencement date was uncertain and lacked precision. The start date and duration must be set out in clear terms on the face of the warrant. In E.(G). v. Governor of Cloverhill Prison [2011] IESC 41 Denham C.J. held that the document 'should contain clear information on its face as to the basis of its jurisdiction' which information is to be available to the person in custody, the governor and the court. In O'Farrell v. Governor of Portlaoise Prison [2016] IESC 37 McKechnie J. held that the principle stated above applies to all warrants and that warrants must be accurate, reflecting the nature and duration of the sentence and not vague, uncertain or so as to cause confusion. The jailer should know the precise commencement date and term. There can be no genuine ambiguity. It was submitted that in the instant case there are five possible dates when the invalidity in the base sentence commenced.

7 In Mullen v. Governor of the Midlands Prison [2014] IECA 26 Kelly J. held that the lawful authority to detain someone should be without ambiguity and he referred to a number of authorities which made this point. It was submitted that Mullen is authority for the proposition that if the warrant states that the sentence will operate in the future it cannot ground the lawful detention at the time of the Article 40 inquiry.

8 Fourth, the Circuit Court sentences were without jurisdiction as they were consecutive to sentences that were not operative.

9 Finally, there were errors on the face of the warrant.

10 It was submitted that this case is distinguishable from Kovacs, it was wrongly decided and should not be followed. It was submitted that the governor's certificate could not provide a lawful basis for the detention where the warrants were invalid and subsequently quashed. It was submitted that there is difficulty pinpointing a date for termination. If the Circuit Court warrant steps into the shoes of the quashed warrants then it would run from the 9th February, 2016, but this is not reflected in the governor's certificate.

11 It was submitted that the District Court sentences prejudiced the mind of the judge when passing sentence in the Circuit Court. The sentences are interlinked and cannot be conveniently severed.

12 The final sentence of the warrant which refers to allowance for time served is unduly vague, uncertain and does not enable the governor to examine the warrant and ascertain the exact length of the sentence from the four corners of the document. The trial judge erred in law in...