Croake v District Judge Michael Coughlan

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 03 March 2017
• Neutral Citation: [2017] IECA 65
• Date: 03 March 2017
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2017] IECA 65 Record No. 2015/465

[2017] IECA 65

THE COURT OF APPEAL

Hogan J.

Finlay Geoghegan J.

Hogan J.

Hedigan J.

Neutral Citation Number: [2017] IECA 65

Record No. 2015/465

BETWEEN/

PHILIP CROAKE

APPLICANT/APPELLANT

- AND -

DISTRICT JUDGE MICHAEL COUGHLAN

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

Recognisance – Independent surety – Judicial review – Applicant seeking to quash an independent surety requirement – Whether the requirement of an independent surety was unreasonable

Facts: The applicant/appellant, Mr Croake, on the 22nd May 2014, was charged in the District Court with the possession of a knife contrary to s. 9(1) of the Firearms and Offensive Weapons Act 1990. The applicant pleaded not guilty and fully contested the charge. Although the charge was proved, the court nonetheless applied s. 1(1) of the Probation of Offences Act 1907 and the applicant was released conditionally in his own bond of €300 (with no cash lodgement required) with 30 days’ imprisonment in default of payment for a period of 12 months. He was also made subject to the conditions that he be of good behaviour and that he be under the supervision of the Probation and Welfare Service and appear for conviction and sentence at any time within 12 months. The applicant instructed his counsel to apply to have recognisances fixed for the purposes of an appeal to the Circuit Court. The District Court accordingly fixed recognisances in the amount of €500 own bond (with no lodgement) and an independent surety in the amount of €500 (again with no lodgement required). The applicant’s counsel protested in respect of the independent surety requirement. The respondent, the District Judge, refused to vary the independent surety requirement saying that he wanted to ensure that the appeal was prosecuted. The applicant then lodged an appeal with the Circuit Court. In advance of the appeal being listed before the Circuit Court the applicant applied to the High Court for leave to apply for judicial review to quash the independent surety requirement. Leave to apply was granted by Peart J on 23rd June 2014. The High Court order granting leave also provided for an order staying the operation of the District Court order pending the outcome of the proceedings. On 30th July 2015, the High Court (Noonan J) refused to grant the relief sought ([2015] IEHC 515). The applicant appealed to the Court of Appeal against that decision.

Held by the Court that, in the special circumstances of the case, the requirement of an independent surety was unreasonable in the Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3 sense of that term; this meant that the right of appeal could not be exercised in a realistic and effective manner.

The Court held that it would allow the appeal and would quash the decision of the District Court insofar as the applicant was required to provide an independent surety as a condition of the fixing of a recognisance.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 3rd day of March 2017

1 On the 22nd May 2014 the applicant, Mr. Croake, was charged in the District Court with the possession of a knife contrary to s. 9(1) of the Firearms and Offensive Weapons Act 1990, as amended by s. 39 of the Criminal Justice (Miscellaneous Provisions) Act 2009. The applicant pleaded not guilty and fully contested the charge. Although the charge was proved, the Court nonetheless, having heard counsel as to the circumstances of the applicant, nonetheless applied s. 1(1) of the Probation of Offences Act 1907 (‘the 1907 Act’) and the applicant was released conditionally in his own bond of €300 (with no cash lodgment required) with 30 days' imprisonment in default of payment for a period of 12 months. He was also made subject to the conditions that he be of good behaviour and that he be under the supervision of the Probation and Welfare Service and appear for conviction and sentence at any time within 12 months.

2 The applicant was dissatisfied with this order and he instructed his counsel to apply to have recognisances fixed for the purposes of an appeal to the Circuit Court. An appeal lies to the Circuit Court against the making of a conditional order of release under s. 1(1) of the 1907 Act: see s. 33 of the Courts of Justice Act 1953.

3 The District Court accordingly fixed recognisances in the amount of €500 own bond (with no lodgement) and an independent surety in the amount of €500 (again with no lodgement required). The applicant's counsel protested in respect of the independent surety requirement given the applicant's unblemished history of compliance with bail conditions and the genuineness of the appeal. Counsel also drew attention to the applicant's personal circumstances: he was unemployed with limited means. The District Judge refused, however, to vary the independent surety requirement saying that he wanted to ensure that the appeal was prosecuted.

4 The applicant then duly lodged an appeal with the Circuit Court where the appeal was first listed on 22nd July 2014. It is not disputed but that had the appeal proceeded, it was likely to have been disposed of within about a further six months period from that date. It is true, of course, that the applicant was not facing a custodial sentence. By reason of the order made he was still subject to the supervision requirements of the Probation and Welfare Service and the applicant – who continued to maintain his innocence – wished to have that order stayed pending an appeal. It is, however, clear that the effect of Order 101, rr. 4 and 6 of the District Court Rules – the terms of which I shall consider in more detail presently – is that no such stay is possible unless an appellant enters upon a recognizance. This simply served to highlight the dilemma which the applicant faced, as the requirement of the independent surety effectively prevented him from entering into a recognizance. Given his background – he is unemployed and impecunious – he has few friends or acquaintances who would be prepared to act as surety in such circumstances and who would have sufficient means to meet this requirement.

5 This is the background to the present application for judicial review. In advance of the appeal being listed before the Circuit Court the applicant had applied to the High Court for leave to apply for judicial review to quash the independent surety requirement. Leave to apply was duly granted by Peart J. on 23rd June 2014. The High Court order granting leave also provided for an order staying the operation of the District Court order pending the outcome of the present proceedings.

6 At the hearing of the present appeal the Court was informed that the Circuit Court appeal had proceeded in the interval with the Circuit Court judge affirming the finding of the District Court on 5th July 2016 and directing that the applicant pay €150 to charity. The question of whether the 1907 Act should be applied to the applicant was further adjourned to a later date.

The decision of the High Court

7 This is an appeal brought by the applicant against the decision of the High Court (Noonan J.) delivered on 30th July 2015 which refused to grant him the relief he sought: see Croake v. Coughlan [2015] IEHC 515.

8 In his judgment Noonan J. considered that the independent surety requirement was not a burdensome one and the decision of the District Court could, in any event, be appealed. He further rejected the argument that the decision to require an independent surety to post a bond of €500 was unreasonable in law.

‘16. The essential thrust of the applicant's complaint is that the recognizances were set at a level which was unreasonable. However, the applicant does not seek to suggest what might have been reasonable and thus within jurisdiction. To take an example, if one were to assume that a bond in the sum of €100 with no lodgement was reasonable and thus within jurisdiction, at what point on the sliding scale between €100 and €500 does the level become unreasonable and thus, on the applicant's case, made without jurisdiction?

17. In this regard, it seems to me, that the words of Lord O'Brien L.C.J. in The King (Martin) v. Mahony [1910] 2 I.R. 695 (at pp. 706-707) are apposite:-

‘Indeed, it is admitted that the magistrate has jurisdiction to acquit, but it is said he had no jurisdiction to convict; that he was not within jurisdiction in convicting by reason of the failure of evidence; that is to say, that jurisdiction at a given moment was a one sided thing, a sort of lop-sided power. This, in my opinion, is plainly wrong. It confounds want of jurisdiction with error in the exercise of it. Once it is obvious, and it is so here ex hypothesi, that the charge as stated is properly, adequately, stated, and within jurisdiction, one cannot but further accept in such cases, such matters, as I have excluded from discussion as not being involved in the present controversy. To grant certiorari merely on the ground of want of jurisdiction, because there was no evidence to warrant a conviction, confounds, as I have said, want of jurisdiction with error in the exercise of it. The contention that mere want of evidence to authorise a conviction creates a cesser of jurisdiction, involves, in my opinion, the unsustainable proposition that a magistrate has, in the case I put, jurisdiction only to go right; and that, though he had jurisdiction to enter upon an inquiry, mere miscarriage in drawing an unwarrantable conclusion from the evidence, such as it was, makes the magistrate act without and in excess of jurisdiction.’

18. The logic of the Lord Chief Justice in this passage appears to me to be compelling and equally applicable to the facts of this case. Thus, I cannot see how it could be said that the District Judge had jurisdiction to fix the bond at, say, €200 but deprived himself of that jurisdiction by...