Damian McCabe v Ireland and Attorney General and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Gerard Hogan
• Judgment Date: 30 September 2014
• Neutral Citation: [2014] IEHC 435
• Court: High Court
• Date: 30 September 2014

McCabe v Ireland & Ors

BETWEEN

DAMIAN McCABE

PLAINTIFF

AND

IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND

DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

[2014] IEHC 435

[No. 5652P/2014]

THE HIGH COURT

Crime & Sentencing – Suspension & re-activation of sentence – S. 99 of the Criminal Justice Act 2006 – S. 60 (a) of the Criminal Justice Act 2007 – Fair procedures – Art. 40.1 of the Constitution – Equality before law

Facts: The plaintiff/accused had challenged the constitutional validity of s. 99 of the Criminal Justice Act. The plaintiff received a suspended sentence from the Circuit Court on appeal from the District Court. The plaintiff contended that the re-activation of his suspended sentence following a conviction in a subsequent offence, by the same Circuit Court, under s. 99 of the Criminal Justice Act, was contrary to the constitutional provisions as it deprived him the right to appeal because in summary prosecutions, the decisions of the Circuit Court on appeal would be final and not appealable.

Mr. Justice Barr Gerard Hogan granted an order declaring that the execution of orders of re-activation of sentence in the absence of right to appeal would be unconstitutional. The Court held that the difference in treatment of the accused persons, whose suspension of sentence was originally imposed by the Circuit Court rather than District Court, would be in violation of equality before law under art. 40.1 of the Constitution. The Court observed that s. 99 (12) of the Criminal Justice Act pre-supposes a right of appeal against the re-activation of a sentence. The Court opined that the unconstitutional discrimination of the offender would not be cured in the absence of clear legislative provisions for not providing remedy by way of appeal to the alleged offenders.

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S6(1)

CRIMINAL JUSTICE ACT 2006 S99(9)

CONSTITUTION ART 40.4.2

MCCABE v GOV OF MOUNTJOY PRISON UNREP 3.6.2014 2014 IEHC 309

CRIMINAL JUSTICE ACT 2007 S60(1)(A)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S51

CRIMINAL JUSTICE ACT 2007 S60(A)

CRIMINAL JUSTICE ACT 2006 S99(10)

CRIMINAL JUSTICE ACT 2006 S99(12)

THE COURTS OF JUSTICE ACT 1924 S63

CRIMINAL PROCEDURE ACT 2010 S31

CONSTITUTION ART 34.3.4

CONSTITUTION ART 40.1

COX v IRELAND 1992 2 IR 503

M (S) v IRELAND 2007 4 IR 369 2007/38/7813 2007 IEHC 280

G (B) & ORS v DISTRICT JUDGE MURPHY & ORS (NO. 2) 2011 3 IR 748 2011/22/5806 2011 IEHC 445

BYRNE (A MINOR) v DIR OF OBERSTOWN SCHOOL 2014 1 ILRM 346 2013/8/2169 2013 IEHC 562

CONSTITUTION ART 40.4.1

DPP v FOLEY UNREP SUPREME 23.1.2014 2014 IESC 2

THE COURTS OF JUSTICE ACT 1924 S29

COURTS OF JUSTICE ACT 1947 S16

HUNT, STATE v O'DONOVAN 1975 IR 39

CRIMINAL PROCEDURE ACT 1967 S13

CRIMINAL PROCEDURE (AMENDMENT) ACT 1973 S1

CONSTITUTION ART 40.3

CRIMINAL PROCEDURE ACT 1967 S13(2)(B)

MURPHY v AG 1982 IR 241

MURPHY v IRELAND & ORS 2014 1 ILRM 457 2014 IESC 19

TODD v MURPHY & DPP 1999 2 IR 11998/33/12872

KING v AG 1981 IR 233

OFFENCES AGAINST THE STATE ACT 1939

MCDONNELL v IRELAND 1998 1 IR 134 1996 2 ILRM 222 1996/6/1697

CARMODY v MIN FOR JUSTICE & ORS 2010 1 IR 635 2010 1 ILRM 157 2009/8/1838 2009 IESC 71

CONSTITUTION ART 38.1

CRIMINAL JUSTICE (LEGAL AID) ACT 1962 S2(1)

1 1. Where an accused receives a suspended sentence from the Circuit Court on appeal from the District Court and that sentence is later re-activated following a conviction for a subsequent offence, is he or she constitutionally entitled to appeal against the decision to reactivate that sentence? This is essentially the issue which is presented in these proceedings in which the plaintiff has challenged the constitutionality of key portions of s. 99 of the Criminal Justice Act 2006 (as amended) ("the 2006 Act").

2 2. The plaintiff in these proceedings was originally convicted by the District Court on 24 ^th June, 2013, of the offence of driving a motorcycle without insurance. He received a five months prison sentence in the District Court. Mr. McCabe appealed that sentence to the Circuit Court. On 29 ^th October, 2013, the sentence was increased to six months, but, critically, it was suspended in its entirety for two years. Having regard to the scheme posited by s.99 of the 2006 Act it is accepted that the Circuit Court is now the first court for this purpose, i.e., it was the Circuit Court (albeit sitting in its appellate capacity when hearing an appeal from the District Court) which imposed the suspended sentence.

3 3. The plaintiff was, however, subsequently convicted in the District Court on 26 ^th May, 2014, of an offence under s. 6(1) of the Criminal Justice (Public Order) Act 1994. That Court then remanded the applicant back to the Circuit Court in accordance with s. 99(9) of the 2006 Act. On the following day the Circuit Court then revoked the suspended sentence with immediate effect, so that the applicant commenced to serve his prison sentence of six months in relation to the original no insurance offence. It is pursuant to this sentence that the applicant is now in custody. Sentencing on the second charge has now been adjourned by the District Court pending the outcome of this and associated legal challenges.

4 4. The plaintiff originally sought to challenge the legality of his detention on a range of non-constitutional grounds in Article 40.4.2 proceedings. I rejected that challenge in a judgment delivered on 3 ^rd June, 2014: see McCabe v. Governor of Mountjoy Prison [2014] IEHC 309. While there was some debate as to whether the plaintiff's constitutional challenge should be heard in those proceedings or whether it might not be better to have separate plenary proceedings with pleadings, it was ultimately agreed that the plaintiff should be at liberty on bail in the Article 40.4.2 proceedings pending the outcome of this constitutional challenge in these separate plenary proceedings.

5 5. As I observed in the first judgment, the question of the re-activation of suspended sentences in the manner envisaged by s. 99 of the 2006 Act has not been without its difficulties. The Oireachtas has indeed intended to address some of these problems of interpretation and application by two further amendments of the 2006 Act, namely, s. 60(1)(a) of the Criminal Justice Act 2007 ("the 2007 Act") and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009 ("the 2009 Act").

6 6. The scheme envisaged by s. 99 of the 2006 Act is clear enough. Section 99(9)(as amended by s. 60(a) of the 2007 Act) envisages that where an accused has been "convicted of an offence" for which he has received a suspended sentence and he subsequently commits a further offence during the currency of that suspended sentence, the court (which I shall term for ease of reference "the second court") before which proceedings for the second offence are 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".

7 7. It should be noted that, as originally enacted, s. 99(10) provided that the second court should impose sentence prior to sending the matter back to the original court for consideration in relation to the suspended sentence. Following the change effected by the 2007 Act, the second court is now required to remit the matter to the first court ( i.e., the court which originally imposed the suspended sentence) prior to imposing sentence. Section 99(10) provides that the court to which the accused has been remanded shall revoke the suspension of the sentence "unless it considers that the revocation of that order would be unjust in all the circumstances of the case."

8 8. Section 99(12) further provides that:

"Where an order under subsection 1 is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction or, or sentence imposed on, a person for an offence by the court that revoked the order."

9 9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.

10 10. Against the background, it is agreed that the first question, therefore, which must be considered is whether the Constitution requires the existence of a right of appeal against the re-activation of a suspended sentence by the Circuit Court when it is agreed that such an appeal would lie had but the suspended sentence been imposed in the first instance by the District Court.

Does the Constitution require the existence of a right of appeal in these circumstances?

11 11. The plaintiff advances two fundamental arguments in support of his contention that the Constitution requires the existence of a right of appeal. First, he says that he has such a right by virtue of Article 34.3.4 of the Constitution which provides:

"The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law."

12 12. Second, he argues that a failure to provide a right of appeal against the re-activation of the suspended sentence when that suspended sentence was itself imposed by the Circuit Court on appeal when a right of appeal against the re-activation of the sentence is provided when the...