Damien McCabe v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 03 June 2014
• Neutral Citation: [2014] IEHC 309
• Court: High Court
• Date: 03 June 2014

[2014] IEHC 309

THE HIGH COURT

[No. 919 SS/2014]

McCabe v Governor of Mountjoy Prison

IN THE MATTER OF AN INQUIRY UNDER ARTICLE 40.4 OF THE CONSTITUTION

BETWEEN

DAMIEN McCABE

APPLICANT

AND

GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2007 S60(1)(A)

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S51

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2007 S60(A)

CRIMINAL JUSTICE ACT 2006 S99(10)

CRIMINAL JUSTICE ACT 2006 S99(10)(A)

CRIMINAL JUSTICE ACT 2007 S60(C)

CRIMINAL JUSTICE ACT 2006 S99(12)

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

CONSTITUTION ART 40.4.2

EJERENWA v GOVERNOR OF CLOVERHILL PRISON UNREP SUPREME 28.10.2011 2011/20/5060 2011 IESC 41

KIERNAN, STATE v DE BURCA & DURKIN 1963 IR 348

DE BURCA, STATE v O HUADHAIGH & O'DONOVAN 1976 IR 85

COURTS OF JUSTICE ACT 1928 S18(1)

MUNTEAN v DISTRICT COURT JUDGE HAMILL & DPP UNREP MCCARTHY 11.5.2011 2011/39/11051 2010 IEHC 391

COURTS (SUPPLEMENTAL) PROVISIONS ACT 1961 S50

AHERNE, STATE v COTTER 1982 IR 188

BOURNE (INSPECTOR OF TAXES) v NORWICH CREMATORIUM LTD 1967 2 AER 576 1967 1 WLR 691 1967 TR 49

DILLON v MIN POST & TELEGRAPHS UNREP SUPREME 03.06.1981 1981/9/1589

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

Criminal Law - S.99 Criminal Justice Act 2006 - Suspended Sentence - Further Offence - Second Court - Remand in Custody - Convicted - Convicted of an offence - Lawful detention - Warrant Requirements

Facts: Section 99(9) of the Criminal Justice Act 2006(2006 Act) envisages when an accused has been convicted of an offence for which he has received a suspended sentence and commits a further offence during such suspended sentence, the second court before which proceedings for the 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 order. Section 99(10) of the 2006 Act provided the second court should impose sentence before sending the matter back to the original court for consideration as regards the suspended sentence and that the court which imposed the original sentence shall remand the person in custody or on bail to the next sitting of the court for the purpose of that court imposing sentence on that person for the offence in question. Since the Criminal Justice Act 2007, the second court must remit the matter to the first court prior to imposing sentence. Section 99(10) of the 2006 Act provided the court to which an accused has been remanded shall revoke the suspension of the sentence unless it considers the revocation of that order would be unjust. The applicant was convicted by the District Court in June 2012 for driving a motorcycle without insurance and received a six months prison sentence suspended for two years. The applicant was convicted in the District Court on 26 ^th May 2014 for a public disorder offence and was remanded back to the Circuit Court. The Circuit Court revoked the suspended sentence and the applicant commenced serving his 6 month prison sentence in relation to the original no insurance offence. The applicant in this action sought an order of release pursuant to Article 40.4.2 of the Constitution, asserting the meaning of the word “convicted” could only refer to a sentenced person, the warrant detaining the applicant was bad on its face and that features of s. 99 were unconstitutional. It was agreed the constitutional argument must await the resolution of the non-constitutional grounds. This judgment addressed the first two grounds. Mr Justice Hogan discussed the word “convicted” to the effect it implied the accused had not only been convicted of the offence but received a sentence for the offence and referred to the cases of The State (Kiernan) v de Búrca [1963] and The State (de Búrca) v Ó hUadhaigh [1976] which illustrated an invalid sentence could not be severed from a conviction so as to validate the conviction. Mr Justice Hogan cited the provisions of s. 18(1) of the Courts of Justice Act 1928 to the effect the right of appeal from the District Court in criminal matters was confined to cases where sentence was imposed. Mr Justice Hogan discussed the case of Muntean in The State (Aherne) v Cotter [1982] and pointed out the word used by s. 99(9) were not “conviction” but rather the words “convicted of an offence” and capable of giving a different meaning. Mr Justice Hogan stated in English language words did not always have fixed meanings. Mr Justice Hogan referred to the case of Dillon v Minister for Posts and Telegraphs [1981] which illustrated such principle, advising the principle was applicable herein.

Held by Mr Justice Horgan the reference in s. 99(9) to the phrase “convicted of an offence” referred to the situation where an accused was found guilty by the second court but where sentence had yet to be imposed by that court. Mr Justice Horgan stated the warrant satisfied the requirements set out by the Supreme Court in GE v Governor of Cloverhill Prison [2011] and Joyce v Governor of the Dóchas Centre [2012] and further that the Circuit Court warrant satisfied the requirements expressed by the Supreme Court in GE. Mr Justice Horgan further held that the applicant”s detention was lawful and that the Court could proceed to consider the constitutional issues.

Warrant good on its” face-Lawful detention

1 1. The question of the re-activation of suspended sentences in the manner envisaged by s. 99 of the Criminal Justice Act 2006 (as amended)("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").

2 2. 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 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".

3 3. 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. The fact that, 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 is a matter which is central to the one of the principal arguments advanced by the applicant.

4 4. 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."

5 5. Section 99(10A)(as inserted by s. 60(c) of the Criminal Justice Act 2007) provides that the court which imposed the original sentence shall remand the person in custody or on bail "to the next sitting of the court [which convicted the accused on the second occasion] for the purpose "of that court imposing sentence on that person for the offence" in question.

6 6. 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."

7 7. In the present case the applicant was originally convicted by the District Court in June, 2012 of the offence of driving a motorcycle without insurance. He received a six months prison sentence, which was suspended for two years. That conviction and sentence was affirmed on appeal by the Circuit Court on 29 ^th October, 2013. Under the scheme posited by the 1999 Act it is accepted that the Circuit Court is now the first court, i.e., it was the Circuit Court (albeit sitting in its appellate capacity in an appeal from the District Court) which imposed the suspended sentence.

8 8. The applicant 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...