Director of Public Prosecutions v Carter

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman,O'Donnell J
• Judgment Date: 05 March 2015
• Neutral Citation: [2015] IESC 20
• Docket Number: [S.C. Nos. 203 & 426 of 2014]
• Court: Supreme Court
• Date: 05 March 2015

DPP v Carter & Kenny

IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961

Between/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Appellant

and

JEFFREY CARTER

Defendant/Respondent

and

IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND THE CASE STATED

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

and

SEÁN KENNY

Defendant

In the matter of s. 52 of the Courts (Supplemental Provisions) Act 1961

Between:

The Director of Public Prosecutions (at the Suit of Garda Madden and Garda Hynes)

Prosecutor/Appellant

And

Jeffrey Carter

Defendant/Respondent

And

In the matter of s. 16 of the Courts of Justice Act 1947 and the Case Stated

The People (at the Suit of the Director of Public Prosecutions)

Prosecutor

And

Seán Kenny

Defendant

[2015] IESC 20

Denham C.J.

Hardiman J.

O'Donnell J.

Laffoy J.

Dunne J.

[Appeal No: 203/14 & 426/14]

Appeal No. 203/2014

Appeal No. 426/2014

THE SUPREME COURT

Criminal procedure – Next sittings – Consultative case stated – Circuit Court Judge seeking the determination of questions – Whether the order of remand was valid

Facts: The defendant in the first proceedings, Mr Carter, was sentenced to four months, with the final three months suspended for a period of 12 months, in January 2011 by Watkin J sitting in the Dublin Metropolitan District Court. She later imposed a further sentence of six months suspended in its entirety for a period of two years. In March 2011, Mr Carter committed two new offences (the breach offences). In January 2012 he entered guilty pleas in the Circuit Court. The Circuit Court Judge remanded Mr Carter to the District Court. Mr Carter submitted that the case was not properly before the court because he had not been remanded to the “next sitting” of the District Court. McNamara J remanded Mr Carter to appear before Watkin J. In December 2012 Watkin J ruled that Mr Carter had not been properly remanded on the 26th of March 2012 to the 22nd April 2012 because he was remanded for a week rather than to the very next day that the District Court was sitting. She also held that there had been a waiver of right to remand to the next day that the Dublin Metropolitan District Court was sitting. She found the matter was correctly before McNamara J in April 2012 and accordingly, there was jurisdiction to remand the matter further to be dealt with by Watkin J. She then agreed to state a consultative case stated for the opinion of the High Court as to the correctness of the ruling made. The High Court followed The People (DPP) v Devine [2011] IECCA 67, and held that the District Court had no jurisdiction to deal with Mr Carter. That decision was appealed to the Supreme Court. The defendant in the second proceedings, Mr Kenny, was sentenced in January 2011 by the Circuit Court to two years imprisonment suspended in its entirety for four years. In June 2014 Mr Kenny was charged before the Dublin District Court with offences alleged to have been committed during the period of suspension. Mr Kenny pleaded guilty to each of the charges. The District Court Judge made an order under s. 99(9) of the Criminal Justice Act 2006 remanding Mr Kenny to the next sitting of the Dublin Circuit Criminal Court on the 18th of June 2014. Between the 11th and the 18th of June, the Dublin Circuit Criminal Court sat on a number of occasions not scheduled at the time when the District Judge made his order of the 11th of June. In July 2014, Mr Kenny was before the Dublin District Court charged with further offences and another order was made under s. 99(9) remanding the accused to the 25th July. The Circuit Court Judge stated a case to the Supreme Court referring three questions for determination: 1) was the order made by the District Court Judge on the 11th June in accordance with the provisions of s. 99; 2) was the Circuit Court Judge correct in law in finding Mr Kenny was lawfully before the Circuit Court pursuant to the provisions of s. 99(9) in that the judge found that the remand from the 11th to the 18th of June was to the next sitting of the court; 3) if the answer to question 1) is no, what are the consequences for the hearing of the revocation of the suspended sentence imposed on Mr Kenny?

Held by O”Donnell J that, in Kenny, it appeared to the Court that there had been compliance with the provisions of s. 99(9), which does not require that a person be returned to a sitting of the court which has not yet been fixed or scheduled in accordance with the Circuit Court rules; the fact that in the intervening time it so happened that the Circuit Court sat on a number of occasions had no effect on the validity of the District Court Order. O”Donnell J held that the High Court Judge in Carter was correct to hold that the remand in that case was not in compliance with s. 99 because the remand was for a period of a week and it was common case that the District Court had sat and was due to sit for scheduled sittings on a number of days between the 26th of March and the 2nd of April 2012. It also followed that the High Court Judge was correct to conclude that the true interpretation of s. 99 was jurisdictional.

O”Donnell J held that he would answer the questions stated by the Circuit Court Judge in Kenny as follows: 1) and 2), yes, while 3) does not arise. O”Donnell J dismissed the appeal against the decision of the High Court Judge in Carter and affirmed the answers she gave to the case stated.

426/14, Director of Public Prosecutions v Kenny: answer question 1 & 2, yes, 3 does not arise.

203/14, Director of Public Prosecutions v Carter: Appeal dismissed.

1 JUDGMENT of Mr. Justice Hardiman delivered on the 5th day of March, 2015.

2 Judgment of O'Donnell J delivered on the 5th of March 2015

3 Judgment delivered by Hardiman, J. & O'Donnell, J.

4 1. In this case I agree entirely with the order proposed by Mr. Justice O'Donnell, that the appeal in the case of Jeffrey Carter to be dismissed.

5 2. I agree with the proposed order in Mr. Carter's case for precisely the reasons set out in the judgment of O'Donnell J. Accordingly I would dismiss the appeal in the case of Jeffrey Carter and affirm the decision of the learned High Court judge (O'Malley J).

6 3. In the case of Seán Kenny, I agree with the answers to the questions posed in the Case Stated by her Honour Judge Ring, which are to be found at para. 38 of the judgment of O'Donnell J.

7 In one particular respect, however, I am unable to agree with the reasoning which leads to these conclusions. For reasons which will appear, I am unable to follow, in the circumstances of this case, the ratio of the old Irish case of R. (Mackey) v. Justices of the County of Limerick [1898] 2 I.R. 135.1 do not find it necessary to do so in order to arrive at the answers proposed to the case stated.

8 4. This case concerns the interpretation of the deceptively simple words of s.99 of the Criminal Justice Act, 2006 as already twice amended, by s.60 of the Criminal Justice Act, 2007 and by s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009. I emphatically agree with Mr. Justice O'Donnell when he says that this Section "has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases". I also agree with him when he says that:

"Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review."

9 5. The reason for these difficulties and for the urgency of the need for a review of the Section is that s.99 was drafted and enacted by persons quite unacquainted of the actual practices of the Courts, and in particular of the District and Circuit Courts. I am quite certain that the myriad difficulties which have arisen with the Section could have been avoided if any proper effort had been made to consult the judges who actually implement the procedures for the activation of a suspended sentence.

10 6. I agree in general with the identification by Mr. Justice O'Donnell of the difficulties which have arisen in the application of this Section and with his observation that "these questions cannot be resolved by a simple, surface interpretation of apparently simple words, taken in the abstract". On the contrary "the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument".

11 7. Section 99 is intended to deal with a situation of common, perhaps almost daily, occurrence in some at least of the Courts exercising criminal jurisdiction. A clearer and more transparent provision, which pays due attention to the rights of both parties to a criminal proceeding, is urgently required.

12 8. In my view, the issue in Mr. Kenny's case comes down to the interpretation of the words "next sitting". The immediate statutory context is as follows:

"S.99(9) of the Criminal Justice Act, 2006 provides as follows:"

13 Where a person to whom an order under subsection (1) applies [that is, a person who received a sentence which was suspended on terms] is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of an order under subsection (1), the Court before which proceedings for the defence 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."

14 (Emphasis added)

15 9. The effect of subsection (9) is that where a person is convicted of an offence which he committed while he was the subject of a suspended sentence, the Court which imposes the conviction is obliged, before it imposes sentence for the offence of which it has convicted him or her, remand him or her in...