DPP v Anthony Foley

• Jurisdiction: Ireland
• Judge: Denham C.J.
• Judgment Date: 23 January 2014
• Neutral Citation: [2014] IESC 2
• Date: 23 January 2014
• Court: Supreme Court
• Docket Number: [C.C.A. No. 202 of 2006] [S.C. No. 530 of 2012]

[2014] IESC 2

THE SUPREME COURT

Denham C.J.

Murray J.

Hardiman J.

O'Donnell J.

MacMenamin J.

Appeal No: 530/2012

DPP v Foley

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Anthony Foley

Appellant

COURTS OF JUSTICE ACT 1924 S29

CRIMINAL JUSTICE ACT 2006 S99

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2006 S99(10)

COURTS OF JUSTICE ACT 1924 S34

CRIMINAL PROCEDURE ACT 1993 S3

AG, PEOPLE v GRIMES 1955 IR 315 1 FREWEN 496

CRIMINAL JUSTICE ACT 2006 S99(12)

CRIMINAL PROCEDURE ACT 1993 S2

CRIMINAL PROCEDURE ACT 1993 S2(3)

COURTS OF JUSTICE ACT 1924 S34

CRIMINAL PROCEDURE ACT 1993 S3(2)

CRIMINAL JUSTICE ACT 2006 S99(1)

DPP v CUNNINGHAM 2002 2 IR 712 2003 1 ILRM 124 2002/8/1937 2002/9/1958

CRIMINAL JUSTICE ACT 2007 S60

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 2009 S51

Criminal law - Criminal procedure - Court of Criminal Appeal – Sentence – Suspend – jurisdiction – Discrimination - Leniency

Facts: The Supreme Court considered a point of law certified as to where the Court of Criminal Appeal (CCA) had varied a sentence by wholly or partially suspending it, whether the CCA was the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence. It was submitted that the CCA was a creature of statute and after it dealt with an appeal its jurisdiction was concluded and further revocation of a suspended sentence fell to be dealt with by the Circuit Court. It was submitted that s. 99 Criminal Justice Act 2006 provided for the renovation of a suspended sentence which would be set at nought if it were determined that the CCA was the appropriate court to deal with the revocation of a sentence it had suspended and that there was no form of appeal to the Supreme Court on the merits of the revocation. Thirdly, it was argued that the proceedings arose by way of an appeal against undue leniency brought by the DPP pursuant to s. 2 Criminal Justice Act 1993 and it would be unjustifiable discrimination to treat a person whose sentence was suspended on foot of an appeal against severity of sentence.

Held by the Supreme Court per Denham CJ (Murray, Hardiman, O"Donnell, MacMenamin JJ concurring) in dismissing the three grounds, that the CCA had the power to quash an earlier sentence and impose a new sentence. There was a limited appeal from the CCA to the Supreme Court but this fact did not override the clear, plain and unambiguous terms of s. 99 of the Act of 2006, as amended. Convicted persons under both types of appeals were subject to a similar power of the CCA to quash the sentence of the trial court and to impose sentence. The Court would answer the question in the affirmative, that where the CCA had quashed a sentence by wholly or partly suspending it, the CCA was the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence.

Certificate from the Court of Criminal Appeal

1 This appeal comes before the Court by way of a certificate from the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act, 1924, as amended, that its decision of the 19 ^th October, 2011, holding that the Court of Criminal Appeal is the appropriate court to deal with the revocation (pursuant to the provisions of s. 99 of the Criminal Justice Act, 2006, as amended) in whole or in part of the suspended portion of the sentence imposed on Mr. Anthony Foley, referred to as "the appellant", by the Court of Criminal Appeal on the 19 ^th April, 2007, involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court from that decision.

2 The point of law certified was:-

"Where the Court of Criminal Appeal has varied a sentence pursuant to section 2 of the Criminal Justice Act, 1993 by wholly or partly suspending it, is the Court of Criminal Appeal the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to section 99(10) of the Criminal Justice Act 2006 as amended?"

Background

3 On the 19 ^th April, 2007, the Court of Criminal Appeal, referred to as "the CCA", heard an appeal against alleged undue leniency brought by the Director of Public Prosecutions, referred to as "the DPP", and allowed the appeal.

4 On the 19 ^th April, 2007, the CCA (Kearns, Murphy, MacMenamin JJ.) held:-

"The Court won't interfere with the sentence that was imposed, the seven years imprisonment consecutive to the twelve months imposed on the first offence. The total that was arrived at was eight years. The learned trial judge suspended the entirety of the eight years but this Court will suspend five of the eight years of the sentence so that the suspension will be on the same conditions that were fixed by the Circuit Court Judge."

5 In breach of the conditions attached to the five year suspended term of imprisonment, the appellant committed further offences after his release from custody.

6 Section 99 of the Criminal Justice Act, 2006, as amended, referred to as "the Act of 2006", makes provision for when a convicted person commits further offences while on a suspended sentence.

7 Section 99(9) of the Act of 2006, as amended, requires the Court before imposing sentence for the further offences to remand the person "to the next sitting of the Court that made the said order".

8 The DPP, relying on the wording of s. 99(9) of the Act of 2006, as amended, considered that the appropriate court in the circumstances was the CCA.

9 Consequently, the matter was re-entered before the CCA, in order to request that the suspended sentence be revoked pursuant to s. 99(10) of the Act of 2006, as amended.

10 As a preliminary issue, the appellant challenged the application being made to the CCA, as opposed to the Circuit Court which had originally sentenced the appellant and set the conditions for the suspended sentence.

11 On the 19 ^th October, 2011, the CCA (Finnegan, Budd, O'Keeffe JJ.) delivered a reserved judgment on this preliminary issue. It held that the CCA was the appropriate court to deal with the revocation, in whole or in part, of the five year suspended portion of the appellant's sentence which had been imposed by the CCA on the 19 ^th April, 2007.

12 It is this determination which has been appealed to this Court.

13 On the 12 ^th November, 2012, the CCA (Fennelly, de Valera, White JJ.) had before it an application by the DPP pursuant to s. 99 of the Act of 2006, as amended, for the activation of the suspended portion of the sentence originally imposed on the appellant by the Circuit Criminal Court in 2006, but then varied on appeal by the CCA in 2007. The CCA held that, in the circumstances, and given the seriousness of the original offences, that the only logical thing it could do was to activate the entirety of the five year sentence which would then take effect from that date, that was the five years of the outstanding suspended portion of the sentence imposed in 2007 by the CCA. The powers of the CCA in relation to the revocation in whole or in part of a suspended sentence were explicitly not an issue on that day.

14 Further, on the 12 ^th November, 2012, the CCA determined that the decision of the CCA of the 19 ^th October, 2011, as to its jurisdiction, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.

15 By certificate dated the 14 ^th November, 2012, the point of law was certified, as set out in the second paragraph of this judgment.

Submissions on behalf of the Appellant

16 Counsel for the appellant submitted that the decision of the CCA that it was the appropriate court to deal with the revocation, in whole or in part, of the suspended portion of the appellant's sentence, was wrong in law, and that it had misinterpreted s.99 of the Act of 2006, as amended. The appellant sought a declaration that the CCA was not the appropriate court to deal with the revocation of the appellant's suspended sentence, and that consequently the decision of the CCA of the 12 ^th November, 2012, revoking the said sentence, should be overturned.

17 On behalf of the appellant, three core arguments were advanced.

18 First, it was submitted that the CCA is a creature of statute, set up to be an appellate court. It is vested with no original jurisdiction. It was submitted that its jurisdiction flows from an appeal of a criminal matter which has already been decided. It was submitted that the CCA decides the appeal based on the transcript of the original hearing, and that it does not conduct a re-hearing. Having decided the appeal its function is complete. This was the situation under s. 34 of the Courts of Justice Act, 1924, and it was submitted that the new provisions contained in s. 3 of the Criminal Procedure Act, 1993 (which deals with miscarriages of justice and other matters) does not alter the situation. It was submitted that as an appellate court, once the CCA has dealt with an appeal by altering the sentence and providing for a suspended sentence, its jurisdiction is concluded. Thus, it was submitted that any further consideration of revocation of the suspended sentence falls to be dealt with by the original sentencing court, the Circuit Court. The decision in The People (AG) v. Grimes [1955] I.R. 315 was relied upon by the appellant.

19 Secondly, it was submitted that s. 99(12) of the Act of 2006, as amended, provides for an appeal against the revocation of a suspended sentence. It was submitted that the intent of the Oireachtas would be set at nought if it were determined that the CCA was the appropriate court to deal with the revocation of a sentence which it had suspended. This is because...