DPP -v- Cunningham, [2002] IESC 64 (2002)

Docket Number:353/01
Party Name:DPP, Cunningham
Judge:Hardiman J. / Denham J.

JUDGMENT BY: Hardiman J.


Denham J.

Murphy J.

Murray J.

Hardiman J.




FRANCIS CUNNINGHAM Applicant/Appellant

Judgment of Mr. Justice Hardiman delivered the 8th day of October, 2002.

This is an appeal from the Court of Criminal Appeal pursuant to Section 29 of the Courts of Justice Act, 1924. On the 14th December, 2001 that Court certified that the following question is one of exceptional public importance:-

"Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring relating to the behaviour of the Applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence?"

Background to this question.

On the 8th December, 1999 the Defendant/Appellant pleaded guilty to the offence of forgery contrary to Section 2 of the Forgery Act, 1913, at the Dublin Circuit Criminal Court (Her Honour Judge Dunne). The charge related to the events of the 25th November, 1996. On that date gardaí on surveillance duty observed the Defendant in South Richmond Street, Dublin with another man. The two went into a shop where they were joined by a third man. The Defendant asked this man to write the name "Oliver McDonald" several times on a piece of paper. He also got him to write out the figure "£45,000" several times. The Defendant then produced a blank bank draft to the man and instructed him as how to fill it out. This was a stolen draft which had been taken in the course of an armed robbery on the Bank of Ireland, Howth, on the 18th September, 1996. The draft was filled out in accordance with the accused's instructions. The Gardaí then made themselves known and after some confusion the draft was found in the restaurant.

The accused was arrested and made no admissions while in custody. It transpired that he was, at the time of the offence, on bail on a charge of receiving stolen property.

It also transpired that he had in all thirteen previous convictions and that "the vast majority are forgery related". It also emerged from the transcript that the charge of receiving stolen goods, in 1990, was eventually dealt with by the Dublin Circuit Criminal Court on the 14th January, 1998, by a five year suspended sentence. The present charge, relating to November 1996 was finalised in the Circuit Criminal Court in December, 1999, when a five year sentence was imposed.

As for the Defendant himself, it appears that he was 51 years of age in December, 1999. The undisputed evidence was that it was he who "masterminded these activities..... from start to finish". He was a father of a small child and, at the time of the hearing in the Circuit Court, had recently lost his mother. His plea of guilty was an extremely belated one: it was not offered until after the case had been sent to another court for trial and the learned trial judge remarked that "He has pleaded guilty to this particular offence at the last possible moment". The only aspect of the facts which provided any ground for mitigation was the fact that he did, eventually, plead guilty, that apart from the receiving charge mentioned above he had no convictions for a considerable period of time and that no violence was involved in the offence, an observation which is probably true of forgery offences in general by their very nature.

The Defendant appealed this sentence to the Court of Criminal Appeal. The appeal was dismissed on the 25th July, 2001. The judgment of the Court on that occasion records that the propriety of the sentence of five years "is not challenged in itself in principle". It appears from the judgment that the only point that was urged on behalf of the Appellant was that there was a "disproportionate discrepancy between the sentence imposed on the Appellant and the two other people involved in the event". This point did not find favour with the Court of Criminal Appeal and was not relied on in this Court. The immediate background to the question now before us is set out in a further judgment of the Court of Criminal Appeal on the 14th December, 2001 as follows:-

"At the hearing of the application for leave to appeal, counsel on behalf of the Applicant asked the Court to receive and consider ad misericordiam a number of documents described as testimonials or certificates all dated subsequent to the decision of the Circuit Criminal Court. The Court declined to receive these documents.

It ruled that it was confined to a consideration of the correctness of the sentence imposed by the Circuit Criminal Court which could only be reviewed by reference to the position which prevailed as of the date when it was imposed. This necessarily ruled out of consideration any of the materials proffered".

The Court went on to refer to certain cases considered below and to certify the question set out above pursuant to Section 29 of the Courts of Justice Act, 1924.

"Testimonials or Certificates".

The documents which the Court of Criminal Appeal refused to consider were all in the nature of testimonials or certificates. They were ten in number. The first eight included testimonials from a prison governor, the industrial manager of a prison, two teachers in the prison, another prison governor, a prison chaplain and a potential employer. The one on which most emphasis was placed was from the prison officer in charge of the catering department of Castlerea prison who said that the Applicant was "a keen team member of the catering group", stated that he suffered "an obvious sense of shame" in respect of the effect his crime had on his partner and young child and expressed the view that the Appellant "appears to have taken responsibility for his wrong doing and is actively trying to make amends".

Of the two certificates, one is from CERT confirming that in an "Introductory Vocational Skills" course, the Appellant had achieved the required standard in a variety of "personal skills" and one "practical skill", Introduction to Gym Training.


Both sides made oral submissions on the hearing of this appeal and also provided written submissions.

On behalf of the Appellant Mr. Ciaran O'Loughlin SC made admirably focussed submissions. He first referred to the wording of the question emphasising the phrase "....... Is the Court strictly limited........". He submitted that there was authority for the proposition that, in exceptional circumstances, the Court of Criminal could have regard to events or facts occurring subsequent to the prisoner's conviction. In this connection he cited in particular the cases of DPP v. MS [2000] 2IR 591 and DPP v. Jethi and Syngh (Court of Criminal Appeal, unreported, 7th February 2000). These cases demonstrated, he said, that the Court was not "strictly" or absolutely precluded from having regard to such evidence: therefore the question should be answered in the negative.

Mr. O'Loughlin went on to submit that if a specific source for the jurisdiction to have regard to evidence of the relevant kind was needed, it could be found in Section 3(3) of the Criminal Procedure Act, 1993.

Mr. O'Loughlin further submitted that the test for the admissibility of new evidence of the kind in question here was: is the material such that, had it been available at the trial, it would have influenced the trial judge in imposing sentence. Putting it another way, Mr. O'Loughlin submitted, if the Court of Criminal Appeal thinks "Had the trial judge known of this it would have influenced his sentence", the Court can do what it thinks the trial judge would have done in light of the new evidence.

Mr. O'Loughlin referred to certain cases relating to the principles to be applied by the Court of Criminal Appeal in the case of a review of sentence sought by the DPP on the ground of alleged undue leniency. In particular he referred to DPP v. Egan [2001] 2ILRM 289. This establishes that, if the Court believes that the sentence is unduly lenient and it proceeds to impose the sentence it considers appropriate, the latter is to be assessed in light of the circumstances prevailing at the time when the application for review is heard, and not those prevailing at the time the original sentence was imposed. By parity of reasoning, it is submitted, the same approach should be taken on a defendant's appeal against severity of sentence.

More generally, Mr. O'Loughlin referred to the statutory constitution of the Court of Criminal Appeal. He submitted that the phrase "any other sufficient ground of appeal", which appears in Section 32 of the Courts of Justice Act, 1924 gives the Court power to intervene to alter a sentence on the basis of the prisoner's post incarceration behaviour. He lays still further emphasis on Section 13 of the same Act:-

"The Court of Criminal Appeal shall be a superior court of record, and

shall for the purposes and subject to the provisions of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it".

A similar phrase occurs in Section 3(3) of the 1993 Act.

Mr. O'Loughlin submitted that the reference to "doing justice" was quite broad enough to encompass the consideration of evidence of the sort in question here. He relied in particular on the MS case and submitted that the statutory provisions had been correctly interpreted there.

On behalf of the Director, Mr. Thomas O'Connell SC submitted that the jurisdiction of the Court of Criminal Appeal on an appeal against the severity of...

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