DPP v Gibson Brothers (Ireland) Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 February 2016
• Neutral Citation: [2016] IECA 31
• Docket Number: Record No: CJA254/11
• Court: Court of Appeal (Ireland)
• Date: 15 February 2016

[2016] IECA 31

THE COURT OF APPEAL

Edwards J.

Record No: CJA254/11

Birmingham J.

Mahon J.

Edwards J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v

GIBSON BROTHERS (IRELAND) LIMITED

Respondent

Sentencing ? Undue leniency ? Preliminary objection ? Applicant seeking a review of sentence ? Whether sentence was unduly lenient

Facts: The applicant, the DPP, appealed to the Court of Appeal seeking a review pursuant to s. 2 of the Criminal Justice Act 1993 of two sentences comprising fines of ?15,000 each, with two months to pay, imposed upon the respondent, Gibson Brothers (Ireland) Ltd, by Dundalk Circuit Criminal Court on the 19th of October 2011 following pleas of guilty by the respondent to counts 2 and 5, respectively, on an indictment containing nine counts, which pleas were acceptable to the DPP subject to the full facts of the case being opened to the court at sentencing, on the grounds that the said sentences were unduly lenient and represented a divergence from the norm. Count 2 comprised the offence of failure as an employer to ensure so far as was reasonably practicable that persons not being employees were not exposed to risk to their safety, health or welfare, in breach of s. 12, and contrary to s. 77(9)(a), of the Safety Health and Welfare at Work Act 2005. Count 5 comprised the offence of failure as a project supervisor at the construction stage within the meaning of the Safety Health and Welfare at Work (Construction) Regulations, 2006 to include in the construction plan for the construction site specific measures concerning work which involves a particular risk in breach of Regulation 16(d) of the Safety Health and Welfare at Work (Construction) Regulations, 2006, and contrary to s. 77 (2)(c) of the 2005 Act. The respondent raised a preliminary objection that compliance with the preconditions required by the 1993 Act had neither been asserted nor proven. In particular, the respondent submitted that it had not been shown that the respondent was notified in the manner required by s. 10(1)(d) of that Act, nor within the time-limit prescribed by s. 2(2) of that Act, relying on The People (DPP) v Patrick Monaghan (Drogheda) Ltd [2014] IECA 52.

Held by Edwards J that the Court should not lightly facilitate the setting at nought of express legislative requirements; its justification would require the clearest and most manifest acquiescence by the convicted person. Edwards J held that the evidence in this case did not approach the cogency of that which would be required.

Edwards J held that the respondent?s preliminary objection should be upheld.

Application dismissed.

Judgment of the Court (ex tempore) delivered the 15th day of February, 2015 by Mr. Justice Edwards

Background to the Appeal:

1 In this case the applicant seeks a review pursuant to s. 2 of the Criminal Justice Act 1993 as amended by the Court of Appeal Act 2014 (the Act of 1993, as amended) of two sentences comprising fines of ?15,000 each, with two months to pay, imposed upon the respondent by Dundalk Circuit Criminal Court on the 19th of October 2011 following pleas of guilty by the respondent to counts 2 and 5, respectively, on an indictment containing nine counts, which pleas were acceptable to the Director of Public Prosecutions subject to the full facts of the case being opened to the court at sentencing, on the grounds that the said sentences were unduly lenient and represented a divergence from the norm..

2 Count No 2 comprised the offence of failure as an employer to ensure so far as was reasonably practicable that persons not being employees were not exposed to risk to their safety, health or welfare, in breach of s. 12, and contrary to s. 77(9)(a), of the Safety Health and Welfare at Work Act 2005.

3 Count No 5 comprised the offence of failure as a project supervisor at the construction stage within the meaning of the Safety Health and Welfare at Work (Construction) Regulations, 2006 to include in the construction plan for the construction site specific measures concerning work which involves a particular risk in breach of Regulation 16(d) of the Safety Health and Welfare at Work (Construction) Regulations, 2006, and contrary to s. 77 (2)(c) of the Safety Health and Welfare at Work Act 2005.

4 The respondent has indicated an intention to substantively oppose the said application, should it be necessary for it to do so. However, the respondent has also raised a preliminary objection which, if upheld, would be dispositive of the entire matter.

The Preliminary Objection.

5 The respondent objects that compliance with the preconditions required by the Act of 1993, as amended, has neither been asserted nor proven. In particular, it has not been shown that the respondent was notified in the manner required by s.10(1)(d) of that Act, nor within the time-limit prescribed by s.2(2)...