DPP v H (M)

 
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[2014] IECA 18

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

226/14
DPP v McD (J)
The People at the Suit of the Director of Public Prosecutions
V
J. McD.
Appellant

226/2014 - Birmingham Sheehan Edwards - Court of Appeal - 16/12/2014 - 2014 16 4462 2014 IECA 18

LAW REFORM COMMISSION REPORT ON CONTEMPT OF COURT 1994 (LRC 47-1994) CHAP 6

LAOIS CO COUNCIL v HANRAHAN UNREP SUPREME 14.3.2014 2014 IESC 34

SHELL E & P LTD v MCGRATH & ORS 2007 1 IR 671 2006/52/11082 2006 IEHC 108

DUBLIN CITY COUNCIL v MCFEELY & ORS UNREP SUPREME 31.7.2012 2012 IESC 45 [TRANSCRIPT NOT AVAILABLE]

Sentencing – Contempt of court – Young offender – Appellant seeking to appeal against sentence – Whether contempt of court was criminal

Facts: The appellant is awaiting trial in the Central Criminal Court on a charge of rape. The date of the alleged offence was 23rd December, 2010, at which stage the appellant was aged fifteen years. The appellant was charged in January, 2013, and was admitted to bail subject to a number of conditions, including compliance with the terms of a HSE Care Plan. In February, 2013, there was an application to the District Court to revoke bail because of alleged breaches of the HSE Care Plan. A curfew was added to the bail conditions. In March 2013, the appellant was sent forward for trial to the Central Criminal Court. In July, 2013, there was an application to revoke bail because of alleged breaches of the curfew. While this issue was under consideration, the appellant spent two weeks in custody, but in August, 2013 bail was reinstated on the original terms. There was a further application for revocation which came before the court in October, 2014. Evidence was presented of persistent and flagrant breaches of the curfew on various occasions during July, August and September. A sentence of imprisonment was imposed on him in the Central Criminal Court for contempt of court in failing to comply with a condition of bail while awaiting trial. The appellant appealed to the Court of Appeal against the sentence, submitting that the breaches of the curfew at most amounted to a civil contempt, not accepting that whether there was a breach of an undertaking offered or a breach of a bail condition that had been imposed makes a material difference.

Held by Birmingham J that the power to imprison summarily applies only to criminal contempt in the face of the court and analogous situations, and this, it was submitted, was not such a case. Considering Dublin City Council v McFeely [2012] IESC 45, Birmingham J held that the trial judge in very clear and specific terms adverted to the issue of contempt and that the fact that the procedure had been initiated by the judge, entirely of his own motion, meant that there was a particular need for meticulous observance of fair procedures; insofar as the judge was dealing with breaches of undertakings given to him personally, it was important that there was no scope for the perception to develop, that he was prompted to deal in a precipitate manner with the situation by a slight to his dignity as trial judge. Birmingham J considered that the procedures followed seemed to have emphasised the desirability of expedition and firmness and resolution over consideration and deliberation. Birmingham J held that the breaches had been committed by a young person with no previous convictions and that would cause a court to consider carefully whether it was possible to avoid imposing a custodial sentence. The Court considered that the imposition of a prison sentence for contempt should not be considered lightly and before an immediate custodial sentence was imposed it would have been appropriate that consideration would have been given to whether a suspended sentence or a direction to undertake community service might have met the situation. If the court”s view was that only a prison sentence met the situation, then the question was whether, given that the court was dealing with a very young first offender, a very short sentence would meet the situation.

Birmingham J held that in all the circumstances, the Court while understanding and sympathising with the frustration of the trial judge in the face of the persistent breaches of bail conditions and undertakings is nonetheless of the view that the sentence imposed is not one that can be allowed stand. The appellant had been in custody for ten weeks which is the equivalent to a sentence somewhat in excess of three months imprisonment. In the circumstances the Court directed the release of the appellant and reinstated the bail conditions that previously applied save for the curfew that was removed by the Central Criminal Court in October, 2014.

Appeal allowed.

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Judgment of the Court of Appeal delivered on the 16th day of December 2014, by Birmingham J.

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1. In this case J. McD. appeals a sentence of imprisonment imposed on him in the Central Criminal Court on the 7 th October, 2014. The matter comes before this Court in somewhat unusual circumstances. The background to the present appeal is that the appellant is awaiting trial in the Central Criminal Court on a charge of rape. The trial date has been set for the 16 th February, 2015. The date of the alleged offence was the 23 rd December, 2010, at which stage the appellant was aged fifteen years, his date of birth being the 13 th December, 1995.

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2. The appellant was charged with the offence that he now faces on the 14 th January, 2013, and was admitted to bail subject to a number of conditions, including compliance with the terms of a HSE Care Plan. On the 25 th February, 2013, there was an application to the District Court to revoke bail because of alleged breaches of the HSE Care Plan. On this occasion a curfew was added to the bail conditions, which required the appellant to remain indoors at a specified location between 10.00 pm and 7.00 am. On the 11 th March 2013, the appellant was sent forward for trial to the Central Criminal Court. On the 31 st July, 2013, there was an application to revoke bail because of alleged breaches of the curfew. While this issue was under consideration, the appellant spent two weeks in custody, but on the 12 th August, 2013 bail was reinstated on the original terms.

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3. For completeness mention should be made of the fact that there was a further unsuccessful application to revoke bail in November 2013, but nothing turns on this. However, there was a further application for revocation which came before the court on the 7 th October, 2014 and it is with the outcome of that application that this Court is now concerned. On that occasion, evidence was presented of persistent, and it must be said, flagrant breaches of the curfew on various occasions during July, August and September.

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4. It should also be said that the appellant would contend that the curfew that he was subject to was onerous and impacted on his opportunity to pursue educational opportunities, to take up part time employment and to engage in various sporting activities. While a letter to this effect was written to the Garda Superintendent at Ballyshannon, there was no application ever brought by or on behalf of the appellant to lift or vary any of the bail conditions. That was so, notwithstanding that the recognisances entered into states in terms on its face that the accused may apply to the court at any time to have a condition of the recognisance varied or revoked.

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5. The unchallenged evidence of Garda Elaine Healy, on the 7 th October, 2014, puts beyond doubt that there were regular, persistent, indeed it might be said systematic breaches of the bail conditions. This cannot be lost sight of. Lest the references to suggested difficulties that the curfew was giving rise to, might mislead, it should be made clear that none of the breaches observed had anything to do with education or employment or sporting endeavours, but rather recorded him out and about on the streets of Bundoran in the early hours of the morning after nightclubs had closed.

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6. At an early stage in the proceedings on the 7 October, 2014, the learned trial judge made a significant intervention. He interjected as follows:-

"All right, I just want to put you on notice, having regard to the evidence I have heard so far, you are not just dealing with the revocation of bail, you are dealing with contempt in respect of which I have unlimited powers of fine and imprisonment."

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To this counsel for the defence responded:

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'Absolutely, Judge."

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7. On several occasions thereafter, counsel for the defence confirmed that he accepted this was a contempt issue, and said that he fully accepted the judge's view on that and did not dispute that this was a contempt. On one occasion, he went so far as to say, not just that he conceded that this was a contempt, but that he was asking the judge to treat it that way.

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8. A major focus for the defence, throughout the hearing, was to establish that the curfew was unnecessary, because it was not needed to prevent interferences with witnesses or to reduce the risk of flight, it was accepted that Mr. McD was not a flight risk.

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9. The question of what the response to a contempt could or should be was the subject of only one somewhat equivocal observation when counsel is quoted as saying:

"I think it shows contempt for the Court. I think it is not acceptable behaviour, but I...

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