DPP v McD

 
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[2014] IECA 18

[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]

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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 tothe 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 madeclear 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...

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