DPP v Murphy

• Jurisdiction: Ireland
• Judgment Date: 20 November 2000
• Date: 20 November 2000
• Docket Number: No. 487 SS 1998
• Court: High Court

THE HIGH COURT

No. 487 SS 1998

IN THE MATTER OF AN APPLICATION FOR THE REVOCATION OF BAIL

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

KEITH MURPHY

RESPONDENT

Abstract:

Criminal law - Statutory interpretation - Estreatment of bail - Penal servitude - Whether period of penal servitude had expired - Whether legislation applied retrospectively - Whether terms of bail breached - Criminal Law Act, 1997 (No 14) section 11 - Penal Servitude Act, 1891 (54 & 55 Vict. c.69) - Interpretation Act, 1937 (No 38) section 21.

The respondent had been sentenced to a term of three years penal servitude in 1997. The respondent had brought judicial review proceedings in respect of the matter and pending the determination of these the respondent had been admitted to bail. Those proceedings, having been determined, the applicant sought an order revoking the admission to bail and an order directing the respondent to serve the balance of the original sentence. The respondent claimed that the term of penal servitude had been served and that section 11 of the Criminal Law Act, 1997 could not alter a sentence of penal servitude imposed before the coming into operation of the Act to one of imprisonment. O’Donovan J held that although the Criminal Law Act, 1997 abolished the punishment of penal servitude it could not be said to apply to a sentence passed before the Act. A term of penal servitude ran from the date of its imposition and accordingly the respondent had fully served the term in question. In addition the respondent was not in breach of the terms of his bail bond.

1 Judgment of Mr Justice Diarmuid B. O’Donovan delivered on the 20th day of November, 2000

2 By Notice of Motion herein dated the 10th day of October 2000, the Applicant claims ( inter alia);

• (a) An Order directing that the terms and conditions of the Respondent’s admission to bail ordered by this honourable Court on the 8th day of April 1988, pending the determination of the Respondent’s Judicial Review Application No 93 JR 1998 between Keith Murphy, Applicant, and the Director of Public Prosecutions and, by Order, his Honour Judge Patrick Moran, Respondent, be revoked.

• (b) An Order directing that the Respondent be returned to Mountjoy Prison in order that he complete the balance of the three year sentence imposed by Cork Circuit Criminal Court on the 23rd day of April 1997; this sentence being the subject matter of the said Judicial Review Application, which was unsuccessful and which concluded on the 1st day of March, 2000.

• (c) An Order directing that the cash lodgment in the sum of £5,000 lodged on behalf of the Respondent as a condition of his bail pending the determination of the Judicial Review proceedings aforesaid be estreated and/or forfeited

  and

• (d) such further or other Order as this Honourable Court shall deem to be just and meet, including an Order providing for the costs of this Application.

3 By a further Notice of Motion dated the 7th day of November 2000, the Respondent claims;

• (1) An Order releasing the Respondent from the bail set by this Honourable Court on the 8th day of April 1998 and all terms and conditions thereby imposed.

• (2) A declaration that the sentence of three years penal servitude imposed upon the Respondent on the 23rd day of April, 1997 has now been fully served by the Respondent.

• (3) A declaration that the Respondent did not breach the terms of his bail and that the sum of £5,000 paid as a condition thereof should not be estreated or forfeited by the Applicant.

• (4) A declaration that section 11 of the Criminal Law Act, 1997 does not have the effect of retrospectively altering the nature and condition of a sentence of incarceration imposed by a court of competent jurisdiction before the coming into operation of the said Act, from one of penal servitude to one of imprisonment.

• (5) A declaration that section 11 of the Criminal Law Act, 1997 does not have the effect of retrospectively altering the nature and condition of the sentence of penal servitude imposed on the Respondent on the 23rd of April, 1997 at Cork Circuit Criminal Court prior to the passing of the said Act.

  and

• (6) Such further or other Orders as this Honourable Court shall deem to be just and meet, including an Order providing for the costs of this Application.

4 The said Motions came on for hearing before me on Monday the 13th day of November 2000 and, in the light of the contents of the several Affidavits to which I was referred, I came to the following conclusions with regard to the facts of this case, namely;

• (a) That, on the 23rd day of April 1997, at a hearing of the Circuit Criminal Court in the County of Cork, the Respondent pleaded guilty to an offence of assault occasioning actual bodily harm in respect of which he was sentenced to a term of three years penal servitude to date from that date.

• (b) By Order of the High Court dated the 20th day of March 1998, it was Ordered that the Respondent do have leave to apply for an Order of Certiorari by way of application for Judicial Review in respect of the said sentence.

• (c) By Order of the High Court dated the 8th day of April 1998 it was Ordered that the Respondent be admitted to bail pending the determination of the Judicial Review proceedings aforesaid on condition ( inter alia) that;

  • (i) A sum of £5,000 was lodged in court and

  • (ii) In the event of the said Judicial Review proceedings being dismissed, the Respondent would surrender himself at Mountjoy Prison on such day and at such hour as may be specified by this Court

    and

• (d) By Order of the High Court dated the 1st day of March 2000, it was Ordered that the Respondent’s application for Judicial Review aforesaid be refused.

  Following the above events, it was submitted on behalf of the Applicant that the Respondent had had no contact with the authorities and, in particular, had made no effort to return to prison and that, therefore, he had failed to comply with the conditions of bail imposed by the said Order of the 8th of April 1998.

5 The facts of the case to which I have referred are, essentially, facts which are deposed to in an Affidavit of Derek O’Neill, a Legal Assistant in the Office of the Chief State Solicitor, sworn on the 16th day of October 2000 and, while I am...