DPP v Murphy
| Jurisdiction | Ireland |
| Judge | Mr Justice Diarmuid B. O'Donovan |
| Judgment Date | 20 November 2000 |
| Neutral Citation | [2000] IEHC 82 |
| Court | High Court |
| Docket Number | [1998 No. 487 SS],487/SS/1998 |
| Date | 20 November 2000 |
BETWEEN
AND
[2000] IEHC 82
THE HIGH COURT
Synopsis:
Bail
Bail; application to revoke; statutory interpretation; penal servitude; respondent sentenced to term of three years penal servitude on 27th April, 1997; respondent then admitted to bail pending the determination of a judicial review application in respect of that sentence; judicial review application refused on 1st March, 2000; respondent then voluntarily surrendered himself at prison but was refused admission and his cash bail was returned to him; applicant seeks orders revoking respondent's admission to bail and directing his return to prison to serve balance of sentence imposed; whether s.11, Criminal Law Act, 1997, has the effect of retrospectively altering the nature and condition of a sentence of penal servitude imposed prior to the passing of the Act; whether respondent had the legitimate expectation that the sentence of penal servitude imposed would expire three years later; s.21, Interpretation Act, 1937.
Held: Relief refused.
DPP v. Murphy - High Court: O'Donovan J. - 20/11/2000 - [2001] 1 IR 171 - [2001] 2 ILRM 334
The respondent was out on bail pending the outcome of a Judicial Review hearing and subsequent to his unsuccessful Judicial Review application the DPP sought his return to prison to complete the balance of a three year penal servitude sentence. The respondent contested the application by motion on a number of grounds including a declaration that section 11 of the Criminal Law Act 1997 did 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 1997 Act from penal servitude to one of imprisonment. The court considered a number of authorities opened to it and also considered the Interpretation Act 1937 and found that the respondent has a legitimate expectation that on the passing of the Criminal Law Act 1997 that his three year penal servitude sentence would come to an end. The applicant's case was dismissed.
Citations:
WOODS, STATE V GOVERNOR OF PORTLAOISE PRISON 108 ILTR 57
LANGAN, STATE V DONOGHUE 1974 IR 251
WOODS, IN RE 1970 IR 154
CRIMINAL LAW ACT 1997 S11(1)
CRIMINAL LAW ACT 1997 S11(5)
INTERPRETATION ACT 1937 S21
QUINLIVAN V GOVERNOR OF PORTLAOISE PRISON 1998 2 IR 113
MULLINS V HARTNETT 1998 4 IR 426
Judgment of Mr Justice Diarmuid B. O'Donovan delivered on the 20th day of November, 2000
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 93JR 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.
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.
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.
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 satisfied that they are true; insofar as...
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