O'Driscoll v Governor of Cork Prison

• Jurisdiction: Ireland
• Judge: Justice Lynch
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-HC 1595
• Docket Number: Record No. 542 S.S./1987
• Court: High Court
• Date: 01 January 1989

1988 WJSC-HC 1595

THE HIGH COURT

Record No. 542 S.S./1987

Record No. 340 J.R./1987

O'DRISCOLL v. GOVERNOR OF CORK PRISON & ORS

BETWEEN

JAMES O'DRISCOLL

APPLICANT

AND

THE GOVERNOR OF CORK PRISON

RESPONDENT

BETWEEN

JAMES O'DRISCOLL

APPLICANT

AND

THE CIRCUIT COURT JUDGE AND THE CIRCUIT COURT REGISTRAR FORTHE COUNTY OF CORK

RESPONDENTS

Citations:

CUNNINGHAM, STATE V GOV MOUNTJOY PRISON 1987 ILRM 33

FLYNN V GOV MOUNTJOY UNREP BARRON 06.05.87 1987/2/653

MURPHY, STATE V KIELT 1984 IR 458

CUSSEN, STATE V BRENNAN 1981 IR 181

ROCHE, STATE V DELAP 1980 IR 170

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381, 1982 ILRM 590

COLLINS, STATE V RUANE 1984 IR 105

Synopsis:

CRIMINAL LAW

Sentence

Imprisonment - Commencement - Postponement - ~See~ Criminal Law, warrant, infra - (1987/542 SS - Lynch J. - 3/3/88)

|O'Driscoll v. Governor of Cork Prison|

CRIMINAL LAW

Warrant

Execution - Delay - Sentence - Imprisonment - Commencement - Postponement - The applicant pleaded guilty in the District Court to a charge that he had committed a summary offence; he was sentenced to serve three months imprisonment - He appealed to the Circuit Court against the sentence but, at the hearing of the appeal on 27/5/87 he withdrew the appeal and, because of personal domestic difficulties, he requested the judge to postpone to 1st July the commencement of the imprisonment - The applicant gave an undertaking that he would surrender to the appropriate authorities at 9 a.m. on 1/7/87 at Cork Courthouse - By his order the judge affirmed the conviction and order of the District Court but directed that the sentence was "not to take effect earlier than 9 a.m. on 1st July, 1987" - The applicant attended at the Warrant Office at the Courthouse, Cork, on 1/7/87 but the warrant in execution of his sentence of imprisonment had not been issued and the applicant was not taken into custody - The applicant returned to his home in Cork and made no further attempt to surrender himself to the authorities - On 30/9/87 the applicant was arrested and imprisoned pursuant to a warrant which had been issued on 2/7/87 - The applicant applied for judicial review and sought to quash the order of the Circuit Court judge and the warrant - He contended that the delay in executing the warrant rendered its execution unjust - The respondent explained that delay as having been due to administrative re-arrangements - Held, in dismissing the application, that the order of the Circuit Court did not direct that the imprisonment of the applicant was to commence on 1/7/87 or not at all - Held that the warrant and its execution were valid despite the delay and notwithstanding the fact that the warrant, being dated 2nd July, authorised imprisonment not before 1st July and the fact that it recited the date of the Circuit Court order as being 10/6/87 (the date of its engrossment) instead of 27/5/87 - (1987/542 SS - Lynch J. - 3/3/88)

|O'Driscoll v. Governor of Cork Prison|

DELAY

Warrant

Execution - ~See~ Criminal Law, warrant - (1987/542 SS - Lynch J. - 3/3/88)

|O'Driscoll v. Governor of Cork Prison|

1 Judgment of Mr. Justice Lynchdelivered the 3rd day of March 1988

2 In the first set of proceedings named above, that is, Record Number 1987/542 S.S. the Applicant seeks to quash two warrants for his imprisonment both dated the 2nd of July 1987 and purporting to be issued pursuant to an Order of the Circuit Court Judge for Cork made on the 27th of May 1987. In the second set of proceedings named above, namely, Record Number 1987/340 J.R. the Applicant seeks to quash the said Order of the Circuit Court Judge as drawn up and engrossed in writing.

3 The relevant facts are as follows.

4 The Applicant was charged with two offences committed on the 4th of December 1986 at Shandon Street, Cork, namely maliciousdamage to a motor vehicle in an amount of £70 and assault on the owner of the motor vehicle. On the 7th of April 1987 the Applicant pleaded guilty to both of those offences at Cork District Court and was sentenced to three months' imprisonment on each conviction, the sentences to run concurrently. The Applicant appealed against severity of sentence only and his appeals came on for hearing before the Circuit Court Judge for Cork on the 27th of May 1987.

5 On the 27th of May 1987 the Applicant was represented by Solicitor and Counsel and he withdrew his appeals against the said sentences of three months' imprisonment on each conviction but made a plea that the commencement of the imprisonment should be postponed to the 1st of July 1987 because of the illness of the Applicant's wife and the necessity for the Applicant to look after his young children. The Learned Circuit Court Judge acceeded to that plea and made an Order the exact terms of which as delivered orally are in dispute. The Learned Circuit Court Judge requested an undertaking from the Applicant which was duly given by the Applicant that he would surrender to the appropriate authorities at 9 a.m. on the 1st of July 1987 at Cork Courthouse. The Order of the Circuit Court as drawn up and engrossed in writing reads:-

"Affirm conviction and Order of the District Court. Sentences not to take effect earlier than 9 a.m. on 1/7/87."

6 In the Country Registrar's Circuit Court Book there appears in themargin:-

7 "Affirm. Sentence to take effect from 1/7/87. 9...