Foley v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 21 December 2016
• Neutral Citation: [2016] IECA 411
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2016] IECA 411
• Date: 21 December 2016

[2016] IECA 411

THE COURT OF APPEAL

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2016] IECA 411

2016/349

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUION OF IRELAND

Between/

Anthony Foley

Appellant

- and–

The Governor of Portlaoise Prison

Respondent

Detention – Finality principle – Error in law – Appellant seeking an inquiry under Art. 40.4.2 of the Constitution – Whether appellant was entitled to benefit from declarations of unconstitutionality

Facts: The appellant, Mr Foley, applied to the High Court for an inquiry under Art. 40.4.2 of the Constitution. The inquiry was heard by McDermott J on 25th May 2016. In his reserved judgment delivered on 14th June 2016, McDermott J refused the application. The appellant appealed to the Court of Appeal against the entirety of that judgment. The appellant's grounds of appeal were as follows: (i) The High Court judge erred in law in his interpretation and application of the established case law (primarily A v Arbour Hill) to the facts of this case; (ii) The judge incorrectly applied "the rule in A v Arbour Hill", the appellant having submitted that on the face of the rule established by the Supreme Court in that case, that this rule did not apply to the appellant having regard to the circumstances of this case; (iii) The judge erred in finding that the appellant did not impugn the conduct of the prosecution on any grounds in law which may be open to him before the case reaches finality, on appeal or otherwise; (iv) Contrary to the judge's analysis the appellant was not seeking to rely on the finality principles set out in A v Arbour Hill; (v) The warrants purported to justify the appellant's detention suffer from fundamental errors on the face of the record in that they refer to s. 99(9) and s. 99(10) of the Criminal Justice Act 2006 which said provisions are repugnant to the Constitution and void abi nitio; (vi) The public policy considerations which are extensively outlined in A v Arbour Hill were set out to justify the finality principle and were not intended to constitute free standing basis for refusing to give a person challenging his detention the benefit of the declaration of repugnancy; (vii) The judge erred in finding that the principle of finality as stated in A v Arbour Hill applied to the appellant having found, erroneously, that the appellant's case had reached finality without the appellant have impugned the bringing or the conduct of the prosecution; (viii) In the alternative, if the judge was correct in finding that rule in A v Arbour Hill did apply to the appellant, he erred in failing to conclude that the appellant, on the singularly unusual facts of his case fell within the exceptions to the rule in A; (ix) The judge erred in finding the differences and the prejudice identified in the decision of Moore v Ireland [2016] IEHC 244 and the prejudice identified by the appellant in his case disentitled the appellant to relief; (x) The judge erred in attaching significance to the appellant's plea of guilty to the "trigger" offences; (xi) The judge erred insofar that he found that the appellant acquiesced in the process whereby the sentence was activated; (xii) The judge erred in law in his understanding of the type of "conduct" that is required to deny an appellant relief to which he is otherwise entitled; (xiii) The continued detention of the appellant gives rise to a demonstrable injustice of a fundamental nature; (xiv) The judge erred in concluding that it was only in the most exceptional cases that an appellant may secure his release post-conviction under Art. 40 and it should only be in the most exceptional circumstances that a declaration of invalidity within the rules set out in A v Arbour Hill should apply retrospectively; (xv) The judge erred in concluding that there was any onus on the appellant to demonstrate circumstances which establish such a default of the fundamental requirements and fair procedures that would justify his release.

Held by Mahon J that the appellant was not entitled to benefit from the declarations of unconstitutionality in Moore in relation to subsections (9) and (10) in a manner which would serve to undermine or invalidate the activation of his five year suspended sentence at a time approximately two years prior to the decision in Moore and at a considerable remove after the conclusion of his criminal proceedings. Mahon J was also satisfied in the circumstances that the institution by the appellant of civil proceedings in July 2014, some six months following the conclusion of the criminal proceedings, could not reopen the retrospectivity aspect of the decision in Moore in a manner which could undermine or invalidate the activation of the five year suspended sentence, or the basis of his imprisonment in consequence of such activation.

Mahon J held that he would dismiss the appeal.

Appeal dismissed.

JUDGMENT delivered by Mr. Justice Mahon on the 21st day of December 2016

1 The application for an inquiry under Art. 40.4.2 of the Constitution was heard by the High Court (McDermott J.) on 25th May 2016. In his reserved judgment delivered on 14th June 2016, McDermott J. refused the application. The appellant has appealed against the entire of that judgment.

2 The background facts and the chronology of events relevant to the application to the High Court are set out in detail in the judgment under appeal. Therefore I propose only to refer to them briefly in this judgment. On 11th October 2006 the appellant was sentenced at Dublin Circuit Criminal Court in respect of three offences, one concerning the handling of stolen property and two of false imprisonment. Two of the offences were committed on 12th October 2005, and one was committed on 25th January 2005. In respect of the first offence, the appellant was sentenced to twelve months imprisonment and in respect of the second and third offences, to terms of seven years imprisonment. The second and third offences were committed when the appellant was on bail for the first offence, so that the seven year sentences were directed to be served consecutively to the twelve months sentence. The total eight year sentence was however suspended on conditions for a period of five years. An application for a review of that sentence pursuant to s. 2 of the Criminal Justice Act 1993 was made by the DPP to the Court of Criminal Appeal, and that Court, on 19th April 2007, while upholding the total eight year term directed that only the final five years should be suspended, and subject to certain conditions. The five year suspended element of the sentence was for a period of five years from the date of release from the initial three year custodial term. The necessary bond was duly entered into before the Governor of the Prison prior to his release from prison. Subsequently, and following his release from prison, and within the period of the suspended sentence, the appellant was convicted of handling stolen property, on 19th August 2009. He was remanded to the Court of Criminal Appeal under s. 99(9) of the Criminal Justice Act 2006 (as amended). He was also convicted on 16th September 2009 for possession of a screwdriver with the intention that it be used in connection with the theft of property from a motor vehicle and likewise, he was remanded to the Court of Criminal Appeal pursuant to s. 99(9) of the 2006 Act in respect of that conviction.

3 An aspect of the case which was dealt with on 19th October 2011 by the Court of Criminal Appeal was the appellant's claim that he ought to properly have been sent back to the Circuit Criminal Court, rather than the Court of Criminal Appeal, in respect of the applications to activate all or part of the five year suspended sentence. The Court of Criminal Appeal proceeded to revoke the five year suspended sentence resulting in the appellant being sent back to prison. He continues to serve that sentence, but is expected to be released shortly from prison.

4 The Court of Criminal Appeal however also granted a certificate under s. 29 of the Courts of Justice Act 1924 certifying that the case involved a point of law of exceptional public importance namely:-

'Where the Court of Criminal Appeal has varied a sentence pursuant to s. 2 of the Criminal Justice Act by wholly or partly suspending it, is the Court of Criminal Appeal the appropriate Court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99(10) of the Criminal Justice Act 2006, as amended?'

5 The Supreme Court on 23rd January 2014, answered the question posed by the Court of Criminal Appeal in the affirmative.

6 On 9th July 2014 the appellant instituted declaratory proceedings by way of plenary summons seeking, inter alia, a declaration that s. 99(9)(10) and (12) of the Criminal Justice Act 2006 (as amended) are invalid having regard to the provisions of the Constitution and, in particular '(to the) Preamble Articles 34, 38 and 40 thereof and any rights implied therein'. The proceedings also sought a declaration that s. 29 of the Courts of Justice Act 1924 (as amended) was unconstitutional insofar as it delimits an appeal under s. 99(12) of the Criminal Justice Act 2006 (as amended) from the Court of Criminal Appeal to the Supreme Court. An Order was also sought directing the release of the appellant from his detention in the event that it is established that there has been a breach of his constitutional rights with respect to his ability to appeal his sentence in that no provision exists for him to appeal. In these proceedings, following the delivery of a statement of claim, a defence was delivered on 21st November 2014. No further step has been taken in relation to the substantive issue in these proceedings since that time.

7 In 2016 the High Court (Moriarty J.), in Moore and ors. v. DPP and ors. [2016] IEHC, 244, ss. (9) and (10)...