Forde v Judge Doyle

JudgeBirmingham P.
Judgment Date05 December 2018
Neutral Citation[2018] IECA 382
Docket NumberNeutral Citation Number: [2018] IECA 382
CourtCourt of Appeal (Ireland)
Date05 December 2018

[2018] IECA 382


Birmingham P.

Birmingham P.

McCarthy J.

Kennedy J.

Neutral Citation Number: [2018] IECA 382

[2018 No. 54]


Crime & sentencing – Practice –Sentencing for indictable offence – Failure to pay fine ordered by way of sentence

Facts: The first respondent had pled guilty to a count of attempted evasion of excise duty. The sentencing judge had declined to impose a custodial sentence but ordered a fine to be paid. The time set aside for payment had elapsed and the High Court had granted an order of certiorari quashing a committal warrant. The DPP now sought to appeal.

Held by the Court, that the appeal would be allowed. The Court was persuaded that the decision that the first respondent would serve a term of imprisonment in the event of default was taken correctly by the sentencing Judge. The actions of the Court Service and their officials in drawing up a committal warrant were merely giving effect to the Judge’s order.

JUDGMENT of Birmingham P. delivered on the 5th day of December 2018

This case addresses the question of what should happen in circumstances where, after a conviction or a plea of guilty to an indictable offence, the Circuit Court decides to deal with a matter by imposing a fine to be paid within a certain timeframe and where that time elapses without payment.


The matter comes before the Court as an appeal by the Director of Public Prosecutions from a decision of the High Court (Murphy J.) of 28th November 2017 quashing, by way of certiorari, a committal warrant issued in respect of Mr. Ignatius Forde (the applicant/accused).


The background to this case is to be found in the fact that the accused was charged with the offence of attempted evasion of Excise Duty pursuant to s. 119(2) and (3) of the Finance Act 2001. The accused pleaded guilty and was sentenced by the second named respondent on 19th March 2013. At the sentence hearing, counsel for the applicant/accused urged the sentencing judge to exercise her discretion by not imposing a custodial sentence and, in his plea in mitigation, counsel for the accused referred to the accused's limited means and urged the judge to mitigate the fine to the maximum extent possible. In response, the Judge imposed a fine of €79,054.63 which she then mitigated by 50%, the maximum amount allowable by law, resulting in a fine of €39,527.32. Counsel for the accused indicated that twelve months would be sufficient time for the accused to discharge the fine. The Circuit Court allowed a period of twelve months to pay said fine, and, as authorised by s. 195 of the Criminal Justice Act 2006, the sentence provided for one year's imprisonment in default of payment. At the end of the sentencing hearing, counsel on behalf of the Director sought liberty to apply and this would seem to have been granted. No part of the fine was paid within the twelve months allowed. It should also be noted that the sentence was not appealed.


In May 2014, two months after the period for payment had elapsed, the accused was attending the Circuit Criminal Court in relation to other matters and the Director sought to re-enter the matter before the court. Counsel for the accused admitted that the fine had not been paid. The Circuit Court Judge sitting that day refused to deal with the matter as he was not the original sentencing Judge and stated that the ‘default of payment process would take its normal course’.


On 8th September 2014, a committal warrant was issued for the arrest and detention of the accused as he had failed to pay the fine within the time permitted. The warrant was signed by a nominated signatory of the County Registrar, a person in the employ of the Courts Service and sets out the following:

‘WHEREAS at a sitting of the Carlow Circuit Criminal Court held at The Courthouse, Carlow on the 19th date of March 2013 IGNATIUS FORDE was convicted of an offence on Count No. 2: Evasion of excuse [sic] duty contrary to Section 119(2) and (3) of the Finance Act 2001 as amended by Section 138 of the Finance Act 2002 and was ordered to pay as penalty therefore [sic] the sum of €39527.32 on Count No.2 such sum to be paid within 12 months from the 19th of March 2013 in default of payment within that time HE be imprisoned for a period of 1 year unless said sum be sooner paid AND WHEREAS no such sum whatever has been paid on foot of the penalty this is to command you to whom this Warrant is addressed to lodge the said IGNATIUS FORDE of 54 BURREN STREET, CARLOW in the prison at THE MIDLANDS PRISON, to be imprisoned for the period of 1 YEAR unless the said sum of €39527.32 be sooner paid and for so doing this present Warrant shall be sufficient authority to all whom it may concern’


On 5th March 2015, the accused was arrested on foot of the aforementioned committal warrant and lodged in the Midlands Prison. On 10th March 2015, the accused sought to have his case re-entered before the second named respondent. Having heard submissions, the court stated that it was functus officio and did not have jurisdiction to deal with the matter.


On 20th March 2015, an application was made before the President of the High Court pursuant to Article 40.4 of the Constitution. The High Court refused to direct an inquiry into the lawfulness of the accused's detention but granted leave to the accused to challenge the committal warrant by means of judicial review.


In the High Court, the Director, a notice party to the proceedings, sought to defend the actions of the second and third respondents by acting in the role of legitimus contradictor. This was not the subject of any challenge by the accused, but was regarded by the Court as inappropriate in the case of the third named respondent who, as an independent statutory body, could have defended itself. This has not really featured as an issue before this Court, the appellant/accused taking the view that what the High Court Judge had to say in that regard was obiter. For my part, I do not see that the role played by the Director was an inappropriate one.


At the conclusion of the hearing, Murphy J. found that the committal warrant had been issued ultra vires by an employee of the Courts Service and therefore it must be quashed.

Grounds of Appeal

There are eight grounds of appeal that allege some error, either in fact or in law, on the part of the learned High Court Judge. They are set out as follows:

i. The High Court erred in law in quashing the warrant issued in respect of the accused;

ii. The High Court erred in law or in fact in finding that the warrant was issued by the Courts Service and/or that it was ultra vires the Courts Service to do so;

iii. The High Court erred in law or in fact in finding that the Director of Public Prosecutions was not the appropriate legitimus contradictor in these proceedings;

iv. The High Court erred in law in finding that the Circuit Court Judge not only had jurisdiction to revisit her order after the end of the sentence hearing if there was a failure to pay the fine, but was obliged to do so;

v. The High Court erred in law and/or in fact in finding that the fact of the Director “seeking liberty to apply” at the end of the sentence hearing amounted to an acceptance that the matter would have to be re-entered before the court before a warrant could issue following the failure of the accused to pay the fine;

vi. The High Court erred in law and/or in fact in finding that the accused did not have notice of...

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3 cases
  • DPP v Fogarty
    • Ireland
    • High Court
    • 10 May 2019
    ...required by the DPP if the fine were not paid, but rather a warrant would issue automatically from the court. 18 In Forde v. Judge Doyle [2018] IECA 382, the accused in this case was fined a sum of €39,527.32. The Circuit Court had allowed a period of twelve months to pay the said fine and......
  • Stokes v The Courts Service and Others
    • Ireland
    • High Court
    • 3 November 2023
    ...a person in the employ of the Courts Service. The accused was duly arrested and lodged in Mountjoy Prison.” 29 . In Forde v. Judge Doyle [2018] IECA 382 the High Court (Murphy J.) found that a committal warrant duly issued in this way had been issued ultra vires an employee of the Courts Se......
  • Boyle v DPP
    • Ireland
    • High Court
    • 3 March 2021
    ...on the Court of Appeal judgments in O'Brien v. Judge Coughlan and the DPP [2015] IECA 245 and Ignatius Forde v. Judge Doyle and the DPP [2018] IECA 382 as authority for this proposition. In Forde Birmingham P. wrote on behalf of the Court that: “As to the form of the warrant, I am satisfied......

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