Freeman v Governor of Wheatfield Place of Detention

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 16 November 2016
• Neutral Citation: [2016] IECA 342
• Docket Number: [C.A. No. 520 of 2015],Neutral Citation Number: [2016] IECA 342 Appeal No.: 2015/520
• Court: Court of Appeal (Ireland)
• Date: 16 November 2016

Jake Freeman

Respondent

- and -

The Governor of Wheatfield (Place of Detention)

Appellant

[2016] IECA 342

Neutral Citation Number: [2016] IECA 342

Appeal No.: 2015/520

THE COURT OF APPEAL

CIVIL

Detention – Drug offence – Sentencing – Appellant seeking the respondent to serve the balance of a four month sentence – Whether the un-served period of the sentence remained live

Facts: The respondent, Mr Freeman, was convicted of an offence under s. 15 of the Misuse of Drugs Act 1997 in the District Court on 28th September 2015. He was sentenced to four months imprisonment. The warrant on foot of which the respondent was committed to prison made no reference to the determination of the DPP that the matter be tried summarily. The respondent was duly lodged in prison on foot of the warrant. He sought and obtained an inquiry under Art. 40.4.2 of the Constitution in relation to his committal to prison on the basis that the failure to recite on the relevant committal warrant the fact that the DPP had elected to proceed summarily rendered the committal warrant bad on its face. The respondent was released from custody on foot of a 9th October 2015 order of the High Court (Noonan J) where it was found that the respondent’s detention was unsatisfactory. The appellant, the Governor of Wheatfield, appealed the order and judgment of the High Court to the Court of Appeal. The Court allowed the appeal. The respondent contended that the case was moot because the appellant had not sought or obtained a stay on the order of the High Court (or at any time subsequently) and that this had resulted in the four month prison sentence imposed by the District Court on 28th September 2015 continuing to run, and duly expiring by effluxion of time by late January 2016. The case returned to the Court at the behest of the appellant on foot of an application that the respondent should serve the balance of the four month sentence which was (as was subsequently found) incorrectly interrupted by the inquiry before the High Court. The appellant posed three questions, namely: (i) Does the Court have the power to direct the re-arrest of the respondent? (ii) Is the sentence spent? (iii) Is the matter moot? The appellant argued that the respondent should not reap a benefit from being freed from prison in the course of proceedings challenging his incarceration when said proceedings were ultimately unsuccessful.

Held by the Court that, in the circumstances of the case, where the respondent was released from prison by order of the High Court approximately two weeks into serving a legitimately imposed four month prison sentence (a sentence which the respondent acknowledged was legitimately imposed), and where the Court had reversed that decision, albeit at a point in time well after the said four month period has passed the un-served period of that sentence remained live and the respondent continued to be subject to it.

The Court held that the respondent should serve the balance of the four month prison sentence. The Court directed that the original warrant be reissued and amended to reflect the direction that the respondent serve the four month term of imprisonment as originally imposed by the District Court, with full credit for the period of that term already served. The Court held that the reissued warrant should be directed to the Governor of the prison wherein he, the appellant, was incarcerated. The Court held that the four month sentence, and more particularly, the un-served balance of that sentence was to be served concurrently with the sentence or sentences in respect of which the respondent was in custody. The four month sentence as originally imposed was not directed to be served consecutively with any other sentence, and in the absence of such direction the Court held that a presumption of concurrency applied, citing State (Blackhall) v Mangan [1953] 87 ILTR 65 and Carroll v Governor of Mountjoy Prison [2005] 3 IR 292).

Judgment approved.

Judgment of Mr. Justice Mahon delivered on the 16th day of November 2016

1 Mr. Freeman, the respondent, was convicted of an offence under s. 15 of the Misuse of Drugs Act 1997 (as amended) in the District Court (the Childrens Court) on 28th September 2015. He was sentenced to four months imprisonment. The warrant on foot of which the respondent was committed to prison made no reference to the determination of the DPP that the matter be tried summarily.

2 The respondent was duly lodged in prison on foot of the warrant. He sought and obtained an inquiry under Art. 40.4.2 of the Constitution in relation to his committal to prison on the basis that the failure to recite on the relevant committal warrant the fact that the Director of Public Prosecutions had elected to proceed summarily rendered the committal warrant bad on its face.

3 The respondent succeeded in his application to the High Court. The order and judgment of the High Court (Noonan J.) of 9th October 2015, it was found that ‘the said return to the said order dated the 7th October 2015 is insufficient to satisfy the detention of the Applicant as aforesaid doth order that the Applicant be released forthwith from such detention’.

4 The respondent was duly released from custody on foot of the said order of the High Court having served close to two weeks of the four month sentence at that point in time. The appellant appealed the ordered and judgment of the High Court to this court. Had the four month prison sentence run its course without interruption, the respondent would have completed serving his sentence by the end of January 2016, or indeed prior to that date in the event of being granted parole in accordance with normal practice. Undoubtedly, the prison term would have more than run its full course by the time this Court determined the appeal against the decision of Noonan J. on 15th June 2016.

5 This Court allowed the appeal. In the course of my judgment in that case, it is stated:-

‘Even if it was strictly necessary to so recite this on the face of the warrant (and which I do not believe to be the case), such a failure was, in the circumstances, of such a technical nature that its absence could not invalidate what was otherwise a perfectly good warrant.’

6 When the matter came before this Court for hearing, it was contended on behalf of the respondent that the case was moot because the appellant had not sought or obtained a stay on the order of the High Court (or at any time subsequently) and that this had resulted in the four month prison sentence imposed by the District Court on 28th September 2015 continuing to run, and duly expiring by effluxion of time by late January 2016. It was argued on behalf of the respondent that the Court should decline to entertain the appeal for this reason.

7 Having considered this aspect of the case, I stated in the course of my judgment:-

‘As to whether the case is indeed moot I do not express any definite view. In order to do so it would be appropriate to have further and more detailed submissions from both sides. If indeed the appeal is moot, I nevertheless believe it appropriate that this court should make a determination in relation to the substantive issue raised in the appeal particularly because that issue potentially affects other warrants issued on foot of District Court convictions, and it is therefore in the public interest that a determination be made in relation thereto.

8 The case has now returned to this Court at the behest of the appellant on foot of an application that the respondent should serve the balance of the four month sentence which was, (as was subsequently found), incorrectly interrupted by the inquiry before the High Court. The appellant poses three questions, namely:-

(i) Does this Court have the power to direct the re-arrest of the respondent?

(ii) Is the sentence spent?

(iii) Is this matter moot?

9 It is argued on behalf of the appellant that the respondent should not reap a benefit from being freed from prison in the course of proceedings challenging his incarceration, but which said proceedings were ultimately unsuccessful.

10 Subsequent to his unsuccessful application to the High Court on 9th October 2015, and which resulted in his immediate release from prison, the appellant was convicted of separate offences and is currently serving a sentence in relation...