Harvey v District Judge Leonard and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John Hedigan
• Judgment Date: 03 July 2008
• Neutral Citation: [2008] IEHC 209
• Court: High Court
• Date: 03 July 2008

[2008] IEHC 209

THE HIGH COURT

No. 1565 JR/2007

Harvey v District Judge Leonard v DPP

JUDICIAL REVIEW

BETWEEN

COLIN HARVEY

APPLICANT

AND

DISTRICT JUDGE CLAIRE LEONARD AND THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENTS

CRIMINAL JUSTICE ACT 2006 S99(9)

CRIMINAL JUSTICE ACT 2007 S60

MISUSE OF DRUGS ACT 1977 S21(4)

INTERPRETATION ACT 2005 S24

CRIMINAL JUSTICE ACT 2006 S99

O'CONNOR IRISH JUSTICE OF THE PEACE 2ED 1915 207

PALEY LAW & PRACTICE OF SUMMARY CONVICTIONS UNDER THE SUMMARY JURISDICTION ACTS 1848-1884 7ED 1892 203

SUGG v O'SULLIVAN UNREP FINLAY 23.6.1980 1980/10/1814

O'REILLY, STATE v DELAP UNREP GANNON 20.12.1985 1986/4/1341

STATE, DE BURCA v O HUADHAIGH & O'DONOVAN 1976 IR 85

PROBATION OF OFFENDERS ACT 1907

BURKE v DPP UNREP CHARLETON 16.4.2007 2007 IEHC 121

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL LAW

Sentence

Summary offence - Remand back before court that had imposed suspended sentence - Judicial review - Certiorari quashing decision to remand - Whether court exercising summary jurisdiction has jurisdiction to remand for consideration of suspended sentence - Severability of conviction and sentence - Whether conviction and sentence separate actions - Whether loss of benefit of probation legislation - Duty to comply with statutory provision - Discretion of court in absence of rules governing procedure - State (Sugg) v District Justice O'Sullivan (Unrep, Finlay P, 23/6/1980), State (O'Reilly) v District Justice Delap (Unrep, Gannon J, 20/12/1985) and State (de Burca) v O'hUadhaigh [1976] 1 IR 85 considered - Probation of Offenders Act 1907 (7 Edw 7, c 17), s 1 - Criminal Justice Act 2006 (No 26), s 99 - Criminal Justice Act 2007 (No 29), s 60 - Certiorari refused (2007/1565JR - Hedigan J - 3/7/2008) [2008] IEHC 209

Harvey v Judge Leonard

1 Judgment of Mr. Justice John Hedigan delivered on the 3rd day of July, 2008.

2 In these proceedings the applicant seeks:-

3 (1) An order of certiorari quashing the order of the first named respondent of the 9 ^th November, 2007, whereby she remanded the applicant pursuant to s. 99(9) of the Criminal Justice Act, 2006, as amended by s. 60 of the Criminal Justice Act, 2007, back before District Court 54 Dublin Metropolitan District, before which Court there had previously been imposed upon the applicant a suspended sentence.

4 (2) If necessary an order of certiorari quashing the purported order of the first respondent "convicting" the applicant of the said offence or in the alternative a declaration that that order is a nullity.

5 The applicant entered a plea of guilty at Dublin District Court 46 on the 9 ^th November, 2007, before the first named respondent in respect of a charge under s. 21(4) of the Misuse of Drugs Act, 1977. The applicant pleaded guilty and the prosecuting Garda gave a brief outline of the background facts. He also gave details of previous convictions and informed the first named respondent that on the 29 ^th May, 2007, at District Court 54, the applicant received a sentence of three months, suspended for twelve months. He also gave evidence of the applicant's forty two previous convictions.

6 (3) The first named respondent convicted the applicant but stated she would not impose sentence until after the matter was remanded back before Judge O'Donnell at Court 54 on the 11 ^th January, 2008, to allow him deal with the question of the suspended sentence. The first named respondent ordered that once the matter of the suspended sentence was dealt with before Judge O'Donnell, the matter would then be remanded back to her for sentence on the conviction which she had recorded against the applicant.

7 Leave to proceed by way of judicial review was given on the 26 ^th November, 2007.

8 The grounds upon which relief is sought may be summarised as follows:-

9 (a) The Judge had no jurisdiction to send the applicant back before a Court that had imposed the suspended sentence.

10 (b) The applicant was not at the time a convicted person.

11 (c) In matters of summary jurisdiction conviction is not severable from sentence.

12 (d) The Judge acted in excess of jurisdiction, erred in law and failed to comply with the principles of natural and constitutional justice.

13 The proceedings are opposed on the basis that the order was made within jurisdiction and in accordance with the requirements of s. 99(9) of the Criminal Justice Act, 2006, as amended by s. 60 of the Criminal Justice Act, 2007. It is contended by the respondents that the offence with which the applicant is charged is one that is triable summarily only and the applicant has been convicted in accordance with law. It is argued that there is nothing to prohibit the first named respondent from convicting and sentencing on two different occasions and making two different orders, i.e. one to convict before referring the matter to Court 54 and a further one sentencing him thereafter.

14 It is further expressly pleaded in opposing the application that the first named respondent has jurisdiction (pursuant to s. 24 of the Interpretation Act, 2005 or otherwise) to prescribe the procedure in relation to remanding the matter before another Court pursuant to s. 99(9) of the Act where no rules of Court and Court forms have been laid down specifically governing the procedure. The lack of specific rules and forms for this procedure does not limit in any way the duty on the first named respondent to comply with s. 99(9) but leaves the Judge with discretion as to how the duty is to be performed.

The Law

15 Section 99 of the Criminal Justice Act, 2006 , as amended by s. 60 of the Criminal Justice Act, 2007 provides:-

16 2 "(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

17 3 ....(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, the court before which proceedings for the offence...