Heaphy v DPP

JudgeMs. Justice Faherty
Judgment Date31 July 2017
Neutral Citation[2017] IEHC 616
Date31 July 2017
CourtHigh Court
Docket Number[2016 No. 464 J.R.] [2017 No. 143 SS]




[2017] IEHC 616

[2016 No. 464 J.R.]

[2017 No. 143 SS]


Art. 40.4.2 of the Constitution – Unlawful detention – Reactivation of suspended sentence post-conviction – Form and Content of order – Lack of jurisdiction – Fair procedures – S. 99 of the Criminal Justice Act, 2006

Facts: The applicant challenged his conviction order made by a learned Circuit Court Judge. The applicant claimed that the learned judge had no jurisdiction to convict him under s. 99 of the Act of 2006 after revoking his suspended sentence for the commission of the triggering offence. The applicant argued that the learned Judge had purported to reactivate the suspended sentence in circumstances where the conditions of the suspension, namely to keep peace from three years from the date of the said order had expired. The applicant also took issue with the form of the order under which he was sentenced for 10 years' imprisonment with the suspension of the final three years.

Ms. Justice Faherty held that the detention of the applicant was lawful. The Court held that the condition of suspension of the 10 years' imprisonment imposed upon the applicant was not spent as the applicant was to keep peace and good behaviour for a period of three years post-conviction release and the triggering offence was committed during that three-year period. The Court noted that the earlier order though, was an oral order, the proceedings of that transcribed order bearing the seal of the court and the sign of the Judge was before the learned Circuit Judge when he proceeded to reactivate the suspended sentence, and hence, there was no fundamental flaw in the learned Circuit Court order.

JUDGMENT of Ms. Justice Faherty delivered on the 31st day of July, 2017

In the proceedings herein, the applicant challenges the lawfulness of an order of the Circuit Court made on 24th November, 2015 whereby a three year suspended part of a ten year sentence imposed on 25th February, 2008, was re-activated, pursuant to the provision of s. 99 of the Criminal Justice Act, 2006, ('the 2006 Act') upon the conviction of the applicant for offences committed in May, 2015.


On 25th February, 2008, in proceedings entitled as between the respondent in the within judicial review proceedings and the applicant and bearing the record no. CK 000224/2007, the applicant, having pleaded guilty, was sentenced to ten years imprisonment for the possession of cocaine (pursuant to s. 15A of the Misuse of Drugs Act, 1977 (as inserted by s. 4 of the Criminal Justice Act, 1999) and s. 27 of the Misuse of Drugs Act, 1977 (as amended by s. 5 of the Criminal Justice Act, 1999). The sentence was backdated to 25th October, 2007. The final three years were suspended on the applicant's undertaking to keep the peace and be of good behaviour towards all the people of Ireland for a period of three years. The finer points of the bond is an issue in the within proceedings and are addressed later in this judgment.


On 15th February, 2013, the applicant was released from custody on foot of the 2008 proceedings, which had been extended by a one month consecutive sentence by reason of a 2011 mobile telephone offence. Post his release, the applicant committed various offences under the Road Traffic Acts in respect of which he was ultimately sentenced, after appeal to the Circuit Court, to six months imprisonment which was suspended in its entirety. There was no reliance on s. 99 (9) of the 2006 Act to reactivate the suspended sentence which was imposed on 25th February, 2008.


On 4th May, 2015, the applicant was found in possession of controlled drugs. On 11th November, 2015, after a six day trial, the applicant was found guilty of two counts in the indictment regarding the unlawful possession of controlled drugs for the purpose of selling or otherwise supplying them to another or others in contravention of the Misuse of Drugs Regulations 1988 and 1993 made under s. 5 of the Misuse of Drugs Act, 1984, and contrary to ss. 15 and 27 of the Misuse of Drugs Act, 1977. The applicant was also found guilty of two offences contrary to s. 3 of the Misuse of Drugs Act, 1977, on the same date.


On 24th November, 2015, the Circuit Court (Judge Riordan) exercised the power pursuant to s. 99 (10) Criminal Justice Act 2006, as amended ('the 2006 Act') to revoke the earlier three year suspended portion of the sentence handed down on 25th February, 2008. There was no objection made to the application to revoke. Judge Riordan then sentenced the applicant to three years imprisonment in respect of each of the two s. 15 offences ('the triggering offences') which sentences were ordered to run concurrently with one another, but consecutively to the revoked suspended sentence. (Tab 4, para.9)


On 8th December, 2015, the applicant lodged a notice of appeal against conviction and sentence for the triggering offences. No appeal was prosecuted under s. 99 (12) of the 2006 Act against the decision to revoke the suspended portion of the 2008 sentence.

The judicial review

On 19th April, 2016, judgment was delivered by Moriarty J. in Moore v. Ireland [2016] IEHC 244 in which s. 99 subs. (9) and (10) of the 2006 Act were deemed unconstitutional.


On 11th July, 2016, leave was granted to the applicant to seek review of the orders made by Judge Riordan on 24th November, 2015. The grounds on which the applicant relied for leave to seek certiorari of the order made on 24th November, 2015, were that the sentences imposed were made in breach of his constitutional rights and/or in excess of the jurisdiction of the Circuit Court as a consequence of which he was unlawfully detained. It is acknowledged that the judicial review proceedings were initiated on the back of the decision of Moriarty J. in Moore.


Since the decision of Moriarty J. in Moore, the extent to which other persons in custody on foot of sentences reactivated under s. 99 (9) and (10) can rely on Moore has been the subject of consideration in a number of cases, including Clarke v. The Governor of Mountjoy Prison [2016] IEHC 278 (27th May 2016), Gheorge Pasare (application for habeas corpus) [2016] IEHC 312 (9th June 2016), Edward O'Sullivan (application for habeas corpus) [2016] IEHC 311 (9th June 2016), Foley v. The Governor of Portlaoise Prison [2016] IECA 411, Ryan v. the Director of Public Prosecutions [2016] IEHC 380, Larkin v. The Governor of Mountjoy Prison [2016] IEHC 680. On, 28th July, 2016, the decision of McDermott J. in Clarke v. Governor of Mountjoy Prison was upheld by the Court of Appeal.


The net effect of these judgments is that other persons in custody on foot of reactivated orders should not automatically benefit from the findings of unconstitutionality made in the Moore case and that each case fell to be decided on its own facts. The cases identify a range of relevant facts which include whether an appeal was taken, whether objection was made before the reactivation of the sentence, whether there was a guilty plea or not on the triggering offence and whether finality had been reached in respect of the triggering offence.


Counsel for the applicant acknowledges that having regard to the principles developed in the aforesaid recent case law, the applicant does not seek to identify factors in his case which would allow him to succeed in these proceedings by reason of the unconstitutionality of s. 99 (9) and (10). Accordingly, insofar as the applicant relied on Moore, that aspect of his challenge falls away.


However, it is the applicant's case that quite apart from the considerations flowing from the unconstitutionality of s. 99(9) and (10), which it is acknowledged prompted the within judicial review proceedings, the applicant's detention is unlawful on a number of grounds.


The first of the arguments upon which the applicant now relies in support of his contention that his detention is unlawful was advanced in February, 2017, essentially on the eve of the hearing of the challenge which the applicant brought on foot of Moore.


It is common case that in July, 2016, for the purposes of bringing the within judicial review proceedings the applicant's solicitor, Ms Hallahan, took up what is described in the statement of grounds as 'copies of the said orders of 25 February, 2008 and 24 November, 2015', exhibited as 'DH1' and 'DH2' in her affidavit sworn 7th July, 2016.


The judicial review proceedings were scheduled for hearing on 3rd February, 2017. On 2nd February, 2017, Ms. Hallahan swore an affidavit for the purpose of grounding an application for an inquiry pursuant to Article 40.2 of the Constitution into the lawfulness of the applicant's detention at Cork prison.


In her 2nd February, 2017 affidavit, Ms. Hallahan addressed the orders which were exhibited in her earlier affidavit, as follows:

'While the 2008 Order records a ten year sentence and records the suspending of the final three years of same, it is clear from the face of the order that the condition of suspension specified by the sentencing judge is that the Applicant be of good behaviour for three years "from this date" which I read as being the date of the Order (namely, the 25th February, 2008). Accordingly, I believe and I am advised that when the offences for which the Applicant was convicted in November, 2015, were committed the condition of good behaviour specified in the Order was not breached as the term of that condition had ended. I note that the Committal Warrant on foot of which the Applicant is detained recites the condition of suspension of sentence imposed in 2008 incorrectly as being " that he will keep the...

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