Heaphy v The Governor of Cork Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 04 May 2018
• Neutral Citation: [2018] IECA 125
• Date: 04 May 2018
• Court: Court of Appeal (Ireland)
• Docket Number: Neutral Citation Number: [2018] IECA 125 [Court of Appeal number 2017/518] [High Court Record Number 2017 No. 143 SS]

[2018] IECA 125

THE COURT OF APPEAL

Whelan J.

Birmingham J.

Mahon J.

Whelan J.

Neutral Citation Number: [2018] IECA 125

[Court of Appeal number 2017/518]

[High Court Record Number 2017 No. 143 SS]

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.2 OF THE CONSTITUTION

BETWEEN

JASON HEAPHY

APPLICANT/APPELLANT

AND

THE GOVERNOR OF CORK PRISON

RESPONDENT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

NOTICE PARTY

Order of certiorari – Jurisdiction – Unlawful detention – Appellant seeking an order of certiorari – Whether the trial judge erred in concluding that the failure to comply with the provisions of s. 99(2)(b) of the Criminal Justice Act 2006 in the sentence order made at Cork Circuit Court on 25th February 2008 was not such as to deprive that Court of jurisdiction under s. 99(10) of the 2006 Act to revoke the suspended portion of the 2008 order on the 24th November 2015

Facts: The appellant, Mr Heaphy, appealed to the Court of Appeal against the judgment and orders made in the High Court by Faherty J (the trial judge) on 31st July 2017 refusing an application for an order of certiorari in relation to an order made by Judge Riordan at Cork Circuit Court on 24th November 2015 on the basis that it was bad on its face. The appellant further appealed the determination of the trial judge that Judge Riordan was vested with jurisdiction to make an order activating part of a sentence which had been previously suspended by Judge Moran at Cork Circuit Court on 25th February 2008. The appellant also contested the finding of the trial judge that he was not in unlawful detention and the determination of the trial judge that the relief sought pursuant to Article 40.2 of the Constitution be refused. The appellant relied on four separate grounds to challenge the determination of the High Court: (i) the trial judge erred in concluding that the failure to comply with the provisions of s. 99(2)(b) of the Criminal Justice Act 2006 in the sentence order made at Cork Circuit Court on 25th February 2008 was not such as to deprive that Court of jurisdiction under s. 99(10) of the 2006 Act to revoke the suspended portion of the 2008 order on the 24th November 2015; (ii) the trial judge erred in holding that there exists a written record of the 2008 order; (iii) the trial judge erred in holding that Judge Riordan had before him on 24th November 2015 a written record of the 2008 order; (iv) the trial judge erred in holding that the term of the bond entered into by the appellant on 25th February 2008 had in fact run from the date of his release in 2013 as opposed to the date of his incarceration pursuant to the 2008 order.

Held by the Court that the trial judge was correct in determining that there existed a written record of the order made in the Circuit Court on 25th February 2008. The Court held that the trial judge was correct in determining that the Circuit Judge had before him on 24th November 2015 sufficient probative evidence as constituted a valid record of the terms of the sentence imposed on 25th February 2008 when he came to determine activation of the partly suspended sentence and the triggering offences. The Court held that the trial judge was correct in finding as a fact that the term of the bond entered upon by the appellant before the Circuit Court on 25th February 2008 was expressed to run from the date of his release which transpired to be the 15th February 2013 and not from the date of his initial incarceration as he had contended. The Court held that entitlement to an order of habeas corpus was not made out. The Court held that the appellant was not entitled to an order pursuant to O. 84, r. 21 of the Rules of the Superior Courts extending time for the bringing of the within application seeking judicial review having due regard to the principles of proportionality and reasonableness. The Court was prepared to find, insofar as it was necessary, that any error on the part of the sentencing judge in 2008 was one made within jurisdiction on the available facts. The Court held that, while that part of the sentence imposed on 25th February 2008 which sought to partly suspend the sentence being imposed by the trial judge was not entirely in accordance with the mandatory requirements to be found in s. 99(2) (b) of the 2006 Act, this did not result in any deficit of the fundamental requirements of justice; the sentence imposed had a clear and lawful foundation.

The Court held that it would dismiss the appeal on all grounds.

Appeal dismissed.

JUDGMENT of Ms. Justice Máire Whelan delivered on the 4th day of May, 2018

1 This is an appeal by the appellant against the judgment and orders made in the High Court by Ms. Justice Faherty (hereinafter ‘the trial judge’) on 31st July 2017 refusing an application for an order of certiorari in relation to an order made by His Honour Judge David Riordan at Cork Circuit Court on 24th November 2015 on the basis that it was bad on its face. The appellant further appeals the determination of the trial judge that Judge Riordan was vested with jurisdiction to make an order activating part of a sentence which had been previously suspended by His Honour Judge Patrick Moran at Cork Circuit Court on 25th February 2008. The appellant also contests the finding of the trial judge that he is not in unlawful detention and the determination of the trial judge that the relief sought pursuant to Article 40.2 of the Constitution be refused.

The facts

2 The facts are set out in extensive detail in the judgment of the trial judge delivered on 31st July 2017 and it is not proposed to rehearse them save to the extent necessary.

3 The appellant was born on 20th October 1984. In March 2007 the appellant was found to be in possession of a large quantity of cocaine in Cork city and arrested and charged. On 25th February 2008 at Cork Circuit Court he entered a plea of guilty in respect of eight counts on the indictment in relation to the said charges. He was sentenced on the said date to a term of ten years imprisonment by His Honour Judge Patrick Moran in respect of count no. 3 on the indictment, being possession of a controlled drug for the purpose of selling or otherwise supplying to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993 made under s. 5 of the Misuse of Drugs Act, 1977, contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act, 1999) (and as amended by s. 81 of the Criminal Justice Act, 2006) and s. 27 (as amended by s. 5 of the Criminal Justice Act, 1999 and as amended by s. 84 of the Criminal Justice Act, 2006) of the Misuse of Drugs Act, 1977.

4 The sentencing judge suspended three years of the ten year sentence upon the appellant entering into a bond to keep the peace and be of good behaviour for a period of three years. In dispute in these proceedings are the precise terms upon which part of the said sentence was suspended. It is common case that a bond was entered into orally by the appellant in court at the original sentencing hearing on 25th February 2008. The appellant was further disqualified from driving for a period of two years in respect of count no. 6 (dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 as amended). All other counts were marked as ‘taken into consideration’.

5 The partly suspended sentence imposed at the Circuit Court on 25th February 2008 was backdated to 25th October 2007.

6 At the level of principle, it is noteworthy that the appellant did not seek to challenge the validity or severity of the sentencing order made in February 2008 or the validity of his detention thereunder.

7 Whilst serving the custodial aspect of the 2008 sentence the appellant was convicted of possession of a mobile phone and sentenced to one month imprisonment to be served consecutively to the sentence he was then serving. Subsequently, the appellant was released from custody on 15th February 2013.

8 The key contentions advanced on behalf of the appellant at the hearing in the High Court were as follows:

(i) There did not exist a valid written record of the sentencing order made at Cork Circuit Court on 25th February 2008.

(ii) In this regard, it was alleged that, as a result, Judge Riordan did not have before him at the subsequent activation/triggering sentencing hearings on 24th November 2015 a valid record of the order made by Cork Circuit Court on 25th February 2008 when revoking the suspended aspect of that sentence.

(iii) It was further contended that a bond entered into by the appellant before Cork Circuit Court on 25th February 2008 to keep the peace and be of good behaviour for a period of three years ran from the date of his imprisonment and not from the date of his release from prison on 15th February 2013.

(iv) The Appellant contended that there had been a failure by the original sentencing judge in pronouncing sentence made at Cork Circuit Court on 25th February 2008 to comply with the strict requirements of s. 99 (2)(b) of the Criminal Justice Act, 2006 and as a result the Circuit Court lacked any jurisdiction on 24th November 2015 to revoke the suspended portion of the 2008 sentence pursuant to s. 99 (10) of the 2006 Act.

9 The respondent opposed the application on all grounds.

The High Court Judgment

10 The trial judge noted that the judicial review proceedings had been instituted by the appellant arising from the judgment delivered in the High Court on 19th April 2016 in Moore v. Ireland [2016] IEHC 244 in which s. 99 (9) and (10) of the 2006 Criminal Justice Act were deemed unconstitutional. Subsequently, the decision of McDermott. J. in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278, delivered in the High Court on 28th July 2016, was upheld on appeal by this Court. The practical consequence of the decision in Clarke was that persons in custody on foot of activated sentences were not automatically entitled to benefit from the...