Howard v District Judge Early and DPP

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 04 July 2000
• Neutral Citation: [2000] IESC 34
• Court: Supreme Court
• Date: 04 July 2000

HOWARD v. JUDGE EARLY & DIRECTOR OF PUBLICATIONS

JUDICIAL REVIEW

BETWEEN

SHARON HOWARD

APPLICANT/APPELLANT

AND

DISTRICT JUDGE WILLIAM EARLY

RESPONDENT

AND

DIRECTOR OF PUBLICATIONS

NOTICE PARTY

[2000] IESC 34

Denham J.

Murray J.

Hardiman J.

Appeal No. 304/99

THE SUPREME COURT

Subject Headings:

JUDICIAL REVIEW: declaratory orders

The applicant had been remanded in custody for three weeks on foot of a District Court order. Subsequently it transpired that the maximum penalty applicable was a fine of £250. Habeas corpus proceedings were initiated in respect of the detention. The applicant was also held on foot of two warrants and the habeas corpus proceedings were dismissed. The applicant was however given leave to apply for judicial review in respect of the District Court order. Kelly J in the High Court dismissed the judicial review proceedings and the applicant appealed. Denham J, delivering judgment, was satisfied that there had been a failure to proceed in accordance with the law. A declaration that the District Court order remanding the applicant was in excess of jurisdiction would issue. However an order prohibiting the prosecution would not issue and as the applicant had pleaded guilty the matter would be remitted to the District Court for sentencing.

Citations:

CRIMINAL PROCEDURE ACT 1967 S24

HOWARD V EARLY & DPP UNREP KELLY EX-TEMP 8.12.1999

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8(2)(a)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8(2)(b)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 1993 S8(2)(c)

BARRY V FITZPATRICK 1996 1 ILRM 512

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S4

ABENGLEN PROPERTIES LTD, STATE V DUBLIN CORPORATION 1984 IR 381

CONSTITUTION ART 40.4.2

1 Mrs. Justice Denhamdelivered the 4th day of July, 2000.[NEMDISS][NEM DISS]

2 This is an appeal by Sharon Howard, the applicant/appellant, hereinafter referred to as the appellant, from the order and judgment of the High Court (Kelly J.) dated 8th December, 1999 wherein the learned trial judge refused the appellant's application for relief.

3 The case arises by way of an application for judicial review. On 16th April, 1999 Laffoy J. granted leave to the appellant to apply by way of application for judicial review for:

4 1. Judicial Review by way of a Declaration that the Order made by the Respondent on the 18th day of March, 1999, remanding the Applicant is custody to the 8th day of April, 1999, on foot of Bridewell Charge Sheet Number 1065/98 was made without jurisdiction in that the said Order was made without the Applicant's consent and in excess of 15 days contrary to s.24 Criminal Procedure Act, 1967as amended.

5 2. Judicial Review by way of a Declaration that the said Order was made without jurisdiction or in excess of jurisdiction and contrary to fair procedures in that there being no evidence of previous convictions as against the Applicant in respect of the offence set out in the said Charge Sheet, the said Order amounted to the imposition of a custodial penalty not provided for by law and a breach of the Applicant's right to trial with due expedition.

6 3. Judicial Review by way of an Order of Prohibition or in the alternative an Injunction restraining the Notice Party from further prosecuting the Applicant on foot of the said Charge Sheet.

7 4. An Order providing for a stay on the said District Court proceedings including a stay on the Bench Warrant issued by the Respondent on the 8th day of April, 1999 in respect of theApplicant.

8 5. An Order providing for the Appellant's release on Bail on foot of the proceedings herein.

9 6. Such further and other relief as this Honourable Courts deemsfit.

10 7. An Order providing for the costs of the proceedings herein.

11 On 8th December, 1999 in an ex tempore judgment Kelly J. dismissed the application and remitted the matter to the District Court for the purpose of it proceeding to consider a penalty in respect of the offence to which the appellant has pleaded guilty.

12 Having entered a plea of guilty to the charge, the appellant appeared for sentence before the respondent on 18th March, 1999. Having considered probation reports and other materials in respect of the appellant the respondent refused an application that sentence be imposed forthwith and remanded the appellant in custody for three weeks, without the appellant's consent.

13 The learned High Court judge held that the remand order was unlawful on the ground that it was in excess of two weeks and without the appellant's consent. The learned High Court judge stated:

"The Applicant is a 25 year old woman.

She was charged that on the 3rd June, 1998 at Blackhall Place, Dublin she failed to comply with a direction to leave that place given to her by a police officer who reasonably suspected that she was loitering there to solicit for the purpose of prostitution contrary to Section 8 of the Criminal Law (Sexual Offences) Act, 1993.

To this charge the Applicant pleaded guilty on the 7th January, 1999. She was remanded on bail for sentence and the preparation of a probation report to the 18th February, 1999. She was again remanded on bail to the 18th March, 1999.

On the 18th March, 1999 two probation reports and a letter from an Eastern Health Board Clinic were placed before District Judge Early. These reports indicated that the Applicant is a heroin addict with what was described as a "chaotic lifestyle" who failed to attend all eight appointments offered to her by the Probation and WelfareService.

On the 18th March 1999, the District Judge remanded the Applicant in custody for three weeks to await sentence. The Applicant did not consent to any remand in custody. The District Judge indicated that there was no need for such consent since the Applicant had been convicted and was being remanded for sentence. Later in the day the Applicant's Solicitor drew the Judge's attention to the fact that there had been no evidence which could lead to a custodial sentence being imposed in any event because the maximum penalty prescribed in the legislation is a monetary fine of £250 for a first offence. (See Section 8(2)(a), (b) and (c) of the Criminal Law (Sexual Offences) Act, 1993). It is only in the case of a third or subsequent conviction that imprisonment may be ordered. The District Judge repeated his view concerning the basis of theremand and went on to direct an updated probation report for the adjourned date. The Applicant was thereupon taken into custody.

Later on the 18th March, 1999 O'Donovan J. directed an enquiry into the lawfulness of the Applicant's detention pursuant to the provisions of Article 40 of the Constitution. That Order was made returnable for the following day.

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