Jakub Kedzierski v DPP

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Garrett Simons
Judgment Date25 June 2021
Neutral Citation[2021] IEHC 347
Docket Number2019 No. 84 JR

[2021] IEHC 347

THE HIGH COURT

JUDICIAL REVIEW

2019 No. 84 JR

Between
Jakub Kedzierski
Applicant
and
The Director of Public Prosecutions
Respondent
Attorney General
Notice Party
Appearances

Feichín McDonagh, SC and Oisín Clarke for the Applicant instructed by Connolly Finan Fleming Solicitors

Conor Devally, SC and Conor Lehane for the Director of Public Prosecutions and the Attorney General instructed by the Chief Prosecution Solicitor and the Chief State Solicitor

Judicial review – Suspended sentence – Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 – Applicant seeking judicial review – Whether the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 applied where the period of suspension had already expired prior to commencement

Facts: A custodial sentence was imposed upon the applicant, Mr Kedzierski, but the execution of the sentence was suspended for three years. The applicant submitted that, in accordance with the legislation then in force, he was released from any obligation to serve out his suspended sentence upon the expiration of the period of suspension. It was further submitted that this immunity from having to serve out the suspended sentence represented an accrued or vested right, with the consequence that it was presumed not to be affected by the subsequent enactment of amending legislation. In the alternative, the applicant pleaded that if the amending legislation had retrospective effect, then the legislation was invalid having regard to the Constitution of Ireland. The relevant legislative amendments came into effect on 11 January 2019, when the provisions of the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 were commenced by Ministerial Order. The amendments were made to the underlying legislation, namely s. 99 of the Criminal Justice Act 2006.

Held by the High Court that this case could be resolved on the narrow ground that, under the terms of the Circuit Court order, the applicant was to be released from his obligation to serve out the suspended sentence unless called on to do so within the three-year period of suspension; the three years expired on 25 July 2018, prior to the commencement of the amending legislation. The Court held that there is nothing in the language of the 2017 Act which even hints at an intention to trespass upon the role of a court by purporting to change the legal effect of orders made prior to the commencement of the legislative amendments. The Court concluded that the revocation procedure under s. 99(17) of the pre-2019 version of the 2006 Act had been subject to a temporal limitation, and had only been available during the period of suspension; it follows, on this interpretation, that on the expiration of his suspended sentence on 29 July 2018, the applicant was not at risk of having his sentence of imprisonment activated under any of the mechanisms under the pre-2019 version of the legislation. Applying the presumption that newly enacted or amending legislation is not intended to affect vested rights unless the contrary intention clearly appears, the Court found that the 2017 Act did not affect the applicant.

The Court allowed the application for judicial review.

Application granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 25 June 2021

INTRODUCTION
1

This judgment concerns the circumstances in which a custodial sentence, which has been suspended, may be activated. In particular, it concerns the extent to which the legislative amendments introduced under the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 have retrospective effect.

2

A custodial sentence had been imposed upon the Applicant, but the execution of the sentence had been suspended for three years. The Applicant submits that—in accordance with the legislation then in force—he had been released from any obligation to serve out his suspended sentence upon the expiration of the period of suspension. It is further submitted that this immunity from having to serve out the suspended sentence represents an accrued or vested right, with the consequence that it is presumed not to be affected by the subsequent enactment of amending legislation. In the alternative, the Applicant pleads that if the amending legislation has retrospective effect, then the legislation is invalid having regard to the Constitution of Ireland.

3

The relevant legislative amendments came into effect on 11 January 2019, when the provisions of the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 were commenced by Ministerial Order. The amendments were made to the underlying legislation, namely section 99 of the Criminal Justice Act 2006. The shorthand “ the pre-2019 version” and “ the post-2019 version” will be used in this judgment to distinguish between the two versions of the Criminal Justice Act 2006.

FACTUAL BACKGROUND
4

The Applicant pleaded guilty to two counts of possession of a controlled drug for the purpose of supply (“ the first offence”) in 2015. The Applicant was convicted and sentenced to imprisonment for a period of two years on 29 July 2015 by the Circuit Court. The execution of the sentence of imprisonment was, however, suspended for a period of three years.

5

The terms of the suspended sentence are recited as follows in the Circuit Court order of 29 July 2015.

“This matter having come into the list for sentence on this day and the accused Jakob Kedzirski ( sic) having been arraigned and having pleaded guilty to count No. 2 and 4 in the Indictment preferred against him, and as set out in the Schedule to this Order.

AND THE COURT having heard the evidence tendered and submissions on behalf of the respective parties DOTH ORDER that the said Accused Jakob Kedzirski be imprisoned for the period of 2 years on Count Nos. 2 and 4 BUT suspend said sentences on the Accused, in open Court, acknowledging himself bound to the People of Ireland in the sum of €200.00, the conditions being 1, that he will keep the peace and be of good behaviour towards all the People of Ireland for a period of 3 years from this date AND FURTHER that he will come up if called on to do so at any time within said period of 3 years to serve the sentence imposed, but suspended on him entering into this Recognisance. Accused having acknowledged himself so bound was discharged”

6

Some two years later, on 19 February 2017, the Applicant was arrested and found to be in possession of controlled substances. Arising out of this arrest, the Applicant was charged with a number of offences under the Misuse of Drugs Act 1977 (as amended). The trial of these offences did not come on for hearing, however, for another two years. On 6 February 2019, the Applicant was convicted of a single offence and a fine of €1,000 was imposed (“ the second offence”).

7

The chronology may be summarised in tabular form as follows.

29 July 2015

Two-year custodial sentence (suspended for three years)

19 February 2017

Second offence committed

29 July 2018

Period of suspension expires

11 January 2019

Amending legislation commenced by Ministerial Order

6 February 2019

Conviction for second offence

8

The chronology of events is such that whereas the Applicant had committed the second offence within the three-year period of the suspended sentence, he was not convicted of that offence until after the three-year period had expired.

9

The significance of this is that, under sections 99(9) and (10) of the Criminal Justice Act 2006 (as enacted), the possibility of the activation of a suspended sentence only arose where the sentenced person had actually been convicted of another offence within the period of suspension.

10

The legislation was amended subsequently with effect from 11 January 2019. Insofar as the temporal limitation on the activation of a suspended sentence is concerned, two changes were introduced as follows. First, the relevant period is now the period of suspension plus an additional period of twelve months (“ the extended period”). Secondly, it is no longer necessary that a conviction have been entered within this extended period; it is sufficient that proceedings for the second offence are instituted against the sentenced person during the extended period.

EARLIER DECLARATION OF CONSTITUTIONAL INVALIDITY
11

Before turning to address the specific issues which arise in this case, it is necessary, first, to explain that the High Court had found aspects of the pre-2019 version of the legislation to be invalid having regard to the Constitution of Ireland.

12

In Moore v. Director of Public Prosecutions [2016] IEHC 244; [2018] 2 I.R. 170, the High Court (Moriarty J.) held that subsections (9) and (10) of section 99 of the Criminal Justice Act 2006 were invalid. The invalidity stemmed from the sequence in which (i) the original sentencing court and (ii) the court dealing with the second conviction were to discharge their functions. The court dealing with the second conviction had been required, prior to imposing sentence in respect of the second offence, to remand the convicted person to the original sentencing court. This sequence of events did not allow for the possibility that the conviction in respect of the second offence might be overturned on appeal. A person might thus have their suspended sentence activated on the basis of a conviction for a second offence, only for that conviction to be overturned subsequently on appeal. This would be unjust in that the suspended sentence would have been activated without there having been any further wrongdoing on the part of the sentenced person.

13

The High Court delivered its judgment in Moore on 19 April 2016. (The formal order was drawn up on 11 May 2016). The Oireachtas subsequently enacted amending legislation on 15 March 2017, namely the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017. The relevant provisions of...

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