Kennedy -v- The Governor of Portlaoise Prison, [2017] IEHC 402 (2017)

Docket Number:2017 506 SS
Party Name:Kennedy, The Governor of Portlaoise Prison

THE HIGH COURT[2017 No. 506 S.S.]






JUDGMENT of Mr. Justice Eagar delivered on the 23rd day of June, 2017

  1. This is a judgment on an application seeking an inquiry under Article 40.4 of the Constitution of Ireland into the legality of the detention of Mark Kennedy, currently detained at Portlaoise Prison since the 21st of September, 2015.

  2. This Court made an order directing an inquiry on the 15th of May, 2017 and directed that the Governor of Portlaoise Prison certify in writing the grounds of the detention of the applicant. On the 16th of May, 2017 the Assistant Governor Reilly certified that he held the applicant pursuant to a Circuit Court warrant dated the 16th day of April, 2016 and two committal warrants dated the 12th of April, 2016.

  3. The application was grounded on the affidavit of Timothy Kennelly, solicitor on record for the applicant. He states that he did not represent the applicant in the proceedings that resulted in his imprisonment, but he sets out his knowledge from instructions, and from his reading of the applicant’s file and the committal warrant under which the applicant was detained.

  4. He states that on the 21st of September, 2015 the applicant attended at Thurles District Court, charged under s. 2(1) of the Criminal Damage Act 1991, s. 2 of the Non-Fatal Offences against the Person Act 1997 and s. 8 and s. 5 of the Criminal Justice (Public Order) Act 1994.

  5. He states that the applicant was found guilty of these charges and the District Court judge made an order under s. 99(9) of the Criminal Justice Act 2006, as amended, remanding the applicant to the Circuit Court sitting in Nenagh on the 6th of October, 2015 for the purpose of dealing with re-entry of the matter, as a suspended sentence had been imposed on the applicant on the 18th of October, 2011.

  6. The applicant first appeared before Nenagh Circuit Court on 6th October, 2015 and subsequently on 9th and 22nd October 2015. His next appearance was in Clonmel Circuit Court on 18th December, 2015 and subsequently in the Circuit Court in Nenagh on 2nd February, 2016 and 5th April, 2016.

  7. On the 5th April, 2016 the applicant’s suspended sentence, handed down on 18th October, 2011 was reactivated at the Circuit Court seating at Nenagh, Co. Tipperary. The applicant was remanded back to Thurles District Court on 12th April, 2016 for the purpose of sentence in relation to the matter for which the applicant was convicted on 21st September, 2015. 8. The applicant in Thurles District Court on 12th April, 2016 was sentenced for five months under s. 2 of the Non Fatal Offences Against the Persons Act 1997 and for six months under s. 2 (1) Criminal Damage Act 1991. Both of these sentences were to be served on the legal expiration of the seven year sentence, the subject matter of Bill No. TYDP0025/2009 - this being the suspended sentence that had been activated at Nenagh Circuit Court on 5th April, 2016.

  8. The District Judge fixed bail in respect of an appeal at €500 (on the applicant’s own bond) together with one independent surety in the sum of €2,500 (together with a cash lodgment of €1,000). An application to extend time to appeal against the District Court convictions was lodged with Court Services on 15th July, 2016 and the application was heard at Thurles District Court on 19th July, 2016. The applicant was granted an extension of time to appeal, and the appeal is due to be heard on 31st October, 2017.

  9. Mr. Kennelly in his affidavit said that it was his understanding that the section utilised by the court to activate the Circuit Court sentences was ss. 99 (9) and (10) of the Criminal Justice Act 2006. Those subsections were struck down as unconstitutional by Moriarty J. in Moore v. Ireland [2016] IEHC 244, in which judgment was delivered on 19th April, 2016 (this Court’s emphasis). Mr. Kennelly says he is advised and believes that since s. 99 (9) and (10) were declared void ab initio, this means that the Circuit Court had no jurisdiction to activate the suspended sentence, or issue the resulting committal warrant. He says that accordingly, there was a fundamental defect in the procedures that were used by the Circuit Court.

  10. He further says that the warrant is invalid because it fails to show jurisdiction on its face. In particular there is no reference to the applicant having been remanded pursuant to s. 99 (9), or having been convicted of the trigger offence, or even that the same occurred during the currency of the suspension bond. It is his understanding that recital to this effect is required in order for the instrument to show jurisdiction on its face.

  11. He also says that on 15th July, 2016 the applicant’s then solicitor James Orange sought and was granted leave of the court to come off record. As a result, the applicant was without legal representation and did not have the benefit of advice in respect of appealing the decision to activate the sentence. He says that however as a result of the applicant serving the extension to appeal the conviction, and being granted same, this brings this matter within the remit of Moriarty J.’s decision in Moore v. Ireland [2016] IEHC 244. He says that his firm was engaged by the applicant in the first week of April, 2017.

    The submissions of counsel for the applicant

    Do the District Court sentences ‘fall into the shoes’ of the Circuit Court sentence?

  12. Counsel for the applicant says that the respondent certified the detention of the applicant on the basis of three warrants - the Circuit Court warrant relating to the activated seven year sentence, the District Court warrant relating to the six month sentence, and the District Court warrant relating to the five month sentence. Counsel for the applicant contended that if the Circuit Court warrant and sentence were invalid, the District Court sentences cannot validly detain the applicant, as they themselves are either invalidated, or have expired. He states that if the decision of Baker J. in Kovac v. Governor of Mountjoy Women’s Prison & Ors (30th June, 2015) currently represents the law, then the District Court sentences “fall into the shoes” of the Circuit Court sentence. If the Circuit Court sentence is void ab initio, this means that the District Court sentence would have commenced on 6th April, 2016. That would mean that the aggregate sentence of six months would have expired on 5th October, 2016.

    Challenge to the seven year activated sentence

  13. Counsel for the applicant argues that the Circuit Court judge did not have jurisdiction to activate the seven year sentence pursuant to section 99 (10). The consequence of Moriarty J’s findings in Moore v. Ireland [2016] IEHC 244 is that the sentence activated in the Circuit Court under s. 99 of the Criminal Justice Act 2006 was activated under procedures which were invalid at the time.

  14. The declaration of unconstitutionality of Moriarty J. in Moore v. Ireland [2016] IEHC 244 has the effect in law of declaring the subsections to be void ab initio.

    Is the applicant entitled to rely on Moore v. Ireland [2016] IEHC 244?

  15. A central question in this case is whether the applicant is entitled to take advantage of the declaration of unconstitutionality, as established in Moore v. Ireland [2016] IEHC 244. Counsel for the applicant argues that the applicant is entitled to relief ex debito justitiae. The order in question is legally unsound and therefore, the applicant should be released.

    How does Clarke v. Governor of Mountjoy Prison [2016] IECA 244 apply to the present case?

  16. Counsel pointed out that a number of other s. 99 challenges have come before the courts since Moriarty J’s decision in Moore v. Ireland [2016] IEHC 244, and he notes that these have all been unsuccessful. He referred to (i) the Court of Appeal judgment in Clarke v. Governor of Mountjoy Prison [2016] IECA 244; (ii) the Court of Appeal judgment in Foley v. Governor of Portlaoise Prison [2016] IECA 411; (iii) the judgment of O’Regan J. in Ryan v. Director of Public Prosecutions [2016] IEHC 380; and (iv) the judgment of this Court in Larkin v. Governor of Mountjoy Prison [2016] IEHC 680.

  17. It is agreed and accepted that the last three mentioned judgments effectively apply the ratio of Clarke v. Governor of Mountjoy Prison [2016] IECA 244. Accordingly, counsel states that there was an obligation to consider whether Clarke was capable of binding the present applicant’s case.

  18. Counsel submitted that the principal reason why the applicant in Clarke v. Governor of Mountjoy Prison [2016] IECA 244 was judged not to be entitled to benefit from Moriarty J’s decision in Moore...

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