Kovacs v Governor of Mountjoy Women's Prison

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Finlay Geoghegan
• Judgment Date: 14 March 2016
• Neutral Citation: [2016] IECA 108
• Docket Number: Appeal No. 2015/356
• Date: 14 March 2016

Finlay Geoghegan J.

Hogan J.

Mahon J.

IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

MARIANA KOVACS

APPELLANT

AND

THE GOVERNOR OF MOUNTJOY WOMEN'S PRISON,

THE DOCHAS CENTRE

RESPONDENT

[2016] IECA 108

Appeal No. 2015/356

THE COURT OF APPEAL

Warrants ? Mootness ? Point of law ? Appellant seeking to appeal against part of a High Court decision ? Whether the Court of Appeal should exceptionally hear the appeal

Facts: The appellant, Ms Kovacs, was convicted and sentenced to a three month suspended sentence. She was then convicted and sentenced on a plea of guilty to a one month sentence and that second conviction activated the prior suspended sentence. On the 30th June, 2014, in the High Court Baker J determined that there had been a failure to put the appellant on notice of her right to election, to be tried by a jury, prior to a conviction and sentence and in those circumstances it was determined that both the conviction and sentence, which gave rise to the first warrant were void. The High Court determined that the appellant was lawfully held under the second warrant and the terms of the second warrant was prescribed to commence on the legal expiration of the sentence imposed by the first warrant. The trial judge determined that as the appellant might be lawfully detained immediately on the passing of the sentence in respect of which the second warrant was made that there was no uncertainty. Baker J added that the warrant which was conditioned to commence on the lawful expiration of the first sentence provided certainty and accordingly she refused the application for release pursuant to Article 40. The appellant who had been on bail re?entered custody in Dóchas and was definitively released approximately one hour later. Ms Kovacs appealed to the Court of Appeal against part of Baker J?s decision. The respondent to the appeal, the Governor of Mountjoy Women?s Prison, the Dóchas Centre, contended that the appeal was moot. The appellant submitted that as she has a potential civil claim in relation to a period of approximately three to four days during which she was in custody prior to the commencement of the Article 40 proceeding, this gives her an interest such that the appeal is not truly moot.

Held by Finlay Geoghegan J that, having considered McDonagh v The Governor of Mountjoy Prison [2015] IECA 71, the potential existence of a civil claim which the appellant may wish to bring does not meet the threshold of a live issue between the parties on this appeal. Hence Finlay Geoghegan J rejected any contention that the appeal was not to be considered as moot. She was satisfied that the point of law at issue was one of exceptional public importance. She held that the decision of the High Court has an effect on criminal proceedings in the sense that it has an effect on the lawfulness of the detention of persons who are potentially detained under two warrants in respect of sentences which are to run consecutively. She held that it was of systemic relevance to Article 40 applications before the court which concern the liberty of citizens. By reason of s. 99 of the Criminal Justice Act 2006, Finlay Geoghegan J noted that there is a significant prevalence of two or more consecutive sentences in respect of warrants issued by the courts and in particular where a first suspended sentence is caused to be activated by a second conviction. She held that, consistent with the principles as set out by Murray J in?Shui Jie Liu v Governor of the Dóchas Centre?(Unreported, Supreme Court, 27th June, 2013) there was the additional feature that it was in the interests of the due and proper administration of justice that this appeal be permitted to continue and that the issue against which the appellant appealed be heard and determined by the Court.

Finlay Geoghegan J held that it was in the interests of justice that the Court should hear the appeal.

Motion dismissed.

EX TEMPORE JUDGMENT delivered on the 14th day of March 2016 by Ms. Justice Finlay Geoghegan

1 This is a motion before this Court brought by the respondent to the appeal who is the Governor of Mountjoy Women's Prison, the Dóchas Centre, but in truth and reality the respondent was represented in the High Court by the Director of Public Prosecutions and it is under the Director's instructions that the appeal is being responded to and in respect of which this motion is brought.

2 The motion arises because of one of the grounds upon which the respondent proposes to rely in the appeal namely, that the appeal is now moot and should be dismissed for that reason. It is necessary to say that the appeal brought by Ms. Kovacs is against part only of a decision of the High Court (Baker J.) given in a judgment of the 30th June, 2014, in an Article 40 application.

3 The factual background was that the appellant, Ms. Kovacs had been convicted and sentenced to a three month suspended sentence. Subsequently she was convicted and sentenced on a plea of guilty to a one month sentence and that second conviction activated the prior suspended sentence. In the High Court Baker J. determined that the first warrant was...