Kovacs v Governor of Mountjoy Women's Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 31 July 2017 |
| Neutral Citation | [2017] IECA 236 |
| Date | 31 July 2017 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2017] IECA 236 Appeal No. 2015/356 |
[2017] IECA 236
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Edwards J.
Hedigan J.
Neutral Citation Number: [2017] IECA 236
Appeal No. 2015/356
Committal warrants – Unlawful detention – Certainty – Appellant seeking an inquiry into the lawfulness of her detention – Whether committal warrants were valid
Facts: The appellant, Ms Kovacs, on the 15th of June 2015, on foot of two committal warrants issued by the Dublin Circuit Court, was committed to Mountjoy Women’s Prison (The Dóchas Centre) to commence serving a three month sentence on that date, with a consecutive sentence of one month to commence on the expiration of that sentence. On the 17th of June 2015 the appellant sought an inquiry into the lawfulness of her detention under Article 40.4.20 of the Constitution. By a judgment delivered on the 30th of June 2015 Baker J held that the first warrant was void ab initio as the appellant had not been put on her election. Baker J held that the second warrant was valid; it was clear and without uncertainty. The appellant appealed to the Court of Appeal against Baker J’s finding and the awarding of 65% of the costs of the proceedings. There was a cross appeal by the respondent, the Governor of the Mountjoy Women’s Prison, in relation to the first warrant but that was withdrawn prior to hearing. It was submitted by the appellant that the second warrant for the one month sentence was bad in law as the three month sentence did not expire; it never commenced being void ab initio as it was imposed without jurisdiction. It was submitted that the warrant was unduly vague and uncertain; it does not allow the governor to ascertain the length of the sentence. It was submitted that the warrant did not fulfil the basic requirement of stating with precision and without possible ambiguity the duration and commencement date of the imprisonment. The Court was referred to Mullen v Governor of the Midlands Prison [2014] IECA 26 where the Court emphasised the need for certainty in ascertaining the start and end date of warrants.
Held by Hedigan J that it was clear from the second warrant that the authority to detain on foot of the warrant commenced upon the legal expiration of the three month sentence. Hedigan J held that the three month sentence imposed upon the appellant expired when its validity ceased; that validity ceased when the High Court judge decided in her judgment delivered on 30th June, 2015 that the three month sentence was void ab initio. Hedigan J held that the terms of the second warrant were clearly such that it was activated and authorised the governor to detain her for one month upon the invalidation of the first sentence; any time already served should be allowed. Hedigan J held that, as the High Court judge found in her judgment, the appellant could be lawfully detained immediately upon the passing of the sentence in respect thereof. Hedigan J held that it is a relatively simple exercise for the Governor to ascertain what if any time is to be allowed in respect of time served and set that off against the one month sentence; it was thus not possible to identify any ambiguity or uncertainty in the second warrant and it therefore met the requirements of clarity and certainty outlined in Mullen.
Hedigan J held that the judgment of the High Court judge was correct and that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against the judgment and order of Baker J., made on the 30th June, 2015, and the 9th July, 2015, respectively, in an Article 40.4.2 application. The case relates to whether the appellant was lawfully imprisoned on foot of either, or both, of two committal warrants issued by the Dublin Circuit Court
The first warrant in time was in respect of a sentence of three months imposed by Dun Laoghaire District Court, and initially suspended entirely for two years, for an offence contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 to which the appellant had pleaded guilty on the 13th January, 2014. The circumstances of this offence were that the appellant had stolen clothes from the Marks and Spencer shop in Dundrum Shopping Centre.
It was a condition of the suspension of the sentence that the appellant should not re-offend during the period of the suspension. The appellant breached that condition by stealing a pair of shoes from TK Maxx in the Blanchardstown Shopping Centre in April 2014. She was charged with theft arising from that incident (the triggering offence), and subsequently pleaded guilty to that offence before Blanchardstown District Court on the 15th of September 2014. The presiding District Court judge, on being made aware that the triggering offence had been committed in breach of the conditions on foot of which an earlier sentence had been suspended by Dun Laoghaire District Court, and before proceeding to sentencing for the triggering offence, remanded the appellant to the next sittings of Dun Laoghaire District Court, which was the following day the 16th of September 2014, purportedly pursuant to s.99(9) of the Criminal Justice Act 2006. (Strictly speaking this procedure was irregular because s.99(9) (as then enacted) required sentence to be imposed for the triggering offence before the matter was remitted to the court that had imposed the suspended sentence. However, no point has been raised in regard to that.)
On the 16th of September 2014 Dun Laoghaire District Court lifted the suspension of the three months sentence for the Marks & Spencer matter. The appellant would have commenced serving her three month sentence on that date but for the fact that, having entered into recognizances, she appealed to the Dublin Circuit Court against the order lifting the suspension of her sentence. The appellant was, however, remanded back to Blanchardstown District Court for sentencing in respect of the triggering offence.
On the 18th of September 2014 the appellant was sentenced to one month imprisonment consecutive to the activated sentence of three months. The appellant once again, having entered into recognizances, appealed to the Dublin Circuit Court against the sentence imposed on her for the triggering offence.
Both appeals came on before the Dublin Circuit Criminal on the 15th of June 2015 and were dismissed. This outcome generated the two committal warrants at issue in this case. Both are dated the 15th of June 2015. The practical effect of them was that the appellant was committed to Mountjoy Women's Prison (The Dóchas Centre) to commence serving her three month sentence on that date, with the consecutive sentence of one month to commence on the expiration of that sentence.
On the 17th of June 2015 the appellant sought an inquiry into the lawfulness of her detention under Article 40.4.20 of the Constitution.
Her complaint was based firstly on the contention that in respect of the first conviction in time, i.e., that for the Marks and Spencer's offence, she had not been put on her election (which is accepted), the carrying out of which procedure was a condition precedent to the District Court having jurisdiction to try her. Her case was that absent that having been done the District Court had tried her without jurisdiction and accordingly both her conviction and sentence for that offence were void ab initio.
Her complaint was based secondly on the proposition that as the warrant in respect of the consecutive sentence of one month stated that it was to commence on the expiration of the three month sentence, and as the three month sentence was to be treated as having been void ab initio i.e., to have never existed at all, that second warrant was consequently void for uncertainty.
By a judgment delivered on the 30th of June 2015 Baker J. held that the first warrant was indeed void ab initio as the appellant had not been put on her election. She held however that the second warrant was valid. It was clear and without uncertainty. The appellant could therefore be detained immediately on the passing of the sentence. She held that, as a result of her decision, the finding in relation to the first warrant meant that the period of detention therein lawfully determined and the second sentence was then to be served. The appellant is appealing this finding and the awarding of 65% of the costs of the proceedings. There was a cross appeal by the respondent in relation to the first warrant but that was withdrawn prior to hearing. An objection to this appeal proceeding was raised earlier on the grounds of mootness and in an ex tempore judgment given on the 14th March, 2016, this Court determined that while the appeal was moot it should be allowed to proceed in the interests of the due and proper administration of justice.
It was submitted by the appellant that the second warrant for the one month sentence was bad in law as the three month sentence did not expire. It never...
To continue reading
Request your trial