Larkin v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Eagar
• Judgment Date: 25 November 2016
• Neutral Citation: [2016] IEHC 680
• Docket Number: [2016 No. 478 SS]
• Court: High Court
• Date: 25 November 2016

[2016] IEHC 680

THE HIGH COURT

JUDICIAL REVIEW

Eagar J.

[2016 No. 478 SS]

IN THE MATTER OF AN ENQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND, 1937

BETWEEN

ANDREW LARKIN

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

Constitution – Art. 40.2 of the Constitution – Crime & sentencing S.99 of the Criminal Justice Act, 2006 – Reactivation of suspended sentence – Legality of detention – Retrospective effect

Facts: The applicant, by way of the present ex-parte application, had challenged his detention in the prison. The applicant, currently serving the term of imprisonment for the committal of triggering offences, had lodged an appeal against the order of the High Court for reactivation of the applicant's suspended sentences imposed upon him pursuant to s.99 of the Criminal Justice Act, 2006. The applicant's main contention was that since the reactivation procedure mentioned under s. 99 of the 2006 Act had been declared unconstitutional in Moore & Ors. v. DPP & Ors. [2016] IEHC 244, the applicant could not now be detained in the prison and thus, he was entitled to the benefit of declaration of invalidity of the statute.

Mr. Justice Eagar held that the applicant was detained in accordance with the law. The Court found that the applicant was accorded fair procedures and that he was convicted after a proper trial procedure with an opportunity to appeal that conviction, the remedy, which the applicant did not choose to avail. The Court held that there was no substantive breach of fair procedures or injustice caused to the applicant unlike the applicant in Moore & Ors. v. DPP & Ors, entitling him to avail the benefit of unconstitutionality of the statute with retrospective effect. The Court found that the applicant did not appeal the conviction against the sentence imposed upon him for the committal of the triggering offence and that his appeal against the order of reactivation of suspended sentences had been pending determination in the Court of Appeal, thus, no prejudice had been caused to the applicant by virtue of the operation of the said s. 99 of the Act of 2006.

JUDGMENT of Mr. Justice Eagar delivered on the 25th day of November, 2016

1 An application was made ex parte by the applicant to Noonan J. on 25th April, 2016 and the court ordered in accordance with Article 40.4.2 of the Constitution that the respondent produce the applicant before the High Court at 2 o'clock in the afternoon on Wednesday, 27th April, 2016, and to certify in writing the grounds of his detention.

2 The application was grounded on the affidavit of Aoife Corridan who is a solicitor in the office of Michael J. Staines & Company, Solicitors. In her affidavit she stated that the applicant appeared before Dublin Circuit Criminal Court on 8th April, 2014 and was sentenced in respect of one burglary count on Bill no. 41/14 to 2 years' imprisonment, and for one robbery offence in Bill 623/2013 he received a sentence of 4 years' imprisonment, consecutive to Bill 41/2014 when the final 3 years would be suspended pursuant to s. 99. The next offence which was on Bill no. 859/2013 for an attempted robbery offence and he was sentenced to three years' imprisonment, again consecutive to Bill no. 623/2013, but this sentence was fully suspended under s. 99 of the Criminal Justice Act, 2006.

3 She further stated that on 18th December, 2014 all three bills were re-entered before the original sentencing judge. An error was pointed out to the Circuit Court judge with regard to Bill no. 623/2013 which was not an offence which had been committed whilst on bail. On consent of both the applicant and the Director of Public Prosecutions this error was corrected in that the order of sentence and conviction was amended therein to reflect that the sentence imposed on Bill no. 626/2013 (being a four year sentence with the final 3 years suspended under s. 99 of the Criminal Justice Act, 2006) was concurrent to Bill no. 41/2014 and not consecutive to that bill number.

4 On 20th February, 2015 the applicant appeared in Dublin Metropolitan District Court No. 8 and pleaded guilty to the charges of trespassing which had occurred on 19th December, 2014, criminal damage which had occurred on 30th December, 2014 and s. 4 theft which occurred on 5th January, 2015 (the trigger offences). He was remanded in custody from 7th January, 2015 on these charges until 20th January, 2015 (in the District Court). He pleaded guilty to the trigger offences and was subsequently remanded in custody to Dublin Circuit Court on 27th February, 2015 under s. 99 of the Criminal Justice Act, 2006 for consideration of the reactivation of the suspended sentence imposed by the Circuit Court on 8th April, 2014 and 18th December, 2014.

5 Ms. Corridan further states that on 27th February, 2015 the s. 99 reactivation application was dealt with by Hogan J. and on that date Hogan J. reactivated all the sentences that had previously been suspended on 8th April, and corrected on 18th December, 2014. The trigger offences were remanded back to the District Court on 2nd March, 2015 where the applicant received in respect of the trigger offences, a sentence of 8 months to run from that date on all charges. The applicant did not appeal the sentence imposed in respect of the trigger offences.

6 She stated that by way of notice of appeal dated 11th March, 2015, the applicant appealed the reactivated sentences imposed on 27th February, 2015. The applicant lodged that appeal himself in prison and the appeal has not been heard by the Court of Appeal.

7 She further states that on 19th April, 2016 Moriarty J. in the case of Moore & Ors. v. DPP & Ors. [2016] IEHC 244 found that the reactivation procedure under s. 99 of the Criminal Justice Act, 2006 and in particular s. 99(9) and s. 99(10) of the said Act to be unconstitutional. Ms. Corridan says that the consequence of the said finding by Moriarty J. is that the sentences reactivated by the Circuit Court on 27th February, 2015 under s. 99 of the Criminal Justice Act, 2006 were not validly imposed as the statutory provisions underpinning same are unconstitutional and accordingly no longer validly detain the applicant. She further says that, accordingly, the warrants which purport to constitute the sole authority for the detention of the applicant are by virtue of a number of features fundamentally compromised and lacking the integrity required of documentation whose purported effect is as stated, namely to deprive a person of his right to liberty, a right that can only be removed under Article 40 of the Constitution if the removal is in accordance with law.

8 Exhibited to the affidavit of Ms. Corridan were the warrants in relation to the trigger offences and the warrants in relation to the offences where the Court had imposed the active sentence and also attached was a notice of appeal signed by the applicant. This Court is surprised that no attempt had been made to obtain a copy of the orders of the District Court remanding the accused to the Circuit Court under s. 99(9). Submissions on behalf of the appellant have been lodged with the Court of Appeal.

9 Hal McGuckian is a Principal Legal Executive of the Chief Prosecution Solicitor's Office and he swore an affidavit indicating that the applicant had lodged an appeal against the activation of his suspended sentences, the subject matter of this enquiry. The Director of Public Prosecutions provided a transcript of the original sentence hearing on 8th April, 2014 and the activation hearing on 27th February, 2015 and he exhibits these. He said from a review of the transcript the terms of the suspension appear to be as follows:

a. Own bond 500 Euro;

b. To keep the peace and be of good behaviour for a period of 5 years post-release.

c. Undergo a drug treatment programme under the auspices of the Court Probation Service.

10 The applicant entered into a bond in respect of each of these offences on 12th June, 2014 and Mr. McGuckian said, having reviewed the computer system used by his office, he cannot locate any record of any appeal having been lodged in respect of the convictions for the triggering offences (the Court is satisfied that no appeal has been lodged in respect of the convictions of the triggering offences). He does confirm that the applicant has appealed Bill no. 623/2013 and Bill no. 825/2013. In the transcript of the Circuit Criminal Court on 27th February, 2015 it is clear that counsel for the Director talked about triggering offences, and at p. 7 of the transcript, Hogan J. who was the Circuit Judge, says as follows:-

‘You see, what is the purpose of suspending a sentence at all? And s. 99 would purport to perhaps give a second chance which in a way could be considered to be intrusive to the original sentence.’

11 Hogan J. then activated the sentence on Bill no. 623/2013 and Bill no. 859/2013 and directed that he be given credit for the time that he spent in custody on Bill no. 41/2014.

Article 40

12 In A. v. the Governor of Arbour Hill Prison [2006] 4 I.R. 88 the Court found that once finality had been reached and the applicant in each case had exhausted their actual or potential remedies, they could not avail of the relief of the finding of unconstitutionality of the statute. Counsel for the applicant also suggested that the respondent would rely on the decision in Clarke v. the Governor of Mountjoy Prison [2016] IEHC 278 (herein ‘ Clarke’). But counsel for the applicant said the decision of the Court of Appeal in the Clarke case that is reported at [2016] IECA 244 is, in at least one respect, significantly in the applicant's favour, and that was because the Court of Appeal confirmed the correctness of McDermott J.'s ruling in the High Court that the finality principle (set out within the Rule in A. v. the Governor of Arbor Hill) did not operate to preclude Mr. Clarke...