McCabe v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Alan Mahon,Ms. Justice Finlay Geoghegan
• Judgment Date: 22 July 2015
• Neutral Citation: [2015] IECA 156
• Date: 22 July 2015
• Court: Court of Appeal (Ireland)
• Docket Number: [2014 No. 909 SS] [2014 No. 5652 P] [C.A. No. 1433 of 2014],[Appeal No. 2014/1433] [Article 64 Transfer]

[2015] IECA 156

THE COURT OF APPEAL

Finlay Geoghegan J.

Irvine J.

Mahon J.

[Appeal No. 2014/1433]

[Article 64 Transfer]

In the Matter of an Inquiry under Article 40.4 of the Constitution

Between

Damien McCabe

Applicant/Respondent

and

Governor of Mountjoy Prison

Respondent/Appellant

And in the Matter of Plenary Proceedings

Between

Damien McCabe

Plaintiff/Respondent

and

Ireland and Attorney General

Defendants/Appellants

and

The Director of Public Prosecutions

Notice Party/Appellant

Unlawful detention – Road traffic offences – Public order offence – Respondent seeking to appeal judgment delivered in plenary proceedings – Whether respondent had statutory right of appeal against order of the Circuit Court

Facts: The plaintiff/respondent, Mr McCabe, was convicted in the District Court in June, 2013 of a road traffic offence, and sentenced to five months imprisonment. He appealed his conviction and sentence to the Circuit Court. In October, 2013, the Circuit Court upheld his conviction, but altered the sentence to one of six months suspended for a period of two years on conditions. In May, 2014, he was convicted of a public order offence before the District Court. He was then remanded to the Circuit Court pursuant s. 99(9) of the Criminal Justice Act 2006. The Circuit Court made an order that said suspension be revoked and Mr McCabe serve the entire sentence of six months. Mr McCabe was remanded in custody to the District Court for the purpose of that court imposing sentence in relation to the public order offence. The High Court made an order for an inquiry pursuant to Article 40.4.2 of the Constitution. The return of the respondent/appellant, the Governor of Mountjoy Prison, certified that Mr McCabe was held pursuant to the committal warrant of the Circuit Court. The legality of Mr McCabe”s detention in the Article 40 application was challenged on three grounds: (1) that the word ‘convicted’ in s. 99(9) of the 2006 Act can only refer to a person sentenced by the District Court; (2) that the warrant was bad on its face and (3) that the absence of a right of appeal against the decision of the Circuit Court to reactivate the suspended sentence in the case of Mr McCabe rendered s. 99 of the 2006 Act unconstitutional. In the Article 40 application, the High Court held in June, 2014, against the applicant and in favour of the validity of the warrant in relation to grounds (1) and (2). An order was made giving Mr McCabe liberty to commence plenary proceedings against the defendants/appellants, Ireland and the Attorney General, seeking a declaration that s. 99 was invalid having regard in particular to Articles 34.3.4, Article 38 and Article 40.1 of the Constitution. It was not expressly pleaded, nor was a submission made to the High Court that Mr McCabe had a right of appeal pursuant to s. 99(12) of the 2006 Act, to the Court of Criminal Appeal. In September, 2014, the High Court concluded that there was a constitutional right to appeal the decision of the Circuit Court to re-activate the sentence. An order was then made for the applicant to recover costs against the respondent including reserved costs and subsequent orders relating to a stay on the order for costs on certain terms. In October, 2014, the respondent in the Article 40 proceedings and defendants in the High Court proceedings appealed to the Supreme Court the judgment delivered in the plenary proceedings in September, 2014 and the order of the same date. At the hearing of the appeal before the Supreme Court, there were two sets of issues. They were referred to as the constitutional issues and sub-constitutional issues. The former were the issues raised on the notice of appeal and notice of cross appeal in relation to the judgment of the trial judge in the plenary proceedings. The sub-constitutional issues were those raised by the notice of cross appeal in relation to the judgment of the trial judge in the Article 40 proceedings.

Held by Finlay Geoghegan J that, having considered Richard Kiely v DPP (Unreported, Court of Criminal Appeal, 19th February, 2008), Mr McCabe had a statutory right of appeal pursuant to s. 99(12) of the 2006 Act, against the order of the Circuit Court made in May, 2014, to reactivate the sentence and to require that he serve the full six months custodial sentence. By reason of this conclusion, it was held unnecessary to consider the remaining grounds of appeal against the conclusions reached by the trial judge in the plenary proceedings.

Finlay Geoghegan J held that she would make the following orders: 1) A declaration that s.99(12) of the 2006 Act provides a right of appeal to the Court of Appeal against any order of the Circuit Court made pursuant to s. 99(10), to revoke an order made pursuant to s. 99(1) suspending a sentence and to reactivate in whole or in part the suspended sentence including in circumstances where the suspended sentence was imposed on the hearing of an appeal from the District Court; 2) An order that the execution of the warrant of the Circuit Court issued in May, 2014 committing Mr McCabe to prison be permanently stayed; 3) An order dismissing the cross appeal; 4) No variation to the substantive order of the High Court of September, 2014.

Appeal allowed in part.

Judgment delivered on the 22nd day of July 2015 by Ms. Justice Finlay Geoghegan

1 This appeal and cross appeal, raises once again interpretative difficulties of s. 99 of the Criminal Justice Act 2006. As recently observed by O'Donnell J. in the Supreme Court in DPP v Carter and DPP v Kenny [2015] IESC 20, at para. 1:

‘Section 99 of the Criminal Justice Act 2006 (“the 2006 Act”) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation… . One thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.’

2 The factual background to the High Court proceedings is as follows. Mr. McCabe was convicted in the District Court on the 24th June, 2013 of a road traffic offence, and sentenced to five months imprisonment. He appealed his conviction and sentence to the Circuit Court. On the 29th October, 2013, the Circuit Court upheld his conviction, but altered the sentence to one of six months suspended for a period of two years on conditions. On the 26th May, 2014, he was convicted of a public order offence before the District Court. He was then remanded to the Circuit Court pursuant s. 99(9) of the 2006 Act. On the 27th May, 2014, the Circuit Court made an order ‘that said suspension be revoked and [Mr. McCabe] shall serve the entire sentence of six months’. Mr. McCabe was remanded in custody to the District Court on the 28th May, 2014, for the purpose of that court imposing sentence in relation to the public order offence. The District Court at the time of the High Court judgment had adjourned its decision as to sentence presumably by reason of the intervening High Court proceedings.

3 On the 28th May, 2014, the High Court (Hogan J.) made an order for an inquiry pursuant to Article 40.4.2 of the Constitution. The return of the Governor of Mountjoy Prison certified that Mr. McCabe was held pursuant to the committal warrant of the Circuit Court of the 27th May, 2014. The legality of Mr. McCabe's detention in the Article 40 application was challenged on three grounds: (1) that the word ‘convicted’ in s. 99(9) of the 2006 Act, as amended, can only refer to a person sentenced by the District Court; (2) that the warrant was bad on its face and (3) that the absence of a right of appeal against the decision of the Circuit Court to reactivate the suspended sentence in the case of Mr. McCabe rendered s. 99 of the 2006 Act or parts thereof unconstitutional.

4 In the Article 40 application, in accordance with established principles Hogan J. initially decided the non constitutional grounds of challenge. In a judgment delivered on the 3rd June, 2014, he held against the applicant and in favour of the validity of the warrant in relation to grounds (1) and (2) above.

5 Thereafter it was suggested by the trial judge that rather than proceeding with a hearing in relation to the constitutional ground of challenge in the Article 40 proceeding, that separate plenary proceedings should be commenced on behalf of Mr. McCabe. This appears to have been by reason of the challenge to the validity of s. 99 and the provision for a case stated in such circumstances in Article 40.4.3. On the 3rd June, 2014, in the Article 40 proceedings, an order was made giving Mr. McCabe liberty to issue a plenary summons raising the constitutional issues already identified and staying execution on the committal warrant. Mr. McCabe was also admitted to bail on terms.

6 Plenary proceedings were commenced on behalf of Mr. McCabe against Ireland and the Attorney General on the 27th June, 2014. In those proceedings a declaration was sought that s. 99 was invalid having regard in particular to Articles 34.3.4, Article 38 and Article 40.1 of the Constitution. In addition a declaration was sought that the Oireachtas was obliged to enact legislation such as would have provided for an appeal against the decision from the Circuit Court made on the 27th May, 2014, activating the suspended sentence. The statement of claim expressly pleaded that the Oireachtas had not provided a right of appeal in respect of the order of the 27th May, 2014, and reference was made to s. 18(3) of the Courts of Justice Act, 1928. In the defence and in subsequent submission to the High Court, the only potential type of appeal identified as being available to Mr. McCabe...