McNamee v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 25 July 2017
• Neutral Citation: [2017] IECA 230
• Docket Number: [C.A. No. 265 of 2016],Neutral Citation Number: [2017] IECA 230 Record No. 265/2016
• Court: Court of Appeal (Ireland)
• Date: 25 July 2017

[2017] IECA 230

THE COURT OF APPEAL

CIVIL

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Neutral Citation Number: [2017] IECA 230

Record No. 265/2016

BETWEEN/

PATRICK MCNAMEE

APPELLANT

- AND -

THE DIRECTOR OF PUBLIC PROSECUTIONS, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

Prosecution – Being unlawfully at large by way of breaching a condition of temporary release to be of good behaviour – Judicial review – Appellant seeking judicial review – Whether appellant made out an arguable case in law that he was entitled to the relief which he sought

Facts: The appellant, Mr McNamee, on the 17th December, 2015, while serving a prison sentence of four and a half years imprisonment with the final twelve months suspended for offences of robbery, attempted robbery, burglary and unauthorised taking of a motor vehicle in respect of which he was convicted on the 19th June, 2014, the appellant was given temporary release from Mountjoy Prison pursuant to s. 2 of the Criminal Justice Act 1960. At approximately 11am on the 23rd December, 2015, some six days after his release, gardaí alleged that the appellant was witnessed trespassing on residential property. He was arrested on suspicion of an offence contrary to s. 11 of the Criminal Justice (Public Order) Act 1994, and was subsequently charged with that offence and an offence contrary to s. 6 of the 1960 Act of being unlawfully at large arising from the breach of a condition of his temporary release. Leave to seek judicial review was sought from the High Court in respect of the following reliefs: (i) An order of prohibition by way of application for judicial review of the prosecution of the appellant in charge sheet 16353652; (ii) In the alternative, an injunction by way of judicial review preventing or restraining the further prosecution in respect of the charge sheet 16353652; (iii) A declaration that the charge of being unlawfully at large by way of breaching a condition of temporary release to be of good behaviour is so vague and uncertain as to be incapable of a trial in due course of law; (iv) A declaration that the charge of being unlawfully at large by way of breaching a condition of temporary release to be of good behaviour is not an offence known in law; (v) A declaration that R. 3(a) of the Prisoner (Temporary Release) Rules 2004 is ultra vires the 1960 Act; (vi) A declaration that R. 3(a) of the 2004 Rules, is incompatible with Articles 5 and 7 of the European Convention on Human Rights; (vii) An order pursuant to O. 84 of the Rules of the Superior Courts staying the criminal proceedings and the subject matter of the application for relief, pending the determination of the judicial review proceedings; (viii) Such further or other reliefs as the court shall deem meet; (ix) Costs. On the 12th May, 2016, the High Court (Humphreys J) refused to grant leave to the appellant to seek the various reliefs by way of judicial review. The appellant appealed to the Court of Appeal against that decision.

Held by the Court that it was not the case that the appellant has been charged simply with being unlawfully at large by reason of his failure to comply with a condition of his temporary release, namely failing to be of good behaviour. The Court held that had he been so charged he could justifiably argue that he was unable to identify the offending conduct; rather, he was charged that he broke a condition of his release by failing to be of good behaviour, by attempting to commit the offence of trespassing. Furthermore, the Court noted that neither at the time the appellant signed the temporary release document when its content was explained to him nor at any time prior to being charged with being unlawfully at large, did he question or challenge the condition on the basis of vagueness, or for any reason. The Court could not therefore accept as being credible that the appellant did not fully appreciate and understand the offence with which he was charged. The Court was satisfied that the decision to refuse the leave in this case was justified on the basis that the appellant failed to make out an arguable case in law that he was entitled to the relief which he sought.

The Court held that it would dismiss the claim.

Appeal dismissed.

JUDGMENT delivered on the 25th day of July 2017 by Mr. Justice Mahon

1 This is an appeal against the refusal of the High Court, (Humphreys J.), to grant leave to the appellant to seek various reliefs by way of judicial review, and the entire of his judgment delivered on the 12th day of May 2016.

2 By way of background information, I propose to paraphrase the opening paragraphs of the judgment of the learned High Court judge as follows:-

• On 17th December, 2015, while serving a prison sentence of four and a half years imprisonment with the final twelve months suspended for offences of robbery, attempted robbery, burglary and unauthorised taking of a motor vehicle in respect of which he was convicted on the 19th June 2014, the appellant was given temporary release from Mountjoy Prison pursuant to s. 2 of the Criminal Justice Act 1960. A condition of temporary release, pursuant to Rule 3(a) of the Prisoners (Temporary Release) Rules 2004, is ‘that the person shall keep the peace and be of good behaviour during the period of his or her release’. Upon that release the appellant acknowledged the said conditions in writing and that they had been explained to him.

• At approximately 11am on the 23rd December, 2015, some six days after his release, gardaí alleged that the appellant was witnessed trespassing on residential property. He was arrested on suspicion of an offence contrary to s. 11 of the Criminal Justice (Public Order) Act 1994, and was subsequently charged with that offence and an offence contrary to s. 6 of the Criminal Justice Act 1960 of being unlawfully at large arising from the breach of a condition of his temporary release. According to the précis of evidence exhibited, he is said to have replied after caution ‘I wasn't doing any burglaries, I wasn't doing any of that’.

• Bail was initially refused by the District Court and subsequently by the High Court in respect of the s. 11 charge. It was subsequently re-applied for and granted.

3 Leave to seek judicial review was sought from the High Court in respect of the following reliefs:-

(i) An order of prohibition by way of application for judicial review of the prosecution of the appellant in charge sheet 16353652.

(ii) In the alternative, an injunction by way of judicial review preventing or restraining the further prosecution in respect of the charge sheet 16353652.

(iii) A declaration that the charge of being unlawfully at large by way of breaching a condition of temporary release to be of good behaviour is so vague and uncertain as to be incapable of a trial in due course of law.

(iv) A declaration that the charge of being unlawfully at large by way of breaching a condition of temporary release to be of good behaviour is not an offence known in law.

(v) A declaration that R. 3(a) of the Prisoner (Temporary Release) Rules 2004 is ultra vires the Criminal Justice Act 1960, as amended.

(vi) A declaration that R. 3(a) of the Prisoner (Temporary Release) Rules 2004, is incompatible with Articles 5 and 7 of the European Convention on Human Rights.

(vii) An order pursuant to O. 84 of the Rules of the Superior Courts staying the criminal proceedings and the subject matter of the application for relief herein, pending the determination of these judicial review proceedings.

(viii) Such further or other reliefs as the court shall deem meet.

(ix) Costs.

4 At the outset, I should state that I agree with the decision of the learned High Court judge to refuse leave, and I adopt much of his reasoning as set out in his comprehensive judgment. I propose limiting my judgment to those aspects of the High Court judgment with which I differ or wish to express any additional views or comments.

Is the application premature?

5 In relation to the issue of prematurity I would respectfully disagree with the thrust of some of the comment and views expressed by the learned High Court judge, and in particular:-

‘In the context of a challenge such as the present one, this means that the applicant must generally first submit to the criminal process. If he is innocent, as he asserts, then presumably he will be acquitted, thereby removing the need to determine any wider public law issues. If, on the other hand, he is convicted and such conviction is affirmed on appeal, the public law challenge to the offence and the 2004 Rules will be able to proceed on the basis of clear facts as found in the course of those criminal proceedings.’

6 I agree that generally speaking, judicial restraint is called for in the granting of applications for prohibition and that recent jurisprudence has sought to emphasise the preference for judicial review challenges to be bought at the conclusion of a lower court's process rather than to disrupt it mid-stream. While that might be said to be the general rule, or the common approach of the courts, it is important to emphasise that this statement of general principle is subject to exceptions where the interests of justice so require. There have been many occasions when such exceptions have been recognised.

7 One such example is to be found in the Supreme Court's decision in Osmanovic v. DPP [2006] 3 I.R. 504. In his judgment in that case, Geoghegan J. states (at p. 510/511):-

‘…In the first case, the judge took the view that these applicants might well be acquitted on the merits and that they should wait until they were convicted before mounting any challenge to the constitutionality of the provision. In relation to the second case the respondents lay emphasis on the very early stage of that case and that it is not known...