Moore v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Moriarty |
| Judgment Date | 19 April 2016 |
| Neutral Citation | [2016] IEHC 244 |
| Docket Number | [2013 Nos. 54, 70, 120, 602 & 925 JR and 2014 No. 86 JR],[2013 No. 54 J.R.] [2013 No. 70 J.R.] [2013 No. 120 J.R.] [2013 No. 602 J.R.] [2013 No. 925 J.R.] [2014 No. 86 J.R.] |
| Court | High Court |
| Date | 19 April 2016 |
[2016] IEHC 244
THE HIGH COURT
JUDICIAL REVIEW
Moriarty J.
[2013 No. 54 J.R.]
[2013 No. 70 J.R.]
[2013 No. 120 J.R.]
[2013 No. 602 J.R.]
[2013 No. 925 J.R.]
[2014 No. 86 J.R.]
AND
AND
AND
AND
AND
AND
Constitution – Art. 40.1 of the Constitution – Crime & Sentencing – S. 99 of the Criminal Justice Act, 2006 as amended by s. 60 of the Criminal Justice Act 2007 and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act, 2009 – Curtailment of right of appeal – O.28A of the District Court Rules 2008 – Fair procedures
Facts: The six plaintiffs/accused persons being convicted of minor offences sought a declaration that the procedures provided under s.99 as amended was unfair and offended the applicants' right to appeal an order of the District Court as they did not permit them to enter recognisances in relation to a conviction for a triggering offence prior to the determination of the issue of the activation of imposition of a suspended sentence under s. 99. The plaintiffs also sought various other ancillary reliefs.
Mr. Justice Moriarty granted the declaration to the effect that subsections under review of s. 99 of the Criminal Justice Act, 2006, were unconstitutional notwithstanding the presumption of constitutionality that existed in relation to enactments. The Court observed that said s.99 curtailed the right of appeal of an accused person to the Circuit Court in a later conviction as the accused person was first required to serve the sentence following the revocation of an initial suspended sentence before he could lodge an appeal in respect to the second new offence. The Court observed that the said s. 99 gave rise to disparity as an accused person faced with reactivation of an initial suspended sentence by reason of having been convicted of a new offence would not even try to exercise his right of appeal and rather opt for serving the remaining portion of suspended sentence. The Court held that the procedure laid down under said s.99 was contrary to the right of equality and liberty enshrined under art. 40.1 of the Constitution as it prescribed for different treatment of otherwise similarly situated accused persons. The Court cited with approval the principles enunciated by Henchy J. in the case of King v. Attorney General [1981] I.R. 233 that no person should be deprived of his liberty except in accordance with law and that no person should be tried on a criminal charge, save in due course of law. The Court noted that statutory procedures such as o. 28A of the District Court Rules 2008, which disallowed an accused remanded under said s.99 to appeal his conviction of a further offence until the determination of the initial suspending sentence, were not in compliance with the legal order postulated by the Constitution.
Section 99 of the Criminal Justice Act, 2006, has had a relatively chequered history since its enactment, and judges in all Irish jurisdictions have on occasion expressed concerns about the manner in which it has sought to address what in theory ought not to be an insuperable aspiration, namely to address and provide a balanced and operable framework that will address what has long been a recurring situation arising in Irish criminal courts. Pared to its essentials, what is involved is that an accused person is convicted in what in practice has always been the District Court or the Circuit Court, following which, in preference to an immediate sentence of imprisonment, a suspended custodial sentence is imposed, for example twelve months, to be suspended for a like period, probably subject to other terms such as probation supervision, and being bound to keep the peace and be of good behaviour throughout that period. Should matters proceed without mishap for the relevant period, all is well, but not infrequently a further charge will be brought. Should this proceed to conviction before what in many instances will be an entirely different judge to the person who imposed the suspended sentence, or indeed a different jurisdiction, what procedure is to apply? Section 99 has already undergone two processes of amendment, and its present form will set forth in the next paragraph. But what is beyond doubt is that the intended path has proved thorny, beset with problems, and results in recurring applications on behalf of such accused persons, whether by way of Article 40 of the Constitution judicial review or other declaratory relief. In the present instance, the legal advisors to the six individuals named as applicants, all falling within the broad picture of typical case histories, being relatively young urban males, have combined their efforts by having the six cases listed together. Further, in addition to the usual remedies sought by way of judicial review in such instances, they have each made a concerted and diligently researched assault on the constitutionality of s. 99, given the manner in which adherence to the operative portions of s. 99 has impacted on each of their individual clients. The six case histories to date have many common features, but equally have relevant differences. Before summarising these, it is necessary to set forth the comparatively lengthy wording of s. 99, as amended by s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act, 2009.
Section 99 now reads as follows.
'Power to suspend sentence.
99.— (1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.
(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the peace and be of good behaviour during—
(a) the period of suspension of the sentence concerned, or
(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of suspension of the sentence concerned, and that condition shall be specified in the order concerned.
(3) The court may, when making an order under subsection (1), impose such conditions in relation to the order as the court considers—
(a) appropriate having regard to the nature of the offence, and
(b) will reduce the likelihood of the person in respect of whom the order is made committing any other offence,
and any condition imposed in accordance with this subsection shall be specified in that order.
(4) In addition to any condition imposed under subsection (3), the court may, when making an order under subsection (1) consisting of the suspension in part of a sentence of imprisonment or upon an application under subsection (6), impose any one or more of the following conditions in relation to that order or the order referred to in the said subsection (6), as the case may be:
(a) that the person co-operate with the probation and welfare service to the extent specified by the court for the purpose of his or her rehabilitation and the protection of the public;
(b) that the person undergo such—
(i) treatment for drug, alcohol or other substance addiction,
(ii) course of education, training or therapy,
(iii) psychological counselling or other treatment,
as may be approved by the court;
(c) that the person be subject to the supervision of the probation and welfare service.
(5) A condition (other than a condition imposed, upon an application under subsection (6), after the making of the order concerned) imposed under subsection (4) shall be specified in the order concerned.
(6) A probation and welfare officer may, at any time before the expiration of a sentence of a court to which an order under subsection (1) consisting of the suspension of a sentence in part applies, apply to the court for the imposition of any of the conditions referred to in subsection (4) in relation to the order.
(7) Where a court makes an order under this section, it shall cause a copy of the order to be given to—
(a) the Garda Síochána, or
(b) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(8) Where a court has made an order under subsection (1) and imposes conditions under subsection (4) upon an application under subsection (6), it shall cause a copy of the order and conditions to be given to—
(a) the probation and welfare service, and
(b) (i) the Garda Síochána, or
(ii) in the case of an order consisting of the suspension of a sentence in part only, the governor of the prison to which the person is committed and the Garda Síochána.
(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence,...
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