People (Attorney General) v Giles

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1976
• Docket Number: [S.C. No. 174 of 1973]
• Date: 01 January 1976

Supreme Court

[S.C. No. 174 of 1973]

The People (Attorney General) v. Giles

THE PEOPLE (at the Suit of THE ATTORNEY GENERAL)

and

RONALD GILES

Criminal law - Sentence - Imprisonment - Indictable misdemeanour at common law - Whether any limit on length of sentence - Appeal from Court of Criminal Appeal - Jurisdiction of Supreme Court - Courts of Justice Act, 1924 (No. 10), s. 29 - Constitution of Ireland, 1937, Article 34,s. 4, sub-s. 3.

Criminal Appeal.

The facts have been summarised in the head-note and they appear in the judgment of Walsh J., post. The appellant, Ronald Giles, appealed to the Supreme Court from a decision of the Court of Criminal Appeal made on the 16th May, 1972, refusing to grant him leave to appeal to that court against his conviction in the Central Criminal Court on the 5th November, 1971. The appellant was enabled to appeal to the Supreme Court by the provisions1 of s. 29 of the Courts of Justice Act, 1924, and by a certificate of the Attorney General made in accordance with that section.

The certificate of the Attorney General was in the following terms:—

"I hereby certify, pursuant to section 29 of the Courts of Justice Act, 1924, that the decision of the Court of Criminal Appeal delivered in the above matter on the 16th day of May, 1972, involves a point of law of exceptional public importance, viz.:—

Whether on a conviction of conspiracy to rob, which is a common-law misdemeanour, it was lawful for the learned trial judge to impose a sentence of six years imprisonment.

And I hereby further certify that it is desirable in the public interest that an appeal should be taken to the Supreme Court.

Dated this 4th day of December, 1973.

Declan Costello,

Attorney General."

The appellant was indicted and convicted of conspiracy to rob and he was sentenced to serve six years imprisonment. The Court of Criminal Appeal refused to grant him leave to appeal to that court but the Attorney General issued a certificate pursuant to s. 29 of the Courts of Justice Act, 1924, certifying that the decision of that court involved a point of law of exceptional public importance, viz., whether the sentence was a lawful one, and certifying that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The certificate enabled the appellant to appeal to the Supreme Court and in his notice of appeal, apart from the point of law certified, he entered four grounds of appeal designed to challenge the validity of his conviction. At the hearing of the appeal, the appellant did not rely on those four grounds but sought leave to argue an additional ground challenging the conviction.

Held by the Supreme Court (FitzGerald C.J., Walsh and Henchy JJ.), in disallowing the appeal, 1, that the offence in question was an indictable misdemeanour at common law and that, subject to the selection of the appropriate sentence in a particular case, there was no limit on the period of imprisonment which might be imposed for that offence.

2. That the application for leave to present the additional ground of appeal should be refused.

Quaere: Whether the function of the Supreme Court, in determining an appeal from a decision of the Court of Criminal Appeal, is confined to a resolution of the point of law specified in the certificate issued pursuant to s. 29 of the Courts of Justice Act, 1924.

Cur. adv. vult.

FitzGerald C.J.:—

I have read the judgments of Mr. Justice Walsh and Mr. Justice Henchy and I agree with them upon the point of law specified in the certificate of the Attorney General. However, I have reservations about the submission that the appellant is entitled to argue matters which are outside the terms of that certificate, and I do not express any opinion on that question.

Walsh J.:—

After a trial lasting four days the appellant, Ronald Giles, was convicted in the Central Criminal Court on the 5th November, 1971, of the offence of conspiring with other persons to rob Securicor Ltd. of the sum of £24,600 on the 14th May, 1969. On the 7th December, 1971, the President of the High Court sentenced the appellant to be imprisoned for a period of six years from the 5th November, 1971. On that date, counsel for the defence applied to the learned trial judge for a certificate for leave to appeal on a number of grounds, some of which touch the verdict and one of which was to the effect that the learned judge had erred in law in imposing a sentence of six years simple imprisonment for the common-law misdemeanour of conspiracy because, it was suggested, two years imprisonment was the maximum sentence that could be imposed. The application for a certificate for leave to appeal was refused.

The appellant subsequently applied to the Court of Criminal Appeal for leave to appeal against his conviction and the application was heard on the 16th May, 1972, and was refused. There were six grounds offered in support of the application for leave to appeal, four of which dealt with the admissibility of evidence and other matters affecting the conviction. The fifth claimed that the learned trial judge erred in law in imposing a sentence in excess of two years and the sixth was that the sentence imposed was in all the circumstances excessive. An application was also made to the Court of Criminal Appeal for a certificate under s. 29 of the Courts of Justice Act, 1924, to enable the appellant to take an appeal to this Court. That application was also refused.

On the 4th December, 1973, the Attorney General, pursuant to the power vested in him by s. 29 of the Act of 1924 certified that the decision of the Court of Criminal Appeal delivered on the appellant's application on the 16th May, 1972, involved a point of law of exceptional public importance and he certified that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The certificate sets out the point of law in question in the following terms:—"Whether on a conviction of conspiracy to rob, which is a common-law misdemeanour, it was lawful for the learned trial judge to impose a sentence of six years imprisonment."On the 20th December, 1973, the appellant lodged a notice of appeal to this Court in which five grounds are set out. The first ground is the one which was referred to in the certificate given by the Attorney General. The next four grounds all refer to the evidence at the trial and matters relating to the conviction.

On the hearing of the appeal the Court decided to deal first with the question in the certificate which relates to the sentence. In my view, this ground of appeal was without any substance whatsoever. Conspiracy to rob is an indictable misdemeanour at common law. It is not subject to any special statutory punishment. It is punishable by imprisonment and at common law there is no limit to the term of imprisonment which may be imposed. At common law there is also a power to impose a fine as part, or the whole, of a sentence for a common-law misdemeanour. By virtue of the provisions of s. 16, sub-s. 1, of the Criminal Justice Administration Act, 1914, where a person is convicted by or before any court of an offence and is sentenced to imprisonment without the option of a fine the imprisonment may, in the discretion of the court, be either with or without hard labour notwithstanding that the offence is an offence at common law. I do not find it necessary to discuss whether more than two years imprisonment with hard labour may be imposed, by virtue of the statutory provision just mentioned, in respect of cases which do not come within the provisions of s. 1, sub-s. 2, of the Penal Servitude Act, 1891. The offence in this case is not one of those and, as hard labour was not imposed, it need not be considered.

So far as the question of simple imprisonment is concerned, the matter is well settled by authority. The most recent instance is the decision of this Court inApplication of O'Keeffe (4th Oct., 1965) in which the applicant had been sentenced to five years imprisonment for conspiracy to rob. This Court rejected his claim that it was not lawful to impose a sentence of imprisonment in excess of two years for such an offence and made clear that the offence of conspiracy to rob could be punished by simple imprisonment without any limitation upon the term which the court of trial might impose. It is true that in England at least for very many years the practice has been not to impose more than two years simple imprisonment in such cases because of the rigours of the conditions of imprisonment. The history of this matter is dealt with in the judgment of Goddard L.C.J. in R. v. Morris.10 It was also fairly general practice not to award a greater period of imprisonment in respect of conspiracy than the substantive offence could carry if the accused had been convicted of that. This view and practice was supported by a considerable amount of judicial opinion but it was not necessarily valid in all cases. However, in so far as the present case is concerned, if the appellant had been convicted of the robbery it would not be possible, in my opinion, to say that a sentence of six years penal servitude was excessive. In my view, the sentence imposed by the learned trial judge in the present case, namely, the sentence of six years simple imprisonment, was a very proper sentence having regard to the seriousness of the offence and was a lawful sentence.

The second matter which arises for decision is whether or not the appellant is entitled to bring an appeal in respect of the other grounds in the notice of appeal, which relate only to conviction. These grounds are substantially the same as those considered on this topic in the Court of Criminal Appeal. In addition, however, the appellant has asked leave of this Court to argue a further ground in respect of conviction which was not before the Court of Criminal Appeal and which is not in his notice of appeal. For the purpose of...