RR v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 29 June 2015 |
| Neutral Citation | [2015] IECA 138 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [C.A. No. 119 of 2015],No. 2015. No. 119 |
| Date | 29 June 2015 |
[2015] IECA 138
THE COURT OF APPEAL
Kelly J.
Irvine J.
Hogan J.
No. 2015. No. 119
Sentencing – Robbery – Time limits – Applicant seeking leave to apply for judicial review – Whether Circuit Court retained jurisdiction to impose sentence
Facts: The applicant is a minor. He was charged with two offences which occurred in April 2014. In the first case the applicant and his co-accused robbed a disabled man after he alighted from a bus stop before hitting him on the head and stealing his briefcase. In the second instance the applicant and his co-accused lured an intoxicated man down a laneway in Dublin city centre, knocked him unconscious and then robbed him. The applicant was returned for trial to the Dublin Circuit Court in custody, albeit with consent to bail. He was arraigned before the second respondent, His Honour Judge Nolan, where he pleaded guilty to all the counts with which he had been charged. Judge Nolan then remanded him in custody with consent to bail to the 14th February 2015 for sentence. A probation report was then ordered by the judge at the request of the defence. At that time all parties had overlooked the provisions of s. 100 of the Children Act 2001. At some point the first respondent, the DPP, appeared to have adverted to the potential issue arising by reason of the operation of s. 100 because in November 2014 she applied ex parte to the third respondent, Her Honour Judge Ring, for a production order in respect of the applicant. Counsel referred Judge Ring to the provisions of s. 100 and applied to have the 14th February date for sentence vacated and to have the sentence re-listed for the 28th February 2014. At that hearing the applicant submitted that the effect of s. 100 was that the Circuit Court could no longer proceed to sentence once the statutory time limits had expired. Judge Ring rejected that argument. She then vacated the order which had been made by Judge Nolan on 17th October 2014 and remanded the applicant on bail for sentence in November 2014. Judge Ring also directed that a probation report be made available for November 2014. An application was then made to the High Court by the applicant in October 2014 for leave to apply for judicial review. That application was heard in November 2014 who granted leave to seek certiorari of the orders of 17th October 2014 and 25th November 2014. In a reserved judgment delivered in March 2015 Kearns P held that the Circuit Court retained such a jurisdiction to impose sentence, the expiry of the statutory time limits notwithstanding. The applicant appealed to the Court of Appeal on that single issue.
Held by Hogan J that he agreed with Kearns P that the more specific objective of s. 100 appeared to have been to ensure that those charged with the preparation of a report concerning the welfare of the offending child did so in a timely and effective fashion; this was underscored by the provisions of s. 100(3) in that it sought to encourage those responsible for the preparation of such a report to do so at least four working days before the end of the remand period, albeit that no formal obligation to this effect had been imposed. Referring to Prendergast v Porter [1961] IR 450, Hogan J held that the time limits imposed by s. 100 are in principle mandatory, so that, for example, it was plain that in November 2014 the Circuit Court lacked jurisdiction to remand the accused for sentence several months hence to the following February 2015; indeed, once the matter came to her attention, the DPP quite properly did not seek to stand over the making of a remand order of that duration. Hogan J held that the fact that the s. 100 time limits were in principle mandatory was a separate issue to that presented in this appeal which was rather what the consequences (if any) of the failure to observe those time limits should be. Hogan J did not think that it was ever intended or contemplated by the Oireachtas that the Circuit Court would no longer have a jurisdiction to impose sentence simply by reason of a failure to honour those time limits.
Hogan J held that the decision of Kearns P was correct and that the appeal should be dismissed.
Appeal dismissed.
This appeal raises a net – albeit important – point of sentencing practice in relation to minors. Do the provisions of s. 100 of the Children Act 2001 ('the 2001 Act') requiring judges to adhere to a twenty eight day (or, in some instances, forty two day) time limit when imposing sentence on minors have the effect that once these time limits have been exceeded, there is no longer a power to impose a sentence? The issue arises in the following way.
The applicant is a minor who was born on 1st May 1998. He was charged with two very serious and unpleasant offences which occurred in April 2014 and subsequently pleaded guilty to these offences. In the first case the applicant and his co-accused robbed a disabled man after he alighted from a bus stop before hitting him on the head and stealing his briefcase. In the second instance the applicant and his co-accused lured an intoxicated man down a laneway in Dublin city centre, knocked him unconscious and then robbed him.
The applicant was returned for trial to the Dublin Circuit Court in custody, albeit with consent to bail. He was arraigned before His Honour Judge Nolan where he pleaded guilty to all the counts with which he had been charged. Judge Nolan then remanded him in custody with consent to bail to 14th February 2015 for sentence. A probation report was then ordered by the judge at the request of counsel for the defence. It is agreed that on that date all parties had overlooked the provisions of s. 100 of the Children Act 2001 ('the 2001 Act'), a provision to which I will later refer to in some detail.
At some point the Director of Public Prosecutions appears to have adverted to the potential issue arising by reason of the operation of s. 100 of the 2001 Act because on 24th November 2014 her counsel applied ex parte to Her Honour Judge Ring for a production order in respect of the applicant. On the following day counsel referred Judge Ring to the provisions of s. 100 of the 2001 Act and applied to have the February 14th date for sentence vacated and to have the sentence re-listed for the 28th February 2014.
At that hearing counsel for the applicant submitted that the effect of s. 100 of the 2001 Act was that the Circuit Court could no longer proceed to sentence once the statutory time limits had expired. Judge Ring rejected that argument. She then vacated the order which had been made by Judge Nolan on 17th October 2014 and remanded the applicant on bail for sentence on 28th November 2014. Judge Ring also directed that a probation report be made available for the 28th November 2014.
An application was then made to the High Court by counsel for the applicant on 17th October 2014 for leave to apply for judicial review. That application was heard on notice by McDermott J. on 27th November 2014 who granted leave to seek certiorari of the orders of 17th October 2014 and 25th November 2014.
The matter ultimately came on for hearing before Kearns P. on 27th January 2015. As the Director indicated at the hearing that she did not oppose the making of orders of certiorari quashing the orders of the Circuit Court which had been made on 17th October 2014 and 25th November 2014, the only issue which remained was whether the High Court should remit the matter to the Circuit Court so that the applicant could now be sentenced. The question of remittal itself turned on the antecedent question as to whether the Circuit Court could now proceed to sentence.
In a reserved judgment delivered on 3rd of March 2015 Kearns P. held that the Circuit Court retained such a jurisdiction to impose sentence, the expiry of the statutory time limits notwithstanding: see RR v. Director of Public Prosecutions [2015] IEHC 116. The applicant has now appealed to this Court on that single issue. Before considering the reasoning of Kearns P., it is necessary first to set out the provisions of s. 100 of the 2001 Act.
Section 100 of the Children Act 2001 ('the 2001 Act') provides:—
(1) Where the court is satisfied of the guilt of a child, it may defer taking a decision to allow time for the preparation of any report requested pursuant to this Part or for other sufficient reason and for that purpose may remand the child on bail, subject to such conditions as it may think fit, or, pursuant to...
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