Ryan v DPP

• Jurisdiction: Ireland
• Judge: McCarthy J.,,FINLAY C.J.
• Judgment Date: 01 January 1989
• Neutral Citation: 1988 WJSC-SC 2066
• Court: Supreme Court
• Docket Number: [S.C. Nos. 111 & 155 of 1988]
• Date: 01 January 1989

DPP v. RYAN

DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

and

GORDON RYAN

Respondent

1988 WJSC-SC 2066

111-88

155-88

THE SUPREME COURT

Synopsis:

CRIMINAL LAW

Bail

Objections - Grounds - Validity - Probabilities - Likelihood of commission of criminal offences by defendant if bail granted - Invalid ground for refusal to grant bail - The defendant was charged in the District Court (a) with having entered a building as a trespasser and stolen property therein on 29th February, 1988, contrary to s. 23A of the Act of 1916 and (b) with having maliciously damaged property on the same occasion contrary to s. 51 of the Act of 1861; his application for bail pending his trial was refused by the District Justice - The defendant then applied to the High Court for bail pending his trial on those charges; the application was opposed by the Director of Public Prosecutions on the ground that the defendant, if released on bail, would commit criminal offences during the period of his release - The High Court (Hamilton J. 16/3/88), having heard evidence of certain offences of which the applicant had been convicted, held that such evidence was irrelevant in view of the decision of the Supreme Court in ~The People (Attorney General) v. O'Callaghan~ and granted the defendant bail - The Director of Public Prosecutions appealed against the order of the High Court - Held, in disallowing the appeal, that an objection to the grant of bail to a person charged with a criminal offence is not a valid objection if it is based solely on the likelihood of that person committing criminal offences during the period of such release: ~The People (Attorney General) v. O'Callaghan~ [1966] I.R. 501 applied - Held that the validity of such an objection had not been established at common law prior to the year 1922 - Held that the validity of such an objection is not established by the provisions of Article 40.3.2 of the Constitution - Constitution of Ireland, 1937, Article 40 - (111, 155/88 - Supreme Court - 18/11/88) - [1989] IR 399 - [1989] ILRM 333

|Director of Public Prosecutions v. Ryan|

CONSTITUTION

Personal rights

Liberty - Deprivation - Criminal charge - Bail - Rights of accused - Objection to bail being granted pending trial - Objection based on likelihood of accused committing criminal offences if released on bail - Invalid objection - ~See~ Criminal Law, bail - (111, 155/88 - Supreme Court - 18/11/88)- [1989] IR 399 - [1989] ILRM 333

|Director of Public Prosecutions v. Ryan|

Citations:

R V WOODS 9 ILR 7

R V MCCARTIE 11 ICLR 188

STATE V PURCELL 1926 IR 207

AG V CUNNINGHAM 1932 IR 28

AG V MCCANN 1955 IR 165

AG V MCEVOY 1959 IR 44

AG V O'CALLAGHAN 1966 IR 501

MCALLISTER, IN RE 1973 IR 238

CRIMINAL LAW JURISDICTION BILL 1975, IN RE 1977 IR 129

AG V KERVICK UNREP SUPREME 29.7.71

KING V AG 1981 IR 233

R V SCAIF 9 DOWLING'S PRACTICE CASES 553

R V BARONET 1 E & B 1

MACKINTOSH V MCGLINCHEY 1921 SC 75

SMITH V M 1982 SLT 421

JOHN JONES, IN RE 1843 V2 LTOS

R V RUSSELL 1919 3 WWR

R V PHILIPS 1947 111 JP 333

R V FLETCHER 1949 113 JP 365

R V GENTRY 1955 39 CAR 192

R V ARMSTRONG 1951 2 AER 219

OFFENCES AGAINST THE STATE (AMDT) BILL 1940 1940 IR 470

CRIMINAL PROCEDURE ACT 1967 S22

CONSTITUTION ART 40.3.1

PREVENTION OF CRIME ACT 1908 8 EDW 7

CRIMINAL PROCEDURE ACT 1967 S28(3)

PEOPLE V CROSBIE 1966 IR 426

CRIMINAL JUSTICE ACT 1984 S11

US V SALERNO 107 SC 2095

1 JUDGMENT DELIVERED on the 18th day of November 1988by FINLAY C.J. [Griffin J. Hederman J. Concurring, Walsh J. agreeing]

2 These are two appeals brought by the DPP against decisions of the High Court granting bail to the Respondent pending trial on two separate sets of charges. The same point of law arises in each appeal.

3 The first Order appealed against is one made by the learned President of the High Court and dated the 11th March 1988 in which he granted bail pending trial to Gordon Ryan who had been refused bail in the District Court. The Second Order appealed against is one made by Barron J. on the 22nd April 1988 upon the hearing by him of an application by Gordon Ryanfor reduction in the amount of bail fixed by the District Court which granted to him bail pending trial on another set of charges.

4 The point of law said to arise in each case is as to whether it is within the jurisdiction of the High Court to refuse an application for bail pending trial if it is satisfied that the Applicant, if released on bail, would be likely to commit criminal offences before his trial.

5 Counsel for the DPP has conceded that in the application heard by Barron J. a doubt must exist as to whether the High Court would have had jurisdiction to make an Order refusing bail on any grounds, having regard to the fact that the only application before it was for the reduction of bail. Frima facie that application was made by way of appeal pursuant to the provisions of Section 28(3) of the Criminal Procedure Act 1967, and neither that Section nor any other statutory provision provides for an appeal by the DPP against a decision of the District Court granting bail. Counseldid not seek to argue for the contention that Barron J. would have been entitled to make any Order other than one reducing or refusing to reduce the bail fixed in the District Court. In these circumstances I am satisfied that the appeal against that Order of the 22nd April 1988 should be dismissed. With regard to the Order made by him on the 11th March 1988 the learned President of the High Court stated his reasons in a short judgment delivered on the 16th March 1988.

6 That judgment indicates that the sole ground of opposition to the granting of bail made before him was that if it were granted Gordon Ryan would "continue to engage in criminal activities". The learned President held that on the authority of the decision of this Court in The People at the Suit of the Attorney General v.O'Callaghan 1966 I.R. he was not entitled to have regard to that ground of objection. As, however, it was indicated to him on the hearing that the Director of Public Prosecutions would be anxious to appeal his decision so as to enable him to seekfrom this Court a decision departing from the principle laid down in O'Callaghan's case, the learned President permitted evidence to be adduced which it was alleged would substantiate such a ground of opposition. He reached no decision on that evidence which was contested, ruling, in my view correctly, that it would not be proper for him so to do unless the Supreme Court decides that such evidence wasrelevant.

7 The sole issue which therefore arises on this appeal is whether this Court was correct in deciding in O'Callaghan's case that the probability that a person awaiting trial would if released on bail commit crime could never be a ground for refusing bail.

8 O'Callaghan's case was decided by a Court of three Judges who were unanimous in their decision on this issue. O Dalaigh C.J. and Walsh J. gave separate judgments and Budd J. agreed with each of them, apart from one issue which is not relevant to this appeal.

9 The position was stated by O Dalaigh C.J. in the course of his judgment at page 508, as follows:

10 "Counsel for the Attorney General, however, went on to support the view that the applicant, whom he concedes is likely to stand his trial, should nevertheless be refused bail because the offences in respect of which he was seeking bail were alleged to have been committed while he was on bail in respect of earlier charges. I understood him to submit that the applicant should be held as a preventive measure. This I take to mean that he should be detained in custody because, if granted bail, it is feared he may commit other offences.

11 The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of Law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say "punish," for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand trial when called upon.

12 It is necessary to repeat what was said in the judgment of this Court in The People v. Crosbie and Others. Leaving aside such matters as the likelihood of an accused interfering with witnesses or attempting to destroy evidence if granted bail, it must be borne in mind that the single question in all bail applications is:- Is the applicantlikely to stand his trial? If yes, then he shouldbe granted bail and set at liberty. The several tests indicated in Purcell's Case are not separate and additional tests. They are merely matters to which regard may be had in endeavouring to answer the single fundamental question. This Court has granted bail to applicants charged with non-capital murder when it was likely that they would stand their trial. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until tried and duly found guilty."

13 Walsh J. stated the same principle in the course of his judgment at page 516 in the following terms:

"Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. It is true that in recent years a number of decisions in England on the question of bail appear to have admitted this concept of preventative justice being applied by the refusal of bail. It has also been stated is English cases that a professional criminal, knowing that he is guilty and the probability of conviction, may be tempted to commit some more offences before imprisonment in the belief that it will probably make littledifference to...