Ryan v DPP

• Jurisdiction: Ireland
• Judge: Ms. Justice O'Regan
• Judgment Date: 29 June 2016
• Neutral Citation: [2016] IEHC 380
• Docket Number: [2016 No. 278 J.R.]
• Court: High Court
• Date: 29 June 2016

[2016] IEHC 380

THE HIGH COURT

JUDICIAL REVIEW

O'Regan J.

[2016 No. 278 J.R.]

BETWEEN

DAVID RYAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

Constitution – Art. 40 of the Constitution – Crime & Sentencing – S. 2 of the Criminal Damage Act 1991 – S. 99 (9) of the Criminal Justice Act 2006 – Revocation of suspension – Judicial review – Acquiescence

Facts: The applicant sought an order of certiorari for quashing the order of the District Court and an order of the Circuit Court imposing the sentence of imprisonment on the applicant by revocation of the suspended sentence on remand by the said District Court in relation to the committal of the subsequent offence in breach of condition of original offence for which the suspension was ordered. The applicant contended that since s. 99 (9) and s. 99 (10) of the Criminal Justice Act 2006 had been declared unconstitutional, his detention was unlawful.

Ms. Justice O'Regan refused to grant the desired reliefs to the applicant. The Court held that since the present application was grounded under art. 40 of the Constitution, it was necessary to look upon the lawfulness of the applicant's conviction. The Court found that the applicant pleaded guilty to both the original and the subsequent offence, and had been given appropriate opportunity at the trial represented by lawyers to plead his case and thus, his conviction was deemed to be in accordance with the law. The Court held that since the case of the applicant had attained finality and he did not even once expressed his desire to appeal his revocation of portion of suspended sentence under s. 99 (12) of the Criminal Justice Act 2006, the institution of judicial review proceedings at the present stage was of no avail as the applicant could have taken an objection to the constitutionality of the statute at the stage of the trial. The Court found that the applicant did not suffer any prejudice or discrimination by virtue of declaration of unconstitutionality, like in Moore & Ors. v. Ireland & Ors. [2016] IEHC 244, as the present applicant was not a person who was convicted after a trial in the District Court who wished to appeal that case, but was unable to do so prior to the case being remanded to the Court that had imposed the original suspended sentence.

JUDGMENT of Ms. Justice O'Regan delivered on the 29th day of June, 2016

Background

1 By order of Mr. Justice Noonan of 4th May, 2016 the within Applicant was afforded leave to apply by way of application for judicial review for an order quashing the order of Cashel District Court made on 29th February, 2016 pursuant to s. 99(9) of the Criminal Justice Act 2006 together with an order quashing the order of Clonmel Circuit Court made on 3rd March, 2016 pursuant to s. 99(10) of the 2006 Act.

2 By way of amended statement of opposition of the respondent of 7th June, 2016, the respondent is resisting the applicant's claim on the grounds that:-

i. the proceedings constitute a collateral attack on the criminal process in all of the circumstances;

ii. the applicant has failed to demonstrate any lack of jurisdiction in the orders made, and;

iii. by virtue of the conduct of the applicant he has acquiesced to the orders being made.

Proceedings prior to the within application for judicial review

3 The following is a brief synopsis of the proceedings had prior to the application for judicial review:

i. On 11th July, 2013, the applicant was arrested for having committed four offences including the offence of criminal damage contrary to s. 2 of the Criminal Damage Act 1991 (the original offence).

ii. On 24th October, 2013, the applicant signed pleas in respect of each of the four charges and on 8th November, 2013, he confirmed his signed plea before Clonmel Circuit Court.

iii. On 29th April, 2014, Clonmel Circuit Court imposed a total cumulative sentence of six years with the final three and a half years suspended. The sentence was backdated to 13th July, 2013. The suspension was afforded on the basis that the applicant would keep the peace and be of good behaviour towards all the people of Ireland for a period of five years from the date of his release from prison and that he remain entirely alcohol free during said period.

iv. The applicant was released from Cork Prison on 24th May, 2015.

v. On 27th January, 2016, the applicant committed a criminal damage offence contrary to s. 2 of the Criminal Damage Act 1991 (the trigger offence).

vi. On 20th February, 2016, the applicant was brought before Cashel District Court where he pleaded guilty to this offence of criminal damage. The applicant was remanded in custody under s. 99(9) to Clonmel Circuit Court on 3rd March, 2016.

vii. On 3rd March, 2016, the applicant appeared before Clonmel Circuit Court and Judge Teehan revoked the suspended sentence and imposed two and a half years of the three and a half years remaining on the sentence. At that hearing the applicant engaged the provisions of s. 99(10) in or about an application to resist the revocation of the suspended sentence. The applicant did not challenge the jurisdiction of the court at that time nor did he appeal the order of revocation of the suspended sentence, as was available under s. 99(12).

Applicant's submissions

4 The applicant in the instant matter accepts that he pleaded guilty to both the initial offence and the trigger offence, that he breached the condition to be of good behaviour and by the date of the trigger offence he had consumed alcohol but nevertheless states he is entitled to the orders sought in his judicial review application because:

i. His current application (judicial review), although no appeal was made in respect of the revocation of a suspended sentence under s. 99(12), was processed within the time limits to bring an application for judicial review and therefore there was no finality of the process to debar him from the relevant relief.

ii. The applicant claims, in the alternative, even if there was finality nevertheless his conduct is insufficient to debar him from the relief as:-

a. it is asserted that he did not acquiesce in any way with regard to the revocation of the suspension of the original sentence;

b. the seriousness of his offence was much less than the offence, for example in the case of Clarke v. Governor of Mountjoy Prison [2016] IEHC 278, of robbery and possession of firearms;

c. furthermore he seems to distinguish himself from the Clarke status in that his suspension was three and a half years whereas in the Clarke case the applicant had secured a suspension of seven years;

d. finally he also suggests that the extent of the breach to keep the peace and be of good behaviour was minimal and confined to the date of the trigger offence.

Current Issues

5 The parties in this case fairly agree that the applicant will be precluded from seeking the relief in his application for judicial review if:-

a. the case of the applicant had reached finality – if so, the within application would be considered a collateral attack (see A v. Governor of Arbor Hill Prison [2006] 4 I.R. 88); and

b. if the case had not reached finality, nevertheless the applicant may be barred from securing the relief based upon his conduct. (see Henchy J.'s judgment in The State (Byrne) v. Frawley [1978] I.R. 326).

Case law

6 In the case of Moore & Ors. v. Ireland & Ors. [2016] IEHC 244, Mr. Justice Moriarty, in the High Court in a judgment delivered on the 19th April, 2016, found (‘in the context of the facts reviewed and the arguments...