Wansboro v DPP

JudgeMs. Justice Faherty
Judgment Date16 June 2017
Neutral Citation[2017] IEHC 391
Docket Number[2016 No. 319 J.R.]
CourtHigh Court
Date16 June 2017

[2017] IEHC 391



Faherty J.

[2016 No. 319 J.R.]


Constitution – Crime and Sentencing – Ss. 99 (9) and (10) of the Criminal Justice Act, 2006 – Failure to appeal – Finality of decision – Trigger offence – Activation of suspended conviction – Jurisdiction of Court

Facts: The applicant sought judicial review of an order of the Circuit Court on the ground of unconstitutionality. The applicant contended that based on the judgment of the High Court in Moore & Ors. v. The Director of Public Prosecutions [2016] IEHC 434, the Circuit Court did not have the statutory power to exercise under ss. 99 (9) and (10) of the Criminal Justice Act, 2006. The respondent contended that the applicant had failed to appeal his decision at the time the trial Court reactivated the suspension of sentence of the applicant for breach of conditions of such suspension, and thus, the decision had attained finality. The respondent further argued that the applicant did not challenge the constitutionality of ss. 99(9) and (10) at the time of his conviction for the triggering offence and did not evince an intention to appeal that sentence, thus, he could not take benefit of the judgment in Moore. The key issue arose as to whether the applicant was precluded from obtaining the benefit of the declaration of unconstitutionality.

Ms. Justice Faherty denied the relief sought by the applicant. The Court held that there was no denial of fundamental process or non-observance of due process of law by the Circuit Court. The Court found that the applicant did not show any intention to appeal either his reactivation of the suspended sentence or the conviction for the triggering offence at the relevant time, and therefore, he could not invoke the unconstitutionality in the judgment in Moore.

JUDGMENT of Ms. Justice Faherty delivered on the 16th day of June, 2017

This matter comes before the court by way of an application for judicial review.


On 14th November, 2013, the applicant appeared at Dublin Circuit Criminal Court in respect of Bill No. 298/2012. He received a three year and two six month concurrent sentences from Her Honour Judge Ring (as she then was). These custodial sentences were for an offence of the unlawful taking of a vehicle, contrary to s. 112 of the Road Traffic Act 1961 (as amended), a drink driving offence and driving without a driving licence respectively. These sentences were however suspended in their entirety for a period of three years on conditions.


On 22nd April, 2015, the applicant pleaded guilty to an offence of dangerous driving causing death and serious injury on Bill No. 99/2015. This offence was committed on 29th May, 2014. At the time of this incident, the applicant was driving the vehicle concerned away from pursuing gardaí. The applicant was remanded in custody until 18th May, 2015, for the purpose of a sentence hearing in respect of the offence on Bill No. 99/2015 and for the potential activation of the suspended sentences which were imposed on 14th November, 2013, on foot of Bill No. 298/2012.


On 18th May, 2015, Judge Ring heard evidence relating to the facts on Bill No. 99/2015 and also relating to the applicant's background and circumstances. Having heard further submissions from counsel for the applicant, she proceeded to order the activation of the three year sentence in respect of count 1 on Bill No. 298/2012 in its entirety as well as the two concurrent six month sentences in respect of counts 6 and 7 on the same Bill number, all of which were to run concurrently and to commence from 27th January, 2015.


Judge Ring then imposed a sentence of five and a half years imprisonment on Bill No. 99/2015, the said sentence to commence on the lawful expiration of the sentence on Bill No. 298/2012.


The learned trial judge pointed out that pursuant to the provisions of the legislation the five and a half year prison sentence imposed for the dangerous driving offence was required by law to be consecutive to the three year sentence required to be served pursuant to s. 99 (10) of the Criminal Justice Act 2006 (as amended) (‘the 2006 Act’).


It is clear from the transcript that in imposing the five and a half year sentence, Judge Ring took into account that the applicant had been driving the vehicle the subject of the charge on Bill No. 99/2015 at a time when he was disqualified from driving (and subject to the suspended sentence).


Committal warrants were issued to give effect to the aforesaid Orders and the applicant is currently in the custody of the second named respondent on foot of same.


On 20th May, 2015, the applicant filed a notice of appeal against the Order made in respect of Bill No. 208/2012 and also against the severity of the sentence imposed on Bill No. 99/2015.

The event which gave rise to the within application

On 19th April, 2016, it was determined by the High Court (Moriarty J.) in the case of Moore & Ors. v. the Director of Public Prosecutions [2016] IEHC 434 that the provisions of s. 99 (9) and (10) of the 2006 Act were invalid having regard to the provisions of the Constitution.


On 9th May, 2016, the High Court (Noonan J.) gave the applicant leave to seek, inter alia, an Order quashing the Order of the Circuit Court on 18th May, 2015, pursuant to s. 99 (10) of the 2006 Act in respect of Bill No. 298/2012; an Order of certiorari quashing the committal warrant issued pursuant to the aforesaid Order; and a declaration that the applicant is currently being held in unlawful detention by the second named respondent on foot of the aforesaid committal warrant.


In his written submissions in the within proceedings, counsel for the applicant acknowledges that relief pursuant to the provisions of Art. 40 of the Constitution was not sought on the grounds that if the relevant committal warrant in respect of the sentence of three years imprisonment (and the two six month concurrent sentences) issued pursuant to the Order of Judge Ring on 18th May, 2015, in respect of Bill No. 298/2012 were found to be invalid and quashed, the Order providing for a five and a half year custodial sentence in respect of Bill No. 99/2015 would remain valid and effective in law. The applicant thus acknowledges that the effect of the within proceedings, if successful, would be that the five and a half year sentence imposed in respect of Bill No. 99/2015 would be deemed to have taken effect at the time of its imposition rather than on the expiration of the sentences imposed in respect of Bill No. 298/2012.


The principal grounds upon which the applicant seeks relief can be summarised as follows:

1. As a consequence of the declaration of invalidity arising from the decision in Moore, the Circuit Court did not have the statutory power it purported to exercise under ss. 99 (9) and (10) on 18th May, 2015;

2. The Circuit Court did not have available to it any common law power to activate the applicant's suspended sentence which might have afforded it the authority to do so in the absence of a valid statutory power;

3. For these reasons, the Order made by Judge Ring activating the applicant's suspended sentence was made ultra vires and in excess of jurisdiction, and was unlawful. Consequently the committal warrant which was issued to give effect to the Order was likewise unlawful.

4. It was recognised in A. v. Governor of Arbour Hill Prison [2006] IESC 45 that it was only in exceptionally circumstances that a case in which finality had been reached could be disturbed by a subsequent declaration of unconstitutionality. In Director of Public Prosecutions v. Cunningham [2012] IECCA 64, it was held that this general principle does not apply where finality has not been reached in criminal proceedings. There has not been finality in the instant case as the applicant has lodged an appeal to the Court of Appeal which remains live. For this reason, the decision in A v. Governor of Arbour Hill Prisondoes not pose an obstacle for the applicant seeking to rely in these proceedings on the declaration of constitutionality made in Moore.

5. Further and/or in the alternative, for the reasons set out, the impact of the particular declaration of unconstitutionality Moore was such as to entirely deprive the Dublin Circuit Court of jurisdiction to consider the issue of activation of the suspended sentence.


In order to put the respective submissions of the parties in this application into context it is necessary to refer to a body of jurisprudence which followed the decision in Moore.

Post- Moore jurisprudence

It is common case that the finding of unconstitutionality in Moore led to the institution of a number of Art. 40 and judicial review applications wherein a number of prisoners sought to obtain the benefit of the decision. Written judgments were delivered in both the High Court and Court of Appeal in a number of cases. In all of the cases, the applicants were unsuccessful. The cases include: Clarke v. Governor of Mountjoy Prison [2016] IEHC 278; Clarke v. Governor of Mountjoy Prison [2016] IECA 244; Foley v. Governor of Portlaoise Prison [2016] IEHC 334; Foley v. Governor of Portlaoise Prison [2016] IECA 411; Ryan v. Director of Public Prosecutions [2016] IEHC 380 and Larkin v. Governor of Mountjoy Prison [2016] IEHC 680.


Clarke involved a post Moore challenge, where Mr. Clarke had an appeal pending concerning the activation of suspended sentences by His Honour Judge McCartan on 4th November, 2014.


In the High Court, having reviewed the authorities (including A. v. Governor of Arbour Hill Prison) on the effect of a finding of unconstitutionality, McDermott J. accepted that the applicant could seek to rely on the declaration of...

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1 cases
  • Wansboro v DPP
    • Ireland
    • Supreme Court
    • 20 December 2018
    ...delivered on the 20th day of December, 2018. 1 This appeal is from a refusal of the High Court (Faherty J.) delivered on 16 June 2017 ( [2017] IEHC 391) of an application primarily for an order of certiorari quashing an order made by Her Honour Judge Mary Ellen Ring (as she then was) in the......

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