Wansboro v DPP and anor

JurisdictionIreland
JudgeClarke C.J.,O'Donnell J.,McKechnie J.,MacMenamin J.,Dunne J.,Charleton J.,O'Malley J.
Judgment Date20 November 2017
Neutral Citation[2017] IESCDET 115
CourtSupreme Court
Date20 November 2017
BETWEEN
ERIC WANSBORO
APPLICANT
AND
THE DIRECTOR OF PUBLIC PROSECUTIONS

AND

THE GOVERNOR OF MOUNTJOY PRISON
RESPONDENT

[2017] IESCDET 115

Clarke C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

THE SUPREME COURT

DETERMINATION

RESULT: The Court grants leave to the Applicant to appeal to this Court directly from the High Court.
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.4° OF THE CONSTITUTION APPLIES
1. Jurisdiction
1

This determination relates to an application by the applicant in the underlying proceedings (‘Mr. Wansboro’) for leave to appeal, under Art. 34.5.4 of the Constitution, directly from the judgment of the High Court (Faherty J.) delivered on the 16th June, 2017. The order appealed against was also made on the 16th June, 2017, and perfected on the 6th July, 2017. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.

2

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave a having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

2. The Proceedings
3

The issue in the underlying proceedings arose out of the decision of the High Court (Moriarty J.) in Moore & Ors v. DPP (2006) IEHC 434. In that case it was determined that the provisions of ss. 99(9) and (10) of the Criminal Justice Act 2016 were invalid having regard to the Constitution. Those sections were concerned with the activation of suspended sentences.

4

Mr. Wansboro maintained that, in the particular circumstances of his case and having regard to the decision in Moore, an order made by the Circuit Court requiring him to serve certain re-activated sentences was itself invalid.

3. The Order appealed against
5

The High Court rejected Mr. Wansboro's claim for the reasons set out by Faherty J., in her judgment (Unreported, High Court, Faherty J. 16th June 2017). It is as against almost the entirety of that judgment (save for one minor matter) that Mr. Wansboro seeks to appeal directly to this Court.

4. The Contentions of the Parties
6

The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met.

7

As appears from his notice of application Mr. Wansboro contends that an issue of general public importance arises having regard to the fact that the section which led to the re-activation of his case was found, subsequently, to be unconstitutional. He maintains that this gives rise to important questions concerning the extent, if any, to which orders made under ss. 99(9) and (10) can remain in force.

8

In relation to his application for leapfrog leave it is suggested that there are now two decisions of the Court of Appeal which follow the same reasoning as that adopted by Faherty J. in this case. In those circumstances it is suggested that no useful purpose would be served in requiring Mr. Wansboro to first appeal to the Court of Appeal.

9

The State respondents, on the other hand, argue that the decision in this case, and indeed the decisions of the Court of Appeal to which reference has already been made, involve the application of settled legal principles.

5. Discussion
10

As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

11

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

12

The Court is satisfied that this appeal does raise an issue of general public importance. It is correct that the settled case law of the Irish Courts makes clear that it does not necessarily follow from a declaration of unconstitutionality that all orders made under the provision which is rendered invalid by such a declaration must themselves be taken to have no effect. However, the precise circumstances in which orders made under impugned legislation can continue to have effect is both a matter of considerable importance and one whose application to the particular circumstances of a category of case may, in some instances, be debatable. On that basis the Court concludes that the general constitutional threshold has been met.

13

However, there is a further important issue raised on this application which is as to whether it is appropriate to grant leapfrog leave in all the circumstances of this case.

6. Leapfrog Leave
14

This Court has already given some consideration to the general principles...

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