White v District Judge Watkin
| Jurisdiction | Ireland |
| Judge | Mr Justice Max Barrett |
| Judgment Date | 26 May 2016 |
| Neutral Citation | [2016] IEHC 258 |
| Docket Number | Record No. 2015/26/JR |
| Court | High Court |
| Date | 26 May 2016 |
[2016] IEHC 258
THE HIGH COURT
Barrett J.
Record No. 2015/26/JR
Crime & Sentencing – Conviction under Road traffic offences – Failure to appear – Sentence in absentia – Judicial review – Certiorari – Breach of fair procedures – audi alterem partem
Facts: The applicant sought an order of certiorari for quashing the orders of the first named respondent on sentencing the applicant for contravention of certain road traffic offences in his absence. The applicant contended that the principle of fair procedures and constitutional justice were contravened as he was denied the opportunity to apprise the first named respondent about mitigating factors before pronouncement of sentence.
Mr. Justice Max Barrett refused to grant an order of certiorari to the applicant. The Court found that there had been contravention of fair procedures in the present case as the applicant had pleaded guilty in person and he was aware of the date on which the sentencing was to occur and despite being warned by his counsel about sentence in absentia, he had failed to appear before the Court at each instance. The Court held that a District Court was not mandated to ensure the presence of the accused by means of a bench warrant so that the mitigations factors could be ascertained by the District Court before making an order on the quantum of sentence. The Court observed that there was no breach of principle of audi alterem partem in the present case, as the applicant had been given various opportunities to be heard, which he himself failed to avail.
Time and tide wait for no man. Ultimately, neither do the courts. Mr White, a veteran of the criminal justice system, pleaded guilty to a number of road traffic offences on 1st October, 2014. His sentencing was scheduled for 22nd October but he failed to appear. His sentencing was then re-scheduled for 12th November but he failed to appear. His sentencing was then re-scheduled for 10th December and his lawyer was told to advise Mr White that if he failed to appear, sentencing would proceed in his absence. The 10thof December came and Mr White again failed to appear. The learned District Judge gave him a good part of the day to see if he would turn up and then eventually proceeded to sentence Mr White in his absence. Mr White comes now to court seeking, amongst other matters, that his sentence be quashed on the basis that in proceeding to sentence him so, the learned District Judge erred in law. Regrettably for Mr White, his application must fail.
On 1st October, 2014 Mr White pleaded guilty to drunk driving, dangerous driving, driving without insurance, and driving without a licence. This comes on top of a previous 35 convictions and has the result that Mr White has now amassed more convictions than he has years. Following his guilty plea, which came on the heel of a number of non-appearances and several bench warrants, Mr White's sentencing was adjourned to 29th October, 2014. The court was told on that date that Mr White's partner was having a baby and that in consequence he could not attend. The learned District Judge accepted this excuse and adjourned matters to the following 12th November. On that later date, the learned District Judge was told that Mr White was unable to attend because his sister was seriously ill. The learned District Judge accepted this excuse and again adjourned matters, this time to 10th December. However, she told Mr White's legal representative to advise Mr White that if he did not appear on the December date, sentencing would proceed in his absence.
On 10th December, Mr White's counsel rose in court to advise the learned District Judge that Mr White had missed the early bus from Limerick and would not be coming to court. Based on her previous dealings with Mr White, the learned District Judge let the matter stand until the early afternoon. At that time, with nary a sight of Mr White, the learned District Judge proceeded to sentence. She heard Garda evidence about Mr White's previous convictions. She took account of the fact that Mr White had two previous convictions for driving without insurance and one previous conviction for drunk driving and imposed a prison sentence of two months. Mr White contends that in proceeding as she did, the learned District Judge erred in law. A recovering drug addict, Mr White's particular grievance is that if the learned District Judge had but waited to hear from him in person, he would have apprised her of his good progress in terms of recovery as well as his generally managing to keep out of trouble, all of which might have led to his being considered a candidate for community service.
The various reliefs sought by Mr White at the leave stage have since been whittled down by his counsel to the following three key reliefs:
(1) an order of certiorari quashing the orders made by the learned District Judge in respect of Mr White on 10th December, 2014;
(2) an order of prohibition and/or in the alternative an injunction restraining the learned District Judge and the DPP from proceeding to take any further steps in relation to the charges contained in the summonses that formed the basis of the proceedings before the learned District Judge; and
(3) a declaration that the learned District Judge should not have sentenced Mr White in his absence to a term of imprisonment of two months and by so doing acted in excess of and/or without jurisdiction and contrary to the principles of fair procedures and natural and constitutional justice.
It is alleged by Mr White that:
(I) the learned District Judge erred in law and acted in excess of and/or without jurisdiction and contrary to the principles of fair procedures and natural and constitutional justice in (i) proceeding to sentence Mr White to a significant term of imprisonment in his absence without good or sufficient reason; (ii) disregarding counsel's submissions that she (counsel) could not offer mitigation in Mr White's absence and that a bench warrant for sentence should issue; (iii) determining and imposing a significant custodial sentence without knowing Mr White's personal circumstances and other mitigating factors; (iv) undermining Mr White's constitutional right to be tried in due course of law; and (v) denying the applicant his rights pursuant, inter alia, to the European Convention on Human Rights.
(II) the learned District Judge acted in excess of and/or without jurisdiction in refusing to issue a bench warrant for the arrest of Mr White once a custodial sentence came within her contemplation, when this (allegedly) was the only mechanism that would ensure that justice was done.
(III) the learned District Judge erred in law and acted in excess of and/or without jurisdiction by denying Mr White an opportunity to put forward mitigation in breach of the principle of audi alterem partem.
The court notes in passing that it accepts the contention of counsel for Mr White that in the context of a household that may be largely dependent on such income or unemployment benefit as a convicted person may be “bringing in”, even a two month sentence of imprisonment is significant. Indeed the court's impression from some of the applications that it hears is that prison is sufficiently unpleasant an environment that any but perhaps the very briefest sentence of imprisonment would have the potential to be considered significant.
As ever, counsel have laboured hard in the field and gathered a rich harvest of judgments that identify the law relevant to this application. Perhaps four cases suffice to decide the matters at hand, viz. Brennan v. Windle and Others [2003] IESC 48, Callaghan v. Governor of Cloverhill Prison [2007] IEHC 294, O'Brien v. Coughlan [2011] IEHC 330 and the decision of the Supreme Court on appeal in O'Brien v. Coughlan [2013] IESC 4. The court turns briefly to consider each of these cases.
The facts of Brennan are rather curious. Summonses alleging certain road traffic offences were not served on Mr Brennan or on any person who told him about them; it may be that they were served on his aunt but she appears to have never mentioned them to him. In consequence, Mr Brennan was not aware of the date set for the hearing of his case, not unsurprisingly did not turn up, and was tried and sentenced in his absence. On appeal from a refusal in the High Court to quash the conviction and sentence, a three-judge Supreme Court allowed the appeal.
In the Supreme Court, three grounds of appeal were relied upon. The two most relevant for the purposes of this judgment were that the DistrictJudge in that case (i) erred in law and acted in excess of jurisdiction in the circumstances in not affording Mr Brennan due process and/or fair procedures or natural/constitutional justice; and (ii) erred in the exercise of his discretion in not deeming it appropriate to issue a bench warrant for the arrest of Mr Brennan, a course which would have enforced the attendance of Mr Brennan before the District Court.
Two judgments were delivered in the Supreme Court. The one that has tended to attract greater later attention is that of Geoghegan J. who observes, inter alia, at 509 et seq:
‘I move, therefore, to the second ground for seeking to quash the conviction and sentence. This is essentially a natural justice ground. What is argued on behalf of [Mr Brennan]…is that [the learned District Judge]…should not have proceeded to hear the case and impose a conviction and, above all, a sentence of imprisonment...
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