Supreme Court allows appeal where reactivation of suspended sentence violated invalid statutory procedure under Criminal Justice Act 2006.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2017:000112

O’Donnell J.

Dunne J.

Charleton J.

O’Malley J.

Finlay Geoghegan J.

Between/

Eric Wansboro

Applicant/Appellant

AND

The Director of Public Prosecutions and the Governor of Mountjoy Prison

Respondents

Judgment of O’Donnell J. delivered the 20th day of December 2018

1 I am happy to adopt the comprehensive account of the facts and relevant law contained in the judgment of Dunne J. I agree with

her judgment and the conclusions which she reaches. However, I sympathise fully with the concerns which have led Finlay Geoghegan

J. to deliver a dissenting judgment. I am also conscious of the fact that today’s decision takes a different course from a number of

High Court judgments, and at least one judgment of the Court of Appeal. The case also touches upon issues of broader concern. For

these reasons, I wish to set out briefly my reasons for agreeing, with some reluctance, that the appeal in this case must be allowed.

2 Section 99 of the Criminal Justice Act 2006 (as amended) (“the 2006 Act”) did not, of course, invent the suspended sentence. It

has a long and broadly beneficial history in Irish law, as recounted in the valuable article by Osborough, ‘A Damocles’ sword

guaranteed Irish: the suspended sentence in the Republic of Ireland’(1982) 17(2) Irish Jurist 221. Despite (or perhaps because of) its

frequent use in Irish courts, until recent legislative intervention, s. 99 it had given rise to few issues which troubled the superior

courts. In my judgment in Director of Public Prosecutions v. Carter [2015] IESC 20, [2015] 3 I.R. 58, I said that the provisions of the

section may have represented a worthy attempt to place the practice of the suspended sentence on a sound legislative footing.

However, it was also observed that the section was drafted in a prescriptive fashion (no doubt to try and control the process and

ensure a smooth and prompt processing of the reactivation of suspended sentences), but that it was unfortunately open to real

doubt whether s. 99 was capable of achieving those objectives. In the event, the doubts there expressed crystallised and the section

was found to be repugnant to the provisions of the Constitution in Moore v. Director of Public Prosecutions [2016] IEHC 244,

(Unreported, High Court, Moriarty J., 19 April 2016). For present purposes, the important outcome of that judgment was that s. 99(9)

and (10) of the 2006 Act was therefore invalid in accordance with the provisions of Article 15.4.2° of the Constitution. That decision

was not appealed.

3 The basic and insurmountable difficulty posed by s. 99(10) was that it required the sentencing court to revoke the suspension

unless it considered it to be unjust, and furthermore required that step to be taken before sentence was imposed for the trigger

offence. However, this procedure did not provide for the possibility that the trigger offence conviction might be set aside on appeal,

in which case the suspended sentence ought not to have been reactivated, with consequent injustice to the individual.

4 It is immediately apparent that the appellant here cannot assert any such injustice in his case. He pleaded guilty to the trigger

offence, and accordingly there was no prospect that that conviction could ever be reversed. It followed, therefore, that the question

of the reactivation of the suspended sentence which was imposed on condition that he be of good behaviour ought properly to have

been addressed. In the event, both matters were dealt with before the judge, the sentence was reactivated, and a sentence was

imposed for the trigger offence. However, the appellant now seeks to rely on the invalidity of s. 99(10) of the 2006 Act as established

in law to quash the reactivation of his sentence, which was concededly made under that now invalid section. To adapt the vivid

language used in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88, although he himself could not have established

the gap in the legislative scheme, he now seeks to march through the gap created by the invalidity of s. 99(10).

5 In addition to the absence of any injustice in the operation of this subsection in the appellant’s case, the outcome of this case, if

the appellant were to succeed, is something that could be viewed as something less than the full administration of justice. If the

appellant should succeed in having the reactivated sentence finally quashed (without the prospect of any subsequent re-

consideration of reactivation, whether by remittal of the case or otherwise) then he would not only avoid the reactivated sentence,

but he would also benefit from the fact, as Finlay Geoghegan J. points out, that his sentence for the trigger offence was approached

on the totality principle: that is, the sentencing judge took account of the fact that the same event gave rise to two periods of

imprisonment. It is reasonable to assume that, had the trigger offence been approached on its own, the sentence for that offence

would have been greater.

6 This is more troubling because the issue raised is essentially procedural. Section 99 of the 2006 Act, as already observed, merely

sets out a procedure for the reactivation of suspended sentences. There is nothing wrong in principle with the idea that if a sentence

is suspended on certain terms, then it should be open to reactivation in the event that those terms are not complied with, most

obviously if a further offence is committed. Indeed, insomuch as the imposition of a suspended sentence is considered to be the

administration of justice, then the prevention of any mechanism for reactivation of the sentence might be seen to be incompatible

with, and indeed a frustration of, the administration of justice.

7 For my part, I do not think it is enough to shrug off this outcome as a consequence of insufficiently practical drafting, coupled with

an unhealthy desire for legislative micromanagement of decisions in criminal cases, although there is, of course, merit in both

observations. It seems likely that the impact of the decision in Moore v. Director of Public Prosecutions [2016] IEHC 244, (Unreported,

High Court, Moriarty J., 19 April 2016) will be relatively limited, because of what is in this context almost the happenstance that s.

99(17) may provide an alternative legislative route to reactivation of suspended sentences. If so, then that outcome is of little

practical benefit to anyone, albeit achieved at some expense in terms of both time and cost. Even if that is the outcome (and I do

not exclude the possibility of further argument in this or other cases in this regard), it would be a dispiriting exercise in legal futility,

unlikely to enhance respect for the law. If however the outcome is that this and any other similarly situated convicted person were to

end up serving less by way of sentence (with appropriate remission) than was imposed by the sentencing judge, then that is unlikely

to inspire confidence in the system. I agree therefore that neither outcome should be readily accepted without careful scrutiny.

8 However, cases must be approached with the limits, even broadly interpreted, of the arguments advanced. For a number of

reasons, the arguments in this case, although extensive, were not necessarily addressed to the broadest range of the issues arising in

this case. First, it might well be that the decision in Moore v. Director of Public Prosecutions [2016] IEHC 244, (Unreported, High

Court, Moriarty J., 19 April 2016) might have benefitted from a consideration of the possibility of suspending the declaration of

invalidity to permit amending legislation. This is something touched upon in the subsequent decisions of this court in N.H.V. v. Minister

for Justice and Equality [2017] IESC 35, [2018] 1 I.R. 246 and N.H.V. v. Minister for Justice and Equality [2017] IESC 82,

(Unreported, Supreme Court, 30 November 2017) and considered in some detail in the judgments in C. v. Minister for Social Protection

[2018] IESC 57, (Unreported, Supreme Court, 28 November 2018). Insomuch as s. 99 of the 2006 Act is essentially procedural, or

perhaps more accurately that the problem created by the invalidation of s. 99(10) might be capable of being cured by procedural

steps, it may have been possible to address that possibility, and thereby limit the extent of the invalidity to the repugnancy

identified, consistent with Article 15.4.2°. I accept, however, that this was entirely speculative at the time, and is not by any means

clear cut now.

9 On a more general level, however, the case raises the fundamental question of the impact of any finding of invalidity on acts done

pursuant to a legislative provision subsequently invalidated. Indeed, in this case, legislation did not merely permit the course to be

taken, but required it as the exclusive route for reactivation of a suspended sentence. Similar problems have been discussed in some

of the most significant cases in our recent jurisprudence, including State (Byrne) v. Frawley [1978] I.R. 326, Murphy v. Attorney

General [1982] I.R. 241, and, of course, A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 I.R. 88. The question of

whether these cases are examples of a broader principle was in turn discussed in the recent decision of this court in C. v. Minister for

Social Protection [2018] IESC 57, (Unreported, Supreme Court, 28 November 2018). However, that broader question was not

canvassed in these proceedings, and I do not think that within the context of the argument in this case it can be said that the

appellant’s situation can be brought within the existing jurisprudence. Instead, as observed in the judgments of Dunne and Finlay

Geoghegan JJ., the question really revolves around the application of the principle of finality identified in A. v. Governor of Arbour Hill

Prison.

10 I am also troubled by the idea that the existence of an appeal can permit a separate judicial review to be brought. This, if

anything, appears to run counter to the jurisprudence, now embodied in O. 84 of the Rules of the Superior Courts, that the existence

of an appeal, if relevant, may be a reason to refuse relief in judicial review. I agree, however, that for present purposes the question

can be approached by considering whether the appellant would be entitled to assert the invalidity of s. 99(10) of the 2006 Act in his

appeal. If so, no useful purpose would be served by refusing relief in this case. Extensive authority has been canvassed in the

submissions, but what ultimately influences me is the nature of the contention sought to be raised. The argument here is not an issue

going to the admissibility of evidence obtained pursuant to an invalid statute. Nor do I think it can be successfully characterised as

merely a slip in a process for bringing someone before a court, such as those discussed in Attorney General (McDonnell) v. Higgins

[1964] I.R. 374, or The State (Attorney General) v. Fawsitt [1955] I.R. 39. As O’Malley J. observed in Director of Public Prosecutions

v. Carter [2014] IEHC 179, (Unreported, High Court, O’Malley J., 21 March 2014) at para. 36, there is some tension between this line

of authority and other cases such as Killeen v. Director of Public Prosecutions [1997] 3 I.R. 218 and Director of Public Prosecutions

(Ivers) v. Murphy [1999] 1 I.R. 98. However, s. 99 is drafted in deliberately prescriptive terms. Each step is required, and the

subsequent steps are made conditional on the completion of the prior steps. In simple terms, in order to have sentence reactivated

under s. 99(10), it is necessary to have been remanded under s. 99(9). Here the reactivation was concededly made under s. 99(10).

The significance of these interlocking procedural steps was addressed in the judgment of in Director of Public Prosecutions v. Carter

[2015] IESC 20, [2015] 3 I.R. 58 at p. 91, as follows:

“In cases such as Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 I.R. 98, and others, it is important that the

defect is in securing the attendance of the accused before a court which itself has jurisdiction to try the accused or

otherwise deal with him or her. The provision which is not complied with in such a case does not relate to the substantive

jurisdiction of the court to try the accused for the particular offences. Where however compliance with a statutory

provision is a condition precedent to the exercise of the jurisdiction or itself a proof which must be established (as in the

cases under s.49 of the Road Traffic Act 1961, as amended) then the breach is not irrelevant but can in a general sense

be said to go to jurisdiction either to try the accused or otherwise deal with him or her.” (Emphasis added).

11 I appreciate the fact that the appellant, acting without legal representation, filed a notice of appeal which might be seen as

related simply to severity of sentence, but I do not think that an appellate court would preclude him from now raising a point in the

appeal going to the jurisdiction of the court to reactivate the sentence, which is the jurisdiction sought to be exercised by the court.

If so, there is no good reason prevent the appellant from raising the point in these proceedings. For these reasons, I agree with the

judgment of Dunne J., and would allow the appeal.