Supreme Court dismisses appeals where committal warrants contain minor clerical errors despite valid underlying court orders.

THE SUPREME COURT

[Appeal No. S:AP:IE:2017:000121]

Clarke C.J.

McKechnie J.

Dunne J.

O'Malley J.

Finlay Geoghegan J.

BETWEEN

SANDRA MAGUIRE

APPLICANT/APPELLANT

AND

GOVERNOR OF DÓCHAS CENTRE

RESPONDENT

AND

[Appeal No. S:AP:IE:2017:000117]

BETWEEN

THOMAS BRENNAN

APPLICANT/APPELLANT

AND

THE GOVERNOR OF CASTLEREA PRISON

RESPONDENT

Judgment of Ms. Justice Dunne delivered the 8th day of February 2019

1. The above entitled proceedings were part of a series of cases which were unrelated in themselves but in which the same legal

issues arose for consideration. Apart from the two cases named in the title of this judgment, a further three cases were the subject

of the judgment which is under appeal in these proceedings and those three cases involving Morufu Ademola Animashaun v. Governor

of Mountjoy Prison, Napoleon Silaghi v. Judge John O'Hagan and The Director of Public Prosecutions and finally Lucian Marina v. Judge

John O'Hagan and The Director of Public Prosecutions are also the subject of appeals to this Court and await the decision of this

Court in the appeal of these two cases which were heard together by this Court.

2. A single determination was made in respect of the applications for leave to appeal to this Court in all five cases and the issues in

relation to which leave to appeal can be summarised as follows:

• Whether an appeal from a criminal conviction and/or a sentence in the District Court to the Circuit Court requires a full

re-hearing in the Circuit Court in circumstances where the appellant fails to appear, or for other reason does not

prosecute his appeal.

• Whether the committal warrant issued by the Circuit Court following the imposition of, or affirmation of, a prison

sentence in an appeal from the District Court need necessarily record that the Circuit Court judge considered making a

community service order prior to, or as an alternative to, the imposition of a prison sentence of twelve months or less,

pursuant to s. 3 of the Criminal Justice (Community Service) (Amendment) Act 2011, and whether a committal warrant is

invalidated because it omits a reference to the sentencing judge having considered the suitability of a community service

order prior to imposition of a sentence.

Background

3. In order to explain the context of the legal issues that arise in these cases, it would be useful to set out the backgrounds of the

cases involving Ms. Maguire and Mr. Brennan. Ms. Maguire was convicted of stealing clothing, valued at €23.50 contrary to s. 4 of the

Criminal Justice (Theft and Fraud Offences) Act 2001. She was sentenced to three months imprisonment on the 11th September,

2015. On the same day, Ms. Maguire lodged a notice of appeal against the order of the District Court and she duly signed a

recognisance in respect of the appeal in the sum of her own bond of €500. On the 16th October, 2015, Ms. Maguire was present in

court and represented by counsel. Legal aid was assigned to Mr. Collier, solicitor. The case was adjourned to the 7th December, 2015

to allow full instructions to be taken and for consideration as to whether Ms. Maguire would appeal against severity of conviction and

sentence, or against severity of sentence only. On the 7th December, 2015, Mr. Collier appeared in court but neither Ms. Maguire nor

the prosecuting garda were present on that day. It was indicated to the court that the appeal was against severity of sentence only

and the case was adjourned to the 11th January, 2016.

4. On the 11th January, 2016, counsel appeared for Ms. Maguire but she herself did not appear on that date. Counsel did not have

instructions as to her whereabouts and asked for the matter to be put back to second calling. That was done. When the matter was

reached at second calling Ms. Maguire was still not present in court and despite an application for a further adjournment, the Circuit

Court judge refused to adjourn the matter further and affirmed the District Court order. It appears that no evidence was tendered to

the court in respect of the particulars of the charge or Ms. Maguire's circumstances and previous convictions. It further appears that

on the 11th January, 2016 Ms. Maguire was in fact an in-patient at Connolly Hospital, Blanchardstown. That was something which

was not known to her solicitor, to the prosecuting garda or to the Circuit Court. Finally, it was noted in the judgment of the learned

High Court judge, (Eager J.) in his judgment of the 30th June, 2016:

"There is no evidence before the court as to whether (a) the applicant contacted Mr. Collier with a view to finding out

when her appeal was listed, or (b) whether Mr. Collier wrote to the applicant informing her of the date to which the case

had been adjourned."

Mr. Collier in an affidavit sworn in these proceedings sought an inquiry under Article 40.4.2° of the Constitution in respect of the

warrant entitled "Committal Warrant after appeal" issued by the Dublin Circuit Court on the 11th January, 2016 on the basis that the

warrant contained an error on its face, in that it stated there had been a hearing of the appeal in circumstances where there was no

actual hearing on the appeal, as the order of the Circuit Court judge recited:

"No appearance, strike out appeal, affirm conviction and order of the District Court and ordered that the accused be

imprisoned for a period of three months."

5. It might be said at this point it is unfortunate, given that Ms. Maguire was in hospital at the relevant time, that no application was

made to re-instate her appeal as soon as that fact became known. Such an application might well have been open to favourable

consideration by the Circuit Court although such an application would necessarily depend on the circumstances in any given case.

(See Richards v O’Donohoe 2017 2 I.R. 157.)

6. The following are the facts in relation to Mr. Brennan. He was convicted on the 16th May, 2016 at Galway District Court of a

number of road traffic offences and was sentenced to a total of nine months imprisonment. He appealed his conviction having filed

recognisances. On the day for the hearing of the appeal which seems to have been an appeal against sentence only, Mr. Brennan did

not appear. The learned High Court judge (Donnelly J.) commented that:

"On the day in question, it appears that the Circuit Court judge behaved impeccably, giving him plenty of time to appear

on the day."

She quoted from the grounding affidavit of Mr. Chris Hogan, solicitor of Poe Kiely Hogan Lanigan, solicitors for the applicant, in the

affidavit grounding the application for an inquiry pursuant to the provisions of Article 40.4.2° of the Constitution where it is stated:

"I say and believe and am so informed by counsel that when the case was called for the third time on the 22nd July,

2016, and it was apparent that the applicant had not appeared, the State solicitor informed the Court that the applicant

had not appeared for his appeal the previous week and that the matter had been marked for entry (sic) against the

applicant and that the learned Circuit Court judge then struck out the appeal and affirmed the District Court orders."

I presume that the reference to the matter having been marked “for entry” is a mis-transcription of the word “peremptory”.

It appears that in the hearing before the High Court, four points were made in seeking to challenge the legality of the detention of Mr.

Brennan, namely that:

"It was contrary to fair procedures to make an order imposing a sentence without any hearing at all; secondly, the Court

was under an obligation at law to consider whether or not to impose community service; thirdly, there should have been

an express statement on the warrant that community service was rejected; and finally that there was an error on the

face of the record in which it was stated that this had been imposed after an appeal, but there was no such appeal."

In that case, Donnelly J. concluded that the warrant detaining Mr. Brennan was defective. She said:

"In fairness I don't think it has even been suggested that it can be reasonably assumed by reference to the information

contained in the warrant. What was being referred to was the information contained in the affidavit as to how the matter

took place. So what we have on the face of this warrant is in fact the exact opposite. We have a statement that there

was a hearing of the appeal and that the order was affirmed. So we don't have a statement by which that situation that

there was a hearing or indeed a truncated hearing took place because of the absence of the appellant. In my view, that

is a fatal omission. Jurisdiction has not been shown on this particular warrant in these particular circumstances."

As a result of her conclusions, it was directed that Mr. Brennan be released from custody. There are in total some seven warrants in

respect of Mr. Brennan and the critical part of the warrants is identical in each case and recites as follows:

"And whereas on the hearing of an appeal by the said accused against the said order, the Circuit Court judge for the

County of Galway on the 2nd July 2016 ordered as follows:

'Affirm conviction and order of the District Court and ordered that the accused be imprisoned for a period of [one]

month.'"

The period of imprisonment varied from warrant to warrant.

7. Ms. Maguire appealed the decision in her case to the Court of Appeal and the Governor of Castlerea Prison appealed the decision in

the case of Mr. Brennan to the Court of Appeal. The Court of Appeal dismissed Ms. Maguire's appeal and allowed the appeal in the

case of Brennan.

8. I have referred above to comments of the learned High Court judge which led to the decision to quash the warrants in the case of

Mr. Brennan. It would be helpful also to refer to a brief observation of the learned trial judge in the case of Ms. Maguire in the course

of the judgment in her case. At para. 43 it was stated by Eager J. as follows:

"Mr. Fitzgerald has raised a very novel position in relation to a practice which has existed for as long as I was practising

as a solicitor in the Circuit Court. And whilst this Court subscribes to the remarks made by Humphreys J. in Grant v. The

Governor of Cloverhill Prison [2015] I.E.H.C. 768, this Court takes the view that where a person is sentenced in the

District Court and fails to appear at the appellate Court, it is appropriate, having regard to the terms of the recognisance

and s. 6(a) of the Bail Act, that the court has the authority to strike out the appeal and affirm the District Court’s

sentence. This Court accepts the authorities which say that when an appeal is presented before the Circuit Court for

hearing, it is a de novo hearing, this is common case. What is not common case, however, is that when an accused fails

to appear at their appellate court, that the court should proceed with a de novo hearing. . . .

48. I am satisfied that the statutory provisions do not require that the Circuit Court hear the appeal if the appellant is not

prepared to prosecute the appeal."

9. Another point that would be useful to note at this stage is that in the course of dealing with the case of Mr. Brennan, Donnelly J.

commented on the issue of the arguments in relation to community service as follows:

"In any event, I don't consider that the Court has to consider community service in the particular circumstances where it

is not embarking on the hearing of an appeal because of the failure of the applicant to in fact prosecute his appeal. The

other matters as well, as to whether it's on the warrant, come within the Maguire decision and I need say nothing

further."

10. In the Maguire case, the learned trial judge commented at para. 45 in respect of the issue of community service as follows:

"I accept the authority of the Supreme Court in O’Brien v. Judge Coughlan and the Director of Public Prosecutions

(Unreported, Supreme Court, 28th June, 2016), as regards the failure of the warrant to indicate that either the District

Judge or the Circuit Judge failed to refer to the consideration of community service. This does not affect the legality of

the warrant detaining Ms. Maguire."

11. It will be apparent from the short outline of the circumstances of Mr. Brennan and Ms. Maguire that the principal difference in

relation to the issues raised in their respective cases concerns the form of wording used on the warrant committing each of them to

prison. In the case of Ms. Maguire the warrant made it clear that there had been no appearance and that as a result the appeal was

struck out. That in respect of Mr. Brennan made no reference to the fact that he had not appeared and that the order of the Court

had been to strike out the appeal.

The first issue

12. The appellants in their written submissions have proposed that the questions arising from the first issue can be broken down as

follows:

• Does the Circuit Court in a District Court appeal in a criminal case, have jurisdiction, in the unexplained absence of the

appellant, to affirm the order of the District Court without hearing any evidence or hearing any facts as to the charge or

the appellant's circumstances?

• Must the Circuit Court dispose of an appeal without any hearing in such circumstances, i.e. does it have jurisdiction not

to affirm the order of the District Court?

• If the Circuit Court has such a jurisdiction to affirm in such circumstances, must its order state that it was made where

there was no appearance by the appellant and where the appeal was struck out, and accordingly the hearing of the

appeal truncated by those circumstances?

13. I am not convinced that breaking down the issue to be considered by this Court in that way is entirely helpful but I note that in

the submissions generally, the submissions in relation to the first issue are broken down into two general categories, namely, the

jurisdiction of the Circuit Court in relation to appeals from the District Court in criminal cases; the second issue then raised by the

appellants is if there is jurisdiction to affirm a District Court order, must the Circuit Court order show on its face that it was made

where there was no appearance by the appellant and where the appeal was struck out on that basis?

14. The starting point for a consideration of the jurisdiction of the District Court and the Circuit Court on appeal from the District

Court is Article 34.3.4° of the Constitution which provides:

"The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined

by law."

15. It is not necessary for the purpose of these appeals to consider the extent of the right of appeal. Suffice to say that in the case

of The State (Hunt) v. O'Donovan [1975] I.R. 39, Finlay J. (as he then was) commented at p. 56:

"It cannot be suggested that there was ever a common-law right of appeal from such a court of local and limited

jurisdiction."

16. In circumstances where it is clear that there is no common law right of appeal from a court of local and limited jurisdiction, it is

necessary then to consider the statutory provisions which provide for appeals.

Relevant statutory provisions

17. Both the appellants and the respondents have referred in the course of their submissions to a number of statutory provisions

which provide for appeals from decisions of the lower courts. The history and evolution of such appeal provisions commenced with s.

24(6) of the Petty Sessions (Ireland) Act, 1851 (as amended), hereinafter referred to as the Act of 1851 which provides:

"Whenever an appeal shall have been so made, and such last-mentioned notice shall have been duly given, it shall be

lawful for the said court of quarter sessions (or recorder, as the case may be,) to entertain the same, and to confirm,

vary, or reverse the order made by the justices (as so certified in such form of appeal,) and to award to either party any

sum not exceeding forty shillings for the costs of such appeal; and whenever the said court of appeal shall have decided

any such appeal, the clerk of the peace or proper officer of the recorder’s court, as the case may be, shall certify such

decision at foot of the form of appeal, and return the same and the said proceedings to the justices of the petty sessions

at which the order shall have been made, within seven days after such appeal shall have been decided; and whenever

any such appeal shall not have been duly prosecuted, the clerk of the peace or proper officer of the recorder’s court, as

the case may be, shall so certify upon such recognizance, and return the same to the justices of the petty sessions from

which the same shall have been transmitted, (in the same manner and subject to the same provisions as are hereinbefore

contained as to the transmission of informations for indictable offences,) within seven days after the termination of the

sessions."

18. As has been pointed out on behalf of the appellants that provision has never been repealed and has been amended as recently as

2009 but it has not formed the basis for the jurisdiction to appeal since 1924. In that year, s. 85 of the Courts of Justice Act, 1924

(hereinafter referred to as the Act of 1924) provided for appeals in criminal cases in the following way:

"An appeal shall lie in criminal cases from a Justice of the District Court to the Judge of the Circuit Court within whose

Circuit the District or any part of the District of the Justice lies, against any order for payment of a penal or other sum

exceeding twenty shillings or for the doing of anything at greater expense than twenty shillings or for the estreating of

any recognizance to a greater amount than twenty shillings or for any term of imprisonment exceeding one month, by the

person against whom the order shall have been made but not otherwise, and the decision of the Judge of the Circuit

Court on any such appeal shall be final and conclusive and not appealable."

19. It is worth bearing in mind that the Act of 1924 referred to above was the Act which to a large extent established the structure

of the courts as we know it today. Thus, that Act provided for the establishment of the District Court and the Circuit Court. Of

course, subsequent legislation, notably the Courts (Establishment and Constitution) Act 1961 (hereinafter referred to as the Act of

1961), "re-establish" those courts but the overall structure of the courts as established in 1924 remains substantially the same

following the legislation in 1961. (See Kelly: The Irish Constitution, 5th Ed., para. 6.1.296).

20. Subsequently, s. 85 of the Act of 1924 was repealed by the Courts of Justice Act, 1928 (hereinafter referred to as the Act of

1928). Section 18 of that Act provided:

"18(1) An appeal shall lie in criminal cases from a Justice of the District Court against any order (not being merely an order

returning for trial or binding to the peace or good behaviour or to both the peace and good behaviour) for the payment of

a penal or other sum or for the doing of anything at any expense or for the estreating of any recognizance or for the

undergoing of any term of imprisonment by the person against whom the order shall have been made."

The remainder of s. 18 made provision for transitional arrangements in respect of pending appeals and also set out the circuit in which

the appeal would lie.

21. It would also be helpful to refer to the provisions of s. 23 of the Courts of Justice (District Court) Act, 1946 (hereinafter referred

to as the Act of 1946) which provides as follows:

"Where an appeal from the District Court in any matter is determined (whether before or after the passing of this Act) by

the Circuit Court, then, unless the Circuit Court has issued the instrument necessary to enforce its decision, the District

Court shall issue the said instrument."

Thus, once an appeal is determined in the Circuit Court, the position is that if no "instrument" necessary to enforce the decision of

the Circuit Court on appeal is issued by that Court, the District Court has jurisdiction to issue such instrument.

22. The final provision in relation to appeals from the District Court is to be found in s. 50 of the Courts (Supplemental Provisions) Act,

1961 (hereinafter referred to as the Act of 1961) which provides as follows:

"Where -

• an order is made in a criminal case by a justice of the District Court convicting a person and sentencing him to

pay a penal or other sum or to do anything at any expense or to undergo a term of imprisonment or to be detained

in Saint Patrick's Institution, and

• an appeal is taken against the order, and

• either -

• the notice of appeal states that the appeal is against so much only of the order as relates to the

sentence, or

• the appellant, on the hearing of the appeal, indicates that he desires to appeal against so much only

of the order as relates to the sentence,

then, notwithstanding any rule of law, the Circuit Court shall not, on the hearing of the appeal, re-hear the case except

to such extent as shall be necessary to enable the court to adjudicate on the question of sentence."

23. The last statutory provision to which reference should be made at this point is to s. 10 of the Criminal Justice Act 2007

(hereinafter referred to as the Act of 2007) which relates to recognisances. It provides as follows:

"10. The Act of 1997 is amended by the insertion of the following section after section 6:

'6A.— Section 6 applies in relation to recognisances entered into by persons appealing against sentences of

imprisonment imposed by the District Court with the following modifications:

• by the substitution of the following paragraph for paragraph (a) of subsection (1):

‘(a) the recognisance shall be subject to the following conditions, namely, that the appellant shall -

• prosecute the appeal,

• attend the sittings of the Circuit Court until the appeal has been determined, and

• not commit an offence while on bail,’;

• references in that section to an accused person or a person charged with an offence are to be construed as

references to persons so appealing;

• the reference to a court in subsection (8) is to be construed as a reference to the District Court;

and with any other necessary modifications.”.

24. The provisions of Order 4, r.5 of the Rules of the Circuit Court are also of interest. It provides:

“41 (5). Whenever an appeal in a criminal case from a justice of the District Court to a judge of the Circuit Court shall not

have been prosecuted, or the original Order shall have been affirmed or varied on appeal, or either party shall upon appeal

have been ordered to pay a specified sum of r costs, the Judge may direct the issue by the County Registrar of all

warrants necessary and proper for the execution of the original Order or of such varied Order and to enforce the payment

of such costs.”

Jurisdiction of the appellate court

25. An early consideration of the type of issues that arise in these proceedings occurred in the case of The King (M'Monagle) v.

Justices of Donegal [1905] 2 I.R. 644. In that case Mr. M'Monagle had been convicted by Justices at the Petty Sessions Court, then

served notice of appeal to the Quarter Sessions, entered into a recognisance to prosecute the appeal and gave notice to the

opposite party of his intention to prosecute the appeal as provided for by s. 24 of the Act of 1851. When the appeal was called on,

there was no appearance on behalf of Mr. M'Monagle and the Court of Quarter Sessions ordered the appeal to be struck out.

Thereafter judicial review proceedings were commenced. O'Brien L.C.J. stated at p. 646 as follows:

"It is now contended by Mr. Walsh that this order was wrong; that under section 24 of the Petty Sessions Act the Court

of Quarter Sessions should have confirmed the order made below, and that not having done so continuances should be

entered so that the appeal may be properly disposed of. That is to say, the argument is that in an appeal of this kind,

which is essentially a re-hearing, the Court of Quarter Sessions is, without a re-hearing, to confirm the order and send

the defendant to jail. I am of opinion that, on the proper construction of section 24 of the Petty Sessions Act, this

contention cannot be maintained."

26. O'Brien L.C.J. continued, having referred to s. 24(6) of the Act of 1851, noted the phrase therein "It shall be lawful for the said

Court of Quarter Sessions . . . to entertain the same, and to confirm, vary, or reverse the order made by the justices" and then

proceeded to say:

"How can the Court 'entertain' the appeal unless the appellant, or someone representing him, is there to bring the facts

before the Court and to say, 'I am here to prosecute the appeal'? If there is no one there to prosecute, the Court cannot

entertain the appeal, and the entertaining the appeal is a condition precedent to confirming, varying or reversing it. If no

one attends to prosecute the appeal, Clause 6 proceeds to point out the course to be pursued: 'And whenever any such

appeal shall not have been duly prosecuted, the Clerk of the Peace . . . shall so certify upon such recognizance and

return the same to the justices of the Petty Sessions from which the same shall have been transmitted . . .' That is to

say, in such case, the Court does not entertain the appeal; no order is made confirming, varying, or reversing the order

below, but the recognizance is returned with a certificate by the proper officer that the appeal has not been prosecuted."

27. A number of contentions have been made on behalf of the appellants relying on that authority. It should be said that the

appellants recognise that the procedural steps set out in s. 24(6) of the Act of 1851 have not been replicated in the provisions of the

various enactments now setting out the basis upon which an appeal can be taken. Nevertheless, it is contended that the decision in

that case is authority for the proposition that it is only when an appeal has been made in accordance with the statutory provisions,

would it have been lawful for the Court of Quarter Sessions to entertain the appeal and to confirm, vary or reverse the order made by

the Court below. Further, that unless the appellant or someone representing him was there to bring the facts before the Court, the

Court could not entertain an appeal and therefore could not confirm, vary or reverse the order of the Court below. In other words, it

could not make any order in respect of the matter. Finally, it was contended that the only act required or permissible within its

jurisdiction was for the Court of Quarter Sessions to certify the fact that the appeal has not been prosecuted. The order of the Court

of Quarter Sessions insofar as it is relevant noted that the appeal came on for hearing, the solicitors for the complainants were

present, there was no appearance on behalf of the appellant and the operative part of the order was "the said appeal was struck

out". The decision of the King's Bench Division was that "We are all of the opinion that the argument put forward on behalf of the

prosecutor is not sustainable and we discharge the conditional order with costs". Thus, the Court was satisfied that it was

appropriate to make an order to strike out the appeal, there being no appearance on behalf of the appellant. Walsh on Criminal

Procedure (2nd Ed.) at para. 26 - 30 cites this case as authority for that proposition stating:

"It is also worth noting that where the appellant does not appear, the appeal should be struck out."

28. The essential point made on behalf of the appellants having referred to the decision in M'Monagle is that subsequent legislation in

relation to the jurisdiction of the Circuit Court when hearing an appeal from the District Court does not include any requirement for a

procedural step to be taken before the Court has jurisdiction. Therefore, what is contended for is that under the Act of 1851 the

Court had no jurisdiction to deal with the appeal in the absence of the necessary procedural steps having been completed and had no

jurisdiction to do anything other than strike out the appeal, whereas under the legislation governing appeals from the District Court to

the Circuit Court under current legislation, no such procedural steps have to be completed before jurisdiction is vested in the Circuit

Court and therefore as the Circuit Court is not otherwise deprived of jurisdiction or divested of jurisdiction, a judge of the Circuit

Court has no jurisdiction not to hear cases and that the Circuit Court in those circumstances has an obligation to hear the appeal, or,

if necessary, to issue a bench warrant or to adjourn the case.

29. In fact, it was pointed out on behalf of the respondents that something of that kind had already occurred in this case in

circumstances where Ms. Maguire did not appear in court on the 7th December, 2015. On that occasion, the Court did not strike out

the appeal but adjourned the matter further in her absence. The respondents also take issue with the contention on behalf of the

appellants that the question which should be considered by this Court is whether the Circuit Court has jurisdiction not to affirm the

order of the District Court. It was pointed out that this was not the subject of argument in the High Court or the Court of Appeal.

30. Although the current statutory position in relation to appeals is based on s. 18 of the Act of 1928 and s. 50 of the Act of 1961, it

is suggested on behalf of the respondents and indeed to some extent by the appellants that the current practice and procedure in

relation to such appeals is derived from the Act of 1851. In that context reference was made on behalf of the respondents to the

provisions of s. 24(7) of the Act of 1851 which provides as follows:

"And whenever it shall appear from such certificate that such appeal has not been duly prosecuted, or that the original

order has been confirmed upon appeal, the justices who shall have made the original order, or any other justice of the

same petty sessions, shall issue the proper warrant for the execution of the same, as if no such appeal had been brought;

and in every case in which it shall appear from such certificate that the court of appeal shall have varied the original

order, the said justices shall forthwith issue the proper warrant for the execution of the order so made by the court of

appeal, in like manner as they might have issued a warrant for the execution of the original order in case no appeal had

been prosecuted; . . ."

31. The respondents rely on this provision to argue that the Act of 1851 proceeds on the basis that non-prosecution of an appeal

means that the order originally made at the Petty Sessions Court becomes enforceable "as if no such appeal had been brought".

32. Two points can be derived from the consideration of the practice and procedure that applied under the Act of 1851. First, that if

the appellant did not appear to prosecute the appeal, it was appropriate for the appeal court to strike out the appeal. Second, that if

the appeal was not prosecuted then the order of the court below became enforceable by that court. The same position applied if the

order of the Court of Petty Sessions was confirmed on appeal.

The appellation jurisdiction of the Circuit Court

33. The appellate jurisdiction of the Circuit Court is set out in the legislation referred to above. In the first instance are the provisions

of s. 18 of the Act of 1928. Thereafter the provisions of s. 50 of the Act of 1961 provide a clear limitation on the form of hearing to

take place in the event that an appeal is an appeal against sentence only. In that instance, it is made clear that it is not necessary

for a "full" re-hearing of all of the evidence in the case but only that which is necessary to deal with the issue of sentence. Likewise

in the regime that currently operates it is important to note the provisions of the Act of 1946 which allows the District Court to issue

the documentation necessary to enforce its orders in circumstances where the Circuit Court has not done so.

34. The point made by the appellants is that under the Act of 1851, the only jurisdiction of the Court of Sessions in the event of non-

appearance was to strike out the appeal. In other words, there was no jurisdiction to confirm, vary or reverse the order made by the

Court of Petty Sessions. Thus, it is argued that as there is no provision in the Act of 1928 which limits the jurisdiction of the Circuit

Court in the same way as was provided for in the Act of 1851, the Circuit Court has no jurisdiction not to hear the appeal and

therefore is required either to hear the appeal, to issue a bench warrant for non-appearance or alternatively to adjourn the case to a

further date for hearing. It is worth recalling at this point that in the case of Ms. Maguire, at the original hearing date, the hearing of

the appeal was adjourned as there was apparently no appearance either by the prosecuting garda or Ms. Maguire. Accordingly, it is

contended that even if the appellant does not turn up, the Circuit Court is obliged to hear the appeal with all that that entails,

including the hearing of the prosecution evidence, a consideration of the facts, making a decision on sentence, and if appropriate,

considering the possibility of imposing a sentence of community service in lieu of imprisonment.

35. Nonetheless, it is acknowledged by the appellants that there is authority to be found in case law for the proposition that the

Circuit Court has jurisdiction to strike out an appeal and to affirm a District Court order if an appellant has failed to attend and

prosecute the appeal. The jurisdiction currently exercised by the Circuit Court on appeal from the District Court has been the subject

of consideration in a number of authorities. It would be helpful to examine some of those.

36. The first such case I wish to refer to is A.G. (Lambe) v. Fitzgerald [1973] I.R. 195. That was a case stated which considered the

role of the Circuit Court in circumstances where an appellant had pleaded guilty in the District Court to an offence, was sentenced

and then appealed. The question that arose was as to whether or not he was entitled in the course of the hearing in the Circuit Court

to plead not guilty to the offence or whether he was entitled only to appeal against sentence. Henchy J. in the course of his

judgment at p. 197 stated as follows:

"It is well settled that when a defendant appeals to the Circuit Court against a decision of the District Court in a criminal

case, he is entitled to a hearing of the case de novo: see The State (Attorney General) v. Connolly and The State

(McLoughlin) v. Shannon. In the latter case Davitt J. said at p. 449 of the report:-

'It seems to me that when a defendant, aggrieved by the decision of a District Justice in a criminal case, takes an

appeal therefrom to the Circuit Court he seeks, and obtains, a hearing of the case de novo. He, in effect, asks the

Circuit Judge to hear the whole matter again and to substitute for the order made by the District Justice (of which

he disapproves) the order of the Circuit Court (of which he hopes he can approve). He impliedly admits the

jurisdiction of the Circuit Court to substitute its own order for that of the District Court. It would, I think, be a

grave matter for appellants if it were held that the Circuit Court had no power to substitute its own order for that

appealed from'."

Henchy J. explained that the fact that he had pleaded guilty in the District Court did not oust his right to a new hearing on the

matters appealed against and went on to say at p. 198 of his judgment as follows:

"If the law were not so, a Circuit Court judge would be powerless to correct a situation where the defendant had

unjustifiably pleaded guilty in the District Court - for example, in mistake, or to an offence unknown to the law. Since

there is neither statutory nor judicial authority to support such an interpretation of the law, counsel for the Attorney

General now concedes that the objection taken in the Circuit Court to that court's jurisdiction to hear the appeal against

conviction cannot be supported."

Accordingly the Court confirmed that the Circuit Court judge was obliged to allow the defendant to plead "not guilty" and to have a

hearing of the case on that basis in relation to both guilt and sentence.

37. The decision in the case of McCann v. Groarke [2001] 3 I.R. 431 was then referred to. As can be seen, the decision in Lambe

emphasised the concept of a de novo hearing in the Circuit Court on a District Court appeal. Perhaps more similar to the facts of the

present cases is the decision in McCann. In that case the applicant pleaded guilty to charges in the District Court. After sentence he

appealed against both conviction and sentence. On the first hearing date, the matter was adjourned by consent but on the adjourned

date, there was no appearance by the applicant or by any solicitor acting on his behalf. An order was made by the first named

respondent striking out the appeal and affirming the order of the District Court. Complaint was made that there was a practice of the

Circuit Court office in Dundalk to inform "out of town" solicitors such as the solicitor for the applicant of the date of hearing of matters

listed in the Circuit Court in Dundalk. In the course of his judgment refusing relief sought, Herbert J. said at p. 435 of his judgment:

"In my judgment there was no failure to afford fair procedures in this case. The first respondent was acting intra vires his

powers in striking out this appeal, if that is in fact what he did, in default of appearance: The King (McMonagle) v.

Justices of Donegal [1905] 2 I.R. 644; The State (Dunne) v. Martin [1982] I.R. 229 (Supreme Court, per Henchy J.). If

the applicant was not heard on this occasion it was entirely due to his own failure to attend before the court, or

alternatively or additionally, due to his solicitors' failure to notify him of the adjourned date or to appear before the court.

In the absence of some compelling evidence which would establish that the decision of the first respondent was in the

circumstances irrational, unreasonable or tainted with bias - and there is no such evidence to be found in this case - the

proper administration of justice must require that the court has and utilises the power to strike out or to dismiss an appeal

for default of appearance on the part of the applicant or anyone on his behalf."

38. The next case referred to is that of Phelan v. Circuit Judge Delahunt & Ors. [2014] IEHC 142. This was a case in which the

applicant for an order of certiorari was challenging a decision of the first named respondent to strike out his appeal to the Circuit

Court against an order of conviction and sentence of the District Court. The essence of his complaint was that he had not been

personally informed of the date of his appeal in order to enable him to be personally present at the hearing of the appeal. In the

course of his judgment, McDermott J. at para. 17 of his judgment stated:

"In this case the applicant did not appear to prosecute his appeal and, therefore, the matter was struck out. The learned

Circuit Judge did not embark upon the appeal and no order was made varying the District Court order. The learned judge,

therefore, acted within jurisdiction in striking out the appeal. (McCann, McMonagle and The State (Dunne) v. Martin

supra). It is clear that no application was made in this ease seeking reentry of the appeal notwithstanding the fact that

the applicant claims that he 'immediately' contacted his solicitors when he heard that the appeal had been struck out."

Reference was also made to the decision in the case of The Director of Public Prosecutions v. Circuit Judge Lindsay [2016] IEHC 54 in

which McDermott J. on an application for certiorari to quash an order striking out his appeal commented at para. 16:

"The Circuit Court on appeal had full jurisdiction to hear the case de novo but the appeal was not pursued. The Court

properly affirmed the order of the District Court. Since the appeal was not pursued and the appellant was not present, it

did not hear the facts of the case, or receive a detailed probation report or any evidence or submission in respect of

mitigation or the alternatives to detention that might otherwise be considered. The Court varied the order slightly to take

account of the short period of the sentence served before the recognisance was entered by the notice party."

At para. 12 of his judgment in that case McDermott J. made reference to a number of the authorities previously referred to including

McMonagle, the State (Dunne) v. Martin, McCann v. Groarke and Phelan. He commented:

"In cases involving non-minors who are convicted of offences, the failure to attend and prosecute an appeal may result in

an order striking out the appeal and affirming the District Court order. "

39. The State (Dunne) v. Martin [1982] I.R. 229 to which reference has been made in a number of the cases cited above is somewhat

different in that that was a case in which judicial review had been sought of a decision striking out an appeal in circumstances where

the appeal had been heard fully by the Circuit Court after which it was indicated by the Circuit Court judge that custodial sentences

would not be imposed if Mr. Dunne paid compensation. The matter was adjourned to enable him to do this but on the adjourned date

neither Mr. Dunne nor his solicitor were present in court. The appeal was then struck out and the spoken order of the judge was “No

appearance. Strike out.” Judicial review proceedings were brought and the High Court granted an order of certiorari quashing the

order of the Circuit Court, but, on appeal, that decision was reversed. Given that the factual situation in that case is somewhat

different to the present cases and indeed to a number of the cases cited above, it does not assist the arguments one way or another

in this particular case.

Two points can be clearly seen from the authorities referred to above. The first is that there is undoubtedly jurisdiction in the Circuit

Court to strike out an appeal when the appellant does not appear in court to prosecute his/her appeal. The second point is that the

hearing before the Circuit Court is a de novo hearing and that being so, an appellant to the Circuit Court who has pleaded guilty in the

District Court is entitled on the hearing of the appeal in the Circuit Court to enter a plea of not guilty and to have the matter heard in

full. The provisions of s. 50 Act of 1961 do not preclude the possibility of such a course being taken. In the judgment in the Lambe

case to which reference has been made previously, Henchy J. having referred to s. 50 commented:

"Apart from the situation covered by that section, every defendant in a criminal case in the District Court who appeals is

entitled to a full re-hearing, and the Circuit Court has jurisdiction to substitute its own order for the whole or any part of

the order appealed against.

The defendant appealed against the whole of the order of the District Court and so it is irrelevant, so far as the question

of the jurisdiction of the Circuit Court is concerned, that he pleaded guilty in the District Court."

40. In essence, the appellants rely on the fact that an appeal is a de novo hearing to argue that the Circuit Court has no jurisdiction

to make no order and can only strike out the appeal and affirm the order of the District Court, having heard evidence and reaching its

own independent conclusion that it was appropriate to impose the relevant term of imprisonment. In making this argument it is further

contended that there is no statutory provision in primary or secondary legislation which operates to divest the Circuit Court of

jurisdiction in a criminal appeal from the District Court.

41. Some reliance was placed by the respondents on the decision in the case of A.G. v. Mallen [1957] I.R. 344 in which Lavery J. in

discussing the nature of an appeal commented:

"This procedure is prescribed by s. 23 of the Courts of Justice (District Court) Act, 1946, which provides that where an

appeal from the District Court is determined by the Circuit Court, then, unless the Circuit Court has issued the instrument

necessary to enforce its decision, the District Court shall issue the said instrument.

I have thought it necessary to set out the procedure in some detail because it shows, in my opinion, that the conviction

or order, though appealed to the Circuit Court and there either confirmed or varied, retains its essential character of a

conviction or order of the District Court.

The appeal is a true appeal though by way of re-hearing and is not a re-trial except in form. The defendant appealing

comes before the Circuit Court as a convicted person. He does not rid himself of the conviction by serving notice of

appeal. He is not called on to plead and his task is to show, if he can, that the conviction was wrong in whole or in part.

This situation is not altered by the circumstance that there is a re-hearing."

Relying on that authority it is contended on behalf of the respondents that the form of order used in the case of the warrant in

respect of Ms. Maguire which stated "No appearance, strike out appeal, affirm conviction and order of the District Court", reflects the

legal event that occurred. In other words, the appeal came to an end and the conviction and sentence which had been recorded in

the District Court was thereby affirmed and restored.

42. The Court of Appeal in its judgment in these proceedings noted at para. 33 that:

"The practice of the Circuit Court striking out appeals from the District Court in the absence of hearing any evidence or

oral submissions is a very old one, in those instances where there is a failure, for whatever reason, to prosecute them by

the appellants. It has often been referred to in the Superior Courts with approval. . . ."

The Court continued at paragraph 39 as follows:

"In both Maguire and Brennan, the appellants to the Circuit Court were legally represented in that court. In both, the

matter was let stand in the Circuit Court in order to give the appellants the opportunity to turn up. It was only at a point

in time where it appeared that the appellants would not turn up that the Circuit Court judge in each case proceeded to

strike out the appeals and again, in each case, having heard no evidence or other submissions before so doing. In the

case of Brennan, Donnelly J. remarked that the Circuit Court judge had 'behaved impeccably' giving him plenty of time to

appear on the day. In both cases, the appeals had been listed on previous occasions and had not proceeded. In both

cases, also, prison sentences had been imposed in the District Court and both appellants (as they were then) were aware

that a similar fate, (in terms of sentence), awaited them in the Circuit Court in circumstances where, either, they

appeared and prosecuted their appeals but failed to have the decision of the District Court reversed or failed to appear.

In his judgment in Maguire, Eager J. noted that the first appellant had a number of previous convictions and was aware of

court procedure.

40. I am satisfied therefore that a Circuit Court judge is empowered to strike out an appeal from the District Court

(against conviction or sentence as the case may be) and to affirm the decision of the District Court in circumstances

where an appellant fails to turn up in court. Such jurisdiction is subject to basic principles of justice and respect for the

constitutional rights of an accused person which govern the proceedings and decisions of all courts. In neither case is

there any evidence of unfairness or breach of constitutional rights in the manner in which these appeals were disposed of

in the Circuit Court."

Decision on the appellate jurisdiction of the Circuit Court

43. It is clear that the longstanding practice of the Circuit Court in circumstances where the appellant does not turn up to prosecute

his or her appeal is to strike out the appeal and to affirm the order of the District Court. The appellants have argued that the

statutory provisions now applicable to such appeals can be contrasted with those which were applicable under the Act of 1851. There

is no doubt that there is a less prescriptive form of wording used in the legislation now applicable to such appeals. However, that fact

alone does not seem to me to be decisive. There are a large number of decisions which have been referred to above which make it

clear that the position in law remains consistent notwithstanding the changes in the legislative provisions applicable to the courts

established as long ago as 1924. I can find nothing in any of the authorities opened to this Court to suggest that the Circuit Court on

an appeal from the District Court has no jurisdiction, when the same is not prosecuted, to make an order striking out and affirming the

District Court order without a hearing. The argument that there is no statutory provision which divests the Circuit Court of jurisdiction

cannot, in my view, be discerned from the legislation now applicable. A person convicted of an offence in the District Court is entitled

to bring an appeal. The appeal operates as a stay of execution. In circumstances where, the appellant for whatever reason chooses

not to prosecute the appeal, then in those circumstances, I can see no basis upon which it can be suggested that the Circuit Court is

then obliged, notwithstanding the fact that the appellant has not prosecuted his/her appeal, to embark on a hearing of the

prosecution evidence again. The Circuit Court is simply providing for the fact that once the appeal is not prosecuted, the District

Court order stands. This is reflected in Order 41(5) of the Rules of the Circuit Court. In effect, the stay provided for in rule 101(6) of

the Rules of the District Court comes to an end. In those circumstances, as is clear from the provisions of s. 23 of the Act of 1946, it

is then open to either the Circuit Court or the District Court to issue the instrument necessary to enforce its decision. The idea that

the Circuit Court would be obliged in circumstances where an appeal has been brought to it from a decision of the District Court to sit

and hear an appeal not being prosecuted by the appellant is something that simply flies in the face of common sense. Indeed, if the

appellants were correct this would require the Circuit Court (in the words of the respondents) "to engage in an unnecessary and

empty ceremony of hearing the appeal in the absence of the appellant". As pointed out, the appellants' solicitor or counsel might not

have appropriate instructions to engage with such hearing. Further, if the facts of the offence were heard, in the absence of the

appellant, assuming the Court was satisfied to affirm a conviction in circumstances where the sentence and conviction was under

appeal, there would be no evidence as to mitigation to put before the court and presumably the appellant would be at risk of a higher

sentence. Clearly, if the appellants were correct in their arguments, such an outcome would certainly not be in the interests of

appellants generally. It is a matter for an appellant to prosecute an appeal they have instigated. If they do not do so, the order made

against them stands. There is no need for the appellate court in circumstances such as this to embark on a process of hearing the

appeal with the associated waste of court time and resources, not to mention the time of the Garda Síochána who would be required

to deal with the matter. If such a hearing were necessary, the resources of the Probation and Welfare Service could also be required.

Such a course is not, in my view, required by the legislation setting out the appellate jurisdiction of the Circuit Court in appeals from

the District Court.

44. Accordingly I am satisfied that the Court of Appeal, in concluding that a Circuit Court judge was empowered to strike out an

appeal from the District Court against conviction or sentence and to affirm the decision of the District Court in circumstances where

the appellant fails to turn up in court, was correct.

Community service

45. A further argument has been made on behalf of the appellants that the committal orders in each case were bad in circumstances

where the committal warrant did not on its face recite the fact that in dealing with the matter, consideration was given by the

sentencing judge in each case to the imposition of a community service order as an alternative to such sentence. Reference was

made in this regard to the provisions of s. 3 of the Criminal Justice (Community Service) Act 1983 as substituted by s. 3 of the

Criminal Justice (Community Service) Act 2011. By virtue of the provisions of s. 3 as substituted, the requirement to give

consideration to the possibility of the imposition of a community service order in lieu of a custodial sentence of up to twelve months

imprisonment is now mandatory.

46. Section 3 of the Criminal Justice (Community Service) (Amendment) Act 2011 provides as follows:

"3. - Section 3 of the Principal Act is amended:

• by the substitution of the following subsection for subsection(1):

'(1)(a) Where a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence

in respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a

period of 12 months or less, the court shall, as an alternative to that sentence, consider whether to make an order

(in this Act referred to as a ‘community service order’) in respect of the offender and the court may, if satisfied, in

relation to the offender, that the provisions of section 4 have been complied with, make a community service order

in accordance with this section.

(b) Where a court, by or before which an offender stands convicted, is of opinion that the appropriate sentence in

respect of the offence of which the offender is convicted would, but for this Act, be one of imprisonment for a

period of more than 12 months and, it is satisfied, in relation to the offender, that the provisions of section 4 have

been complied with, the court may make a community service order in accordance with this section'."

47. As can be seen once the judge dealing with sentence is of the view and has considered that the appropriate sentence for the

offence concerned is one of twelve months or less, it is mandatory on the court to consider as an alternative to sentencing the

offender concerned to a term of imprisonment to consider the alternative of imposing a community service order. In the circumstances

it is contended on behalf of the appellants that a failure to recite on the face of the committal warrant in each case a reference to

the sentencing judge having considered as an alternative to imprisonment the making of a community service order, renders the

warrant invalid.

48. A number of authorities are relied on by the appellants in support of their contentions in this regard. In particular reference is

made to the case of The State (Hughes) v. Lennon & Ors. [1935] I.R. 128 at p. 142 in which Sullivan P. stated:

"I did not think there could be any doubt upon that matter. 'And the rule for jurisdiction is, that nothing shall be intended

to be out of the jurisdiction of a Superior Court but that which specially appears to be so; and, on the contrary, nothing

shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged: Peacock v. Bell (1

Saund. R. 74d.)' 'In the case of special authorities given by statute to Justices or others acting out of the ordinary course

of the Common Law, the instruments by which they act, whether warrants to arrest, commitments, or orders, or

convictions, or inquisitions, ought, according to the course of decisions, to show their authority on the face of them by

direct averment or reasonable intendment. Not so the process of Superior Courts acting by the authority of the Common

Law,' per Parke B.: Gosset v. Howard (1847) (10 QB 411, at pages 452, 453). This principle was recognised and

reaffirmed by Palles C.B. in the course of his judgment in R. (Boylan) v. Londonderry JJ. [1912] 2 I.R. 374, in which he

refers (at p. 381) to 'the more general rule that not only an order to imprison, but any order made by any authority, no

matter how high, not known to the Common Law or although known to it, not acting in pursuance of it, must upon the

face of it show the facts which give the jurisdiction to make it'."

The principles in that case were applied in this Court in the case of Ejerenwa v. Governor of Cloverhill Prison [2011] IESC 41. In that

case at para. 31 it was stated:

"A document, such as in issue here, should contain clear information on its face as to the basis of its jurisdiction. This

information is required so that it be available to, for example, (a) the person in custody, such as the appellant; (b) the

Governor of the Prison, or any other, who is holding a person in custody; and (c) the Court which is requested to inquire

into the custody pursuant to Article 40 of the Constitution."

49. In the subsequent case of O'Farrell v. Governor of Portlaoise Prison [2016] 3 I.R. 619, reference was made to the Ejerenwa

decision and was applied by this Court in that case. MacMenamin J. at para. 77 stated:

"In G.E. v. The Governor of Cloverhill Prison [2011] IESC 41 , the Supreme Court, 28 October 2011 (Denham J., Fennelly J.

and O'Donnell J.) this court held that the applicant was illegally held because the warrant, set out at pp. 6 and 7,

contained only the following provisions:-

'In exercise of the powers conferred on me by s. 5(2) of the Immigration Act 2003, I direct that pending the making

of arrangements for his/her removal from the State, that:-

Gerard E, DOB 28/10/1978

be detained in Dundalk Garda Station, a prescribed place for the purpose of s. 5(2)(a) of the Immigration Act 2003

in the custody of such officer of the Minister for Justice or Member of the Garda Síochána for the time being in

charge of that place'. (Para. 21 of the judgment).

The warrant in G.E. did not show, on its face, an offence, or the length of detention, or the charges, or convictions (if

any). The legal nature or duration of the detention were not ascertainable by reference to the warrant or order."

MacMenamin J. then went on to quote the passage from the case of Ejerenwa referred to above.

50. In the Court of Appeal, reference was made to the judgment in the case of O'Brien v. Judge Coughlan & Anor. [2014] IEHC 425 in

which Kearns P. rejected the contention that an order of conviction and sentence (four months imprisonment) should be quashed

because the District judge did not explicitly refer to his having considered community service as an option before imposing sentence.

Kearns P. commented:

"There is no challenge made in this case to the reasons offered by the respondent judge for imposing a custodial

sentence, rather it is a challenge based on the fact that, although required by law to consider the option of community

service, the judge did not explicitly state in his ruling that he had done so. That is akin to arguing that a judge must in

every case enumerate every legal responsibility which devolves on him or be taken as not having discharged that onus.

That would be an unrealistic requirement when judges must be assumed to know the statutory regime under which they

operate."

That case was then appealed to the Court of Appeal and Ryan P. in the course of his judgment in that case observed:

"The judge was required to take into account the option of community service when deciding on sentence. That does not

mean that he had to spell out expressly that he had performed his statutory duty in this regard. Obviously, he had to take

it into account but he did not have to state that he had done so. It may well be desirable in general circumstances for

him to do so, if only to reassure anybody who might be in doubt about the matter, but it is not an obligatory requirement

in the sense that failure to do so inevitably results in the invalidation of the judgment that he gives."

51. As can be seen that case did not concern the information to be found on either the order of the District Court or more precisely

on the committal warrant in the case. The Court of Appeal in this case concluded at para. 53 as follows:

"In circumstances where, for whatever reason, an appeal to the Circuit Court is not prosecuted, the Circuit Court judge,

being entitled to affirm the sentence imposed in the District Court in the absence of a rehearing of the appeal, is not

required to consider the suitability of the convicted person for a Community Service Order as an alternative to a prison

sentence as per s. 3 of the Act of 2011. In such circumstances the Circuit Court is merely affirming the sentence imposed

by the lower Court and is not engaged in the process of imposing a freshly considered sentence on an appellant."

52. A similar issue arose in the decision of the High Court in the case of Ion Ilie v. The Governor of Castlerea Prison [2016] IEHC 373

which was referred to on behalf of the respondents. In that case McDermott J. stated at para. 27 et seq.:

"The final matter raised concerned the absence, from the face of the warrant, of any reference to the court's

consideration of the 2011 Act. I am not satisfied that it is necessary that such a reference should appear or that the

decision of the Supreme Court in Ejerenwa v The Governor of Cloverhill Prison [2011] IESC 41 requires that it should. The

essential elements of a valid warrant have been considered in a number of cases and most recently in Freeman v

Governor of Wheatfield Prison [2016] IECA 177 in which Mahon J. delivering the judgment of the Court stated;-

'It is long accepted that a warrant if it is to be deemed valid, must show on its face sufficient information to

establish the jurisdiction of the court from which it emanates. The purpose of this rule is to enable the detainer to

satisfy himself that the person named in the warrant is lawfully being placed in detention under his custody for a

stated period of time, and to enable the detained person to satisfy himself of, and understand the lawfulness of his

detention . . .'

28. The court rejected the submission that a warrant which failed to disclose on its face that the case had been

tried summarily with the consent of the Director of Public Prosecutions or that the Court was satisfied to deal with

the case summarily because it was a minor offence was invalid. The Court was satisfied that these were matters

that could reasonably be assumed on the face of the warrant by reference to the information contained which

described that the accused had been convicted and sentenced to a period of imprisonment within the sentencing

limits relevant to convictions in the District Court. I am therefore satisfied that the validity of the warrants in this

case is not dependent upon a recital concerning the application or consideration of s. 3 of the 2011 Act. I would

have refused the application on this ground."

53. Finally, in this context I should refer briefly to a decision of this Court in the case of P.O.I v. The Governor of Cloverhill Prison.

[2017] IESC 78 in which I delivered the judgment of the Court (Clarke C.J., McKechnie J., MacMenamin J. and O'Malley J.) in which the

decision in Ejerenwa was considered. The case concerned a document, described as a "Notification of arrest and detention" and an

issue was raised as to whether the document in question had to be headed "Warrant". In the course of the judgment I stated as

follows:

"Accordingly, it seems to me that the phrase 'under warrant' does not mean that the document relied on must be called a

warrant. Here, the document was clear in setting out the basis of the arrest and directing the detention of the appellant

for the purpose of his removal from the State. The important point to note is that no one could have been left in any

doubt whatsoever as to the nature of the document, the purpose of the document and the effect of the document. It is

important to consider what the document does rather than what it says. The use of the word 'warrant' in a document

does not validate or confer on the document an authority it otherwise lacks. The use of language in formal documents is

important but it is equally important not to be beguiled into considering form over substance. If a document requires a

specific form of words to be used to give it effect, then the document should conform to that form of words, so far as

possible. It is interesting to observe that, as a rule, warrants issued by a court come in a prescribed form as provided for

in Rules of Court. Thus, a Warrant for Arrest issued by the District Court is set out in the District Court Rules addressed to

an officer of the Garda Siochána and is headed 'Warrant of Arrest' and is worded as follows: 'This is to command you to

whom this warrant is addressed to arrest the said ....' It is clear and unambiguous in its terms. The document in this case

is not the subject of a prescribed form but it is equally clear and unambiguous in its terms. That is what is necessary.

Section 5 of the Immigration Act 1999 as amended and the Immigration Act 1999 (Deportation) Regulations 2005 as

amended gave the member of the gardai the authority to arrest the appellant and the authority was given to the member

of the gardai concerned to direct the detention of the appellant. Accordingly, I would answer the first question raised in

the grounds of appeal by saying that it is not necessary that the document required to justify the detention of an

individual be headed as a 'Warrant of detention' in order to be valid."

54. As can be seen from the authorities referred to above what is required of a warrant is that it be clear and unambiguous. It should

set out the basis upon which someone is directed to be detained. The warrants in these cases clearly do that. It is not necessary for

a warrant to set out every factor that a District judge or Circuit Court judge is obliged to take into consideration in the course of

imposing sentence. In general terms, in the case of warrants following the imposition of sentence, it is important that the warrant

which is directed to the Governor of the prison should state the fact that the person concerned has been convicted, what they have

been convicted of, and the length of the sentence imposed. As has been emphasised in a number of cases, such as Ejerenwa, what is

important is that the documents required to detain an individual should "contain clear information on its face as to the basis of its

jurisdiction". This is for the benefit both of the detainer who needs to know the basis upon which the individual is being detained and

for the benefit of the detainee so that if necessary or appropriate they will be in a position to query the lawfulness of their detention.

It is not necessary for a warrant to set out every pre-condition for the jurisdiction relied on in any given case. If such an obligation

was to be imposed in order to give validity to a warrant, one can only begin to imagine the list of matters that would require to be

recited in a warrant in order to satisfy such a requirement, for example, whether the accused before the court was advised of their

entitlement to legal representation, whether an accused who had pleaded guilty was afforded credit for their plea and so on. As was

pointed out on behalf of the respondents, the effect of the argument made on behalf of the appellants requires the nature and

purpose of a committal warrant to be reframed as a document which in effect becomes something in the nature of an account of the

proceedings which have taken place before the court rather than a clear and unambiguous direction to the prison governor.

55. Therefore, I am satisfied that it is not necessary for a committal warrant to recite the fact that a judge has considered the

possibility of community service as an alternative to imprisonment on the face of the warrant. Such a requirement would be above

and beyond what is necessary to show the basis of the jurisdiction exercised by the court concerned on which the prison governor

concerned is obliged to act.

56. In any event, in the case of the appellants here, the Circuit Court was not engaged in the task of considering what was the

appropriate sentence in respect of the offence of which the offender was convicted. The court in each case was left in the position

where the appeal was not prosecuted by either of the appellants and in those circumstances, the court did not exercise any function

in relation to the consideration of sentence but merely affirmed the order of the District Court. In those circumstances, the warrants

in this case do not lack validity merely by reference to the fact that there was nothing on the face of the warrant to show that the

Circuit Court judge in each case considered the possible imposition of community service as an alternative to imprisonment. Quite

simply, the Circuit Court judges were not engaged in the act of considering the imposition of imprisonment in circumstances where the

appeals were not prosecuted. In any event, as is clear from a number of authorities, it would not have been necessary on a hearing

at first instance or indeed on appeal to recite the fact that community service had been considered as an alternative to imprisonment

any more than it would be necessary for a committal warrant to recite the fact that an accused person had been advised of their

entitlement to legal representation or any other factor that might be required to be considered by a court before either convicting or

imposing sentence.

The Brennan warrant

57. The final issue to be considered concerns the warrant in the case of Mr. Brennan. 58. The form of committal warrant used in

these cases each contained a recital to the effect that "And whereas on the hearing of an appeal by the said accused . . .". That in

respect of Ms. Maguire stated:

"No appearance. Strike out appeal. Affirm conviction and order of the District Court . . ."

In the case of Mr. Brennan, the wording was similar save for the fact that the words "No appearance. Strike out appeal" did not

appear on the warrant. In the case of Mr. Brennan, the learned High Court judge concluded that the committal warrant was defective

and was invalid because it incorrectly gave the impression that a hearing had in fact taken place in the Circuit Court. She stated in

her comments on the matter:

"If a court is to be entitled to imprison a person for nine months, or indeed for any period of time, without hearing any

evidence at all, the basis for that jurisdiction cannot be considered technical and it must be shown upon the order."

She took the view that in circumstances where the Circuit Court had jurisdiction not to embark on a hearing in circumstances where

the appellant did not appear to prosecute the appeal that absent such information being contained on the warrant, the warrant was

not valid. She pointed out that if the appellant had appeared, there was a requirement to hear the appeal. Accordingly, if there was

to be no hearing of the appeal, it was necessary to recite the basis for not hearing the appeal and that was the fact that the

appellant had not appeared and accordingly she concluded that in order not to have a hearing it was necessary for the committal

warrant to recite the fact that there had been no appearance by the appellant. She was of the view that this was not a technical

matter which could be overlooked.

59. The Court of Appeal in its judgment stated as follows at para. 66:

"If the term 'hearing' as stated in the committal warrant was intended to convey that a de novo hearing of Mr. Brennan’s

appeal had taken place in the Circuit Court prior to the decision of the Circuit Court judge to affirm the order of the

District Court, such is incorrect as no such hearing took place. On the other hand, arguably, the term 'hearing' as it

appears on the warrant is a reference to the process which took place in the Circuit Court, namely the processing of the

appeal in the absence of any appearance by Mr. Brennan, and not necessarily an actual hearing of evidence. As earlier

indicated in this judgment, the determination of the appeal by the mere affirming of the District Court order was legitimate

in circumstances where an appellant failed to turn up and prosecute his appeal in the ordinary way.

67. In any event, whichever view is correct, it cannot be a matter which can be said to go to jurisdiction. If the use of

the term 'hearing' was erroneous, its appearance on the face of the warrant amounts to nothing greater than a technical

deficiency which does not undermine its validity in circumstances where it represents a lawful order of a Court. The fact

that the appeal was disposed of by the Circuit Court judge in the absence of any rehearing was known to Mr. Brennan so

that he was not taken by surprise or otherwise subjected to unfairness by the error, if indeed it was an error. Furthermore

the error, being of such a technical nature and unrelated to jurisdiction, did not act to misinform the Prison Governor as to

information particularly relevant for him in his capacity as the person authorised to give effect to the court order for the

deprivation of liberty."

That being so, the Court of Appeal came to a different view on this issue to the learned trial judge.

60. The decision referred to previously of this Court, namely the case of P.O.I. may be of assistance in the context of considering the

warrant in this case. In the course of the judgment in that case it was stated as follows:

"Thus, it seems to me that it is open in the course of an Article 40 enquiry for the respondent to seek to amend the

certificate relied upon to justify the detention of an individual. It may also be possible for a warrant to be amended by the

court that issued it. Thus, for example, in M.C. v. Director of Oberstown [2014] IEHC 222 , McDermott J. had to consider

a warrant which was alleged to be defective in that it specified an incorrect statutory provision justifying detention and

failed to mention that the provision in question had been substituted by a subsequent Act. McDermott J. stated as follows

at para. 18 of his judgment, rejecting the argument that the warrant in that case was defective:

'It is also submitted that there is a more fundamental defect in that s. 88(1)(c) was relied upon in the heading of

the Warrant rather than the correct section 88(l)(a). Section 88(1)(c) refers to a situation when the court decides

to remand a child in custody 'in respect of whom the court has postponed a decision'. This is clearly not such a

case. The citation of the subsection is inappropriate - but is it fatal to the warrant? I do not consider that it is. A

want of form, ambiguity or error may be corrected or resolved by reference to other documentation or to what

actually transpired at a hearing (see The State (Brien) v. Kelly [1970] I.R. 69 and In re Tynan [1969] I.R 273 ). For

that reason the slip rule exists and an error such as that which occurred in this case might be easily corrected by

application under the District Court Rules in that regard.'

Where there is an underlying valid order of a court committing an individual to prison, it may be possible to amend the

warrant. However, as has been accepted by the respondent in the written submissions, where the warrant cannot be

corrected, because the ambiguity on the face of the warrant reflects a more deep-seated confusion in the proceedings

such as where the true state of affairs is not reliably ascertainable from any source, this cannot be done. To put it

another way, in circumstances where a warrant is defective in that it does not reflect the court order actually made, it

may be possible to go back to court to amend the warrant to reflect the court order. That is assuming that there is a

valid court order in the first place. If the underlying basis of the detention is invalid then the individual detained is entitled

to be released. A trivial error or slip in the completion of the warrant will not be fatal to its validity. There could be no

reason not to amend in such circumstances."

61. Insofar as it could be said that there was an error on the face of the warrant in respect of Mr. Brennan in that it did not say

"Strike out. No appearance", it is undoubtedly the case that the order made by the Circuit Court judge in the circumstances that had

occurred, namely the non-appearance of the appellant in circumstances where he was represented by his solicitor and where there

had been an application to adjourn by virtue of non-appearance and the matter had been put back three times by the Circuit Court

judge, is hardly one that could have been described as being an invalid order. The Court acted within jurisdiction and did everything

possible to facilitate the appearance of Mr. Brennan. He did not appear. The committal warrant would have been clearer, if the

committal warrant on its face, had used the words "Strike out, no appearance". Of that there is no doubt. Nevertheless, the

underlying order and the basis upon which it was made was entirely within jurisdiction. What occurred is, in my view, a trivial slip or

error and is something which could readily be corrected. It is a technicality. In those circumstances, I would respectfully disagree

with the conclusion reached by the learned High Court judge and I would agree with the conclusion reached by the Court of Appeal in

this regard.

Conclusions

62. For the reasons set out above I would dismiss the appeals herein.