Court of Appeal dismisses appeal upholding prison warrant validity despite missing specific statutory proof details on its face.

THE COURT OF APPEAL

Finlay Geoghegan J.

Irvine J.

Mahon J.

[Appeal No. 2014/1433]

[Article 64 Transfer]

In the Matter of an Inquiry under Article 40.4 of the Constitution

Between

Damien McCabe

Applicant/Respondent

And

Governor of Mountjoy Prison

Respondent/Appellant

And

And In the Matter of Plenary Proceedings

Between

Damien McCabe

Plaintiff/Respondent

And

Ireland and The Attorney General

Defendants/Appellants

And

The Director of Public Prosecutions

Notice Party/Appellant

Judgment delivered by Mr. Justice Alan Mahon on the 22nd day of July 2015.

1. This judgment concerns the cross appeal by Mr McCabe against the judgment of Hogan J. delivered on 3rd June, 2014, relating to

Article 40 proceedings in which he challenged the validity of his detention on and after 28th May, 2014.

2. The High Court judgment concerned two of the three challenges of Mr. McCabe to his detention, namely, firstly, that the word

“convicted” in s.99(9) of the Criminal Justice Act 2006 (as amended) can only refer to a person sentenced by the District Court and,

secondly, that the warrant dated 27th May, 2014 was bad on its face. The third challenge was the subject of a second judgment

delivered by Hogan J. on 30th September 2014, and the appeal relating to the constitutional issue arising therein is the subject of a

separate judgment delivered by Finlay Geoghegan J. and which I am in agreement with.

3. The factual background to the proceedings and a summary of those proceedings in the High Court are set out in the judgment of

Finlay Geoghegan J. and it is therefore unnecessary for me to refer again to them in detail in this judgment.

4. In his judgment of 3rd June 2014, Hogan J. rejected the submissions made on behalf of Mr. McCabe as to the meaning of the words

convicted of an offence, and he also rejected Mr. McCabe’s submissions that the Circuit Court warrant was defective.

5. Mr McCabe contends that Hogan J. erred in law or in fact or on a mixed question of law and fact in the course of his said judgment

delivered on 3rd June 2014:-

(i) In holding that the phrase in s. 99(9) of the Act 2006, as amended, “convicted of an offence” was applicable in the

context of summary proceedings in the District Court in circumstances where no sentence had been imposed.

(ii) In holding that conviction and sentence were separable in the context of summary proceedings in the District Court

so as to permit of the application of s. 99(9) of the Act of 2006, subsequent to a finding of guilt but prior to any Order of

Conviction (incorporating sentence) being made.

(iii) In holding that the warrant was a lawful warrant despite the fact the warrant does not set out the nature of the

charge, the particulars of the charge, nor the date of commission of the alleged offence in respect of and on foot of

which the Circuit Court had cause to activate the suspended sentence.

(iv) In failing to hold that the warrant was an insufficient basis upon which the applicant could be detained despite the

fact that the same fails to refer to the details of or to schedule any bond entered into by the respondent on foot of the

Order of the Circuit Court of 29th day of October 2013, such as could have conferred jurisdiction on the Circuit Court on

27th day of May 2014, to activate the sentence previously imposed.

6. In DPP v Carter and DPP v Kenny [2015] IESC 20, O’Donnell J. stated at para. 1:-

“Section 99 of the Criminal Justice Act 2006 (“the 2006 Act”) is an apparently innocuous procedural provision. It has

already been amended twice in its short life (section 60 of the Criminal Justice Act 2007, and section 51 of the Criminal

Justice (Miscellaneous Provisions) Act 2009). Nevertheless, it has given rise to innumerable practical difficulties and

problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate

clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine

distinctions and considerable argument. Only one thing is clear and beyond dispute: section 99 is in need of urgent and

comprehensive review.”

The meaning of the words ‘convicted of an offence’

7. Section 99(9) of the Criminal Justice Act of 2006 (as amended) provides:-

“Where a person to whom an order under sub section (1) applies is, during the period of suspension of the sentence

concerned, convicted of an offence, being an offence committed after the making of an order under subsection (1), the

court before which proceedings for the offence were brought shall, before imposing sentence for that offence, remand

the person in custody or on bail to the next sitting of the court that made the said order.”

8. Section 99(9) of the Act of 2006 (as amended) therefore provides that where an individual is convicted of an offence during the

period of suspension of an earlier sentence, that individual must, before being sentenced for that offence, be referred to the court

which imposed the suspended sentence, and for that court to consider if that suspended sentence should be activated in whole or in

part, or not at all, before returning the individual to the court which convicted him of the offence which triggered this process, to be

sentenced by that court for that offence.

9. What is the meaning of the words convicted of an offence, and is it possible for a conviction to occur and to exist independently

of, and prior to, a sentence being imposed therefore?

10. It is contended by Mr. McCabe that s.99(9) of the Act of 2006 is not operable because it is incompatible with the nature of

convictions in summary courts. It is his contention that conviction and sentence cannot exist independently of each other with the

effect that in this case, and because the District Court, having convicted Mr. McCabe of the public order offence in the District

Court, but not sentenced him in respect thereof, could not remit the matter to the Circuit Court. It is his contention that in those

circumstances the Circuit Court was being asked to consider a conviction which was not in reality a conviction because it had not

resulted in a sentence at that point in time.

11. The respondents in these proceedings contend that a conviction is capable of meaning the completion of the judicial process of

both making a finding of guilt and imposing a sentence, and also the completion of the judicial process of making a determination of

guilt alone. They refer to the judgment of Lord Upjohn in S(Infant) v. Recorder of Manchester [1971] A.C. 481, as follows, at p. 506:-

“But the word ‘conviction’ is used also in a secondary sense, that is to express a verdict of guilty or acceptance of a

plea of guilty before the adjudication which is only completed by sentence. Not only is the word used frequently in this

sense in many judgments, but also in many places and statutes dealing with these matters. As Tindal C.J. said in

Burgess’s case, 7 Man. & G. 481, 504: ‘the word “conviction” is undoubtedly verbum equivocum. It is sometimes used as

meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court’.

Mr. Hodgson for the respondents drew our attention to a number of sections in the Magistrates’ Courts Act, 1952, where

the word ‘conviction’ was used in its primary sense of an adjudication upon the whole matter and to other sections

where it was used in the sense of verdict. Indeed, in section 126(3) it is used in the one sense and in section 126(9) in

the other sense. So, too, in the Coinage Offences Act 1861, the word ‘conviction’ was used in its secondary sense. This

was clearly pointed out by Hawkins J. in Reg. v. Blaby [1894] 2 Q.B. 170, 171 and 172, but for the purposes of that case

it was not necessary that there should have been a judgment.”

12. In Blaby, it was stated:-

“From the language used it is as clear as anything well can be that the intention of the legislature in this section was

that the finding of the jury that the accused was guilty should be treated as a conviction; ‘convicted’ meant ‘found

guilty’, and the sentence was to follow on the conviction. And a plea of guilty would equally be a conviction”.

13. In the course of his judgment, Hogan J. referred to the provisions of s. 18(1) of the Courts of Justice Act 1928 (which provided

for the right of appeal from the District Court in criminal matters being confined to those cases where a sentence has been imposed).

He quoted the provision as follows, at para. 11:-

“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”.

14. Hogan J. also referred to an extract from the judgment of McCarthy J. in Muntean v. Hamill [2010] IEHC 391 as follows para. 14:-

“As will be seen from this provision, for the purpose of brevity in the present context, an appeal can be taken only after

sentence and, by definition, accordingly, only after the matter is completely concluded, and not merely after conviction

even if, sentence happens to be adjourned following conviction, for whatever reason”.

15. McCarthy J. in Muntean pointed out at s. 50 of the Courts (Supplemental) Provisions Act 1961, provides for a special exception to

the general rule that an appeal had to be against both conviction and sentence.

16. While it is undoubtedly the case that the term conviction when used in relation to a summary offence often means the combined

judicial process of finding a person guilty of committing an offence and imposing a sentence in respect thereof, it is nonetheless clear

that this definition is not absolute and that the legislature has decided, on occasion, to separate conviction and sentence. One such

example is s. 50 of the Courts (Supplemental) Provisions Act 1961, as already indicated. Hogan J. aptly summarised the position thus

at para. 15:-

“But, if, in general, the law (and specifically the statutory law) treats conviction and sentence as inseparable, this does

not mean that this is so for all purposes or, more particularly, that the Oireachtas is not free to depart from these

concepts. It follows that the meaning of the word 'conviction' has not been fixed unalterably by some sacred legal tablet

of stone which has permanently abridged the capacity of the Oireachtas to give this word any different meaning, even in

the plainly different legal context of the 2006 Act”.

17. In its true and ordinary meaning, s. 99(9) of the 2006 Act (as amended) can only operate and make sense if, in circumstances

where an individual commits an offence while enjoying a suspended sentence relating to a previous offence, the court which imposed

the suspended sentence is in a position to decide whether all or part (or none) of the suspended sentence should be activated prior

to the new sentence for the new offence being imposed. There has to be a separation in the processes that lead to conviction and

sentence in those circumstances. It could not be necessary in those circumstances that a conviction must include a sentence, in

order for it to be a conviction.

18. I agree with the decision of Hogan J. and which he explained in the following terms at para. 20:-

“The entire language, structure and format of s. 99 – and particularly s. 99(9) and section s. 99 (10) – expressly

presupposes that the second court will transfer the question of the re-activation of the suspended sentence to the first

court and that this will be done before the second court imposes sentence. If the phrase 'convicted of an offence' were

to have the meaning for which the applicant contends, then these provisions would be otiose and unworkable.”

The Warrant

19. On 27th May, 2014, the Circuit Court revoked the earlier suspension of the appellant’s six month sentence and a warrant duly

issued. It is headed “In the matter of Section 99 (10A), Criminal Justice Act 2006, (as amended by section 60, Criminal Justice Act,

2007)" and states as follows:-

“Whereas the above named accused is a person to whom an order made under Section 99(1) of the above mentioned

Act of 2006 applies, such order having been made by this Court on 29th day of October 2013 on which date he was

sentenced to six months imprisonment to be suspended on his entering into a bond to keep the peace and to be of good

behaviour for a period of two years – see attached schedule.

And whereas the said accused was convicted in the District Court of an offence on 26th day of May 2014 and was

remanded under Section 99(9) of the said Act of 2006 to appear before Court no. 16 on the 27th day of May 2014.

And whereas the said accused was this day before the Court and the Court being satisfied upon reading the said Order

that the accused was convicted before the District Court on the 26th day of May 2014 and that such conviction

occurred during the two year period of suspension of a six month sentence of imprisonment imposed by this Court on

29th day of October 2013 in the above entitled proceedings; The Court makes an Order under Section 99(10) of the

above mentioned Act of 2006.

THAT SAID SUSPENSION BE REVOKED and Damien McCabe of 10 Rossmore Drive, Ballyfermot, Dublin 10 shall SERVE THE

ENTIRE SENTENCE OF SIX MONTHS.

And the Court doth further order that the accused be remanded in custody to appear at the sitting of District Court at

Court 3 Criminal Courts of Justice on the 28th May 2014 at 10.30 a.m. for the purpose of that Court imposing sentences

on the said accused for the offence referred to in Section 99(9) of the said Act 2006 and to be further dealt with

according to law.

TO THE GOVERNOR, MOUNTJOY PRISON

This is to command you to receive into your custody the above named accused who appeared before Court 16, Circuit

Court, on this date and caused to be imprisoned therein in accordance with the Order of the Court.”

20. The warrant was signed on behalf of the County Registrar and was dated 27th May 2014. On its face, it set forth the following

facts:-

(i) That Mr. McCabe is a person to whom an Order made under Section 99(1) of the 2006 Act applies.

(ii) That by Order of the Circuit Court made on 29th October 2013, Mr. McCabe was sentenced to six months

imprisonment which was suspended for a period of two years on condition that he keep the peace and be of good

behaviour for a period of two years.

(iii) That the accused was later convicted of an offence in the District Court on 26th May 2014, and was remanded under

Section 99(9) of the 2006 Act to appear before the Circuit Court on 27th May 2014.

(iv) That the Circuit Court Judge on 27th May 2014 being satisfied that Mr. McCabe had been convicted before the

District Court on 26th May 2014, that being within the two year period of suspension of the six month sentence imposed

by the Circuit Court on 29th October 2013, made an Order revoking the earlier suspension with the consequence that he

would then serve the entirety of his six month sentence.

(v) That Mr. McCabe be remanded in custody to appear before the District Court on 28th May 2014, for the purposes of

that date imposing sentence in relation to the Section 99(9) offence.

21. The issue of warrants (or, as they are commonly referred to, commital warrants), and possible deficiencies in such warrants, have

been considered in a number of cases.

22. The case of G.E. v. Governor of Cloverhill Prison [2011] IESC 41, involved an appeal to the Supreme Court in respect of an

application brought under Article 40.4.2 from a decision of the High Court which had found that the applicant’s detention was in

accordance with law. In that case, the applicant had been refused permission to enter the State on 1st August 2011. He apparently

had not been in a position to provide the gardaí with any form of identification. At the garda station he filled out a landing card

stating he was from Sierra Leone. This was not accepted by the gardaí and he was asked to fill out another landing card in which he

stated his nationality was Nigerian. The applicant’s solicitor in the High Court application averred to the fact that the appellant had

instructed him that he had already been an asylum seeker in the State and that he had felt pressurised into completing the second

landing card.

23. The evidence given to the High Court was that the gardaí had given the appellant three documents, each of which set out the

reason why he was been refused leave to land. These specified:-

(a) That he did not have a valid passport;

(b) That he did not have a valid visa; and

(c) That he intended to travel to Great Britain or Northern Ireland where he would not qualify for admission.

24. As a result of these events the appellant was refused permission to enter the State and was detained pending his removal under

s. 5 of the Immigration Act 2003 as amended.

25. A detention order was made out in the following terms:-

“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 Ejerenwa Date of Birth 28.10.1978

be detained in Cloverhill Prison, a prescribed place for the purpose of section 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.”

26. It was submitted that the detention order was invalid because it did not show on its face that the relevant officer suspected that

the applicant had been unlawfully in the State for a period of less than three months, that being the reason for the applicant’s arrest

and detention.

27. Section 5 of the 2003 Act provides, inter alia,:-

5(1)(a) “subject to s. 5 of the Refugee Act 1996 and s. 4 of the Criminal Justice (United Nationals Convention against

Torture) Act 2000, this section applies to:-

(a) a non-national to whom leave to land has been refused under Article 5(2) of the Aliens Order 1946

(S.R.O. & 1946 No. 395) (“the Order”),

(b) a non-national who has failed to comply with Article 5(1) of the Order’,

(c) a non-national who has entered the State in contravention of Article 6 of the Order,

(d) a non-national deemed to be a person to whom leave to land has been refused under the order,

whom an immigration officer or a member of the Garda Síochána with reasonable cause, suspects has

been unlawfully in the State for a continuous period of less than three months,

5(2)(a) subject to paragraph (b), a person to whom this section applies may be arrested by an immigration officer or a

member of the Garda Síochána and detained under warrant of that officer or member in a prescribed place and in the

custody of the office of the Minister or member of the garda siochaná for the time being in charge of that place.”

28. The court found that the detention order referred to s. 5(2)(a) of the Immigration Act 2003, and that this was insufficient to

show jurisdiction because it did not state on its face the reason for the arrest and detention. The court stated that s. 5(2) confers

the power of arrest and detention of “a person to whom this section applies”, and that it was therefore necessary to see what

provisions of s. 5(2) applied. The court noted that the detective garda appeared to rely upon three of them, as per the three

documents furnished to the appellant, but found that the defect in the detention order was the failure to state that the appellant had

been refused permission to land and, as required by s. 5(1) of the Immigration Act 2003, that the gardaí had “with reasonable cause”

suspected that the appellant had been “unlawfully in the state for a continuous period of less than three months.” These were the

facts that triggered the power under s. 5(2) of the act. Accordingly, as these facts were not on the document, the court released

the appellant.

29. At para. 31 of the court’s judgment it was stated that a document such as a detention order should contain clear information on

its face as to the basis of its jurisdiction. This was 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 designated official, 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.

30. Also, of relevance is the decision of Hogan J. in Joyce v. The Governor of the Dochas Centre [2012] 2 I.R. 666. In that case the

applicant was convicted of an offence under the Criminal Justice (Theft and Fraud) Offences Act 2001 in the District Court on 4th

March 2011. She appealed the conviction to the Circuit Court where the conviction was affirmed on 9th May, 2012. The applicant

was detained on foot of a committal warrant dated 9th May, 2012 which did not record the offences of which the applicant had been

convicted. There was no separate conviction order. Hogan J., on an application made to him pursuant to Article 40.4.2 of the

Constitution, found that the warrant was invalid as it did not contain the requisite information as would satisfy an examination as to

the jurisdiction on the face of the warrant. He concluded that the warrant was fatally flawed because it did no more than record that

the applicant had been committed to prison for nine months following a decision of the Circuit Court which heard and determined a

District Court appeal. It did not record the offence for which the accused was convicted but simply referred to the “above mentioned

criminal case”. In reaching his conclusion Hogan J. relied upon the decision in GE.

31. The information on the face of the warrant in this case is, I believe, sufficient to identify clearly to all concerned, and with

precision, the jurisdiction which was exercised at each stage of the process pursuant to which the appellant was ultimately taken into

custody. The warrant on its face demonstrates the reason why he was taken into custody. The jurisdictional basis is clear from the

sequential referencing in the warrant to the statutory power invoked at each stage of the process. Likewise, the reasons are clearly

stated. The relevant case law does not require that the warrant recite each of the proofs that would have been necessary for the

relevant orders to have been made by the District Court judge on 26th May 2014, and subsequently by the Circuit Court judge on

27th May 2014.

32. The District Court judge on 26th May 2014, as per the face of the warrant, exercised his powers under s. 99(1), and also under s.

99(9) of the 2006 Act. The warrant recites that the Circuit Court judge on 27th May 2014 exercised his powers as provided for in s.

99(10) and made an order revoking the suspended sentence earlier imposed by that court on 29th October 2013.

33. Not only is the jurisdiction which was exercised and which led to the appellant being taken into custody clearly set out in the

warrant, but the reasons are there for all to see. The fact that on the face of the warrant no reference is made to the fact that a

bond was entered into by the appellant following the imposition of sentence on 29th October, 2013, is irrelevant. This would have

been one of the proofs to be placed before the court to satisfy the District Court judge on 26th May 2014 that the appellant was a

person to whom s. 99(1) of the 2006 Act applied. The warrant recites that the appellant is a person to whom that section applies.

Further, the fact that the warrant on its face does not show that the second offence was committed during the period of suspension

does not render the warrant invalid. Again, proof of that fact would have been required by the District Court judge before he made his

order and exercised his jurisdiction under s. 99(9) of the 2006 Act, it is known from the face of the warrant that he made an order

under that section. It is not in my view a requirement that the proofs that would be necessary in order for the relevant judges to

exercise their jurisdiction must be found on the face of the warrant. It is the jurisdiction and the reasons for the exercise of that

jurisdiction that is required and that has been complied with in the present case. The facts of the present case are quite different to

those in GE.

34. I am satisfied therefore that the content of the warrant in this case is sufficient to meet the requirements of the decision of the

Supreme Court in GE and is therefore valid. I agree with the judgment of Hogan J. in this respect. Hence I would dismiss the cross

appeal of Mr McCabe against the High Court judgment of 3rd June 2014. I agree with the orders to be made on the appeal and cross

appeal proposed by Finlay Geoghegan J in her judgment.