High Court dismisses judicial review of final criminal sentence as collateral attack barred by applicant's conduct.

Neutral Citation: [2016] IEHC 380

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 278 J.R.]

BETWEEN

DAVID RYAN

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of Ms. Justice O’Regan delivered on the 29th day of June, 2016

Background

1. By order of Mr. Justice Noonan of 4th May, 2016 the within Applicant was afforded leave to apply by way of application for judicial

review for an order quashing the order of Cashel District Court made on 29th February, 2016 pursuant to s. 99(9) of the Criminal

Justice Act 2006 together with an order quashing the order of Clonmel Circuit Court made on 3rd March, 2016 pursuant to s. 99(10) of

the 2006 Act.

2. By way of amended statement of opposition of the respondent of 7th June, 2016, the respondent is resisting the applicant's claim

on the grounds that:-

i. the proceedings constitute a collateral attack on the criminal process in all of the circumstances;

ii. the applicant has failed to demonstrate any lack of jurisdiction in the orders made, and;

iii. by virtue of the conduct of the applicant he has acquiesced to the orders being made.

Proceedings prior to the within application for judicial review

3. The following is a brief synopsis of the proceedings had prior to the application for judicial review:

i. On 11th July, 2013, the applicant was arrested for having committed four offences including the offence of criminal

damage contrary to s. 2 of the Criminal Damage Act 1991 (the original offence).

ii. On 24th October, 2013, the applicant signed pleas in respect of each of the four charges and on 8th November, 2013,

he confirmed his signed plea before Clonmel Circuit Court.

iii. On 29th April, 2014, Clonmel Circuit Court imposed a total cumulative sentence of six years with the final three and a

half years suspended. The sentence was backdated to 13th July, 2013. The suspension was afforded on the basis that

the applicant would keep the peace and be of good behaviour towards all the people of Ireland for a period of five years

from the date of his release from prison and that he remain entirely alcohol free during said period.

iv. The applicant was released from Cork Prison on 24th May, 2015.

v. On 27th January, 2016, the applicant committed a criminal damage offence contrary to s. 2 of the Criminal Damage Act

1991 (the trigger offence).

vi. On 20th February, 2016, the applicant was brought before Cashel District Court where he pleaded guilty to this

offence of criminal damage. The applicant was remanded in custody under s. 99(9) to Clonmel Circuit Court on 3rd March,

2016.

vii. On 3rd March, 2016, the applicant appeared before Clonmel Circuit Court and Judge Teehan revoked the suspended

sentence and imposed two and a half years of the three and a half years remaining on the sentence. At that hearing the

applicant engaged the provisions of s. 99(10) in or about an application to resist the revocation of the suspended

sentence. The applicant did not challenge the jurisdiction of the court at that time nor did he appeal the order of

revocation of the suspended sentence, as was available under s. 99(12).

Applicant’s submissions

4. The applicant in the instant matter accepts that he pleaded guilty to both the initial offence and the trigger offence, that he

breached the condition to be of good behaviour and by the date of the trigger offence he had consumed alcohol but nevertheless

states he is entitled to the orders sought in his judicial review application because:

i. His current application (judicial review), although no appeal was made in respect of the revocation of a suspended

sentence under s. 99(12), was processed within the time limits to bring an application for judicial review and therefore

there was no finality of the process to debar him from the relevant relief.

ii. The applicant claims, in the alternative, even if there was finality nevertheless his conduct is insufficient to debar him

from the relief as:-

a. it is asserted that he did not acquiesce in any way with regard to the revocation of the suspension of the original

sentence;

b. the seriousness of his offence was much less than the offence, for example in the case of Clarke v. Governor of

Mountjoy Prison [2016] IEHC 278, of robbery and possession of firearms;

c. furthermore he seems to distinguish himself from the Clarke status in that his suspension was three and a half years

whereas in the Clarke case the applicant had secured a suspension of seven years;

d. finally he also suggests that the extent of the breach to keep the peace and be of good behaviour was minimal and

confined to the date of the trigger offence.

Current Issues

5. The parties in this case fairly agree that the applicant will be precluded from seeking the relief in his application for judicial review

if:-

a. the case of the applicant had reached finality – if so, the within application would be considered a collateral attack

(see A v. Governor of Arbor Hill Prison [2006] 4 I.R. 88); and

b. if the case had not reached finality, nevertheless the applicant may be barred from securing the relief based upon his

conduct. (see Henchy J.'s judgment in The State (Byrne) v. Frawley [1978] I.R. 326).

Case law

6. In the case of Moore & Ors. v. Ireland & Ors. [2016] IEHC 244, Mr. Justice Moriarty, in the High Court in a judgment delivered on

the 19th April, 2016, found ("in the context of the facts reviewed and the arguments made") that subss. (9) and (10) of s. 99 of the

Criminal Justice Act 2006 were repugnant to the Constitution on the basis of finding that there were three scenarios in which a

defendant would be prejudiced by virtue of the provisions thereof. In that case, each of the applicants were convicted of offences

while in the currency of a suspended sentence. Each were convicted having pleaded not guilty. Each wished to appeal the conviction

but could not do so until the revocation process was complete by which time they would have suffered the revocation of the

suspended sentence. None of the three scenarios identified by Moriarty J. apply in the instant circumstances.

7. In the case of A. v. Governor of Arbor Hill Prison [2006] 4 I.R. 88 Hardiman J. distinguished the position of the applicant in that

case from the position of the applicant in the case of The State (Byrne) v. Frawley because in the case before Hardiman J., the

applicant had pleaded guilty whereas in the Frawley case there was a conviction by a jury. In the case of A the Supreme Court

upheld the applicant's detention as lawful on the basis that the striking down of an Act of the Oireachtas does not have the effect of

nullifying criminal proceedings litigated to finality.

Murray C.J. stated:-

"125. In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does

not seek to impugn the bringing or conduct of the prosecution, on any grounds that may in law be open to him or her,

including the constitutionality of the statute, before the case reaches finality, on appeal or otherwise. then the final

decision in the case must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute,

or a provision of it, is unconstitutional. That is the general principle.

126. I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court

declares a statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly

exceptional reasons related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular

cases or a particular class of cases be not allowed to stand.

127. I do not consider that there are any grounds for considering this case to be an exception to the general principle.

The applicant, like all persons who pleaded guilty to or were convicted of an offence contrary to s.1(1) of the Act of 1935

had available a full range of remedies under the law. They could have sought to prohibit the prosecution on several

grounds including that the section was inconsistent with the Constitution. Not having done so they were tried and either

convicted or acquitted under due process of law. Once finality is reached in those circumstances the general principle

should apply.

8. In the case of Clarke v. Governor of Mountjoy Prison, McDermott J. dealt with an application by an applicant who was relying on

the declaration of invalidity granted in the Moore case and the judge, having reviewed all relevant case law, found at para. 63 that:-

"...each case of this kind must be examined on its own merits and... the authorities do not establish that a declaration of

invalidity of the two sub-sections has a blanket retrospective effect."

In this application, the application was grounded upon Article 40 of the Constitution. McDermott J. was of the view that as the

applicant had entered an appeal to the order revoking the suspension of his sentence, and therefore the applicant was not excluded

from seeking the relief on the basis of finality. Insofar as the applicant's conduct was concerned, McDermott J. stated at paras. 53-

57:-

"The court mitigated the sentences by the suspension of most of the custodial period, subject to conditions. The matter

was concluded. The applicant had been convicted and sentenced following a trial in due course of law and in accordance

with the fundamental attributes of a fair trial. No appeal was taken at that stage and the criminal trial was concluded

once the time limit for appeal had expired. The applicant solemnly undertook to abide by the conditions of the suspended

sentence. He was happy to do so. ...

The mandatory condition that he keep the peace and be of good behaviour for a period of seven years was breached. He

committed further offences. He failed to abide by the directions of the probation service. He failed to attend the drug

treatment centre as directed. Noneof this is in dispute. When he appeared in the District Court in respect of the new

offences, in 2014, he pleaded guilty. ... The applicant has never evinced an intention to appeal his conviction in the

District Court on these matters. Unlike the applicants in the Moore case he is not a person convicted after a trial in the

District Court who wished to appeal that conviction but was unable to do so before the case was referred back to the

court which had imposed the suspended sentence. He did not experience the prejudicial or suggested discriminatory

effects of the impugned sub-sections found to apply to the Moore applicants. He was guilty and accepted his guilt. He

had no basis upon which to issue judicial review proceedings challenging the process, as the applicants in Moore had

done.

In the course of the revocation hearing, he was represented by solicitor and counsel. No objection was taken to the

procedure adopted. The court dealt with the matter in accordance with the law then applicable. No attempt was made by

the applicant to challenge the constitutionality of ss.99 (9) and (10). I am satisfied that such a challenge could not have

succeeded because he could not demonstrate any prejudice or discrimination...

He benefited from the suspended term on his release from prison and was happy to remain at liberty pursuant to its terms

until convicted of the District Court offences. He now raises a challenge to the re-activation of his sentences almost

seventeen months after the conclusion of the Circuit Court hearing which he has since chosen to appeal."

9. The court went on to find that the applicant was not entitled to rely on the Moore case or to the benefits of the declaration of

unconstitutionality therein on the basis that the applicant had:-

a. Engaged fully in the original sentencing process where he undertook to abide by several conditions set down in the

order for the purpose of securing his early release from custody following advice and involving the making of an irreversible

commitment by the applicant.

b. Absent a breach of those conditions the trial was at an end.

c. He failed to challenge the s. 99 procedure at any stage.

10. In the Court of Appeal decision of DPP v. Cunningham [2013] 2 I.R. 631 it was held that where a right of appeal was provided by

law a proceeding could not be regarded as finalised or concluded in respect of the decision that was sought to be appealed until the

appeal had been concluded or no appeal had been taken within the time limit for so doing. Hardiman J. stated at para. 51 of the

judgment:-

"The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of

Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are,as Finlay C.J.

in Dalton v. Minister for Finance [1989] 1 I.L.R.M. 519 expressed it, at p. 273, "subject to a proper right of appeal as

provided by law". It therefore appears that where there is (as in this case) a right of appeal provided by law, finality

cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal

has concluded or noappeal has been taken within the time limit for doing so."

11. The applicant in the instant case lays significant emphasis on the words of Murray C.J. in the A judgment when he refers to:-

"... before the case reached finality, on appeal or otherwise, then the final decision in the case must be deemed to be

and to remain lawful."

12. The reality is that Murray C.J. stated at para. 127:-

"The applicant, like all persons who pleaded guilty to or were convicted of an offence contrary to s. 1(1) of the Act of

1935 had available a full range of remedies under the law. They could have sought to prohibit the prosecution on several

grounds including that the section was inconsistent with the Constitution."

13. Furthermore, at para. 53 of the Clarke judgment, McDermott J. stated that "the criminal trial was concluded once the time limit for

appeal had expired."

14. In Cunningham the Court of Appeal held that proceedings could not be regarded as finished until the appeal had been concluded

or no appeal was taken within the time limit for doing so.

Conclusion

15. I am satisfied that in a case such as the within application for certiorari the case law provides that each case must be examined

on its own merits and the authorities do not establish that a declaration of invalidity has a blanket retrospective effect.

16. I am satisfied that the applicant's criminal case had reached finality prior to the institution of the within judicial review application

and that this judicial review application could not be considered part of the process in order to establish that finality had not yet been

reached, notwithstanding that judicial review was sought within the time limits afforded. The basis for this finding is:

c. The applicant had not appealed the revocation of a portion of the suspended sentence under s. 99(12) of the Act.

d. As with the applicant in the Clarke case, the applicant did not have locus standi to bring a constitutionality claim.

e. Reference to “appeal or otherwise” in the decision of Murray C.J. in the A. case was in my view explained by him at

para. 127 of his judgment as encompassing the prohibition of the prosecution on any one of several grounds.

f. In the judgment of Mr. Justice McDermott, in the Clarke decision, it is stated at para. 53:-

“No appeal was taken at that stage and the criminal trial was concluded once the time limit for appeal had expired.”

17. Furthermore, even if finality had not been reached, the applicant in the instant matter is debarred by his conduct from securing

the reliefs claimed by him on the basis that:-

a. The applicant pleaded guilty to the trigger offence.

b. He had breached two conditions of the suspended sentence, namely to be of good behaviour and to remain entirely

alcohol free.

c. He did not maintain an appeal of the revocation of a portion of the suspended sentence under s.99(12).

d. The trigger offence was committed eight months following his release from prison.

e. The trigger offence was that of criminal damage, being one of the offences in the initial offence.

f. At the hearing of the revocation to suspend the sentence, the applicant did not raise a constitutional issue and in fact

engaged with the provisions of s.99(10) in or about securing a partial revocation of the suspended sentence.

18. In the circumstances I refuse the applicant in each of the claims for certiorari based on s. 99(9) and s. 99(10) of the 2006 Act.