High Court allows detention of prisoner on consecutive sentence pending appeal of prior sentence.

Neutral Citation: [2016] IEHC 512

THE HIGH COURT

[2016 No. 494 S.S.]

IN THE MATTER OF ARTICLE 40 OF THE CONSTITUTION.

BETWEEN

JOHN WILKINSON

APPLICANT

AND

THE GOVERNOR OF THE MIDLANDS PRISON

RESPONDENT

EX TEMPORE JUDGMENT of Mr. Justice White delivered on 3rd day of May, 2016

1. The applicant, John Wilkinson, on 28th April, 2016, sought an inquiry pursuant to Article 40 of the Constitution which was granted

and returned to 29th April, 2016. The inquiry was conducted on that date and, as it did not conclude until the late afternoon on

Friday and Monday was a public holiday, judgment was reserved to today.

2. The applicant was convicted after a contested hearing on 20th January, 2016, at Carlow District Court of an offence of assault

causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997 and was sentenced to nine months

imprisonment. Recognisances for appeal were fixed in the applicant's own bond of €1,000 and €250 cash lodgement. He did not lodge

an appeal immediately.

3. On 13th April, 2016, while still in custody on the first sentence at Athlone District Court, the applicant was convicted, after a

contested hearing, of driving without insurance and was sentenced to three months' imprisonment consecutive to the sentence

imposed in Carlow. The warrant of 13th April, 2016, ordered that the applicant be imprisoned for a period of three months to be

served on legal expiration of sentence of nine months imposed in case No. 2015/109689 in Carlow on 28th January, 2016.

4. The applicant was granted an extension of time on 20th April, 2016, to appeal the conviction and sentence imposed in Carlow

District Court on 20th January, 2016. The applicant completed the necessary papers for the appeal on the 28th April, 2016.

5. The respondent continued to hold the applicant on foot of the three-month sentence imposed on 13th April at Athlone District

Court. The applicant contends that this is illegal detention as the only interpretation of the warrant of 13th April, 2016 is that

sentence can only take effect upon the legal expiration of the nine-month sentence imposed in Carlow District Court on 20th January,

2016.

6. The respondent contends that, once an appeal has been lodged, a new warrant must issue if on appeal, the applicant is ordered to

serve the sentence, or any part of it. The first sentence of nine months in the warrant of 13th April, 2016 has legally expired.

7. The applicant argues if that is the case, the warrant of 13th April, 2016 is void for uncertainty as its commencement date is

uncertain.

8. A number of authorities have been opened to the Court but it was accepted by both the applicant and the respondent that the

Court is dealing with a unique situation which the Superior Courts have not yet specifically interpreted, where an applicant, who has

been sentenced to a term of imprisonment, but does not appeal that immediately, or where recognisances are not fixed, and who

subsequently has been granted an extension of time to appeal, but in the meantime, before that appeal has arisen or taken place,

another District Court conviction arises and that conviction has been imposed consecutively and that conviction is not appealed.

9. The applicant relies on a number of authorities but, in particular, a passage from the judgment of Barron J. in the State (Gleeson)

v. Martin [1985] IRLM 557. Barron J. stated:-

“In Gleeson’s case and in McKeown’s case, it was also contended that the express legal expiration was uncertain, since

the convicted person could not know in advance what remission, if any, of a sentence he would receive. It was submitted

on behalf of the respondents that where sentences were imposed consecutively, remission was granted only upon the

basis of a combined sentence and that accordingly a two-year sentence or a three-year sentence expired in two or three

years, as the case might be a lot sooner. This does not seem to me to be correct since, in the event of a six-month

sentence to run consecutively with a three-year sentence, the convicted person might be entitled, with remission, to be

released within three years. I would regard the expression ‘legal expiration’ to be clear and to mean upon the actual

determination of the sentence, whenever that legally occurs. I do not regard any of the impugned orders as being void for

uncertainty.”

10. The respondent relies on the District and Circuit Court rules and a number of authorities, but, in particular, Connors v. the

Governor of the Dóchas Centre and Minister for Justice and Equality, a judgment of McDermott J. of 1st and 15th April, 2015.

11. The respondent relies in particular in respect of the District Court Rules on Orders 101, rules 1, 4, 6 and 13, and Orders 25, rule

9(3) and (4), and it is appropriate to quote those rules in full.

12. Order 101 of rule 1 of the District Court rules states:

“Every appeal to the Circuit Court from a decision of the District Court shall be by notice of appeal (Form101.1 or 101.2,

schedule D), which shall be served upon every party directly affected by the appeal within 14 days from the date on

which the decision appealed from was given. The notice of appeal shall be made to the appropriate Circuit Court, to be

held next after the said period of 14 days.”

13. Rule 4 states:-

“Subject to the provisions of order 12, rule 30, where a person is desirous of appealing criminal proceedings or, in a case

of an order for committal to a prison under the enforcement of Court Orders Acts 1926 and 1940, a recognisance for the

purpose of appeal shall be fixed by the Court. The amount, if any, of the recognisance in which the appellant and the

surety, or sureties, if any, are to be bound shall be fixed by the Court and where an amount so fixed, it shall be of such

reasonable amount as the Court shall see fit. An application to the Court to fix the amount of recognisance may be made

ex parte. A sum of money equivalent to the amount, if any, conditioned by the recognisance may be accepted in lieu of a

surety or sureties. The recognisance shall be in accordance with the form 18.4, schedule B, and shall be entered into

within a 14-day period fixed by rule 1 of this order.”

14. Rule 6 of Order 101 states:-

“On the entering into a recognisance in accordance with rule 4 of this order, execution of the order appealed against shall

be stayed and the appellant, if in custody, shall be released. In any case where a monetary penalty has been imposed on

the appellant, or the appellant has been required to perform a condition the Court may, not later than six months from the

expiration of the time allowed by the order for payment of the penalty, or for performance of the condition, issue the

warrant of committal in default of such payment or in default of such performance as the case may be, unless the

appellant shall have entered into a recognisance."

15. Rule 13 states:-

"When form 101.7, referred to in rule 12, is returned with the County Registrar's certificate duly completed thereon, and if the Circuit

judge has not caused the necessary warrant to enforce the order to be issued, the Clerk shall forthwith prepare and the Judge of the

District Court shall issue the necessary warrant, or warrants, and take all further steps required for the execution of the conviction or

order as confirmed or varied and for the enforcement of payment of any costs, compensation or expenses awarded by the Circuit

Court. In criminal cases, the superintendent of An Garda Síochána shall inform the clerk of any case in which the Circuit judge has not

caused the necessary warrant to be issued."

16. Order 25, rule 9(3):- staes

“Where such warrant has been issued and executed before notice of appeal is given, or before a recognizance is entered

into, the appellant shall, on notice of appeal being given and the recognisance being entered into, forthwith be discharged

from custody or from prison. Where such warrant is a warrant of distress, such distress shall be returned to the owner.”

17. Mr. Wilkinson exercised his rights of an appeal after the warrant was issued and executed so order 25, rule 9(3) expressly applied

in his case.

18. Rule 9 (4), states:-

“Save where otherwise provided by statute or by rules of court, the order appealed from shall be entirely suspended until

the appeal is decided or the appellant fails to perform the condition of the recognizance, as the case may be. This rule

shall not be taken to override any statute expressly authorising or directing the levy of any sum to be made

notwithstanding an appeal.”

19. The relevant Circuit Court order is Order 41, rules 5 and 6.

20. Rule 5 states:-

“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 confirmed or varied upon appeal, or either party shall upon appeal

have been ordered to pay a specified sum for costs, the Circuit 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.”

21. Rule 6 states:-

“Where the order of the Justice of the District Court as confirmed or varied on appeal directs the imprisonment of any

person the Judge of the Circuit Court may, upon confirming or varying the said order, or at any time before the issue of a

formal warrant by a justice of the District Court or by the County Registrar for the execution of such order so varied or

confirmed, direct that such person be taken into custody forthwith, or detained in custody, and imprisoned pending the

issue of such warrant.”

22. The Court accepts that a warrant is strict. The Court relies on an old case per Huddelestone B. in ex parte Terraz [1878] 4 Ex Div

638 at p.668, quoted from Woods’ on District Court Practice and Procedure in Criminal Cases, Part II, Chapter 9:-

“Warrants in execution are in the nature of convictions and it has always been held that warrants of that class require

considerable strictness for the reason that, when the party is brought up on habeas corpus and is held under a warrant of

execution, the Court can only judge by what appears in the warrant whether a crime has been committed and whether

the alleged criminal is properly held in custody.”

23. It is clear from the District and Circuit Court rules that the Circuit Court may issue the necessary warrant to enforce its decision

and, if it does not, the District Court shall issue the necessary warrant. So, the original warrant of the District Court, where an appeal

is lodged and where recognisances are fixed, in other words where the person is released and where an appeal then takes place is

replaced by a fresh warrant and that warrant can either be issued by the Circuit Court or go back to the District Court.

24. The passage the respondent relies on in the Connors case is at p. 11, going into p. 12, when McDermott J. stated:-

“The order of the Circuit Court, once the appellate jurisdiction is invoked Is a fresh order and is entirely separate from the

order made at first instance and arises from the nature of its extensive jurisdiction to hear the case de novo. As stated

by Davitt J. in the State (McLoughlin) v. Shannon [1948] I.R. 439:-

‘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.’”

25. The sentence of three months' imprisonment, issued on 13th April, 2016, is certain. Unless appealed, it has to be served. It has

not been appealed. The problem arises with the commencement date. I am satisfied that the effect of an appeal from the District

Court to the Circuit Court of a sentence of imprisonment where a warrant has issued and been executed prior to the notice of appeal

being given and recognisances entered into, and where a consecutive sentence has been imposed to that sentence and where such

consecutive sentence has not been appealed, is to bring forward the commencement date of that consecutive sentence to the date

the appeal is successfully entered into in respect of the sentence which immediately predates it.

26. I am satisfied that, on the successful entry of an appeal, where recognisances have been entered into - in other words where the

person is at liberty pending the appeal – that the original sentence of the District Court has been legally determined pending the final

decision on appeal in the Circuit Court. The appellant is in legal detention.