High Court refuses judicial review of Circuit Court sentence appeal delay due to juvenile defendant's failure to prosecute.

Neutral Citation: [2016] IEHC 54

THE HIGH COURT

JUDICIAL REVIEW

[2015 No. 322 JR]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

CIRCUIT JUDGE ALISON LINDSAY

RESPONDENT

AND

D. C.

NOTICE PARTY

JUDGMENT of Mr. Justice McDermott delivered on the 2nd day of February, 2016.

1. This application concerns the jurisdiction of the Circuit Court when dealing with an appeal against severity of sentence for

detention imposed upon a young offender who fails to prosecute his appeal.

2. The notice party was born on the 14th June, 1998. On the 26th January, 2015 when approximately sixteen years of age, he was

prosecuted on charge sheet 15046847 for the offence of knowingly being a passenger in a stolen car on the 23rd August, 2014

contrary to section 112 of the Road Traffic Act 1961 (as amended by section 65 of the Road Traffic Act 1968 and section 18 of the

Road Traffic Act 2006). The notice party pleaded guilty to this offence on the 26th November, 2014. The matter was remanded for

the consideration of a probation report to the 23rd January, 2015. On that date the learned District Judge indicated that he proposed

to impose a sentence of four months detention. The imposition of sentence was deferred as there were no places available in either

Oberstown or Trinity House to receive the notice party in accordance with a warrant of detention. The case was adjourned to 26th

January when it was indicated that a place would become available and the proposed order of detention could be implemented. On

that date the sentence was imposed and the notice party was briefly committed to Oberstown. However, the order was immediately

appealed to the Circuit Court and the notice party was released upon entering the recognisance fixed in respect of the appeal.

3. The notice party’s appeal was listed for the first time before Dublin Circuit Court on 19th February, 2015. He was not produced

from Trinity House where he was detained, in respect of other charges. The notice party’s solicitor informed the Court of this fact and

the matter was adjourned to the 11th March, 2015. On that date the notice party failed to attend. The case was adjourned to the

20th March and the notice party again failed to attend, although the matter was listed peremptorily against him. Submissions were

made on the notice party’s behalf on the 11th and 18th March, that the Court should not strike out the appeal and affirm the order of

the District Court in his absence. The Court acceeded to those requests. Further submissions were made on the 20th March, 2015 but

no explanation was offered for his nonattendance on the various dates to which the appeal was adjourned or his failure to prosecute

the appeal.

4. On the 20th March the learned Circuit Judge recorded the nonattendance of the notice party, struck out his appeal and affirmed

the conviction and order of the District Court making allowance for any part of the four month period of detention already served by

him. A committal warrant issued on the 23rd March. Following the usual recitals concerning the history of the offence, the notice

party’s conviction and sentence, the warrant continues: -

“AND WHEREAS on the hearing of an appeal by the said Defendant against the said Order the Circuit Court Judge for the

City and County of Dublin on the 20 - Mar – 2015 ordered as follows:

NO APPEARANCE – STRIKE OUT APPEAL AND AFFIRM CONVICTION AND ORDER OF THE DISTRICT COURT

THIS IS TO COMMAND YOU to whom this warrant is addressed to lodge the accused D.C. OF (ADDRESS GIVEN) in the

Detention Centre at Oberstown, there to be detained by the person in charge thereof for the period of 4 months making

allowance for any part of the original sentence already served”

This warrant was directed to the Superintendent of An Garda Síochána at the Bridewell, Dublin.

5. The order of the learned Circuit Judge was made in the absence of the notice party. Oberstown was the place of detention

specified on the committal warrant. It was not made known to the learned Circuit Judge whether or not a place was available in

Oberstown for the detention of the notice party or when the committal warrant might be executed. Subsequently, on the 14th May,

2015 the notice party was arrested on other charges and inquiries were made with Oberstown to ascertain whether there was a place

available for the notice party if the committal warrant were to be executed. No place was available. However, Trinity House indicated

that it had a place but could not take the notice party because Oberstown had been specified in the warrant as the place in which he

was to be detained. As a result the warrant was not executed. He was not brought to Oberstown because, it is said that if conveyed

there at a time when no place was available, the warrant would be considered executed despite the notice party not having served

the sentence.

6. On the 18th May, 2015 an application was made to the Circuit Court to amend the committal warrant. This application was

opposed by the solicitor for the notice party on the basis that it could not be made in his absence. The application was adjourned to

the 21st May for legal submissions. The notice party was cautioned by An Garda Síochána to attend on that date but did not do so.

In the interim following legal advice the application to amend was abandoned and no order was made by agreement with the solicitor

for the notice party.

7. It does not appear that at any stage the learned Circuit Judge was informed of the availability or otherwise of a place at

Oberstown before striking out the appeal and affirming the order of the District Court. No application was made on behalf of the

applicant that this order should not be made or that it should be deferred until it was clear that a place at Oberstown was available.

8. A number of efforts were made by Garda McKenna, the prosecuting Garda, to execute the warrant. On 23rd April, 2015 Garda

McKenna attended District Court 55 in possession of the committal warrant knowing that the notice party was in court on other

matters. He failed to appear and a bench warrant was issued. He later attended at the notice party’s address and spoke with his

uncle. He requested that the notice party be instructed to contact the Gardaí with a view to having the warrant and other warrants

executed. He did not do so. Bail was revoked by the District Court in respect of other matters on the 19th June, 2015. The notice

party is a young man with twenty previous convictions. He has incurred sixteen prior convictions for offences committed whilst on

bail. He is presently serving a sentence of detention in respect of other offences and is due for release in February/March 2016.

9. An application for leave to apply for judicial review was made by the applicant on the 15th June, 2015. The notice party turned

seventeen on the 14th June and was at that time detained in Trinity House. Leave was granted on the ground that the learned Circuit

Judge failed to comply with the provisions of section 143 of the Children Act 2001 as amended by the Criminal Justice Act 2006 which

states:

“1. The court shall not make an order imposing a period of detention on a child unless it is satisfied that detention is the

only suitable way of dealing with the child and that a place is available for him or her.

2. Where an order is made under subsection (1), the court making the order shall give its reasons for doing so in open

court.”

10. It is submitted that the learned Circuit Judge failed to make the necessary inquiry concerning the availability of a place which is

required by section 143 before making the order affirming the four month period of detention imposed in the District Court. It is said

that the necessary degree of certainty regarding the availability of a place that is statutorily required before a period of detention is

imposed was absent when the order was made. It is further submitted that the order was made in the notice party’s absence and

that it could not be known when the warrant would be executed and whether a place would be available for him at that time,

because the Court could not know when and in what circumstances the warrant would be executed.

11. The applicant also relies on section 144 of the Children Act 2001 in respect of the deferment of detention orders if a place is not

available for a child in a detention school or for any other sufficient reason. Section 144(4) provides that:-

“In case the making of the order has been deferred because a place for the child is not available in a children detention

school, the court shall order that the Director of that school shall apply to the court to make the children detention order

when such a place becomes available.”

Section 144 also requires a judge to explain to a child what is involved in the deferment of a detention order. Section 145 of the

Children Act 2001 provides for an alternative order when no place is available in a children detention school and the Court is satisfied

that it would not be appropriate in the particular case to defer the making of a children detention order. In those circumstances, it

may make an order imposing on the child an appropriate community sanction.

12. 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. The Circuit Judge will act within jurisdiction in making such an order if

she/he does not embark upon the appeal. (The King (McMonagle) v. Justices of Donegal [1905] 2 I.R. 644; the State (Dunne) v.

Martin [1982] I.R. 229; McCann v. His Honour Judge Groarke and Director of Public Prosecutions [2001] 3 I.R. 431 and Phelan v.

Circuit Judge Delahunt and others [2014] IEHC 142).

13. Under Order 41 Rule 5 of the Circuit Court Rules judges of the Circuit Court “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 ” of the District Court. This applies

equally to an appeal in a criminal case which is not prosecuted or the original order is confirmed or varied by the Circuit Court. This

aspect of the appellate jurisdiction of the Circuit Court was considered in The State (Caddle) v. McCarthy [1957] I.R. 361 and

Attorney General v. Mallen [1957] I.R. 344. The position was summarised by Lavery J. in Caddle as follows (at page 377):-

“It seems to be obvious that a court of criminal jurisdiction must have power to direct how the sentence imposed by it is

to be enforced and where the rule- making authority has prescribed a procedure and this has been followed there is no

more need to be said. But there is statutory authority. Section 72 of the County Officers and Courts Act, 1877, provided

that in every appeal from an order of Justices in any case of summary jurisdiction, where the original order should have

been confirmed or varied on appeal, the Court of Appeal shall have and may exercise the same powers, jurisdiction and

authority to issue all necessary and proper warrants for the execution of the original order or of such varied order as the

Court which made the original order had, or might have, exercised when making such order.”

If an adult offender appeals his conviction and sentence to the Circuit Court which has not prosecuted his appeal, the Circuit Court

may affirm the order of the District Court and issue out all warrants necessary and proper for the execution of the original Order or

such varied Order.

14. The same rule applies in respect of an appeal brought by a child against an order of conviction and sentence. Thus, if the appeal

is not prosecuted and the order of the District Court is affirmed or varied, the Circuit Court has jurisdiction to issue such warrant as is

necessary and proper for the execution of the original or varied order. In this case there is a slight variation to take account of the

short period spent by the notice party in Oberstown prior to his release when recognisances were fixed.

15. The Circuit Court in affirming the order of the District Court in this case did so because the notice party failed to appear to

prosecute his appeal in accordance with the recognisance which he entered. He was legally represented. The next step was to

ensure the enforcement or execution of the order by the issuing of a warrant by the Registrar in accordance with Order 41 Rule 5.

The District Court was precluded from imposing a sentence of detention if there was not at the time of sentence a place available in a

child detention school to which the child could be committed under section 143(1). No such obligation arises when imposing a

sentence of imprisonment upon an adult. However, the duty of the executive is to enforce the order of the Court in both cases.

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. The District Court in making its order heard all relevant evidence

before imposing the sentence of detention and satisfied itself that this was the only suitable way of dealing with the notice party

under the first limb of section 143 (1). It has never been suggested, nor has the District Court order been challenged on the basis of

a failure to apply any of the sentencing principles applicable to a child under the Children Act 2001. Clearly, the District Court satisfied

itself that a place at Oberstown was available to which the notice party was committed for a brief period before entering

recognisance on appeal. In the absence of any substantive challenge on appeal to the sentence imposed and because the child failed

to attend to prosecute the appeal, the learned Circuit Judge properly exercised her jurisdiction to affirm the order of conviction and

sentence with the slight variation. It was open to the applicant at this stage to inform the Court of any difficulty concerning

Oberstown and to make any application necessary to ensure that the order was made or the committal warrant issued only when a

place was available. This was not done. The problem then became one of enforcement of that order.

17. The varied order of the District Court retains its essential character as an order of that Court (per Lavery J. in Mallen at page

351). The “Committal Warrant after Appeal” was issued on the direction of the learned judge for the purpose of ensuring the

execution of the original order as varied. If the Circuit Court does not issue a warrant to enforce the affirmed District Court order, a

warrant will be prepared by the District Court Clerk and issued by a judge of the District Court for the purpose of taking all such

further steps required for the execution of the conviction or order under section 23 of the Courts of Justice (District Court) Act 1946

and Order 101 Rule 13 of the District Court (Appeals to the Circuit Court) Rules 2003.

18. The District Court Rules and the Circuit Court Rules in respect of orders made on appeal have not been altered to take account of

the provisions of the Children Act 2001. The Circuit Court on appeal is not required to consider the substantive issue of sentence

under section 143 of the 2001 Act before affirming an order of the District Court when the child appellant fails to appear to prosecute

the appeal. The requirements of section 143 relate to whether the imposition of a sentence of detention is appropriate on the basis of

the sentencing principles set out in the Act.

19. The appellant submits that the Circuit Court was obliged to consider the matters set out in section 143(1) and (2) before affirming

the order of the District Court. In particular, it is submitted that the Court ought to have inquired as to whether a place was available

in a children’s detention school before affirming the order of the District Court. If that is so it would appear to follow that the Circuit

Court would have to regard the making of an order affirming the order of the District Court as an order imposing a period of detention

and would also have to satisfy itself that the detention was the only suitable way of dealing with the child. This would involve a

complete rehearing of an appeal that is not being pursued. It would also appear to invite compliance with section 143(2) of the Act.

That in turn may require the consideration of a deferral of the making of such an order under section 144 of the Act. I am not

satisfied that this submission is correct.

20. The difficulty that arises in this case concerns the enforcement of the District Court order when affirmed following a failure by the

notice party to attend and prosecute the appeal and the failure to inform the Court that a place was not then available in Oberstown.

No issue arises in respect of orders made if a child appellant is sentenced following the hearing of the appeal. In that case the Court

will have complied with the provisions of Part 9 before imposing sentence.

21. It is well settled that the Circuit Court exercising its criminal jurisdiction has the power to direct how the sentence imposed by it

is to be enforced. As stated in Caddle by Lavery J. the Circuit Court on Appeal has and may exercise the same powers, jurisdiction

and authority to issue all warrants necessary and proper for the execution of the original or varied order. Order 41 rule 5 specifically

provides that the judge may direct the county registrar to issue warrants for that purpose.

22. I am satisfied that Order 41 Rule 5 empowers a Circuit Judge to take account of the particular issues that may arise in respect of

the issuing of a warrant of detention in respect of a child. It seems to me that it is “necessary and proper” that the Circuit Judge

should be satisfied that a place in a designated child detention school exists to receive the child before directing the registrar to issue

a Committal Warrant on Appeal directing the child’s detention. The spirit and intention of Part 9 of the 2001 Act in respect of the

sentencing of children is to protect the child and to fashion a sentence, whether community based or custodial, following an

extensive review of the child’s personal circumstances. It is entirely consistent with the purpose of Part 9 that the Circuit Court

should take such steps as are necessary to ensure that the process of enforcement is effective and secures the safety and welfare

of the child. Thus, in an appropriate case, it may be necessary for the Circuit Judge to procure the attendance of the child and/or

request information as to the existence of a place in a nominated child detention school. Having taken such steps as are necessary

and proper to ensure the execution of the order it is for the Executive to ensure that the child is apprehended and/or committed to

Oberstown to serve the sentence in fulfilment of its constitutional duty to uphold and enforce the orders of the Court.

23. The purpose of the second limb of section 143 (1) was partly to avoid a situation in which a child is brought to a child detention

school which is full, on foot of a committal warrant and released without serving a sentence. The statute sought to avoid this

recurring mischief by ensuring that the Court was satisfied that a place was available before sentence was imposed. But a difficulty

arises if an appeal against sentence is not pursued. This difficulty is compounded if the order of the District Court is affirmed but it

then transpires that a place is not available in the nominated child detention school. The difficulty may be adequately addressed by

the Court exercising its jurisdiction to secure the enforcement of its order in whatever way is “necessary and proper” and most

effective. In doing so, the Court requires the active assistance of An Garda Síochána, the prosecution and defence solicitor and

counsel and the Director of the child detention school concerned. It is the primary duty of the prosecution to ensure that the Court is

informed of the likely whereabouts of a child who has failed to attend the hearing of the appeal before the Distrcit Court order is

affirmed The Court should be informed of the known circumstances of the child at that time and whether a place is available in a

designated school. The prosecution should adduce relevant evidence as to how the attendance of the child may be procured before

the Court, if that is thought necessary, to ensure the enforcement of the proposed order. In this case no such assistance was given

to the Circuit Judge by the applicant. No submission was made to the Court addressing these issues. No information was given to the

Court concerning the availability of a place at Oberstown before the Court affirmed the Order of the District Court or directed the

issuing of a Committal Warrant on Appeal. On the basis of the evidence then available I am satisfied that the learned Circuit Judge

acted in accordance with law.

24. I am also satisfied that the Circuit Court had ample jurisdiction to issue a Committal Warrant on Appeal in execution of an affirmed

order of the District Court made on the striking out of an appeal by reason of the failure of a child appellant to prosecute it. The

Court may make such orders as are necessary and proper to ensure the enforcement of that order. The prosecution may, if it sees fit,

make such submissions and offer such evidence as to the manner in which that order might most effectively be enforced with due

regard to the spirit and intention of the provisions of Part 9 of the Children Act 2001. The child’s solicitor and/or counsel may make

submissions on this aspect of the case. It seems to me to be essential for the child’s protection and in his/her best interests that the

Court should be satisfied that a place exists before directing that a committal warrant issue. However, in the circumstances of this

case, I am not satisfied that an order of certiorari should issue on the grounds upon which leave to apply for judicial review was

granted. The court in the absence of any information or evidence concerning the unavailability of a place in Oberstown affirmed the

order of the District Court. In doing so, it acted within jurisdiction.

25. Once the District Court order had been affirmed it was still open to the learned judge to make an order deferring the issuing of the

Committal Warrant on Appeal if she had been informed that no place was available in the designated school. The Court could also

have issued an order that the Director of the named school should apply to the Court when a place became available so that the

Court might then take such steps whether by procuring the attendance of the child in Court by an appropriate order, or by directing

the issuing of the committal warrant, to ensure that the order was executed. In short, it is open to the Circuit Judge in those

circumstances to make such order as is “necessary and proper” in accordance with the spirit and intention of the Children Act 2001

and in the best interests and welfare of the child, notwithstanding the absence of appropriate Circuit Court rules, that specifically

deal with this issue.

26. Even if the applicant had established grounds for the granting of an order of certiorari, the notice party submits that in the

circumstances, the Court ought to exercise its discretion and refuse the relief claimed for a number of reasons. Firstly, it is submitted

that the learned respondent was never informed by the applicant on 20th March that there was no place available for the notice

party in a child detention school. No objection was made by the applicant to the making of the order striking out the notice party’s

appeal and affirming his conviction and sentence in the District Court. It is submitted that the applicant’s acquiescence in the making

of these orders and the failure to raise any objection to the course adopted by the learned respondent constitutes a ground upon

which the Court may refuse, in the exercise of its discretion, to grant the order sought.

27. I am satisfied that the primary obligation to ensure that the learned judge did not fall into error when dealing with this appeal lay

on the prosecution. The defence solicitor and counsel also have a duty to ensure that the notice party was not made the subject of

an unlawful order. Both sides have a duty to the Court in that respect. (See Director of Public Prosecutions v. Jeffrey Carter [2014]

IEHC 179 per O’Malley J). Both sides also owe a duty to ensure so far as is reasonably possible that the Court has accurate

information in respect of the child appellant relevant to the disposal of the case.

28. The prosecuting Garda or other authorities should have been in a position to inform the Court as to the availability of the place at

Oberstown on 20th March. All of the matters upon which the applicant now relies should have been canvassed in the Circuit Court:

they were not.

29. The sentence imposed in the District Court was relatively short. However, having regard to the age of the notice party at that

time and the fact that he had never served a custodial sentence despite a significant history of offending; even a relatively short

delay in executing the sentencing order may have a significant and disproportionate effect upon the life of a sixteen or seventeen

year old. Time has moved on and the Court has been informed that he is presently serving a sentence in a child detention school

which will expire in February or March, 2016. It was imposed in respect of other charges which were pending during the course of

these proceedings.

30. The application to seek leave to apply for judicial review was made five days before the expiration of the three month period of

limitation stipulated in order 84 rule 21 of the Rules of the Superior Courts. Order 84 rule 21(6) provides that the Court may dismiss an

application for judicial review on the ground of the applicant’s delay in applying for leave, even if it is made within the period of

limitation, if the delay caused or is likely to cause prejudice to a third party. In the normal course, a claim will not be dismissed for

delay if commenced within the relevant period unless prejudice to a third party is demonstrated (see The State (Cussen) v. Brennan

[1981] IR.181: Dekra Eireann Geo T. v. The Minister for Environment [2003] 2 I.R. 270 and O’Brien v. Moriarty [2006] 2 I.R. 221).

There must be a “a special factor” or prejudice to the notice party before the applicant’s claim for relief could be refused on that

basis. I am satisfied that it is a special feature of this case that the notice party is a juvenile, in respect of whom, delay may have a

disproportionate effect by reason of his age and circumstances. Furthermore, in this case events have overtaken the benefits that

may have attached to the detention order previously made. When this matter first commenced he was aged sixteen. The matter was

not disposed of by the Circuit Court until the 20th March, 2015 as the notice party approached his seventeenth birthday in June. An

attempt was made to execute this warrant on 14th May, 2015 and an application to amend the warrant was abandoned in the Circuit

Court on the 21st May. The application for leave was brought on the 16th June, 2015. The matter was heard on 31st July, 2015 but

in the meantime the applicant has been committed to serve the further sentence of detention and remains in detention until

January/February of this year.

31. It is also an unusual feature of this case that the applicant took no steps whatever to raise any of the issues now relied upon

before the Circuit Court on the 20th March. The applicant has failed to take the most expeditious and effective course in this case

and has now embarked upon this more complex and costly process of judicial review thereby delaying matters further. Of course, the

notice party himself caused some of the delay by not engaging with the appeal process. If an order is granted in this case it will be

the subject of a further sentencing process in respect of a matter which had been dealt with in March, 2015 prior to the imposition of

the sentence which he is now serving. I am satisfied that these are special features of the case indicative of prejudice to the

applicant.

32. I have also taken into account the special duty which lies on state authorities over and above the normal duty of expedition to

ensure a speedy trial having regard to the obvious sensitivities involved in respect of a vulnerable young person. (BF v. Director of

Public Prosecutions [2001] 1 I.R. 656 per Geoghegan J. at p. 666). The vulnerabilities of young people in the criminal justice system

were highlighted by Quirke J. in Jackson and Walsh v. Director of Public Prosecutions [2004] IEHC 380. Though that case was primarily

concerned with the interest of the community in ensuring that young persons are confronted with complaints of criminal activity made

against them without delay, it seems to me similar considerations apply with equal, if not more force, to the implementation of an

order for a child’s detention as soon as practicable: indeed that is what sections 143-145 of the 2001 Act are intended to achieve

when a detention order is thought to be appropriate. I am satisfied therefore that it would have been appropriate to exercise my

discretion against the making of an order of certiorari, even if the ground advanced for its making had been established.

33. The application is refused.