Judicial review dismissed; applicant barred from retrospective unconstitutionality declaration due to lack of fundamental procedural defects.

[2017] IEHC 391

THE HIGH COURT

JUDICIAL REVIEW

[2016 No. 319 J.R.]

BETWEEN

ERIC WANSBORO

APPLICANT

AND

DIRECTOR OF PUBLIC PROSECUTIONS

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENTS

JUDGMENT of Ms. Justice Faherty delivered on the 16th day of June, 2017

1. This matter comes before the court by way of an application for judicial review.

Background

2. On 14th November, 2013, the applicant appeared at Dublin Circuit Criminal Court in respect of Bill No. 298/2012. He received a

three year and two six month concurrent sentences from Her Honour Judge Ring (as she then was). These custodial sentences were

for an offence of the unlawful taking of a vehicle, contrary to s. 112 of the Road Traffic Act 1961 (as amended), a drink driving

offence and driving without a driving licence respectively. These sentences were however suspended in their entirety for a period of

three years on conditions.

3. On 22nd April, 2015, the applicant pleaded guilty to an offence of dangerous driving causing death and serious injury on Bill No.

99/2015. This offence was committed on 29th May, 2014. At the time of this incident, the applicant was driving the vehicle

concerned away from pursuing gardaí. The applicant was remanded in custody until 18th May, 2015, for the purpose of a sentence

hearing in respect of the offence on Bill No. 99/2015 and for the potential activation of the suspended sentences which were imposed

on 14th November, 2013, on foot of Bill No. 298/2012.

4. On 18th May, 2015, Judge Ring heard evidence relating to the facts on Bill No. 99/2015 and also relating to the applicant’s

background and circumstances. Having heard further submissions from counsel for the applicant, she proceeded to order the

activation of the three year sentence in respect of count 1 on Bill No. 298/2012 in its entirety as well as the two concurrent six

month sentences in respect of counts 6 and 7 on the same Bill number, all of which were to run concurrently and to commence from

27th January, 2015.

5. Judge Ring then imposed a sentence of five and a half years imprisonment on Bill No. 99/2015, the said sentence to commence on

the lawful expiration of the sentence on Bill No. 298/2012.

6. The learned trial judge pointed out that pursuant to the provisions of the legislation the five and a half year prison sentence

imposed for the dangerous driving offence was required by law to be consecutive to the three year sentence required to be served

pursuant to s. 99 (10) of the Criminal Justice Act 2006 (as amended) (“the 2006 Act”).

7. It is clear from the transcript that in imposing the five and a half year sentence, Judge Ring took into account that the applicant

had been driving the vehicle the subject of the charge on Bill No. 99/2015 at a time when he was disqualified from driving (and

subject to the suspended sentence).

8. Committal warrants were issued to give effect to the aforesaid Orders and the applicant is currently in the custody of the second

named respondent on foot of same.

9. On 20th May, 2015, the applicant filed a notice of appeal against the Order made in respect of Bill No. 208/2012 and also against

the severity of the sentence imposed on Bill No. 99/2015.

The event which gave rise to the within application

10. On 19th April, 2016, it was determined by the High Court (Moriarty J.) in the case of Moore & Ors. v. the Director of Public

Prosecutions [2016] IEHC 434 that the provisions of s. 99 (9) and (10) of the 2006 Act were invalid having regard to the provisions of

the Constitution.

11. On 9th May, 2016, the High Court (Noonan J.) gave the applicant leave to seek, inter alia, an Order quashing the Order of the

Circuit Court on 18th May, 2015, pursuant to s. 99 (10) of the 2006 Act in respect of Bill No. 298/2012; an Order of certiorari

quashing the committal warrant issued pursuant to the aforesaid Order; and a declaration that the applicant is currently being held in

unlawful detention by the second named respondent on foot of the aforesaid committal warrant.

12. In his written submissions in the within proceedings, counsel for the applicant acknowledges that relief pursuant to the provisions

of Art. 40 of the Constitution was not sought on the grounds that if the relevant committal warrant in respect of the sentence of

three years imprisonment (and the two six month concurrent sentences) issued pursuant to the Order of Judge Ring on 18th May,

2015, in respect of Bill No. 298/2012 were found to be invalid and quashed, the Order providing for a five and a half year custodial

sentence in respect of Bill No. 99/2015 would remain valid and effective in law. The applicant thus acknowledges that the effect of

the within proceedings, if successful, would be that the five and a half year sentence imposed in respect of Bill No. 99/2015 would be

deemed to have taken effect at the time of its imposition rather than on the expiration of the sentences imposed in respect of Bill No.

298/2012.

13. The principal grounds upon which the applicant seeks relief can be summarised as follows:

1. As a consequence of the declaration of invalidity arising from the decision in Moore, the Circuit Court did not have the

statutory power it purported to exercise under ss. 99 (9) and (10) on 18th May, 2015;

2. The Circuit Court did not have available to it any common law power to activate the applicant’s suspended sentence

which might have afforded it the authority to do so in the absence of a valid statutory power;

3. For these reasons, the Order made by Judge Ring activating the applicant’s suspended sentence was made ultra vires

and in excess of jurisdiction, and was unlawful. Consequently the committal warrant which was issued to give effect to

the Order was likewise unlawful.

4. It was recognised in A. v. Governor of Arbour Hill Prison [2006] IESC 45 that it was only in exceptionally circumstances

that a case in which finality had been reached could be disturbed by a subsequent declaration of unconstitutionality. In

Director of Public Prosecutions v. Cunningham [2012] IECCA 64, it was held that this general principle does not apply

where finality has not been reached in criminal proceedings. There has not been finality in the instant case as the

applicant has lodged an appeal to the Court of Appeal which remains live. For this reason, the decision in A v. Governor of

Arbour Hill Prison does not pose an obstacle for the applicant seeking to rely in these proceedings on the declaration of

constitutionality made in Moore.

5. Further and/or in the alternative, for the reasons set out, the impact of the particular declaration of unconstitutionality

Moore was such as to entirely deprive the Dublin Circuit Court of jurisdiction to consider the issue of activation of the

suspended sentence.

14. In order to put the respective submissions of the parties in this application into context it is necessary to refer to a body of

jurisprudence which followed the decision in Moore.

Post-Moore jurisprudence

15. It is common case that the finding of unconstitutionality in Moore led to the institution of a number of Art. 40 and judicial review

applications wherein a number of prisoners sought to obtain the benefit of the decision. Written judgments were delivered in both the

High Court and Court of Appeal in a number of cases. In all of the cases, the applicants were unsuccessful. The cases include: Clarke

v. Governor of Mountjoy Prison [2016] IEHC 278; Clarke v. Governor of Mountjoy Prison [2016] IECA 244; Foley v. Governor of

Portlaoise Prison [2016] IEHC 334; Foley v. Governor of Portlaoise Prison [2016] IECA 411; Ryan v. Director of Public Prosecutions

[2016] IEHC 380 and Larkin v. Governor of Mountjoy Prison [2016] IEHC 680.

16. Clarke involved a post Moore challenge, where Mr. Clarke had an appeal pending concerning the activation of suspended

sentences by His Honour Judge McCartan on 4th November, 2014.

17. In the High Court, having reviewed the authorities (including A. v. Governor of Arbour Hill Prison) on the effect of a finding of

unconstitutionality, McDermott J. accepted that the applicant could seek to rely on the declaration of invalidity made by Moriarty J. in

Moore. The learned Judge put it as follows, at para. 41:

“The applicant lays particular emphasis on the fact that the criminal proceedings in his case have not been finalised or

concluded in the Court of Appeal since his appeal against sentence under s. 99 (12) is still pending. I am satisfied that

this is so that the applicant is not precluded from raising a point concerning the invalidity of the statute under which he

was returned to the Circuit Court under s. 99 (9) and (10). He is entitled to advance all such arguments and evidence to

establish a claim that he is entitled to benefit from the declaration. I am satisfied that this conclusion is also in

accordance with the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v.

Cunningham [2012] IECCA 65. However, I am not satisfied, as is made clear in the above authorities, that the finality

argument must always prevail against all others in determining the retroactivity of such a declaration, or indeed must

prevail in this application: the behaviour of the applicant and other circumstances of the case must also be considered.”

18. In the course of his judgment in Clarke, McDermott J., at para. 42, quoted Hardiman J. who, in Director of Public Prosecutions v.

Cunningham, set out two related questions to determine the scope of the retroactivity of a finding that a statute is unconstitutional:

“Firstly, if the ruling […] were to be applied to the circumstances of the accused’s case, would this involve the

retrospective or, alternatively, the prospective application of the finding of unconstitutionality? Secondly, has the

accused conducted himself in such a manner, such as suggested that he is debarred by his conduct from claiming the

benefit of the ruling?”

19. McDermott J. then went on (at paras. 43-52) to review a body of case law of the Superior Courts, including jurisprudence

following upon the decision of the Supreme Court in Damanche v. Director of Public Prosecutions [2012] 2 I.R. 266, on the question of

the extent to which tactical decisions of the defence during the course of a criminal trial or “acquiescence” by a plea of guilty or

otherwise might preclude the retrospective application of a finding of unconstitutionality.

20. Having ruled that the applicant could seek to rely on the invalidity of s. 99 (9) and (10), McDermott J. then considered whether

the applicant’s conduct could debar the grant of relief. For the purposes of the within proceedings and in particular in light of the

respective submissions of the parties in the within application, it is apposite to set out ruling of McDermott J. on this issue in some

detail:

“53. The applicant was convicted of a number of offences including robberies and possession of firearms. In one of those

robberies a sawn-off shotgun was discharged terrorising others. He was duly arraigned and pleaded guilty to these very

serious offences and lengthy sentences of imprisonment were imposed. A number of the terms of imprisonment imposed

were suspended on the conditions already set out. Before that could be considered, the trial court was obliged to

determine the appropriate sentence to be imposed. The applicant does not and has never argued that those sentences

were unduly severe. 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 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 Court, the Director of Public Prosecutions, An Garda Síochána and

the probation and prison services were satisfied to engage with him on this basis to secure his rehabilitation. He

commenced to serve the sentence then imposed.

54. 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. None of this is in dispute.

55. When he appeared in the District Court in respect of the new offences in 2014, he pleaded guilty. His case was then

sent back to the Circuit Court. 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.

56. 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 that he had suffered upon which to

base it. He made no objection to the order made under s.99 (9) sending him back to the Circuit Court. He made no

objection to the procedure when he appeared before that court. He not only submitted to the jurisdiction of the court

and acquiesced in its exercise, but has no basis upon which to claim that he has suffered any fundamental injustice in

the hearing of the revocation application. Indeed no such claim is made, nor was one made during the hearings in the

Circuit Court or these proceedings.

57. 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. The

applicant had the full range of remedies by way of judicial review or an application under Article 40 available to him to

challenge the lawfulness of his detention at that time but chose not to do so because, of course, he could not

demonstrate any fundamental default of fairness or injustice based on the facts of his case: the absence of merit in the

facts of his case in that regard is not changed by the Moore decision.

58. I am satisfied that the procedures under s.99(9) and (10) were relied upon by the State in good faith in that they

were regarded as having the force of law at the time. These procedures were not and could not have been successfully

impugned by the applicant because he could not have demonstrated any prejudice or fundamental injustice or inequality

of treatment in the manner in which they were applied to his case. I am satisfied that where no demonstrable injustice

of a fundamental nature has occurred in the applicant's case he should not be regarded as a person in respect of whom

release must be ordered. I do not consider that there are any circumstances, exceptional or otherwise, in this case

which require that the declaration made in the Moore case should have a retrospective effect, much less the blanket

effect suggested.

59. The supervision and enforcement of the sentence duly imposed by the Circuit Court following the applicant's lawful

conviction is essential to the fair and proper administration of criminal justice. It is clear that the learned trial judge

addressed not only the narrow issue of the applicant's further convictions but the clear breaches of the other conditions

which he had committed. Thus the basis for the revocation of the sentence was clearly considered in respect of both his

commission of further offences under sub-section (9) and the breaches of conditions in respect of which the court may

also revoke a suspended sentence under sub-section (17).

60. The purpose and intention of s.99 was to ensure that the facility of a suspended sentence might be available as a

sentencing tool post conviction. It was essential for its operation as a useful and effective tool that the court be vested

with a power whereby it could ensure that the convict would be faced with serious consequences if he/she failed to

comply with the terms of suspension. Of course the incentive to comply with such conditions must stem from a

personal determination to do so but it would be completely unrealistic to rely entirely on expressed good intentions. It is

necessary for the advancement of rehabilitation and the protection of the rights of victims and the general public that

the power to revoke a suspended sentence exists: otherwise, the administration of justice and public confidence in its

serious purpose and effectiveness will be eroded. This is especially the case when a person who is a drug addict with a

long history of addiction and criminality who has committed further violent offences involving the use, and in one case

the discharge of, a firearm, and who has been assessed by the court as being a serious and dangerous offender,

benefits from the imposition of a substantially suspended sentence.

61. When the applicant's sentence was imposed he fully understood the conditions by which he had to abide in order to

continue to avail of the substantial leniency shown by the court in suspending most of the sentences. I am not satisfied

that the form of retrospective effect contemplated in this application is in accordance with principles of certainty and

fairness of procedures as contemplated in the administration of criminal justice under Article 38 of the Constitution. I do

not consider that the circumstances of this case give rise to a default of fundamental requirements of the type

contemplated for a successful collateral attack on a criminal trial exceptionally permitted under an Article 40 inquiry.

62. The retrospective application of the declaration of invalidity is not warranted in this case. The applicant pleaded

guilty to the original offences charged on indictment. He was lawfully sentenced. He agreed the conditions of the

suspended sentence. He breached those conditions. He admits the breaches. He was returned to court. He failed to

object to the procedure adopted in doing so. He pleaded guilty to the offences in the District Court as a result of which

he was returned to the trial court. He evinced no intention then or now of appealing those convictions to the Circuit

Court. He could not have succeeded in a challenge to ss.99 (9) and (10) on the same basis as the Moore applicants. His

application is without merit and is based entirely on the happenstance that the law under which he was returned to the

trial court was declared invalid seventeen months after his suspended sentence was revoked. In the meantime he has

appealed to the Court of Criminal Appeal: his appeal against the revocation is still pending but he has failed to lodge

grounds or take steps directed by that court in order to advance his appeal.”

21. McDermott J. concluded:

63. I am satisfied that each case of this kind must be examined on its own merits and that the authorities do not

establish that a declaration of invalidity of the two sub-sections has a blanket retrospective effect. The applicant is not

to be excluded from seeking the benefit of the declaration because his appeal under s. 99(2) is still pending and the

proceedings under s .99 have not been concluded. However, I am satisfied that he is not entitled to its benefit for the

following reasons. Firstly, he engaged fully in the original sentencing process whereby following his plea for leniency he

undertook to abide by the several conditions set down in the order for the purpose of securing his early release from

custody. In response, the State intended to devote significant resources to secure his rehabilitation during the course of

the suspension. As a result he obtained his release from custody. These decisions were made following advice and

involved the making of an irreversible commitment by the applicant and the State. Secondly, absent a breach of those

conditions the trial was at an end. Thirdly, he failed to challenge the s. 99 procedure at any stage. These procedures

were relied upon and applied by the State in good faith and were the relevant law in force at the time. Furthermore, he

cannot identify any substantive injustice or breach of his right to fair procedures or any unfair prejudice or

discrimination suffered by him in the course of the hearings leading to the revocation. He seeks the technical benefit of

the declaration which has no relevance to the merits of his case. To permit the applicant's release on that basis would

tend to place a premium on a formal and rigid application of the declaration of invalidity which is not justified or

mandated by the decisions of the Supreme Court and Court of Criminal Appeal set out above: nor is it justified on the

facts of this case.”

22. The judgment of McDermott J. was appealed to the Court of Appeal. A unanimous Court of Appeal, concluded (paras. 30 to 31)

that the activation of the suspended sentences could be considered as having taken place under the broad and general jurisdiction

provided by s. 99 (17) of the 2006 Act. This conclusion was arrived at after Birmingham J. considered the transcripts from the Circuit

Court. The learned Judge found that the consideration of the matter by the Circuit Court expanded beyond the confines of s. 99(10).

He went on to state that while the Circuit Court Judge had not indicated that he was dealing with the matter under s.99 (17), “the

reading of the two transcripts would suggest that that is what was happening”. The relevance of this, as found by the Court of

Appeal, is that it was not a pre-condition to the exercise of a s.99(17) jurisdiction that the person had to be brought before the court

pursuant to s. 99(9). It was on this basis that the Court of Appeal held that the applicant was not in an unlawful custody, unlike the

position in Moore.

23. Additionally, Birmingham J. went on to address the reasoning of McDermott J. which he described as “compelling”. He stated:

“32. If I am wrong about that I would in any event follow the reasoning of McDermott J. in the High Court. I accept, as

he did, that a notice of appeal was lodged, which means that Mr. Clarke’s position is to be distinguished from that of A.

v. Governor of Arbour Hill Prison. However, like McDermott J., I do not believe that the fact that because an appeal was

lodged and accordingly that matters had not been finalised before judgment in Moore that it follows automatically that

Mr. Clarke is entitled to be released. The position is that Mr. Clarke committed offences of the utmost gravity. He

persuaded the Circuit Court to deal with him in a very lenient fashion indeed and then very shortly after his release,

having served the custodial element of his sentence, he breached the conditions of his suspended sentences in a number

of respects. There was a full and fair hearing in the Circuit Court over two days which addressed the issue of whether

the sentence should be activated. The judge in the Circuit Court decided to activate the sentence. Mr. Clarke has a right

of appeal from that decision and has invoked that right by lodging a notice of appeal. On the hearing of that appeal Mr.

Clarke can argue that the activation of the sentences in full was an excessive and disproportionate response

33. In those circumstances I cannot see how it can be said that there was a default of fundamental requirements such

that the detention could be said to be wanting in due process of law or that his detention arises from a departure from

fundamental rules of natural justice to use the language of State (McDonagh) v. Frawley and State (Aherne) v. Cotter.

34. Rehabilitation is an important aspect of penal policy. The possibility of a suspended sentence is a vital tool in

promoting the objective of rehabilitation. The objective of rehabilitation will be frustrated if not indeed set at nought if

those who chose to breach conditions attached to suspended sentences do not suffer the consequences. I find the

reasoning of the High Court compelling and I would dismiss the appeal.”

24. In Foley v. Governor of Portlaoise Prison, McDermott J., in the High Court, refused a post Moore application for an Art. 40 inquiry

on the basis that there was “finality” in terms of the substantive criminal proceedings. However, he also refused the application on

another freestanding basis:-

“38. As already stated, I am not satisfied that the applicant is entitled to the retrospective benefit of the declaration on

the basis of principle adopted by the Supreme Court in A. v. Governor of Arbour Hill Prison, for the reasons already given.

Even if this were not so, the court would be obliged to consider all other relevant aspects of the case and the words of

Henchy J. in The State (Byrne) v. Frawley [1978] I.R. 326 , whether the applicant has by reason of his circumstances,

including his conduct, “lost not the right guaranteed by the Constitution but his competence to make claim to it in the

circumstances of the case”. Each case depends on its own facts.

39. In this case, the applicant was the subject of a carefully constructed suspended sentence to which conditions were

attached under section 99(1). He undertook to abide by those conditions. A sentence of imprisonment appropriate to his

crimes was determined but suspended on his solemn undertaking to abide by the imposed conditions. He benefited from

the sentence and was duly released from custody. He broke the conditions by committing further offences. He could

only have anticipated in those circumstances that an application would be made to seek the revocation of the

suspended part of the sentence and return him to custody. This duly occurred. He was afforded full representation and

an opportunity to make such submissions and adduce such evidence as was deemed appropriate to the Court of Criminal

Appeal at the revocation hearing. He objected to the jurisdiction of the court on the basis that the matter should have

been returned to the Circuit Court for the determination of the revocation issue. That point was lost. That point was

certified under s. 29 to the Supreme Court and the ruling of the Court of Criminal Appeal was upheld. There is no

suggestion and no evidence to indicate that there was any want of fair procedures or breach of natural justice in the

determination of the revocation issue before the Court of Criminal Appeal. No such point is advanced in these

proceedings.

40. The applicant pleaded guilty to the ‘trigger’ offences which resulted in his return to the Court of Criminal Appeal

under section 99(9). He did not and could not have initiated a challenge on the same basis as the applicants in Moore to

the operation of the subsection in his case. He could not, therefore, have initiated or maintained a judicial review or an

Article 40 application following the revocation of his sentence on the grounds which were ultimately successful in Moore.

It is not, therefore, so much the case that the applicant acquiesced in not initiating any constitutional challenge to s.

99(9) and (10) on the Moore grounds, rather he had no basis for so doing.”

25. At para. 44 of his judgment, the learned judge had this to say:-

“I am also satisfied that the process whereby the applicant submitted to the terms of a suspended sentence is

important to the administration of justice. The rehabilitation of a convicted person is a prime consideration in sentencing

policy. It inures to the benefit of the applicant and an ordered society. It is essential for the advancement of the

applicant's rehabilitation and protection of the rights of victims and the general public that the power to revoke a

suspended sentence exists: otherwise the effectiveness of the administration of justice and public confidence in it will be

eroded. The imposition of a suspended sentence involves each of the parties including the applicant, the Director of

Public Prosecutions, An Garda Síochána and the Probation and Welfare Services and the Prison Service in an irreversible

process once the initial period of limitation in respect of the right of appeal against such sentence expires. It seems to

me that it is only in the most exceptional circumstances that an applicant may secure his release post conviction under

Article 40 and that it should only be in the most exceptional circumstances that a declaration of invalidity within the

rules as set out in A v. Governor of Arbour Hill , should apply retrospectively. I am not satisfied that the applicant has

demonstrated any circumstances which establish such a default of fundamental requirements of fair procedures, in the

determination of the revocation of his sentence, that would justify his release in this application.”

26. McDermott J.’s decision was upheld by the Court of Appeal in Foley v. Governor of Portlaoise Prison [2016] IECA 411.

27. In Ryan v. Director of Public Prosecutions, an application for judicial review on foot of the decision in Moore was rejected by

O’Regan J. After setting out that “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”, the learned judge was 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.” (at para. 16)

Regan J. went on to state:

“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.”

28. In Larkin v. Governor of Mountjoy Prison, Eagar J. also rejected a post Moore Art. 40 application. While he found that the

proceedings could not be considered as finalised for the purposes of the “finality principle” because the applicant had an extant

appeal to the Court of Appeal in relation to the activation of a suspended sentence (similar to the applicant in the within

proceedings), Eager J. was nevertheless satisfied to reject the application for an inquiry on the basis that the applicant had not

appealed the conviction which led to the suspended sentence, that he had pleaded guilty to the “trigger” offences and that he had

made no attempt to challenge the constitutionality of s.99(9) and (10) of the 2006 Act. Eager J. quoted with approval the following

passage from the judgment of McDermott J. in Clarke:-

“He engaged fully in the original sentencing process… he cannot identify any substantive injustice or breach of his right

to fair procedures or any unfair prejudice or discrimination suffered by him in the course of the hearings leading to the

revocation. He seeks the technical benefit of the declaration (in Moore) which has no relevance to the merits of his

case.” (at para. 31)

The foregoing represents the legal landscape for the purpose of the present application.

The applicant’s submissions, in summary

29. In his written submissions, while acknowledging given the basis upon which the within proceedings are opposed, that considerable

reliance will be placed by the respondents on Clarke, counsel for the applicant contends that in Clarke, McDermott J. was led into

error in the manner in which he considered the “finality principle” and that it is not clear what is by the learned Judge meant by “the

finality argument”.

30. It is also contended that the line of authority relied upon by McDermott J. in Clarke to refuse relief based on “conduct” does not

substantiate the approach adopted in that case. It is further submitted, notwithstanding that the Court of Appeal found McDermott

J.’s reasoning “compelling”, that that reasoning is not supported by authority and is contrary to principle.

31. Counsel also contends that the “conduct” referred to in Clarke was radically different to the type of “conduct” that the applicant

in the instant case could be accused of, albeit it is acknowledged that the applicant committed a very serious offence during the

currency of a suspended sentence. It is also submitted that in Clarke, McDermott J. had regard to a whole range of issues which do

not have any relevance to the particular position of the applicant in the within proceedings. This is in circumstances where the only

“conduct” which could be relied upon to deprive the applicant of relief is the very fact he has committed an offence during the

currency of the suspended sentence. It is submitted that for the Court to hold that that “conduct” of itself is such as to deprive the

applicant of relief is contrary to principle. It is also submitted, in the alternative, that if the Court were to hold that the conduct of

the applicant did equate with the conduct in Clarke, then Clarke was wrongly decided.

32. The applicant’s position is that prima facie he is entitled to relief. Counsel contends the authorities relied upon in Clarke do not, in

their substance or in principle, undermine the applicant’s contention in this regard. The applicant is not seeking a “retrospective”

application of the decision in Moore. Rather, the thrust of the applicant’s application is that he is currently being detained on foot of

provisions that have been found to be unconstitutional in circumstances where his criminal proceedings have not concluded.

33. Counsel also takes issue with para. 58 of the judgment in Clarke where McDermott J. states: “I do not consider that there are

any circumstances, exceptional or otherwise, in this case which require that the declaration made in the Moore case should have a

retrospective effect, much less the blanket effect suggested.” This, counsel submits, is a misapprehension as to the appropriate

principle: the search for “exceptional circumstances” only arises where the “finality principle” is a bar to relief. It is submitted that

nowhere in the authorities such as A v. Governor of Arbour Hill and Cunningham is there a suggestion that the public policy

considerations, which justify an exception to the finality principle “once finality has been reached”, themselves constitute a

freestanding basis upon which to refuse an applicant relief who would otherwise have been entitled to relief.

34. In the context of conduct and “acquiescence” as a bar to the granting of relief to the applicant in the within proceedings, counsel

acknowledges that there is a line of authority relating to “acquiescence” which holds that a litigant, by his conduct, can be deprived

of the entitlement to raise an issue during the currency of proceedings. It is submitted however that “acquiescence”, as that concept

has been addressed in relevant case law, is not alleged against the applicant in this case. Accordingly, the applicant does not fall

under the rubric of “acquiescence” as enunciated in the State (Byrne) v. Frawley [1978] I.R. 326.

The respondents’ pleadings and submissions, in summary

35. The respondents oppose the application for judicial relief on the following grounds :

• The applicant pleaded guilty to the offences the subject matter of the sentences imposed on Bill No. 298/2012;

• The applicant pleaded guilty on 22nd April, 2015 in respect of the dangerous driving offence. This conviction

amounted to a “trigger” offence leading to the applicant being remanded in custody to Judge Ring on 18th May,

2015, for the consideration of the lifting of the suspension in respect of the sentences previously imposed on Bill No.

298/2012;

• Appeals have been lodged against the activation of the suspended sentence and the severity of the five and a

half year sentence for the “trigger” offence;

• The applicant did not challenge the provisions of s. 99 (9) and (10) of the 2006 Act during the currency of the

proceedings in respect of the prosecution for the “trigger” offence or the activation of the suspended sentence. As

a result of not bringing a challenge the applicant is disentitled to relief. The provisions of s. 99 were presumed to be

valid at the time they were sought to be invoked by the Director of Public Prosecutions;

• The judgment in Moore does not operate “retrospectively” in respect of the legality of the applicant’s conviction

for the “trigger” offence, the sentence imposed for that offence or the activation of the three year suspended

sentence;

• The applicant cannot argue and has not alleged any want of fairness at the trial for the “trigger” offence or that

his conviction for the 2012 offences (following a guilty plea) was otherwise unlawful or in breach of his

constitutional rights;

• The applicant “secured a benefit” by pleading guilty to the offences the subject matter of the suspended

sentence and thereby received a suspended sentence and there has been “acquiescence” in the manner of the

disposal of the relevant criminal proceedings. The applicant’s guilty pleas, following legal advice, disentitles him to

any claim of denial of rights;

• Although accepting that the criminal proceedings are not “finalised”, the behaviour of the applicant and the

manner he met the proceedings and all the circumstances of the case, including his pleas of guilty, his failure to

object to the operation of s. 99 though legally represented, the fairness of the disposal of the proceedings by Judge

Ring, his breach of the suspended sentence by committing a further offence of utmost gravity, militate against the

Court exercising its discretion to grant relief.

36. In written submissions, the respondents contend that all of the propositions which the applicant now puts forward as a basis for

relief to be granted in his case were rejected by the respective decisions of the High Court, Court of Appeal and Supreme Court in

Clarke. Furthermore, similar arguments to those now being put forward were also rejected in the Foley, Ryan and Larkin cases.

Accordingly, on the basis of these authorities, the present claim for judicial review should be dismissed.

37. The respondents rely specifically on the applicant’s guilty pleas both in respect of the offences for which the suspended sentence

was imposed and the “trigger” offence. Furthermore, there was no challenge by the applicant to the constitutionality of s. 99(9) and

(10) at any relevant time. This was in circumstances where he was legally represented at all times. Furthermore, there was no failure

to afford natural justice to the applicant at any stage in the Circuit Court proceedings and no exceptional circumstances arise which

could be described as constituting a fundamental injustice done to the applicant during the currency of the proceedings before the

Circuit Court.

38. The fact of the matter is that the applicant breached the terms of a suspended sentence by committing further serious offences.

He has extant an appeal to the Court of Appeal on the merits of the activation of the suspended sentence. It is also the case that he

has appealed the consecutive sentence imposed in 2015 for the offence of dangerous driving causing death or serious injury.

39. While the applicant asserts that he is not seeking any retrospective application of the findings in Moore, in reality that is what he

is seeking. Without Moore, the applicant would not have an argument to seek leave to apply for judicial review. It is further submitted

that his conduct and “acquiescence” in the substantive Circuit Court criminal proceedings disentitle him to relief.

40. In all of the circumstances, notwithstanding that by virtue of his extant appeals before the Court of Appeal (Criminal Division) the

applicant’s criminal proceedings cannot be considered finalised, the application for judicial review should be rejected, on the authority

of Clarke, given the parallels between that case and the applicant’s circumstances. It is submitted that it was the particular features

of the Clarke case, as considered by McDermott J. against the relevant legal principles applicable to convicted prisoners, including

where there has been a finding of unconstitutionality (see paras. 33 – 52 of the judgment of McDermott J. which refer, inter alia, to

State (McDonagh) v. Frawley [1978] I.R. 131, State (Ahern) v. Cotter [1982] I.R. 188, State (Royle) v. Kelly [1974] I.R. 259, A. v.

Governor of Arbour Hill prison [2006] 4I.R. 88 and Director of Public Prosecutions v. Cunningham [2012] IECCA 64) that influenced the

learned Judge to decline relief in Clarke. Accordingly, all of the arguments which the applicant in the within proceedings advances to

obtain relief have been considered by McDermott J. in Clarke and relief was nevertheless declined in that case for the reasons set out

at paras. 53 – 62 of the judgment.

41. It is also submitted that insofar as the applicant advances the proposition that by reason of the declaration of an

unconstitutionality in Moore, no sentence could have been lawfully imposed by Judge Ring (or by the Court of Appeal (Criminal

Division) in any future appeal hearing in respect of the reactivated sentence), the applicant does not explain the basis for this aspect

of his claim. In any event, it is submitted that the applicant is raising the same argument as was raised in Clarke and it must be taken

to have been rejected as having no proper basis as the applicant in Clarke was refused release.

Considerations

42. In the first instance, counsel for the applicant made a number of submissions with regard McDermott J.’s treatment, in Clarke, of

the “finality argument”. I do not perceive those submissions as germane to the issue which this Court has to decide. It is not in

dispute but that the applicant has appealed both the severity of the sentence imposed for the “trigger” offence and the activation of

his suspended sentence. Accordingly, there has been no finality in the proceedings such as to preclude the applicant from raising the

issue of the invalidity of s. 99(9) and (10) the 2006 Act under which he was returned to the Circuit Court on 18th May, 2015.

43. The applicant’s principal contention is that s. 99(9) and (10) of the 2006 Act, by virtue of the decision in Moore, never had a

lawful basis in the State. He argues that the Order of the Circuit Court of 18th May, 2015, which activated his suspended sentence

thus requiring him to serve a lengthy prison term never had any validity, having regard to the provisions of the Constitution.

44. In essence, in these proceedings, the applicant takes issue with the jurisdiction of the Circuit Court to deal with him pursuant to

the provisions of s. 99(9) and (10) of the 2006 Act. The applicant contends that his arguments do not hinge on having to disprove his

“acquiescence” to issues such as the admissibility of evidence at the criminal trial or tactical decisions taken in the interest of the

defence during the course of his trial. Even if there had been some form of “acquiescence” (which the applicant denies), it is

submitted that “acquiescence” could not have vested jurisdiction in the Circuit Court on 18th May, 2015, when it did not have such

jurisdiction ab initio, by virtue of s. 99(9) and (10) never having had any validity in the State. This is the fundamental principle on

which the applicant hinges his present challenge. Accordingly, he argues that by reason of the declaration of unconstitutionality in

Moore, no sentence could have been lawfully imposed by Judge Ring at the activation hearing on foot of Bill No. 298/2012. Similarly, it

is contended that the Court of Appeal (Criminal Division) cannot impose any sentence or make any order for the same reason.

45. Counsel for the applicant also submits that a similar argument as is now being made in these proceedings was advanced before

the High Court and the Court of Appeal in Clarke but that neither judgment dealt with this argument and, accordingly, it is counsel’s

contention that the question remains to be determined.

46. I am not persuaded by the applicant’s counsel’s contention that the primary argument which he advances before this Court has

not yet been adjudicated upon in jurisprudence. I note that in his decision for the Court of Appeal in Foley v. The Governor of

Portlaoise Prison, Mahon J. summarised the arguments of the applicant in that case in the following terms:

“18. The appellant maintains that A does not preclude the appellant from bringing his challenge and benefiting from the

decision in Moore. The appellant maintains that his case comes within the exception to the rule as provided for in A. He

also maintains that since the declaration of repugnancy operates to render the sub sections void abi nitio, the court

activating the suspended sentence lacked jurisdiction on two separate and distinct grounds, firstly the remand order

pursuant to subsections 9 on foot of which the appellant was brought before the activation court was invalid and devoid

of legal effect and, secondly, the statutory power utilised by the activation court to activate the sentence and order the

appellant’s imprisonment was not available to the court as it was a power that no longer existed.”

47. In the course of his judgment, the learned Judge cited, inter alia, the dicta of Regan J. and Eager J. in Ryan and Larkin

respectively. At para. 22 of his judgment, he quoted O’Regan J. in Ryan to the effect that “the authorities do not establish that a

declaration of invalidity has a blanket retrospective effect”. At para. 24,Mahon J. goes on to state:

“In Larkin v. The Governor of Mountjoy Prison [2016] IEHC 680, similarly a post Moore Art. 50 application, Eager J. re-

iterated that, based on the authorities, a declaration of the invalidity of a statutory provision does not have blanket

retrospective effect.”

48. That, to my mind, appears to be an implicit, if not an explicit, rejection of the argument which had been put forward in Foley, as

summarised in Mahon J.’s judgment and as quoted above.

49. In Clarke v. The Governor of Mountjoy Prison [2016] IESCDET 122, an argument of a similar nature to that being advanced by the

applicant in the within proceedings formed the basis of an application to the Supreme Court to have that Court accept a further

appeal. In the grounds of appeal sought to be relied on if leave to appeal was granted, it was argued, inter alia, that a lawful order

under s. 99 (10) depended upon the proper and lawful invocation of s. 99 (9); that the Court of Appeal had erred in law in

mischaracterizing the “finality argument” as one relied on by the applicant in Clarke (whereas the thrust of the argument advanced

before the Court of Appeal was that the order which held him in custody was one which had been held to be invalid having regard to

the provisions of the Constitution and that, accordingly, he had not lost the competence to seek his release); that the Court of

Appeal failed to address the fundamental submission that the default of fundamental requirements of the law upon which the applicant

in Clarke relied related to the fact that he was serving a seven year sentence for which there was no legal justification; and that

McDermott J. in the High Court had failed to address the absence of jurisdiction in the Court of Appeal (Criminal Division) to entertain

an appeal in circumstances where its jurisdiction to entertain an appeal (whether on a stand alone basis under s. 99 (12) of the 2006

or under s. 3 (2) of the Criminal Procedure Act 1993) would only be the same as that of the Circuit Criminal Court, which jurisdiction

had been held in Moore to be invalid having regard to the provisions of the Constitution.

50. In refusing to admit the appeal, the Supreme Court was clearly of the view that nothing of general public importance or touching

upon the interest of justice arose in the Clarke case. The determination of the Supreme Court was as follows:

“22. The analysis of the Court of Appeal as to the relevance of subs. (17) is based on its analysis of what had transpired

in the Circuit Court. Whether or not that analysis is correct is not a matter of general public importance, but is specific

to the facts of the case. This Court no longer has the role of correcting errors, but is constrained in its functions by the

Constitutional criteria identified above.

23. The Court also considers that it is clear that the Court of Appeal, while forming its own view of the case, fully

endorsed and adopted the reasoning of McDermott J. in the High Court. There are thus two separate, independent bases

for the decision.

24. The applicant has chosen not to address any argument or ground of appeal arising from the endorsement of the

reasoning of McDermott J. Under its new jurisdiction, leave to appeal to this Court does not allow an appellant to argue

grounds not raised in the notice of application for leave. Applicants must therefore seek leave on all grounds that they

wish to have considered.

25. It is clear that the applicant retains his appeal to the Court of Appeal, where he can argue against the re-activation

of his sentence on grounds that it is excessive and/or disproportionate.

26. The Court is satisfied that this application does not meet the criteria set out in the Constitution. Consequently, the

Court refuses to grant leave to appeal.”

51. Solely by way of observation, it appears to me therefore that the Supreme Court did not consider the applicant’s argument,

namely that the absence of legal justification for the activation of the suspended rendered the activation void ab initio, came within

the constitutional criteria for intervention by the Supreme Court.

52. Accordingly, I am satisfied that the applicable jurisprudence against which this Court must consider the present challenge is as

set out at paras. 15 to 28 of this judgment.

53. For the purpose of the present challenge, I turn now to the applicant’s specific circumstances by which the suspended sentence

came to be activated. On 14th November, 2013, the Circuit Court dealt with the applicant on Bill No. 298/2012, which concerned the

offences of unlawful use of a stolen motor vehicle, driving while drunk and driving without a licence. These offences involved the

applicant driving at speed while being pursued by the Gardai, but on that occasion did not involve injury to anyone. He pleaded guilty

to the said offences. On 14th November, 2013, the applicant was disqualified from driving for four years and received, inter alia, a

three year sentence, suspended for three years. The applicant was specifically advised by the trial judge that she would impose the

three year sentence if she saw him during the suspended period. No appeal was taken in respect of the penalties imposed on the

applicant. On 29th May, 2014, the applicant committed the “trigger” offences. These again involved driving offences but which on this

occasion resulted in the death of one person and serious injury to another. The offences were committed some six months into the

period of the applicant’s three year suspended sentence. Accordingly, it is clear that the applicant had failed to abide by the direction

of the sentencing judge. At his trial for the “trigger” offences, the applicant entered a plea of guilty to the offences of dangerous

driving causing death and serious injury. In that circumstance, he never evinced an intention to appeal the conviction for the “trigger”

offences, unlike the situation which pertained in Moore. Nor is it suggested, on affidavit or otherwise, that the applicant sought to

challenge the constitutionality of s.99(9) and (10), and it appears that no objection was raised to the Order of 22nd April, 2015,

remanding him in custody for the purpose of a sentence hearing for, inter alia, the potential activation of the suspended sentence.

54. It is clear from the trial transcript that the applicant was represented by solicitor and counsel during the activation hearing.

Equally, there is no suggestion but that he was legally represented at his trial on foot of Bill No. 298/2012. Furthermore, the case is

not made by the applicant or his legal representative in the course of these proceedings that there was any substantive injustice or

breach of the applicant’s rights to fair procedures at his trial on foot of Bill No. 298/2012. Nor is it now alleged that there was any

unfair prejudice or discrimination suffered by him in the course of the hearing leading to the activation of his suspended sentence

such that would warrant certiorari of the Order of the Circuit Court activating the suspended sentence. In any event, this Court has

had the benefit of the transcript of the proceedings before the Circuit Court.

55. I am satisfied that on 18th May, 2015 the Circuit Court dealt in good faith with the applicant in accordance with the law as then

understood to be applicable. He submitted to its jurisdiction and acquiesced in its exercise, as is clear from the submission made on

his behalf on 18th May, 2015, when his counsel acknowledged that if the Circuit Court was so minded, it could impose all, or such

element of it as it felt appropriate, of the three year sentence suspended in November, 2013.

56. It is common case that the applicant has appealed the activation of his suspended sentence and the severity of the sentence for

the “trigger” offences. At the hearing before the Court of Appeal, it will be open to him to argue that the activation of the suspended

sentence was an excessive and/or disproportionate response.

57. The net issue for this Court is whether the applicant is precluded from obtaining the benefit of the declaration of

unconstitutionality in Moore, as contended for by the respondent. Having considered the merits of the applicant’s case, I am satisfied

that the decided authorities particular to the consequences of the declaration of unconstitutionality made in Moore, as referred to in

this judgment, support the respondents’ argument that the applicant’s application for judicial review should be rejected. Furthermore,

whilst the applicant stresses that he is not looking for the Moore declaration to have any retrospective effect, on any reasonable

interpretation of the substance of his case, as pleaded, the reality of the matter is what he is seeking is that the declaration of

unconstitutionality should have a blanket effect. That being the case, the relevant jurisprudence both pre- and post-Moore is clearly

against the applicant’s claim, having regard to the particular circumstances of his case. I am satisfied that the circumstances where

prisoners can obtain relief in cases of this kind are limited. There must be, in the words of Birmingham J. in Clarke,:

“a default of fundamental requirements such that the detention could be said to be wanting in due process of law or

that his detention arises on a departure from fundamental rules of natural justice”.

58. I find that there are no such features in the applicant’s case. I am satisfied that in deciding the matter, this Court is bound by the

Court of Appeal decision in Clarke. Accordingly, the relief sought in the notice of motion herein is denied.