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Cite as: [2009] IECCA 92

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Judgment Title: DPP -v- Edward Anthony Farrell

Neutral Citation: [2009] IECCA 92

Court of Criminal Appeal Record Number: 244CJA/07

Date of Delivery: 27 July 2009

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Budd J., Herbert J.

Judgment by: Budd J.

Status of Judgment: Approved


Judgments by	Result
Budd J.	Other (see notes)

Notes on Memo: Undue Leniency application can proceed

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 244CJA/2007.]

Finnegan J.
Budd J.
Herbert J.

IN THE MATTER OF THE CRIMINAL JUSTICE ACT 1993
SECTION 2

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPLICANT

AND
EDWARD ANTHONY FARRELL

ACCUSED/RESPONDENT

JUDGMENT of the Court delivered by Mr. Justice Declan Budd on the 27th
day of July 2009
Background
This case comes before this Court by way of the Director of Public Prosecutions having served a notice of application for review of sentence on the grounds that the sentence was unduly lenient. The matter had come before His Honour Judge Thomas Teehan sitting at the Circuit Criminal Court at Wexford Courthouse on the 6th November, 2007. The counts, to which the accused/respondent pleaded guilty, were one of possession of a controlled drug for the purpose of unlawfully selling or otherwise supplying to another, contrary to s. 15(A) (as inserted by s. 4 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977, and one of importation of a controlled drug contrary to s. 2(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977. (There is a copy of the indictment included in the papers and it would appear that this was marked with a “G” for a plea of guilty against Count No. 2, Count No. 3 and Count No. 4. However, it is clear from the judge’s note of the sentencing hearing that counsel had a discussion at the end of which the judge was told by both counsel that he could discount the second count entirely and the sentence hearing then took place on the basis of the earlier pleas of guilty to Count No. 3 and Count No. 4.) As to Count No. 3, the Statement of Offence was being in possession with intent to supply contrary to s. 15(A) (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977.

“The Particulars of Offence were:-

That you Edward Anthony Farrell on or about the 14th day of June, 2007, at Ferryport, Ballygillane Little, Rosslare Harbour, in the County of Wexford, did have in your possession one or more controlled drugs, to wit, Diamorphine for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations 1988 and 1993, made under s. 5 of the Misuse of Drugs Act 1977, and at the time while the drugs were in your possession, the market value of the controlled drugs amounted to €13,000 or more.”

In Count No. 4, the Statement of Offence was:

Contravention of Regulations contrary to s. 21(2) and s. 27 (as amended by s. 6 of the Misuse of Drugs Act 1984) of the Misuse of Drugs Act 1977.

“Particulars of Offence:

That you, Edward Anthony Farrell on or about the 14th day of June, 2007 at Ferryport, Ballygillane Little, Rosslare Harbour, in the County of Wexford, did unlawfully import a controlled drug, to wit heroin, in contravention of Regulation 4(1)(c) of the Misuse of Drugs Regulations 1988 and 1993.”

The case came on for sentence before Judge Teehan at Wexford Circuit Criminal Court on the 6th November, 2007, and at this sentencing hearing evidence on behalf of the prosecution was given by Garda Alan Byrne. One witness was called on behalf of the accused, his mother Priscilla Farrell. Submissions in mitigation were then made by senior counsel on behalf of the accused. Having heard the evidence and the submissions, the learned trial judge imposed concurrent sentences of eight years on each of the two counts 3 and 4 and suspended the last six years of each sentence. The charges to which the accused had pleaded guilty, of which an indication had been intimated to the State Solicitor in good time, particularised the offences as possession for sale or supply of diamorphine (otherwise heroin) and the importation of heroin respectively, the value in each case exceeding €13,000. The uncontested evidence before the sentencing court from the Garda was that the street value of the heroin was €1.6m.

An application for review by the Director of Public Prosecutions was lodged pursuant to s. 2 of the Criminal Justice Act 1993. For ease of reference I have set out s. 2 :-

“2. – (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either –

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.”

Subsection 4 is not material to this case.

The notice of application by the DPP was duly lodged. The grounds upon which the application was based are set out in paras. 1 to 9 of the notice of application. I propose to set out the grounds and to set out the judge’s remarks particularly with regard to the substantial value of the consignment of heroin, so that there is an understanding of the background to the difficulties which have arisen due to the incomplete and inaccurate nature of the transcript of the sentencing hearing.

The grounds as set out in the notice of application for review of sentence were as follows:-

(a) The value of the drugs was in excess of €1.6m (€1,603,500);

(b) The nature and quantity of said drugs was 8.0175kg of Diamorphine (heroin);

(c) The accused/respondent arranged to collect the vehicle he was driving and in which the drugs were found, knowing that it contained drugs, that same would be either heroin or cocaine, and that the quantity of drugs was substantial;

(d) The accused/respondent had transported this large quantity of drugs into the State;

(e) That the accused/respondent had transported these drugs in anticipation of €6,000 financial reward;

(f) The accused/respondent, by undertaking a planning trip of the route from Antwerp to Ireland and otherwise, had participated extensively in making arrangements for and was centrally involved in the planning of this drug transportation and importation;

(g) The accused/respondent, although himself a recovering heroin addict, had been off heroin for a period of in or about eighteen months at the time of his participation in the transportation and importation of these drugs.

(3) That the sentencing court gave excessive weight to the plea in mitigation and in doing so failed to take a proper account of the gravity of the offence and of the fact the accused/respondent had undertaken the transportation and distribution of the drug across borders and in anticipation of financial reward.

(4) That the sentencing court gave excessive weight to the plea in mitigation in circumstances where for the first three of his six interviews after arrest, the accused denied all knowledge and responsibility for the drugs found in the vehicle he was driving and maintained he was involved in a legitimate exercise to transport furniture from a public house in Brussels, and only admitted knowledge of the drugs when enquiries established that the public house in question did not exist.

(5) That the sentencing court gave excessive weight to the plea in mitigation in circumstances where the accused gave no material assistance regarding the identities of other persons involved in the transportation and importation of these drugs.

(6) That the sentencing court gave excessive weight to the accused/respondent's plea of guilty in circumstances where the evidence was such that the drugs had been found in a vehicle driven by the accused/respondent during a search by customs officials as it disembarked from the ferry at Rosslare Harbour.

(7) That the sentencing court erred in suspending six years of the sentence imposed.

(8) That in all the circumstances the sentencing court erred in principle in not imposing a more lengthy custodial sentence.

(9) Such further and other grounds as may be adduced.

In giving his decision, the learned trial judge said that he could not disregard the very significant quantity of heroin involved, a drug which has been the cause of enormous societal problems. Indeed, he pointed out that the emphasis under the Misuse of Drugs Act 1977, was manifestly to seek to punish most heavily significant drug dealers. He noted the emphasis on the value of the drugs seized rather than on the level of involvement of the perpetrator. He commented on the position having been refined by the provision in our legislation by allowing a derogation from the norm in “exceptional and specific” circumstances and also by the jurisprudence of the Court of Criminal Appeal, particularly where this involves a callous use of youngsters or vulnerable persons by sinister elements. The learned trial judge set out and carefully considered the aggravating and the mitigating factors.

I have set out the foregoing information as setting the scene in the background to the problems caused by the inadequacies of the transcript.
The incomplete transcript of the sentencing hearing.
Some weeks after the application for the review of sentence was lodged, both sides were informed that there were significant gaps in the transcript of the sentencing hearing on the 6th November, 2007. This apparently arose because of technical difficulties with a backup recording upon which the stenographer was relying that day. A copy of the incomplete transcript was provided to both sides for their consideration. It is clear that sections of the relevant transcript are missing and that there are inaccuracies in the remainder, for example, the name of the Detective Garda is given as Alan Boyle in the transcript, whereas counsel referred to him as Alan Byrne. Counsel for the DPP has helpfully made the following observations on the transcript as furnished:-

“(1) The entirety of the evidence-in-chief of Garda Alan Byrne is omitted from the transcript. This should be at a point before that where the transcript furnished begins. His evidence however was primarily that contained in his statement on the book of evidence, evidence of the attitude of the accused during his interviews which are reflected in the memo of interview in the book of evidence and evidence about the accused’s previous convictions which were not disputed.

(2) The cross examination of Garda Byrne by Senior Counsel for the accused is included in the incomplete manuscript but some aspects of it are missing. In all Garda Byrne was asked 24 questions in cross-examination, the answer to eight of those questions are missing or partially missing from the transcript.

(3) A small portion of the evidence of Priscilla Farrell is missing. She was asked 37 questions. The answer to three of those questions is missing or incomplete on the transcript. The entirety of the plea in mitigation by Senior Counsel for the accused appears to be included in the transcript.

(4) There are some gaps in the sentencing speech delivered by the learned trial judge immediately prior to imposing sentence.”

Unfortunately s. 2 of the Criminal Justice Act 1993, does not detail how the Court of Criminal Appeal is to hear and determine the application. No specific superior court rules have been brought into existence to deal with this situation. The work of the Court, since the enactment of this legislation, has been undertaken on the following basis. When a s. 2 application for a review on the grounds of undue leniency has been brought, the Registrar of this court then requests the stenographer in the Circuit Court or the Central Criminal Court or the Special Criminal Court, as the case may be, to furnish her with the transcript of evidence. In this case when copies of the incomplete transcript of the sentencing hearing were received, the prosecution, with the consent of the defence, arranged to have the matter included in the case management list of the Court of Criminal Appeal, with a view to seeking the Court’s directions on how to proceed.

Counsel for the respondent trenchantly made the point that there is no statutory basis for the procedure which has been adopted. He submits that neither s. 2 of the Act of 1993 nor the Superior Court Rules at Order 86, deals with the procedure to be adopted in respect of obtaining a transcript or a judge’s report for use at a sentencing hearing as would be needed in an application for review under s. 2 as sought by the DPP.

The matter came before the Court of Criminal Appeal on Thursday, 31st July, 2008, and the Court indicated that as there were serious defects in the transcript of the sentence hearing, the Registrar should issue a request to the learned trial judge for a report on the sentence hearing and that for this purpose he should be furnished with the transcript as an aide mémoire, despite its defects and omissions. This practical measure was adopted in order to ascertain whether the learned trial judge would be able to assist this Court by producing a report. The adoption of this measure of seeking his report by request was done without prejudice to the legal submissions which Senior Counsel for the respondent indicated that he was obliged to make, and intended to submit, on behalf of his client. In short Mr. Maher suggested that, since the State was responsible for the provision of a proper and comprehensive transcript, his client was entitled to have the course taken which best protected his client’s interests. He pointed out that there was no provision for the transcript in the absence of any rules made under s. 2. He made clear that he was still maintaining the issues raised in respect of there being a procedural lacuna in the absence of a provision in

s. 2 and in the absence of rules of court allowing for the provision of a transcript from the sentencing court or the provision of a judge’s report on the hearing, or for both.

Counsel for the DPP, Noel Whelan, submitted that the difficulties created by the gaps in the transcript of the sentencing hearing in this case, could be remedied by the Court of Criminal Appeal asking the sentencing judge for a report. For the purpose of assisting the trial judge in so doing, a copy of the incomplete transcript could be furnished to him. In addition, an agreed note prepared by both of the legal teams or two separate notes could be furnished, if necessary, to the sentencing judge to assist him in the above task. Apparently the State Solicitor had kept a detailed attendance in relation to the sentencing hearing. In fact this detailed attendance was not required as the learned trial judge, despite the lapse of time, has furnished this Court with a complete, coherent, concise and comprehensive account of the sentencing hearing. This report sets out the mitigating and aggravating factors to which he had adverted and in particular what he had stated with regard to the value of the heroin and also the serious duress under which the accused was put as described by Detective Garda Byrne. Counsel for the DPP submitted that there are frequent gaps in the rules of court and in legislation and that a court has to be practical in dealing with such omissions in order to ensure that the clear intentions of the Oireachtas are carried out in accordance with the purpose of the legislation and that the Court should exercise its jurisdiction in a pragmatic manner. He referred the Court to the analogous provisions in s. 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which although relating to appeals on conviction and sentence by an accused person, are also worthy of consideration in this context. The section provides for a report from the trial judge to be prepared in the event of a point being raised about the transcript and also gives the Court of Criminal Appeal a lot of latitude as to how to proceed in the absence of a transcript or in circumstances where the transcript of the sentencing hearing or trial is defective.

Section 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, provides:-

“(7) The Act of 1924 is hereby amended by the substitution of the following section for section 33:

‘33.(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal (‘the court’) on –

(a) a record of the proceedings at the trial and on a transcript thereof verified by the judge before whom the case was tried, and

(b) where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript, as the case may be, contains,

with power to the court to hear new or additional evidence, and to refer any matter for report by the said judge.

(2) Where the court is of opinion that either the record or the transcript thereof is defective in any material particular, it may determine the appeal in such manner as it considers, in all the circumstances, appropriate.

(3) In this section, ‘record’ includes, in addition to a record in writing -

(a) shorthand notes, or a disc, tape, soundtrack or other device in which information, sounds or signals are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in legible or audible form,

(b) a film tape or other device in which visual images are embodied so as to be capable (with or without the aid of some other instrument) of being reproduced in visual form, and

(4) Section 97 of the Act of 1924 is hereby repealed.’”

Counsel for the DPP submitted that there appeared to be no statutory provisions similar to s. 7 of the Act of 1997 dealing with a situation where the Court of Criminal Appeal, when dealing with an application by the DPP for review of sentence pursuant to s. 2 of the Criminal Justice Act 1993, does not have a complete or correct transcript on which to rely. The Act of 1993 itself is silent as to the record upon which the Court of Criminal Appeal can rely when hearing an application for review of sentence under that Act. He submitted however that the situation is analogous to that provided for in s. 7 of the Act of 1997. Counsel for the DPP further submitted that statute law, whether dealing with court procedure or otherwise, cannot and does not provide for all possible situations with which a court could be faced, nor can it foresee all possible difficulties which could arise. When presented with a situation which is not expressly provided for in statute, then it is open to the Court itself to seek to address a difficulty of this type, provided this is done in a manner which causes no injustice nor encroaches on the rights of an accused. By means of s. 2 of the Criminal Justice Act 1993, the Oireachtas saw fit to give the Court of Criminal Appeal the power, on foot of an application by the DPP, to review sentences imposed by the Circuit Court, the Central Criminal Court and the Special Criminal Court. He further submitted that notwithstanding the absence of an express statutory provision, the Court of Criminal Appeal was entitled to proceed with a review of sentence under s. 2 of the Act of 1993, even when the official transcript produced is inadequate, provided that a sufficiently comprehensive record of the sentencing hearing can still be put before the Court. The gaps in the record of the hearing which arise from the incomplete transcript in this case can be remedied with the assistance of the comprehensive report from the learned trial judge.

Discussion
Certain matters are clear. There are several lacunae in that first of all, s. 2 of the Criminal Justice Act 1993, does not specifically mention the procedures to be adopted by the Court of Criminal Appeal in securing a transcript or a judge’s report. Nor have the Rules of the Superior Courts been amended to take account of an application by the DPP for review of a sentence which he regards as unduly lenient. However it was clearly the intention of the Oireachtas that the Court of Criminal Appeal would embark on such reviews and this is what the Court has been doing. In practice, the Court has adopted the already well tried procedures used by the Court of Criminal Appeal in dealing with appeals by applicants for leave to appeal and appellants on their appeals. The members of this Court are well aware of and conscious of the fact that this Court is the creature of statute.

Part VII, Official Stenographer and Transcript of Notes in the Rules of the Superior Courts, O.86, r.14, provides that:-

“1. The official stenographer shall at the conclusion of the trial, sign the shorthand note taken by him and certify the same to be complete and correct.

2. On request by the Registrar (of the Court of Criminal Appeal), the official stenographer shall furnish to him a report comprising the original shorthand note and a transcript of the whole of such note or of such part thereof as may be required.

3. Before furnishing his report to the Registrar, the official stenographer shall submit the transcript to the judge of the court of trial to be certified by him.

4. A party interested in an appeal or application for leave to appeal may obtain from the Registrar a copy of the transcript or the whole of any part of such shorthand note as relates to the appeal or application upon payment of the proper charges.

5. The transcript may be made by the official stenographer who took the shorthand note or other competent person.

6. The transcript shall be typewritten and certified by the person making the same to be a correct and complete transcript of the whole, or of such part as may be required of the shorthand note taken by the official stenographer.

7. The report of the official stenographer shall contain the evidence, any objection taken in the course thereof, any statement made by the prisoner, the summing up and the sentence of the judge of the court of trial, but unless otherwise ordered by such judge shall not include any part of the speeches of counsel or solicitor.”

At Part X of O.86, r.14, Report of Trial Judge:-

“18(1) The Registrar, whenever in relation to any appeal or application for leave to appeal, the Court directs him so to do, shall request the judge of the court of trial to furnish him with a report in writing giving his opinion upon the case generally or upon any point arising thereon, and the judge of the court of trial shall furnish the same in accordance with such request.

(2) The report of the judge shall be made to the Court and, except by leave of the Court, the Registrar shall not furnish any part thereof to any person.”

On the 16th July, 2002, Keane C.J. signed a Practice Direction CCAO4 in respect of transcripts of evidence in the following terms:-

1. Every transcript of evidence in a criminal trial prepared for the purpose of an appeal or application for leave to appeal to the Court of Criminal Appeal is to contain all submissions made by counsel in the course of the trial including opening and closing speeches to the jury and any submissions made in mitigation of sentence.

It is also to be noted that on the 1st October, 2007, Murray C.J. signed a Practice Direction CCAO5 in respect of written submissions on legal issues in sentence appeals. Paragraph 5 of this Practice Direction states:-

5. The above provisions shall apply

mutatis mutandis

to applications brought on behalf of the Director of Public Prosecutions for a review of sentence pursuant to s. 2 of the Criminal Justice Act 1993, and submissions in response to those of the DPP.

S.I. No. 325 of 2008, the Rules of the Superior Courts (Recording of Proceedings) 2008, contains an amendment to Order 86. At Part VII, “Official Stenographer and Transcript of Notes” has been replaced by “Provision of Record and Transcript to Registrar”. However, for the purposes of this case r. 14(4) still refers to “[a] party interested in an appeal or application for leave to appeal may obtain from the Registrar the whole or of any part of the transcript as relates to the appeal or application, upon payment of the proper charges”. Thus the phraseology is still in respect of an appeal or application for leave to appeal and there is not the expected reference as well to an application for review brought by the DPP.

Counsel for the respondent submitted that he was making two separate arguments. The first was his contention that this Court could not adopt a procedure, where the transcript was not agreed and was manifestly inaccurate and incomplete, of furnishing that transcript of the hearing to the learned trial judge and seeking his report on the proceedings. In this respect, the Court of Criminal Appeal, since the Act of 1993 came into force, has, through its Registrar, requested the transcript and obtained it in the same manner as applies in cases where there is an appeal by the convicted person or an application for leave to appeal. Counsel for the respondent submits that there is no basis for this procedure under the Act of 1993.

The manner in which an appeal or application for leave before the Court of Criminal Appeal is to be heard and determined is a matter of substantive law and not a matter of mere procedure. This is evident from the terms of s. 33 of the Courts of Justice Act 1924, (No. 10 of 1924). (See s. 33 above at p. 11). Section 36 of the Act of 1924, on the other hand, provides that Rules of Court may be made for the following matters – (ii) pleading, practice and procedure generally in all criminal cases before . . . the Court of Criminal Appeal.

It is well established that the Court of Criminal Appeal is entirely a statutory creation and has no inherent powers or jurisdiction. In D.P.P. v. Mulligan, Cassidy and Brady (Court of Criminal Appeal, 25th July, 1980; Frewen, 1979-1983 Vol. 2, p. 21), per Griffin J. it was said:-

“This Court is a court established by the legislature as additional to those courts particularly designated and prescribed by the Constitution and its functions and powers are declared and conferred by Statute.”

If some power, such as the manner in which the Court of Criminal Appeal “shall” hear and determine an application by the D.P.P. under s. 2 of the Criminal Justice Act 1993, is absent, then it cannot be found by an appeal to “inherent jurisdiction”. Because of the provisions of s. 33 of the Act of 1924, which confers a specific power, an “inherent power” to decide how it will hear and determine a s. 2 application cannot be found in s. 30 of the Courts of Justice Act 1924, which states:-

“The Court of Criminal Appeal shall be a superior court of record, and shall, for the purpose and

subject to the provisions of this Act

, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it.” (emphasis by underlining is added)

If the Oireachtas had intended to confer on the Court of Criminal Appeal, liberty to determine the material to which it would refer in deciding an appeal or application for leave to appeal taken under s. 31 and s. 32 of the Act of 1924, there would have been no necessity to enact the specific provisions of s. 33 of the Act. Section 33 sets out expressly the material by reference to which the Court of Criminal Appeal is to hear and determine the appeal or the application for leave to appeal. The provisions of O. 86, r. 14(1) to (7) of the Superior Courts set out above, are based on the provisions of s. 33 of the Courts of Justice Act 1924, as amended by s. 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997, which refers to a record of the proceedings at the trial, a transcript and a Report by the Judge also set out above.

The long title of the Criminal Justice Act 1993, states that it is, inter alia, “an Act to enable the Court of Criminal Appeal to review unduly lenient sentences . . . .” This Act of 1993 confers an additional power on an already lawfully constituted court. The Act of 1993 did not insert s. 2 as a new section into the Act of 1924. Because it dealt with matters other than the jurisdiction of the Court of Criminal Appeal, the Act of 1993 did not, and could not, provide that it should be read together as one with the Act of 1924, (as amended). However, the intention of the Oireachtas is clear beyond any doubt. The Court of Criminal Appeal is as entitled to construe the provisions of the several statutes dealing with its own powers and jurisdiction as it is the statutes relevant to particular appeals brought before it such as an appeal in respect of s. 15A of the Misuse of Drugs Act 1977.

While s. 33 of the Act of 1924 and s. 2 of the Act of 1993, are both generally concerned with the powers and the jurisdiction of the Court of Criminal Appeal, they are not “in pari materia” (of equal materiality/applicability). However, it could lead to a preposterous result were this Court to decide that the Oireachtas intended that some different mode of hearing and determination would apply to a s. 2 application for review brought by the Director of Public Prosecutions, as opposed to the mode in the case of an appeal or application for leave to appeal against conviction or sentence, or both, by a convicted person. No basis for considering that a different mode of procedure may have been intended by the Oireachtas was advanced by counsel for the respondent, and this Court considers that none could reasonably have been advanced. There is nothing in s. 2 to suggest that the Oireachtas intended to confine this Court to considering documents less extensive than those indicated in s. 33 of the Act of 1924, or to enable this Court to look to a more extensive range of material. The only reasonable and rational interpretation of what the Oireachtas intended by s. 2 of the Act of 1993, considered in the context of the Act of 1924, was that the existing provisions as to how an appeal should be heard would apply to this new application also, and there was simply an oversight in failing to say so expressly. This is the proper construction and interpretation of the section and is not an exercise in hypothetical construction or reading in words to fill a gap. The State (Rollinson) v. Kelly [1984] I.R. 248 at 255, can be distinguished.

In that case the Oireachtas enacted a positive provision in the legislation in error – Regulation 29 was referred to, where Regulation 26 was obviously intended, (just as if in the instant case, s. 34 was referred to where s. 33 was intended). The Supreme Court refused to rectify the error even though it rendered the Regulation meaningless. The Court considered that to do so would go beyond interpretation and amount to usurpation of the legislative function, and also because of the fact that this was a penal Regulation and the applicant Rollinson was entitled to rely on the point.

In the present case there is no question of the Court going beyond interpretation or indulging in speculation as to the intention of the Oireachtas. Section 2(1) of the Act of 1993 confers express power on the D.P.P. to apply to the Court of Criminal Appeal to review a sentence which he considers to be unduly lenient. Section 2(3) confers express power on the Court of Criminal Appeal to quash that sentence and to impose a different sentence, or to refuse the application. The section is silent as to how this application will be heard and determined. Section 33 of the Act of 1924 had provided for this in the case of the only type of appeals and applications permitted prior to the enactment of an application for review under s. 2 of the Act of 1993. There is no basis upon which it could either reasonably or rationally be postulated that the Oireachtas intended that some different regime should apply in the case of an application under s. 2.

In the instant case the Court is merely interpreting the provisions of s. 2 of the Act of 1993, in the context of the earlier Act of 1924, by adding minimal words to the text for the purpose of giving effect to the plain intention of the Oireachtas as clearly indicated, but not explicitly expressed therein. In so doing the Court is not acting outside of the provisions of Article 15.2.1° of the Constitution by which the sole and exclusive power of making laws for the State is vested in the Oireachtas. The provisions of s. 5(1) of the Interpretation Act 2005, [No. 23 of 2005] which provides for the interpretation of obscure or ambiguous provisions in an Act of the Oireachtas, cannot be prayed in aid in this instance because s. 5(1) does not apply to “a provision that relates to the imposition of a penal sanction” which is clearly the case as regards s. 2 of the Act of 1993.

The proper interpretation of s. 2 of the Criminal Justice Act 1993, set out above, requires the following words in parentheses below to be interpolated in the existing text of s. 2(3), after the words “on such an application”, and before the words “the Court may either -”

“to be heard and determined in the same manner as provided in s. 33 of the Courts of Justice Act 1924,”

The second aspect of counsel’s argument on behalf of his client, the respondent, refers to s. 5 of the Interpretation Act 2005. Section 5, as already stated, deals with the interpretation of ambiguous or obscure provisions of any Act or statutory instrument, but it specifically states “other than a provision that relates to the imposition of a penal or other sanction”. Section 2 of the Criminal Justice Act 1993, relates to the imposition of a penal or other sanction since the objective is that the Court should review a sentence which is alleged by the DPP to be unduly lenient and to quash the sentence and in place of it to impose on the convicted person such sentence as the Court considers appropriate. In any event, for the reasons already stated this Court would not regard the wording of s. 2 to be obscure or ambiguous, or that on a literal interpretation it could be regarded as absurd or would fail to reflect the plain intention of the Act, which is to have the Court of Criminal Appeal carry out a review of sentences which are considered by the Director to be unduly lenient. The problem here is that the Oireachtas mistakenly failed to express in words the clear intention conveyed in that section with regard to the procedures to carry out the review. However, there is nothing obscure or difficult to comprehend in the wording of the provisions in s. 2 in respect of which s. 5 of the Interpretation Act could be called in aid.

This Court has considered the adequacy of the transcript and the learned trial judge’s report. While the transcript is inadequate in the sense of being incomplete, the learned trial judge’s report is quite sufficient to inform this Court of what took place at the sentencing hearing and the considerations which were taken into account by him, particularly the aggravating and mitigating factors, and the reasoning involved in reaching his sentencing disposition.

Section 2 of the Criminal Justice Act 1993, does not itself create a criminal offence nor could it be properly described as a provision setting out technical provisions concerning criminal practice and procedure. However, it does seem to encroach on the rights of convicted persons, as affecting the right to liberty, in the sense that the D.P.P. by virtue of the section seeks to increase the loss of liberty. The same rule as applies to penal statutes applies in the circumstances and any ambiguity in the provision must be resolved in favour of the person likely to be affected (see, for instance Maxwell, Interpretation of Statutes [12th Ed.] p. 238)

Bowers v. Gloucester Corporation [1963] 1 Q.B. 881, involved the revocation of a hackney licence, following upon the conviction of the holder for a second time for any offence under the Act. The defence, which was unsuccessfully sought to be made, was that it had to be a second conviction for the same offence and not for a different offence. Lord Parker, C.J. (Ashworth and Lyell JJ. concurring), drew the important distinction between a provision which is ambiguous and one which is simply difficult to interpret. The Court held that:

“It may well be that many sections of Acts are difficult to interpret, but can be interpreted by the proper canons of construction. A provision can only be said to be ambiguous, in the sense that if it be a penal section it would be resolved in a manner most favourable to the citizen, where having applied all the canons of interpretation the matter is still left in doubt.” (p. 887)

D.P.P. v. Ottewell [1968] 3 W.L.R. 621, House of Lords, was a case where the appellant pleaded guilty to two counts of assault occasioning actual bodily harm and the trial judge opted to impose an extended term of imprisonment because of the respondent’s previous record, applying the provisions of s. 37 of the Criminal Justice Act 1967. Lord Reid held at p. 627:-

“The Court of Appeal (Criminal Division) refer to the well-established principle that in doubtful cases a penal provision ought to be given that interpretation which is least unfavourable to the accused. I would never seek to diminish in any way the importance of that principle within its proper sphere. But it only applies where after full enquiry and consideration one is left in real doubt. It is not enough that the provision is ambiguous in the sense that it is capable of having two meanings . . . . But if, after full consideration, your Lordships are satisfied, as I am, that the latter is the meaning which Parliament must have intended the words to convey, then this principle does not prevent us from giving effect to our conclusions.”

In this present case we may read words into the section which we consider are necessarily implied by the words which are already in the section. (See Cross Statutory Interpretation [3rd Ed.] p. 49). Once the ordinary canons of interpretation are applied, there is no ambiguity about s. 2. The mischief aimed at is clear. The words of the section in their ordinary and literal meaning give the Director power to apply to the Court of Criminal Appeal, and give the Court of Criminal Appeal power to hear and determine that application.

Section 33 of the Act of 1924 already provides how the Court of Criminal Appeal will hear an appeal by a convicted person against severity of sentence. There is nothing in s. 2 to indicate that an application by the D.P.P. against an unduly lenient sentence should be heard on a different basis. This is not a situation where there is a positive, even if manifestly erroneous, direction in the section (as there was in The State (Rollinson) v. Kelly (above cited)).

Conclusion
For the foregoing reasons, we consider that this Court is entitled to hear an application by the D.P.P. under s. 2 of the Act of 1993, on the same material as it is entitled to hear an application by a convicted person under s. 33 of the Act of 1924, (as substituted by s. 7 of the Criminal Justice (Miscellaneous Provisions) Act 1997)

Despite the fragmentary and garbled transcript, having regard to the clear, concise and comprehensive report of the learned trial judge, this Court is satisfied that it now has sufficient information on the basis of which to carry out the review of the hearing and determination of this case under s. 2 of the Act of 1993.