High Court of Ireland Decisions

Judgment Title: D. P. P. -v- District Judge O'Neill

Neutral Citation: [2009] IEHC 532


High Court Record Number: 2009 422 JR

Date of Delivery: 01 December 2009

Court: High Court

1. Mr. Stephen Kelly, (the third party) while a prisoner serving a life sentence, was found to be in possession of a mobile phone on 29th May, 2007, contrary to s. 36 of the Prisons Act 2007. The matter came before District Judge O’Neill on 12th August, 2008. Mr. Kelly pleaded guilty to the offence and the court moved to sentencing. The representative for the Director of Public Prosecutions (“DPP”) when addressing the court indicated that if the District Judge was contemplating a custodial sentence then, under s. 13 of the Criminal Law Act 1976, the sentence would have to be consecutive to the life sentence already being served. Mr. Kelly’s representative did not have the legislation in front of her, but submitted to the court that it was not permissible in law to have a custodial sentence consecutive to a life sentence. The District Judge preferred the submission from the DPP and imposed a three months custodial sentence consecutive to the life sentence already being served.

2. It was subsequently established that the District Judge was in error and that s. 13(2) of the Criminal Law Act 1976 explicitly prevented a consecutive custodial sentence being imposed where a life sentence was being served. This was later acknowledged by the DPP.

3. After receiving further legal advice, the third party decided to appeal by way of case stated. This was all done in a timely fashion by the third party’s legal team. On 25th August, 2008, the third party entered in a recognisance to initiate the appeal, as required by s. 3 of the Summary Jurisdiction Act 1857. Pursuant to s. 3 and as a consequence of the bond entered into by the notice party, he was obliged to prosecute his appeal by case stated.

4. On 1st December, 2008, Mr. Kelly’s solicitor sent a draft statement of facts, as is normal practice to the DPP for agreement before sending it forward to the District Judge for approval. There was no immediate response from the DPP’s office. Subsequent attempts made by the third party’s solicitor to progress the matter with the DPP after that date met with little response. Between 1st December, 2008 and 14th April, 2009, when the DPP finally responded, the third party’s solicitor wrote to the DPP on three occasions (5th January, 2009, 17th February, 2009 and 13th March, 2009) and made four phone calls (16th January, 2009, 19th January, 2009 (twice) and 26th January, 2009) without receiving a satisfactory response. A letter was sent from the DPP’s office on 19th February, 2009, but it was only in the nature of a holding letter. Finally, on 14th April, 2009, the DPP wrote and accepted that there was an error of law made in the matter, but indicated, for the first time, that it was proceeding by way of judicial review.

5. On an ex parte motion before Peart J. on 27th April, 2009, leave was granted to bring judicial review proceedings seeking an order of certiorari in respect of the decision made by the District Judge on 12th August, 2008. The third party now seeks to set the leave order aside.

6. In my view, the following are the salient facts: the agent for the DPP wrongly advised the District Judge on the sentencing law; the solicitor for the accused opposed the DPP’s submission but the District Judge followed the advice of the representative of the DPP on that occasion; it was subsequently acknowledged by all concerned that the law was improperly applied; the solicitor for the third party set about rectifying the situation and considered (presumably on instructions from her client) that the best way of doing so was to bring an appeal by way of case stated; she set about doing so and submitted a draft of the agreed facts to the office of the DPP on 1st December, 2008; the DPP’s office did not engage satisfactorily with the correspondence from the solicitor for the third party and delayed the progress of the matter for some four months, despite several reminders from the solicitors for the third party; a consequence of this was that the DPP, in full knowledge of the fact that an incorrect sentence had been imposed, allowed the sentence to stand for that period; when the DPP eventually decided to act, it ignored the proposal of the third party’s solicitor and proceeded in an ex parte manner to seek leave for judicial review. With regard to this unilateral move, at the very least, it was a decision made very late in the day and without any consultation with the third party’s solicitor. It did not show the same courtesy to the third party’s solicitor as had been shown to it.

7. Having examined the affidavit and the grounds on which leave was sought, I am not satisfied that in making the leave application, Peart J. was fully alerted to the history of the District Judge’s order. While acknowledging that some of the exhibits to the grounding affidavit lodged by the DPP do refer to some of the events that occurred in the District Court, it is not clear in particular that Peart J’s attention was drawn to the facts, that it was the DPP’s own agent who wrongly advised the District Judge or that the third party’s solicitor was now proposing an alternative way of addressing the error. I acknowledge that in the grounding affidavit seeking leave mention is made of the fact that the third party’s solicitor was proposing to rectify the error by pursuing “a case stated”, but significantly, no mention is made that what was being done was an appeal by way of case stated. Reference to “case stated” alone might normally suggest that the remedy being pursued by the third party was a consultative case stated, a remedy which would be unsuitable since there is no uncertainty in the law in this case. The process of appeal by case stated is of course a different matter and is one which is not obviously inappropriate. I could imagine that a judge hearing a leave application of this nature, which after all is for the third party’s benefit might not focus too much on this feature especially when the application is made ex parte. There is a strong possibility, in my view, that had Peart J. been fully aware of these facts and in particular, that alternative High Court remedial action was preferred by the third party and was being delayed by the DPP’s failure to address the matter, that he would have refused leave or, at least, would have considered putting the third party’s solicitor on notice.

8. Counsel for the third party suggests that in choosing to proceed by way of judicial review, the DPP is being unfair to the District Judge. In my view, seeking an order of certiorari from the High Court against an order of a judge of the District Court is not an inconsequential matter even in unusual circumstances like we have here. For this reason, a reversal by way of appeal is the more appropriate procedure to adopt, especially when the advice on the law which led to the District Judge’s error, was provided by the applicant herein. Finally, the wishes of the third party, who was wronged in the sentencing process are of some consequence for this Court.

9. I am not moved by the assertion made on behalf of the DPP that if certiorari is granted in this Court, the DPP will undertake not to prosecute the third party again for this offence. I should think, if it is minded to give such an undertaking to this Court, it can be inferred that the third party will not have to face charges arising out of this matter again, whether the matter is corrected by way of certiorari or by way of appeal. I doubt whether that is a relevant factor in these circumstances.

10. It is appropriate also to say a word about delay. I have already referred to the failure of the DPP to respond in a timely fashion to the efforts made by Mr. Kelly’s solicitor after the draft statement of facts was submitted to it on 1st December, 2008. This failure to respond showed little concern first, for the fact that a man was wrongly sentenced on an error of law, which to some extent was induced by the DPP’s agent misinforming the court and, second, for the proper efforts being made by the third party’s solicitor to rectify the injustice on behalf of her client. Furthermore, when the DPP brought the application for leave for judicial review, it was eight and a half months after the relevant order was made and accordingly was two and a half months out of time for bringing such application. (See O. 84, r. 21 of the Rules of the Superior Court) The DPP argues that Peart J. must be taken to have implicitly extended the period of time for bringing the leave application when he granted leave. I accept such an inference might be appropriate in some cases, but I would not be happy to do so in this case. No mention was made in the applicant’s affidavit grounding his application for leave to the delay issue or that an application for an extension of time was applied for.

11. The third party in considering his options is entitled to follow the advice of his legal team. If the third party is advised that the judicial review option involves a discretion, why should the third party take such a risk? Why should he be forced to pursue a remedy selected by the DPP for the clear wrong he has suffered? To grant the DPP’s application would be in effect to oust a properly brought appeal in the High Court. In this context, it is also appropriate to point out, as does counsel for the third party, that if the court accedes to the DPP’s request, there will, in future cases, be a disincentive for the third party to seek the cooperation of the DPP in getting an agreed statement of facts before putting the matter up to the District Judge.

12. For the above reasons, I am prepared to strikeout the order granting leave in this unusual case in the knowledge that the procedure chosen by the solicitor for the third party will provide a just solution at the end of the day for all concerned. I so order.

13. To avoid any doubt on the matter, and particularly to avoid further unnecessary costs, I grant an extension of time for the third party to bring his appeal if needed.

14. I have considered the authorities on this issue opened to the court and I am satisfied that my decision in this case complies with the principles set out in those cases. In the circumstances, I do not feel obliged to refer to these authorities with any greater specificity. (See Voluntary Purchasing v. Insurco Ltd [1995] 2 ILRM 145; Adams v. DPP [2001] 2 ILRM 401; Adams v. Minister for Justice, Equality and Law Reform [2001] 3 IR 53; Gordon v. DPP [2002] 2 IR 369.)