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Cite as: [2000] IESC 34

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Howard v. Early [2000] IESC 34 (4th July, 2000)

THE SUPREME COURT

JUDICIAL REVIEW

Appeal No. 304/99

Denham J.

Murray J.

Hardiman J.

BETWEEN

SHARON HOWARD

AND

DISTRICT JUDGE WILLIAM EARLY

RESPONDENT

AND

DIRECTOR OF PUBLICATIONS

NOTICE PARTY

Judgment of The Hon. Mrs. Justice Denham delivered the 4th day of July, 2000 [nem. diss] .

[*2] This is an appeal by Sharon Howard, the applicant/appellant, hereinafter referred to as the appellant, from the order and judgment of the High Court (Kelly J.) dated 8th December, 1999 wherein the learned trial judge refused the appellant’s application for relief.

1. The case arises by way of an application for judicial review. On 16th April, 1999 Laffoy J. granted leave to the appellant to apply by way of application for judicial review for:

1. Judicial Review by way of a Declaration that the Order made by the Respondent on the 18th day of March, 1999, remanding the Applicant in custody to the 8th day of April, 1999, on foot of Bridewell Charge Sheet Number 1065/98 was made without jurisdiction in that the said Order was made without the Applicant’s consent and in excess of 15 days contrary to s.24 Criminal Procedure Act, 1967 as amended.

2. Judicial Review by way of a Declaration that the said Order was made without jurisdiction or in excess of jurisdiction and contrary to fair procedures in that there being no evidence of previous convictions as against the Applicant in respect of the offence set out in the said Charge Sheet, the said Order amounted to the imposition of a custodial penalty not provided for by law and a breach of the Applicant’s right to trial with due expedition.

3. Judicial Review by way of an Order of Prohibition or in the alternative an Injunction restraining the Notice Party from further prosecuting the Applicant on foot of the said Charge Sheet.

4. An Order providing for a stay on the said District Court proceedings including

a stay on the Bench Warrant issued by the Respondent on the 8th day of April, 1999

in respect of the Applicant.

5. An Order providing for the Appellant’s release on Bail on foot of the proceedings herein.

6. Such further and other relief as this Honourable Courts deems fit.

7. An Order providing for the costs of the proceedings herein.

2. On 8th December, 1999 in an ex tempore judgment Kelly J. dismissed the application and remitted the matter to the District Court for the purpose of it proceeding to consider a penalty in respect of the offence to which the appellant has pleaded guilty.

[*3] Having entered a plea of guilty to the charge, the appellant appeared for sentence before the respondent on 18th March, 1999. Having considered probation reports and other materials in respect of the appellant the respondent refused an application that sentence be imposed forthwith and remanded the appellant in custody for three weeks, without the appellant’s consent.

3. The learned High Court judge held that the remand order was unlawful on the ground that it was in excess of two weeks and without the appellant’s consent. The learned High Court judge stated:

“The Applicant is a 25 year old woman.

She was charged that on the 3rd June, 1998 at Blackhall Place, Dublin she failed to comply with a direction to leave that place given to her by a police officer who reasonably suspected that she was loitering there to solicit for the purpose of prostitution contrary to Section 8 of the Criminal Law (Sexual Offences) Act, 1993.

To this charge the Applicant pleaded guilty on the 7th January, 1999. She was remanded on bail for sentence and the preparation of a probation report to the 18th February, 1999. She was again remanded on bail to the 18th March, 1999.

On the 18th March, 1999 two probation reports and a letter from an Eastern Health Board Clinic were placed before District Judge Early. These reports indicated that the Applicant is a heroin addict with what was described as a “chaotic lifestyle” who failed to attend all eight appointments offered to her by the Probation and Welfare Service.

On the 18th March 1999, the District Judge remanded the Applicant in custody for three weeks to await sentence. The Applicant did not consent to any remand in custody. The District Judge indicated that there was no need for such consent since the Applicant had been convicted and was being remanded for sentence. Later in the day the Applicant’s Solicitor drew the Judge’s attention to the fact that there had been no evidence which could lead to a custodial sentence being imposed in any event because the maximum penalty prescribed in the legislation is a monetary fine of £250 for a first offence. (See Section 8(2)(a), (b) and (c) of the Criminal Law (Sexual Offences) Act, 1993). It is only in the case of a third or subsequent conviction that imprisonment may be ordered. The District Judge repeated his view concerning the basis of the [*4] remand and went on to direct an updated probation report for the adjourned date. The Applicant was thereupon taken into custody.

Later on the 18th March, 1999 O’Donovan J. directed an enquiry into the lawfulness of the Applicant’s detention pursuant to the provisions of Article 40 of the Constitution. That Order was made returnable for the following day.

On the return to the Order of O’Donovan J., the Governor of Mountjoy Prison certified in writing the basis for the Applicant’s detention. She was held not merely on foot of District Judge Early’s Order but also on foot of two other warrants sentencing her to three months and two months respectively consecutive to each other. These warrants were dated the 7th March, 1997. No challenge was made to these warrants and so on the return to the Article 40 Order, Geoghegan J. dismissed the habeas corpus application. He did however grant leave to apply for judicial review in the form of an Order of Certiorari concerning the Order of Judge Early. He also put a stay on the District Court proceedings and admitted the Applicant to bail.”

4. The learned trial judge stated that the remand was unlawful on the ground that it was in excess of two weeks and without the appellant’s consent. The learned trial judge held that it was unnecessary to make either an order of certiorari or a declaration since to do so would assume a risk of repetition. He stated:

“I am of the view that the decision of the Supreme Court in the case of Barry v. Fitzpatrick [1996] 1 I.L.R.M. 512 is apposite. There the Court refused an Order of Certiorari even though the Order of the District Court was bad. The Court took the view that it would be pointless to quash an Order that was spent. In this case likewise, an Order of Certiorari would be pointless and, in my view, so also would a declaration. I am not prepared to assume that the District Court will, in the light of what I have already said, proceed to make a bad Order if the matter is sent back to it.

...

In these circumstances I will, therefore, refuse to make a declaration as sought since I am not satisfied that there is any need or any legal basis for granting such a declaration. I do, however, follow the course adopted by the Chief Justice in Barry’s case and emphasise that the Order of the District Judge was not correct in law because it was made without the Applicant’s consent and was for a period in excess of the 15 days permitted.

[*5] Finally, the Applicant also seeks an Order of Prohibition or an injunction seeking to restrain the Director of Public Prosecutions from proceeding with the matter in the District Court. Even if I had granted the declaration sought, I would have refused the Order of Prohibition or injunction which is sought. There are, in my view, no valid grounds advanced for the making of any such Order.”

5. Against that order and judgment the appellant appealed. Mr. Gerard Hogan, S.C., counsel for the appellant, sought (a) a declaratory order, and (b) an order prohibiting or restraining the District Court from continuing with the proceedings. He submitted that the applicant had been charged with an offence for which the maximum penalty was a fine of £250 for a first conviction. She was remanded in custody without the consent required and spent a day in custody. He pointed out that the order of remand was bad, which was conceded, and that the issue was whether the matter should be remitted to the District Judge. He argued that the case should not be remitted, that the appellant should not be put in jeopardy of a further remand. The appellant, he submitted, has already suffered the deprivation of liberty for twenty four hours which is a penalty greater than that prescribed by law.

6. The decision of the District Court on 18th March, 1999 remanding the appellant in custody to 8th April, 1999, without her consent, was made without jurisdiction: Section 24 of the Criminal Procedure Act, 1967 (as inserted by Section 4 of the Criminal Justice (Miscellaneous Provisions) Act, 1997). There is jurisprudence that an order which is spent and has no practical effect should not be the subject of an order of certiorari. It depends on the circumstances of the case. If it would be futile it may well not be appropriate to make such an order. However, certiorari is a shield for the citizen against authority which acts in excess of legal authority or contrary to its duty: The State (Abenglen) Properties Limited v . [*6] Corporation of Dublin [1984] I.R. 381 at p.392. In this case the order was in excess of jurisdiction and whilst the order is spent the case is in being and the order and its consequences are relevant factors.

7. As it had relevant consequences (invalid remand in custody) it is a factor which is a matter for consideration in the sentencing.

8. The appellant sought an order of Habeas Corpus on her remand in custody. The return to the order of the High Court (O’Donovan J.) of 18th March, 1999 for an inquiry under Article 40.4.2 of the Constitution of Ireland challenging the legality of the appellant’s detention under the District Court order disclosed that she was in lawful detention on foot of two orders of March 7th, 1997 in which she had been sentenced to a total of five months imprisonment. On that basis the High Court (Geoghegan J.) found the appellant was in lawful custody. Those proceedings and the determination of the High Court are not in contest. That order on its face established that the appellant was in lawful custody on foot of two other warrants (which are not in issue in this appeal). Whilst she was brought into remand in custody by the warrant in issue she was held also on the other said warrants. Nevertheless, the order of remand in custody appears to have effected a result and this had consequences which are still relevant to the ongoing prosecution in issue.

9. The order was bad (as accepted) on its face and was part of a criminal trial. There was a failure to proceed in accordance with law which had consequences, some of which are spent, but which also has continuing consequences for the appellant which are relevant i.e. that she was taken into remand in custody in relation to an offence for which the maximum penalty is a monetary fine. Consequently, I am satisfied that the correct course is to grant one of the declarations sought. This case may be distinguished from Barry v. Fitzpatrick [1996] 1 I.L.R.M. 512, in that in the Barry case the only relief sought was certiorari and in the [*7] circumstances of this case where the relief of declaration is sought and where there are consequences (custodial remand) from the unlawful order which may be relevant to the assessment of the penalty, I would make an order for declaration. I would grant a declaration that the order made by the respondent on 18th March, 1999, remanding the appellant in custody to the 8th April, 1999, on foot of Bridewell Charge Sheet Number 1065/98 was made without jurisdiction in that the said order was made without the appellant’s consent and in excess of 15 days contrary to s.24 Criminal Procedure Act, 1967, as amended. In the circumstances, I would not grant the second declaration sought.

10. The appellant also seeks an order prohibiting or restraining the further prosecution of the matter. In essence the appellant’s case is that the matter should not be remitted to the District Court for sentence (she has pleaded guilty) as the appellant has already suffered a worse penalty than that set out in statute.

11. This court has to take into account the order of the High Court on the Habeas Corpus application which found that the appellant was in custody on foot of other court orders. It is not for this court to inquire into those orders. However, it is clear that the appellant was taken into custody on remand on foot of the void order in issue.

12. This is a sad case in that the appellant is a heroin addict, with a ‘chaotic lifestyle’. On 18th March, 1999 two probation reports and a letter from the Eastern Health Board Clinic were placed before the District Judge. Clearly the court was concerned about the appellant. However, this is not a Drug Court to which the appellant has given consent. Whilst the District Court has powers of remand in custody they should not be used for de facto sentencing.

13. Where there are probation and other reports before the court so that adequate information is available and the maximum sentence is a fine and not custody, it is for the [*8] court to exercise its power to remand with constitutional due process. This might include a remand in custody but would require due consideration. On the face of it in circumstances where a maximum penalty is a fine and adequate probation reports are in court it would be the exceptional case where an order of remand in custody would be in accordance with constitutional justice.

14. The appellant has pleaded guilty. The only remaining matter is the sentencing. I assume, and have no reason to do otherwise, that the District Court will act within jurisdiction. Consequently, I would not prohibit the prosecution but rather remit the matter to the District Court.