Judgment of Ms. Justice Dunne delivered on the 20th day of December 2018
1. The suspended sentence has long been an important feature of Irish sentencing practice. Section 99 of the Criminal Justice Act 2006, as amended, (hereinafter referred to as s. 99) sought to put a statutory framework around the procedures to be operated in respect of a suspended sentence, particularly in the context of the revocation of a suspended sentence. In the case of DPP v. Carter , and DPP v. Kenny [2015] IESC 20, this Court considered the provisions of s. 99 in the context of two cases stated. The majority judgment in that case was delivered by O'Donnell J. and at the commencement of his judgment he made the following observation:
"Section 99 of the Criminal Justice Act 2006 ('the Act of 2006') is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review."
2. Section 99 has been subject to further review though perhaps not quite in the manner contemplated by O'Donnell J. in the judgment referred to above. The procedures for revocation of a suspended sentence to be found in subss. (9) and (10) of s. 99 were subsequently found to be unconstitutional in the case of Moore v. DPP [2016] IEHC 244. The question at the heart of this appeal concerns the extent, if any, to which the applicant/appellant in this case can rely on the finding of invalidity of s. 99(9) and (10) of the Act of 2006 to challenge his detention in respect of a sentence which had been suspended and was subsequently revoked by reason of a breach of the conditions imposed on the appellant when his sentence was suspended.
Background
3. The appellant was charged with three offences arising out of events which occurred on the 1st December, 2012. The offences involved were the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended), an offence of drink driving and, finally, driving without insurance. He pleaded guilty to the three offences and at a sentence hearing on the 14th November, 2013, he was sentenced to three years imprisonment on the s. 112 charge and six months in respect of each of the other two charges, to be served concurrently with the three years sentence. The sentence was suspended on terms including that he keep the peace and be of good behaviour for three years. Other terms were imposed including a requirement to attend an alcohol awareness programme. Finally, the appellant was disqualified from driving for a period of four years.
4. On the 29th May, 2014, the appellant was involved in a serious incident which led to him being charged with dangerous driving causing death and serious bodily harm contrary to the provisions of s. 53(1) of the Road Traffic Act 1961, as amended. At the time, the appellant was driving the car in which there were two passengers when it came to the attention of the Gardaí. In the course of the incident, the appellant attempted to make a right turn at a junction, failed to do so and crashed into a tree. As a result, all three people in the car were injured and when the Gardaí came to the scene all three were unconscious. Unfortunately, the rear seat passenger in the vehicle died as a result of her injuries. Subsequently, the appellant was charged with the offences referred to and on arraignment on the 22nd April, 2015, the appellant pleaded guilty to the offence of dangerous driving causing death and serious bodily harm. On that occasion, given that the appellant had previously been the subject of a suspended sentence, the question of sentence for these offences was adjourned until the 18th May, 2015 for a hearing before Her Honour Judge Ring (as she then was). By way of background, it appears that when the appellant was brought before the Circuit Court for arraignment on the 22nd April, 2015, the judge presiding, Judge Nolan, was advised that there was a previous matter which had been heard by Judge Ring and it was on that basis that the matter was adjourned to the 18th May, 2015 pursuant to the provisions of s. 99(9) of the Act of 2006. Accordingly the appellant was remanded in custody for the purpose of considering the revocation of the suspended sentence, together with the sentencing hearing in respect of the matter to which the appellant had just pleaded guilty. On that date, Judge Ring heard evidence relating to the facts in respect of the dangerous driving causing death and serious bodily injury charge. She heard information in relation to the appellant's background and circumstances and submissions from counsel for the appellant.
5. The learned trial judge in her sentencing remarks referred to the previous Bill number in respect of which the appellant had pleaded guilty. She lifted the suspension of the sentences in that pursuant to the provisions of s. 99(10) of the Act of 2006 and noted that they were to run concurrently. She observed that by virtue of the provisions of s. 99 of the Act of 2006, the sentence on the latter Bill number was required by law to be consecutive to the three year sentence. She referred to a number of the factors to be borne in mind in regard to the appropriate sentence to be imposed. She noted:
"Eric Wansboro drove this vehicle at a time when he was disqualified and on a suspended sentence. He drove at speed, without regard to anyone's safety, through city streets. He ignored the garda requests to stop and continued on driving. He killed S. M. and seriously injured I. McD. I have to have regard to the totality principle in light of the matters on Bill 298/2012 in sentencing. However in this case I can't overlook the fact that Eric Wansboro was fully aware of what was at risk and took that risk regardless. Had Eric Wansboro not pleaded not guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on count 2 on Bill 99/2015 is one of five and a half years."
As previously mentioned that sentence was required to be consecutive to the sentence imposed in relation to the earlier offences.
6. Following the sentencing of the appellant, committal warrants were issued to give effect to the sentences imposed and accordingly the appellant was lodged in the custody of the second named respondent herein. On the 20th May, 2015, the appellant filed a notice of appeal against the order made in respect of Bill No. 298/2012 and also against the severity of the sentence imposed on Bill No. 99/2015.
The law
7. It would be useful at this stage to refer to the provisions of s. 99 of the Act of 2006 which are relevant to these proceedings. Section 99(9) provides as follows:
"Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of the order under subs. (1) the court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the person in custody or on bail to the next sitting of the court that made the said order."
Section 99(10): "A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody other than a period spend in custody by the person in respect of an offence referred to in subsection (9)) pending the revocation of the said order."
Section 99(17): "A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order."
Moore & Ors. v. DPP & Ors. [2016] IEHC 434
8. The event which gave rise to these proceedings was the decision of the High Court in the case of Moore & Ors. v. DPP & Ors. which found that the provisions of s. 99(9) and (10) were unconstitutional. Judgment in that case was delivered by Moriarty J. on the 19th April, 2016. The judgment in that case dealt with a total of six individuals who complained of aspects of the operation of s. 99 of the Act of 2006 and challenged the constitutionality of the provisions having regard to an unfairness in its operation as it applied to them. In the course of the judgment, details were given in relation to the circumstances of the various individuals who came before the court. By way of illustration it would be helpful to refer to the circumstances of one of the individuals challenging the provisions of s. 99(9) and (10), namely the first named applicant, Mr. Moore. At para. 4 of his judgment Moriarty J. set out the position as follows: "In this instance, the applicant was convicted of a minor District Court offence, and the presiding judge was proceeding to sentence when it became apparent that a prior suspended sentence imposed by the Circuit Criminal Court was still operative. Accordingly the matter was remanded to the Dublin Circuit Criminal Court for determination of whether or not the suspended sentence should be activated. In what was to become a constant argument in similar cases, it was submitted on behalf of Mr. Moore that he wished to appeal the conviction in the District Court and have an outcome pronounced prior to any hearing in the Dublin Circuit Criminal Court. It was pointed out that this now appeared to be precluded in view of the amended wording of s. 99, and that if the Circuit Court were to activate the suspended sentence, he would serve considerable time in prison prior to his appeal hearing. If the appeal against the District Court conviction ultimately proved successful, it was argued that the basis for activation that he was unfairly being prevented from challenging would be incorrect, and his period in custody unjustified. It was also argued that under R. 28(a) of the Rules of the District Court the applicant was accordingly precluded from appealing his latter conviction until the issue of activation of his suspended sentence had been finalised, and this it was argued was unfair and unconstitutional."
9. On that basis he was granted leave to apply for judicial review seeking a number of declarations including a declaration of unconstitutionality. Having reviewed the arguments, and considered a number of authorities, the learned High Court Judge concluded that the provisions of s. 99(9) and (10) were unconstitutional. In the seminal work on Sentencing Law and Practice (3rd Ed., Round Hall), the learned author described the difficulties with s. 99(9) and (10) in the following way at para. 22 - 32: "The major problem with subss. (9) and (10) of s. 99 which eventually led to their being declared unconstitutional in Moore v. DPP was that the later court had to remand the defendant to the first court before imposing sentence; to do otherwise would be to act without jurisdiction. This gave rise to particular difficulties in the District Court. A person convicted in that court may appeal to the Circuit Court against conviction, sentence or both. Such an appeal is by way of rehearing, and entering into a recognisance to pursue an appeal operates as a stay on the District Court order. But an appeal may not be taken until sentence has been imposed. A person who is convicted of an offence in the District Court while subject to a suspended sentence imposed by, say, the Circuit Court had to be remanded to the latter court, in accordance with s. 99(9) for a determination on the revocation of the suspended sentence. If that sentence was revoked in whole or in part and the person was then immediately committed to custody but later succeeded in having the District Court conviction quashed on appeal, he or she might legitimately complain of having been wrongfully detained. The person had not, after all, been convicted of a further offence during the operational period of the suspended sentence. This led the High Court in Moore to conclude that subss. (9) and (10) were unconstitutional."
10. The passage referred to above from Sentencing Law and Practice highlighted the practical problem that arose in relation to the operation of the relevant sections. Obviously, there was a potential problem with the reactivation of a previously suspended sentence on the basis of a further conviction in circumstances where that subsequent conviction might be the subject of an appeal which could result in the latter conviction being quashed. In those circumstances clearly the basis of the revocation of the earlier suspended sentence would be unjustified.
Events following Moore v. DPP
11. Subsequent to the decision in Moore the appellant made an application for leave to seek, inter alia , an order quashing the order of the Circuit Court on the 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 said order and finally a declaration that the appellant is being held in unlawful detention by the Governor of Mountjoy Prison on foot of the committal warrant. It should be noted that while there was a challenge to the order providing for the five and a half year sentence in respect of Bill No. 99/2015, that was expressly not pursued at the hearing of this appeal.
Judgment of the High Court
12. The key question to be decided by the learned High Court Judge was the extent to which the declaration of invalidity of s. 99(9) and (10) could be applied retrospectively to persons who had the benefit of a suspended sentence which was subsequently revoked, by reason of further offending, in accordance with the provisions of s. 99(9) and (10).
13. The learned trial judge had regard to a number of well known authorities in which the question of the effect of a finding of invalidity could be applied retrospectively such as A. v. Governor of Arbour Hill Prison [2006] IESC 45 and Director of Public Prosecutions v. Cunningham [2012] IECCA 64. She also considered a number of cases in which the same question had to be decided following the finding of invalidity of the relevant provisions in Moore. Those 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.
14. Particular emphasis was placed on the case of Clarke referred to above and I will return to the judgments in that case later.
15. The learned trial judge relied on the authorities referred to above. She noted that there had been no challenge brought by the appellant in this case in relation to the constitutionality of the provisions of s. 99(9) and (10) and further that there was no objection raised on his behalf to the order made on the 22nd April, 2015 remanding him in custody for the purpose of a sentence hearing for, inter alia , the potential activation of the suspended sentence. At para. 57 of her judgment she concluded as follows:
"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'."
In those circumstances, the learned trial judge considered that she was bound by the Court of Appeal decision in Clarke and therefore refused to grant the relief sought in the proceedings.
Discussion
16. In making the application for judicial review in this case, the appellant sought to distinguish the facts of his case from those apparent in A. v. Governor of Arbour Hill Prison referred to above and in particular placed reliance on the decision in the case of DPP v. Cunningham . Reliance was placed on Cunningham to argue that the principles ascertainable from the decision in A. do not apply where finality has not been reached in criminal proceedings. It was pointed out that there has not been finality in this case given that the appellant had lodged an appeal to the Court of Appeal and until such time as his appeal has been disposed of, the proceedings have not reached finality. On that basis it was contended that the appellant was entitled to rely in these proceedings on the findings made in Moore . As pointed out previously, it is accepted on behalf of the appellant that the sentence of five and a half years in respect of the later offence is not now the subject of any relief in these proceedings albeit that there is a live appeal in respect of that sentence.
17. The starting point for a consideration of the issues arising in this case therefore is clearly the decision of this Court in the case of A. v. Governor of Arbour Hill Prison . In that case Mr. A. had been convicted in the Circuit Criminal Court on a plea of guilty of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935 and was sentenced to three years imprisonment. He sought release from custody pursuant to the provisions of Article 40.4.1° of the Constitution. He contended that his detention was unlawful on the basis that the Supreme Court on the 23rd May, 2006 in the case of C.C. v. Ireland [2006] 4 IR 1 found that s. 1(1) of the Criminal Law (Amendment) Act 1935 was inconsistent with the Constitution. The Supreme Court held that there was neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. It was not a principle of constitutional law that cases which have been finally decided and determined on foot of a statute which was later found to be unconstitutional must invariably be set aside as null and of no effect. Once finality had been reached and the parties had in each case exhausted their actual or potential remedies, the judicial decision must be deemed valid and lawful. In the course of his judgment in that case, Murray C.J. commented at para. 36 as follows:
"Judicial decisions which set a precedent in law do have retrospective effect. First of all the case which decides the point applies it retrospectively in the case being decided because obviously the wrong being remedied occurred before the case was brought. A decision in principle applies retrospectively to all persons who, prior to the decision, suffered the same or similar wrong, whether as a result of the application of an invalid statute or otherwise, provided of course they are entitled to bring proceedings seeking the remedy in accordance with the ordinary rules of law, such as a statute of limitations. It will also apply to cases pending before the courts. That is to say that a judicial decision may be relied upon in matters or cases not yet finally determined. But the retrospective effect of a judicial decision is excluded from cases already finally determined. This is the common law position ." (emphasis added)
He concluded his judgment by saying (para. 114 et seq.): "It follows from the principles and considerations set out in the cases, which I have cited, that final decisions in judicial proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a subsequent decision declaring the Act constitutionally invalid.
115. The parties have been before the courts. They have, in accordance with due process, had their opportunity to rely on the law and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.
116. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it contains a complete set of rules and principles designed to ensure 'an ordered society under the rule of law' in the words of O'Flaherty J."
He added at para. 117 the following comment: "I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unravelling of judicial decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle to the exclusion of all others."
18. Counsel on behalf of the appellant has made the observation that the reference in para. 116 of the judgment of Murray C.J. in the case of A. to "exceptional circumstances" appears to have had an influence on McDermott J. in the course of his judgment in Clarke which led him into error. It was pointed out that the reference to "exceptional circumstances" in the judgment of Murray C.J. is to circumstances when the "finality principle" will not be a bar to relief. In other words, it is only in exceptional circumstances that the finality principle will not apply. Therefore, the general proposition is that once a party to the proceedings has exhausted their remedies and the court decision is final then a subsequent declaration of invalidity or inconsistency with the Constitution will not avail that party. Insofar as this submission is concerned, I am satisfied that counsel for the appellant is correct in saying that the reference to "exceptional circumstances" by Murray C.J. is to circumstances when the "finality principle" will not be a bar to relief.
19. The second decision of importance in this regard is the case of The People (DPP) v. Cunningham . In that case Mr. Cunningham had been convicted on a number of counts of money laundering. The relevant evidence had been found during a search of his dwelling house on foot of a warrant pursuant to s. 29 of the Offences Against the State Act 1939 as amended (the Act of 1939). Following his conviction, Mr. Cunningham appealed against his conviction. His appeal was extant at the time that the Supreme Court in the case of Damache v. Director of Public Prosecutions [2012] 2 I.R. 266 was decided in which it was concluded that the procedure provided for in s. 29 of the Act of 1939, as amended, was repugnant to the Constitution. It was held in that case by the Court of Criminal Appeal that where there was a right of appeal provided by law, finality could not be said to attach to the decision of the court that was subject to that appeal unless and until the appeal had been concluded or no appeal had been taken within the time limited for doing so. It was also held that as the appeal remained extant and had not reached finality, Mr. Cunningham was entitled to rely upon a declaration of inconsistency made subsequent to his conviction. Further it was held that he was not debarred from relying on the declaration of inconsistency made subsequent to his conviction by reason of the fact that he did not himself institute proceedings seeking the said declaration. It was further held that a provision that had been declared unconstitutional was void ab initio from the date of its enactment, though any such invalidity crystallised only with a formal declaration of invalidity by which the law in question was judicially adjudged to be invalid or annulled. Such a finding must also apply to third parties outside the litigation seeking to impugn the relevant provision. That a finding of unconstitutionality applied only to persons who commenced litigation or their privies was inconsistent with existing jurisprudence and established practice. Finally, it was held that an applicant might be debarred by his own conduct from taking advantage of a finding of unconstitutionality in the event that he had acquiesced or benefited from or elected to proceed with a state of affairs that either directly or indirectly acknowledged the validity of the particular course of conduct or law that was subsequently put at issue. In coming to its conclusion in that case the Court of Criminal Appeal applied the decision of the Supreme Court in the case of A. v. Governor of Arbour Hill Prison.
20. The decisions in A. v. Governor of Arbour Hill Prison and The People (DPP) v. Cunningham are of significant importance in any consideration of the effect of a finding of invalidity of a statutory provision relevant to a conviction of a criminal offence.
Clarke v. The Governor of Mountjoy Prison
21. The decision in this case formed an important part of the consideration of the learned trial judge in this case and thus must be considered in some detail. It concerned an application for an inquiry pursuant to Article 40.4.2° of the Constitution of Ireland. Mr. Clarke pleaded guilty to a number of counts on three Bills of indictment. The indictments concerned a number of counts including counts of robbery and the possession of firearms amongst other things. On the first Bill, a sentence of five years imprisonment in respect of robbery and possession of a firearm was imposed. On the second Bill a sentence of eight years was imposed with the final seven years suspended. In respect of a further count on that indictment relating to possession of a firearm, Mr. Clarke was sentenced to seven years imprisonment all of which was suspended. The sentences on that Bill were said to be consecutive to that imposed on the first Bill. Finally, Mr. Clarke pleaded guilty to a further count of robbery for which a term of five years imprisonment with the final four years suspended was imposed. That sentence was also to be served consecutively to that imposed on the first Bill. Terms and conditions were imposed on Mr. Clarke in relation to the suspension of the relevant sentences. Having served the custodial element of the sentences, Mr. Clarke was released from custody in October 2013 but was, of course, subject to the conditions imposed in relation to the suspended elements of the sentences concerned. Subsequently during the period of suspension of the sentences previously imposed, and contrary to the conditions entered into as a condition of the suspension of those sentences, Mr. Clarke came before the District Court on the 9th September, 2014. He pleaded guilty to charges relating to incidents involving cars on the 10th February and the 2nd April, 2014 including driving without insurance or a licence, failing to produce documents when required and driving a vehicle with a bald tyre. He was remanded in custody by the District Court to Dublin Circuit Court on the 10th September, 2014 under the provisions of s. 99(9) and (10) for a determination as to whether the suspended portions of the sentences should be revoked. Ultimately, the application to revoke the suspended terms of the sentences concerned were determined by Judge McCartan in the Circuit Court on the 4th November, 2014. He reactivated all the sentences that had been previously suspended, directing that they should run concurrently from the 30th April, 2014. Mr. Clarke was then remanded back to the District Court on the 5th November, 2014 for the imposition of sentence in respect of the road traffic offences. A five month sentence of imprisonment, itself suspended, and a thirty year driving ban were imposed in respect of driving without insurance and the other charges were marked as having been taken into consideration.
22. A notice of appeal in respect of the sentences imposed on the 4th November, 2014 was lodged with the Court of Appeal on the 21st November, 2014. It was noted by the learned trial judge in Clarke that although an appeal was lodged with the Court of Criminal Appeal no grounds of appeal had been filed at the time of the hearing of the Article 40.4.2° application and it was accepted that the position was that the jurisdiction of the Court of Criminal Appeal had been invoked and accordingly that the appeal must be regarded as pending.
23. Given the judgment in Moore , Mr. Clarke sought to rely on the retrospective application of that decision to the facts of his case and thus he contended that he was unlawfully detained. Accordingly, he brought an application pursuant to the provisions of Article 40.4.2° as mentioned above.
24. The learned trial judge (McDermott J.) considered the jurisprudence to be found in cases such as A. v. Governor of Arbour Hill Prison and The People (Director of Public Prosecutions) v. Cunningham . He also referred to the cases of The State (Byrne) v. Frawley [1978] I.R. 326 and de Burca v. Attorney General [1976] I.R. 38 amongst others. Having reviewed the relevant authorities, he stated at para. 41 of the judgment as follows:
"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 and 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 the other circumstances of the case must also be considered."
25. A number of other authorities were considered by the learned trial judge, namely The Director of Public Prosecutions v. O'Connor [2014] IECCA 4, The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 and The People (Director of Public Prosecutions) v. Hughes [2013] 2 I.R. 619 all of which concerned the effect of the finding in Damache . Having reviewed those authorities, he concluded as follows at para. 51: The learned trial judge then considered the appellant's conduct and circumstances in that case and concluded at para. 58 as follow: "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 required that the declaration made in the Moore case should have a retrospective effect, much less the blanket effect suggested."
He concluded at para. 62 as follows: "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 s. 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."
In the circumstances, the learned trial judge in Clarke concluded that Mr. Clarke was detained in accordance with law.
26. The decision of the High Court in that case was then appealed to the Court of Appeal. Judgment was delivered by that Court on the 28th July, 2016 upholding the decision of the High Court and dismissing the appeal.
The judgment of the Court of Appeal in Clarke
27. Delivering judgment, Birmingham J. examined the judgment of the learned High Court judge. He referred at para. 20 and made the following observations:
"Much time has been spent on both sides of the Court addressing the significance of A. v. Governor of Arbour Hill Prison [2006] 4 IR 88, perhaps, more time than was strictly necessary as McDermott J. was clear that an appeal under s. 99(12) had been lodged and was still pending and that as a result the applicant was 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).
21. In effect, the judge in the High Court was satisfied that Mr. Clarke had won what might be described as the finality argument, but as he made clear at para. 41 of his judgment, he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of such a declaration or indeed that it must prevail in this application. The behaviour of the applicant and the other circumstances of the case also had to be considered. The applicant was in principle entitled to the benefit of the Moore decision, but the Court also had to inquire into, in the words of Henchy J. in The State (Byrne) v Frawley [1978] I.R. 326, whether by reason of other facts and circumstances the applicant had lost the competence to lay claim to the right guaranteed by the Constitution in the circumstances of the case."
The Court of Appeal then proceeded to consider the transcripts of the hearing before the Circuit Court and the ruling of the Circuit Court judge in the course of sentencing. Having done so the judgment continued at para. 30: "It seems to me that consideration of this issue by the Circuit Court expanded beyond the confines of subs. (10) and that the Court was having regard to all of the information that was emerging on foot of inquiries that it set in motion. I acknowledge that the Court did not indicate whether in doing so it was exercising its wider function under subs. (17) but it seems to me that the reading of the two transcripts would suggest that is what was happening. In forming that view I do not lose sight of the fact that the reference in subs. (10) to ‘unjust in all the circumstances of the case' makes clear that the Court when dealing with a matter under subs. (10) is not confined to a consideration of the facts of the triggering offence."
The Court continued at para. 31: "However, that notwithstanding, it seems to me that what happened here was that the Court decided to take a broader view as it was entitled to do under subs. (17). The relevance of this of course, is that it is not a precondition to the exercise of a subs. (17) jurisdiction that the person be brought before the court pursuant to subs. (9). Insofar as subs. (17) is a broad and general jurisdiction it seems to me that the route by which the appellant was brought before the Circuit Court is not material and that accordingly The State (Attorney General) v. Fawsitt and DPP (Ivers) v. Murphy line of authority is applicable. In these circumstances I would take the view that the appellant is not in unlawful custody and so would dismiss the appeal.
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."
In the circumstances, the Court of Appeal concluded that the reasoning of the High Court was compelling and that the appeal should be dismissed.
The People (DPP) v. Cunningham
28. It is relevant to point out that the precise issue that arose in Moore did not arise in the case of Mr. Clarke. Given his pleas of guilty in respect of both the original sentence and his plea of guilty in relation to the subsequent offence, he was not at risk of having a suspended sentence reactivated following his conviction on a subsequent offence in circumstances where the conviction on the subsequent offence might be overturned on appeal. Therefore, he was not someone who could have raised the precise point that arose in Moore in the course of the pending appeal. However, it has never been in dispute that at the time of the Moore decision, there was a pending appeal in respect of the sentences imposed on him. The position of the appellant in this case is the same. Thus, as is not in dispute, his appeals were not final and the question to be considered and decided by this Court is whether or not he is in some way debarred from relying on the decision in Moore as to the invalidity of the relevant sections of s. 99(9) and (10).
29. Both the High Court and the Court of Appeal in the Clarke case placed much reliance on the decision of this Court in The State (Byrne) v. Frawley [1978] I.R. 326. The facts of that case are set out in para. 39 of the judgment of the learned trial judge where it was stated as follows:
"The consequences for prior criminal trials of the Supreme Court's declaration that elements of the Juries Act 1927 were inconsistent with the provisions of the constitution in the de Burca case were considered in The State (Byrne) v. Frawley (cited above). In Byrne's case the prosecutor had been tried by a jury selected under the provisions of the Juries Act 1927 and was convicted and sentenced to seven years penal servitude. The conviction occurred in December 1975 and the decision in de Burca was delivered during the course of his trial. No point was taken in respect of this decision and the prosecutor proceeded with the jury which had been empanelled even though counsel for Byrne also acted in de Burca . Though he appealed to the Court of Criminal Appeal he did not raise the issue of the unconstitutional composition of the jury. Thereafter he applied for release under Article 40.4.2 on the grounds that he was not being detained in accordance with law thereby asserting the same rights which arose from the declaration of inconsistency made in de Burca . The Supreme Court rejected the application. Henchy J. (delivering the judgment of the court), stated that the applicant made an informed and deliberate decision to turn down the opportunity to challenge the composition of the jury during the course of his trial."
The learned High Court judge then quoted from the judgment and in particular a passage at p. 350 of the judgment of Henchy J.: Notwithstanding the clear position of this Court as set out in the judgment of Murray C.J. in A. v. Governor of Arbour Hill Prison to which reference has been made previously, the learned High Court judge in Clarke concluded that he was not satisfied that the finality argument must always prevail against all others in determining the retroactivity of a declaration of unconstitutionality. He was of the view that it was necessary for the behaviour of the applicant before the Court and the other circumstances of the case to be considered. That approach was endorsed by the Court of Appeal.
30. The decision of this Court in the case of A. v. Governor of Arbour Hill Prison made it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside solely by reason of the decision declaring the legislation concerned to be constitutionally invalid. As the Court said:
"Once finality had been reached and the parties have in the context of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful."
The logic of that approach is, to my mind, unarguable. Clearly, however a different approach can be discerned where finality has not been reached.
31. A singular feature of the discussion in the decision in A . is the effect of finality of proceedings notwithstanding a subsequent finding of unconstitutionality of legislation. Hardiman J. in the course of his judgment in that case, at para. 236 summarised the consequences of a finding of unconstitutionality by reference to a number of cases dealing with this issue and observed, inter alia , at sub-para. (3):
"(3) In applying the considerations mentioned in the preceding paragraph, '… it has been found that considerations of economic necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect be given in certain cases to transactions carried out under the void statute'.
(4) Such force and effect may have to be given '… because of a person's conduct or because of the irreversible course events have taken, or for any one of a number of other reasons…'; because '[t]he irreversible progressions and by-products of time, the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise void, into an acceptable part of the corpus juris' ; because '[q]uestions of rights claimed to have become vested, of status, of prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the statute and of its previous application, demand examination'."
Hardiman J. went on to consider the facts of the particular case and concluded at p. 189 as follows: "That passage puts part of the applicant's difficulties squarely. He has not been able to allege any departure from natural justice in the way he has been treated. He acknowledges his guilt and that his claimed release would be a 'windfall'. On the other hand, it must be manifest that his release would be a great injustice to others. But it is not necessary to decide the case on that basis. The applicant is here attempting to do what no one has done before: to set up a declaration based on the right of a third party in order to invalidate a past and closed transaction , his criminal trial. This cannot be done because, on the long established and unchallenged jurisprudence the trial and sentence are things which require to be given continued force and effect. The applicant's release would require a departure from that line of authority which I am satisfied there is no warrant for doing. I am satisfied, in other words, that the applicant is now and always has been detained in accordance with law." (emphasis added)
32. That brings me to a consideration of the decision in The People (DPP) v. Cunningham to which reference has been made previously. In that case, the Court of Criminal Appeal was dealing with an appeal from the appellant's conviction on ten counts of money laundering. A significant sum of money was found during a search of the appellant's dwelling house. A search warrant had been issued pursuant to the provisions of s. 29 of the Offences Against the State Act 1939 as inserted by s. 5 of the Criminal Law Act 1976. It was agreed between the parties on the hearing of the appeal that the validity of the warrant would be dispositive of the appeal against the conviction on count ten of the indictment. Count ten concerned the finding of the sum of Sterling £2,400,000 in the appellant's dwelling house. Before the appeal came on for hearing in the Court of Criminal Appeal, Denham C.J. gave judgment for the Supreme Court in the case of Damache v. The DPP, Ireland and the Attorney General . In that case, a declaration was granted to the effect that s. 29(1) of the Offences Against the State Act 1939 as amended was repugnant to the Constitution. The appellant had appealed his conviction some three years before the Supreme Court judgment in Damache and one of the grounds of appeal made reference to the status of the warrant. Two points were made, namely that the warrant was defective because it did not identify the appellant's residence as the place to be searched and further because it was "merely a 'colourable device' to avoid the necessity of making an application for a warrant to a judge". Subsequent to the decision in the Damache case the appellant in Cunningham brought an application for bail on the basis of the Damache case and lodged supplemental submissions relying heavily on that case. In addition, he sought liberty to amend the original grounds of appeal to rely expressly on the fact that s. 29 of the Offences Against the State Act was declared to be repugnant to the Constitution as a result of which evidence procured on foot of the warrant was unconstitutionally obtained and inadmissible in law. Leave was granted to amend the grounds of appeal as sought.
33. It appears that the question of the constitutionality of s. 29 was referred to in the appellant's first set of written submissions before the decision in Damache was handed down.
34. In the course of his judgment in that case, Hardiman J. considered the question of "finality". The State had argued in that case that the decision in respect of the appellant was final, a verdict having been given by the jury. This argument was rejected by the Court of Criminal Appeal when Hardiman J. said as follows at p. 20:
"The decision of the Circuit Court in this case is plainly still subject to review by this Court. It is accordingly not yet 'final'.
. . . In Dalton v. Minister for Finance [1989] ILRM 519 the Supreme Court per Finlay C.J. stated that 'It is of the essence of litigation that subject to a proper right of appeal , as provided by law, the judgment of a court is a final judgment'. (Emphasis supplied).
This, of course, is entirely consistent with the dictum of Murray C.J. in A. v. The Governor of Arbour Hill Prison , quoted above, that finality may be achieved on appeal or otherwise."
The Courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Chief Justice Finlay expressed it 'subject to a proper right of appeal as provided by law'. It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so."
35. Accordingly, the Court of Criminal Appeal rejected the submission of the State that the criminal case against the appellant was finally concluded by the verdict of the jury. It has to be said that in this case, the learned trial judge acknowledged the fact that there was an appeal extant, as did the High Court and the Court of Appeal in Clarke , and that it had not reached finality.
36. The Court in Cunningham went on to consider the effect of the finding on constitutionality on third parties such as the appellant in that case. An argument was made to the effect that the appellant should not be allowed to raise the issue given that he had not commenced proceedings challenging the constitutionality of s. 29 either before or even after his conviction and therefore was debarred from obtaining the benefit of the decision in Damache . Thus, the Court in that case considered whether the appellant was debarred from relying on Damache . The Court considered this issue under two headings, namely whether he was debarred from his own conduct from relying on Damache and secondly the question of retrospective or alternatively, the prospective application of the finding of unconstitutionality. In the context of the question of debarring by his own conduct the Court considered a number of authorities, namely Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. Governor of Arbour Hill Prison [2006] 4 IR 88. As Hardiman J. pointed out:
". . . these were all cases where the applicant had either acquiesced, in or benefited from, or elected to proceed with, a state of affairs which either directly or indirectly acknowledged the validity of the particular course of conduct or law which was subsequently put at issue."
37. As none of those factors were present in the case of the appellant in the Cunningham case, it was concluded that he was not debarred by his conduct from taking advantage of the finding of unconstitutionality.
38. The second issue considered by the Court in Cunningham was the effect of a declaration of unconstitutionality. The Court reviewed a number of authorities in that regard including Murphy v. The Attorney General [1982] I.R. 241, McDonnell v. Ireland [1998] 1 I.R. 134, and stated:
"Yet, once that invalidity does crystallise with a declaration of unconstitutionality, it is plain so far as the State, society and the citizenry is concerned that the law in question is no longer operative: see in this regard the comments of O'Flaherty J. in McDonnell ([1998] 1 I.R. 134, 143). It is inherent in the principle of unconstitutionality contained in Article 15.4.2 that any such declaration has erga omnes effect. In other words, such a declaration is not merely confined to a specific judicial ruling of unconstitutionality inter partes which binds third parties simply and only by reason of the doctrine of precedent and the fact that the earlier ruling will (in all probability) be applied in future similar cases."
Reference was also made to the decision in the case of Muckley v. Ireland [1985] I.R. 472. The Court concluded at p. 38 of the judgment: "The key point here is that all of this - i.e., either the enactment of s. 21 of the Act of 1980 or the decision in Muckley itself - would have been quite unnecessary had the position been as Mr. O'Connell urged. It follows, therefore, that, in principle, at least the accused can claim the benefit of Damache unless the criminal proceedings have been finalised."
39. Muckley was a case which resulted from the decision of the Oireachtas to enact legislation to deal with the outcome of the Murphy v. Ireland tax case in relation to the income of married couples.
40. Thus it is clear from the decision of the Court of Criminal Appeal in Cunningham that a third party can benefit from the finding of unconstitutionality notwithstanding that they themselves have not sought to challenge the constitutionality of the legislation at issue themselves in their proceedings provided that he or she is not estopped from relying on the finding of invalidity by factors such as those identified in the cases of Corrigan , Byrne and A. referred to above and providing of course, that the proceedings have not been finalised. Indeed, the Court of Criminal Appeal emphasised that in saying that:
". . . absent a knowing and deliberate election - such as, in Byrne , deliberately electing to proceed with an unconstitutional jury - we do not think that the fact an accused can be faulted if he or she elects to proceed in the first instance by means of an appeal to this Court."
In other words, the fact that someone has not themselves raised an issue as to the unconstitutionality of a particular piece of legislation is not, of itself, something that will amount to an election to proceed with the proceedings notwithstanding the possibility that the particular process or procedure provided for by the legislation is unconstitutional.
41. The Court of Criminal Appeal in the case of Cunningham concluded as follows:
"For the reasons set out above, we are satisfied that the appellant is entitled to invoke the judgment of the Supreme Court to the effect that s.29(1) of the Offences Against the State Act, 1939 is inconsistent with the Constitution. This is primarily because his appeal to this Court was extant at the time of the delivery of that judgment on the 23rd February, 2012. We are also of the view, again for the reasons set out above, that the appellant is not debarred from relying on the judgment in the Damache case by reason of the fact that he did not himself institute proceedings to have s.29(1) declared unconstitutional."
42. The Court in that case went on to say that they would not comment on situations that would arise in other circumstances. One could indeed envisage a situation where a party who had pleaded guilty to an offence could have been precluded from relying on Damache in relation to the validity of a search warrant in circumstances where they had pleaded guilty to the offence or had accepted the validity of the search warrant in the course of trial. An example of such a situation arose in the case of DPP v. O'Connor [2014] IECCA 4, a decision of the Court of Criminal Appeal referred to by McDermott J. in Clarke . Mr. O'Connor sought to rely on the Damache decision in the course of an application to amend the Notice of Appeal to add, inter alia , a ground based the finding of unconstitutionality in Damache . He was permitted to add the ground and judgment was delivered refusing the appeal on the 23rd January, 2014. He then made an application for leave to appeal pursuant to s. 29 of the Courts of Justice Act 1924. McKechnie J. at para. 28 of the judgment said: "…it will be recalled that when the prosecution indicated its intention of calling the relevant evidence with regard to the validity of the s.29 warrant, Counsel on his behalf immediately placed on the record that he was in a position "to concede that Sgt. Grant …applied for a search warrant in accordance with law,…" and that he adopted this course so as to release unnecessary witnesses to prove "the kind of formality" which would be involved. This can only be described as an express declaration of the appellant's stated position on the issue at that time, a position which the Court does not criticise….It would, in this Court's view, be entirely inconsistent with that stance to permit him now in effect to reverse his position in such a diametric way and to argue that his arrest and detention were unlawful. The situation as it had been had moved irreversibly by the end of the trial, and even though an extant appeal remains, the consequences therefrom cannot be undone."
In the circumstances the application pursuant to s.29 was refused.
43. The position in this case is that the appellant sought judicial review by way of certiorari in order to quash the order of the Circuit Court whereby the appellant's three year custodial sentences together with the two six month concurrent sentences were activated following the commission of the subsequent offence by the appellant. This is not a case where the appellant's proceedings are finalised. His appeal remains outstanding. It is correct to say that he could not have relied on the point that arose in Moore given that he pleaded guilty to the first offences at issue and also to the triggering offence. Nevertheless, as the criminal proceedings have not been finalised as an appeal is extant, could he be debarred from relying on the finding of invalidity of s. 99(9) and (10) made in Moore in the course of his appeal?
44. The learned trial judge placed reliance on the decision of the High Court and the Court of Appeal in Clarke which, in turn, relied on, inter alia , the decision in The State (Byrne) v. Frawley [1978] I.R. 326 to argue that one could be debarred from relying on a finding of unconstitutionality by reason of conduct. I have set out above the circumstances of that case and undoubtedly, there are circumstances in which one might be debarred from relying on a finding of unconstitutionality, one such circumstance being the fact that the case concerned has reached finality It is important to bear in mind, that the proceedings in Byrne had in fact reached finality. Secondly, the issue that was subsequently relied on and which gave rise to the finding of invalidity related to the composition of the jury panel which flowed from the findings as to the inconsistency of provisions of the Juries Act 1927 with the provisions of the Constitution as found in de Burca . As was pointed out previously, the decision in de Burca was given in the course of the trial of Mr. Byrne. Mr. Byrne raised no issue in the course of his trial as to the validity of the jury and the panel from which it was selected to try him notwithstanding the decision in de Burca and following his conviction, he did appeal but did not raise any ground in relation to the composition of the jury. It was only after his unsuccessful appeal that he sought to raise an issue as to the composition of the jury by means of an application pursuant to Article 40.4.2°. In those circumstances there is nothing surprising in the fact that Mr. Byrne by his conduct was deprived of the right to argue the issue of unconstitutionality. The conduct at issue in cases such as Byrne is very much related to the tactical decisions made in the course of the trial and, in that case, in the subsequent appeal. Mr. Byrne had an opportunity to challenge the composition of his jury following on from the decision in de Burca and chose not to do so.
45. A similar question arose after the finding of unconstitutionality of s. 29 of the Offences Against the State Act in Damache as described in the case of O'Connor which is referred to above. A further example is the case of DPP v. Bolger [2013] IECCA 6. No formal objection was taken to the legality of the search warrant in that case. The Court of Criminal Appeal in it's judgment (Denham C.J. ) observed:
"Once a strategy has been taken by an accused in a trial, then another approach may not be taken on appeal."
46. Thus, I think that there can be no doubt that a defendant who adopts a particular course of conduct or strategy in the course of a criminal trial or could be said to have acquiesced in a particular course cannot adopt a different approach on appeal to make an argument that was not made in the court of trial or which is inconsistent with the approach taken in the court of trial to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.
47. It is important to emphasise that the type of conduct which is at issue relates to the conduct or strategy adopted in the course of the proceedings. Thus, in the cases of O'Connor and Bolger, the conduct at issue was the approach taken in the course of the trial to the question of the validity of the search warrant. The parties in those cases were not allowed, following the Damache decision, to do a volte face in relation to the validity of the search warrants concerned. Such conduct will preclude a party from relying on a subsequent finding of unconstitutionality, albeit that finality has not been reached by reason of the fact that an appeal is outstanding.
48. I have already set out the conclusions of the learned trial judge in this case at para. 57 of her judgment. It seems to me that in looking at the conduct of the appellant and the issue of acquiescence, the emphasis was to a large extent on the conduct of the appellant by reference to "the merits" of the case. Accordingly, she concluded by following the decision in Clarke , that the appellant was not entitled to the relief sought.
49. I find it impossible to reconcile that conclusion of the learned trial judge with the decision of this Court in cases such as A. v. Governor of Arbour Hill Prison and indeed, the decision of this Court in The State (Byrne) v. Frawley . It is undoubtedly the case that on the 18th May, 2015 the Circuit Court dealt in good faith with the appellant in accordance with the law as then understood to be applicable. No one at that stage doubted the validity of s. 99(9) and (10). However, the decision in Moore changed that understanding of the law. There was a finding of invalidity.
50. None of the factors identified in cases such as A ., Byrne , Cunningham , Bolger or O'Connor are present on the facts of this case. The appellant did not adopt any strategy or engage in any conduct in the course of the proceedings which could debar him from relief. Further, he did not acquiesce in a process which he knew or understood to be unconstitutional. The process by which he was brought back before the Court to have the original suspended sentence revoked has been found to be unconstitutional. It is not so much a question of examining the merits of the particular facts and circumstances of the applicant and the offence concerned to decide whether or not he is entitled to rely on the finding of invalidity. Rather, it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if, by reason of any steps taken, the individual is debarred from relying on the finding of invalidity. There is no apparent reason why the appellant could not rely on that finding of invalidity. For those reasons, I am satisfied that there has been a want of due process of law in that the learned Circuit Court judge lacked jurisdiction to revoke the suspended sentence at issue by reason of the method by which the appellant was brought before the Court and that he is entitled to the relief sought.
51. For completeness I want to make reference briefly to the decision of this Court in the case of C v. Minister of Social Protection & Anor . [2018] IESC 57 in which judgment was delivered on the 28th November, 2018. As can be seen by the date of the delivery of judgment the decision in C was given subsequent to the hearing of the appeal by this Court in this case. That case arose in the context of a civil claim. I have had the opportunity of reading in draft form the judgment of Finlay Geoghegan J. in these proceedings in which she comes to a different conclusion on the outcome of this appeal. In the course of her judgment she has referred to the decision in C and cited in particular a number of passages from the judgment of O'Donnell J. (with which the majority of the Court in that case concurred). Having referred at para. 35 of his judgment to the decisions in A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , he observed at para. 37 as follows:
"These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues."
52. As can be seen from the discussion above, it follows that as has been said before, that there is no automatic rule of consequential invalidity and that as O'Donnell J. noted, certain matters may preclude reliance on any invalidity subsequently established. The extent to which someone may be debarred from relying on the finding of invalidity is something which will depend on the circumstances of any given case. In the earlier discussion in the course of this case, a number of circumstances have been referred to which will have a bearing on such a consideration. It is not necessary to refer to those authorities again. Suffice it to say, a finding of unconstitutionality in respect of legislation which has a bearing on criminal proceedings does not mean that steps taken in reliance on the legislation subsequently found to be unconstitutional will necessarily render the criminal proceedings invalid. A variety of factors will require to be considered as can be seen from the case law discussed above.
53. I indicated previously that I would return to the issue of s. 99(17) of the Act. The terms of s. 99(17) have been set out above. There is no doubt that the provisions of s. 99(17) have not been affected by the finding of unconstitutionality in Moore and that it is open to a court to consider the activation of a suspended sentence as provided for in that sub-section. It might be observed that the provisions of s. 99(9) and (10) were procedural in nature in that they set out the steps that had to be taken for a person to be brought before the court and the sequence in which sentencing was to be carried out following a subsequent "trigger" offence. Those procedures are no longer valid but that does not preclude a matter being brought back before the appropriate court for consideration of the question as to whether or not a suspended sentence should be revoked. There is no reason why that cannot be done in the event of a breach of the terms upon which the suspended sentence was imposed, if appropriate. In that regard, it is important to bear in mind the provisions of s. 99(13) and (14) which make provision for members of the Gardaí, prison governors, probation and welfare officers where there are reasonable grounds to believe that a person has contravened the condition(s) attached to a suspended sentence to apply to the Court to fix a date for the hearing of an application for an order revoking the suspension.
54. It should be noted that in this case, the challenge brought to the sentence of five and a half years imposed on the appellant in respect of the offence of dangerous driving causing death has not been pursued. Having said that, it should be borne in mind that that sentence was imposed in circumstances where the learned Circuit Court judge had regard to the earlier sentence and thus had regard to the principles of proportionality when reactivating the earlier sentences and imposing the sentence of five and a half years. In other words, the sentence of five and a half years was one which was arrived at having taken into account the fact that the suspended sentences of three years together with concurrent sentences of six months were being reactivated. In circumstances where this Court is of the view that it is appropriate to quash the orders of the Circuit Court revoking the suspended sentences, it may be considered appropriate to consider the question of remitting the issue of sentence in respect of those offences back to the Circuit Court for further consideration. It is a matter for the DPP to consider whether or not she wishes to do this having regard to the provisions of s. 99(17). The Court will hear the parties further on the question of remission.
Conclusion
55. By way of a brief conclusion:
(i) The decision of this Court in A. v. Governor of Arbour Hill Prison makes it clear that a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside by reason of the decision declaring the legislation concerned to be constitutionally invalid.
(ii) A defendant who adopts a particular course of conduct or strategy in the course of a criminal trial cannot adopt a different approach on appeal to make an argument that was not made in the court of trial (or which is inconsistent with the approach taken in the court of trial) to take advantage of a finding of unconstitutionality made during or after the trial but before an appeal has been concluded.
(iii) It is not a question of examining the merits of the particular facts and circumstances of an applicant and the offence concerned to decide whether or not an individual is entitled to rely on the finding of invalidity. Rather it is a question of looking at the conduct of the proceedings and the decisions taken in the course of those proceedings to see if by reason of any steps taken, the individual is debarred from relying on the finding of invalidity.
56. In all the circumstances, and for the reasons set out above, the Court will allow the appeal.
Judgment of Ms. Justice Finlay Geoghegan delivered on the 20th day of December, 2018.
1. This appeal is from a refusal of the High Court (Faherty J.) delivered on 16 June 2017 ([2017] IEHC 391) of an application primarily for an order of certiorari quashing an order made by Her Honour Judge Mary Ellen Ring (as she then was) in the Circuit Court on 18 May 2015 on Bill No. 298/2012 and other consequential reliefs. The order made by the Circuit Court on that day was:-
"THE COURT HEREBY ORDERS in accordance with Section 99(10) of the above-mentioned Act [Criminal Justice Act 2006] that the suspension of the sentence of this Court aforementioned be revoked and that the accused shall serve "the entire of the period of imprisonment originally imposed by this Court" being a sentence of three years on Count No 1 and six months on each of Counts 6 and 7 such sentences to run concurrently and to date from the 27th day of January 2015."
2. Dunne J. has set out in full both the factual and legal context in which this appeal arises. I adopt same with gratitude. I only wish to record in summary the following facts, which are relevant to my conclusion on the legal issues.
3. The appellant pleaded guilty to charges on Bill No. 298/2012 on 18 February 2013. He was sentenced by Her Honour Judge Ring on 14 November 2013. The custodial sentences imposed were suspended in full for 3 years. Unfortunately, on 29 May 2014, the appellant was the driver of a vehicle which was involved in a serious accident, as a result of which one of his passengers died and another was seriously injured. The appellant was subsequently charged in respect of that incident on Bill No. 99/2015 on two counts, the second of which was a charge of dangerous driving causing death and serious bodily harm.
4. The appellant was himself injured in the accident. Following charge, he went into custody on those charges on 27 January 2015.
5. On 22 April 2015, the appellant was arraigned before the Circuit Court (His Honour Judge Nolan) and pleaded guilty to Count 2 on Bill No. 99/2015. He was remanded in custody to appear before Her Honour Judge Ring on 18 April 2015 for the purposes of sentencing on Count 2 on Bill No. 99/2015. A nolle prosequi was entered on Count 1.
6. The Circuit Court was informed of the prior suspended sentences and an order made remanding him to appear before Her Honour Judge Ring on the following day on Bill No. 298/2012. Whilst not referred to in the Circuit Court order, it is not in dispute that this order was made pursuant to s. 99(9) of the Criminal Justice Act 2006 ("the 2006 Act").
7. On 23 April 2015, Judge Ring adjourned the s. 99 matter to 18 May 2015 for "s. 99 re-entry". The accused was remanded in custody.
8. The Court has had access to the transcript of the hearing before Judge Ring on 18 May 2015 and her ruling on the sentencing on Bill No. 99/2015 and on the re-entry of Bill No. 298/2012. I will refer in greater detail to this below as it is relevant to the conclusions which I have reached.
9. In summary, the position of the appellant before Judge Ring on 18 May 2015 was as follows:-
10. On 18 May 2015, in relation to Bill No. 298/2012 the Circuit Judge purported to exercise a jurisdiction under s. 99(10) to revoke in full the suspension of the custodial sentences imposed in 2013. On Bill No. 99/2015, the Circuit Court imposed a custodial sentence for a period of five years and six months on Count 2 "…such sentence to date from the lawful termination of the re-activated sentence of three years on Count 1 and 6 months on each of Counts 6 and 7 this day imposed on Bill No. 298/2012".
11. On 20 May 2015, the appellant, in person, lodged a notice of appeal against his sentence only. He refers to the sentence as being one of "eight and a half years". It is clear that he was appealing against the sentences imposed in respect of Bills No. 298/2012 and 99/2015. The grounds of appeal are simply "I feel this sentence was to [sic] harsh as it was an accident and other sentences for the same charge have been a lot more lenient".
12. On 19 April 2016, in Moore & Ors v. D.P.P. [2016] IEHC 244, Moriarty J. declared sub-ss. 99(9) and (10) of the 2006 Act to be unconstitutional.
13. Leave was granted in these judicial review proceedings on 9 May 2016.
14. The essential and simple point made on behalf of the appellant in the High Court and this Court is that the effect of the declaration of unconstitutionality of subss. 99(9) and (10) is that they are void ab initio and in consequence, Her Honour Judge Ring did not have the statutory power which she purported to exercise on 18 May 2015 to revoke the suspension of the custodial sentences imposed in respect of Bill No. 298/2012.
15. The High Court rejected the application for judicial review in reliance in particular upon the judgments of the High Court and Court of Appeal in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278 and [2016] IECA 244 and in Foley v. Governor of Portlaoise Prison [2016] IEHC 334 and [2016] IECA 411 and upon other judgments of the High Court on applications affected by the declaration of unconstitutionality in Moore .
The Law
16. Dunne J. has set out with great clarity and detail the law in relation to the consequences of declarations of invalidity of statutes pursuant to Article 15 of the Constitution and in particular the consequences of such declarations for criminal proceedings.
17. The consequences for acts which are carried out pursuant to legislation declared unconstitutional have been considered most recently in judgments delivered by the Supreme Court in C. v. Minister for Social Protection [2018] IESC 57 on 28 November 2018, albeit in the context of a civil claim. In referring to this decision, I am not seeking to suggest that the consideration given in the majority judgments to the earlier cases relied upon by the parties in this appeal in relation to the consequences for criminal proceedings differs in any way from the law at the date of hearing the appeal, but I do believe that the judgments in C. helpfully summarise some aspects of the position. O'Donnell J. in his judgment (with which a majority of the Court concurred) commences a consideration of a number of prior decisions including The State (Byrne) v. Frawley [1978] I.R. 326 and A. v. The Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, by stating at para 31:-
"31. In a number of important cases, this court has held that while the general rule is that a declaration of invalidity will also render null and void actions taken on foot of the impugned provision, the declaration of invalidity did not always necessarily nullify transactions or steps taken or even convictions arrived at on the basis of, or pursuant to procedures established, by legislation subsequently declared invalid."
18. Later, having referred to de Burca v. Attorney General [1976] I.R. 38 and its subsequent application in The State (Byrne) v. Frawley , he concluded in relation to the latter at the end of para. 34:- "…The case therefore established an important and more broad-ranging, principle. Although a person convicted must be able to challenge a conviction on the grounds of the unconstitutionality of the legislation creating the offence, or controlling the mode of trial, and if successful the conviction would be quashed. It did not follow that such a conclusion must be reached in all cases for all those affected, even those whose factual circumstances may be identical to those of the successful claimant. This was a far-reaching decision, the implications of which were not necessarily recognised at the time."
And continued at para. 35:- "35. Although the decision that any person convicted by a jury empanelled under the 1927 Act could not challenge their conviction might now sit comfortably with the well-known decision of this court in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, that final convictions cannot be challenged on the basis of a subsequent determination of invalidity of a legislative provision, it is important to recognise it was not decided on that basis. Instead, it was treated as a case where the plaintiff was precluded from asserting, and could not benefit from, the invalidity even when such invalidity had already been established by the same court. It is notable that the proceedings in State (Byrne) v. Frawley [1978] I.R. 326 were State-side proceedings seeking an order of certiorari quashing the conviction, but that the conviction itself was separately under appeal. The decision of the court suggests emphatically, however, that if the point had been raised on the appeal, it would not have availed the applicant there either, even though the proceedings had not been concluded, and the conviction could not be treated as final, and thus falling within the principle established by A. v. Governor of Arbour Hill Prison. The decision of the Supreme Court in State (Byrne) v. Frawley is therefore clear authority that there is no absolute rule that once the constitutional invalidity of legislation is established, that all steps taken under it must be treated as a nullity.
36. The decision in A. v. Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88, discussed in more detail in the judgment of MacMenamin J., is a more elaborate treatment of the issue generally. That case established that even in the area of criminal law, the finding that a criminal offence, in that case created by the Criminal Law (Amendment) Act 1935, was inconsistent with the Constitution, did not mean that a person imprisoned on the basis of the conviction for that offence, could assert the nullity of the conviction, and claim release.
37. These cases are very important, since they establish beyond question that there is no automatic rule of consequential invalidity, and that certain matters, such as the finality of a conviction, or the failure to take a challenge, may preclude reliance on any invalidity subsequently established. However, both these cases occurred in the field of criminal law and involved attempts by a third party to claim the benefits of an invalidity established in other proceedings. Here, it is the appellant who has succeeded, and who claims for what he contends is consequential relief in the self- same proceedings, which are civil in nature. This, therefore raises slightly different issues."
Issue for Decision
19. I am in agreement with Dunne J. that on the facts of this appeal the issue which has to be decided, as she puts it at para. 41 of her judgment, is whether the appellant could "be debarred from relying on the finding of invalidity of subss. 99(9) and (10) made in Moore in the course of his appeal". The appeal being referred to is, I understand, the appeal against sentence to the Court of Appeal, which remains pending.
20. As appears from the judgment of Dunne J., the identification of the question arises from the principles contained in the judgments of this Court in inter alia The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison and judgments of the Court of Criminal Appeal in The People (D.P.P.) v. Cunningham [2012] IECCA 64, [2013] 2 I.R. 631 (" D.P.P. v Cunningham "), The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 (" D.P.P. v Bolger ") and The Director of Public Prosecutions v. O'Connor [2014] IECCA 4 (" D.P.P. v O'Connor ").
21. Each of the above decisions of the Court of Criminal Appeal concerned whether the appellant in question was entitled to rely in his appeal upon the declaration of unconstitutionality of s. 29 of the Offences Against the State Act 1939, as inserted by s. 5 of the Criminal Law Act 1976, issued by the Supreme Court in Damache v. Director of Public Prosecutions [2012] IESC 11, [2012] 2 I.R. 266 (" Damache "). The purpose of doing so in each appeal was to challenge the validity of a warrant issued under s. 29 and hence the admission at trial of evidence obtained thereunder. In each case, the appellant had pleaded not guilty to the offences, had been convicted in advance of the judgment in Damache and had an appeal pending against conviction at the time the judgment in Damache .
22. These proceedings are judicial review proceedings. However, I am in agreement with Dunne J. that the entitlement of the appellant to an order of certiorari in the judicial review proceedings is dependent on the answer to the question as to whether he would be entitled to challenge the order made by the Circuit Court that the suspension of the sentence imposed on the 14 November 2013 on Bill No. 298/2012 be revoked and that the appellant serve the entire of the period of imprisonment originally imposed by the Court, on the ground that the Circuit Judge had no jurisdiction to make the order by reason of the invalidity of subss. 99(9) and (10) of the 2006 Act. This appears to follow firstly from the fact that orders made under the invalid subsections are not automatically rendered null and void. Second, from the clear principle from A. v. Governor of Arbour Hill Prison that if criminal proceedings are finally concluded then final convictions (and sentences) cannot be challenged upon the basis of a subsequent determination of invalidity of a legislative provision. Third, from a comparison of the position of the appellant in these proceedings with a person in exactly the same position as at the date of the judgment in Moore , save that he had not lodged an appeal against the severity of sentence as the appellant had done. Such a person, if he commenced judicial review proceedings similar to those commenced by the appellant, would fail in accordance with the decision in A. v. Governor of Arbour Hill Prison .
23. Accordingly, it is the existence of the appellant's appeal that permits him to argue that his criminal proceedings have not reached finality. The appellant pleaded guilty to the 2012 offences and the 2015 offences and obviously lodged no appeal against conviction and hence, his convictions have reached finality. It is only the custodial sentences imposed on 18 May 2015 which are not final.
24. The judgments of the Court of Appeal in D.P.P. v Cunningham , D.P.P. v Bolger and D.P.P. v O'Connor are helpful in identifying the extent to which the criminal proceedings which have been determined in the Circuit Court but where there is an extant appeal are not finally determined and also in identifying the principles according to which an appellant may be entitled in his appeal to rely upon a relevant declaration of invalidity of legislation made subsequent to the decision of the Circuit Court appealed against. D.P.P. v Cunningham is of particular assistance to the first of these questions.
25. In D.P.P. v Cunningham , the Court of Criminal Appeal (Hardiman, Moriarty and Hogan JJ.), in a judgment delivered by Hardiman J. on 11 May 2012, considered a submission made on behalf of the Director that the verdict of the jury convicting the applicant was itself final, notwithstanding the existence of an appeal and hence, in accordance with the judgments in A. v. Governor of Arbour Hill Prison , the Damache declaration of invalidity could not be relied upon as a ground of appeal. That submission was rejected. Hardiman J., having referred to A. v. Governor of Arbour Hill Prison and to the then relevant constitutional and statutory provisions relating to the Supreme Court and the Court of Criminal Appeal, stated at para. 51:-
"51. The courts whose decisions are thus invested with finality and conclusivity are the Supreme Court and the Court of Criminal Appeal, both primarily appellate courts. The finality attaching to the judgments of other courts are, as Finlay C.J. in Dalton v. Minister for Finance [1989] 1 I.L.R.M. 519 expressed it, at p. 273,"subject to a proper right of appeal as provided by law". It therefore appears that where there is (as in this case) a right of appeal provided by law, finality cannot be said to attach to the decision of a court which is subject to that right of appeal unless and until the appeal has concluded or no appeal has been taken within the time limited for doing so."
26. In D.P.P. v Cunningham , during the trial in the Circuit Court, counsel for the accused had challenged the validity of the warrant issued under s. 29(1) of the Act of 1939 on grounds other than the Damache point. He had never, accordingly, accepted the validity of the warrant.
27. On the facts of D.P.P. v Cunningham , the Court concluded ultimately that the appellant was not precluded from relying upon Damache in his appeal. The Court at para. 71, having referred again to A. v. Governor of Arbour Hill Prison and The State (Byrne) v. Frawley , then stated:-
"71. … None of these factors particular to cases such as Corrigan v. Irish Land Commission [1977] I.R. 317, The State (Byrne) v. Frawley and A. v. Governor of Arbour Hill Prison [2006] IEHC 169, [2006] IESC 45, such as election, acquiescence and estoppel by conduct, apply to the position of the present applicant. It can thus be said that the present applicant is not debarred by his own conduct from taking advantage of the finding of unconstitutionality.
28. Next, in D.P.P. v Bolger , the Court of Criminal Appeal (Denham C.J., DeValera and McGovern JJ.) in a judgment delivered by Denham C.J. on 14 March 2013, reached on its facts the opposite conclusion. On the facts of that case, there had been no formal challenge to the legality of the search warrant during trial, nor would it appear that any reference was made to the possibility of any infirmity in the legislation unlike in two other cases, The People (Director of Public Prosecutions) v. Kavanagh & ors [2012] IECCA 65, and The People (Director of Public Prosecutions) v. O'Brien [2012] IECCA 68, to which reference was made.
29. The Court, having referred to the now well known passage from Murray C.J. in A. v. Governor of Arbour Hill Prison in relation to finality, then stated from para. 20:-
"20. The finality of a trial is at its conclusion. In this case the applicant's appeal was pending and so it had not reached finality. Thus, applying this principle the Court permitted the applicant to raise and argue the Damache case.
21. However, there is another relevant principle which is also applicable, that relates to the issues which may be raised on an appeal.
22. This court hears an appeal from a trial. After a trial an accused has a right of appeal. However, the issues which may be raised on appeal relate to those raised at the trial. That is the applicable general principle. However, as is clear from our jurisprudence, if there has been demonstrated some error of substance, such as to ground an apprehension that a real injustice has occurred, and an explanation as to why the point was not taken, then the Court may permit a point not made at trial to be argued on appeal.
23. In The People (Director of Public Prosecutions) v. Cronin (No. 2) [2006] IESC 9, [2006] 4 IR 329, referred to as Cronin (No. 2), Kearns J. (as he was then) stated at 346, paragraph 46:-
"It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner."
There was re-enforcement of this point in State (Director of Public Prosecutions) v. O'Regan [2007] IESC 38, [2007] 3 IR 805 at 821, paragraphs 55 to 56, where Kearns J. stated:
24. Thus, in general, in deciding whether an issue may be raised on appeal, it is necessary to consider the trial to see if the matter was raised and, if so, whether there was a decision by the court of trial."
30. Later in the judgment, the Court summarised these principles at para. 34 and identified that, by reason of the failure to raise the issue at trial, " prima facie this is not a case where the Damache decision may be raised". However, the Court then indicated that it heard submissions on the evidence obtained pursuant to the s. 29 warrant, and the other grounds of appeal, to determine if a fundamental injustice had been done or there existed a reasonably explained substantial error leading to an apprehension of real injustice. It concluded on the facts that this was not the case. It thus appears from D.P.P. v Bolger that it is not sufficient for an appellant simply to establish that there is a pending appeal so as to entitle that person to raise a ground of appeal in reliance upon a declaration of invalidity of a statute, subject to the finalisation of the criminal proceedings in the Circuit Court. He must also be able to satisfy the Court that, in accordance with the Cronin No. 2 principles, they are entitled to raise the relevant issue on appeal.
31. In the third of the judgments of the Court of Criminal Appeal, The Director of Public Prosecutions v. Paul O'Connor (Unreported, Court of Criminal Appeal, McKechnie J., 4th February, 2013) the Court (McKechnie, DeValera and McGovern JJ.) refused permission to allow the appellant to rely upon the Damache point. The main points of that judgment are set out in a subsequent judgment of the same court in D.P.P. v O'Connor refusing a certificate under s. 29 of the Courts of Justice Act 1924. As appears from paras. 8 to 13 of the later judgment, the Court considered it rejected the application to argue the Damache point on appeal on two separate grounds, one that it had not been raised at trial and secondly, that a concession made by counsel on behalf of the accused that the search warrant had been applied for in accordance with law and granted in accordance with law precluded the applicant from taking an inconsistent approach on appeal.
Hearing of 18 May
32. I now turn to the approach taken by the appellant, through his counsel, at the hearing on 18 May 2015 before Her Honour Judge Ring. No challenge was made to the jurisdiction of Judge Ring to deal both with the re-entry pursuant to s. 99 of the matters on Bill No. 298/2012 and sentencing on Bill No. 99/2015. The appellant could not, of course, on the facts of his case, have raised the type of constitutional objection to s. 99(9) & (10) which was raised in Moore. However, in my view nothing turns on that fact in particular. In accordance with D.P.P. v Cunningham, if an objection had been made to the jurisdiction of the Circuit Judge to deal with both matters on the day or if there had been an objection to the fairness of procedures, then it may well be that the appellant should be entitled to raise grounds on appeal in relation to the decision to lift the suspension of the sentences on Bill No. 298/2012, which would include a lack of jurisdiction of the Circuit Judge by reason of the invalidity of subss. 99(9) and (10).
33. However, factually, matters went further than a simple absence of any objection. The High Court judge at para. 55 of her judgment concluded that the appellant had submitted to the jurisdiction of the Circuit Court and "acquiesced" in the exercise by the Circuit Court of its jurisdiction under ss. 99(9) and (10), either by the order of 22 April 2015, or at the hearing on 18 May 2015 and the order made on that day. I respectfully agree.
34. The appellant, through his counsel, expressly asked the Court to observe the principle of totality in dealing with both the s. 99 matter in relation to Bill No. 298/2012 and sentencing on Bill No. 99/2015 at the same hearing. His counsel set out a number of relevant facts in relation to the appellant and his circumstances and then stated (at p. 16 of transcript):-
"…I think that is as much as can be said. I would ask obviously the Court to balance the competing interest of doing justice as between the parties and also Mr. Wansboro. He is a young man. He is going to be released into the community at some stage. It is obviously the case that consequential orders will flow and the Court will be considering this in light of the section 99 matter. I am simply asking the Court to observe the principle of totality in that regard. It is clear that the Court can if it so minded impose all of the sentences of imprisonment previously imposed, … or the Court can, I suppose impose such element of it as it feels is appropriate and then marry that with the sentence will obviously impose in relation to this incident…"
35. The trial judge, in delivering her sentencing decision, dealt firstly with the facts pertaining to the charge on Bill No. 99/2015, Mr. Wansboro's own injuries suffered in the incident and certain other prior convictions. Turning to Bill No. 298/2012 and, having referred to the sentences imposed, their suspension and the warning given to Mr. Wansboro in November 2013 that if she saw him again within the suspended period, she would impose the three years, the Circuit Judge stated that she was lifting their suspension.
36. She then turned to the sentence on Count 2 of Bill No. 99/2015 and initially stated:-
"..[t]he sentence on bill 99/2015 is required by law to be consecutive to the three year sentence. I must have regard, in imposing a consecutive sentence, to the totality principle, but it seems to me that in light of the short period of time before Mr. Wansboro offended, that regard is limited…"
37. She then referred to a number of other matters and returned to this towards the end of her decision, saying (at p.21 of the transcript):-
"…I have to have regard to the totality principle in the light of the matters on bill 298/2012 in sentencing. However, in this case I cannot overlook the fact that Eric Wansboro was fully aware of what was at risk and took the risk regardless. Had Eric Wansboro not pleaded not [sic] guilty the appropriate sentence would have been one of six and a half years. Taking these matters into consideration and weighing the limited mitigation in this case and having regard to the totality principle, I find that the appropriate sentence on Count 2 on bill 99/2015 is one of five and a half years. This will commence at the lawful expiration of the sentence imposed on bill 298/2012. …"
38. Having regard to the approach taken at the sentencing hearing on 18 May, I have concluded that the appellant has not established that he would be permitted to raise at his sentencing appeal any ground of objection to the manner in which he was brought before the Circuit Court under s. 99 or to the jurisdiction of the Circuit Judge to consider and determine the revocation of the suspended sentence under s. 99, unless, in accordance with the principles in Cronin (No. 2) , if he were not permitted to do so would ground an apprehension that a real injustice had occurred. This is in accordance with the approach in D.P.P. v. Bolger and D.P.P. v. O'Connor .
39. Further, on the facts it may properly be considered that the appellant, not only in acquiescing to the jurisdiction of the Circuit Court in dealing with both the s. 99 re-entry of Bill No. 298/2012 and the sentencing on Bill No. 99/2015 together, but also in seeking to have the sentence on Bill No. 99/2015 reduced by reference to the totality principle and thereby obtaining some benefit, is now debarred on appeal from taking an approach inconsistent with that conduct. In so concluding, I am not suggesting that the factual position is similar to that in The State (Byrne) v. Frawley , given that it could not be concluded that the appellant acquiesced in a process which he knew or understood to be unconstitutional. Rather, he acquiesced in the process and jurisdiction of the Court and sought by his conduct to obtain some benefit for himself in terms of mitigating the sentence to be imposed in respect of the offence to which he had pleaded guilty on Bill No. 99/2015.
40. I do not consider that the facts give rise to an apprehension of a real injustice having occurred. This is principally for two reasons. First, the appellant was lawfully before the Circuit Judge having been remanded in custody on Bill No. 99/2015 for sentencing, pursuant to the order of the Circuit Court (His Honour Judge Nolan), made on 22 April 2015, following his plea of guilty to Count 2 on Bill No. 99/2015. Having so pleaded and been convicted on Bill No. 99/2015, it was open to inter alia the Gardaí to seek to have the Circuit Judge deal with the matter of revocation of the suspended sentences on Bill No. 298/2012 pursuant to s.99(13). Further, s. 99(17) gives a statutory jurisdiction to the Court to revoke a suspension which is not dependent on the procedures envisaged by s. 99(9). Hence, when the appellant was lawfully before Her Honour Judge Ring on 18 May 2015, having been remanded for sentencing on Bill No. 99/2015, the Circuit Judge could have considered and decided upon the suspension pursuant to s. 99(17). This provides:
"(17) A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and where the court revokes that order, the person shall be required to serve the entire of the sentence originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody pending the revocation of the said order."
41. Hence, if any objection had been taken to the procedures under ss. 99(9) and (10), the Circuit Judge could have considered exercising the statutory jurisdiction under s. 99(17) as the appellant was lawfully before her on Bill No. 99/2015 and had pleaded guilty to the trigger offence. I note that there does not appear in s. 99(17) to be an express obligation to make the sentence imposed on Bill No. 99/2015 consecutive to any order made under s. 99(17) that a prior suspension be lifted and the person now serve all or part of the sentence previously imposed. No issue was raised in relation to this in this judicial review or appeal. Whether or not this is a matter which may be taken into account by the Court of Appeal in the appeal against severity remains for the Court of Appeal.
42. For these reasons, I am unable to agree with the conclusion reached by Dunne J. that the appellant did not adopt any strategy or engage in a conduct in the course of the proceedings which would debar him from relying upon the declarations of unconstitutionality of sub-ss. 99(9) & (10) of the 2006 Act in his appeal against sentence imposed on 18 May 2015 on Bill No.298/2012. Accordingly, I would dismiss the appeal.
