Supporting Documents:

An Chúirt Uachtarach

The Supreme Court

DETERMINATION

Between:

RESULT: The Court declines an order allowing an appeal to this Court under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal delivered on the 24th June 2016.

REASONS:

1. This determination concerns an application brought by the applicant John Wilkinson from the judgment and order of the Court of Appeal, [2016] IECA 190, Birmingham, Sheehan and Mahon JJ of 24th June 2016, which dismissed his appeal against a refusal of an order of habeas corpus by the High Court, White J of 3rd May 2016. John Wilkinson claimed that, by reason of the appeal of a sentence which he was currently serving, another sentence imposed consecutive to the expiry of that appealed sentence was not operative and that holding him in custody on that second sentence was thus unlawful.

2. The applicant John Wilkinson was convicted on the charge of assault causing harm before the District Court in Carlow on 20th January 2016. The sentence imposed was imprisonment for 9 months. Recognisances for the purpose of an appeal were fixed in the personal bond of John Wilkinson in the sum of €1,000 and a cash lodgement of €250. Taking up that recognisance and lodging an appeal would have initiated the appeal process and rendered the penalty inoperative until it was affirmed by the Circuit Court. There was no appeal at that stage and the terms of the recognisance were not met. Then, just 3 months later and while serving that sentence, John Wilkinson appeared in custody on a charge of having no insurance while driving in a public place. Having been found guilty of this charge, the District Court in Athlone imposed a sentence of 3 months imprisonment, to be served on the legal expiration of the earlier sentence. This latter 3 month sentence was never appealed. After the Athlone sentence was imposed, the earlier Carlow sentence was appealed by John Wilkinson and the relevant personal bond of €1,000 was entered into and a cash lodgement of €250 was made. This had the effect of releasing him from the sentence imposed in Carlow but the authorities took the view that the Athlone sentence was thereby initiated. While serving this 3 month sentence, he took a habeas corpus application in the High Court which was refused by White J. The central plank of the appellant’s argument was that the valid operation of the Athlone warrant was predicated upon the condition of the ‘legal expiration’ of the first sentence for assault being met. As this first sentence was now under appeal, it could not be said to have legally expired. Thus, it was argued that there was no live warrant authorising his continued detention.

3. It should be emphasised that any such ruling as this one does not determine legal issues. It is issued solely between the parties and concerns only whether the conditions for a further appeal to this Court from the Court of Appeal have been met in accordance with the constitutional criteria herein set out. This is not a ruling on issues of right or wrong but as to whether a case of general public importance has been established or whether the interests of justice require an appeal. Furthermore, this appeal was brought by John Wilkinson when he was not in custody, according to the form lodged and available on this website.

4. In the High Court the trial judge, White J, ruled on the issue which arose in the following terms:

The sentence of 3 months’ imprisonment, issued on 13th of April 2016, is certain. Unless appealed, it has to be served. It has not been appealed. The problem arises with the commencement date. I am satisfied that the effect of an appeal from the District Court to the Circuit Court of a sentence of imprisonment where a warrant has issued and been executed prior to the notice of appeal being given and recognisances entered into, and where a consecutive sentence has been imposed to that sentence and where such consecutive sentence has not been appealed, is to bring forward the commencement date of that consecutive sentence to the date the appeal is successfully entered into in respect of the sentence which immediately predates it. I am satisfied that, on the successful entry of an appeal, where recognisances have been entered into – in other words where the person is at liberty pending the appeal – that the original sentence of the District Court has been legally determined pending the final decision on appeal in the Circuit Court. So, Mr Wilkinson is, in fact, in legal detention.

A number of possibilities arise as to what happens next. The appeal might be allowed, and in that context it is of some significance that the appeal is against conviction and sentence. The appeal might be dismissed or the order of the District Court might be varied with the sentence imposed being reduced or perhaps even increased. However, whatever the outcome, a new instrument, whether of the Circuit Court or of the District Court, will issue to enforce the decision whatever that will be. The original Carlow order will be overtaken or supplanted by a new order. I agree with the High Court judge that appealing one of two sentences in issue does not have the effect of staying the sentence that is not appealed. Appealing the first in time of two sentences, but not the second, has the effect of bringing forward or triggering the commencement date of the second sentence. That being so it follows, therefore, that Mr Wilkinson is and has at all times been in lawful custody and accordingly I would dismiss the appeal.

4 1° The Court of Appeal shall—

i save as otherwise provided by this Article, and

ii with such exceptions and subject to such regulations as may be prescribed by law,

have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.

3° The Supreme Court shall, subject to such

regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal if the Supreme Court is satisfied that—

i the decision involves a matter of general public importance, or

ii in the interests of justice it is necessary that there be an appeal to the Supreme Court.

8. Primarily, this Court is now “subject to such regulations as may be prescribed by law”, an appellate jurisdiction from the Court of Appeal. Such an appeal may only be exercised provided that this Court is satisfied either that the relevant decision of the Court of Appeal “involves a matter of general public importance” or, alternatively, that it is, “in the interests of justice”, necessary that there be an appeal to this Court.

9. The Constitution has retained the entitlement of one appeal as of right from the High Court, subject to express exclusions or regulation by statute from the High Court to the Court of Appeal. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined principally to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance or would be such that it is in the interests of justice that there be a further appeal to this Court.

10. In the application for leave on behalf of John Wilkinson it is sought to be argued that the decision of the Court of Appeal is incorrect and in particular “elides the distinction between a sentence and a warrant.” The point is made that the Court of Appeal analysis is claimed to overlook “the appellant’s core point that the correct test in an Article 40 is not whether the detainer might be able to justify the detention in the future, but rather whether the subject’s detention is currently lawful.” While this notice is certainly detailed, what it lacks is any argument as to why this issue is of general public importance, in other words as to why the impact of the decision goes beyond the specific arguments addressed on the facts in this case and impacts more widely on the duties and rights of the public or on the court system.

11. Emphasis is placed by the respondent on the facts and on the specific arguments in this particular case and with particular reference to case law with a view to justifying the decision. In particular there is specific reference to the rules of the Circuit Court and the Rules of the District Court. The entirety of the argument on both sides of the case has thus been regarding the minutiae of the relevant legal regulation of sentences, their commencement and the manner in which one sentence informs the interpretation of another sentence. The question of whether a point of general public importance is engaged or not has been left by the wayside. As with the applicant’s submission, all of this concerns the specific facts of one individual with no apparent wider import.

12. Submissions, at the Court’s request, were also received from both applicant and respondent on whether the fact that the applicant was released rendered this appeal moot. It suffices for this ruling that the case is not of systemic importance.

13. Habeas corpus is a remedy to free those wrongfully detained. There is a practice, possibly followed by the legal representatives in this case, of asking the governor of a prison, prior to even considering an Application under Article 40, for the warrants relating to the detention of a detained person. Whether this was done here or not, it emerges that in the Court of Appeal a third warrant that was valid at the time of the commencement of this application was in existence and that incontrovertibly it authorised the lawful detention of the applicant. Habeas corpus does not lie in those circumstances.

14. It follows that the applicant is not entitled to a further appeal.

AND IT IS HEREBY ORDERED ACCORDINGLY