Supporting Documents:

THE SUPREME COURT

DETERMINATION

BETWEEN

RESULT: The Court refuses leave to the applicant/appellant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal delivered on the 28th July, 2016 and the order made on the 28th July, 2016, which was perfected on the 9th August, 2016.

2. Paul Clarke, the applicant/appellant, referred to as “the applicant”, seeks leave to appeal to this Court from the said judgment of the Court of Appeal.

3. The Governor of Mountjoy Prison, the respondent, is referred to as “the respondent”.

4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of the Constitution, and many determinations made by this Court since the enactment of the 33rd Amendment, it is necessary, in order for this Court to grant leave to appeal, that it be established by the applicant that the decision sought to be appealed either involves a matter of general public importance, or that it is necessary in the interests of justice that there be an appeal to this Court.

5. Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.

Background facts

6. On the 7th July, 2010 the applicant appeared before Dublin Circuit Criminal Court in respect of a number of counts upon three indictments involving robberies and the use of weapons. He received consecutive custodial sentences with the final seven years of the total to be suspended on certain conditions. The suspended elements of the sentences were imposed pursuant to s. 99(1) of the Criminal Justice Act 2006 (the Act of 2006) as amended, and the conditions were imposed pursuant to s. 99(2) and (4) of the Act of 2006.

7. Having served the custodial element of the sentences, the applicant was released from custody in October, 2013, but continued to serve the suspended element of the sentences and was bound to comply with the conditions imposed. He failed to do so.

8. On the 9th September, 2014 the applicant appeared before Cloverhill District Court and pleaded guilty to charges arising out of two separate cases involving road traffic offences on the 10th February and 2nd April 2014. The District Court remanded the applicant in custody to Dublin Circuit Court on the 10th September, 2014 under s. 99(9) and s.99(10) of the Act of 2006, as substituted by s. 60 of the Criminal Justice Act 2007 (the 2007 Act), for a determination as to whether the suspended portions of the sentences should be revoked.

9. Before the Circuit Court, on the 4th, November, 2014, McCartan J. reactivated all of the sentences that had previously been suspended and directed that they should run concurrently from the 30th April, 2014.

10. The appellant was then remanded back to Cloverhill District Court in order to impose sentence in respect of the road traffic offences. On the 5th November 2014, a five month sentence was imposed, which was fully suspended and a thirty year driving ban was also imposed.

11. By notice of appeal dated the 17th November, 2014, the applicant appealed to the Court of Appeal against the sentences imposed on the 4th November, 2014. He appealed under s.99 (12) of the Act of 2006 which permits an “appeal against the revocation”.

Procedural background

12. On the 19th April, 2016 in Moore & ors v. Director of Public Prosecutions, Ireland and the Attorney General IEHC 244 the High Court (Moriarty J.) declared that s.99 subs (9) and (10) of the Criminal Justice Act 2006, as substituted by s.60 of the Criminal Justice Act 2007, were repugnant to the Constitution and consequently invalid.

13. The applicant then applied to the High Court for an inquiry, pursuant to Art. 40.4 of the Constitution, into the lawfulness of his detention. He claimed that he was entitled to release because the statutory mechanism whereby he was sent by the District Court back to the court of trial which lifted the suspension on the sentence had been held to be repugnant to the Constitution and invalid in the Moore decision.

The High Court judgment

14. The High Court (McDermott J.) held that the applicant was being detained in accordance with the law ( Clarke v. Governor of Mountjoy [2016] IEHC 278). He accepted that the applicant was entitled to raise the issue, on the basis that his appeal before the Court of Appeal was pending and his case had therefore not been finalised. However, the declaration of invalidity in Moore did not necessarily mean that the applicant was entitled to an order for release. Having considered the authorities on Art. 40.4 and on the retrospective effect of declarations of invalidity, McDermott J. held that the question whether the applicant was entitled to the benefit of the declaration depended on the circumstances of the case. He took into account the fact that none of the factual circumstances found to exist in Moore, or any other matter that could ground a finding that an injustice had occurred, were present in the applicant’s case and that he would, therefore, not have had locus standi to challenge the statute; that he had not raised any objection to the jurisdiction of the Circuit Court judge; that the State had relied upon the procedures under subsections (9) and (10) in good faith in that they were regarded as having the force of law at the time; and that the effective operation of suspended sentences requires the availability of a power to revoke. The principles of certainty and fairness contemplated by Art. 38 did not require the form of retrospective effect contended for by the applicant and it was not warranted in the case.

Judgment of the Court of Appeal

15. The applicant appealed the High Court decision to the Court of Appeal. The judgment of that court was delivered by Birmingham J. on the 28th July, 2016. Birmingham J. considered the transcripts from the Circuit Court in detail and expressed the view that the Circuit Court Judge had expanded his consideration of the case beyond the confines of s.99(10) and had inquired into matters giving rise to a jurisdiction under s.99(17), in that he had regard to an up-to-date probation report and not just the fact of the fresh convictions. It was accepted that there had been no express reference to subs.(17) but Birmingham J. felt that the transcript suggested that this is what had occurred and it was something that the judge was entitled to do. Further, it was not necessary to the exercise of the jurisdiction under subs.(17) that the person be before the court on foot of an order made under subs.(9). The route by which the applicant had been brought before the court was therefore, in accordance with the line of authority represented by Ivers v. Murphy, immaterial.

16. Birmingham J. then went on to say that if he was wrong about the foregoing he would in any event follow the reasoning of McDermott J., which he described as “compelling”. In particular he emphasised the view that there had been no default of fundamental requirements such that the detention could be said to be wanting in due course of law.

17. It was also stated in the judgment that it remained open to the applicant to proceed with his appeal against the activation of the suspended sentences.

Application for Leave

18. The application for leave and notice of appeal documents are available with this determination on the Courts Service website and will not be set out in detail here.

19. The applicant submits that the Court of Appeal failed to follow the judgment of this court in DPP v. Carter and Kenny, which decided that the lawful activation of a suspended sentence under subs.(10) required a lawful remand under subs.(9). Combined with the decision in Moore, that this meant that the Circuit Court had had no jurisdiction to deal with the applicant. Instead, it is said, the Court of Appeal grounded its decision on a subsection that had not been referred to at all in the Circuit Court. It is also complained that the decision precludes the applicant from raising a jurisdictional issue in his pending appeal against sentence.

The Respondent’s Notice

20. The respondent’s notice is also available on the Courts Service website and will not be set out in detail here.

21. The respondent submits inter alia that, quite apart from the view taken by the Court of Appeal as to the applicability of subs. (17) in the case, it upheld the reasoning of McDermott J. This, it is said, was an independent and lawful basis for the finding that the detention was lawful.

Decision

22. The analysis of the Court of Appeal as to the relevance of subs. (17) is based on its analysis of what had transpired in the Circuit Court. Whether or not that analysis is correct is not a matter of general public importance, but is specific to the facts of the case. This Court no longer has the role of correcting errors, but is constrained in its functions by the Constitutional criteria identified above.

23. The Court also considers that it is clear that the Court of Appeal, while forming its own view of the case, fully endorsed and adopted the reasoning of McDermott J. in the High Court. There are thus two separate, independent bases for the decision.

24. The applicant has chosen not to address any argument or ground of appeal arising from the endorsement of the reasoning of McDermott J. Under its new jurisdiction, leave to appeal to this Court does not allow an appellant to argue grounds not raised in the notice of application for leave. Applicants must therefore seek leave on all grounds that they wish to have considered.

25. It is clear that the applicant retains his appeal to the Court of Appeal, where he can argue against the re-activation of his sentence on grounds that it is excessive and/or disproportionate.

26. The Court is satisfied that this application does not meet the criteria set out in the Constitution. Consequently, the Court refuses to grant leave to appeal.

And it is hereby so ordered accordingly.