THE SUPREME COURT[Appeal No: 203/14 & 426/14]
Denham C.J.
Hardiman J.
O’Donnell J.
Laffoy J.
Dunne J.IN THE MATTER OF SECTION 52 OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Appellant
Defendant/Respondent
and
IN THE MATTER OF SECTION 16 OF THE COURTS OF JUSTICE ACT 1947 AND THE CASE STATED
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor
Defendant
JUDGMENT of Mr. Justice Hardiman delivered on the 5th day of March, 2015.
1. In this case I agree entirely with the order proposed by Mr. Justice O’Donnell, that the appeal in the case of Jeffrey Carter to be dismissed.
2. I agree with the proposed order in Mr. Carter’s case for precisely the reasons set out in the judgment of O’Donnell J. Accordingly I would dismiss the appeal in the case of Jeffrey Carter and affirm the decision of the learned High Court judge (O’Malley J).
3. In the case of Seán Kenny, I agree with the answers to the questions posed in the Case Stated by her Honour Judge Ring, which are to be found at para. 38 of the judgment of O’Donnell J.
In one particular respect, however, I am unable to agree with the reasoning which leads to these conclusions. For reasons which will appear, I am unable to follow, in the circumstances of this case, the ratio of the old Irish case of R. (Mackey) v. Justices of the County of Limerick [1898] 2 I.R. 135. I do not find it necessary to do so in order to arrive at the answers proposed to the case stated.
4. This case concerns the interpretation of the deceptively simple words of s.99 of the Criminal Justice Act, 2006 as already twice amended, by s.60 of the Criminal Justice Act, 2007 and by s.51 of the Criminal Justice (Miscellaneous Provisions) Act 2009. I emphatically agree with Mr. Justice O’Donnell when he says that this Section “has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases”. I also agree with him when he says that:
“Only one thing is clear and beyond dispute: s.99 is in need of urgent and comprehensive review.”
5. The reason for these difficulties and for the urgency of the need for a review of the Section is that s.99 was drafted and enacted by persons quite unacquainted of the actual practices of the Courts, and in particular of the District and Circuit Courts. I am quite certain that the myriad difficulties which have arisen with the Section could have been avoided if any proper effort had been made to consult the judges who actually implement the procedures for the activation of a suspended sentence.
6. I agree in general with the identification by Mr. Justice O’Donnell of the difficulties which have arisen in the application of this Section and with his observation that “these questions cannot be resolved by a simple, surface interpretation of apparently simple words, taken in the abstract”. On the contrary “the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument”.
7. Section 99 is intended to deal with a situation of common, perhaps almost daily, occurrence in some at least of the Courts exercising criminal jurisdiction. A clearer and more transparent provision, which pays due attention to the rights of both parties to a criminal proceeding, is urgently required.
8. In my view, the issue in Mr. Kenny’s case comes down to the interpretation of the words “next sitting”. The immediate statutory context is as follows:
“S.99(9) of the Criminal Justice Act, 2006 provides as follows:
Where a person to whom an order under subsection (1) applies [that is, a person who received a sentence which was suspended on terms] is, during the period of suspension of the sentence concerned, convicted of an offence, being an offence committed after the making of an order under subsection (1), the Court before which proceedings for the defence 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.” (Emphasis added)
9. The effect of subsection (9) is that where a person is convicted of an offence which he committed while he was the subject of a suspended sentence, the Court which imposes the conviction is obliged, before it imposes sentence for the offence of which it has convicted him or her, remand him or her in custody or on bail, to the next sitting of the Court that imposed the suspended sentence.
10. The facts of the case of Seán Kenny, insofar as relevant, or set out in the case stated. I gratefully adopt them and am in any case bound to do so since the Court has no other information about the facts. This judgment is not comprehensible without reference to the Case Stated.
11. In this case, the Court which imposed a suspended sentence was the Dublin Circuit Criminal Court. The individual judge who imposed that sentence had retired by the date of the proceedings before District Judge Blake in the present case but that is not a difficulty: the remand is to the next sitting of the Court, not of the judge, that made the previous order.
“Next sitting”.
12. On the hearing of this appeal, counsel for the State contended for a broad interpretation of “next sitting” to mean “next convenient sitting” or “next reasonably practicable sitting”. To my mind this would be to read words into the Section which a court is not entitled to do. Counsel painted an affecting feature of a court sitting one morning in County Donegal which, having convicted a person, discovers that he is the subject of suspended sentence imposed by a court sitting in County Kerry. He went on to hypothesise a garda car proceeding at high speed from Donegal to Kerry in order to bring the prisoner to a hypothetical “next sitting” of the Court in Kerry which is scheduled, it is imagined, for that very afternoon. His hypothesis extended to the proposition that the garda car might pass another proceeding at high speed from Kerry to Donegal with a prisoner whose position was the mirror image of that of the Donegal prisoner. But these rather fevered imaginings are far removed from the facts of Mr. Kenny’s case.
13. This case comes down to a point of statutory interpretation. In such a case, in the words of Chief Justice Keane in A.B. v. Minister for Justice [2002] I.R. 296, Chief Justice Keane said:
“However, it is to the words used by the legislature that we must have regard in ascertaining its intention and if, as so construed, these provisions mean that the right of appeal is indeed unrestricted in such cases, it is not the function of the Courts to remedy such a casus omissus, if that is what it is.” (Emphasis added)
14. I believe that the meaning of the term “next sitting” emerges sufficiently from the Rules of the Circuit Court. Order 1, Rule 1 of the said Rules provides as follows:
“1. Sittings of the Court shall be held within each circuit at such places and commence on such dates as may be from time to time fixed by order of the President of the Circuit Court in accordance with s.10(2) of the Courts of Justice Act, 1947, and at such times as the Judge of such circuit shall from time to time direct and appoint. Notice of such sittings in every county, save Dublin shall be published as soon as may be after the making of the order concerned in such manner as the President of the Circuit Court may, in accordance with s.10(2) aforementioned, direct”. (Emphasis added)
Order 1 Rule 2 of the said Rules provides as follows:
2. Notice of sittings in the Dublin circuit shall set out the day of commencement and the day of termination of each sitting. Provided that the President of the Circuit Court may extend any sittings of the Circuit Court in the Dublin circuit beyond the date of termination of that sittings. (Emphasis added)
I do not believe that any difficulty arises from the fact that the Rule uses both the terms “Sittings” and the term “Sitting”, while the Statute speaks of “next sitting”. Firstly, by virtue of s.18(a) of the Interpretation Act, 2005, the singular form incorporates the plural and vice versa. I do not believe that any contrary intention appears in the Rule. It is of significance that the notice required to be given before a sitting begins must specify the day of commencement of the sitting and the day of its termination. From this it follows that a “sitting” may run over a number of days, or indeed a number of weeks or a number of months. There is not a separate “sitting” each time a judge takes his or her seat on the Bench.
15. Accordingly, I believe that the phrase “next sitting” in a statutory context, means the next sitting of the Circuit Court which the President has “directed” and of which notice has been given as required. This “direction” is made under statutory power, viz. s.10(2)(a), in Part III of the Courts of Justice Act, 1947.
16. I cannot see how the word “sitting” used in a later Act, such as s.99(9) of the Criminal Justice Act, 2006, as amended, could have a different meaning, at least in the absence of a new statutory definition of the term. The statute of 1947 creates a power in the President of the Circuit Court to fix the places (s.10(2)(a) and times (s.10(2)(b) of sittings of the Circuit Court. Once these are fixed by the President “sittings within that circuit shall be held at such places and commence on such dates as may be fixed by the order”. Similarly “sittings shall commence at each such place in accordance with the order”.
17. From the terms of the Rule it would appear that what is a power in the statute has become a duty which must be performed (“shall”) in the Rules. But the salient feature is that the phrase “next sitting” means next sitting appointed by the order of the President or senior judge which “directs” the times and places for the sittings of the Circuit Court in the Dublin Circuit”.
18. The requirement to publish the order of the President or senior judge is also suggestive: the date of the next sitting of the Dublin Circuit Court is a matter of public record, available to everyone from an official source.
19. It is certainly true that there is power to cancel a sitting for good reason and also to extend a sitting or to appoint a sitting for urgent matters at times when sittings do not ordinarily take place, viz. evenings, weekends or vacations. But the “next sitting” of the Circuit Court means the next sitting directed and appointed by the judge authorised to do so, and widely notified, and not special sittings for special purposes which may be unknown to all but the parties directly involved.
20. I note the reliance placed by Mr. Justice O’Donnell on the old Irish case of R. (Mackey) v. Justices of the County of Limerick [1898] 2 I.R. 135, and admire the diligence which brought to light this obscure authority.
This was a forfeiture application under the Fisheries (Ireland) Act, 1842. Section 103 of that Act provided that where nets were seized it would be lawful for the Fisheries Officer “to retain the same in his custody until the next sitting of the Petty Sessions Court or any adjournment thereof… and at such court it shall be lawful for the Justices to order the forfeiture of such nets”.
On the night of the 3rd January a water bailiff seized certain nets said to have been used illegally on weirs in the River Shannon. He applied for a forfeiture order at a sitting of the Court on the 18th January. But there had been a previous court on the 4th January, and another on the 15th January.
The Court of Queen’s Bench in Ireland, consisting of four judges, held that the “next sitting” meant, not the “absolutely” next sitting of the Court but the sitting “next after the seizure at which it was reasonably practicable to proceed”.
O’Brien LCJ held:
“Independently of authority I should hold that the words ‘next sitting’ mean the first sitting next after the seizure at which it is reasonably practicable to apply”.
21. I defer to no-one in my respect for the pre-independence Irish Courts and have often derived useful guidance from their decisions. But I would point out, first, that Mackey was not a case about an individual who was remanded in custody, which was what happened to Mr. Kenny in the present case.
In Mackey it is recorded in the Report (p.137) that there was a criminal prosecution of Mr. Mackey for illegal fishing, and that the application for forfeiture had taken place immediately after the prosecution concluded. But there is nothing to suggest that the defendant had been remanded, either in custody or on bail, pending this prosecution. The Report is wholly concerned with the jurisdiction to make the order of forfeiture of the nets.
I would not read in words such as “next reasonably practicable sitting” into a statute permitting an individual to be remanded in custody. Firstly, it is indefinite: if such a remand took place at the end of the summer term, or just after a sitting of the Circuit Court in some particular county, so that the Court had moved on to another county, the remand might be of very long duration. I do not believe that the old Court of King’s Bench would have permitted an individual to be remanded in custody for an indefinite or uncertain period, or would so have interpreted a statute when the literal meaning would have meant a much shorter remand.
In any event, the Court of King’s Bench at the end of Queen Victoria’s reign was not operating in the context of a written Constitution which expressly acknowledges the right to personal liberty, and obliges the Courts to recognise, defend and vindicate that right.
Section 99(9) of the Act of 2006 is a provision which permits the remand of a citizen in custody. Such a power of remand must be strictly limited in time and I would not give a broad meaning to any statutory phrase which permitted remand beyond the absolute minimum necessary, or which was of a duration not specifically limited on the face of the order.
22. In other words, I firmly believe that the order made by the learned District Judge in Kenny’s case was a proper one, it was in compliance with the statute. But I have not arrived at this conclusion on the basis of resorting to a broad construction of the word “next”. To the extent that Mackey would permit such a broad construction, I would not follow it. This is (a) because s.99(9) is a provision connected to the imposition of a penalty and (b) because it delimits the period of a remand possibly (and actually in Mr. Kenny’s case) in custody. I do not favour an expansive reading of such a provision.
23. It is absolutely unacceptable that a person should be brought by the prosecution before the Court which is required to remand him to the “next sitting” of (usually) another court, without the prosecution being able to inform the Court as to when that “next sitting” is. This is not fair to the Court and it is not fair to the accused. Such a person will always be brought before the Court at the suit of the prosecution and the defendant himself may have little or no notice of the event. It is therefore for the prosecution, which always be the moving party, to ascertain when the next sitting of the Court is. In the case of the Circuit Court there can be no difficulty in this because notice of the sitting will have been given.
24. For the reasons, and with the qualification, set out above, I agree with the answers to the Case Stated in Mr. Kenny’s case which are to be proposed by Mr. Justice O’Donnell.