Irish Court of Appeal

 

THE COURT OF APPEAL

 

  Neutral Citation: [2025] IECA 53    

Record Number: 2024/141

McCarthy J.

Kennedy J.

Burns J.

 

BETWEEN:

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT

-AND-

 

JOHN PAUL COLLINS

            APPELLANT

 

JUDGMENT of Ms. Justice Tara Burns delivered on the 14th day of February, 2025

 

1.       This is an appeal against the judgment of the High Court (Gearty J.) [2024] IEHC 298 refusing the appellant orders of Certiorari and Prohibition in relation to the decision of Nenagh District Court to remand the appellant in custody to Balbriggan District Court pursuant to s. 99(8A) of the Criminal Justice Act 2006 ('s. 99(8A)').

Background

2.       On 9 September 2021, Balbriggan District Court imposed a 6-month term of imprisonment on the appellant which it suspended for 18 months on certain terms and conditions, to include the requirement that the appellant be of good behaviour ('the suspended sentence'). 

3.       On 14 July 2023, the appellant appeared before Nenagh District Court charged with a separate incident which allegedly occurred on 1 December 2022.  This was within the period the suspended sentence was extant.  The appellant pleaded guilty to the charge before Nenagh District Court on this date and was sentenced to three months' imprisonment ('the triggering offence'). The appellant was unrepresented on this occasion, at his own election.   

4.       In the course of the sentencing hearing before Nenagh District Court for the triggering offence, Sergeant McCarthy outlined the appellant's previous convictions to the court. However, it was not brought to the court's attention that the appellant was subject to the suspended sentence at the time the triggering offence occurred. Sergeant McCarthy has averred in an affidavit, sworn for the purpose of these proceedings, that she was unaware of this fact at the time of the sentencing hearing. 

5.       On 18 July 2023, Sergeant McCarthy lodged an application for the triggering offence to be re-entered before Nenagh District Court on 21 July 2023, for the purpose of bringing the information regarding the suspended sentence to the court's attention.    

6.       The appellant was produced in Nenagh District Court on 21 July 2023.  Prior to the case being called, the application was served on him and the purpose of the application was explained to him. Sergeant McCarthy has averred that as the appellant did not avail of legal representative on his previous appearance in court, a legal representative was not notified of the application by the prosecution, as it was not known who to contact.    

7.       On foot of the application made by the prosecution, Nenagh District Court remanded the appellant to Balbriggan District Court on 27 July 2023 pursuant to s. 99(8A). 

The Jurisdiction to Remand

8.       Section 99 of the Criminal Justice 2006 Act provides in relevant part as follows:-

"(1)    Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part, subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

[...]

(8A) (a) Where a person to whom an order under subsection (1) applies—

(i) commits an offence after the making of that order and during the period of suspension of the sentence concerned (in this section referred to as the "triggering offence"), and

(ii) subject to subsection (8B), is convicted of the triggering offence,

               the court before which proceedings for the triggering offence are brought shall, after imposing sentence for that offence, remand the person in custody or on bail to a sitting of the court that made the said order to be held—

(I) no later than 15 days after such remand, or

(II) if there is no sitting of that court within that period, to the next sitting of that court thereafter,

 

               and, if there is no sitting of that court on the day to which that person has been remanded, he or she shall stand so remanded to the sitting of that court next held after that day." (emphasis added)

The High Court Judgment

9.       At the hearing before the High Court, the appellant asserted that s. 99(8A) requires that the court sentencing for the triggering offence must on the same occasion as sentence is passed, remand the accused to the court which imposed the suspended sentence. He submitted that in circumstances where the proceedings in respect of the triggering offence have concluded, a mechanism does not exist whereby the matter can be re-entered before the court dealing with the triggering offence as the court is functus officio in respect of the triggering offence and, at this stage, has no jurisdiction in respect of the suspended sentence.  Accordingly, it was submitted that the order made by Nenagh District Court remanding the appellant to Ballbriggan District Court was made without jurisdiction.   

10.     In addition, the appellant submitted that he was not afforded fair procedures by reason of the lack of notice to him with regard to the application to re-enter the matter before Nenagh District Court which resulted in him being unrepresented at the hearing of that application. 

11.     The High Court determined that the plain and ordinary meaning of s. 99(8A) did not require that a remand to the court which had imposed the suspended sentence be made at the same court sitting when sentence for the triggering offence was imposed.  Gearty J. was of the opinion, having regard to DPP v. Carter & Kenny [2015] IESC 20, ('Carter'), that the sentencing process for the triggering offence was distinct from the process of making the remand to the court which had imposed the suspended sentence.  Whereas Nenagh District Court was functus officio in relation to the triggering offence, remanding the accused to Balbriggan District Court in respect of the suspended sentence, simply involved an administrative step to secure the attendance of the appellant before that court.  In reaching these conclusions, Gearty J interpreted s. 99(8A) as requiring that the appellant be remanded to Balbriggan District Court within 15 days of the imposition of the sentence for the triggering offence. 

12.     Gearty J. further took the view that Balbriggan District Court ought to have been asked to rule on its jurisdiction to sentence the appellant on foot of the remand order prior to the initiation of judicial review proceedings in the High Court having regard to dicta in Volkswagen Group Ireland Limited v. Higgins [2017] IEHC 809. 

13.     With respect to the fair procedures argument, Gearty J. was satisfied, having considered O. 84, r. 20(3) of the Rules of the Superior Courts and AP v. Director of Public Prosecutions [2011] 1 IR 729, that this submission did not require consideration by the court because it was absent from the pleadings.  The trial judge held that no application had been made by the appellant to amend his statement of grounds to include the argument raised; his pleading of a general issue of "ultra vires" within those grounds could not shelter the fair procedures argument; and a generic defence argument that the appellant had been treated fairly could not open the door to new grounds.

14.     Accordingly, the High Court remitted the matter to the District Court.  This order was stayed until the outcome of this appeal.  

Issues to be Decided in this Appeal

15.     The parties submitted that three issues arose to be determined in this appeal, namely:-

"(i)     Was the High Court correct to find that the Appellant had been remanded by the presiding District Judge in Nenagh District Court on 21 July 2023 to be produced before District Judge Dempsey in Balbriggan District Court sitting in Swords on 27 July 2023 under s.99 of the Criminal Justice Act 1999 in accordance with law?

(ii)      Was the High Court correct to find that the Appellant should have sought to argue the lawfulness of the remand to Balbriggan District Court before that Court rather than issue judicial review proceedings?

(iii)     Was the High Court correct to find that the Appellant was precluded from relying on fair procedure arguments."

Submissions of the Appellant

16.     The appellant repeated his submission that s. 99(8A) requires that the court sentencing for the triggering offence must on the same occasion as sentence is passed, remand the accused to the court which imposed the suspended sentence.  He asserted that in the instant case, the respondent had fashioned a bespoke, formal remedy outside of the relevant statutory framework in the form of the notice to re-enter which had no legal basis.  As such, the remand order was made ultra vires the jurisdiction of Nenagh District Court. The appellant contended that the High Court erred in distinguishing the sentencing process from the s. 99(8A) process, on the basis that the latter does not exist without the former, and that on a plain reading of s. 99(8A), both processes form part of a continuum. 

17.     In relation to whether the matter of jurisdiction ought to have first been determined by the Balbriggan District Court, the appellant submitted that the court did not have the power to determine the lawfulness of the orders of another judge or court of equivalent jurisdiction.

18.     With respect to the refusal by the High Court to consider the fair procedures argument, the appellant submitted that the pleadings did not restrict his challenge in relation to the lawfulness of the remand order to a breach of the statutory scheme. He asserted that he was entitled to challenge the mechanism used in the instant case as being unlawful because it was in breach of fair procedures. In the appellant's submission, the fair procedures argument arose on foot of an entirely new point raised by the respondent upon which the High Court made a finding which was determinative of the case and adverse to the appellant.

Submissions of the Respondent

19.     In relation to the issue of jurisdiction, the respondent submitted that the appellant's case involved asking the Court to re-write s. 99(8A) by inserting wording such as "forthwith" or "in the same sitting" following the word "after".  She asserted that insofar as s. 99(8A) required that an accused person be remanded to the court that imposed the suspended sentence after he or she is sentenced for the triggering offence, this took place.  In the respondent's submission, s. 99(8A) does not require, on a plain reading, that the remand order must take place at the same sitting that sentence is imposed for the triggering offence.  Whilst Nenagh District Court was functus officio as regards the triggering offence, it was not functus officio with respect to its obligation to remand the suspended sentence to the court which had imposed that sentence.

20.     The respondent further submitted that while it was her position in the High Court that the issue of jurisdiction should have been determined by Balbriggan District Court before judicial review proceedings were initiated, in circumstances where the appellant was permitted to fully ventilate the matter in the High Court, there was no practical adverse effect on the appellant arising from this aspect of the case. 

21.     In relation to the fair procedures argument, the respondent asserted that the appellant was required by O. 84, r. 20(3) of the RSC to plead specific grounds and failed to plead fair procedures, lack of notice, or a breach of the rules of natural and constitutional justice arising from him not being represented when the matter was re-entered.  It was her position that the appellant failed to seek an amendment of his Statement of Grounds and that the Respondent's Notice of Opposition was not capable of giving rise to new grounds in the absence of such an amendment.     

Discussion and Determination        

22.     The substantive issue arising with respect to the jurisdiction of Nenagh District Court ('the triggering court') to remand the appellant to Balbriggan District Court ('the suspended sentencing court'), involves a question of statutory interpretation. 

23.     The appellant submitted that remittal of the suspended sentence to the suspended sentencing court was part of a unitary process where sentencing for the triggering offence and remittal to the suspended sentencing court were required to take place on the same occasion in circumstances where sentence was imposed for the triggering offence initially and the remittal order followed immediately thereafter. 

24.     The respondent submitted that this was not the correct interpretation of s. 99(8A) and that remittal of the suspended sentence could occur at a separate court sitting of the triggering court. She submitted that the interpretation contended for by the appellant required imposing the word "forthwith" or "immediately thereafter" into the sub-section. 

 

25.     Gearty J. accepted the respondents' submission and determined that a remittal of the suspended offence was valid once it took place within 15 days of the sentence being imposed for the triggering offence.  She stated at paragraph 5.1 of her judgment:-

               "Section 99(8)A is a pre-condition to the reactivation of a sentence, it is mandatory in nature, but the sub-section is silent as to exactly when the matter must be dealt with, other than that it must be after the new sentence is imposed and the sitting of the original court to which he is remanded must be within 15 days of the imposition of the new sentence."

          Much of her analysis of s. 99(8A) and its earlier iteration, as considered in Carter, is based on this interpretation.  

26.     However, a difficulty arises with that interpretation which has a consequence in respect of the determination which Gearty J. ultimately came to, namely that the remand for the suspended sentence did not have to occur on the same occasion as sentence was imposed for the triggering offence. 

27.     A literal reading of s. 99(8A) does not require that remittal of the suspended sentence must take place within 15 days of the sentence being imposed for the triggering offence. Nowhere in the sub-section is there any reference to a court date being required to be set for the suspended sentence remand date 15 days from the date sentence was imposed in respect of the triggering offence. Instead, the sub-section requires that after the sentence is imposed for the triggering offence, the triggering court shall remand the accused to the suspended sentencing court on a date which must not be later than 15 days from the date the triggering court made that order of remand unless a court is not sitting on the remand date, provision for which is made in the sub-sections then following. Accordingly, Gearty J's determination that the sub-section requires that the remand take place within 15 days of the sentence for the triggering offence would only accord with a literal interpretation of the sub-section if sentencing for the triggering offence and the remand order occurred on the same day. This is precisely what Gearty J. indicated was not required by the sub-section.

28.     Leaving aside the issue of statutory interpretation momentarily, a further issue arises, which may inform the interpretation of the sub-section.  The appellant has asserted that the triggering court was functus officio in respect of the triggering offence and that therefore it had no jurisdiction to permit the triggering sentence matter be re-entered before it. Gearty J agreed that the unitary trial process with respect to the triggering offence ended after sentence was pronounced for the triggering offence relying on the dicta of O'Donnell J., as he then was, in Carter where he stated that the "trial, adjudication and sentence are normally indivisible parts of the administration of justice." However, she was of the opinion that despite that fact, the triggering court could nonetheless embark on a procedural mechanism to secure the appellant's attendance before another court, once that process is fair. The difficulty with that assessment, however, is that the manner in which this matter was re-entered before the triggering court was by re-entering the triggering offence. This was in a situation where the District Court was functus officio in respect of that matter. Furthermore, the triggering offence was re-entered before the court for the purpose of dealing with another matter over which the court had no jurisdiction other than to remit the matter to the suspended sentencing court.       

29.     Having regard to the recognition in Carter that the purpose of s. 99 is to have an efficient system of re-entering suspended sentences in situations where there has been a breach of a term of a suspended sentence to be of good behaviour, it seems to me that the correct interpretation of s. 99(8A) is that the remand to the sentencing court must take place after the sentence for the triggering offence is imposed but at the same court sitting.  As the time limitation of 15 days from the date of sentence for the triggering offence, which Gearty J applied to the section, is not a correct interpretation of s. 99(8A), the difficulty arises that no time limit is then placed on when the remand from the triggering court in respect of the suspended sentence must take place. Having regard to the fact that the triggering court is functus officio having sentenced an accused for the triggering offence, it cannot have been the intention of the Oireachtas that an application can be made at any time after such a sentence is imposed to remand a case to the suspended sentencing court.

30.     The argument made by the respondent to the effect that while Nenagh District Court was functus officio the triggering matter, it was not functus officio the remand matter, fails to appreciate that the District Court is a court of local and limited jurisdiction and the practicalities which arise as a result. The manner in which Sergeant McCarthy attempted to fix the mistake which had arisen demonstrates this issue. The matter which was re-entered before Nenagh District Court was the matter it had jurisdiction in, namely the triggering offence. Sergeant McCarthy, correctly, did not seek to have the suspended sentence matter re-entered before Nenagh District Court because Nenagh District Court did not have jurisdiction over the substantive matter. What gave Nenagh District Court jurisdiction over the suspended sentence matter arises pursuant to s. 99(8A) on foot of imposing sentence for the triggering offence. Once sentence was imposed in respect of that matter, the jurisdiction of Nenagh District Court expired and it could not have the suspended matter entered before it. As Nenagh District Court was functus officio the triggering offence matter, an independent life did not exist for the suspended sentence.    

31.     Accordingly, I am of the opinion that s. 99(8A) must be interpreted as requiring the triggering Court to sentence for the triggering offence and then to remand an accused to the suspended sentencing court in the same court sitting.

32.     That is not to restrict the application of the jurisprudence which permits an amendment of a court order when an application takes place to do so within the sitting of the court.  In that instance, the court is not functus officio with respect to the matter before it and can amend the order.  However, I am of the opinion that the concept of "the sitting of the court" cannot extend to listing a matter seven days after it was finalised.  As stated by O'Malley J in Richards v. O'Donohue [2017] 2 IR 157 at paragraphs 43 and 47:-

               "I agree with Birmingham J. and with the observations of Geoghegan J. in Kennelly v. Cronin [2002] 4 OR 292 that the sheer volume of cases dealt with in the District Court and, on appeal, the Circuit Court, requires the availability of a relatively informal mechanism for the correction of mistakes and misunderstandings.  The problem is to define the parameters of the jurisdiction, having regard to current court listing systems, the necessity to observe fair procedures, the necessity to act rationally, and the requirement to give reasons.  

               ...

               One question that arises is whether the original order has taken effect, such that the judge is rendered functus officio.  Thus, in The State (Dunne) v. Martin the appellant had been received into prison and had commenced serving his sentence when the judge purported to relist the matter.  As a matter of law, a sentencing judge has no power to release a person who is serving a sentence.  However, it seems to me that if a sentenced person was still in the precincts of the court, in custody but awaiting transport to prison, it might be possible for the judge to change his or her mind on realising that a mistake might have occurred in the sentencing process."

33.     In the instant matter, sentence for the triggering offence had been imposed, the appellant was in prison on foot of same and 6 days of his sentence were spent. In those circumstances, it cannot be said that the District Court retained jurisdiction over the matter such that it could re-enter the matter before it.

The Remaining Arguments

34.     My determination to the effect that Nenagh District Court did not have jurisdiction to re-enter the triggering offence matter in the circumstances arising, having regard to the terms of s. 99(8A) of the 2006 Act, ipso facto implies that the appellant should have had notice of the application before Nenagh District Court so that legal argument could have been made in that venue regarding the validity of making a remand order. The fact that he did not have such notice and therefore did not have legal representatives present implies that an unfairness occurred in the process. However, neither of these legal questions are the basis for my determination in the matter and therefore I will not address further the specific arguments made in both respects.

Conclusion

35.     The order made by Nenagh District Court returning the appellant to Balbriggan District Court was invalid and ultra vires Nenagh District Court having regard to the terms of s. 99(8A). Accordingly, I will grant an order of Certiorari quashing the order made in Nenagh District Court on 21 July 2023 in respect of the appellant remanding him to Balbriggan District Court sitting in Swords.