THE SUPREME COURT
228/99
KEANE CJ.
MURPHY J.
McGUINNESS J.
HARDIMAN J.
FENNELLY J.

BETWEEN:
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR/RESPONDENT
and

PADRAIG FINN
DEFENDANT/APPELLANT

JUDGMENT OF THE COURT DELIVERED ON THE 24TH DAY OF NOVEMBER 2000 BY KEANE C.J. [Nem Diss.]

The factual background

This is an appeal brought by the defendant pursuant to s. 3 of the Criminal Justice Act, 1993 from the determination by the Court of Criminal Appeal of an application under s. 2 of that Act, the court having certified that its determination involved a point of law of exceptional public importance and

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that it was desirable in the public interest that an appeal should be taken to this court.

The applicant was convicted by the Central Criminal Court (Lavan J.) on a plea of guilty in respect of charges of

(a) rape contrary to s. 48 of Offences Against the Person Act, 1861 as amended by s. 2 of the Criminal Law (Rape) Act, 1991 and

(b) assault occasioning actual bodily harm contrary to s. 47 of Offences Against the Person Act, 1861.

The details of the rape and the assault were as follows. The applicant and the injured party, M. were on the beach at Rosses Point, Co. Sligo in the early hours of the 18th January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girl friend’s child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had

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been raped and did not become so aware until a subsequent medical examination showed evidence of semen in her vagina.

The applicant, when first questioned by the gardaí, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the Victim Impact Report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.

At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother’s second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with

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whom he lived in a flat and with whom he had a child who was three weeks old at the date of the offences to which he was now pleading guilty.

The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating Garda sergeant, of the applicant’s mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.

Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten “to within an inch of her life”. He also accepted entirely the conclusions in the Victim Impact Report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and

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that he had also entered the witness box and given sworn evidence as to his remorse for what he had done. The trial judge also accepted that the applicant’s family would have been prepared to pay compensation, so far as their means allowed, to M. but that M. and her family were not prepared to accept such compensation, a decision which the trial judge said that he understood and respected.

The trial judge concluded that the appropriate sentence in this case was one of seven years’ imprisonment in respect of the first count and three years’ imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider “reviewing how I will deal with the remainder of the sentence”. He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had undergone and he would also require a report at that stage on the injured party.

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When the matter came before the court again on October 22nd, 1998, a further Victim Impact Report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.

There was also a report before the trial judge of Mr. Paul Murphy, a clinical psychologist concerned in the Sex Offenders’ Programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have “ongoing supervision in the community and access to appropriate professional support”.

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During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would avail of ongoing therapy. He then gave a voluntary undertaking not to visit the county of Sligo until the 10th December 2003, to reside with his uncle and to arrange for ongoing supervision in the form of therapy. The trial judge then went on:

“On the basis of the undertakings that the accused has sworn on evidence given before me, I am prepared to release him. The court has to balance the possibility of his being regenerated into the future. He is a young man. It has to afford him hope that he can address his future from here on in.”

The trial judge accordingly released the applicant but directed that the case should be listed again in three months time so that the judge could be told of the position as to supervision. There was in fact a further hearing on April 14th at which the trial judge heard evidence from the applicant that he was living in Longford with his girlfriend, that he was doing a two-year computer

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course in that town, that he had had no contact with the injured party and that he was under the care of Mr. Ryan O’Neill, a psychologist with the Midland Health Board. He said that Mr. O’Neill had been informed of the circumstances of his case by Mr. Paul Murphy who had attended their first meeting. The trial judge, having heard this evidence, suspended the balance of the two sentences, subject to the conditions imposed by him at the earlier hearing.

The application to the Court of Criminal Appeal

On the 18th November 1998 the prosecutor gave notice of an application to the Court of Criminal Appeal pursuant to s. 2 of the 1993 Act

“to review the sentence passed upon the accused herein on the 22nd day of October 1998 by the Central Criminal Court, the Honourable Justice Lavin (sic).”

The notice of application said that:-

“It is submitted that the sentence imposed on the 22nd of October, 1998 is unduly lenient having regard to all the circumstances of the case, including:

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the gravity of the offence, the unprovoked nature of the assault, the severity of the violence inflicted on the injured party, the Victim Impact Report submitted to the court, the oral evidence submitted to the court by a member of An Garda Síochána in 1996 and 1998, and in particular the contents of the report prepared by Paul Murphy, clinical psychologist at the Department of Justice dated the 15th of October 1998, together with a transcript of the evidence tendered before the Central Criminal Court and the judgment of the Central Criminal Court.”

When this application came before the Court of Criminal Appeal, counsel for the applicant objected that it was out of time, not having been made within 28 days from the day on which the sentence was imposed as required by s. 2 of the 1993 Act. In a short ex-tempore judgment delivered on the 14th June 1999, the court rejected that objection. It then proceeded to deal with the application itself and, again in a brief ex-tempore judgment, the court acceded to the prosecutor’s application and substituted for the sentence imposed in respect of the charge of rape a sentence of six years’ imprisonment, with no suspension in respect of either of the sentences.

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On the application of counsel for the applicant, the court then certified that it was in the public interest that an appeal should be taken to this court on the point set out in a certificate, i.e.

“was it permissible for the DPP to appeal against the undue leniency of the said sentences pursuant to s. 2 of the Criminal Justice Act, 1993 when no application was made until almost two years after the original sentence was imposed?”

Submissions on behalf of the applicant

Mr. Blaise O’Carroll, S.C., on behalf of the applicant, submitted that the words of the statute in this case should be literally construed and given their ordinary and natural meaning. So construed, the time limit for the purpose of an appeal was “28 days from the date on which the sentence was imposed”. He submitted that that could only refer to the 10th December 1996 when the sentence was imposed by the Central Criminal Court.

Mr. O’Carroll submitted that the definition of “sentence” in s. 1 of the 1993 Act did not include a review of the sentence, which was a process occurring after sentence aimed primarily at the rehabilitation of the offender. He further submitted that, since the review of sentences was a feature of the

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criminal justice system which had been in existence for a number of years prior to the coming into force of the 1993 Act, the legislature, if it intended to include such reviews within the scope of the expression “sentence imposed by a court” in s. 2 would have done so in clear and unambiguous language.

Mr. O’Carroll further submitted that the prosecutor was not precluded from appealing a decision of a court to impose a sentence subject to its being reviewed within a specified time, on the ground that it appears to him that such a sentence is “unduly lenient”. The Director of Public Prosecutions is represented in court when the sentence is imposed and will be aware that, when a sentence provides for a review within a specified period, the probability is that, if the offender complies with any conditions laid down by the trial judge, he or she will be released on the review date with the balance of the sentence being suspended. He said that the Director of Public Prosecutions had implicitly accepted that the appropriate course for him to take where it appeared to him that the provision for a review date in the sentence was unduly lenient was to apply to the court under s. 2 of the 1993 Act for a finding to that effect within the 28 days provided for in the Act, as he had done in the case of The State at the prosecution of the Director of Public Prosecutions .v. James Kelly (unreported: judgment delivered 3rd July 2000).

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On behalf of the prosecutor, Mr. Peter Charleton, S.C. said that the appeal on the point of law as certified by the Court of Criminal Appeal raised issues of fundamental importance as to the entire review procedure on which the Director was anxious to obtain guidance from this court.

Mr. Charleton submitted that the date “on which the sentence was imposed” within the meaning of s. 2(1) of the 1993 Act was the 22nd October 1998, since it was only at that stage that the order of the Central Criminal Court disposing of the case was finalised. An application by the prosecutor within the period of 28 days from the 10th December 1996 would have been premature, since at that stage the Central Criminal Court had not given any indication as to what course of action it proposed to take on the review date. In circumstances where a trial judge effectively adjourns a case pending a review of a sentence -as happened here - he necessarily continued to exercise a jurisdiction affecting the operation of the sentence. In those circumstances, the sentence could not be said to have been “imposed” within the meaning of the legislation until the review date.

A term of imprisonment was the period fixed by the judgment as the punishment for the offence and, accordingly, a sentence was not “imposed” until such time as the term of imprisonment was actually fixed. He cited in this

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connection observations of Dixon C.J. in the High Court of Australia in Windsor .v. Boaden (1953) 90 CLR 345 at 347. As to the meaning of the word “imposed”, it was submitted that this connoted an action taken unilaterally by the court rather than an action voluntarily undertaken by the accused in a case and, accordingly was an appropriate use of language to describe what happened at the review stage.

Mr. Charleton further submitted that it was clear from the decision of this court in O’Brien .v. The Governor of Limerick Prison [1997] 1 ILRM 349 that where a judge provides for a review of a sentence imposed by him at some future date he or she retains seisin of the case. He said that it was a logical consequence of that finding that such a case could not be regarded as finally disposed of until such time as the review procedure was completed by the court of trial.

The applicable law

Section 2 of the 1993 Act provides that:

“(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment

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was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the date on which the sentence was imposed.”

Section 1(1) of the Act provides that:

“In this Act, unless the context otherwise requires -‘sentence’ includes a sentence of imprisonment and any other order made by a court in dealing with a convicted person other than

(a) an order under s. 17 of the Lunacy (Ireland) Act, 1821 or s. 2(2) of the Trial of Lunatics Act, 1883, or

(b) an order postponing sentence for the purpose of obtaining a medical or psychiatric report or a report by a probation officer

Article 13.6 of the Constitution provides that

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction

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are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities.”

Section 23 of the Criminal Justice Act, 1951 provides that

“(1) except in capital cases, the government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper;

(2) The government may remit, in whole or in part, any forfeiture or disqualification imposed by a court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture;

(3) The government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation;

(4) This section shall not affect any power conferred by law on other authorities.”

For a period of over 20 years, a practice has developed in the Central Criminal Court and the Circuit Court of including in a custodial sentence

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imposed by the court a provision for a review of the sentence at the expiration of a specified period. The normal practice has been for the trial judge, when the matter comes before him or her by way of review, to receive and consider reports from the prison service as to the behaviour of the convicted person. In cases where the person has been convicted of a sexual offence, reports will normally be forthcoming as to whether a place was available in a sex offenders programme and, if so, whether it was availed of by the convicted person. Similarly, where the convicted person is addicted to drugs or alcohol or both, reports would normally be available to the court indicating whether he has received appropriate forms of counselling or therapy and, if so, the degree to which he has benefited from them.

The Court of Criminal Appeal expressed its disapproval of sentences of this nature at an early stage in The People (DPP) .v. Fagan (unreported: judgment delivered 7th November 1977) and The People (DPP) .v. O’Toole (unreported: judgment delivered 26th May 1978). There was no written judgment in either of those cases, but in The People (DPP) .v. Cahill [1980] IR 8, the desirability of such sentences was considered at length by Henchy J. delivering the judgment of the court.

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In that case, the applicant was sentenced to seven years’ imprisonment by the Central Criminal Court, having been convicted of burglary. The trial judge, however, directed that the court would “consider suspending the then balance of the sentence” if the applicant were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime that he had obeyed normal prison discipline and had shown a willingness to co-operate in preparing himself for integration into normal society.

In his judgment, Henchy J. having referred to the two earlier decisions, went on -

“Because the opinion of this Court (that a sentence in this form should not be imposed) has not been expressed in a written judgment and may, therefore, have escaped notice, the Court takes this opportunity of re-stating that opinion and giving reasons for it. There are a number of grounds on which this form of reviewable sentence could be said to be undesirable.”

The first of these grounds was that, in making such an order, a High Court judge sitting in the Central Criminal Court, would effectively be pre-empting the functions of the President of the High Court since s. 11 of the Courts (Supplemental Provisions) Act, 1961 stipulates that the jurisdiction

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exercisable by the Central Criminal Court shall be exercised by a judge nominated from time to time by the President of the High Court. Henchy J. pointed out that the projection by a trial judge of a sentencing jurisdiction into the distant future ignores the fact that, for a variety of reasons (including the statutory provisions therein referred to), he may not be available to exercise the purported jurisdiction on that date in the future. While that case was concerned only with the practice in the Central Criminal Court, the observations of Henchy J. would appear to apply mutatis mutandis to the position in the Circuit Court.

The second ground was that a sentence in this form did not seem compatible with the right of appeal against sentence given to a person convicted on indictment. Having regard to the time constraints applicable to the appeal procedure, a convicted person would be in difficulties in exercising his right of appeal on the ground of severity, since he would not know at that stage the length of the sentence which he would in fact be required to serve. If, however, the expression “the close of the trial” in the relevant rule of court, which was the time from which the appeal period ran, were to be the date when the sentence was being reviewed, the sentenced person’s right to seek to appeal would be postponed until then which would be “palpably unfair and unjust”. Henchy J. observed:

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“The inevitable conclusion seems to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statute or under the rules) the trial judge is functus officio as far as the trial is concerned”

The third ground was that such a sentence gave the appearance of trenching on a function of the Executive. Henchy J. commented that

“It is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice. Thereafter, it is with the power of the Government, or the Minister for Justice as its delegate, to commute or remit, in whole or in part, ‘any punishment imposed by a Court exercising criminal jurisdiction’ -see the provisions of s. 23 of the Criminal Justice Act, 1951. A direction that a prisoner is to be brought back to the court of trial for a review of his sentence after three years impliedly seeks to freeze the Executive discretion as to remission during that period, and then to vest in the court a power of review which is not readily

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compatible with the powers withheld from the Courts and vested in the Executive by s. 23 of the Act of 1951.”

Finally, it was said that such a sentence was not in accord with correct principles of penology, since it was desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release and that the appropriate rehabilitative procedures should be in place leading up to the date of release.

The judgment concluded as follows:-

“For the foregoing reasons amongst others, the Court is of opinion that a sentence of a term of penal servitude or imprisonment which is coupled with the reservation to the court. or to the particular judge, of a power to review the sentence at a future date should not be imposed.”

“In this case the Court will quash the sentence imposed and, in lieu thereof will impose a sentence of four years imprisonment from the date of the imposition of the sentence hereby quashed.”

Despite this disapproval by the Court of Criminal Appeal of sentences of this nature, they have been imposed in many cases since then by judges sitting

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in the Central Criminal Court and the Circuit Court. They were also considered in a more recent decision of the Court of Criminal Appeal, The People at the suit of the Director of Public Prosecutions .v. Philip Sheedy (unreported: judgment delivered 15th October 1999). In that case, the applicant had pleaded guilty to counts of dangerous driving causing death and of driving a motorcar while above the alcohol limit. The trial judge imposed a sentence of four years to be reviewed in two years time. Delivering the judgment of the court, Denham J. said

 “The issue of the review date formula of sentencing was not fully argued The review structure is a process by which a judge is able to individualise a sentence for the particular convicted sentence. It is a tool by which the judge may include in a sentence the appropriate element of punishment (retribution and deterrence) and yet also include an element of rehabilitation. For example, it may be relevant to a young person or a person who has an addiction or behavioural problem and at least some motivation to overcome that problem, it may well be appropriate as part of a rehabilitation aspect of the sentence to provide for a programme or treatment within the sentence as a whole and then to provide for a review of the process at a determinate time. However this was not such a case. There was no evidence of for example,

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addiction. There were no factors such as would render it appropriate to invoke a structure of treatment and then to review the sentence. This is not an appropriate case to sentence on the review date formula of sentencing. Thus, the trial judge erred in principle in this aspect of the sentence.”

From the summary of counsel’s arguments at an earlier part of the judgment it would appear that the court was referred to Cahill but it is not otherwise referred to in the judgment.

A sentence containing such a review provision was considered by this court in The People .v. Aylmer (decided in 1986 but not reported until [1995] 2 ILRM 624). A sentence providing for a review had been imposed in 1979 and the balance of the sentence was suspended in 1982 on condition that the applicant would remain of good behaviour. However, following a further separate conviction in 1984, the DPP applied to have the suspension of the balance of the 1979 sentence revoked and the Central Criminal Court duly ordered the applicant to serve the remaining balance of the sentence. The Supreme Court dismissed an appeal against the sentence, but the reasons given in the five judgments delivered are not the same.

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Walsh J. said that the sentence originally imposed by the Central Criminal Court was valid. He rejected a submission that it in some way trenched on the powers vested in the Executive by s. 3 of the Criminal Justice Act, 1951, pointing out that the Executive were not precluded from commuting the sentence in its entirety and that, if they had chosen so to do, the review provision in the sentence would simply have been inoperable. He also rejected the suggestion that the trial judge had in some way been usurping the functions of the President of the High Court, since the sentence simply envisaged that the order on the review procedure would be made by a judge of the Central Criminal Court, not necessarily himself. He declined to deal with the other grounds of appeal raised, on the ground that they raised questions as to whether the sentence imposed was in accordance with principles of good penology, which, he said, could only have been raised if an appeal had been taken against the sentence.

As to the decision in Cahill, Walsh J. commented that

“It should be pointed out that that in that case the court was dealing with a sentence of penal servitude and not one of imprisonment. When the question of whether any particular sentence is in an undesirable form or not falls to be considered by

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the appropriate appellate court it is one which must be determined by the circumstances of the case.”

It should be noted that Walsh J. accordingly, does not deal with two of the grounds mentioned by Henchy J. in Cahill i.e. whether a sentence containing a review procedure is incompatible with the right of appeal of a convicted person against sentence and whether it is in accordance with correct principles of penology. The reasons he declined to deal with the latter ground have already been mentioned and it may be that the first ground was not relied on in Aylmer.

Henchy J. said that the appeal should be dismissed because the applicant was estopped from claiming that the original sentence was invalid, since he had sought to take advantage of it by getting the balance of his sentence suspended. As to Cahill, he contented himself with saying that

“It is true that the Court of Criminal Appeal on 26th July 1979 in People (DPP) . v. Cahill held that an order of the kind made by Butler J in this case was undesirable. In my opinion, it is not necessary for the purpose of this appeal to make a ruling as to whether such an order is also invalid, as distinct from being undesirable.”

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Griffin J. also found it unnecessary to express any view on the validity of the original sentence: he held that, since it had not been appealed, its validity could not now be successfully challenged and that it followed that the order appealed from to the Supreme Court, deriving as it did its efficacy from its initial order, also could not be challenged.

Hederman J. also declined to express any view on the propriety or validity of sentences of this nature. He was satisfied that the appeal in the instant case failed because there had been no appeal within time from the original sentence and there were no grounds on which the court could grant any extension of time for such an appeal. McCarthy J., in common with Walsh J., was satisfied that the sentence containing the review provision was valid, but was not prepared to express any view as to its desirability, saying

“I think it would be invidious for me to express any view of intended general application in a sentencing matter. I would not wish to circumscribe the judicial power in its application to the circumstances of a particular case.”

Two members only of the court (Walsh and McCarthy JJ.), accordingly, upheld the validity of this form of sentence in that case. The majority

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(Henchy, Griffin and Hederman JJ.) were of the view that it was unnecessary to express any view on the validity or propriety of such a sentence and declined so to do.

The topic was considered more recently by the court in Michael O’Brien .v. Governor of Limerick Prison [1997] 2 ILRM 349. In that case, the applicant was sentenced to imprisonment for a term of 10 years, the final six years of which were to be suspended subject to certain conditions which were to take effect when the period of suspension began. However, the applicant claimed to be entitled to be released before the expiration of the four year period on the ground that he had at that stage served three-quarters of the custodial sentence and was entitled to be released pursuant to Rule 38(1) of the Rules of the Government of Prisons 1947. That rule provides that a prisoner sentenced to imprisonment for a period exceeding one calendar month is to be eligible, by “industry and good conduct”, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence. The applicant in that case was entitled to the remission for industry and good conduct, provided - and this was the matter at issue - the provisions of Rule 3 8(1) applied to the term of four years and not to the term often years only.

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The court (Hamilton C.J., O’Flaherty, Denham, Barrington and Murphy JJ.) held that a sentence in that form could not be reconciled with the provisions of the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947 which, in the view of the court, clearly contemplated that the period of imprisonment should be identical with the period of the sentence. It was also inconsistent with the provision in the Act that on the discharge of a prisoner “a sentence shall be deemed to have expired”: this, it was pointed out, seemed to be inconsistent with a period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the rules and the Act. Accordingly, the sentence of ten years, suspended as to the final period of six years, could not have been lawfully imposed, but a sentence of four years had been lawfully imposed and the applicant was entitled to a remission of one-quarter of that four years’ term. He was therefore entitled to be released after the expiration of three years.

O’Flaherty J. indicated in the course of his judgment that, had the trial judge made use of the review procedure instead of purporting to suspend the sentence as from a specified date, the sentence would have been valid. O’Flaherty J. commented:

“This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) .v. Cahill but when

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the question was revisited, this court in People (DPP) .v. Aylmer upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case.

As has already been pointed out, the majority of the court in Aylmer declined to express any view on the validity of the review procedure and, accordingly, the view of Walsh J. and McCarthy J. that such sentences were valid did not form part of the ratio decidendi of that case.

The validity of the review procedure was also referred to in The State (Woods) .v. Attorney General [1969] IR 385. The facts in that case were somewhat complex: it is sufficient to say that a sentence containing a review clause was found to be invalid by Henchy J. in the High Court, but solely on the ground that he construed the sentence as entrusting the decision as to whether the prosecutor was to be released to the prison authorities, which he considered to be an unlawful assignment of a purely judicial function to the Executive. On the hearing in this court, however, it emerged that the warrant in that case did not fully or accurately reflect what the High Court judge had said when imposing sentence. Ó Dálaigh C.J. in the course of his judgment said that it was clear that the High Court judge had in fact retained seisin of the case and

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that, accordingly, the sentence could not be regarded as invalid on the ground on which Henchy J. had based his decision in the High Court. The learned Chief Justice expressed no view on the wider issue which was subsequently debated in Cahill - as to whether such sentences were invalid in principle irrespective of how the review provision was worded - and, while in accordance with the then prevailing practice there is virtually no report of any of the arguments advanced to the court, it would seem reasonable to assume that the issues canvassed in Cahill were not the subject of any submissions to the court.

The issue as to whether sentences of this nature are valid and, if so, whether their imposition is desirable has, accordingly, never being authoritatively resolved. On three occasions, the Court of Criminal Appeal has held that they are undesirable. In Sheedy, however, it was accepted that their imposition in cases concerning young people and convicted persons with behavioural or addiction problems might be appropriate. In Woods, this court held that a sentence containing a review clause in particular terms was not invalid on a ground which had prevailed in the High Court. In Aylmer two members of the court were of the view that such sentences were valid, but expressed no opinion as to their desirability. The majority of the court expressly reserved the question as to whether they were either valid or desirable. In O’Brien, the determination of the issue was not necessary for the

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disposal of the appeal and, accordingly, the observations of O’Flaherty J., not dissented from by the other members of the court, that their validity had been established in Aylmer were obiter.

It remains to be noted that s. 5 of the Criminal Justice Act, 1999, which provides for the imposition of a mandatory minimum term of imprisonment of ten years for certain drugs offences, also provides that

“In imposing a sentence on a person convicted of an offence under s. 15A of [The Misuse of Drugs Act 1977], a court -

(a) may enquire whether at the time of the commission of the offence, the person was addicted to one or more controlled drugs, and

(b) If satisfied that the person was so addicted at the time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under sub-s. 3(b) of the section.

3(h) On reviewing a sentence listed under sub-s. 3(g)(b) of this section, the court -

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

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(b) in deciding whether to exercise its powers under this sub-section, may have regard to any matters it considers appropriate.

Conclusion

The central issue raised by this appeal is whether the expression “the sentence” in s. 2(2) of the 1993 Act refers to the sentence imposed by the learned trial judge on the 10th December 1996 or to the orders made by him on the 22nd October 1998 and the 14th April 1999 or to all three.

The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence

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at a later stage, its invalidity would be beyond argument: it is clear from the authorities already cited that, to the extent that such sentences are valid, it is because the trial judge is entitled to reserve to himself a power, when imposing sentence, to consider at a later date whether it should be suspended in whole or in part having regard to the behaviour of the applicant in the interim period. To that extent, and to that extent alone, the trial judge is not functus officio: the order made by him at the review procedure is no more than the carrying into effect of the sentence already imposed by him.

The court is, accordingly, satisfied that, to the extent that the legislature directed their minds to the possibility of a sentence containing a review clause when enacting s. 2(2) of the 1993 Act, they would have envisaged that any appeal taken by the DPP in the case of such a sentence on the ground of undue leniency was to be taken within 28 days from the imposition of the sentence and not of the order implementing the review procedure. It is important to note in this context that a number of the grounds advanced on behalf of the DPP at the appeal stage in this case, and which appear to have been the grounds which found favour with the Court of Criminal Appeal, related exclusively to the sentence as originally imposed, i.e. the gravity and severity of the assault and rape, the unprovoked nature of the assault and the grave impact of the assault and rape on the injured party. Clearly, given the express statement by the trial

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judge when imposing sentence that he would, at the review date, entertain evidence as to the conduct of the applicant in prison and the counselling he had undergone, it must have been anticipated on behalf of the DPP that, in the event of such reports being favourable, the balance of the sentence would be suspended. Arguments based on those grounds were, accordingly, appropriately directed to the sentence as originally imposed, containing as it did the review clause, and not to the order actually made at the review stage.

As to the definition of “sentence” in s. 1(1) of the 1993 Act, the legislature no doubt considered it desirable to make it clear that the expression “sentence imposed by the court” in s. 2(1) applied, not merely to custodial sentences, but also to the wide range of other sentences available to a court in dealing with a convicted person, e.g. fines, community service orders, orders forfeiting property or providing for the payment of compensation, etc. It also seems clear that, having regard to sub-paragraph (b), an order by the trial judge adjourning the imposition of sentence for a period of time, such as a year, in order to afford the convicted person an opportunity of demonstrating a bona fide intention of rehabilitating himself, is a “sentence” for the purposes of the section, as distinct from a an order adjourning sentence for the purpose of obtaining reports. That was so held by the English Court of Appeal in Attorney General’s Reference (No. 22 of 1992) [1994] 1 All ER 106, when it was

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considering a somewhat analogous provision in that jurisdiction. It can, accordingly, be said that, in such a case there are in effect two sentences, but that is because the legislature has elected to extend the definition of the word “sentence” to an order which in fact defers sentence. An appeal thus lies from either or both sentences and the time limit prescribed by s. 2(2) applies to both. An appeal would lie from the order deferring sentence on the ground that such a “sentence” was unduly lenient because the circumstances required the imposition of an immediate sentence, whether custodial or otherwise. Similarly, an appeal would clearly lie from the sentence ultimately imposed.

Similarly, an appeal undoubtedly lay from the sentence imposed in this case on the ground that the incorporation of a review procedure in the sentence was “unduly lenient” within the meaning of s. 2(1). No doubt, on a literal reading of the section each of the orders made in this case on the 22nd October 1998 and the 14th April 1999 was an “order made by a court in dealing with a convicted person” within the meaning of s. 1(2). That might suggest that, in an appropriate case, it would be open to the DPP, even where he had made no application to the Court of Criminal Appeal in relation to the original sentence, to apply to that court on the ground that an order made by the trial judge on the review date was “unduly lenient”, as where it was clear from the reports from the prison authority or from any other evidence before the trial judge that the

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conditions prescribed in the sentence for the reviewing of the sentence had not been complied with by the applicant.

However, s. 1(2) cannot be read in isolation: in accordance with normal principles of statutory interpretation, it must be read in the context of the statute as a whole, including the provisions of s. 2. Subsection (2) of that section refers to:

“a sentence imposed by a court on conviction of a person on indictment...” [Emphasis added].

While it can readily be accepted that, given the extended definition of “sentence” in s. 1(1), an order deferring sentence for a specified period for the purpose already mentioned is a sentence imposed by the court “on conviction”, the same cannot be said of the order made by a court giving effect to a review provision.

It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to challenge a sentence as being “unduly lenient” constitutes a significant encroachment upon the finality of a judicial decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on indictment, is without precedent.

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Hence, the importance of the time limit of 28 days for making such an application prescribed by s. 2(2) and the absence of any power in the court to extend that time.

The court is satisfied that it would not be consistent with that approach to construe s. 2(2) as affording the Director two separate opportunities of applying to the Court of Criminal Appeal, the first arising on the imposition of the sentence containing the review provision and the second when the court actually reviews the sentence in accordance with the first decision. There is nothing in the statutory scheme to suggest that it was the intention of the Oireachtas to permit the DPP to intervene on two separate occasions to obtain a review from the court of what is effectively the same sentence.

The court is, accordingly, satisfied that, not having applied to the Court of Criminal Appeal within the 28 days prescribed by s. 2(2) on the ground that the incorporation of the review procedure was “unduly lenient” within the meaning of s. 2(1), the prosecutor was precluded from making an application to the court in respect of the two orders subsequently made by the trial judge and that the Court of Criminal Appeal was wrong in law in substituting sentences of six years imprisonment and three years imprisonment with no suspension of either sentence for the sentence originally imposed by the trial judge.

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That is sufficient to dispose of the appeal in the present case. However, it will be apparent from the earlier part of this judgment that there is considerable uncertainty as to the legal validity of the practice of providing in custodial sentences for the review of the sentence at a later date by the court imposing the sentence. Members of this court who have sat regularly on the Court of Criminal Appeal and have also experience of the practice in the Central Criminal Court or in the Circuit Court are aware that, while some judges consider the practice not only valid, but desirable, others take the view that they should not impose such sentences. In a matter of such importance it is to be expected that this court will afford clear guidance to trial judges and, accordingly, while mindful of the fact that in legal terms everything it says on this topic must be regarded as obiter, it is satisfied that it is desirable in the public interest that such guidance should be available to trial judges.

There can be no doubt that, in the opinion of some judges, the review procedure is an important mechanism which helps to ensure the rehabilitation of convicted persons. There are, however, two important aspects of such sentences which must be borne in mind in considering their legal validity.

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First, there is the factor identified by Henchy J. in The People (DPP) .v. Cahill i.e. that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J. in Aylmer that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s. 23 of the Criminal Justice Act 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.

However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The Minister cannot, of course, in exercising that power do what the court

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purports to do at the review stage, i.e. impose a suspended sentence which would normally involve the convicted person being returned to prison on foot of the order of a court in the event of his being convicted of further offences or breaking other conditions attached to the sentence. But if one looks to the substance of the order made by the court at the review date it is clearly an order which releases the convicted person before the completion of the sentence which the judicial arm of government considered appropriate at the sentencing stage and must, accordingly, be regarded as, in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the Executive.

The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law on other authorities. Since under Article 15.2.10 of the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas, it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act 1951, the Oireachtas conferred the power of commutation or remission on the government or, where

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it delegated its power, the Minister. In The State (O) .v. O’Brien [1973] IR 50, Walsh J. with whom Budd J. agreed, categorised the power in question as being essentially judicial, but pointed out that it had been

“nonetheless expressly conferred by provisions of the Constitution upon the President and, in certain instances, upon the Executive or members thereof.”

It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. That, as has been noted, has been done in the case of certain drugs offences by the Criminal Justice Act, 1999.

It is also, of course, open to the Oireachtas to provide by legislation, as has been done in other countries, for the regular review of sentences by a parole board and such an approach might well be consistent with modern penological principles. These again, however, are entirely matters for the legislature and not within the competence of the courts, having regard to Article 13.6, to determine.

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It must also be said that, altogether apart from those considerations, the reservation by trial judges to themselves of a power to review the sentence being imposed by them at some later date appears to be fundamentally at variance with the appeal structure prescribed by Order 86, Rule 3 of the Rules of the Superior Courts. That provides that

“Every application for a certificate of the judge of the court of trial that the case is a fit case for appeal shall be made at the close of the trial or within three days thereafter...”

The “close of the trial” would normally be taken as referring to the stage at which the trial judge imposes sentence. If, however, the sentencing process is not completed until the review date, that would appear to be “the close of the trial” for the purposes of the rule and a convicted person would effectively be deprived of his right of appeal against the sentence until such time as he had served at least part - and it may be in some cases a significant part - of the sentence imposed by the trial judge.

The form of sentence imposed in this case came into use for a variety of reasons. First, there was a very striking increase in crime committed by persons who were drug addicts or were otherwise in need of treatment which gave rise to a need to give positive encouragement to avail of it. Secondly, and

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at about the same time, the “revolving door syndrome” created a need to ensure, as far as possible, that certain prisoners would actually serve some minimum sentence. Thirdly, the absence of any significant legislative initiative on these topics encouraged and virtually constrained trial judges dealing with such cases on a day to day basis to attempt to supply the deficiency in the course of dealing with individual cases. In this context, it may be noted that even the suspended sentence, though apparently in use for upwards of a century, has no statutory basis in Irish law. And fourthly, while the executive power of remission of sentences (apart from the usual remission obtainable under the prison rules) always existed, it was exercised in a manner which a leading academic authority has moderately described as “rather haphazard”. Certainly, it was neither sufficiently clear in its principles nor transparent in its operation to meet the penological requirement of reasonable certainty.

In those circumstances, it appears to us that Professor Thomas O’Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin 2000) that:-

“In developing the part suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the ‘revolving door syndrome’ by ordering that certain offenders should remain in prison for a

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minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment for drug addiction, aggressive tendencies or some similar problem.”

It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing [LCR 53-96] reviewed a number of options in this regard. This is not a matter within the competence of this court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature.

The court has already pointed out that its observations in this area are necessarily obiter. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the

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courts, either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future. That also applies to the sentence imposed by the trial judge in the present case and the manner in which he operated the review procedure on two subsequent occasions.

It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable. For the purposes of this judgment, however, it is sufficient to say that the court is satisfied that sentences in this form are undesirable, having regard to the serious legal questions which arise as to their validity, and that the practice of imposing them should be discontinued.

In the present case, the court will allow the appeal and will substitute for the sentence imposed by the Court of Criminal Appeal the sentence originally

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imposed in the Central Criminal Court and will also affirm the orders made by the Central Criminal Court on October 26th, 1998 and April 14th, 1998.