Director of Public Prosecutions -v- Foley [2014] IESC 2 (23 January 2014)

Judgment Title: Director of Public Prosecutions -v- Foley

Neutral Citation: [2014] IESC 2

Supreme Court Record Number: 530/12

High Court Record Number: 2006 202 CJA

Date of Delivery: 23/01/2014

Court: Supreme Court

Composition of Court: Denham C.J., Murray J., Hardiman J., O'Donnell Donal J., MacMenamin J.

Judgment by: Denham C.J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result	Concurring
Denham C.J.	Link	Appeal dismissed	Murray J., Hardiman J., O'Donnell Donal J., MacMenamin J.

Outcome: Dismiss

THE SUPREME COURT

Appeal No: 530/2012

Denham C.J.
Murray J.
Hardiman J.
O’Donnell J.
MacMenamin J.

Between/

The People at the suit of the Director of Public Prosecutions

Respondent

and

Anthony Foley

Appellant

Judgment delivered on the 23rd day of January, 2014, by Denham C.J.

Certificate from the Court of Criminal Appeal
1. This appeal comes before the Court by way of a certificate from the Court of Criminal Appeal, pursuant to s. 29 of the Courts of Justice Act, 1924, as amended, that its decision of the 19th October, 2011, holding that the Court of Criminal Appeal is the appropriate court to deal with the revocation (pursuant to the provisions of s. 99 of the Criminal Justice Act, 2006, as amended) in whole or in part of the suspended portion of the sentence imposed on Mr. Anthony Foley, referred to as “the appellant”, by the Court of Criminal Appeal on the 19th April, 2007, involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court from that decision.

2. The point of law certified was:-

“Where the Court of Criminal Appeal has varied a sentence pursuant to section 2 of the Criminal Justice Act, 1993 by wholly or partly suspending it, is the Court of Criminal Appeal the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to section 99(10) of the Criminal Justice Act 2006 as amended?”

Background
3. On the 19th April, 2007, the Court of Criminal Appeal, referred to as “the CCA”, heard an appeal against alleged undue leniency brought by the Director of Public Prosecutions, referred to as “the DPP”, and allowed the appeal.

4. On the 19th April, 2007, the CCA (Kearns, Murphy, MacMenamin JJ.) held:-

“The Court won’t interfere with the sentence that was imposed, the seven years imprisonment consecutive to the twelve months imposed on the first offence. The total that was arrived at was eight years. The learned trial judge suspended the entirety of the eight years but this Court will suspend five of the eight years of the sentence so that the suspension will be on the same conditions that were fixed by the Circuit Court Judge.”

5. In breach of the conditions attached to the five year suspended term of imprisonment, the appellant committed further offences after his release from custody.

6. Section 99 of the Criminal Justice Act, 2006, as amended, referred to as “the Act of 2006”, makes provision for when a convicted person commits further offences while on a suspended sentence.

7. Section 99(9) of the Act of 2006, as amended, requires the Court before imposing sentence for the further offences to remand the person “to the next sitting of the Court that made the said order”.

8. The DPP, relying on the wording of s. 99(9) of the Act of 2006, as amended, considered that the appropriate court in the circumstances was the CCA.

9. Consequently, the matter was re-entered before the CCA, in order to request that the suspended sentence be revoked pursuant to s. 99(10) of the Act of 2006, as amended.

10. As a preliminary issue, the appellant challenged the application being made to the CCA, as opposed to the Circuit Court which had originally sentenced the appellant and set the conditions for the suspended sentence.

11. On the 19th October, 2011, the CCA (Finnegan, Budd, O’Keeffe JJ.) delivered a reserved judgment on this preliminary issue. It held that the CCA was the appropriate court to deal with the revocation, in whole or in part, of the five year suspended portion of the appellant’s sentence which had been imposed by the CCA on the 19th April, 2007.

12. It is this determination which has been appealed to this Court.

13. On the 12th November, 2012, the CCA (Fennelly, de Valera, White JJ.) had before it an application by the DPP pursuant to s. 99 of the Act of 2006, as amended, for the activation of the suspended portion of the sentence originally imposed on the appellant by the Circuit Criminal Court in 2006, but then varied on appeal by the CCA in 2007. The CCA held that, in the circumstances, and given the seriousness of the original offences, that the only logical thing it could do was to activate the entirety of the five year sentence which would then take effect from that date, that was the five years of the outstanding suspended portion of the sentence imposed in 2007 by the CCA. The powers of the CCA in relation to the revocation in whole or in part of a suspended sentence were explicitly not an issue on that day.

14. Further, on the 12th November, 2012, the CCA determined that the decision of the CCA of the 19th October, 2011, as to its jurisdiction, involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this Court.

15. By certificate dated the 14th November, 2012, the point of law was certified, as set out in the second paragraph of this judgment.

Submissions on behalf of the Appellant
16. Counsel for the appellant submitted that the decision of the CCA that it was the appropriate court to deal with the revocation, in whole or in part, of the suspended portion of the appellant’s sentence, was wrong in law, and that it had misinterpreted s. 99 of the Act of 2006, as amended. The appellant sought a declaration that the CCA was not the appropriate court to deal with the revocation of the appellant’s suspended sentence, and that consequently the decision of the CCA of the 12th November, 2012, revoking the said sentence, should be overturned.

17. On behalf of the appellant, three core arguments were advanced.

18. First, it was submitted that the CCA is a creature of statute, set up to be an appellate court. It is vested with no original jurisdiction. It was submitted that its jurisdiction flows from an appeal of a criminal matter which has already been decided. It was submitted that the CCA decides the appeal based on the transcript of the original hearing, and that it does not conduct a re-hearing. Having decided the appeal its function is complete. This was the situation under s. 34 of the Courts of Justice Act, 1924, and it was submitted that the new provisions contained in s. 3 of the Criminal Procedure Act, 1993 (which deals with miscarriages of justice and other matters) does not alter the situation. It was submitted that as an appellate court, once the CCA has dealt with an appeal by altering the sentence and providing for a suspended sentence, its jurisdiction is concluded. Thus, it was submitted that any further consideration of revocation of the suspended sentence falls to be dealt with by the original sentencing court, the Circuit Court. The decision in The People (AG) v. Grimes [1955] I.R. 315 was relied upon by the appellant.

19. Secondly, it was submitted that s. 99(12) of the Act of 2006, as amended, provides for an appeal against the revocation of a suspended sentence. It was submitted that the intent of the Oireachtas would be set at nought if it were determined that the CCA was the appropriate court to deal with the revocation of a sentence which it had suspended. This is because apart from the limited form of appeal under s. 29 of the Act of 1924, as amended, the decision of the CCA is final; there is no form of appeal to the Supreme Court on the merits of revocation as is, it was submitted, contemplated by s. 99(12) of the Act of 2006, as amended.

20. Thirdly, it was submitted that while the original alteration of the sentence in this case arose as a result of an appeal against undue leniency brought by the DPP, pursuant to s. 2 of the Criminal Justice Act, 1993, it would be an unjustifiable discrimination to treat the appellant differently to a person whose sentence was suspended on foot of an appeal against the severity of their sentence pursuant to s. 3 of the Criminal Procedure Act, 1993.

21. It was submitted on behalf of the appellant that the certified question be answered in the negative, that the CCA did not have jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99(10) of the Act of 2006, as amended.

Submissions on behalf of the DPP
22. In submissions made on behalf of the DPP, it was agreed that the jurisdiction of the CCA is prescribed by statute.

23. It was pointed out that this case first came before the CCA in April 2007, pursuant to an appeal by the DPP on the basis that the sentence was unduly lenient, and that the CCA found in favour of the DPP, holding that the suspension of the entirety of the sentence was unduly lenient. Consequently, the CCA quashed the sentence and imposed a sentence in lieu of the original sentence as provided for by s. 2 of the Criminal Justice Act, 1993.

24. It was submitted that the Criminal Justice Act, 1993 introduced a new jurisdiction for the CCA, where it could decide that the sentence of a trial court was unduly lenient in specific circumstances. Reference was made to the words of s. 2(3) of the Criminal Justice Act, 1993, enabling the CCA to “quash” the original sentence and to “impose” another sentence.

25. It was submitted on behalf of the DPP that the statutory language of s. 2 of the Criminal Justice Act, 1993, makes it clear that the sentence is imposed by the CCA on the convicted person.

26. Counsel for the DPP referred to the appellant’s submission as to the general jurisdiction of the CCA pursuant to s. 34 of the Courts of Justice Act, 1924, referred to as “the Act of 1924”, and to The People (AG) v. Grimes [1955] I.R. 315. It was submitted that s. 34 of the Act of 1924 has been replaced by s. 3 of the Criminal Procedure Act, 1993, which has a change of wording. It was submitted that the wording used in s. 2 of the Criminal Justice Act, 1993, and s. 3 of the Criminal Procedure Act, 1993, are identical and clarified and amended the powers of the CCA.

27. Counsel for the DPP referred to s. 2 of the Criminal Justice Act, 1993, and to s. 3(2) of the Criminal Procedure Act, 1993. It was submitted that the powers of the CCA in relation to such appeals were clarified, and that the Oireachtas decided to change the powers of the CCA when determining a sentence matter under s. 3(2) of the Criminal Procedure Act, 1993, by using the same wording employed to describe the CCA’s powers on an undue leniency appeal.

28. Thus, it was submitted that the key consideration in relation to the appellant’s sentence is that it was increased pursuant to s. 2 of the Criminal Justice Act, 1993 which contains different wording to s. 34 of the Act of 1924.

29. Further, it was submitted on behalf of the DPP, that s. 99 of the Criminal Justice Act, 2006, as amended, placed the suspended sentence on a statutory footing.

30. In essence, it was submitted on behalf of the DPP that the CCA was “the court” referred to in ss. 99(1) and 99(9) of the Act of 2006, as amended. Thus, the CCA had jurisdiction to deal with the matter before the case was remitted back to the District Court.

31. As to submissions made in relation to the right of appeal on behalf of the appellant, it was contended by the DPP that the plain meaning of ss. 99(1) and 99(9) of the Act of 2006, as amended, is not overborne by an argument to the effect that the appellant is being deprived of a right of appeal in these circumstances.

32. The DPP recognised that s. 99(12) of the Act of 2006, as amended, provides for a right of appeal where a suspended sentence order is revoked “to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked the order”.

33. However, it was submitted that this must be read in conjunction with the earlier clause in s. 99(12), where it refers to the suspended sentence order under s. 99(1) being “revoked in accordance with this section”. It was submitted that the plain meaning of the words of s. 99 of the Act of 2006, as amended, in conjunction with the imposition of the sentence on the appellant by the CCA in April 2007, means that the suspended sentence order was revoked by the appropriate court, i.e., the CCA.

34. The DPP adopted the reasoning of the CCA in its judgment where it held that the reference to a right of appeal did not affect the correct interpretation of the section. The CCA in its judgment of the 19th October, 2011, noted that appeals from the CCA to the Supreme Court are constrained by statute but held that:-

“… it is to be presumed that the Legislature understood this and intended that an appeal from the Court of Criminal Appeal against revocation would be so limited unless by clear words a contrary intention is indicated. The court does not find in the provisions subsection (12) any basis for straining the construction under section 99 as a whole where in its terms the section is clear.”

35. Finally, it was accepted by the DPP that there is no distinction between cases which originate under s. 2 of the Criminal Justice Act, 1993, (undue leniency appeals by the DPP) and those falling under s. 3 of the Criminal Procedure Act, 1993, (sentence appeals by convicted persons).

36. Thus, on behalf of the DPP, it was submitted that the answer to the certified question is in the affirmative, and that the CCA is vested with jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99(1) of the Act of 2006, as amended.

Law
37. The CCA is a court created by statute, and its jurisdiction is to be found in statute. The Court considered the jurisdiction of the CCA in The People (DPP) v. Cunningham [2002] 2 IR 712, where Hardiman J. stated at p. 737:-

“It is trite, but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an ‘appellate’ jurisdiction. Moreover, as was said in the case of

The State (Woods) v. A.G.

[1969] I.R. 385 and elsewhere, the jurisdiction is a statutory one: the court is entirely a creature of statute and has no other jurisdiction.”

38. The jurisdiction of the CCA was set out originally in s. 34 of the Courts of Justice Act, 1924, which stated:-

“The Court of Criminal Appeal shall have jurisdiction to affirm or to reverse the conviction in whole or in part, and to remit, or to reduce, or to increase or otherwise vary the sentence, and generally to make such order, including any order as to costs as may be necessary for the purpose of doing justice in the case before the court.”

39. In The People (AG) v. Grimes [1955] I.R. 315, the CCA had suspended a sentence imposed by the Circuit Court with the convicted person entering into a recognisance with the usual type of conditions. The note on the court notebook contained the words:-

“With liberty to apply to the Circuit Court for such warrant”.

The convicted person breached the conditions by committing a further offence and the prosecution sought to have the suspension revoked by the Circuit Court. The Circuit Court judge refused to hear the application, and the prosecution subsequently brought the matter before the CCA. The CCA refused to deal with the issue of the revocation of the sentence which it had suspended. Maguire C.J. stated at p. 317:-

“The reasons which seem to support the decision in Carolan's Case (unreported) are that this Court has merely an appellate jurisdiction; ss.31 32 and 33 of the Courts of Justice Act, 1924, make this clear. By s.34 it has jurisdiction to affirm or reverse a conviction in whole or in part and to remit, reduce or to increase or otherwise vary the sentence and generally to make such order, including any order as to costs, as may be necessary for the purpose of doing justice in the case before it. It was in exercise of this jurisdiction that the Court varied the sentence imposed by the Circuit Judge. Once it had done this the Court had completed its task in that case. The effect of the order was to allow the conviction to stand but to vary the sentence by suspending it. There appears to be no ground for regarding the matter as being still before this Court.”

It was submitted by the appellant that while the judgment goes on to recite that the CCA would not and indeed had no jurisdiction to make any order against the Circuit Court, it concluded that:-

“It does seem, however, to the Court, as it seemed to the Court in Carolan's Case (unreported), that the application was properly made in the Circuit Court”.

40. However, the jurisdiction of the CCA, which is entirely statutory, has been altered by legislation. The Criminal Justice Act, 1993, provides for the jurisdiction of the CCA in respect of undue leniency applications brought by the DPP. The Criminal Procedure Act, 1993, provides for the jurisdiction of the CCA in respect of sentence appeals brought by convicted persons. In relation to applications for undue leniency, s. 2 of the Criminal Justice Act, 1993 provides:-

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

…

(3) On such an application, the Court may either –

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.”

[emphasis added]

41. Thus, in plain and clear language the CCA is given the power, on an application by the DPP, to either quash the sentence and in its place impose such sentence as it considers appropriate, or to refuse the application.

42. Section 3(2) of the Criminal Procedure Act, 1993, uses similar language, it provides:-

“On the hearing of an appeal against sentence for an offence the Court may quash the sentence and in place of it impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial.”

[emphasis added]

43. Thus, by virtue of these sections, the CCA is given express statutory power in both instances to quash the sentence of the trial court.

44. The ordinary meaning of the word “quash” is to extinguish or to render null, a matter. The Concise Oxford Dictionary defines “quash” as to:-

“1. Annul, reject as not valid especially by a legal procedure.

2. Suppress; crush (a rebellion etc.)”

Thus, under both s. 2 of the Criminal Justice Act, 1993, and s. 3 of the Criminal Procedure Act, 1993, the CCA is given jurisdiction to quash, to extinguish, the order of the trial court. Therefore, the order of the trial court no longer exists. The CCA has the jurisdiction to nullify the order of the court of trial.

45. In its place, under both s. 2 of the Criminal Justice Act, 1993, and s. 3 of the Criminal Procedure Act, 1993, the CCA is given jurisdiction to impose an appropriate new sentence.

46. Consequently, the jurisdiction created by the statutes of 1993 is entirely different to that addressed in The People (AG) v. Grimes [1955] I.R. 315, and so Grimes is no longer an applicable precedent.

47. The CCA in this case quashed the original sentence imposed by the Circuit Court, and imposed a new sentence which had a suspended element.

48. The suspended sentence has long been a part of our common law. However, it is now the subject of legislation.

49. Section 99 of the Criminal Justice Act, 2006, as amended by s. 60 of the Criminal Justice Act, 2007, (with effect from the 18th May, 2007) and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act, 2009, (with effect from the 25th August, 2009), referred to as “the Act of 2006”, provides inter alia:-

“(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.

…

(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence concerned, convicted of an offence being an offence committed after the making of the order under subsection (1), the court before which proceedings for the offence 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.

(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1) unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than a period spent in custody by the person in respect of an offence

…

(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.

…”

The above consolidated version of the Act of 2006 was provided to the Court by counsel and was the version on which written and oral submissions were made. It was of assistance to the Court in the situation where there have been a series of amendments to the section. Piecemeal amendments make the law difficult to access.

50. Thus, under s. 99(1) of the Act of 2006, as amended, where a person is sentenced to a 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.

51. As discussed above, the CCA, under s. 2 of the Criminal Justice Act, 1993, (and s. 3(2) of the Criminal Procedure Act, 1993), has the power to quash a sentence, and then, in its place, to impose a new sentence. Thus, the CCA is the Court which imposes a sentence in such circumstances. Therefore, where a person is sentenced to a term of imprisonment by the CCA in respect of an offence, that Court may make an order suspending the execution of the sentence in whole or in part, in accordance with s. 99(1) of the Act of 2006, as amended. ‘The court’ in the section in those circumstances is the CCA. This is a statutory jurisdiction exercised by the CCA.

52. Section 99(12) of the Act of 2006, as amended, provides for an appeal. Appeals from the CCA to the Supreme Court are limited by statute to the terms of s. 29 of the Act of 1924, as amended. This limitation would have been known to the Oireachtas. The circumstances of an appeal against a revocation of a suspended sentence by the CCA would arise in circumstances where there has been a trial, then an appeal to the CCA, where part of the sentence may have been suspended by the CCA on conditions. Then, if the convicted person breaches the conditions, the matter may come back before the CCA which will then consider the issue of revocation. The words of s. 99, subsections (1), (9) and (10) of the Act of 2006, as amended, are clear and plainly establish a system by which a sentence may be suspended and this suspension subsequently revoked.

53. The limited appeal from the CCA in such circumstances is not such a factor as to alter the clear wording of section 99(1). I would adopt and affirm the judgment of the CCA on this issue.

54. As discussed earlier in this judgment, a convicted person in an application by the DPP under s. 2 of the Criminal Justice Act, 1993, and a person appealing a sentence under s. 3 of the Criminal Procedure Act, 1993, are in the same position insofar as the CCA may quash the sentence of the trial court and then impose a new sentence.

Conclusion
55. In conclusion, I will address the three core arguments of the appellant.

(i) The CCA is a creature of statute, and it gets its jurisdiction from statute. Section 34 of the Courts of Justice Act, 1924, was repealed by the Criminal Procedure Act, 1993. The jurisdiction given to the CCA in s. 3 of the Criminal Procedure Act, 1993, and s. 2 of the Criminal Justice Act, 1993, is to quash the decision of the trial court, and impose a new sentence on the convicted person, in the circumstances described by the section. Thus, the analysis in The People (AG) v. Grimes [1955] I.R. 315 is no longer applicable. The CCA has, under these new statutes, the power to quash an earlier sentence and impose a new sentence. Thus, I would dismiss the first core argument of the appellant.

(ii) In relation to the second core argument advanced, s. 99 (12) of the Act of 2006, as amended, recognises and provides for an appeal against the revocation of a suspended sentence. The section provides for a right of appeal where a suspended sentence is revoked “to such court as would have jurisdiction to hear an appeal against any conviction of, or sentence imposed on, a person for an offence by the court that revoked the order”. There is a limited appeal from the CCA to the Supreme Court pursuant to s. 29 of the Act of 1924, as amended. However, that fact does not override the clear, plain, and unambiguous terms of s. 99(1) of the Act of 2006, as amended. I would dismiss this ground of appeal also.

(iii) The third argument of the appellant was that while the original alteration of the sentence in this case arose as a result of an appeal against undue leniency by the DPP pursuant to s. 2 of the Criminal Justice Act, 1993, it would be wrong in principle and constitute an unjustifiable discrimination to treat the appellant differently to a person whose sentence was suspended on foot of an appeal against the severity of their sentence under s. 3 of the Criminal Procedure Act, 1993. In fact, as discussed above, convicted persons in both such appeals, namely, those under s. 2 of the Criminal Justice Act, 1993, and s. 3 of the Criminal Procedure Act, 1993, are subject to a similar power of the CCA to quash the sentence of the trial court, and to impose a new sentence. Thus, I would dismiss this ground of appeal also.

56. Consequently, I would answer the question posed on the certificate in the affirmative, where the CCA has quashed a sentence pursuant to s. 2 of the Criminal Justice Act, 1993, by wholly or partly suspending it, the CCA is the appropriate court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99 of the Criminal Justice Act, 2006, as amended.

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