Judgment of O’Donnell J delivered on the 5th of March 2014
1. Section 99 of the Criminal Justice Act 2006 (“the 2006 Act”) is an apparently innocuous procedural provision. It has already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice (Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of interpretation, only some of which are illustrated by the present cases. What these cases do demonstrate clearly however is that the provision is one of considerable complexity and difficulty, requiring some learned debate, fine distinctions and considerable argument. Only one thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.
2. Section 99 of the Criminal justice Act 2006 as amended (“section 99”) deals with the phenomenon of the suspended sentence which has been much used in Irish courts throughout the history of the State, though its origins are obscure as explained in Osborough, “The Damocles’ Sword Guaranteed Irish: The Suspended Sentence in the Republic of Ireland” (1982) 17 The Irish Jurist 221. Section 99 represents a worthy attempt to place suspended sentences on a clear statutory footing. Standing back for one moment from the detail of the section, and approaching it at the level of generality, it might be said indeed that the least difficult issue was providing a clear statutory basis for the imposition of the suspended sentence for a period during which the convicted person was required to be of good behaviour (and perhaps comply with other conditions) on terms that breach of any such condition would mean that the sentence which had been suspended in whole or in part could be, and perhaps would be, reactivated. By far the most common condition imposed is that the convicted person agrees to be of good behaviour during an identified period, and again, regrettably, by far the most common way in which that condition is breached is by commission of a further offence, which is proved in practice by a subsequent conviction. We do not need here to concern ourselves with the situation where it is alleged there has been breach of some separate condition, or where conduct is alleged breaching the condition as to good behaviour, which did not result in a conviction for a criminal offence, and the person is sought to be brought back before the sentencing court for activation of the period of suspension. That situation involves only one court. However, and as is illustrated by the present cases, the reactivation of a suspended sentence can, and most often will, involve two courts: the first court, which imposed the suspended sentence, and the second court which convicts the person of an offence during the period of good behaviour, thus triggering the possibility of revocation of the suspension.
3. In theory it is possible that the courts operating s.99 can be courts at the same level of jurisdiction, and indeed the self same court, presided over by the same judge. In many cases however, again illustrated by the facts of these cases, it may involve courts at different jurisdictional levels. There are at least five courts exercising criminal jurisdiction and imposing sentences in Ireland, and thus capable of being the first court imposing the suspending sentence, or the second court which convicts of the triggering offence. These courts are the District Court, the Circuit Court, the Special Criminal Court, the Central Criminal Court, and the Court of Appeal. There are by only the roughest count perhaps 25 different fact situations which may arise involving the possible operation of section 99 between these different courts: A judge in one court can make a s.99 remand to another judge in another area of the same court or to four other courts. At the level of principle nothing turns on the identity or jurisdiction of the court involved but at the level of practice, there may be differences as to sitting arrangements for different courts, and indeed between different courts at the same level of jurisdiction. For ease of identification I propose to call the first court which imposes the suspended sentence the “suspending court” or “first court” and the offence in relation to which the sentence was imposed and suspended the “first offence” and I will call the second court, which convicts of the offence which triggers the possible revocation of the suspended sentence, the “convicting court” or the “second court” and the triggering offence the “second offence”.
4. Again, at a level of principle it might be thought that at least two issues could usefully be dealt with in any statutory code. First, it is necessary that there is machinery in place to ensure that the fact of a subsequent conviction (and therefore apparent breach of the condition during the period of good behaviour) can be brought to the attention of the suspending court so that it can consider revocation of the suspension in whole or in part, should it think fit. Second, it is apparent that the same events (the commission of, and conviction for, the second offence) put the offender at risk of a prison sentence in two courts; the convicting court for the second offence, and the suspending court which considers revocation of the suspension of the sentence in relation to the first offence. This necessarily requires some coordination between the courts, since if carried out in isolation it risks sentences which cumulatively are either too lenient or too severe. Normally, a court asked to reactivate a suspended sentence will need to know therefore what it is that the person has done to trigger the possibility of reactivation of the sentence, and possibly the consequences imposed for that conduct. On the other hand, a convicting court would normally wish to know if for example, a lengthy suspended sentence was going to be reactivated in whole or in part as a result of the triggering offence. In principle, and in justice, therefore there must be some coordination between the courts. At least one of the courts should have full information about what has happened in the other court, to allow it to tailor its decision to the circumstances if appropriate, and to ensure that the cumulative impact of two decisions is fair to everyone concerned. I am not convinced that the sequence the Act adopts of making the sentencing court halt its sentence process and remit the matter to the suspending court is the wisest or most logical course. The sentencing for the current offence should arguably be concluded before the business of remittal and reactivation is addressed. Also since it is the committal of the offence which is the conduct breaching the condition, it seems logical that the suspending court should know what consequences have been visited on the offender for that conduct, rather than the other way around. That however is the least of the problems created by the structure and operation of the section.
5. Section 99 seeks to address these matters by controlling the process from the point of conviction for the second offence by the convicting court but before sentence is imposed by it. That was a choice made, and one which adds to the potential difficulty of operating the section, but it was not in any sense required by a scheme for reactivating suspended sentences. The statute could just have easily provided that the convicting court should proceed to sentence for the offence, taking into account the fact that it was committed during the period of good behaviour, and the matter could then be re-entered by a simple procedure before the first court to consider whether it is appropriate to reactivate the suspended portion of the sentence, in whole or in part. However the structure adopted in section 99 is that once a person has been convicted of an offence during a period of suspension, the convicting court does not proceed to sentence for the that offence, but rather must remand the person to the next sitting of the suspending court. That court then decides whether or not to revoke the suspended sentence in whole or in part (although the section creates a presumption in favour of revocation of the suspension). When that exercise is completed, the suspending court then remands the person to the next sitting of the convicting court, which then proceeds to impose sentence for the second offence. Again at the level of principle, this makes some sense. Once it is necessary to transfer a person between courts, and to seek to reactivate the sentence imposed, perhaps a considerable period earlier, there is an ever present risk that there will be delays and the process will become becalmed. Since the triggering event is the conviction for an offence, and since the procedure created is interposed between conviction and sentence, it is desirable that the matter proceed smoothly and promptly, so that the matter can be returned to the convicting court to impose sentence.
6. The section is drafted in prescriptive terms no doubt to try and control the process and ensure a smooth and prompt processing of the matter. It is open to real doubt however, whether section 99 achieves this objective. As the words italicised in this paragraph suggest, much of this case involves a consideration of what is meant by “next sitting” in the many different circumstances in which section 99 comes into play. In that regard it is also worth observing at this general level, that the section shows no particular concern for urgency, or if it does, does little to achieve it. No requirement of expedition is contained in the process, either at initiation or completion. Thus the process is triggered by a conviction but the time for the remand to the suspending court is identified only in that it must be before sentence. Thus the convicting court could adjourn the matter to some convenient date, and will not fall foul of the Act so long as the section 99 remand is made before sentence is imposed. At the other end of the process there is no requirement imposed on the suspending court to deal with the matter within any time scale, and certainly not forthwith or immediately. It is only when the suspending court has dealt with the question of reactivating the suspended portion of the sentence that the section comes into play again and prescribes that the person then be remanded to the next sitting of the convicting court. Thus quite a lot of time can elapse between the triggering conviction and the time when the sentencing court comes to impose sentence. It is in this context that the statutory phrase “next sitting” is to be approached, understood and interpreted.
The Provisions of Section 99 of the Criminal Justice Act 2006 (as amended)
7. Section 99 (1) provides that a sentencing court may make an order suspending the execution of a sentence in whole or in part. Subsection (2) provides for a standard condition that the person is to keep the peace and be of good behaviour during the period of suspension. Subsection (3) provides for the possibility of specific conditions. Subsection (4) deals with the possibility of conditions relating to cooperation with probation and welfare services, drug treatment, education, training, therapy, psychological counselling etc. Subsection (6) permits for terms to be imposed at the request of the probation and welfare service. Subsection (7) makes sensible and practical provision that a copy of the order suspending the sentence be provided to An Garda Síochána or the Governor of the prison where appropriate and subs. (8) makes consequential provisions that where an order is made suspending a sentence with accompanying conditions, a copy of the order and conditions should be provided to the probation and welfare service and to An Garda Síochána, where appropriate. These provisions are practical, and unremarkable. The relevant and more controversial provisions for present purposes are however subss. (9), (10) and (10A). While already summarised above it is desirable to set them out in full:
“(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 an 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 the circumstances of the case, less any period of that sentence already served in prison and any period spent in custody (other than the period spent in custody by the person in respect of an offence referred to in subsection (9)) pending the revocation of the said order.
(10A) the court referred to in subsection (10) shall remand the person concerned in custody or on bail to the next sitting of the court referred to in subsection (9) for the purpose of that court imposing sentence on that person for the offence referred to in the subsection.” (emphases added)
The two cases before the Court illustrate the manner in which the section operates and some of the difficulties which can arise.
The Director of Public Prosecutions v. Carter (“Carter”)
8. This is an appeal from the decision of Ms Justice O’Malley on a consultative case from District Judge Watkin. On the 14th of January 2011 Judge Watkin sitting in the Dublin Metropolitan District Court imposed a sentence of four months on the defendant, with the final three months suspended for a period of 12 months. Two weeks later, on the 26th of January, she imposed a further sentence of six months suspended in its entirety for a period of two years. On the 11th March 2011, less than two months after the first sentence, the defendant committed two new offences referred to as the “breach offences”. The DPP directed trial on indictment in respect of these matters and the defendant was sent forward for trial to the Circuit Court. On the 23rd of January 2012 he entered guilty pleas in the Circuit Court and was remanded to the 26th of March for sentence. During the sentence hearing the Circuit Court Judge, Judge Nolan, was informed of the fact that the breach offences were committed during the currency of the suspended sentence imposed by Judge Watkin. On this occasion, the 26th of March 2012, which was a Monday, the Circuit Court Judge remanded the defendant to the District Court sitting at court number 17 in the Criminal Courts of Justice one week later, the 2nd of April 2012. It was recorded in the case stated that neither the prosecution nor defence were aware of the reason why the remand was for a week, but no objection was raised by either side, and it follows that no argument was made by either side as to the appropriateness of that remand.
9. The defendant duly appeared in court on the 2nd of April and District Judge McNamara was presiding. On that occasion counsel for the defence made a submission that the case was not properly before the court because it was alleged that the defendant had not been remanded to the “next sitting” of the District Court. Judge McNamara considered that in any event she could not deal with the matter and remanded the defendant to appear before Judge Watkin on the 17th April 2012. On the 6th of December 2012 Judge Watkin, having heard submissions and received written submissions, ruled that the defendant had not been properly remanded on the 26th of March 2012 to the 22nd April 2012 because he was remanded for a week rather than to the very next day that the District Court was sitting. However, she also held that there had been a waiver of right to remand to the next day that the Dublin Metropolitan District Court was sitting. Accordingly, she found the matter was correctly before Judge McNamara on the 2nd of April 2012 and accordingly, there was jurisdiction to remand the matter further to be dealt with by Judge Watkin. She then agreed to state a consultative case stated for the opinion of the High Court as to the correctness of the ruling made.
The Decision of the High Court
10. In an admirably lucid judgment the High Court Judge recorded the agreement of the parties that the matter was not moot although the period of suspension had expired; that jurisdiction could not be conferred on the District Court by acquiescence; that Judge Watkin was correct in interpreting the next sitting as meaning, at least in the Dublin Metropolitan District, the following day, and that the section 99 remand to the court which imposed the sentence did not mean a remand to the individual judge of that court who had imposed the sentence. The prosecutor in the High Court relied upon the cases of Killeen v. The Director of Public Prosecutions & Ors [1997] 3 I.R. 218 (“Killeen”), and The Director of Public Prosecutions (Ivers) v. Murphy [1999] 1 IR 98 (“Ivers”) as examples of a well established line of jurisprudence that the presence of the accused in the court where the charge was laid cured any defect in the procedure under which the accused had been brought to the court. The defendant argued that the matter was one of straightforward statutory interpretation and the literal meaning of the words in this case meant the very next day at least.
11. The defendant also relied on a recent statement of the Court of Criminal Appeal in The People (at the suit of the Director of Public Prosecutions) v. Devine [2011] IECCA 67 (“Devine”) where that Court had imposed a suspended sentence on the defendant. During the period of suspension the accused appeared before the District Court charged with offences and pleaded guilty. The District Court was not informed of the amendment to section 99, and accordingly proceeded to impose a three month sentence and only then remanded him to the Court of Criminal Appeal. The Court of Criminal Appeal held that as both that Court and the District Court were creatures of statute, the District Court had no jurisdiction to impose sentence on the accused without first complying with section 99(9) and that the jurisdiction of the Court of Criminal Appeal to reactivate a suspended sentence under section 99 only arose if the respondent had been remanded to that Court in accordance with section 99(9). Accordingly, the Court expressed the view that it would be necessary to set aside the order made by the District Judge and have an order made in compliance with section 99(9) of the Criminal Justice Act 2006 before the Court of Criminal Appeal would have jurisdiction to reactivate sentence under section 99 and therefore made no order on the revocation application.
12. The High Court Judge observed that there may be a degree of tension between the classical view as endorsed by the Supreme Court in Ivers relating to the general immateriality of the procedure by which the defendant was brought to court, and the approach exemplified by the decision of the Court of Criminal Appeal in Devine. The Court considered however that the matter was one of jurisdiction. The issue was not whether the defendant had properly been brought before the District Court but whether a lawful foundation had been laid to the exercise by the District Court of its powers under subs. (10) of the Act. The judge considered that the matter was to be approached on the basis that the powers in relation to sentences were now entirely governed by statute and that the statutory power to revoke such a sentence under subs. (10) of the Act depended on a valid order having been made under subs. (9). Accordingly the High Court followed Devine, and held that the District Court had no jurisdiction to deal with the defendant. That decision has now been appealed to this Court.
The Director of Public Prosecutions v. Kenny (“Kenny”)
13. This case is a consultative case stated from Judge Ring of the Dublin Circuit Court. The relevant facts are that the defendant was prosecuted before the Dublin Circuit Court on a charge of possession of an article in a public place with intention to cause injury, was tried before a jury, and found guilty. On the 19th of January 2011 the Circuit Court imposed a sentence of two years imprisonment suspended in its entirety for four years. On the 11th June 2014 the defendant was charged before the Dublin District Court with offences alleged to have been committed subsequent to the 19th January 2011, and during the period of suspension. The defendant pleaded guilty to each of the charges. As there was a suspended sentence in operation as of the date of the offences and the date of the entry of the guilty pleas, the District Court Judge made an order under section 99(9) of the 2006 Act remanding the defendant to the next sitting of the Dublin Circuit Criminal Court. The Easter term for sittings in the Circuit Court had ended on June 5th 2014. Trinity term was due to begin on the 18th of June. There were no scheduled sittings of the Dublin Circuit Criminal Court between the 11th June 2014 (the date of the appearance in the District Court) and the 18th June 2014 (the first day of Trinity term). Accordingly the defendant was remanded to the Dublin Circuit Court sitting on the 18th of June. Between the 11th June and the 18th June 2014 however, the Dublin Circuit Criminal Court sat on a number of occasions to deal with urgent matters such as the execution of bench warrants. These sittings of the Court were not scheduled at the time when the District Judge made his order of the 11th of June 2014, nor were they made known to him.
14. On the 18th of June 2014, when the case came before the Dublin Circuit Criminal Court, the judge raised the issue of whether the order of remand made on the 11th of June was a valid order having regard to the decision in the Carter case and the fact that there had been hearings in the Circuit Court in the intervening period. On the 24th July 2014, the defendant was before the Dublin District Court charged with further offences and again another order was made under section 99(9) on that date remanding the accused to the 25th July. The Circuit Court Judge stated a case to this Court referring the following questions for determination:
“(i) Was the order made by Judge Blake [the District Court Judge] on June 11th 2014 in accordance with the provisions of section 99 of the Criminal Justice Act 2006 (as amended)?
(ii) Was I correct in law in finding the defendant was lawfully before the Circuit Court pursuant to the provisions of section 99(9) of the Criminal Justice Act 2006 (as amended) in that I found that the remand from June 11th 2014 to June 18th 2014 was to the next sitting of the court.
(iii) If the answer to question (i) is no, what are the consequences for the hearing of the revocation of the suspended sentence imposed on the defendant?”
The case stated was dated the 12th of September 2014 and came on for hearing before this Court on the 20th day of November 2014.
Next Sittings
15. The phrase “next sitting of the court” appears both in sections 99(9) and 99(10A). However the section gives no definition of that phrase and offers very little by way of guidance for its understanding. It appears that the section takes little heed of the practicalities of the courts whose sittings it seeks to regulate. Indeed, it seems to approach the matter on the assumption that courts have little other business to transact other than the activation of suspended sentence, and that judges are not transferred, moved, become assigned to other districts, are promoted, become ill, retire or even die. Furthermore, the different courts which exercise criminal jurisdiction sit in districts, counties, and in formal sittings, all of which are regulated by different rules and procedures. Sometimes the courts’ jurisdiction is triggered by the necessity to sit when a person has been charged and must be immediately brought before a court (in some cases “forthwith”) and in other cases, courts sit for emergencies, at weekends, and at night. For all these possibilities the section offers no more than the words “next sitting”. This is so even though the section, on at least one reading, imposes a mandatory duty on each court, and prescribes a statutory precondition to the exercise of jurisdiction, which may give rise to an argument, at the very least, that a failure to comply with the provision may give rise to the possibility that the accused would achieve what Walsh J. In Re Singer (No.2) (1964) 98 I.L.T.R. 112 called the “immunity of a juristic limbo”.
16. What, for example, is the position where a person is about to be sentenced and section 99(9) is then triggered, but at the particular time of the day, it is not possible to get the person to the next sitting of the court in another part of the country? What is the position when the first court remands the accused to a fixed and scheduled sitting of the second court, but in the period between the two hearings an emergency hearing is fixed? What happens if the court inquires as to the next sitting of the activating court; is informed of such a sitting; and in fact another earlier sitting had been fixed? In the District Court, different lists can be dealt with in the morning and in the afternoon sessions, sometimes dealing with quite different matters. Sometimes busy District and Circuit Courts divide the day’s business into a number of different lists each with its own time slot. Are each of these sessions a different sitting? So that each one is capable of being a “next sitting” for the purposes of section 99? What is the position in relation to emergency sittings of courts, perhaps out of hours and at weekends, or night sittings in the Dublin Metropolitan District?
17. It seems clear that these questions cannot be resolved by a simple, surface interpretation of apparently simple words, taken in the abstract. It is necessary to read the words in context. The maxim nemo tenetur ad impossibilia (see D. Greenberg (ed.), Craies on Legislation (London; Sweet & Maxwell; 2008; 9th edition), pp. 365-366) might provide some answer to these problems. However, in my view some useful light is cast on these questions by an old Irish case of Reg. (Mackey) v. Justices of the County of Limerick [1898] 2 I.R. 135 (“Mackey”), which it appears was not referred to in argument before the High Court Judge in Carter.
18. Mackey’s case was a criminal prosecution under the Fisheries (Ireland) Act 1842 (“the 1842 Act”). Section 103 of that Act provided that where nets were seized it would be lawful for the fisheries officer to:
“…retain the same in his Custody until the next Sitting of the Petty Sessions Court, or any Adjournment thereof, in the District where the same shall be seized, and at such Petty Sessions Court it shall and may be lawful for the Justices to order and direct the same to be forfeited”. (emphasis added).
As it happened, on the night of the 3rd of January, a water bailiff of the Board of Conservators of the Limerick district seized certain nets alleged to have been used illegally in eel weirs in the river Shannon and applied on the 18th of January to the justices sitting at Castleconnell Petty Sessions for an order which was obtained, for the forfeiture of the said nets. The river Shannon forms a boundary between counties Clare and Limerick and between the Petty Sessions district of Dunass in County Clare and Castleconnell in County Limerick. A court of Petty Sessions had sat in Castleconnell on the 4th of January, that was the morning after the seizure, and at Dunass on the 15th of January. As already set out, it was however only on the 18th of January in Castleconnell that the forfeiture order was made and during that time the nets were in the custody of the bailiff. The validity of the forfeiture depended accordingly on the 18th of January at Castleconnell being the “next sitting” for the purposes of s. 103 of the 1842 Act.
19. The matter came before the Court of Queen’s Bench consisting of the Lord Chief Justice Sir Peter O’Brien, Chief Baron Palles, and O’Brien and Johnson JJ.. The Court relied on s. 106 of the 1842 Act which permitted offences alleged to have been committed on any lake or river in a boundary between two counties to be prosecuted in either of the counties or districts. Accordingly, the Court took the view that it was permissible to prosecute the matter in Limerick, and at the Castleconnell Petty Sessions, and the issue was therefore, whether the next session was the 4th or the 18th of January. The Court unanimously held that the words “next sitting” meant the first sitting “next after the seizure at which it was reasonably practical to proceed”.
20. Sir Peter O’Brien stated the question whether the words “next sitting” are to be limited to the “absolutely next sitting after the seizure referred to in the section, or whether these words mean the first sitting at which it is reasonably practical to proceed for the forfeiture of the nets seized” (p. 138). He observed that if the Court “confined the words ‘next sitting’ to the next actual Sessions, the object of the Act of Parliament would in very many cases be defeated, for the duty, on such a hypothesis, imposed by the statute would be often impracticable” (p. 138). He gave an example of a seizure some miles from the Petty Sessions Court at 11 o’clock and the next sitting of the Sessions at 11.15. Furthermore, the authorised officer who seized the nets acts under a board of conservators and it would appear to be reasonable that he should have time to consult the board as to the steps to be taken after seizure. Sir Peter O’Brien concluded:
“Independently of authority I should hold that the words ‘next sitting’ mean the first sitting next after the seizure at which it is reasonably practicable to apply; but I think this view is borne out by the case of the The Queen v. Justices of Surrey (1). There it appeared that a right of appeal was given to ‘the next quarter Sessions’, the question arose, what was meant by these words; and was held that they did not mean absolutely the next Sessions in point of time”. (p. 139)
21. The judgment of Chief Baron Palles is to the same effect. He too relied on the decision in The Queen v. The Justices of Surrey (1880) Q.B.D. 100 which he described as “a decision which commends itself to my mind as one which makes law and common sense go hand in hand” (p. 142). It is, I think, worth setting out the reasoning of the Chief Baron Palles:
“…as the object of the section was to give to the party decided against a real and practical, not merely a nominal, opportunity of appealing, the words of the section should be read so as to give the party a reasonable time to consider whether or not he would appeal. So here, the statute contemplates that in every case of a seizure under the circumstances mentioned in the section, there shall be a real opportunity of applying for an adjudication by the Justices as to the committal of the offence, and of obtaining their order that the net shall be forfeited. In the case put in argument, of the locus in quo being several miles distant from the Petty Sessions court house, and of the Court sitting within a few minutes after the seizure, there would be no such opportunity were the argument in support of this application correct. Therefore the section cannot mean absolutely ‘next’ in point of time. The word ‘next’ must at least extend to the next sessions at which it is possible that the complaint can be made; and where such a relation must exist between two periods of time, I think it will be found that the law never contemplates what is physically possible as distinguished from what is reasonably possible, under the circumstances of the case.”(emphasis added) (p. 142)
O’Brien and Johnson JJ. agreed and Johnson J. said:
“Instances have been given at the Bar, and by the Bench, where it would be absolutely and physically impossible to proceed at Petty Sessions sitting (it may be) immediately after the seizure; and in such cases a literal construction of the words ‘next sitting’ would obviously reduce the enactment to an absurdity. I therefore think that the ‘next sitting of the Petty Sessions’ in 5 & 6 Vict. c. 106, sect. 103, means and must be construed to be the next reasonably practicable sitting of the Petty Sessions Court, having regard to the circumstances of the particular case; and, applying that construction to the facts of the present case, I think the Justices were right in holding that the sitting of the Petty Sessions on the 4th - the next in point of time - was not the next reasonably practicable sitting of the Court after the seizure of the net.” (pp. 145-146)
22. This case is important not only because it is an Irish authority, but because it occurs in the context of a criminal provision, and where the approach taken by the Court is one of strict construction of the words used in the statute. However, as appears from the text of the judgment, this case does not stand alone. The principle for which it is cited, is one to be found in a number of contemporaneous decisions of the English courts. Thus, in addition to the The Queen v. The Justices of Surrey, referred to in the judgments, there is also the decision in R v. Sussex Magistrates 34 LJMC 69 where Erle C.J. held:
“And we found that the above mentioned imperfections have been remedied by the courts and by the legislature. The courts have held “next sessions” to mean next practically possible.”
In the Imperial and Grand Hotel Companies Ltd v. Christchurch Guardians [1905] 2 KB 239, Collins M.R. interpreted the provisions of the Poor Relief Act 1743 which required an appeal to be brought against a rate to “the next general or quarter sessions” in the following way:
“The Poor Relief Act, 1743, s. 4, provides that he appeal shall be to the next quarter sessions; but, having regard to the fact that the section requires a reasonable notice of appeal to be given, which may render it impossible to go to the sessions next after the publication of the rate, its terms must, according to the authorities, be read with the necessary qualification - that is to say, as meaning the next practicable quarter sessions.” (p. 245)
Similarly in West Riding of Yorkshire County Council v. Parish Council of Middleton [1906] 2 KB 157, s. 22 of the County Rate Act 1852 which provided that an appeal shall lie to the next quarter session, was to be read as meaning the “next practicable quarter session.”
It might be possible to conclude that these decisions provide the legal background against which the 2006 Act was drafted, and by reference to which the phrase “next sitting” must be understood. But in any event, these decisions, and in particular the Mackey decision, provide a logical approach to the interpretation of the sections, which leads to the conclusion that next sitting means the next sitting which is reasonably possible in the circumstances of the case. It is notable that the respective Courts did not need to have resort to any canon of construction to come to this conclusion: this interpretation was considered to be the logical consequence of the Court’s analysis of the section. Once the context was fixing of dates in Court proceedings, and when there was no hint in the statute that time was considered to be of the essence to the provision, next sitting was to be understood to mean next reasonably possible. I should say however that reasonable practicality may have a different impact in modern times than in the rather more leisurely 19th Century legal world. Given ease of communication and travel which is now the norm, the next reasonably possible sitting would normally be the next full day of court hearings. I have considered the argument that the fact that a remand can be in custody should require an even stricter approach. First, as I understand it, the case stated does not suggest that this remand was in custody. Second, the section does not distinguish between remands and applies the same requirement whether the remand is in custody or not. Third, the act does not evince any concern as to the extent of time involved. Thus there is no requirement as to when the remand must be made: the only requirement is that it should occur before sentence. Once a remand has been made there is no requirement as to the time within which the question of reactivation must be dealt with and further remand made to the sentencing court. Finally I consider that an unduly strict approach to the concept of sitting might lead to quite lengthy remands. Accordingly I consider the approach outlined above to the meaning of 'next' in the statutory phrase is the correct one. This it appears is what is meant by “next”: however the Court must also consider what is meant by ‘sitting’ in this context, so that the statutory phrase as a whole may be interpreted.
Sitting
23. The term “sitting” is not used here in its popular sense of being seated. Rather is a term of art which can apply to the deliberations of a legislative body or as here, is understood to mean the time at which a court is in session, hearing cases, and disposing of business. Accordingly it must be construed in that context. Thus, the Circuit Court Rules (S.I. No. 510 of 2001) provided by Order 1 under the heading “Sittings, Language and Office Hours”:
In 2009 S.I. 235 substituted new Rules 1 and 2 as follows
Rule 3 provides that no sittings shall be held during the vacation. Furthermore, the President of the Circuit Court may in accordance with the powers conferred on him by s. 10 of the Courts of Justice Act 1947, fix sittings to be held in any circuit in the vacation which are, in the view of the President of the Circuit Court, necessary or desirable. Rule 4 provides also that during the vacation a judge shall sit in Dublin to hear “all such applications and cases for the Dublin Circuit as may require to be promptly heard”. It is noteworthy that all such sittings of the Circuit Court, whether in or out of term, are fixed, announced, and publicised. In addition to this, and importantly, Rule 5 provides that applications of an urgent nature, whether during the vacation or otherwise, may be made to the President of the Circuit Court or a judge nominated by him.
24. It is not perhaps necessary to resort to the terms of s. 18(a) of the Interpretation Act 2005 which provides that the singular form incorporates the plural and vice versa, and which is applicable both to statutes, and to statutory instruments, although that canon of construction does reinforce the interpretation of the section to which I have come. The use of the singular form in Order 1, Rule 2 of the Circuit Court Rules, as originally set out, is in accordance with the interpretative rule and seems to make it clear that a sitting (singular) commences on the first day fixed and terminates on an appointed date. Accordingly, it appears that in this context “next sitting” means the next sitting which the President of the Circuit Court has “directed and appointed” (in the case of the Dublin Circuit) and of which at least two months notice has been given in the prescribed form. It follows therefore that the next sitting is the next sitting scheduled, announced or fixed in accordance with the rules. The use of the singular is appropriate in section 99 because there can only be one “next” sitting. It follows therefore that the remand under section 99 must be to the next sitting as so defined.
25. In the case of vacation sittings pursuant to Order 1, Rule 4, such sittings must be fixed “on such dates as may be announced” in the Dublin Circuit, and in other circuits these sittings may be fixed by the President of the Circuit Court under s. 10 of the Courts of Justice Act 1947 which permits the President of the Circuit Court, from time to time, to fix both the place and dates upon which sittings in a Circuit are to be held. Accordingly, this suggests that the next sitting of the Circuit Court must be to such formal and scheduled sittings. This does not encompass occasions under Rule 5 when the court hears urgent applications. On such an occasion it may be said of course that the court “sits”, but that it is not a “sitting”, within the meaning of the Act.
26. On this basis, and leaving aside any question of reasonable practicability, the “next sitting” in the Kenny case was indeed the 18th June to which date the defendant had been remanded. Applying this approach to the District Court however, leads to a different conclusion, particularly in the Dublin Metropolitan District. There are no equivalent sittings in the Dublin District Court to the sittings appointed in the Circuit Court or in the other Districts. It seems therefore that “next sitting” in the Dublin Metropolitan District envisages the next full day upon which the District Court sits to transact the general business of the District Court. I appreciate that the Dublin Metropolitan District sits both at night and at weekends to deal with urgent business, and that s. 27 of the Courts of Justice Act 1953 permits a judge of the District Court sitting for the transaction of any particular class of business to transact at such sitting any other class of business, but I consider that since section 99 applies without distinction to Circuit Courts and District Courts (and indeed other courts which are not the subject of these proceedings) and to urban and rural courts, it must be understood as meaning formal sitting and therefore the next sitting to which a person should be remanded is the next day. It follows that the remand in the Carter case was not in accordance with the section as so interpreted. It is one more unsatisfactory feature of section 99 that a lawful remand under the section, which may be in custody, will normally be overnight in the case of the District Court but may be some days, even weeks hence, in the case of the Circuit Court, depending on the date the matter arises. This does nothing for efficiency, to say nothing of the respect due to the citizen’s right to liberty.
Court
27. Although it does not arise directly in this case, it seems notable that the section speaks of “court” and makes no reference to venue. Thus it appears that the section contemplates that the individual will be remanded to the next sitting of the particular Circuit, in the case of the Circuit Court, and of the relevant District, in the case of the District Court, and not to the next sitting of that Court at the venue of the original trial or sentence.
Failure to Comply with Section 99
28. It is necessary now to consider the consequences of any failure to comply with the statutory provision. The prosecutor in both cases sought to rely on the decision In Re Singer (No.2). In that case the applicant, who was being prosecuted in the famous Shanahan’s Stamp Auctions case, was before the District Court and returned for trial at the “next Circuit Criminal Court”. A divisional court of the High Court held that in the circumstances, this must necessarily apply to the next Circuit Criminal Court held in Dublin. It is of some interest that the judgment of Murnaghan J. records that the “next sitting” of the Circuit Court in Dublin for the discharge of criminal business, after the prosecutor had been returned for trial, commenced on the 21st of March 1960 and ended on the 8th of April 1960. This suggests that a session extending over two weeks could properly be described, in the singular, as a sitting. No indictment was preferred against the prosecutor during this session, and no order made by the Court. Subsequently, Mr Singer succeeded in an application under Article 40 of Bunreacht na hÉireann securing his release on the grounds that the warrant for his detention was based on the return for trial and was accordingly spent when the next sitting of the Dublin Circuit Criminal Court concluded without his case being tried, or adjourned. He was rearrested and brought before the District Justice. Thereafter he was brought before the Central Criminal Court to be given the opportunity of stating whether he wished to be tried on the original return for trial made on the 23rd of January 1960. Ultimately, the Circuit Court made an order transferring the case to the Central Criminal Court. In the event, the divisional court of the High Court and the Supreme Court held that the return of Mr Singer was properly before the Central Criminal Court on the basis that the return for trial on the 23rd of January was still valid and could form the basis of the Circuit Court’s (and accordingly the Central Criminal Court’s) jurisdiction to try him. Of particular interest is the judgment of Ó’Dálaigh J. (as he then was). In it he observed:
“I have come to the conclusion that the better view is that the return for trial survives as a valid return notwithstanding the failure of the part of the prosecution to indict and arraign the appellant at the due sittings of the Circuit Court notwithstanding the absence of an order of that Court formally adjourning the trial.
The order of the District Court returning the appellant for trial in my opinion has not lost its validity as a return although not acted upon in due time. It would, I am satisfied, require an order of the court of trial or of the High Court to set it at nought.” (p. 131)
29. The case is complicated by the fact that for tactical reasons the prosecutor in that case sought to argue that the return for trial was valid and effective in some respects (so as to prevent a fresh return being made) but neither valid nor effective in allowing the accused to be put on trial. But the burden of the judgment of the courts is contained in my view in a portion of the judgment of Mr Justice Walsh in the divisional court in the High Court:
“The returns for trial are in my view valid to put the prosecutor upon his trial and the omission of the selection of the particular circuit and the reference to the prosecutor being ‘committed for trial at the next Circuit Criminal Court’ do not in any way detract from the jurisdiction to try the case which is based on the adjudication of the District Justice upon a valid preliminary investigation.” (p. 127)
30. At first sight this might appear to be authority in support of the prosecutor in the present cases since a return for trial to the next Circuit Criminal Court was held to be sufficient to permit trial at the Central Criminal Court some time later, and without any adjournment of his trial from the sitting of the Circuit Court which next commenced after the order for return for trial had been made. However, it seems to me that the case is ultimately of only superficial similarity to the present case. The decision in In Re Singer (No.2) related to the common law, and did not turn on the interpretation of any statute. Section 6 of the Courts of Justice Act 1926 provided merely that a District Justice should send the accused forward for trial to the Circuit Court or one of the Circuit Judges, to be selected by the justices, and in every other case that the accused person should be sent forward to trial to the Central Criminal Court. Accordingly, the case turned simply on the interpretation of the return for trial, and the Court held that the jurisdiction of the Circuit Court was based upon the decision of the District Court to send him forward for trial.
31. In the course of the judgment in In Re Singer, Ó’Dálaigh J. adverted to another point which was discussed in argument in this case. That is the fact that the return for trial had not been quashed. It is a general and important principle that orders made by bodies having jurisdiction to do so “bear no stamp of invalidity on their face”, and may be perfectly effective as a matter of law unless and until quashed by a court of competent jurisdiction. (See Smith v. East Elloe Rural Disctrict Council & Ors [1956] AC 736). Thus for example in Re Comhaltas Ceoltóirí Éireann (unreported; 5th December 1977), it was held by Finlay P. that a planning permission was required to be treated as valid by a District Court hearing a licensing application, and that the Court was not entitled to entertain what would amount to a collateral challenge to it. As it was put in Wade, Administrative Law (Forsyth (ed.)) (Oxford; Oxford University Press; 2000; 8th edition), p. 287, “The court will take an administrative act or order as invalid only if the right remedy is sought by the right person in the right proceedings”. It is not necessary to explore here the limits of this doctrine because in this case the Act seems to make compliance with section 99(9) a precondition of the exercise of the power under section 99(10). Thus, section 99(10) undoubtedly requires that the suspending court should revoke the order unless the court considers it unjust to do so, but the court is defined as a court “to which a person has been remanded under subsection (9)”. This seems to make compliance with section 99(9) one of the requirements of a valid order under section 99(10). This conclusion is itself consistent with the observations of Palles C.B. in the Mackey case. He observed:
“Before the statute, in a case of this description, five conditions should have been complied with to render the order a valid one [the first three of which are relevant here]: - 1, As a matter of fact, the order should have been made at ‘the next sitting of the Petty Sessions Court, or an adjournment thereof’; 2, the Justices should have judicially determined that the court in which they were then sitting did answer that description; 3, there should have been a sufficient evidence to enable them to arrive at that conclusion;”.
Application of The Director of Public Prosecutions (Ivers) v. Murphy
32. In Carter the learned judge observed that the prosecutor relied on a separate line of authority encapsulated in Ivers, to the effect that illegality (short of an intentional deprivation of constitutional rights such as that which occurred in The State (Trimbole) v. The Governor of Mountjoy Prison [1985] I.R. 550) attaching to the process by which the accused came before the court, does not necessarily have any effect on the jurisdiction of the court to deal with the matter.
33. The line of authority encapsulated in Ivers is of some antiquity, and importance. It can be traced back, at least in modern times, to the judgment of Davitt P. in The State (Attorney General) v. Judge Fawsitt [1955] I.R. 39 where he said:
“The usual methods of securing the attendance of an accused person before the District Court, so that it may investigate a charge of an indictable offence made against him, is by way arrest or by way of formal summons, but neither of these methods is essential. He could, of course, attend, voluntarily, if he so wished; so far as the exercise of the Court’s substantive jurisdiction is concerned it is perfectly immaterial in what way his attendance is secured, so long as he is present before the District Justice in Court at the material time. Even if he is brought there by an illegal process, the Court’s jurisdiction is none the less effective.” (p. 43)
34. Davitt P. referred to Hawkins, Treatise of the Pleas of the Crown (Curwood (ed.)) (Great Britain; S. Sweet; 1824; 8th edition; Vol. 2) at p. 420 that “the law will not so far regard a slip in the process, as to let the defendant out of court in order only to have him brought in again in better form”. The principle can be found in R v. Hughes (1879) 4 Q.B.D. 614, where Lopes J. said “I think the warrant in this case was mere process for the purpose of bringing the party complained of before the justices, and had nothing whatever to do with the jurisdiction of the justices” (p. 622). In The Attorney General (McDonnell) v. Higgins [1964] 1 I.R. 374 at p. 391, Kingsmill Moore J. said:
“Neither summons nor warrant to arrest, consequent on the information, confer jurisdiction. They are merely processes to compel the attendance of the person accused of the offence…
It is equally clear that if a person is in Court, voluntarily or involuntarily, legally or illegally, an information or complaint may be made then and there “ore tenus” to the Justice, accusing such person of having committed a summary offence, and, if the information contains the necessary ingredients, the person may at once be charged with the offence….”. (p. 391)
35. There are several other decisions to the same effect. See e.g., Reg. (Daly) v. Justices of County Cork [1898] 2 I.R. 694, The State (Lynch) v. Ballagh [1986] I.R. 203, The Director of Public Prosecutions v. Delaney [1997] 3 I.R. 453 and The Director of Public Prosecutions (McTiernan) v. Bradley [2000] 1 IR 420. The law is comprehensively and usefully reviewed in the concurring judgment in the recent case of Whelton v. O’Leary [2010] IESC 63. There McKechnie J. observed that the principle was limited and did not apply to cases;
“…where the issue is whether the validity of the preceding process may impact upon jurisdiction. To this, of course, may be added circumstances where it is alleged that during the process evidence has been obtained by either illegal or unconstitutional means”. (para. 43)
McKechnie J. gave some examples where preceding process may impact on jurisdiction namely, where there has been a deliberate and conscious violation of constitutional rights in the nature of the The State (Trimbole) v. Governor of Mountjoy Prison; where the relevant conduct was such as to outrage, insult or defy the legal or constitutional status of the authority or status of the court per McCarthy J. in Keating v. The Governor of Mountjoy Prison [1991] 1 I.R. 61; and where the validity of a preceding event, for example an arrest, is an essential ingredient to ground a charge upon which an accused person stands before the court. A simple example is s. 49 of the Road Traffic Act 1961 as illustrated by The Director of Public Prosecutions v. Forbes [1993] I.L.R.M. 817.
36. In the course of her judgment in Carter, the trial judge observed that there was some tension between the Killeen/Ivers line of authority and decisions such as Devine where the Court of Criminal Appeal held that the District Court had no jurisdiction to impose sentence on the respondent without first complying with section 99(9) as amended. Counsel had suggested that the distinction was between a common law analysis where the position is where a person is brought to answer to a complaint and the proper construction of a mandatory self contained statutory procedure. However as the trial judge correctly observed, there are examples of the same principle being applied in the context of s. 4 of the Criminal Justice 1984, and accordingly the distinction is not one between the common law and statute, but is, as set out in Whelton v. O’Leary, a distinction related to whether the defect can be said to go to jurisdiction. In cases such as Ivers and others, it is important that the defect is in securing the attendance of the accused before a court which itself has jurisdiction to try the accused or otherwise deal with him or her. The provision which is not complied with in such a case does not relate to the substantive jurisdiction of the court to try the accused for the particular offences. Where however, compliance with a statutory provision is a condition precedent to the exercise of the jurisdiction or itself a proof which must be established (as in the cases under s. 49 of the Road Traffic Act 1961 as amended) then the breach is not irrelevant but can in a general sense be said to go to jurisdiction either to try the accused or otherwise deal with him or her.
Application in Director of Public Prosecutions v. Kenny
37. It is now necessary to apply these provisions to the facts of the two cases before the Court. In Kenny it appears to the Court that there has been compliance with the provisions of section 99(9). The validity of the order must be judged by the circumstances as of the date of the order. Section 99(9) does not require that a person be returned to a sitting of the court which has not yet been fixed or scheduled in accordance with the Circuit Court rules. On the 7th of June 2014, when District Judge Blake made his order, Trinity Term 2014 was due to begin on June 18th 2014. Those sittings were the next scheduled sittings, and the 18th of June was certainly the next scheduled sitting upon which it was reasonably practical to remand the defendant. The fact that in the intervening time it so happened that the Circuit Court sat on a number of occasions had no effect on the validity of the District Court Order, and therefore did not affect the jurisdiction of the Circuit Court to proceed. Accordingly it is possible to answer the question stated by the learned Circuit Court Judge as follows:
(i) Was the order made by Judge Blake on June 11th 2014 in accordance with the provisions of section 99 of the Criminal Justice Act 2006 (as amended)? Yes
(ii) Was I correct in law in finding the defendant was lawfully before the Circuit Court pursuant to the provisions of section 99(9) of the Criminal Justice Act 2006 (as amended) in that I found that the remand from June 11th 2014 to June 18th 2014 was to the next sitting of the court?
Yes
(iii) If the answer to question (i) is no, what are the consequences for the hearing of the revocation of the suspended sentence imposed on the defendant?
In light of the answers to questions (i) and (ii) this does not arise.
Application in Director of Public Prosecutions v. Carter
38. It follows from the discussion above however, that the High Court Judge in Carter was correct to hold that the remand in that case was not in compliance with section 99 because the remand was for a period of a week and it was common case that the District Court had sat, and more importantly, was due to sit for scheduled sittings on a number of days between the 26th of March 2012 and the 2nd of April 2012. It also follows that the High Court Judge was correct to conclude that the true interpretation of section 99 was jurisdictional or perhaps more correctly, that failure to comply with section 99 could not be treated as a mere defect in securing the attendance of the accused in court. On its true interpretation, section 99(10) required that for the court to exercise jurisdiction under the section the person must be validly remanded under section 99(9). Subsection 10 of section 99 opens with the words “A court to which a person has been remanded under subsection (9)…” which must mean that a valid remand under subs. (9) is a predicate for the exercise of power conferred by subs. (10) I should, for completeness, say that this conclusion rests upon the assumption upon which the case was argued, that section 99 now replaces all common law power, and is the sole and statutory basis for both the imposition and the reactivation of suspended sentences. While the question of whether there remains a common law power to reactivate a suspended sentence which was not removed by the creation of the statutory jurisdiction under section 99, was touched on in this Court , it was not the subject of detailed argument in the High Court or on this appeal and accordingly I express no opinion thereon.
39. However, it should be noted that this reasoning would not necessarily apply in the same way to a remand from a reactivating court under section 99(10) to the convicting court under section 99(10A). That court is exercising its power to impose sentence in respect of a matter properly before it. The jurisdiction to do so comes from the court’s jurisdiction to try the offence. Trial, adjudication and sentence are normally indivisible parts of the administration of justice. Accordingly, the power to impose a sentence does not appear to be created or conferred by section 99(10A), or to be dependent upon it That section at best merely provides a mechanism to secure the individual’s attendance before the court. That however does not arise in this case, and accordingly, I would dismiss the appeal against the decision of the learned High Court Judge and affirm the answers she gave to the case stated.
40. Finally, I should say that there is an obligation on the prosecution in the sentencing court and which is aware of the existence of a suspended sentence and therefore the applicability of section 99, to be in a position to inform the court of the next sitting of the suspending court. This should be ascertainable without difficulty in relation to the District and Circuit Courts in Dublin, but even in the case of provincial District Courts and sittings of the Circuit outside Dublin this should not pose particular difficulty since the Courts Service website sets out terms and sittings of all the courts together with up to date information on changes to sittings. By the same token the representative of the accused should seek to ensure that the court has accurate information to allow it to discharge its function.
