High Court quails unlawful detention as de facto sentence pending probation report clarification.

Neutral Citation Number: [2009] IEHC 380

THE HIGH COURT

Record Number: 2009 477 SS

IN THE MATTER OF AN ENQUIRY UNDER ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN:

Bridget Devoy

Applicant

And

The Governor of the Dochas Centre, Mountjoy Prison

Respondent

Judgment of Mr Justice Michael Peart delivered on the 31st day of March 2009:

I heard submissions in relation to this application for the applicant’s release from custody on the 27th March 2009. She was released

on bail while I considered those submissions, and on the 31st March 2009 I ordered her release since I had concluded that her

detention was not in accordance with law. I indicated my reasons in broad outline and informed the parties that in due course I would

give my reasons in the form of a written judgment. This judgment contains those reasons.

There is no real dispute about the background to this application. It can be easily gleaned from the affidavit of John Neville, solicitor

for the applicant and who has represented her in relation to certain summonses for offences under the Road Traffic Acts currently

before the District Court in Dún Laoghaire, Co. Dublin, and from the affidavit of Sgt. Mary Diskin, who has been the presenting

sergeant at that Court in relation to those summonses.

On the 13th January 2009 the applicant was before the Court in relation to offences of drunken driving, dangerous driving, driving

without insurance cover, and having no driving licence. On that date she was remanded on bail to the 24th March 2009 so that a pre-

sentence Probation report could be obtained. On the 24th March 2009, and the District Judge was given the facts of the case and

details of some fourteen previous convictions against the applicant. It appears that having read this Report the District Judge formed

the view that she was unhappy with the efforts made by the applicant to attend the services which were recommended by the

Probation Officer. Mr Neville at that point apparently informed the judge that the applicant had instructed him that she had attended

at one of these services, namely WOVE (Women Overcoming Violent Emotions). It appears that the judge put the case back to a

second calling and requested a probation officer who was in the court at the time (not the author of the report) to make further

enquiries of the author of the report about a particular paragraph in the report which states:

“… Whilst she has not attended any service recommended to her during this adjournment period, she informed me of

her intention to attend a meeting with WOVE … organisation on Friday 13th March. I am unable to verify whether she

has honoured this commitment”.

Mr Neville states in his affidavit that he had offered to put his client in the witness box in order to assist in any clarification which the

judge was seeking, and informed her that the applicant had attended at WOVE on the 13th March 2009 as asked by the author of the

report. That offer was not taken up.

At second call, according to Mr Neville’s affidavit, the probation officer who had been asked to make contact with the author of the

report informed the judge that she could only reiterate what was in the report and could not confirm whether the applicant had

attended WOVE. Sgt. Diskin makes no averment as to any recollection she has about what was said at that stage.

However, everybody is agreed that the District Judge then remanded the applicant in custody to the 7th April 2009 for an “up to

date” pre-sentence report, stating that she was unhappy with the contents of the report. Mr Neville states he requested the judge

to remand his client on bail, but to no avail, and further that at no time did the judge indicate what the purpose of that up to date

report was, or why she was remanding the applicant in custody, she having been on bail up to that point.

Submissions:

Colman Fitzgerald SC for the applicant has drawn attention to the concluding paragraphs of the Report which was before the Court on

the 24th March 2009 which state as follows:

“According to the risk assessment tool applied, Miss Devoy presents in the moderate risk range of re-offending in the

next twelve months. The defendant is aware of the pertinent factors highlighted.”

In relation to the disposal of these matters, Miss Devoy presents as a suitable candidate for Probation supervision at this

time. Should the Court concur with this assessment I respectfully suggest the imposition of a twelve month Probation

Order, with a condition attached that the defendant engage in appropriate counselling intervention as recommended by

the supervising Probation Officer.

He suggests therefore that this is not a case where the judge, when remanding the applicant in custody, could have already formed a

concluded view that whatever may be contained in any further report requested she was going to impose a prison sentence in

respect of these offences, in spite of the existence of so many previous convictions. He submits that there was no basis existing or

suggested, on normal bail criteria, why bail should be revoked, such as a risk of absconding or even committing further offences. In

such circumstances it is submitted that the remand in custody amounts to an impermissible de facto imprisonment. He also highlights

the fact that it was not stated by the judge why a further report was thought necessary, and submits that it must be the case,

especially in the light of the recommendation of the Probation Officer that the applicant could be dealt with non-custodially, that the

judge could not have rationally reached a view on the 24th March 2009 that a sentence of imprisonment was to be imposed,

whatever may be contained in the further report requested.

Mr Fitzgerald has also submitted that the detention is unlawful because an unfairness has occurred since if the District Judge had

imposed a sentence on the applicant on the 24th March 2009 the applicant would have been entitled to file a Notice of Appeal

against that sentence and to have entered into a recognizance, and that having done so, the applicant would not have been required

to serve the sentence until such time as it was affirmed on appeal. Whereas in the present circumstances, even if the applicant is

sentenced in due course and appeals, and if that appeal was successful, the applicant would have served a period of time in custody

until the 7th April 2009. He has submitted that the right of the District Justice to remand the applicant in custody is not to be

equated to the right of a trial judge in the Central Criminal Court or the Circuit Criminal Court to remand a convicted person in custody

following conviction and before sentence is passed, since in the District Court an appeal and recognizance operates automatically as

a stay on the execution of the sentence pending the determination of the appeal. In this regard Mr Fitzgerald has referred to the

judgment of Charleton J. in Burke v. DPP [2007] 2 ILRM. 371.

Mr Fitzgerald has referred to the judgment of Denham J. in Howard v. District Judge Early and DPP, unreported, Supreme Court, 4th

July 2000. That was a case where the applicant had been remanded in custody for a period when prosecuted in respect of an offence

for which the maximum penalty for that offence was a fine. Among the reliefs sought was an order prohibiting the further prosecution

of the case on the basis that the applicant had already suffered a penalty worse that the penalty provided for by statute. While that

relief was not granted and the matter was remitted back to the District Court, on the basis that the applicant was in custody also on

foot of other court orders, Denham J. stated at paras. 12-13:

“… Whilst the District Court has powers of remand in custody they should not be used for de facto sentencing.

Where there are probation and other reports before the court so that adequate information is available and the

maximum sentence is a fine and not custody, it is for the court to exercise its power to remand with constitutional due

process. This might include a remand in custody but would require due consideration. On the face of it in circumstances

where a maximum penalty is a fine and adequate probation reports are in court it would be the exceptional case where

an order of remand in custody would be in accordance with constitutional justice.”

Mr Fitzgerald submits that while the facts of that case are of course different to the present one, nevertheless the applicant has

been the victim of what amounts to a de facto sentence and in circumstances where the District Judge may not, particularly in the

face of the Probation Officer’s recommendation, in the end following any clarification provided in the further report requested, impose

any sentence at all, or perhaps a suspended sentence with conditions to attend certain services. He submits that to do so is not in

accordance with constitutional justice, and that this is not an exceptional case as referred to by Denham J. such as would justify a

remand in custody in the circumstances of this case.

Mr Fitzgerald has submitted that a remand in custody must be ordered for a lawful purpose, and that no such purpose is evident from

the facts of this case.

Insofar as the remand in custody amounts to a revocation of bail in circumstances where there was not before the District Judge any

application to revoke bail or any facts before the Court to suggest that by reason of normal bail criteria such a revocation was

necessary or justified, Mr Fitzgerald has referred to the judgment of O’Neill J. in Rice v. Mangan, High Court, unreported, 30th July

2004. In that case the applicant had submitted, inter alia, that the respondent judge had no jurisdiction to interfere with his bail

without an application being made by either the prosecution or the applicant. The learned judge did not agree with that submission

but stated:

“… There is nothing in my view either in sections 22 or 23 of the Criminal Procedure Act, 1967 or in the Rules of the

District Court which either expressly or by necessary implication prevent a District Judge from altering bail conditions or

indeed revoking bail on his own motion. I would be of the opinion that circumstances can occur in the course of

proceedings which would justify a District Judge altering bail conditions or revoking bail in circumstances where no

application for that was theretofore made. A conclusion therefore that a District Judge did not have jurisdiction would be

wrong.

Whilst in rare circumstances a person’s bail conditions might be altered or indeed the bail itself revoked without prior

notice being to the person concerned, it can safely be said that no such circumstances existed in the applicant’s case. I

am quite satisfied that in this case the applicant should not have been faced with what was intended by the respondent

to be an alteration of his bail conditions but which turned out to be a revocation of his bail without proper notice so as

to have enabled him to be prepared and to have legal representation present. In proceeding to deal with the applicant’s

bail as is set out in the applicant’s affidavit I am quite satisfied that the respondent breached the applicant’s right to fair

procedures.”

Tony McGillycuddy BL for the respondent has placed some emphasis on the fact that the applicant had pleaded guilty to these

offence and that she therefore had ceased to enjoy the presumption of innocence, and to the fact that the District Judge was aware

that there were previous convictions, had considered the Probation Report, and had seen that there had been some doubt about the

applicant’s level of cooperation with the Probation Services. Mr McGillycuddy therefore submits that the judge was dealing with the

applicant at a post-conviction stage, and that given the facts and circumstances of the case there must be a distinct possibility hat

the judge would impose a custodial sentence, albeit that she decided to direct a further probation report in relation to the attendance

by the applicant with WOVE. He submits that this is not a case such as some of those referred to by Mr Fitzgerald where there was

any lack of fair procedures, since the applicant was legally represented and her solicitor was given an opportunity to make whatever

submissions which he wished to make. In circumstances where a custodial sentence was a distinct possibility as a penalty for these

offences, Mr McGillycuddy submits that a remand in custody for two weeks was within the jurisdiction of the District Judge, and that

this should not be equated with pre-empting a sentence.

He distinguishes the case of Howard referred to by Mr Fitzgerald, pointing out, as is the case of course, that the offence in Howard

was one which attracted only a monetary penalty, whereas in the present case up to six months imprisonment is possible. He refers

also to the power vested in the District Judge by s. 24 of the Criminal Procedure Act, 1967, as amended, to remand in custody

without consent for up to fourteen days on the second or subsequent occasions upon which a person is before the court. Where,

therefore, as in this case the applicant is remanded in custody for two weeks, this is within jurisdiction.

He also refers to the fact that in the present case the solicitor for the applicant made no application to the District Judge to proceed

immediately to sentence the applicant. He submits that this could have been done, and in that situation the applicant would have

been able to file a Notice of Appeal and enter into a recognizance so that the penalty would be suspended until the determination of

the appeal. He submits therefore that the judgment of Charleton J. in Burke v. DPP to which Mr Fitzgerald has referred is to be

distinguished since no application was made to the District Judge to proceed immediately to sentence the applicant.

Conclusions:

There is no doubt that pursuant to the provisions of s. 24 of the Criminal Procedure Act, 1967 as amended, there is a power to

remand a person in custody for up to fourteen days without consent where the person is before the court other than for the first

time. However that is not an answer to the question of the lawfulness of the applicant’s detention.

In the present case the applicant was on bail when she was before the court on the 24th March 2009. Clearly she had previously

been considered to meet the criteria for bail. In my view what occurred on the 24th March 2009 amounts to a revocation of bail, in

circumstances where there was no application for revocation of bail by the prosecuting Garda Sergeant on any of the usual bail

grounds, such as absconding, interfering with witnesses or even committing further offences. If the District Judge considered that

there were grounds for revoking bail and was considering doing so, as in theory she is entitled to do of her own motion, it seems to

me that fair procedures require that those grounds must be notified in some reasonable way to the accused person or her

representative in order to provide a reasonable opportunity to address them either by way of evidence or by way of submissions. That

did not occur. I respectfully agree with the statement of O’Neill J. in Rice v. Mangan to which Mr Fitzgerald referred and as set forth

above.

The District Judge had sight of a Probation report which recommended that the matter be dealt with non-custodially, albeit that there

was some doubt expressed about whether or not the applicant had attended WOVE as agreed. Of course, the District Judge is under

no obligation to follow the recommendation. But in the present case the District Judge wanted to obtain some clarification about what

the author of the report said about the applicant’s cooperation with the Probation services. Presumably that was in order to decide on

what penalty was appropriate in respect of the offences. I think that it is reasonable to presume that the District Judge did not feel

that it was appropriate to impose a penalty until such time as that matter was clarified. That seems to me to have been the purpose

of seeking the further report. No other purpose was identified by the District Judge on the evidence before me. If the District Judge

did not feel that she was in a position to decide on an appropriate sentence or other penalty until she had received that further

report, the revocation of bail and remand in custody must be seen as a de facto sentence and in circumstances where there was no

capacity to file an appeal and recognizance in order to appeal against same. It is a de facto sentence in circumstances where it is at

least possible that having received the further report clarifying the situation with regard to the applicant’s engagement with the

probation services, she will decide that a custodial sentence is not appropriate or that a suspended sentence may be appropriate, as

recommended by the Probation officer. Even if a suspended sentence or no sentence is imposed, the applicant would have spent two

weeks in custody in circumstances where she had been on bail and where there would not appear to have been any identified reason

why a revocation of bail was appropriate or required or justified by any conduct of the applicant.

Such a de facto sentence offends against constitutional justice, and while the facts of Howard v. District Judge Early and DPP are

entirely different, I see no reason not to respectfully adopt the remarks of Denham J. for the purpose of the present case.

In my view there has not been identified any lawful basis for a revocation of bail as such. There has not been identified any purpose

of a further probation report other than to clarify matters in relation to the applicant’s attendance at WOVE or other services. If that

was the purpose of the further report, then that matter was something which the District Judge must have considered important or at

least relevant to the question of whether or not a custodial sentence was appropriate, in spite of the recommendation to the

contrary contained in the report which was before the Court. Where the question of sentence had yet to be decided upon, and where

the matter may be dealt with non-custodially, the remand in custody of the applicant amounts to a de facto sentence against which

no appeal exists, as it would if it were actually imposed as a sentence. It is not sufficient for the respondent, through Mr

McGillycuddy, to argue that the applicant’s solicitor could well have asked the judge to sentence his client and thereby made the

appeal mechanism for release available. Firstly, it seems clear that the District Judge did not feel in a position to decide upon an

appropriate sentence – otherwise why did she seek a further probation report. Secondly, it would be invidious in the face of a request

for a further report for a solicitor to ask that his/her client be sentenced immediately in circumstances where no sentence might be

ordered at all.

In my view the detention of the applicant on foot of the order dated 24th February 2009 was unlawful, and for these reasons I

ordered her release.