IEHC 278 · High Court

Neutral Citation : [2016] IEHC 278

THE HIGH COURT

[2016 No. 459 SS]

IN THE MATTER OF AN APPLICATION FOR AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION OF IRELAND,

1937

BETWEEN

PAUL CLARKE

APPLICANT

AND

THE GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

JUDGMENT of Mr. Justice McDermott delivered on the 27th May, 2016

1. This is an application for an inquiry into the lawfulness of the applicant’s detention following a judgment by the High Court on the

19th April, 2016 declaring that s. 99 subs. (9) and (10) of the Criminal Justice Act 2006 (the 2006 Act) as substituted by s. 60 of the

Criminal Justice Act 2007 (the 2007 Act) were repugnant to the Constitution and consequently invalid.

Background

2. On the 7th July, 2010 the applicant appeared before Dublin Circuit Criminal Court in respect of a number of counts upon three

indictments, namely, Bill Numbers 1498/2008, 1383/2009 and 699/2010. On Bill No. 1498/2008 the applicant pleaded guilty to robbery

and possession of a firearm. A sentence of five years imprisonment was imposed. On Bill No. 1383/2009, the applicant pleaded guilty

to a count of robbery of €25,000, none of which was recovered. A sawn-off shotgun was discharged during the robbery to blast away

a glass barrier surrounding the area in which staff were working. A sentence of eight years imprisonment was imposed with the final

seven years suspended. The applicant also pleaded guilty to a further count of possession of a firearm in respect of which a sentence

of seven years imprisonment was imposed, which was suspended in its entirety. These sentences were to be consecutive to that

imposed on Bill No. 1498/2008. The applicant also pleaded guilty to a count of robbery on Bill No.699/2010. This concerned the

robbery of a shop with an accomplice using two knives and an imitation gun. He was sentenced to five years imprisonment with the

final four years suspended. This sentence was also to be served consecutively to that imposed on Bill No.1498/2008.

3. The suspended elements of the sentences were imposed pursuant to s. 99(1) of the 2006 Act. The conditions imposed in respect

of the suspension were that:

(a) The applicant agreed to keep the peace and be of good behaviour towards all the people of Ireland for a period of seven

years from the date of his release from prison;

(b) He would place himself under the supervision of the probation service for a period of two years from the date of his release;

(c) He would abide by all the directions of the probation service including attendance at a drug treatment course (residential or

otherwise) and provide urine samples for testing as necessary;

(d) He would come up, if called upon to do so, at any time within the said period of seven years to serve the balance of the

sentence imposed.

4. The conditions were imposed pursuant to s. 99(2) and (4). The condition that he should keep the peace and be of good behaviour

during the period of suspension was mandatory under s. 99(2); the other conditions were imposed under section 99(4) on the exercise

of the trial judge’s discretion.

5. Having served the custodial element of the sentences, the applicant was released from custody in October 2013 but continued to

serve the suspended sentence and of course was bound to comply with the conditions imposed. He failed to do so.

6. On the 9th September, 2014 the applicant appeared before Cloverhill District Court and pleaded guilty to charges arising out of two

separate cases involving separate cars on the 10th February and 2nd April 2014. The charges included driving a vehicle without

insurance and a driving license, failing to produce these documents when required and driving a vehicle with a bald tyre. The District

Court remanded the applicant in custody to Dublin Circuit Court on the 10th September, 2014 under s. 99(9) and s.99(10) of the 2006

Act for a determination as to whether the suspended portions of the sentences should be revoked.

7. The relevant sub-sections provide as follows:

“(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, the court before which proceedings for the offence were 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 referred to in subsection (9)) pending the revocation of the said order.”

Section 60 of the 2007 Act inserted a new subs. 10(a) after subs. 10 which required that the court back to which the matter has

been referred under subs. 9 (in this case the Circuit Court), must remand the person concerned in custody or on bail to the next

sitting of the referring court to enable that court to impose sentence (in this case the District Court).

8. On the 10th September, 2014 the s. 99 reactivation application was adjourned in the Circuit Court and finally determined by His

Honour Judge McCartan on the 4th November, 2014. The learned judge reactivated all the sentences that had been previously

suspended and directed that they should run concurrently from the 30th April, 2014. Thereafter the applicant was remanded back to

Cloverhill District Court on the 5th November, 2014 for the imposition of sentence in respect of the Road Traffic Act offences. A five

month sentence of imprisonment, itself suspended, and a thirty year driving ban were imposed in respect of the offence of driving

without insurance and the other charges were marked as taken into consideration.

9. By Notice of Appeal dated the 17th November, 2014, the applicant appealed against the sentence imposed on the 4th November.

This was received in the Court of Appeal on the 21st November, 2014 (Record No. CCA236/2014). The sentence is described at para.

3 of the Notice as “7 yr reactivated sentence plus 4 yr. reactivated sentence”. The grounds of appeal were to be supplied by the

applicant’s solicitor. However, the Court has been informed that no grounds of appeal have been filed to date nor have any legal

submissions been lodged, despite directions to do so. A date for the appeal has not therefore been assigned although undoubtedly the

court’s jurisdiction has been invoked and the appeal must be regarded as pending.

The Sentences

10. It is clear from the transcript of the original Circuit Court sentencing hearing on the 7th July, 2010 that the Court regarded the

offences committed as very serious and requiring lengthy terms of imprisonment. The applicant had a chronic drug addiction problem.

The Court was satisfied that he had made efforts to rehabilitate himself from the heroin addiction that had troubled him. He had

experienced a very dysfunctional childhood during which both his parents were heroin addicts. He had an extensive list of previous

convictions and the Court was satisfied that it had to deal carefully and cautiously with him. The suspension of the greater portion of

the sentences imposed was in the hope and expectation that he had a determination to stay out of trouble and give support to his

partner and child. While acknowledging that it might seem “an extraordinarily lenient approach to take” the learned Judge was

satisfied, having regard to the evidence he heard from the applicant’s sister and the fact that his partner was at the time expecting a

baby, that he should give him a chance to prove himself. If he failed and was brought back before the Court, the learned Judge

stated that he would have no hesitation in ensuring that he served the entirety of the suspended term.

11. When the matter was returned to the Circuit Court, the learned Judge sought and was furnished with a probation report. The

evidence was clear that the applicant had failed to comply with supervision and relapsed into drug abuse. He did not maintain contact

with the Coolmine Drug Programme or the McVerry Trust Stabilisation and Recovery Programme as required. The purpose of the

structured suspended sentence had failed. On his release he had quickly relapsed into drug abuse, failed to attend treatment and

support services and failed to comply with the court order in respect of probation supervision. The court concluded that the applicant

had not demonstrated a capacity to address his serious drug addiction, posed a serious threat to the community and had completely

failed to comply with the conditions of supervision. It considered that it had no option but to activate the entirety of the sentence.

12. The applicant does not complain about the substantive hearing that led to the revocation of the suspended sentence. The facts

of his case were accurately set out by the learned trial judge. The suspended element of the sentence was subject to the conditions

set out above. The applicant breached the conditions. The principles governing the revocation of a suspended sentence were

appropriately applied. While there may be grounds upon which to appeal against the exercise of the discretion to revoke the entirety

of the sentence on the basis that this was unduly severe, it was within the learned trial judge’s discretion to do so, on proper

application being made to the court.

13. Evidence was adduced by the prosecution of the events of default by the applicant, including the subsequent criminal convictions

in the District Court. The applicant, represented by counsel and solicitor, had a full opportunity to challenge this evidence, if

appropriate, and to give evidence or call evidence on his own behalf and make submissions. The applicant in the revocation hearing

did not challenge the evidence adduced. The learned trial judge directed that a probation service report be prepared. The applicant

did not give evidence, though submissions were made on his behalf, and thereafter the judge delivered his decision. It is not claimed

that any aspect of this hearing was conducted in a manner which was unfair or contrary to law. The objection taken is that the

applicant was returned to court under a procedure that has now been found to be repugnant to the Constitution.

14. There are two other paths by which an application might be made to revoke a suspended sentence. The first is at the instigation

of An Garda Síochána or a Prison Governor under s. 99(13) of the Act if there are reasonable grounds for believing that a prisoner has

breached the mandatory conditions imposed under sub-section (2). The second is at the instigation of the probation service under

section 99(14) if there are reasonable grounds for believing that the prisoner has breached the conditions imposed under sub-section

(3) or (4). There were clearly grounds upon which either section might have been invoked by the relevant parties. They did not do so

and this was commented upon by the learned trial judge. However, the hearing would have proceeded in substantially the same way.

15. It is clear that whatever procedure is followed, the jurisdiction of the sentencing court is extensive. Though the scope of the

order under s. 99(10) is directly related to the return of the case to the sentencing court because of a further conviction, the court

is vested with extensive powers under s. 99(17) which are exercisable if it is satisfied that any condition imposed has been breached.

It provides:

“A court shall, where it is satisfied that a person to whom an order under subsection (1) applies has contravened a condition of

the order, revoke the order unless it considers that in all of the circumstances of the case it would be unjust to so do, and

where the court revokes that order, the person shall be required to serve the entire of the sentence 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 pending the revocation of the said order.”

The essence of the decision under s. 99(17) is similar to that to be made under s. 99(10). However, section 99(17) has a wider ambit

than s.99 (10), (13) and (14) in that it provides for a more general jurisdiction to revoke a suspended sentence. It is not specifically

referable to any of the sub-sections under which the matter is returned to the sentencing court: rather the sub-section directs the

court to revoke a suspended sentence once it has been satisfied that a condition of its suspension has been breached unless it is

unjust to do so. In considering a revocation under the impugned s.99(10) the court is empowered to address not only the applicant’s

further criminal convictions, but any other contravention of the conditions imposed under s.99(1). The court is vested with full

jurisdiction to consider revocation in respect of any breach of condition, of which, a further offence is but an example. Section 99(17)

is calculated to ensure adherence by the convict to all conditions imposed and so that the court is empowered to deal effectively

with failures to comply with any or all conditions, thereby enabling it to supervise compliance with, and enforcement of, its orders.

16. If a person is dissatisfied with a determination made on a revocation hearing, he/she is entitled to appeal to the Court of Appeal

under section 99(12) which permits an “appeal against the revocation”. In this case, the applicant has appealed to the Court of

Appeal under this section and the appeal is still pending. The Court of Appeal has full jurisdiction to make any order that is deemed

appropriate in the interests of justice.

17. The applicant claims to be entitled to release because the mechanism whereby he was sent back to the court of trial which dealt

with his undoubted breaches of conditions and lifted the suspension on the sentence, was held to be repugnant to the Constitution

and invalid in Moore and others v. Director of Public Prosecutions, Ireland and the Attorney General [2016] IEHC 244 (Moriarty J.).

The Moore Decision

18. The Moore case involved six applicants who were subject to suspended or partially suspended sentences and the process of

reactivation set out under section 99(9) and (10). In Moore’s case, the applicant was convicted following a contested trial in the

District Court. Before he was sentenced the evidence disclosed that he had been previously convicted in the Circuit Court which had

imposed a suspended sentence that was still operative. The matter was remanded to that court to determine whether the suspended

element of the sentence should be lifted because of his failure to comply with its conditions.

19. Moore, at the time of the referral to the Circuit Court, wished to appeal his District Court conviction to the Circuit Court and to

conclude his appeal before the determination concerning the revocation of his suspended sentence was made. If his appeal from the

District Court conviction was successful, the basis for the lifting of the suspension would no longer apply; he would have been

acquitted of the District Court charges. However, he was precluded from concluding his appeal until the issue of the reactivation of

the sentence had been determined. It is an important feature of this case that the applicant pleaded guilty in the District Court.

20. The other applicants in the Moore case had similar factual histories. Each of them had been convicted and were the subject of

operative suspended sentences. Each was then later convicted, having pleaded not guilty, of offences committed during the

operative part of the suspended sentences imposed. Each was then referred back to the court of trial which had imposed the

suspended sentence under section 99(9) and (10). Each appealed and/or wished to appeal, against the second conviction. Those

appeals could not be determined prior to the determination of the lifting of the suspended sentence because of ss. 99(9) and (10). If

acquitted on appeal each would have suffered periods of imprisonment precipitated by a conviction which might ultimately be set

aside.

21. Moriarty J. concluded that the procedure mandated under s. 99 unduly interfered with the right of appeal from the District Court

to the Circuit Court and insofar as the other applicants were prevented from initiating and concluding their appeals against conviction

prior to the determination of the activation issue, it was a violation of the right to trial in due course of law pursuant to Article 38.1 of

the Constitution and the right to equality before the law under Article 40.1. This conclusion was reached “in the context of the facts

reviewed and the arguments made” though the final order declaring the sub-section invalid states that this is so because they are

repugnant to Articles 38.1 and 40.3 of the Constitution.

22. Three elements of potential prejudice to the applicants were identified by Moriarty J.:-

(a) Firstly, a person is convicted before the District Court of a relatively serious offence but because of a number of mitigating

factors a suspended sentence of twelve months imprisonment is imposed for a period of one year. However, within the period of

suspension, a further offence is alleged and after a contested hearing he is convicted of that offence. Prior to the full sentence

hearing the court’s attention is brought to the prior suspended sentence that is still operative. The accused is then brought

before the District Judge who imposed the initial suspended sentence but no sentence hearing has taken place before the judge

who convicted the accused of the second offence. The accused wishes to appeal the latter conviction to the Circuit Court but,

although he has a right to a full rehearing of the matter, he is prevented from doing so under section 99;

(b) Secondly, a person might be convicted before the District Court and receive a suspended sentence of the kind outlined at

(a) but be convicted on indictment before the Circuit Criminal Court following a trial. If the accused is dissatisfied with the

second outcome and wishes to exercise all appellate entitlements, particularly since he has been brought back before the initial

judge who exercised leniency in his favour, he is faced with a right to appeal but one which is now somewhat more limited.

There will not be a full rehearing. The appeal is limited to grounds complaining that the conviction was wrong in law. He is not

entitled to have recognisances fixed as he would be in an appeal from the District Court to the Circuit Court. He is regarded as

a convicted person subject to the rigorous requirements of persuading the court of a realistic prospect of success on one or

more of the grounds to be advanced if he is to obtain bail pending appeal;

(c) Thirdly, it is suggested that a young offender facing reactivation on foot of his still operative suspended sentence because

of a later conviction, must consider, independently of his wish to appeal the second conviction, the possibility that he might

fare better by abandoning a contemplated appeal and throwing himself upon the mercy of the initial judge who had treated him

mercifully, and who might still be disposed to reactivate only a limited portion of the suspended sentence.

None of these considerations are relevant to the facts of the applicant’s case.

23. In the Moore case, Moriarty J. relied upon a number of important constitutional principles set out by Hogan J. in McCabe v. Ireland

and the Attorney General [2014] IEHC 435. The applicant received a suspended sentence from the Circuit Court on appeal from the

District Court. That sentence was later reactivated following his conviction for a subsequent offence. However, the Circuit Court

which reactivated the sentence was a court of final appeal. Section 99(12) provides that on the revocation of a suspended sentence

“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”. It was submitted

that the applicant had a right of appeal against the revocation under Article 34.3.4 of the Constitution and that the failure to provide

him with such an appeal was contrary to the equality guarantee of Article 40.1. Hogan J. found that this was so and granted the

appropriate relief. However, on appeal, the Court of Appeal held that on a proper construction of s. 99(12) an appeal lay to the Court

of Appeal even though the Circuit Court which revoked the sentence was a final court of appeal from the District Court order of

conviction and sentence. This was so because the jurisdiction vested in the reactivation court under s. 99(10) was said to be a

freestanding exercise of a new jurisdiction. It required the application for the first time of a separate statutory test based on new

facts which provided the basis for the revocation. The logic of the sub-section indicated that it was a first instance decision even if

the court exercising the reactivation power was a court of appeal (DPP v. Foley [2014] IESC 2). It was not a decision made on

appeal. Consequently, the applicant had a right of appeal to the Court of Appeal from the reactivation under section 99(12).

24. Since the Court of Appeal reversed the finding of Hogan J. that the applicant did not have a right of appeal, it became

unnecessary to address specifically the points of principle concerning equality before the law under Article 40.1 applicable to those

facing reactivation of a suspended sentence addressed by Hogan J. Moriarty J. relied upon the general applicability of these principles

as gleaned from the following extracts from the judgment of Hogan J:

“15. It must also be recalled that the policy expressed by the Oireachtas in s. 99(12) is that the reactivation of every

suspended sentence should be capable of being appealed to a higher court. In these circumstances, it is not possible to discern

any possible justification for the radically different treatment of persons whose suspended sentences for minor offences have

been reactivated by the Circuit Court as distinct from the District Court. The equal treatment of similarly situated persons within

the criminal justice system is at the heart of the concept of equality before the law which, as the language of that provision

makes clear, is one of the fundamental objectives of Article 40.1; see e.g. Cox v. Ireland [1992] 2 I.R. 305, S.M. v. Ireland (No.

2) [2007] IEHC 280, [2007] 4 I.R. 369, B.G. v. Ireland (No. 2) [2011] IEHC 445, [2011] 3 I.R. 748 and Byrne v. Director of

Oberstown School [2013] IEHC 562, [2014] 1 I.L.R.M. 346. This is especially so given that the fundamentally different treatment

with regard to sentences which would then obtain would so greatly impact on the core constitutional right to liberty under

Article 40.4.1. […]

21. Given that in the present case the significantly differing treatment of otherwise similarly situated accused so far (as) rights

of appeal are concerned is incapable of objective justification – and, let it be recalled, no such justification has really being

advanced – the conclusion that such a state of affairs plainly offends the guarantee of equality before the law in Article 40.1 is,

accordingly, inescapable. We can consider presently the implications of that particular conclusion. […]

34. The right of appeal is subject to “law”, but it is now clear – in a way which was not perhaps quite the case in 1972 at the

time when Hunt was decided – that where this phrase appears in the Constitution, it does not simply refer to positive law only

in the sense of a statute enacted by the Oireachtas. It is rather the case that any such “law” as is envisaged by Article 34.3.4

must comply with the principles subsequently articulated by Henchy J. in King v. Attorney General [1981] I.R. 233, 257, so that

the law “must [not] ignore the fundamental norms of the legal order postulated by the Constitution.” This principle was recently

reaffirmed by O’Donnell J. in Murphy in the context of Article 38.3.1 and the establishment “by law” of the Special Criminal

Court. The application of the King principle meant that the question in that case thereafter became whether the provisions of

the Offences against the State Act 1939 providing for the establishment of that Court were “compatible with the dictates of

fairness postulated by the Constitution.”

35. If the matter is looked at in this way it may be said that the existence of a right of appeal against a purely procedural ruling

of a trial judge in matters relating to venue is not intrinsic to the fundamental norms postulated by the Constitution and nor is it

central to the criminal justice system. As Geoghegan J. pointed out, the existence of a right of appeal against decisions in

respect of venue would be likely to prove disruptive to the smooth and orderly administration of justice.

36. The right of appeal of an accused against sentence is an entirely different matter. As a matter of history, a right of appeal

on the part of the accused against sentence has been a fundamental feature of the criminal justice system since the

Constitution was first enacted. […]

37. In view of the centrality of sentencing to the criminal justice system and given that the protection of liberty, the trial of

offences in due course of law and the existence of a right of appeal are themselves all fundamental norms expressly

safeguarded by the Constitution, it is difficult to see how a law which did not provide for a right of appeal against sentence

imposed by a court of local and limited jurisdiction could be said to be a law which represented those fundamental norms, so

that it was a “law” in the sense identified by Henchy J. in King and by O’Donnell J. in Murphy. […] It is […] something which, at

the very least, requires to be objectively justified.”

The learned judge concluded that no objective justification for the absence of a right of appeal (subsequently found by the Court of

Appeal to exist) was present in the case.

25. Moriarty J. adopted these principles and, emphasising the judgment of Henchy J. in King v. Attorney General (cited above), noted

that the inconsistency with the Constitution found in the relevant statutory provision in King resulted from the incompatibility of that

provision with the requirements in Article 38 that no person shall be tried on a criminal charge save in due course of law, the

guarantee under Article 40.4.1 that no citizen shall be deprived of his liberty save in accordance with law and the principle of equality

before the law under Article 40.1. He therefore concluded that s. 99(9) and (10) were repugnant to the Constitution:

“30. In all the circumstances of the case, and having given the matter as much careful consideration as I can, I am persuaded

that notwithstanding the presumption of constitutionality that exists in relation to enactments, and the regard and respect that

Courts must show to enactments of the Oireachtas, the subsections under review of s. 99 fall to be viewed as unconstitutional

in the context of the facts reviewed and the arguments made”

26. It is clear that, unlike the McCabe case, which concerned an omission from the legislation, the challenge in this case was to the

provisions themselves. The unfair and unequal consequences (set out above) for accused persons who were members of the same

class or category of convicts subjected to suspended sentences who had beached their bond and faced reactivation, was held to

justify the finding of repugnancy to the Constitution. The applicant claims, in this case, that having regard to the rationale underlying

the Moore decision, the similar facts of his case and the legal consequences of the finding that s. 99(9) and (10) are invalid because

of their repugnancy to the Constitution, the lifting of the suspensory part of his sentence was unlawful. Therefore, he claims that he

was not sentenced and thus not tried in due course of law under Article 38.1 and is not detained in accordance with law by reason of

this fundamental defect in the sentencing procedure.

The Procedure

27. The procedure invoked under s. 99(9) procured the applicant’s attendance before the Circuit Court pursuant to an Order of the

District Court which remanded him to that court following his pleas of guilty. The Circuit Court was then obliged to revoke the

suspended element of the sentence in full unless it would be unjust so to do under s. 99 (10). As already noted a somewhat wider

power was vested in the sentencing court to revoke a suspended sentence under s. 99 (17) if the court is satisfied that a condition

of the suspension has been breached. This applies generally to applications to revoke, whether made under s. 99 (9) or s. 99 (13) or

(14). The focus of the court at that stage is on any breaches of condition, not simply the original reason for which the convict is

returned to the court.

28. It is important to recall that the applicant pleaded guilty to a number of very serious offences following which he was lawfully

sentenced. No appeal was taken against that sentence, which he is obliged to serve in all its aspects. In effect his trial had

concluded on the expiration of the time limit for appeal. No further proceedings would have occurred if he had abided by the

conditions of the sentence. The subsequent application to revoke the suspensory element of the sentence is directed towards the

administration and enforcement of the sentence imposed. He was at all times from the date of imposition of the sentence, serving

that sentence, whether in custody or at liberty, subject to the conditions to which he freely subscribed.

29. He was returned to court in accordance with the then appropriate procedure which enabled the Court to consider in full his

subsequent convictions and the breaches of conditions which were admitted. The court has been invited to consider whether the

declaration of invalidity of the two sub-sections creates a mere procedural defect in procuring his attendance before the Circuit Court

which is cured by his appearance or whether it operates to vitiate the jurisdiction of the court to make the order.

30. The respondent submits that an illegality in the means by which a person is brought before the court is not fatal to the exercise

of jurisdiction. Reliance is placed on The State (Attorney General) –v- Fawsitt [1953] I.R. 39, DPP (Ivers) –v- Murphy [1999] 1 I.R. 98

and Killeen –v- Director of Public Prosecutions [1997] 3 I.R. 218. However, the return of the case to the sentencing court under

s.99(9) was coupled with a specific power which was exercisable because of the convictions in the District Court under s.99 (10)

which has also been declared invalid. It vested power in the court to revoke the suspended element of the sentence and it did so.

The court is satisfied that the real issue in this case is whether the applicant is entitled to the benefit of the declaration of invalidity

in the circumstances of his case and not whether his return to court on foot of an illegality may be deemed inconsequential to the

court’s jurisdiction. If the declaration has retrospective effect in this case, the court is not satisfied that it may be categorised as a

mere procedural defect. However, for the reasons which follow, the Court is not satisfied that the applicant is entitled to the

retrospective application of the Moore decision.

The Article 40 Complaint

31. Article 40.4.1 of the Constitution provides:

“No citizen shall be deprived of his personal liberty save in accordance with law”.

32. On the 20th April, 2016, the day after judgment was delivered in the Moore case, a complaint was made on behalf of the

applicant that he was unlawfully detained. This Court directed an inquiry forthwith into the complaint and ordered that the grounds of

his detention be certified in writing by the Governor of Mountjoy Prison. The detention was certified on the 20th April on the basis

that the respondent held the applicant in custody pursuant to the warrants which issued following the reactivation of the sentences

already described. No issue is taken in respect of the form and content of these warrants nor is there any claim of illegality attaching

to them. I am satisfied that the respondent has discharged his obligation to certify in writing the grounds of the applicant’s detention,

from which it appears on the face of the warrants furnished that he is not unlawfully detained. The substantive basis upon which the

applicant claims that he is unlawfully detained arises from the declaration made in the Moore case. In effect, the applicant claimed

that his right to trial in due course of law under Article 38.1 and to equality before the law under Article 40.1 were violated, in that

the sentencing hearing held at the time of the reactivation of the sentences which he is now serving, was initiated and conducted

pursuant to a procedure which has been declared repugnant to the Constitution and invalid. This is a collateral attack on the

reactivation process.

33. As a convicted person, this application must be considered within the principles set out in The State (McDonagh) v. Frawley

[1978] I.R. 131 in which at p. 136 O’Higgins CJ. stated in delivering the judgment of the Supreme Court:-

“[…] Where a person such as the prosecutor is detained for execution of sentence after conviction on indictment, he is prima

facie detained in accordance with law and, as was held in the High Court by Maguire P. at p. 435 of the report of The State

(Cannon) v. Kavanagh, it would require “most exceptional circumstances for this Court to grant even a conditional order of

habeas corpus to a prisoner so convicted.” … In a case such as the present, the production of the warrant by the governor of

the prison will normally be a sufficient justification of the detention.

The stipulation in Article 40, s. 4, sub-s. 1, of the Constitution, that a citizen may not be deprived of his liberty save “in

accordance with law” does not mean that a convicted person must be released on habeas corpus merely because some defect

or illegality attaches to his detention. The phrase means that there must be such a default of fundamental requirements that

the detention may be said to be wanting in due process of law. For habeas corpus purposes, therefore, it is insufficient for the

prisoner to show that there has been a legal error or impropriety, or even that jurisdiction has been inadvertently exceeded. For

example, if the judge at a murder trial in which the accused was convicted were to impose a sentence of imprisonment for life,

instead of penal servitude for life as required by the statute, the resulting detention would be imposed technically without

jurisdiction. But the prisoner would not be released under Article 40, s. 4, for it could not be said that the detention was not “in

accordance with the law” in the sense indicated. In such a case the court would leave the matter of sentence to be rectified

by the Court of Criminal Appeal; or it could remit the case to the court of trial for the imposition of the correct sentence […]

The confinement of orders of release under Article 40, s. 4, to cases where the detention is not “in accordance with the law” in

the sense I have indicated means that applications under Article 40, s. 4, are not suitable for the judicial investigation of

complaints as to conviction, sentence or conditions of detention which fall short of that requirement. These fall to be

investigated, where necessary, under other forms of proceedings. But in cases where it has not been shown to the satisfaction

of the court that the detention is “in accordance with the law” in the sense indicated, the release of the detained person must

be ordered and, notwithstanding judicial dicta to the contrary, the order of release may not be coupled with an order of re-

arrest. …”

34. In The State (Aherne) v. Cotter [1982] I.R. 188 at p. 203 Henchy J. stated:-

“Before a convicted person who is serving his sentence may be released under our constitutional provisions relating to habeas

corpus, it has to be shown not that the detention resulted from an illegality or a mere lapse from jurisdictional propriety but that

it derives from a departure from the fundamental rules of natural justice, according as those rules require to be recognized

under the Constitution in the fullness of their evolution at the given time and in relation to the particular circumstances of the

case. Deviations from legality short of that are outside the range of habeas corpus.”

35. The applicant claimed that the order directing his return to the Court of trial under s. 99(9) and the subsequent order directing

the reactivation of his sentence under s.99(10) must now be regarded as unlawful having regard to the findings made in Moore that

the relevant subsections were repugnant to the Constitution and invalid. Thus, it is submitted that the hearings conducted by the

learned trial judge in respect of the reactivation of the sentence were the result of a procedural deficiency “such as would invalidate

any essential step in the proceeding leading ultimately to his detention” (The State (Royle) v. Kelly [1974] I.R. 259). Though it is clear

that the subsections were relied upon to re-enter the case, and applied to the applicant, and that following the judgment in Moore

they must now be regarded as invalid, the effect of the decision on the applicant’s case falls to be considered.

The Effect of a Finding of Unconstitutionality

36. In A. v. Governor of Arbour Hill Prison [2006] 4 I.R. 88 the applicant pleaded guilty to a charge of unlawful carnal knowledge

contrary to s. 1(1) of the Criminal Law (Amendment) Act 1935 and was sentenced to three years imprisonment. He did not appeal.

Thereafter, the Supreme Court declared that the section was not carried over by Article 50 because it was inconsistent with the

provisions of the Constitution. The applicant sought to benefit from this finding by seeking his release under Article 40 of the

Constitution. He claimed that he was entitled to the retroactive benefit of the Supreme Court’s subsequent determination (C.C. v.

Ireland [2006] 4 I.R. 1).

37. The Supreme Court decided that it was not an express or implied principle of the constitutional law that a determination that a

particular statute is invalid by reason of repugnancy to the Constitution or carried over under Article 50 by reason of its inconsistency

with its provision, had a retrospective application in all cases. It was not the law that cases which had been finally decided and

determined in accordance with a statute, which was later found to be unconstitutional must invariably be set aside. A principle of

absolute retroactivity in respect of such decisions or cases was firmly rejected. Murray C.J summarised the general principle applicable

as follows:

“125. In a criminal prosecution where the State relies in good faith on a statute in force at the time and the accused does not

seek to impugn the bringing or conduct or the prosecution, on any grounds that may in law be open to him or her, including the

constitutionality of the statute, before the case reaches finality, on appeal or otherwise, then the final decision in the case

must be deemed to be and to remain lawful notwithstanding any subsequent ruling that the statute, or a provision of it, is

unconstitutional. That is the general principle.

126. I do not exclude, by way of exception to the foregoing general principle, that the grounds upon which a court declares a

statute to be unconstitutional, or some extreme feature of an individual case, might require, for wholly exceptional reasons

related to some fundamental unfairness amounting to a denial of justice, that verdicts in particular cases or a particular class of

cases be not allowed to stand.”

38. Hardiman J. summarised the effect of the then applicable authorities including The State (Byrne) v. Frawley [1978] I.R. 326;

deBurca v. Attorney General [1976] I.R. 38; McDonnell v. Ireland [1998] 1 I.R. 134 and Murphy v. the Attorney General [1982] I.R.

241 as follows:-

“236

(1) The courts have consistently asserted that post-Constitution statutes found invalid having regard to the Constitution are

deemed to be invalid from the date of their enactment. That has been authoritatively decided. […]

(2) There is a well established line of authority for the proposition that “ it does not necessarily follow that court orders lack

binding force because they are made in proceedings based on an unconstitutional statute”; that “ it is not the universal rule

that what has been done in pursuance of the law which has been held to have been invalid for constitutional or other reasons

will necessarily give a good cause of action, the law has to recognise that there may be transcendent considerations which

make such a course undesirable impracticable or impossible”; that “… a declaration under Article 50.1 that a law had lost validity

in 1937 on constitutional grounds does not necessarily carry with it the corollary that what has been done after 1937 in

pursuance of that statutory provision will equally be condemned for lack of validity”; that “[t]he consequences of striking down

legislation can only crystallise in respect of the immediate litigation which gave rise to the declaration of invalidity”.

(3) In applying the considerations mentioned in the preceding paragraph, “… it has been found that considerations of economic

necessity, practical convenience, public policy, the equity of the case and such like matters may require that force and effect

be given in certain cases to transactions carried out under the void statute”.

(4) Such force and effect may have to be given “… because of a person’s conduct or because of the irreversible course events

have taken, or for any one of a number of other reasons…”; because “[t]he irreversible progressions and by-products of time,

the compulsion of public order and the common good, the aversion of the law from giving a hearing to those who have slept on

their rights, the quality of legality - even irreversibility - that tends to attach to what is becoming inveterate or has been widely

accepted and acted upon, the recognition that even in the short term the accomplished fact may sometimes acquire an

inviolable sacredness, these and other factors may convert what has been done under an unconstitutional law, or otherwise

void, into an acceptable part of the corpus juris”; because “[q]uestions of rights claimed to have become vested, of status, of

prior determinations deemed to have finality, and acted upon accordingly, of public policy in the light of the nature both of the

statute and of its previous application, demand examination”.

(5) There is also authority for the proposition that the court should not attempt to lay down a rigid general rule as to what

proceedings under an invalid statute will be given force and effect and what proceedings may be struck down by litigation:

“I deliberately avoid any general consideration of the broad question as to when … acts done on foot of an unconstitutional law

may be immune from suit in the courts … I think experience has shown that such constitutional problems are best brought to

solution step by step, precedent after precedent, and when set against the concrete facts of a specific case.”

All these citations are taken from the cases mentioned above, are of long standing as statements of Irish law and have not

been contradicted by any authority to which we have been referred.”

39. The consequences for prior criminal trials of the Supreme Court’s declaration that elements of the Juries Act 1927 were

inconsistent with the provisions of the constitution in the deBurca case were considered in The State (Byrne) v. Frawley (cited

above). In Byrne’s case the prosecutor had been tried by a jury selected under the provisions of the Juries Act 1927 and was

convicted and sentenced to seven years penal servitude. The conviction occurred in December 1975 and the decision in deBurca was

delivered during the course of his trial. No point was taken in respect of this decision and the prosecutor proceeded with the jury

which had been empanelled even though counsel for Byrne also acted in deBurca. Though he appealed to the Court of Criminal Appeal

he did not raise the issue of the unconstitutional composition of the jury. Thereafter he applied for release under Article 40.4.2 on the

grounds that he was not being detained in accordance with law thereby asserting the same rights which arose from the declaration of

inconsistency made in deBurca. The Supreme Court rejected the application. Henchy J. (delivering the judgment of the court), stated

that the applicant made an informed and deliberate decision to turn down the opportunity to challenge the composition of the jury

during the course of his trial. The learned judge continued at p. 350:-

“Because the prisoner freely and knowingly elected at his trial to accept the empanelled jury as competent to try him, I

consider that he is now precluded by that election from claiming that the jury lacked constitutionality […] The prisoner’s

approbation of the jury was affirmed by his failure to question its validity when he formulated grounds of appeal against his

conviction and sentence, and when his application for leave to appeal was argued in the Court of Criminal Appeal. It was not

until some five months after his trial that he first put forward the complaint that the jury had been formed unconstitutionally.

Such a volte face is impermissible. Having by his conduct led the Courts, the prosecution (who were acting for the public at

large) and the prison authorities to proceed on the footing that he accepted without question the validity of the jury, the

prisoner is not now entitled to assert the contrary. The constitutional right to a jury drawn from a representative pool existed

for his benefit. Having knowingly elected not to claim that right, it would be contrary to the due administration of justice under

the Constitution if he were to be allowed to raise that claim in the present proceedings when, by deliberate choice, it was left

unasserted at the trial and subsequently in the Court of Criminal Appeal. What has been lost in the process of events is not the

right guaranteed by the Constitution but the prisoner’s competence to lay claim to it in the circumstances of this case.

In basing this judgment on the special circumstances of this case, I do not wish to imply that the prisoner would be entitled to

succeed in his claim if those particular circumstances did not exist. ”

40. In A. v Governor of Arbour Hill Prison the Supreme Court emphasised that the criminal proceedings in which the applicant had been

convicted and sentenced had been finalised. Murray CJ. stated:-

“114. It follows from the principles and considerations set out in the cases, which I have cited, that final decisions in judicial

proceedings, civil or criminal, which have been decided on foot of an Act of the Oireachtas which has been relied upon by

parties because of its status as a law considered or presumed to be constitutional, should not be set aside by reason solely of a

subsequent decision declaring the Act constitutionally invalid.

115. The parties have been before the courts. They have in accordance with due process, had their opportunity to rely on the

law and the Constitution and the matter has been decided. Once finality has been reached and the parties have in the context

of each case exhausted their actual or potential remedies the judicial decision must be deemed valid and lawful.

116. Save in exceptional circumstances, any other approach would render the Constitution dysfunctional and ignore that it

contains a complete set of rules and principles designed to ensure “an ordered society under the rule of law” in the words of

O'Flaherty J.

117. I am quite satisfied that the Constitution never intended to visit on that ordered society the potential unraveling of judicial

decisions over many decades when a particular Act is found unconstitutional solely on the consideration of the ab initio principle

to the exclusion of all others.”

(see also Geoghegan J. at para. 279; Hardiman J. at para. 264 and McGuinness J. at paras. 190 to 191).

41. The applicant lays particular emphasis on the fact that the criminal proceedings in his case have not been finalised or concluded

in the Court of Appeal since his appeal against sentence under s. 99(12) is still pending. I am satisfied that this is so and that the

applicant is not precluded from raising a point concerning the invalidity of the statute under which he was returned to the Circuit

Court under s. 99(9) and (10). He is entitled to advance all such arguments and evidence to establish a claim that he is entitled to

benefit from the declaration. I am satisfied that this conclusion is also in accordance with the decision of the Court of Criminal Appeal

in The People (Director of Public Prosecutions) v. Cunningham [2012] IECCA 65. However, I am not satisfied, as is made clear in the

above authorities, that the finality argument must always prevail against all others in determining the retroactivity of such a

declaration, or indeed must prevail in this application: the behaviour of the applicant and the other circumstances of the case must

also be considered.

Other Relevant Issues

42. In Cunningham Hardiman J. set out two related questions which must be addressed to determine the scope of the retroactivity of

a finding that a statute is unconstitutional:-

“Firstly, if the ruling […] were to be applied to the circumstances of the accused’s case, would this involve the retrospective or,

alternatively, the prospective application of the finding of unconstitutionality? Secondly, has the accused conducted himself in

such a manner, such as suggested that he is debarred by his conduct from claiming the benefit of the ruling?”

43. It is important to note the context in which these questions were framed in Cunningham. The applicant had been convicted of a

number of money laundering offences. In one of these offences the evidence relied upon was entirely based on material obtained as a

result of a search carried out under a warrant issued pursuant to s. 29 of the Offences against the State Act at the applicant’s home.

The applicant was convicted before Cork Circuit Criminal Court on the 27th March, 2009. He sought leave to appeal against conviction

and sentence by notice of appeal dated 14th May. On 13th April, 2012 leave was sought to amend the grounds of appeal to include a

declaration based on the decision in Damache v. Director of Public Prosecutions [2012] 2 I.R. 266 to the effect that evidence

procured on foot of the impugned search warrant was unconstitutionally obtained and therefore inadmissible in law. The decision in

Damache declaring s. 29 to be repugnant to the Constitution was delivered on the 23rd February, 2012. The written submission made

to the Court of Criminal Appeal referred to the potential unconstitutionality of section 29. Objection had been taken during the course

of the trial to the admissibility of the evidence procured on foot of the warrant but on different grounds.

44. The Court of Criminal Appeal held that where a right of appeal was provided by law, a proceeding could not be regarded as

finalised or concluded in respect of the decision that was sought to be appealed until that appeal had been concluded or no appeal

has been taken within the time limit for so doing. The court held that the appeal in Cunningham’s case had not been finalised or

concluded and the applicant was entitled to rely upon the declaration in Damache as a ground of appeal. As noted above, the

applicant in this case has appealed to the Court of Appeal under s. 99(12) and is entitled to rely upon the judgment in the Moore

case absent any other relevant facts that would debar him from so doing. As stated by Hardiman J. in Cunningham:-

“73. It is, of course, true that, as O'Flaherty J. observed in McDonnell v. Ireland [1998] 1 I.R. 134 at p. 144, this very invalidity

crystallises only with a formal declaration of constitutional invalidity. Naturally, as we have just observed, the established

jurisprudence […] shows that this does not necessarily mean that all actions, decisions and transactions taken in good faith on

foot of that unconstitutional law must be unravelled, even if that invalidity operates ab initio. Any other conclusion would simply

represent the triumph of abstract logic over the dictates of justice and the practical administration of society. Such a

consequence is, in any event, contraindicated by a range of defences – ranging from prescription, estoppel, change of position,

acquiescence and res judicata – which have evolved over the centuries, the very point which was central to the judgment of

Henchy J. in Murphy v. The Attorney General.

74. Yet once that invalidity does crystallise with a declaration of unconstitutionality, it is plain, so far as the State, society and

the citizenry is concerned, that the law in question is no longer operative. […] It is inherent in the principle of

unconstitutionality contained in Article 15.4.2. that any such declaration has erga omnes effect. In other words, such a

declaration is not merely confined to a specific judicial ruling of unconstitutionality inter partes which binds third parties simply

and only by reason of the doctrine of precedent and the fact that the earlier ruling will (in all probability) be applied in future

similar cases.

79. […]Once there is a final declaration of unconstitutionality, then the law in question is judicially adjudged to be invalid or

annulled […] such a finding of invalidity must apply to third parties, certainly so far as current and prospective transactions are

concerned following the “crystallisation” of the declaration of unconstitutionality.”

45. Although the applicant is therefore in principle entitled to the benefit of the Moore declaration the court must also inquire, in the

words of Henchy J. in Byrne whether by reason of other facts and circumstances the applicant has lost the “competence to lay claim

to (the right guaranteed by the Constitution) … in the circumstances of this case”.

46. This issue has been considered in a number of judgments of the Court of Criminal Appeal, including Cunningham. In People (DPP) v.

Kavanagh [2012] IECCA 65 and People (DPP) v. O’Brien [2012] 7 JIC 0201, the appellants were permitted to rely upon the Damache

decision because their appeals were pending and the issue had been raised during the course of the trial in respect of Kavanagh and

the appeal in respect of O’Brien. In both cases the court was satisfied that the applicants had not taken any step which suggested

that they had acquiesced in or otherwise accepted the validity of the warrant. The admissibility of the evidence thereby obtained

was clearly a live issue for the respective appellants and was potentially relevant to the verdict.

47. In the Director of Public Prosecutions v. O’ Connor [2014] IECCA 4 the appellant was sentenced to ten years imprisonment

following his conviction for robbery. He sought to rely upon the Damache point in circumstances which, it was clearly accepted on his

behalf, during the course of his trial that the search warrant upon which relevant evidence had been obtained and relied upon for his

conviction, was obtained in accordance with law. No issue was taken with the validity of the warrant in the course of the trial. In

considering the effect of this approach, McKechnie J., delivering the judgment of the court stated (at para. 27):-

“In addition, however, there is also a question of conduct in this case: whether such should be characterised as acquiescence,

waiver or acceptance, probably does not matter at the end of the day. Whichever way it is considered, and whether it amounts

to a concession or otherwise, there is no doubt but that during the course of trial, defence counsel made the statement … (for

which he) cannot in any way be criticised … . Notwithstanding, it is obvious that this Court cannot know precisely what

prompted such a concession: it may well have been for a tactical or strategic reason, or indeed, it may have been in an effort

to save time and to facilitate the smooth running of the trial. Whichever, it must be presumed to have been designed to further

the defence approach, and to strengthen the appellant’s position before the jury. That being so, he cannot now be permitted to

raise an argument which runs diametrically contrary to the position which he previously adopted, for to do so would be

inconsistent with the principles of law above mentioned.”

The appellant subsequently applied to the court to certify a point of law under s. 29 of the Courts of Justice Act 1924, in order to

appeal the matter further to the Supreme Court. The question posed was whether a convicted person must have expressly raised or

demonstrated either at their trial, or prior to conviction, their objection to the use of an unconstitutional statutory provision in order

to avail of a later declaration of unconstitutionality obtained by another litigant. The court ruled that it had considered in its main

judgment, at a substantive level and with the appellant’s consent, whether the declaration applied to the accused’s case but

determined that it did not. It had ruled inter alia that the appellant was disentitled from relying on the declaration by reason of the

approach taken during the trial. Consequently, it was considered that he had an opportunity to, and did make submissions, on this

point as a matter of principle and also in regard to his individual circumstances. The court noted (para. 28):-

“It would, in this Court’s view, be entirely inconsistent with (the appellant’s previous) stance to permit him now in effect to

reverse his position in such a diametric way and to argue that his arrest and detention were unlawful. The situation as it had

been had moved irreversibly by the end of trial, and even though an extant appeal remains, the consequences therefrom cannot

be undone”.

48. A subsequent attempt to seek Mr. O’Connor’s release under Article 40.4.2 failed before Hogan J. on the 5th February, 2014. The

learned judge noted firstly that the applicant was bound by his conscious choice of trial strategy as set out in the judgment of the

Court of Criminal Appeal. However, the learned judge also relied upon the decision of the Supreme Court in F.X. v. Clinical Director of

the Central Mental Hospital [2014] IESC 1 in which Denham CJ. stated (at para. 65):-

“In general, if there is an order of any court, which does not show an invalidity on its face, then the correct approach is to

seek the remedy of appeal and, if necessary, apply for priority. Or, if it is a court of local jurisdiction, then an application for

judicial review may be the appropriate route to take. In such circumstances, where an order of the court does not show any

invalidity on its face, the route of the constitutional and immediate remedy of habeas corpus is not the appropriate approach.”

As previously noted, the warrants in this case issued by the Circuit Criminal Court are good and valid on their face and do not display

a jurisdictional error. Hogan J. noted that declarations of unconstitutionality cannot generally be invoked to upset earlier convictions;

save where the issue itself has been raised at the court of trial.

49. In The People (Director of Public Prosecutions) v. Bolger [2013] IECCA 6 the Court of Criminal Appeal refused leave to appeal

against conviction in a case in which evidence was adduced which had been obtained following a search under a s. 29 warrant of the

applicant’s home. The applicant sought to rely upon this ground in the Court of Criminal Appeal because his appeal was extant and at

the time of his conviction and sentence the Damache decision had not been handed down. Prior to his trial it was submitted that it

would have been surprising, if not impossible, to rely on the point because of the decision of the Court of Criminal Appeal in The

People (Director of Public Prosecutions) v. Birney [2007] 1 I.R. 337 which had rejected arguments that a Superintendent’s lack of

independence from the investigation was fatal to the issuing of the warrant and in which it was re-affirmed that the constitutionality

of the section could not be argued in the court of trial. The court accepted that the criminal proceedings had not reached finality

since the applicant’s appeal was pending when this ground first arose. However, the court also noted that the Birney case clearly

indicated concern as to the constitutionality of s.29 of which the applicant’s advisors must have known. Denham CJ. delivering the

judgment of the court, stated that the Damache decision could not be relied upon but nevertheless permitted submissions in respect

of the evidence obtained on foot of the s.29 warrant to ascertain whether a fundamental injustice had been done or there was a

substantial error leading to an apprehension of real injustice which might permit the point to be argued. If there were, the court was

minded to permit the point to be argued. There was not.

50. In The People (Director of Public Prosecutions) v. Hughes [2013] 2 I.R. 619, the accused pleaded guilty to possession of an

explosive substance and firearm in December 2011 and was sentenced to five years imprisonment. On the 23rd February, 2012

Supreme Court gave judgment in Damache. The materials which grounded the prosecution evidence which led to the plea of guilty

had been obtained by An Garda Síochána in the course of a search of the accused’s home on foot of a s.29 warrant such as that

impugned in the Damache case. In refusing an application to extend time for leave to appeal against his conviction, (notwithstanding

the plea of guilty) the Court of Criminal Appeal held that justice did not require that the time be extended in order to permit the

applicant to appeal convictions for offences of which he confessed himself to be guilty. Time had expired for the bringing of an

appeal. The proceedings were therefore concluded under the principles set out in the A case. Hardiman J. in delivering the judgment

of the court, while reaffirming the proposition that the application should be refused “in the interest of legal certainty, and the

defence of the enduring regularity of proceedings fully legal and regular at the time when they occurred” also considered the effect of

a plea of guilty as stated:-

“25. All these considerations are greatly strengthened by the fact that the applicant in this case pleaded guilty. He did so quite

freely and willingly, and having been advised by solicitor and counsel of his choosing. By doing so, he acknowledged that he was

guilty of possession of explosives and a firearm as alleged against him. The seriousness of these charges needs no additional

emphasis. To state the obvious but sometimes the obvious requires to be stated, a plea of guilty is “a plea by the accused that

he committed the offence” […]

26. To this, the applicant rejoins that he entered the plea of guilty in the belief that s. 29 […] had been validly enacted and

was good and operative law. […]

27. In my view, these considerations in no way deprive the fact that he pleaded guilty of the force I have attributed to it

above. Section 29 of the Act of 1939 related only to the mode of search which revealed the evidence of his guilt. When that

guilt was admitted, it relieved the prosecution of the necessity to produce that evidence.”

51. Therefore, it has been made clear by the Court of Criminal Appeal in a number of cases that a finding of unconstitutionality may

be relied upon in appeals still pending when the issue governed by the invalidity was raised in the trial court. The reality of the

prejudicial effect of the reliance upon material obtained on foot of the s.29 warrants in procuring a plea of guilty or as evidence in the

course of trial was also considered. If the substantive fairness of the trial process was not demonstrably affected by reliance upon

the material obtained or the appellant had declined to challenge the admissibility of such evidence, they were not permitted to rely on

the declaration of invalidity retrospectively. It did not inexorably follow that a court must entertain an application to set aside a

verdict on the basis of the inadmissibility of evidence obtained on foot of warrant of the type impugned in Damache. It considered all

circumstances relevant to the application such as the acquiescence, behaviour or strategy adopted by the accused during the course

of the trial and in particular, whether the matter had been raised as an issue during the trial. Though the court was invited to permit

reliance upon the finding of invalidity, it did not do so in the cases of O’Connor, Hughes and Bolger. It was careful to apply general

principles relating to acquiescence and conduct. It also applied the principles set out in The People (Director of Public Prosecutions)

v. Cronin (No. 2) [2006] 4 I.R. 329 which enabled the court to permit a ground to be argued that was not previously advanced at

trial: such grounds would be permitted only in circumstances where the court was of the view that, due to a fundamental injustice or

some substantial error or oversight a fundamental injustice may have occurred. In that regard an explanation would have to be

furnished as to why it was not so argued. In considering the retrospective application of the declaration in this case all of these

factors are relevant.

52. I do not consider that there is any evidence to support a submission that the applicant in this case suffered any fundamental

injustice or that there is any basis upon which one might apprehend that he has suffered any unfairness or unfair prejudice in the re-

entry or hearing concerning the revocation of the suspension of his sentence.

The Applicant’s Conduct and Circumstances

53. The applicant was convicted of a number of offences including robberies and possession of firearms. In one of those robberies a

sawn-off shotgun was discharged terrorising others. He was duly arraigned and pleaded guilty to these very serious offences and

lengthy sentences of imprisonment were imposed. A number of the terms of imprisonment imposed were suspended on the conditions

already set out. Before that could be considered, the trial court was obliged to determine the appropriate sentence to be imposed.

The applicant does not and has never argued that those sentences were unduly severe. The court mitigated the sentences by the

suspension of most of the custodial period, subject to conditions. The matter was concluded. The applicant had been convicted and

sentenced following a trial in due course of law and in accordance the fundamental attributes of a fair trial. No appeal was taken at

that stage and the criminal trial was concluded once the time limit for appeal had expired. The applicant solemnly undertook to abide

by the conditions of the suspended sentence. He was happy to do so. The Court, the Director of Public Prosecutions, An Garda

Síochána and the probation and prison services were satisfied to engage with him on this basis to secure his rehabilitation. He

commenced to serve the sentence then imposed.

54. The mandatory condition that he keep the peace and be of good behaviour for a period of seven years was breached. He

committed further offences. He failed to abide by the directions of the probation service. He failed to attend the drug treatment

centre as directed. None of this is in dispute.

55. When he appeared in the District Court in respect of the new offences in 2014, he pleaded guilty. His case was then sent back to

the Circuit Court. The applicant has never evinced an intention to appeal his conviction in the District Court on these matters. Unlike

the applicants in the Moore case he is not a person convicted after a trial in the District Court who wished to appeal that conviction

but was unable to do so before the case was referred back to the court which had imposed the suspended sentence. He did not

experience the prejudicial or suggested discriminatory effects of the impugned sub-sections found to apply to the Moore applicants.

He was guilty and accepted his guilt. He had no basis upon which to issue judicial review proceedings challenging the process, as the

applicants in Moore had done.

56. In the course of the revocation hearing, he was represented by solicitor and counsel. No objection was taken to the procedure

adopted. The court dealt with the matter in accordance with the law then applicable. No attempt was made by the applicant to

challenge the constitutionality of ss.99 (9) and (10). I am satisfied that such a challenge could not have succeeded because he could

not demonstrate any prejudice or discrimination that he had suffered upon which to base it. He made no objection to the order made

under s.99 (9) sending him back to the Circuit Court. He made no objection to the procedure when he appeared before that court. He

not only submitted to the jurisdiction of the court and acquiesced in its exercise, but has no basis upon which to claim that he has

suffered any fundamental injustice in the hearing of the revocation application. Indeed no such claim is made, nor was one made

during the hearings in the Circuit Court or these proceedings.

57. He benefited from the suspended term on his release from prison and was happy to remain at liberty pursuant to its terms until

convicted of the District Court offences. He now raises a challenge to the re-activation of his sentences almost seventeen months

after the conclusion of the Circuit Court hearing which he has since chosen to appeal. The applicant had the full range of remedies by

way of judicial review or an application under Article 40 available to him to challenge the lawfulness of his detention at that time but

chose not to do so because, of course, he could not demonstrate any fundamental default of fairness or injustice based on the facts

of his case: the absence of merit in the facts of his case in that regard is not changed by the Moore decision.

58. I am satisfied that the procedures under s.99(9) and (10) were relied upon by the State in good faith in that they were regarded

as having the force of law at the time. These procedures were not and could not have been successfully impugned by the applicant

because he could not have demonstrated any prejudice or fundamental injustice or inequality of treatment in the manner in which

they were applied to his case. I am satisfied that where no demonstrable injustice of a fundamental nature has occurred in the

applicant’s case he should not be regarded as a person in respect of whom release must be ordered. I do not consider that there are

any circumstances, exceptional or otherwise, in this case which require that the declaration made in the Moore case should have a

retrospective effect, much less the blanket effect suggested.

59. The supervision and enforcement of the sentence duly imposed by the Circuit Court following the applicant’s lawful conviction is

essential to the fair and proper administration of criminal justice. It is clear that the learned trial judge addressed not only the narrow

issue of the applicant’s further convictions but the clear breaches of the other conditions which he had committed. Thus the basis for

the revocation of the sentence was clearly considered in respect of both his commission of further offences under sub-section (9)

and the breaches of conditions in respect of which the court may also revoke a suspended sentence under sub-section (17).

60. The purpose and intention of s.99 was to ensure that the facility of a suspended sentence might be available as a sentencing tool

post conviction. It was essential for its operation as a useful and effective tool that the court be vested with a power whereby it

could ensure that the convict would be faced with serious consequences if he/she failed to comply with the terms of suspension. Of

course the incentive to comply with such conditions must stem from a personal determination to do so but it would be completely

unrealistic to rely entirely on expressed good intentions. It is necessary for the advancement of rehabilitation and the protection of

the rights of victims and the general public that the power to revoke a suspended sentence exists: otherwise, the administration of

justice and public confidence in its serious purpose and effectiveness will be eroded. This is especially the case when a person who is

a drug addict with a long history of addiction and criminality who has committed further violent offences involving the use, and in one

case the discharge of, a firearm, and who has been assessed by the court as being a serious and dangerous offender, benefits from

the imposition of a substantially suspended sentence.

61. When the applicant’s sentence was imposed he fully understood the conditions by which he had to abide in order to continue to

avail of the substantial leniency shown by the court in suspending most of the sentences. I am not satisfied that the form of

retrospective effect contemplated in this application is in accordance with principles of certainty and fairness of procedures as

contemplated in the administration of criminal justice under Article 38 of the Constitution. I do not consider that the circumstances of

this case give rise to a default of fundamental requirements of the type contemplated for a successful collateral attack on a criminal

trial exceptionally permitted under an Article 40 inquiry.

62. The retrospective application of the declaration of invalidity is not warranted in this case. The applicant pleaded guilty to the

original offences charged on indictment. He was lawfully sentenced. He agreed the conditions of the suspended sentence. He

breached those conditions. He admits the breaches. He was returned to court. He failed to object to the procedure adopted in doing

so. He pleaded guilty to the offences in the District Court as a result of which he was returned to the trial court. He evinced no

intention then or now of appealing those convictions to the Circuit Court. He could not have succeeded in a challenge to ss.99 (9)

and (10) on the same basis as the Moore applicants. His application is without merit and is based entirely on the happenstance that

the law under which he was returned to the trial court was declared invalid seventeen months after his suspended sentence was

revoked. In the meantime he has appealed to the Court of Criminal Appeal: his appeal against the revocation is still pending but he

has failed to lodge grounds or take steps directed by that court in order to advance his appeal.

Summary of Conclusions

63. I am satisfied that each case of this kind must be examined on its own merits and that the authorities do not establish that a

declaration of invalidity of the two sub-sections has a blanket retrospective effect. The applicant is not to be excluded from seeking

the benefit of the declaration because his appeal under s.99(12) is still pending and the proceedings under s.99 have not been

concluded. However, I am satisfied that he is not entitled to its benefit for the following reasons. Firstly, he engaged fully in the

original sentencing process whereby following his plea for leniency he undertook to abide by the several conditions set down in the

order for the purpose of securing his early release from custody. In response, the State intended to devote significant resources to

secure his rehabilitation during the course of the suspension. As a result he obtained his release from custody. These decisions were

made following advice and involved the making of an irreversible commitment by the applicant and the State. Secondly, absent a

breach of those conditions the trial was at an end. Thirdly, he failed to challenge the s.99 procedure at any stage. These procedures

were relied upon and applied by the State in good faith and were the relevant law in force at the time. Furthermore, he cannot

identify any substantive injustice or breach of his right to fair procedures or any unfair prejudice or discrimination suffered by him in

the course of the hearings leading to the revocation. He seeks the technical benefit of the declaration which has no relevance to the

merits of his case. To permit the applicant’s release on that basis would tend to place a premium on a formal and rigid application of

the declaration of invalidity which is not justified or mandated by the decisions of the Supreme Court and Court of Criminal Appeal set

out above: nor is it justified on the facts of this case.

64. For all of the foregoing reasons I am satisfied that the applicant is detained in accordance with law. The application is refused.