Court of Appeal declares s.99(12) grants appeal right against Circuit Court sentence reactivation orders.

THE COURT OF APPEAL

Finlay Geoghegan J.

Irvine J.

Mahon J.

[Appeal No. 2014/1433]

[Article 64 Transfer]

In the Matter of an Inquiry under Article 40.4 of the Constitution

Between

Damien McCabe

Applicant/Respondent

And

Governor of Mountjoy Prison

Respondent/Appellant

And

And In the Matter of Plenary Proceedings

Between

Damien McCabe

Plaintiff/Respondent

And

Ireland and Attorney General

Defendants/Appellants

And

The Director of Public Prosecutions

Notice Party/Appellant

Judgment delivered on the 22nd day of July 2015 by Ms. Justice Finlay Geoghegan

1. This appeal and cross appeal, raises once again interpretative difficulties of s. 99 of the Criminal Justice Act 2006. As recently

observed by O’Donnell J. in the Supreme Court in DPP v Carter and DPP v Kenny [2015] IESC 20, at para. 1:

“Section 99 of the Criminal Justice Act 2006 (‘the 2006 Act’) is an apparently innocuous procedural provision. It has

already been amended twice in its short life (s. 60 of the Criminal Justice Act 2007, and s. 51 of the Criminal Justice

(Miscellaneous Provisions) Act 2009). Nevertheless it has given rise to innumerable practical difficulties and problems of

interpretation. . . . One thing is clear and beyond dispute: s. 99 is in need of urgent and comprehensive review.”

2. The factual background to the High Court proceedings is as follows. Mr. McCabe was convicted in the District Court on the 24th

June, 2013 of a road traffic offence, and sentenced to five months imprisonment. He appealed his conviction and sentence to the

Circuit Court. On the 29th October, 2013, the Circuit Court upheld his conviction, but altered the sentence to one of six months

suspended for a period of two years on conditions. On the 26th May, 2014, he was convicted of a public order offence before the

District Court. He was then remanded to the Circuit Court pursuant s. 99(9) of the 2006 Act. On the 27th May, 2014, the Circuit

Court made an order “that said suspension be revoked and [Mr. McCabe] shall serve the entire sentence of six months”. Mr. McCabe

was remanded in custody to the District Court on the 28th May, 2014, for the purpose of that court imposing sentence in relation to

the public order offence. The District Court at the time of the High Court judgment had adjourned its decision as to sentence

presumably by reason of the intervening High Court proceedings.

3. On the 28th May, 2014, the High Court (Hogan J.) made an order for an inquiry pursuant to Article 40.4.2 of the Constitution. The

return of the Governor of Mountjoy Prison certified that Mr. McCabe was held pursuant to the committal warrant of the Circuit Court

of the 27th May, 2014. The legality of Mr. McCabe’s detention in the Article 40 application was challenged on three grounds: (1) that

the word “convicted” in s. 99(9) of the 2006 Act, as amended, can only refer to a person sentenced by the District Court; (2) that

the warrant was bad on its face and (3) that the absence of a right of appeal against the decision of the Circuit Court to reactivate

the suspended sentence in the case of Mr. McCabe rendered s. 99 of the 2006 Act or parts thereof unconstitutional.

4. In the Article 40 application, in accordance with established principles Hogan J. initially decided the non constitutional grounds of

challenge. In a judgment delivered on the 3rd June, 2014, he held against the applicant and in favour of the validity of the warrant in

relation to grounds (1) and (2) above.

5. Thereafter it was suggested by the trial judge that rather than proceeding with a hearing in relation to the constitutional ground of

challenge in the Article 40 proceeding, that separate plenary proceedings should be commenced on behalf of Mr. McCabe. This

appears to have been by reason of the challenge to the validity of s. 99 and the provision for a case stated in such circumstances in

Article 40.4.3. On the 3rd June, 2014, in the Article 40 proceedings, an order was made giving Mr. McCabe liberty to issue a plenary

summons raising the constitutional issues already identified and staying execution on the committal warrant. Mr. McCabe was also

admitted to bail on terms.

6. Plenary proceedings were commenced on behalf of Mr. McCabe against Ireland and the Attorney General on the 27th June, 2014. In

those proceedings a declaration was sought that s. 99 was invalid having regard in particular to Articles 34.3.4, Article 38 and Article

40.1 of the Constitution. In addition a declaration was sought that the Oireachtas was obliged to enact legislation such as would

have provided for an appeal against the decision from the Circuit Court made on the 27th May, 2014, activating the suspended

sentence. The statement of claim expressly pleaded that the Oireachtas had not provided a right of appeal in respect of the order of

the 27th May, 2014, and reference was made to s. 18(3) of the Courts of Justice Act, 1928. In the defence and in subsequent

submission to the High Court, the only potential type of appeal identified as being available to Mr. McCabe in the circumstances in

which the Circuit Court made its decision to activate the suspended sentence, was the provision made by s. 16 of the Courts of

Justice Act, 1947, for a reference by the Circuit Court to the Supreme Court of a case stated on a question of law. It was not

expressly pleaded, nor was a submission made to the High Court that Mr. McCabe had a right of appeal pursuant to s. 99(12) of the

2006 Act, to the Court of Criminal Appeal.

7. On the 30th September, 2014, Hogan J. delivered a written judgment in the plenary proceedings. He conveniently summarised his

principal conclusions at paras. 53 to 56:

“53. First, the starkly different treatment of the rights of appeal of convicted persons whose suspended sentence in

respect of summary offences was originally imposed by the Circuit Court rather than the District Court is not objectively

justifiable and amounts to a breach of the equality guarantee in Article 40.1. This is especially so given that s. 99(12) of

the 2006 Act (as amended) pre-supposes that all such offenders will enjoy a right of appeal against the re-activation of

such a sentence and as s. 99(10) makes it clear that such re-activation was not intended to operate automatically in

every single case.

54. Second, the failure to provide a right of appeal against the re-activation of a suspended sentence by a court of local

and limited jurisdiction involves a failure to provide a right of appeal in the manner determined "by law" for the purposes of

Article 34.3.4, at least, where, as here, no objective justification for such failure has been supplied. By failing to providing

for such a right of appeal, the Oireachtas has failed to comply with fundamental constitutional norms in the sense

identified by Henchy J. in King v. The Attorney General [1981] I.R. 233 and, more recently, by O'Donnell J. in Murphy v.

Ireland & Ors [2014] IESC 19.

55. Third, given the unconstitutionality which has been just identified relates not to what is contained ins. 99 of the 2006

Act, but rather to that which it does not contain, it would be both inappropriate and unnecessary to make a formal

declaration of unconstitutionality invalidating s. 99 itself.

56. Fourth, the plaintiff is nonetheless entitled to a real remedy to ensure that his constitutional rights are not further

infringed. In these circumstances, adapting by analogy the solution devised by the Supreme Court in Carmody in respect

of the unconstitutional legislative omission identified in that case, I propose to grant an order declaring that it would be

unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal

against the decision of the Circuit Court to re-activate the sentence.”

8. As appears from the earlier part of his judgment, those conclusions were reached upon what appears to have been the agreed

position between plaintiff and defendants that notwithstanding the terms of s. 99(12) of the 2006 Act, Mr. McCabe had no statutory

right to appeal the decision of the Circuit Court to reactivate the suspended sentence to the Court of Criminal Appeal. At para. 9 of

his judgment, the trial judge having set out s. 99(12) stated:-

“9. The dilemma which was presented for the plaintiff was that as the suspended sentence in his case was imposed by

the Circuit Court, the decision to re-activate that sentence was taken by that Court. The difficulty, however, is that in

summary prosecutions, the decision of the Circuit Court on appeal is final and unappealable. There is, of course, a

statutory right of appeal from the Circuit Court to the Court of Criminal Appeal, but this is in respect of prosecutions on

indictment only: see s. 63 of the Courts of Justice Act 1924 and s. 31 of the Criminal Procedure Act 2010.”

9. Later in the judgment having concluded that there was a constitutional right to appeal the decision of the Circuit Court to re-

activate the sentence he expressly considered whether the provisions of s. 16 of the 1947 Act, and its case stated procedure met

the constitutional requirement. He concluded that it did not at para. 25 of his judgment. This was the only available form of statutory

appeal then relied upon by the defendants.

10. The only High Court Order following delivery of the judgment in the plenary proceedings, produced on appeal was an order made in

the Article 40 proceedings which refers also to the plenary proceedings and the fact that both proceedings came on before the judge

on the 30th September, 2014. The order refers separately initially to both sets of proceedings and then states:-

“And the court being of the opinion in so adjudging that the said return to the Order made herein and dated the 28th day

of May 2014 is insufficient to justify the detention of the Applicant as aforesaid.

IT IS ORDERED that the applicant be released forthwith from such detention.

AND IT IS ORDERED That the within proceedings and the related plenary proceedings be consolidated."

11. An order was then made for the applicant to recover costs against the respondent including reserved costs and subsequent

orders relating to a stay on the order for costs on certain terms. In the course of the appeal it was indicated that the intention of the

trial judge was to consolidate the article 40 and plenary proceedings for the purposes of costs only. No issue arose in the appeal as

to the entitlement of the High Court to consolidate an application under Article 40 of the Constitution with plenary proceedings.

12. I have recorded the form of order made because it is relevant to the relief to be granted on appeal.

Appeal

13. On the 24th October, 2014, the respondent in the Article 40 proceedings and defendants in the High Court proceedings appealed

to the Supreme Court the judgment delivered in the plenary proceedings on the 30th September, 2014 and the order of the same

date. The appeal was entitled in the consolidated proceedings.

14. By direction of the Chief Justice given with the concurrence of the other judges of the Supreme Court pursuant to Article 64 of

the Constitution on the 29th October, 2014, the appeal was transferred to this Court.

15. The appeal came before Kelly J. in the Court of Appeal for directions on the 4th December, 2014. Counsel for Mr. McCabe

indicated that they wished to serve a notice of cross appeal and were given liberty to do so. That notice of cross appeal was served

on the 11th December, 2014, and in addition to seeking alternative relief and orders pursuant to the conclusions of the trial judge in

the plenary proceedings, it also sought to cross appeal from the judgment of the trial judge delivered on the 3rd June, 2014, in the

Article 40 proceedings. Mr McCabe was permitted to pursue the cross appeal.

16. Accordingly, at the hearing of the appeal before this Court, following full written submissions, there were two sets of issues. They

were referred to as the constitutional issues and sub-constitutional issues. The former were the issues raised on the notice of appeal

and notice of cross appeal in relation to the judgment of the trial judge in the plenary proceedings. The sub-constitutional issues were

those raised by the notice of cross appeal in relation to the judgment of the trial judge in the Article 40 proceedings.

17. I read in draft the judgment of Mahon J. in relation to the sub-constitutional issues on the cross appeal and agree with his

conclusion that the cross appeal of Mr. McCabe against the determinations made in the judgment of the 3rd June, 2014, should be

dismissed for the reasons given.

18. I propose in this judgment considering the issues raised by the notices of appeal and cross appeal in relation to the judgment

given in the plenary proceedings and the consequences for the order made by the trial judge in the Article 40 proceedings on the 30th

September, 2014, in the light of all the judgments of this Court.

Section 99(12) of the Criminal Justice Act 2006.

19. The appellants in their notice of appeal against the conclusions of the trial judge on the constitutional issues, added as an

alternative and final ground of appeal:-

“In the alternative, in failing to hold that, having regard to the presumption of constitutionality and the double

construction rule, s. 99(12) of the Criminal Justice Act 2006 (as amended), may properly be interpreted as providing that

where a suspended sentence which had been imposed by the Circuit Court in the exercise of its appellate jurisdiction is

later revoked by that court in accordance with s. 99(10) of the Act of 2006, the person whose sentence is thereby

revoked has a statutory right to appeal to the Court of Criminal Appeal.”

20. As appears from the history of these proceedings, in the High Court already set out in this judgment, no plea to this effect was

made in the defence delivered and no submission to this effect was made to the High Court. However, since the service of the notice

of appeal, Mr. McCabe and his representatives were aware that the appellants proposed, if permitted, to rely on this ground of appeal

in reliance on s.99 (12) of the 2006 Act.

21. The issue raised by this ground of appeal is the interpretation of s. 99(12) of the 2006 Act and in particular whether it grants a

statutory right of appeal from a decision of the Circuit Court to revoke a suspended sentence which had been imposed on the hearing

of an appeal from the District Court. That issue was not raised before the High Court judge.

22. It is not suggested that the circumstances in which this Court may or should hear and determine an issue which was not tried in

the High Court should differ in any away from the prior jurisdiction of the Supreme Court hearing an appeals from the High Court. The

principle as stated by Finlay C.J. in K.D. v. M.C. [1985] I.R. 697, at p. 701, “that, save in the most exceptional circumstances, the

court should not hear and determine an issue which has not been tried and decided in the High Court. To that fundamental rule or

principle there may be exceptions, but they must be clearly required in the interests of justice”.

23. The court permitted submissions in relation to the issue. The issue is a question of law. It arises in circumstances as will appear

below where the Oireachtas has expressly purported to provide an appeal from a decision such as at issue in these proceedings and

yet by reason of other and prior legislative provisions a view appears to have been taken by both sides in the High Court that the

appeal provided for in s. 99(12) did not apply to the decision of the Circuit Court to activate the suspended sentence imposed on Mr.

McCabe. The issue of the interpretation of s. 99(12) is one of general importance. The interests of justice require that the court

consider the issue prior to determining the constitutional issues raised on behalf of Mr. McCabe. It would be contrary to the public

interest and the interests of justice if the Court were now to determine this appeal without considering the proper interpretation of s.

99(12) of the 2006 Act because it had not been raised in the High Court. However Mr McCabe should not be prejudiced by the Court’s

agreement to consider the issue. I will return to this.

24. The scheme created by s. 99 of the 2006 Act, as amended, insofar as relevant to the issue of the right of appeal created by s.

99(12) is evident from ss. (1),(2), (9) and (10) which provide:-

“99. Power to suspend sentence

(1) Where a person is sentenced to a term of imprisonment (other than a mandatory term of imprisonment) by a court in

respect of an offence, that court may make an order suspending the execution of the sentence in whole or in part,

subject to the person entering into a recognisance to comply with the conditions of, or imposed in relation to, the order.

(2) It shall be a condition of an order under subsection (1) that the person in respect of whom the order is made keep the

peace and be of good behaviour during—

(a) the period of suspension of the sentence concerned, or

(b) in the case of an order that suspends the sentence in part only, the period of imprisonment and the period of

suspension of the sentence concerned,

and that condition shall be specified in the order concerned.

(...)

(9) Where a person to whom an order under subsection (1) applies is, during the period of suspension of the sentence

concerned, convicted of an offence, being an offence committed after the making of the order under subsection (1), the

court before which proceedings for the offence are brought shall, before imposing sentence for that offence, remand the

person in custody or on bail to the next sitting of the court that made the said order.

(10) A court to which a person has been remanded under subsection (9) shall revoke the order under subsection (1)

unless it considers that the revocation of that order would be unjust in all the circumstances of the case, and where the

court revokes that order, the person shall be required to serve the entire of the sentence of imprisonment originally

imposed by the court, or such part of the sentence as the court considers just having regard to all of the circumstances

of the case, less any period of that sentence already served in prison and any period spent in custody other than a period

spent in custody by the person in respect of an offence referred to in subsection (9) pending the revocation of the said

order.

(11)...

(12) Where an order under subsection (1) is revoked in accordance with this section, the person to whom the order

applied may appeal against the revocation to such court as would have jurisdiction to hear an appeal against any

conviction of, or sentence imposed on, a person for an offence by the court that revoked that order.”

25. As appears the statutory scheme created by s. 99 in relation to the suspension of sentences and subsequent revocation (as it is

put) of the suspension or as is sometimes stated the activation of the suspended sentence is the following. The court is now given an

express statutory power to suspend a sentence pursuant to s. 99(1). It may do so subject to the person entering into a recognisance

to comply with the conditions imposed. Section 99(2) now makes it mandatory to impose (amongst others) a condition that a person

keep the peace and be of good behaviour during one of the periods specified in that subsection. If during the relevant period a person

is convicted of a second offence, then pursuant to subs. (9) the court before whom the person is convicted must before imposing

sentence for the second offence remand the person to the next sitting of the court that made the order suspending the first

sentence.

26. The court which imposed the first suspended sentence is then bound to revoke the order suspending the sentence unless it

considers that the revocation would be unjust in all the circumstances of the case. Where an order of revocation is made, the

convicted person may be required to serve either the entirety of the sentence originally imposed or such part of the sentence as the

court which revokes the suspension considers just less periods already spent in custody.

27. It is to that scheme that the Oireachtas has then given a right of appeal in s.99 (12). In accordance with the ordinary meaning of

the words used in s. 99(12) in the context of the statutory scheme created by the section, it appears to me that the following is the

position:

(1) A statutory right to appeal is expressly given against all decisions to revoke orders made pursuant to s.99(1) to

suspend all or part of a sentence.

(2) The decision to revoke or revocation is made pursuant to s. 99(10). In making such an order a court is now exercising

a statutory jurisdiction created by s. 99(10).

(3) The description of the court to which the appeal may be taken is 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”

[emphasis added]. The wording of s. 99(12) does not require that the appeal court have jurisdiction to hear appeals

against all convictions for all offences.

(4) Importantly, by the words used, the court to which the appeal may be brought is not limited to a court with

jurisdiction to hear an appeal against the original sentence suspended pursuant to s.99(1). Rather it includes a court with

jurisdiction to hear an appeal against “any. . . sentence imposed . . . for an offence by the court” that makes the

revocation order.

28. On the facts herein the Circuit Court revoked the order to suspend the first sentence. The Court of Criminal Appeal (and now the

Court of Appeal) is a court which has jurisdiction to hear an appeal against a conviction or sentence imposed by the Circuit Court

albeit in cases of trial on indictment pursuant to s. 63 of the 1924 Act. Nevertheless it is a court which comes within the general

description in s.99(12) of a court which “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”.

29. Accordingly I would interpret s. 99(12) as giving by its express terms a statutory right of appeal to the Court of Appeal (and

previously the Court of Criminal Appeal) against all orders made by the Circuit Court pursuant to s.99(10) to revoke a suspended

sentence irrespective of the nature of the proceeding in which it imposed the first sentence and suspended all or part of the

sentence pursuant to s.99(1).

30. The remaining issue is whether s. 18(3) of the Courts of Justice Act 1928, (as amended by s. 58 of the Courts of Justice Act

1936) precludes such an appeal where the s.99(1) order was made in respect of a sentence imposed in an appeal from the District

Court. The operative part of that section provides:

“Every appeal under this section from an order of a justice of the District Court shall lie to the judge of the Circuit Court .

. . and the decision of such judge on such appeal shall be final and conclusive and not appealable.”

31. I do not consider that a decision or order made pursuant to s.99 (10) of the Act of 2006 to revoke an order made pursuant to s.

99(1) suspending part or all of a sentence, is a decision on the appeal from the District Court within the meaning of s. 18(3). The

decision on the appeal was the first sentence imposed including the order pursuant to s. 99(1) that the sentence be suspended. The

order to revoke the suspension of the sentence is made pursuant to s. 99(10) and is a separate and distinct decision made in exercise

of a different statutory jurisdiction. On the facts of this appeal it was not even made by the same Circuit Judge. Irrespective of

whether it was made by the same Circuit Judge or not it is a separate and distinct decision and requires in accordance with s.99 (10)

the exercise of discretion having regard to different considerations beyond those which would have arisen at the time of the hearing

of the appeal.

32. Whilst it is true that a Circuit judge who makes a decision pursuant to s. 99(10) to revoke an order made pursuant to s. 99(1)

that a sentence be suspended then activates or reactivates a sentence in whole or in part imposed on the hearing of the appeal.

However, where a person is remanded under s.99(9) by reason of conviction of a second offence the Circuit Judge is making a new

and different decision under s. 99(10) as to the period of suspended sentence then to be served from the decision taken by the

Circuit Judge hearing the appeal from the District Court. It is not a decision on the appeal.

33. I find support for the view that it is a separate decision and sentence in the judgment of the Court of Criminal Appeal delivered by

Denham J. (with Feeney and McGovern JJ.) in Richard Kiely v. Director of Public Prosecutions (Unreported, Court of Criminal Appeal,

19th February, 2008). The applicant had pleaded guilty to several driving offences before the Circuit Court and on the 18th October,

2006, the Circuit Court had imposed aggregate consecutive sentences of six years imprisonment with the entire six years suspended

on conditions. Subsequently in 2007 the applicant was convicted in the District Court of public order offences. The circuit judge

reactivated four years of the sentence on the 8th March, 2007, and suspended the last two years on further conditions. In its

judgment the Court per Denham J. stated at the outset:-

“This is not an appeal from the sentencing on the 18th October, 2006. This is an appeal from the reactivated sentence,

the sentence imposed on the 8th March, 2007. On the reactivation of the sentence the trial judge has a discretion, which

is under appeal.”

34. The court then considered whether or not the trial judge had erred in principle in the reactivation and the discretion exercised

under s. 99(10) of the 2006 Act.

35. A submission was also made on behalf of Mr. McCabe that there was no procedure for appeal to the Court of Criminal Appeal or

now to this Court for an appeal pursuant to s. 99(12). Whilst there may not be any express reference to an appeal pursuant to s.

99(12) in the Rules of Court, nevertheless O. 86C, r. 3(1) of the Rules of the Superior Courts (which is the successor to O. 86, r.4(1)

RSC applicable in May 2014), sets out a procedure for any convicted person who wishes to appeal to the Court of Appeal on a notice

of appeal in Form No. 9. That form permits the person to indicate that he or she is appealing against sentence only. An applicant such

as Mr. McCabe would of course only have a right of appeal against the reactivated sentence. As appears from the judgment of the

Court of Criminal Appeal referred to in Kiely such appeals have been brought to that Court against a reactivated sentence pursuant to

section 99.

36. My conclusion therefore is that Mr. McCabe had a statutory right of appeal pursuant to s. 99(12) of the 2006 Act, against the

order of the Circuit Court made on the 27th May, 2014, to reactivate the sentence and to require that he serve the full six months

custodial sentence. This as appears from the above, is a new right of appeal given by section 99(12). By reason of this conclusion, it

is unnecessary to consider the remaining grounds of appeal against the conclusions reached by the trial judge in the plenary

proceedings. His constitutional conclusions were premised on the absence of a statutorily conferred right of appeal for Mr. McCabe

against the decision of the Circuit Court to re-activate the sentence.

37. It remains to consider what order should be made in the appeal having regard to the conclusion reached in this judgment (with

which I am aware my colleagues concur) and the conclusion reached in the judgment to be delivered by Mahon J. (with which I and

Irvine J. also concur).

38. In the High Court no order was made in the plenary proceedings pursuant to the judgment of the 30th September, 2014, save the

order of consolidation and order for costs. Costs will be separately dealt with when the parties have had an opportunity of considering

these judgments.

39. In the High Court, the operative order of the 30th September, 2014, made in the Article 40 proceedings was that the applicant be

released from detention by reason of the opinion of the trial judge that the return to the order was “insufficient to justify the

detention of the applicant”. That it appears was by reason of the conclusions reached in his judgment in the plenary proceedings that

it would be unconstitutional to give effect to the re-activated sentence in the absence of a statutorily conferred right of appeal

against the decision of the Circuit Court to re-activate the sentence.

40. As has been set out in this judgment, the appellants did not submit at any stage in either proceedings in the High Court that s.

99(12) should be interpreted as granting the right of appeal to Mr. McCabe to the Court of Criminal Appeal against the reactivation of

the sentence by the Circuit Court on the 27th May, 2014. Whilst this Court has exceptionally and in the interests of justice permitted

the appellants to include this successful ground of appeal it is also in the interests of justice that Mr. McCabe should not be

prejudiced by this late albeit correct change of approach by the appellants.

41. It follows from the decisions on this appeal that the warrant of the Circuit Court of the 27th May, 2014, is valid. Mr. McCabe was

released pursuant to the order of the High Court of the 30th September, 2014, made in the Article 40 proceedings. In order that Mr.

McCabe not be prejudiced by the leave given to the appellants to pursue the successful ground of appeal, notwithstanding the

validity of the warrant, it is in the interests of justice that the Court should not vacate the High Court order for the release of Mr.

McCabe and for clarity should place a permanent stay on the execution of the warrant of the Circuit Court issued on the 27th May,

2014.

42. I would propose therefore that the following orders be made on the appeal and cross appeal:-

1. A declaration that s.99(12) of the Criminal Justice Act 2006 (as amended) provides a right of appeal to the Court of

Appeal against any order of the Circuit Court made pursuant to s. 99(10) of the Act of 2006, to revoke an order made

pursuant to s. 99(1) suspending a sentence and to reactivate in whole or in part the suspended sentence including in

circumstances where the suspended sentence was imposed on the hearing of an appeal from the District Court.

2. An order that the execution of the warrant of the Circuit Court issued on 27th May, 2014 committing Mr. McCabe to

prison be permanently stayed.

3. An order dismissing the cross appeal.

4. No variation to the substantive order of the High Court of 30th September, 2014.

43. I would add that this Court’s decision does not in any way affect the proceeding before the District Court in respect of the public

order offence of which Mr McCabe was convicted and may remain to be sentenced.