Habeas corpus dismissed; applicant barred from claiming retroactive unconstitutionality due to conduct at trial.

Neutral Citation: [20162] IEHC 311

THE HIGH COURT

[2016] No. 12 SSP

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION AND IN

THE MATTER OF AN

APPLICATION FOR HABEAS CORPUS BY

EDWARD O’SULLIVAN

AT PRESENT IN CUSTODY IN CORK PRISON

JUDGMENT of Ms. Justice Stewart delivered on the 9th day of June 2016.

1. This is an application for a conditional order of habeas corpus made in writing by the applicant, who is in post-conviction custody

and seeking an inquiry into the lawfulness of his detention.

2. On the 15th October, 2009, the applicant took possession of or used a mechanically propelled vehicle without the consent of its

owner. This was a violation of s112 of the Road Traffic Act 1961, as amended. On 7th May, 2010, the applicant was brought before

His Honour Judge Carroll Moran (as he then was) at the Circuit Criminal Court sitting at Limerick, who handed down a sentence of four

years imprisonment. The final year of this sentence was suspended for a further four years under s99 of the Criminal Justice Act 2006,

on the proviso that he keep the peace and be of good behaviour during that time. On 26th July, 2013, the applicant was found to

have breached those terms by committing a robbery offence contrary to s14 of the Criminal Justice (Fraud and Offences) Act 2001,

as amended. His suspended sentence was therefore reactivated by Moran J., per s99 (9) and (10) of the 2006 Act, on 24th October,

2013. He is currently in custody in Cork Prison, where he is serving a four year sentence for robbery, with the final two years

suspended for five years, consecutive to the service of his reactivated sentence.

3. The applicant refers to Moriarty J.’s judgment in Moore v. DPP [2016] IEHC 244, where s99 (9) and (10) of the 2006 Act were

deemed unconstitutional. These provisions served as the basis for the reactivation of his suspended sentence and he argues that he

is therefore entitled to habeas corpus relief within the meaning of Article 40.4.2 of the Irish Constitution 1937.

4. McDermott J.’s reasoning in Clarke v. Governor of Mountjoy Prison [2016] IEHC 278 is helpful in analysing the legal effect of

Moriarty J.’s judgment in Moore, as well as the law applicable to habeas corpus cases in general. As outlined in The State (McDonagh)

v. Frawley [1978] I.R. 131, habeas corpus is not triggered by mere technicalities. In finding that deprivation of the applicant’s liberty

is not in accordance with law, the court must be convinced that there has been a departure from the fundamental rules of natural

justice. The applicant in this case submits that the declaration of unconstitutionality of s99 (9) and (10) gives rise to such a

departure.

5. This applicant’s argument as to uniform retroactive unconstitutionality has been soundly rejected by the Courts in a number of

cases, most notably A v. Governor of Arbour Hill Prison [2006] 4 I.R. 88. In order to benefit from a finding of unconstitutionality

subsequent to trial of action, an applicant must highlight certain conduct and circumstances that give rise to some unfairness or

injustice. Moriarty J. was cognisant of this requirement when he gave his judgment in Moore, which was reached “in the context of

the facts reviewed and the arguments made”.

6. The applicant’s behaviour at trial is particularly useful in assessing the situation.. One of the key issues in determining the scope of

retroactivity for a finding of unconstitutionality is whether or not the accused has conducted himself in such a manner that he is

debarred from claiming the benefit of the ruling (See Hardiman J.’s judgment in The People (Director of Public Prosecutions) v.

Cunningham [2012] IECCA 65). This reasoning is similar to that of the Supreme Court in The State (Byrne) v. Frawley [1978] I.R. 326,

where the findings of unconstitutionality in the Juries Act 1927 (See De Burca v. Attorney General [1976] I.R. 3) did not benefit the

applicant because he had not challenged the validity of the jury at trial. McDermott J. employs similar reasoning in Clarke with regard

to the applicant’s guilty plea and failure to challenge s99 when at trial for his second offence, two facts that did not exist in Moore.

The crux of the Moore decision was that the realities of the operation of s99 impeded the applicants’ ability to appeal their second

sentence before their suspended sentence was re-activated and they were detained.

7. Turning back to the facts at hand, and keeping in mind McDermott J.’s judgment in Clarke, this Court cannot extend the benefit of

the declaration of unconstitutionality of s99 (9) and (10) to this applicant. He does not disclose the nature of his plea in the trial for

robbery, nor does he disclose any attempt on his part to appeal the findings of that trial. The sum total of the applicant’s argument

revolves around the finding of unconstitutionality in Moore and no effort has been made to engage with the facts of the case itself.

For these reasons, the Court will refuse to direct an inquiry pursuant to Article 40.4.2 of Bunreacht na hEireann.