New Appeal: Can a sentenced person, whose case is not finalised, rely on a Declaration of Unconstitutionality from another case?

Can a person sentenced under a procedure, subsequently found to be unconstitutional, and whose proceedings have not been finalised, challenge the lawfulness of his detention?

In this determination (Wansboro v DPP), the Supreme Court granted Wansboro leave for a leapfrog appeal from a decision of the High Court on that question.



In 2013, Dublin Circuit Court sentenced Wansboro to three years imprisonment, suspended for three years. In 2015, Wansboro pleaded guilty to an offence of dangerous driving causing death at a date in 2014, also before the Dublin Circuit Court. The trial judge sentenced Wansboro to five years imprisonment for the dangerous driving offence. Also, on an application under s 99(9) and (10) of  the Criminal Justice Act 2006, the trial judge ordered that Wansboro serve the previously suspended sentence prior to commencement of the five year sentence. Wansboro lodged an appeal against both of those orders.

Subsequently, in 2016 (Moore v DPP), the High Court held that s 99(9) and (10) of the 2006 Act was unconstitutional.

When his appeal came before the High Court, Wansboro sought to rely on Moore, arguing that the Declaration of Unconstitutionality had a blanket effect. However, in the intervening period, the High Court had dismissed cases similar to Wansboro’s. And the Court of Appeal has upheld two such decisions on appeal.

The High Court (Faherty J) followed precedent and dismissed Wansboro’s appeal on grounds that, as he had not challenged the constitutionality of s 99(9) and (10) before sentencing, he had acquiesced in the Circuit Court’s exercise of a non-existent jurisdiction. Therefore there was no breach of fair procedure or due process of law.


Supreme Court

Wansboro argued that, as his proceedings had not been concluded at the time the High Court (in Moore) made its Declaration of Unconstitutionality of s 99(9) and (10), the High Court erred in its holding that the Declaration did not have a blanket effect and that he could not rely on that Declaration to challenge the lawfulness of the re-activation of the suspended sentence.

The Court determined that Wansboro had met the constitutional threshold for a leapfrog appeal. Firstly, as there are numerous similar cases, he raised a point of law of general importance. And secondly, given that the Court of Appeal would be bound to follow its precedents in the two similar appeals, an intermediate appeal to that court would be futile and a waste of resources.

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