New Appeal: When can the Oireachtas provide for mandatory prison terms without trespassing on the judicial function?

In this determination, Ellis v Minister for Justice and Equality & Ors, the Supreme Court granted Ellis leave to appeal challenging the constitutionality of s 27A(8) of the Firearms Act 1964. The Court determined that the case raised the following questions of general public importance:

 

i) Whether, and in what circumstances, the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases;

ii) Whether the ability of the Oireachtas to legislate for fixed penalties is only in breach of the separation of powers where the sentence fixed is disproportionately heavy;

iii) Whether a mandatory term of five years imprisonment in all cases of a second of subsequent offence under Section 27A of the Act is disproportionately heavy.

 

Background

In the Circuit Court, Ellis pleaded guilty to possession of a firearm contrary to s 27A(1) of the Firearms Act 1964:

27A. — (1) It is an offence for a person to possess or control a firearm F27 [ or ammunition ] in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.

Although Ellis had two previous convictions for carrying a firearm, the Circuit Court imposed a five year prison term, suspended in its entirety.

The DPP appealed the sentence to the Court of Appeal. Imposing a five year custodial sentence, the CoA held that the trial judge was bound by s 27A(8) of the 1964 Act:

(8) Where a person (except a person under the age of 18 years) —

( a ) is convicted of a second or subsequent offence under this section,

( b ) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

In 2016, Ellis issued plenary proceedings in the High Court challenging the constitutionality of s. 27A(8). Twomey J dismissed those proceedings.

Following Deaton v The Attorney General and the Revenue Commissioners [1963] IR 170 and Lynch and Whelan v Minister for Justice [2012] 1 IR 1, the CoA upheld the High Court decision.

Ellis applied to the Supreme Court for leave to appeal under Article 34.5.3° of the Constitution.

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New Appeal: Should fines imposed before commencement of the Fines (Payments and Recovery) Act 2014 be dealt with under that Act or the law at the time?

In this determination in two joined cases, Owens v Director of Public Prosecutions & Ors and Dooley v Director of Public Prosecutions & Ors, the Supreme Court granted the DPP leave to appeal on the question:

Whether unpaid fines that had been imposed by way of sentence before the coming into force of the Fines (Payments and Recovery) Act 2014 should, after that date, be dealt with under that measure or under the law as it stood at the time of sentence.

 

Background

Prior to the commencement date of the Fines (Payments and Recovery) Act 2014 (January 2016), both respondents were convicted at district court level and issued with fines of €500. Both failed to pay the fines and were, subsequent to the commencement of the 2014 Act, sentenced to terms of imprisonment for that failure to pay.

Both respondents challenged the lawfulness of the warrants on the basis that they were deprived to the protections of s 7 of the 2014 Act.

Quashing both warrants, the High Court (Eagar J) stated that if the 2014 Act was only to act prospectively it would create a two tier system, that the DPP failed to show that this would not lead to unfairness and injustice, and that it would deprive the respondents and society of the protections of the 2014 Act. Eagar J directed that the DPP initiate proceedings under s 7 of the 2014 Act.

The DPP appealed that decision to the Court of Appeal, arguing that if the Óireachtas had intended the 2014 Act to act retrospectively it would have expressly stated so.

The Court of Appeal (here) dismissed the DPP’s appeal, distinguishing between a statute that creates a new offence (which cannot apply retrospectively) and a statute such as the 2014 Act, which creates a new mechanism of collecting unpaid fines.

The Supreme Court determined that the case raised an issue of general public importance and granted the DPP leave to appeal.

DPP v Wharrie: Not a mitigating factor that accused did not give false evidence at trial

Here, in answer to a case stated from the Court of Criminal Appeal, the Supreme Court held that:

it is not a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give false evidence at his trial.

 

Background

In 2007 Perrie Wharrie and three accomplices were arrested in County Cork when their rib sunk as they attempted to bring 1.5 tonnes of cocaine ashore. One of the men pleaded guilty to offences under the Misuse of Drugs Acts. The three others were convicted before a judge and jury. At trial, Wharrie did not give evidence. His accomplices, however, gave evidence which the judge described at sentencing as an “insult to the intelligence of the jury”. The trial judge determined that it was a mitigating factor that Wharrie did not give false evidence, but sentenced him to 30 years imprisonment.

The Court of Criminal Appeal upheld the trial judge’s finding that it was a mitigating factor that Wharrie did not give false evidence. But it found that the trial judge did not give Wharrie credit for that. The Court of Criminal Appeal reduced Wharrie’s sentence to 22 years and allowed a further five years reduction in mitigation.

The DPP certified a question for appeal to the Supreme Court:

Is it a correct principle of sentencing to treat as mitigation the fact that an accused person who is convicted following a trial did not give evidence at his trial?

 

Supreme Court

Charleton J wrote the judgment for a five judge panel. Overruling the statements on mitigation by the trial judge and the Court of Criminal Appeal, he stated:

30. … An accused person is entitled to contest a case. While he or she may be given credit appropriate to an early admission of guilt, a plea of guilty, or, to a lesser extent, an approach to the trial process which saves time and money, no trial judge is entitled to aggravate the appropriate sentence because the accused gave perjured evidence in his own defence or in defence of others. Perjury is a separate crime and it is not a factor of aggravation of an existing offence. Finally, as a matter of principle, since perjury is a criminal offence as well as a grave moral wrong, it defies logic to conclude that failing to tell deliberate lies under oath or affirmation somehow mitigates the seriousness of an offence.

Supreme Court will ask the CJEU to define “trial” within the Framework Decision on European Arrest Warrants

In this judgment, Minister for Justice & Equality v Lipinski, the Supreme Court held it necessary to make a reference to the Courts of Justice of the European Union on the scope of “trial” within Article 4a of the Framework Decision on European Arrest Warrants. Should trial be interpreted narrowly, limiting its application to a criminal prosecution? Or should trial be interpreted broadly, to also include later proceedings such as hearings to suspend sentences and hearings to revoke the suspension of sentences?

 

Background

In 1998, a Polish court sentenced Lipinski to fifteen years imprisonment for offences comparable to the Irish offence of assault causing harm. That sentence was reduced on appeal to ten years. Lipinski was present at the trial and represented at the appeal.

In 2004, another court ordered the suspension of the remainder of Lipinski’s sentence on condition that he remain under the supervision of a probation officer.

In 2006, Lipinski moved to Ireland, breaching the terms of the suspension of his sentence. At a hearing later that year, a Polish court made an order quashing the suspension, making Lipinski liable to serve the rest of the sentence. The Polish authorities did not notify Lipinski of that hearing and he was not present.

In 2013 the State received a European Arrest warrant for Lipinski’s surrender to the Republic of Poland. That warrant was executed in 2014.

In the High Court, Lipinski argued that s 45 of the European Arrest Warrant Act 2003 (as amended) prohibited his surrender. S45 originally stated that a person should not be surrendered if they were not present at their trial, unless the issuing state guarantees a retrial. In 2012, s 45 was amended to state that a person should not be surrendered if they were not present at the “proceedings resulting in the sentence or detention order”. The High Court (here) ordered Lipinski’s surrender, but certified a question of law of exceptional public importance for determination by the Court of Appeal on whether s 45 as amended is engaged where the person was present at the trial for the offence but not present for the reactivation of the suspended sentence.

The Court of Appeal (here) held that the amendments were procedural rather than substantive, and if the legislature intended s 45 to extend to in absentia arrangements it would require clear wording. Lipinski sought leave of the Supreme Court to appeal that decision.

 

Supreme Court

Clarke J, writing for a five judge panel, held that s 45 must be interpreted in a manner consistent with the Framework Decision on European Arrest Warrants. Article 4a of the Framework Decision, the article which s 45 transposes into Irish law, provides for circumstances where an executing state will refuse surrender. That includes, where the subject of a warrant is sought to serve a sentence already imposed but was not present at the “trial”.

Clarke held that it is not acte clair whether trial in 4a must be interpreted narrowly to refer only to Lipinski’s original trial and sentencing (where Lipinski was present); or whether trial in 4a should be interpreted broadly to also include the proceedings where the suspension of the sentence was revoked (where Lipinski was not present).

The Supreme Court will make a reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union on the correct interpretation of trial in Article 4a of the Framework Decision.

O’Brien v Judge Coughlan: trial judge should have adjourned sentencing as defendant was not in court

Here, the Supreme Court held that, as the defendant (O’Brien) was not present in court for his conviction for a traffic offence, the District Court trial judge should have adjourned sentencing to a later date where he was considering a custodial sentence.

Background

O’Brien had numerous District Court convictions prior to this case, including for assault, possession of drugs, 14 offences under the Theft Act 2001 and motoring offences. This case relates to failure to stop a vehicle when directed by a garda and driving without road tax, insurance and not holding a driving licence. O’Brien was in court when the trial judge set the date for trial, but he did not attend court on the trial date. He was represented by a solicitor, though. The trial judge decided to proceed with the trial in O’Brien’s absence and found him guilty of the charges. O’Brien’s solicitor requested an adjournment for sentencing; the trial judge refused and sentenced O’Brien to four months imprisonment. O’Brien appealed that decision to the High Court.

High Court

Citing the Supreme Court authority of Brennan v Windle [2003] 3 I.R. 494, O’Brien sought an order quashing his conviction and sentence. In Brennan the Supreme Court overturned a conviction and custodial sentence in circumstances where Brennan was not in court and the trial judge had not even inquired if he had been made aware of the trial date.

Following that authority, Kearns P held that there was no need to adjourn the trial as O’Brien was aware of the trial date. However, as the trial judge was considering a custodial sentence, which that offence would not generally attract, the appropriate action was to issue a bench warrant to secure O’Brien’s presence in court for sentencing. The DPP appealed that decision to the Supreme Court.

Supreme Court

The DPP sought to distinguish this case from Brennan on grounds that O’Brien was aware of the trial date. Rejecting the DPP’s appeal, Charleton J held that the requirements of natural justice are equally applicable to this case: where the trial judge was considering a custodial sentence, and where the offence does not normally attract a custodial sentence, the trial judge should have secured O’Brien’s attendance in court.

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