The High Court has ruled that a District Court asked to review a suspended sentence must decide whether to revoke it before the court that convicted the defendant can impose sentence for the later offence. The decision means the defendant cannot first obtain sentence and then appeal the triggering conviction while the revocation question remains deferred.
Ms Justice Faherty gave the ruling on 20 March 2015 in a consultative case stated by District Judge Catherine Murphy. The case concerned Phyllis O’Callaghan, who had been convicted after a contested trial on 17 September 2012 of an offence under section 78(3) of the Finance Act 2005, as amended. She had previously received a three-month prison sentence, wholly suspended for 12 months, after convictions for two offences on 4 January 2012.
After the later conviction, District Judge Ann Watkin remanded O’Callaghan to Judge Murphy, the court that had imposed the suspended sentence, under section 99(9) of the Criminal Justice Act 2006. O’Callaghan’s solicitor told Judge Murphy that she wished to appeal the later conviction. The defence argued that the revocation hearing could be adjourned until that appeal was decided, to avoid the risk of a suspended sentence being activated before a successful appeal.
The High Court said the law required the convicting court to make the remand before imposing sentence. It also held that the suspending court’s discretion to find revocation unjust, or to order that only part of the sentence be served, had to be exercised as part of deciding the revocation issue. It could not use that discretion simply to send the defendant back for sentence while postponing the revocation decision.
The court answered “Yes” to whether the suspending court had jurisdiction to proceed with revocation before remanding the defendant back, and “No” to whether it was required to defer the decision and adjourn for the appeal. Questions about the consequences raised in parts 3(a) and 3(b) were answered “Does not arise.”
The judgment did not itself revoke O’Callaghan’s suspended sentence or decide her appeal. It said the suspending court could revoke all or part of the sentence, or decline to revoke it, and then remand her to the convicting court for sentence. Once sentence was imposed, she could pursue an appeal against the triggering conviction; a revocation order could also be appealed under section 99(12). The High Court acknowledged that the statutory sequence could leave a person facing possible revocation before the triggering conviction appeal was heard.