The Court of Appeal ordered the release of a teenager who had spent ten weeks in custody after receiving a six-month sentence for breaching bail conditions. It ruled that the sentence could not stand and restored his previous bail conditions, except for a curfew that the Central Criminal Court had removed.
The appeal arose from a pending rape charge concerning an alleged offence on 23 December 2010, when J. McD. was 15. He had been due to stand trial in the Central Criminal Court in February 2015. The Court of Appeal was not deciding that charge.
Bail conditions imposed in January 2013 included compliance with a Health Service Executive care plan. A curfew was added in February 2013 after an application to revoke bail based on alleged breaches of the care plan. A later application concerning alleged curfew breaches led to two weeks in custody, but bail was reinstated in August 2013. There was also an unsuccessful application to revoke bail in November 2013.
At a further bail hearing on 7 October 2014, evidence from Garda Elaine Healy described repeated curfew breaches during July, August and September. The appeal court said the recorded breaches involved J. McD. being out on the streets of Bundoran in the early hours, after nightclubs had closed. The defence had argued that the curfew hindered education, part-time work and sports, but the court said no application had been made to vary or remove it, and the breaches recorded were unrelated to those activities.
During the hearing, the Central Criminal Court judge warned that the matter involved contempt and that he had power to imprison. Defence counsel accepted that the breaches raised contempt, but later said counsel had not realised imprisonment was at stake until sentence was imposed. The judge lifted the curfew, finding it unnecessary, but sentenced J. McD. to six months in prison for contempt.
The Court of Appeal said the Central Criminal Court had not analysed whether the alleged contempt was civil or criminal, or what procedures were required. It considered that the focus on an alleged breach of an undertaking appeared to concern civil contempt, while stressing that the record did not clearly establish what undertaking had been given. Because the judge had initiated the contempt process himself, the appeal court said meticulous attention to fair procedures was particularly important. It also said the sentencing judge had not shown the careful consideration required, including whether a suspended sentence, community service or a shorter term could suffice for a young person with no previous convictions.
The appeal court did not decide whether imprisonment could ever have been imposed in these circumstances. It held that this sentence could not stand, directed J. McD.’s release and reinstated the earlier bail conditions except for the removed curfew.