Judgment: 2009-09-25 · Court archive

High Court grants leave to challenge delay over suspended sentence

Patrick McCann was allowed to pursue judicial review of the DPP’s decision to seek activation of a suspended sentence. The court made no final ruling on the challenge.

High Court · [2009] IEHC 417

Who, what, where, when and why

Who
  • Patrick McCann (Applicant)
  • The Governor of Mountjoy Prison
  • The Director of Public Prosecutions (Respondent)
  • John Edwards (Judge)
What

Patrick McCann was allowed to pursue judicial review of the DPP’s decision to seek activation of a suspended sentence. The court made no final ruling on the challenge.

Where

Places mentioned in the report

  • Mountjoy Prison
  • 90 Sundrive Road
  • 9 Slievenamon Road
  • Crumlin
  • Drimnagh
When

Judgment:

Other dates in the report
  • 31 October 2008

    Mr McCann was serving a combined 18-month term for four convictions: criminal damage to a patio window, two burglaries and theft. The burglary convictions concerned premises at 90 Sundrive Road, Crumlin, and 9 Slievenamon Road, Drimnagh. The judgment said the warrants for the four convictions were dated 31 October 2008. Assuming they were executed on or shortly after that date, the judge estimated Mr McCann could be released around mid-December 2009 with normal remission.

Why

Reasons reported in the judgment

Mr Justice John Edwards said on 25 September 2009 that Mr McCann had raised an arguable point: whether delay had unfairly prejudiced him by reducing the chance that any reactivated sentence could have been served alongside the consecutive sentences he was already serving. The court made no finding on that claim.

The High Court has granted Patrick McCann leave to seek judicial review over alleged delay by the Director of Public Prosecutions in seeking to have him serve a previously suspended prison sentence.

Mr Justice John Edwards said on 25 September 2009 that Mr McCann had raised an arguable point: whether delay had unfairly prejudiced him by reducing the chance that any reactivated sentence could have been served alongside the consecutive sentences he was already serving. The court made no finding on that claim.

Mr McCann was serving a combined 18-month term for four convictions: criminal damage to a patio window, two burglaries and theft. The burglary convictions concerned premises at 90 Sundrive Road, Crumlin, and 9 Slievenamon Road, Drimnagh. The judgment said the warrants for the four convictions were dated 31 October 2008. Assuming they were executed on or shortly after that date, the judge estimated Mr McCann could be released around mid-December 2009 with normal remission.

In his application, Mr McCann sought “Mandamus” to stop what he described as reactivation of an earlier sentence. The judge understood that the earlier sentence had been suspended on conditions including keeping the peace and being of good behaviour, and that the DPP had notified Mr McCann of an intention to ask for it to be activated. The judgment said it had not yet been reactivated.

Because Mr McCann was representing himself, the judge treated the application as one for leave to seek certiorari, which could quash the DPP’s decision, and/or an injunction to restrain further steps. He said the DPP could generally ask the sentencing court to consider activating a suspended sentence where there was information that its conditions had been breached. The judge saw no possible case against the Governor of Mountjoy Prison, who would be required to act on a lawful committal warrant.

The court granted leave on the grounds of alleged excessive and inordinate delay causing unfair prejudice. It also recommended that Mr McCann receive legal representation under the Attorney General’s scheme, set 19 October 2009 as the initial return date, and allowed him to apply for a production order to attend in person, on at least four days’ notice to the prison governor. These were procedural directions; the judgment did not decide whether the suspended sentence should be activated.

Read the original court judgment

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