The High Court has ruled that it would be unconstitutional to enforce a reactivated prison sentence where the person has no legally conferred right to appeal the Circuit Court’s decision to reactivate it.
Mr Justice Gerard Hogan delivered the judgment on 30 September 2014 in a challenge by Damian McCabe to parts of section 99 of the Criminal Justice Act 2006, as amended. The court found that the absence of an appeal right in his circumstances breached the constitutional guarantees of equality before the law and appeal rights for courts of local and limited jurisdiction.
McCabe had been convicted in the District Court in June 2013 of driving a motorcycle without insurance and received a five-month prison sentence. On appeal, the Circuit Court increased it to six months but suspended the sentence for two years. In May 2014, McCabe was convicted of an offence under section 6(1) of the Criminal Justice (Public Order) Act 1994. The District Court remanded him to the Circuit Court, which revoked the suspension the following day. He began serving the six-month sentence for the original offence. Sentencing on the later charge had been adjourned pending the legal challenges.
Under section 99, the court that imposed a suspended sentence may revoke it after a further conviction during the suspension period, unless revocation would be unjust in the circumstances. The legislation provides an appeal against revocation. But where, as here, the Circuit Court imposed the original sentence on appeal from the District Court, its reactivation decision in a summary case was not appealable. Hogan J said that difference left people in otherwise similar circumstances with markedly different appeal rights, without objective justification.
The judge also rejected the argument that a case stated to the Supreme Court under section 16 of the Courts of Justice Act 1947 amounted to an appeal. The Circuit Court retained the ultimate decision under that procedure. He said the reactivation decision was a new exercise of statutory jurisdiction, even though the Circuit Court had originally dealt with the sentence in its appellate capacity.
The court did not formally declare section 99 unconstitutional, because the defect was a legislative omission and invalidating the section would not address it. Nor did the judge create a general appeal procedure, which he said was for the Oireachtas to establish. Instead, he ordered that it would be unconstitutional to give effect to McCabe’s reactivated sentence unless there was a statutorily conferred right to appeal the Circuit Court’s reactivation decision. The judgment identifies that remedy; it does not set out a new appeal route or detail any subsequent steps in McCabe’s case.