The Court of Appeal ruled that a person whose suspended sentence is reactivated by the Circuit Court has a statutory right to appeal that decision, including where the original sentence was imposed after an appeal from the District Court.
The judgment, delivered on 22 July 2015 by Ms Justice Finlay Geoghegan, arose from appeals concerning Damien McCabe’s detention after a suspended sentence was reactivated. Mr McCabe had been convicted of a road traffic offence in the District Court in June 2013 and sentenced to five months in prison. On appeal, the Circuit Court upheld the conviction but imposed a six-month sentence suspended for two years on conditions.
After Mr McCabe was convicted of a public order offence in May 2014, the Circuit Court revoked the suspension and ordered him to serve the full six months. He was held under a warrant issued on 27 May 2014.
The High Court later declared that giving effect to the reactivated sentence without a statutory right of appeal would be unconstitutional, and ordered Mr McCabe’s release. In the appeal, the State argued that section 99(12) of the Criminal Justice Act 2006 did provide a right of appeal to the Court of Criminal Appeal, now the Court of Appeal. That argument had not been advanced in the High Court.
The Court of Appeal allowed the State to raise the point, describing it as a question of law of general importance. It interpreted section 99(12) as granting an appeal against an order revoking a suspended sentence. It also held that the “final and conclusive” wording in section 18(3) of the Courts of Justice Act 1928 did not prevent an appeal against the later revocation decision: that decision was a separate exercise of statutory jurisdiction from the original appeal and sentence.
The court therefore found that Mr McCabe had a statutory right to appeal the Circuit Court’s 27 May 2014 decision. It did not decide the remaining constitutional grounds, which had been based on the absence of such a right.
The court declared the right of appeal, dismissed Mr McCabe’s cross appeal concerning earlier rulings in the Article 40 proceedings, and left unchanged the High Court’s substantive release order. It permanently stayed execution of the warrant, despite finding it valid, so Mr McCabe would not be prejudiced by the State’s late argument. The judgment said the decision did not affect the District Court proceedings on the public order offence, where sentence might still be imposed.