The High Court ruled that a suspended sentence could be reactivated after an accused was found guilty of a later offence, even though sentence for that later offence had not yet been imposed. It also held that the detention warrant was valid on its face. A separate constitutional challenge was adjourned and was not decided in this judgment.
Damien McCabe was originally convicted in the District Court in June 2012 of driving a motorcycle without insurance. He received a six-month prison sentence, suspended for two years. The Circuit Court affirmed that conviction and sentence on appeal on 29 October 2013.
On 26 May 2014, the District Court found Mr McCabe guilty of an offence under section 6(1) of the Criminal Justice (Public Order) Act 1994. It remanded him to the Circuit Court under section 99(9) of the Criminal Justice Act 2006. The following day, the Circuit Court revoked the suspended sentence, and Mr McCabe began serving the six months imposed for the insurance offence. The District Court had adjourned sentencing on the later offence until 4 June.
Mr McCabe applied to the High Court for release under Article 40.4.2 of the Constitution. He argued that “convicted” in section 99(9) meant a person who had already been sentenced, making the statutory process inoperable where sentence on the later offence remained outstanding. He also said the detention warrant was defective. A third argument alleged that the statutory scheme was unconstitutional because there was apparently no appeal right in his circumstances. The constitutional issue was agreed to await resolution of the other grounds.
Mr Justice Hogan held that, in this statutory context, “convicted of an offence” includes a person found guilty before sentence is imposed. He reasoned that the language and structure of section 99 contemplate that the first court will consider revocation before the second court sentences for the later offence; the narrower interpretation would make the provisions unworkable.
The judge also rejected the challenge to the warrant. It identified the original insurance offence and suspended sentence, and recorded the circumstances in which the Circuit Court revoked the suspension. The District Court’s order had expressly stated that the later offence was committed after the suspended sentence was imposed. The High Court concluded that detention had been shown to be lawful on the two grounds before it.
The judgment did not decide the constitutional challenge. It said the court could consider that issue separately after further argument.