The Court of Appeal ruled that a Circuit Court judge was required to remand William Kirwan to Dublin District Court for consideration of whether to revoke a suspended sentence. It held that the procedure introduced by the Criminal Justice (Suspended Sentences of Imprisonment) Act 2017 applied because it was in force when sentence was imposed for the later offence.
The court delivered its judgment on a consultative case stated, a reference from the Circuit Court asking whether the judge had been correct in law. It answered yes. The ruling resolved the legal question about the remand; it did not decide whether the earlier suspended sentence should be revoked or how much of it Kirwan should serve.
Kirwan had received a six-month prison sentence, suspended in full for 18 months, in March 2018 after a theft conviction. The Court of Appeal said he committed an attempted robbery in Dublin in July 2018, during the suspension period. He pleaded guilty to that offence in November 2018.
On 18 January 2019, the Circuit Court sentenced him to five years in prison, with the final 18 months suspended for 18 months. The judge then remanded him to Dublin District Court under section 99(8A) of the Criminal Justice Act 2006, as amended by the 2017 Act. That amendment had come into force on 11 January 2019.
Kirwan argued that the new procedure could not apply because the earlier sentence, the later offence and his guilty plea all predated its commencement. He said the amendment was substantive and penal because a reactivated sentence would have to run consecutively, removing an opportunity to seek a concurrent sentence. The Director of Public Prosecutions argued that the procedure in force on the sentencing date governed the case.
The Court of Appeal treated the remand and reactivation process as procedural. It said the original six-month sentence remained unchanged, and Kirwan had acquired no entitlement to avoid its possible revocation if he breached the conditions of suspension. The court also said the District Court retained discretion to refuse revocation if it would be unjust, and to decide whether Kirwan should serve all, part or none of the suspended term.
The court concluded that applying the new procedure caused no material prejudice and did not amount to retrospective penalisation. It held that the Circuit Court judge was entitled to remit the matter to Dublin District Court to consider revocation and any reactivation that court considered just in the circumstances.