The Court of Appeal has dismissed John Wilkinson’s appeal against the High Court’s refusal to order his release from custody under Article 40 of the Constitution. It held that an appeal against one sentence did not stay a separate consecutive sentence that had not been appealed.
Wilkinson was convicted in Carlow District Court on 20 January 2016 of assault causing harm and sentenced to nine months in prison. He did not initially complete the steps required to appeal within 14 days. The court judgment says extensions of time were granted, and that the appeal process was completed on 26 May, after he signed the notice and entered a recognisance. The appeal against that conviction and sentence remained to be determined.
While serving the Carlow sentence, Wilkinson was convicted in Athlone District Court on 13 April of driving without insurance. He received a three-month sentence, ordered to run consecutively to the Carlow sentence. He did not appeal the Athlone sentence.
Wilkinson argued that appealing the Carlow sentence stayed its execution and meant the Athlone sentence, which was to begin when the Carlow term legally expired, had not yet started. The authorities argued that the Athlone sentence remained enforceable and provided a lawful basis for detention.
The High Court had ruled that successfully entering the appeal against the Carlow sentence brought forward the start of the unappealed Athlone sentence. The Court of Appeal agreed. It said an appeal against one of two sentences does not stay the sentence that was not appealed; instead, appealing the earlier sentence triggers the start of the later consecutive sentence.
The appeal hearing also addressed errors in information previously given to the High Court. An earlier prison affidavit had omitted a separate 60-day warrant issued in Carlow and lodged at Midlands Prison, and had incorrectly stated when the Carlow appeal was processed. A later affidavit corrected the account and apologised, attributing the errors to human error. The Court of Appeal said the inaccurate information was regrettable and urged a review of procedures to reduce the chance of recurrence.
By the time of the appeal, the 60-day warrant had been served in full. The court considered the Athlone sentence as the remaining basis for detention and concluded Wilkinson had been in lawful custody. It dismissed the appeal. The judgment gave a release date of 25 July 2016 with remission, as stated by the authorities; it did not determine the separate appeal against the Carlow conviction and sentence.