The High Court has vacated an order forfeiting bail recognisances entered against Jonathan Kenny and his father, John Kenny, ruling that the application relied on the wrong provision of the Bail Act and that adequate notice had not been given.
In a judgment delivered on 26 May 2005, Mr Justice Lavan said the Director of Public Prosecutions had relied on section 9(1) of the Bail Act 1997 when seeking to estreat the recognisances. That section applies where an accused person fails to appear in court in accordance with bail. The DPP accepted that, when it sought an arrest warrant on 6 October 2004, Kenny had attended his court appearances up to that point.
Kenny had been granted bail in March 2004, with his father acting as a €6,000 surety, and was admitted to bail on further charges in May, with a separate €5,000 surety. The conditions included living with his father in Crumlin, reporting daily to Crumlin Garda station and observing a night curfew. The DPP alleged breaches including missed sign-ons and curfew violations. It also relied on Kenny’s failure to appear at Dublin Circuit Criminal Court on 13 October 2004, after the warrant application but before the warrant was executed.
The court heard that the President of the High Court revoked Kenny’s bail on 26 October 2004 and, at the DPP’s request, ordered the recognisances estreated. Kenny argued that breaches of bail conditions other than failure to appear should be dealt with under section 9(2), followed by the procedure in sections 9(6) and 9(7).
Mr Justice Lavan agreed that section 9(2) was the more appropriate route for seeking estreatment based on non-compliance with bail conditions. He said the later failure to appear could not retrospectively bring the earlier warrant application within section 9(1). He did not decide Kenny’s separate argument about which court could deal with estreatment for a failure to appear, saying that issue did not arise because Kenny had met his court-appearance conditions when the warrant was sought.
The judge also rejected the DPP’s submission that Kenny and his father had received adequate notice of their right to seek to vary or discharge the estreatment order simply because they were present in court and were told of that right. He found that further notice was necessary under section 9(8).
The court vacated the 26 October order. It did not dismiss the possibility of estreating the recognisances: the judgment says a fresh application could be maintained on proper notice to the surety.