THE SUPREME COURT
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES
RESULT: The Court grants leave to the Director of Public Prosecutions to appeal to this Court from the Court of Appeal on the grounds specified in the Notice of Application.
1. This determination relates to an application brought by the prosecutor/applicant (“the D.P.P.”) in which leave is sought to appeal from the decision of the Court of Appeal in this case. Before going on to deal with the basis on which it is said that the constitutional threshold for leave to appeal has been met, it is necessary for the Court to record certain aspects of the procedural history of this application in addition to identifying the issues which were considered by the Court of Appeal in the judgment sought to be appealed.
2. The constitutional framework established by the 33rd Amendment of the Constitution requires that, in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal, it be demonstrated that either “a matter of general public importance” arises or that it is otherwise in the interest of justice that there be an appeal to this Court.
3. The statutory framework for the exercise of the right to apply to this Court for such leave is to be found in the Court of Appeal Act, 2014 and in particular the provisions of s.44 of that legislation which, inserts a new s.7(10)(a) into the Courts (Supplemental Provisions) Act, 1961, which measure permits the Court to consider such applications without an oral hearing. In the light of that statutory framework, the rules of court (Order 58 r.3) specify that such applications “are normally decided on the papers unless the Court otherwise orders” and emphasise that it is “essential that the application is in the correct form”. The same rule then goes on to provide for the forms which must be filed both by the intending appellant and any respondent or other interested party. The Court has, of course, both under the legislation (s.7(11)) and under the rules, a residual entitlement to hold an oral hearing if it is felt that this might be advantageous and of assistance to the Court in reaching a conclusion on whether leave should be granted.
4. Unfortunately it has to be recorded that the papers filed on behalf of the D.P.P. in this case were significantly defective in two particular respects. Both problems concerned the description of the revised sentence which had been imposed by the Court of Appeal as a result of the successful appeal brought by the D.P.P. to that court on the ground of undue leniency.
5. First, the actual court order drawn up by the Court of Appeal incorrectly set out the decision of that court. While that fact of itself is not the fault of the D.P.P. it is a matter of legitimate criticism that the fact that the court order which was filed with the papers for the consideration of this Court was inaccurate was not noticed and a timely application brought to the Court of Appeal to rectify the error in the written order. Even if it did not prove possible within the relevant timeframe to secure an amendment of the written order of the Court of Appeal it was nonetheless incumbent on the D.P.P., when filing the relevant papers, to identify the problem and indicate that steps were afoot to remedy it.
6. The second problem related to the description given of the revised sentence imposed by the Court of Appeal which is to be found in the notice of application for leave filed in this Court. That description is also inaccurate. However, it is inaccurate in a different way to the error in the original written order of the Court of Appeal as perfected. In reality there were, therefore, three versions of the sentence actually imposed by the Court of Appeal. The first was the new sentence actually pronounced by the Court of Appeal when giving oral judgment. The second was the erroneous written order made up which did not reflect what had been said in court. The third was a yet further different version of the sentence which was included in the D.P.P.’s application to this Court but which was also at variance (but in a different way to the court order) with what had been pronounced in the open court.
7. The Court draws attention to these matters for the purposes of emphasising that the clear intent both of the legislation and of the rules of court is that it should be possible in the vast majority of cases for this Court to consider a leave application on paper and without the need of an oral hearing. Indeed, it would be counter-productive to one of the principal benefits which was anticipated to flow from the introduction of a Court of Appeal if there had to be a significant oral hearing in respect of every application for leave to appeal. The effect of such a procedure would be to replace one aspect of the problems which this Court encountered prior to the establishment of the Court of Appeal (being the fact that the Court had to deal with a large number of routine appeals) with another problem (being that the Court would have to deal with a large number of significant oral hearings on the question of leave).
8. It follows that there is a significant duty on parties and their advisors to ensure that the papers filed on a leave application are correct. What the Court was faced with in this case were the conflicting descriptions of the new sentence imposed by the Court of Appeal as and between the body of the notice of application prepared by the D.P.P. and the court order included in those papers. It was in an attempt to bring some clarity to that situation that the Court directed an oral hearing in this case. In the light of the confusion caused by that unexplained inconsistency the Court was not, on the basis of the papers filed, able properly to understand some of the real issues which were sought to be raised.
9. It has to be said that it was with some considerable surprise that the Court learned, at the oral hearing, that in fact neither of the versions of the new sentence which had been given in the papers were correct but that there was a third version being the actual sentence imposed in open court by the Court of Appeal. That sentence (which is, of course, the correct version) can be found in a transcript of the hearing before the Court of Appeal which was made available to this Court. It differed from both of the versions which had been included in the papers. The issue now has been remedied with the filing of an amended notice of application which accurately records the decision of the Court of Appeal together with the filing of a new written order of the Court of Appeal which has been amended to bring it into conformity with what the Court actually directed. It is now possible for the Court to consider the application for leave on its merits. However, it should be strongly emphasised that the problems which the court has sought to set out made this process significantly more protracted and difficult than it ought to have been and gave rise to an oral hearing which ought not to have been necessary. The Court will return to that question when it has dealt with the merits of the leave application.
10. In order to understand the specific issue which is said to give rise to a matter of general public importance and thus meet the constitutional threshold for leave it is necessary to say just a little about the sentence that was imposed on the defendant/respondent (“Mr. Maher”).
11. Mr. Maher pleaded guilty to 19 offences of indecent assault on males committed between 1982 and 1984. At his sentencing hearing which took place at the Circuit Court sitting in Ennis it was suggested on behalf of the D.P.P. (incorrectly the D.P.P. now maintains) that the maximum sentence applicable was two years in respect of each such offence. On that basis the sentencing judge imposed concurrent two year sentences in respect of each of the offences.
12. From that sentence the D.P.P. appealed to the Court of Appeal under s.2 of the Criminal Justice Act, 1993 on the grounds of undue leniency. Essentially the case made by the D.P.P. on the appeal was that the offence was one contrary to common law where the sentence could not exceed that applicable to the offence of an indecent assault on a female being a sentence of ten years. The Court of Appeal rejected that argument and confirmed that, in its view, the maximum sentence was two years. That is the key issue on which the D.P.P. seeks leave to appeal. The Court will return to that question in due course.
13. However, the Court of Appeal did take the view that the overall sentence imposed was unduly lenient in all the circumstances and, in its actual decision, dealt separately with one of the offences. In relation to that count the overall sentence was reduced from two years to one year but the one year sentence was directed to be served consecutively. In passing it should be noted that the commencement date for that one year consecutive sentence was specified by reference to the time of the hearing before the Court of Appeal for Mr. Maher had already been released by that time. The substance of the decision of the Court of Appeal was that the appropriate sentence would have been three years being a two year sentence with a further one year consecutive sentence.
14. The second leg of the appeal which the D.P.P. wishes to maintain is that, if she be correct in asserting that the maximum sentence is ten years rather than two years, a sentence of an effective period of three years remains unduly lenient.
15. It is argued on behalf of the D.P.P. that the question of the maximum sentence for these offences raises an issue of general public importance. That argument is countered, at least in part, on behalf of Mr. Maher by pointing to the fact that intervening legislation has now rendered the issue largely historical. While accepting that point the D.P.P. argues that there potentially remains a material number of cases (some of which may not as yet have come to the attention of investigating authorities) where the events alleged, or which may be alleged, to constitute the offence in question predate the amending legislation and where, importantly, it is said that the issue of the maximum sentence not only affects the question of sentence itself but also has the potential to affect any investigation process having regard to the fact that certain investigative measures are only permitted in respect of offences carrying a maximum penalty in excess of the two year imprisonment period found to apply by the Court of Appeal.
16. In addition, counsel for Mr. Maher stressed that there is a potential unfairness to his client in the circumstances where he was originally sentenced as a result of a view on the maximum sentence communicated to the Court by counsel on behalf of the D.P.P. In addition counsel drew attention to the fact that Mr. Maher was then released, but has since been imprisoned a second time as a result of the decision of the Court of Appeal. Mr. Maher might well, therefore, depending on the time frame within which this Court determined this case, be again released and be at risk of being imprisoned for a third time. The Court has no doubt that these latter points are ones which any formation of this Court hearing a substantive appeal in this case would have to take into account. However, they do not seem to this Court to be reasons for not granting leave in a case where it was otherwise justified.
17. The Court is satisfied that this proposed appeal raises an issue of general public importance being the maximum sentence for a significant offence. While there is an extent to which that issue may now be historical, the Court is satisfied, for the reasons already noted, that this argument carries less weight in the particular circumstances of this case than it might otherwise, and is not such as to displace a finding that the appeal would raise an issue of general public importance.
18. In those circumstances the Court proposes to grant the D.P.P. leave to appeal on the grounds specified in para. 6 of her notice of application.
19. As noted earlier the Court will now return to the consequences of the fact that there was an unnecessary oral hearing in this case. The Court considers that it would be appropriate to deal with that fact by awarding the costs of that oral hearing to Mr. Maher. The Court will provisionally make an order to that effect. However, given that the question of costs was not raised at the oral hearing itself (or otherwise to date) the Court will give an opportunity to the D.P.P. to seek to vary that order should the D.P.P. make an application to the Court, on notice to Mr. Maher, within 14 days of the date of this determination.
And It is hereby so ordered accordingly.