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Carney J Flip-Flops

  • 24-01-2013 7:41pm
    #1
    234
    Registered Users, Registered Users 2 Posts: 1,529 ✭✭✭


    This article is a bit unclear, but bail in the recent rape case has been revoked.


    http://www.irishtimes.com/newspaper/breaking/2013/0124/breaking14.html

    What the author doesn't seem to know is whether Carney J was wrong on the law in that he had no power to grant bail or whether he revoked it after re-considering. Can somebody with more procedural know-how clarify?

    If it's the later then this represents a very worrying practice; a judge pandering to public outrage.


Comments

  • #2
    ResearchWill
    Closed Accounts Posts: 4,111 ✭✭✭ResearchWill


    234 wrote: »
    This article is a bit unclear, but bail in the recent rape case has been revoked.


    http://www.irishtimes.com/newspaper/breaking/2013/0124/breaking14.html

    What the author doesn't seem to know is whether Carney J was wrong on the law in that he had no power to grant bail or whether he revoked it after re-considering. Can somebody with more procedural know-how clarify?

    If it's the later then this represents a very worrying practice; a judge pandering to public outrage.

    I think what happened was as follows, at end of sentencing defendant asked for certificate of appeal (this is almost always refused) in this case it was granted. Now it gets interesting a certificate is the judge saying I think I may be wrong (hence why rarely given. When certificate given a judge can grant bail, as in effect he is saying this may not be the end of it.

    Then the interesting bit, Judge Carney did not revoke bail, he withdrew the certificate, thereby bail had to go. Now both the DPP and the Defendant are free to appeal the sentence the usual way, if the defendant wishes he can apply to CCA for bail.

    "The Court of Criminal Appeal consists of a Judge of the Supreme Court and two Judges of the High Court. It hears appeals from people convicted on indictment in the Circuit or Central Criminal Court where they (the appellant) obtain a certificate from the trial judge that the case is a fit one for appeal. Also, where this certificate is refused, the Court of Criminal Appeal itself, on appeal from this refusal, may grant leave to appeal. An appeal may be made to the Court of Criminal Appeal against sentence only, conviction only or against both sentence and conviction. The DPP may also appeal to the Court of Criminal Appeal on grounds of alleged undue leniency of sentence under the Criminal Justice Act 1993, Section 2. In the case of an alleged miscarriage of justice, an appeal may be lodged under Section 2 of the Criminal Procedure Act 1993."

    From http://www.courts.ie/courts.ie/library3.nsf/pagecurrent/B68454B7DF792E6480256D8700502304


  • #3
    dermot_sheehan
    Closed Accounts Posts: 2,062 ✭✭✭dermot_sheehan


    My understanding is that a court exercising criminal jurisdiction ceases to have power to admit a defendant to bail once final sentence is entered since the defendant is no longer in the custody of the court and is not being remanded from time to time.

    The inherent power of the High Court to admit a defendant to bail ceases then, since the High Court's inherent bail jurisdiction in Ireland grew from its power to release someone on a writ of habeas corpus which ceases after conviction.

    There is an interesting judgement of the Northern Ireland High Court giving the history of the inherent jurisdiction of the bail jurisdiction of the High Court in Ireland (the law was the same before 1921)
    http://www.bailii.org/nie/cases/NIHC/QB/2010/68.html


    The Court of Criminal Appeal could have admitted a defendant to bail once a notice of appeal is filed or an application for leave to appeal had been filed.


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