Criminal Law Updates & Cases

conorh91

If the mods are agreed, it might be useful to have a resource here for discussion of criminal law updates and legal discussion of recent cases.

Maybe people could give a summary/ comment on cases where judgment has been delivered.

Here's an interesting, recent judgment. This judgment will have implications for appellants who receive suspended sentences from the Circuit Court, and may cause the Circuit Court to be less likely to deliver suspended sentences in similar cases in future, until such time as the situation is addressed by the Oireachtas.

McCabe v Attorney General & Anor.
[2014] IEHC 435; Hogan J

Plaintiff was convicted in the DC of having driven a motorcycle without a helmet, and sentenced to five months imprisonment. On appeal to the Circuit Court, sentence was extended to 6 months imprisonment, suspended for two years. Subsequently, The Plaintiff appeared again before the DC, was convicted of a public order offence.

The DC remanded the Plaintiff back to the Circuit Court. The Circuit Court revoked the suspension of the original sentence, in accordance with s.99 of the Criminal Justice Act 2006.

If the suspended sentence had originally been imposed by the DC, a right of appeal would lie against its activation, in accordance with s.99(!2) of the Criminal Justice Act 2006. However, because the suspended sentence was imposed by the Circuit Court, and because summary decisions of the Circuit Court on appeal are final and unappealable, the Plaintiff was denied a right to appeal against the activation of his suspended sentence.

The Plaintiff argued that the Constitution, namely Article 40.1 (the equality guarantee) and Article 34.3.2 (the right of appeal), requires the existence of a right of appeal.

Held by Hogan J, in ruling that it would be unconstitutional to give effect to the re-activated sentence. --

1. It is irrelevant whether the original sentence was imposed at first instance or whether it was imposed following an appeal to the Circuit Court. The decision to re-activate a sentence is a decision taken at first instance, even if the court which exercised that re-activating jurisdiction was itself originally exercising an appellate jurisdiction.

2. It was impossible to discern any justification for the radically different treatment of persons whose suspended sentences for summary offences have been activated by the Circuit Court as against the DC. The equal treatment of similarly situated persons within the criminal justice system is at the heart of the concept of equality before the law which; it is one of the fundamental objectives of Article 40.1

3. Article 34.3.4. only contemplates a right of appeal where there is a statutory basis. In this case, the policy expressed by the Oireachtas in s. 99(12) is that the activation of every suspended sentence should be capable of being appealed to a higher court.

4. As the unconstitutionality of s.99(12) of the Criminal Justice Act 2006 relates to a legislative lacuna, a finding of unconstitutionality would be inappropriate. Instead, the court has jurisdiction to grant any remedy it considers necessary to vindicate the right concerned (Carmody v. Minister for Justice [2009] IESC 71, [2010] 1 I.R. 635, 668 applied). The remedy in this case would be to declare unconstitutional an activation of the suspended sentence.

Tom Young

Is that a Section 99 re-entry?

conorh91

Yes.

Another fine s.99 mess.

Bepolite

Fantastic idea for a thread!

hullaballoo

It's only taken 8 years for us to figure out what this forum is for!

Round of applause is in order and maybe a few beers on me.

Pat Mustard

Stickied*

Well done, conorh91.











*Can be unstickied/unstuck if more favourable to volume of traffic/discussion.

conorh91

This is an interesting one that some of you will already be aware of.

It concerns the chain of causation in a prosecution for murder, where the victim survived for two years after the initial injury in a vegetative state. It also concerns duress, but I have left that out.

DPP -v- Dunne
[2014] IECCA 29; O’Donnell J; Moriarty J; Herbert J.
http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/b9b08bb06f31aadb80257d320034f0c7?OpenDocument

Dunne was the driver of a car parked in Stillorgan. He shot the passenger next to him. Dunne drove to the M50, and spilled his victim out onto the road, then drove away. The victim survived in a vegetative state. After two years, the victim developed a chest infection, and his health deteriorated. A decision was taken by the victim's family and his medical team not to resuscitate him. The victim died of heart failure. Dunne was convicted of murder. Dunne then appealed that conviction, arguing that the decision not to resuscitate the victim broke the chain of causation.

Held by O'Donnell J, speaking for the Court, in dismissing the appeal --

The threshold which must be reached in order to prove causation is that the injuries caused by an accused related to the death “in more than a minimal way”

DPP v. Davis [2001] 1 I.R. 146 followed

Significance
This case re-states the law on causation in Irish criminal law. It firmly establishes Hardiman J's "more than a minimal way" test in Davis. Thus, the Irish test for causation appears to be lower than the corresponding English test, where the English courts have preferred language like "direct consequence", and "a substantial cause".

MarkAnthony

Excellent thread - perhaps someone might start a constitutional law version.

BasedHobbes

Sweeney -v- Governor of Loughan House Open Centre & ors, [2014] IESC 42 (2014)
(Can't post a url as I'm a new user, but Google has the bailii link as the 2nd result)

Habeas Corpus and Transfer of Prisoners.

SC case concerning transfer of prisoners from UK to Ireland. Prior to Sweeney, if a prisoner was sentenced to x years in prison and y years release on licence, they'd have to serve out the full sentence in custody in Ireland (subject to Irish remission laws). In the instant case the app. was sentenced to 8 years in custody and 8 years on licence.

The Court found that the app. was entitled to release after the 8 year period had concluded, and not the previously established 16 years. The 8 year period was also subject to the standard 25% remission reduction under Irish law.

conorh91

DPP v Eric Daniels [2015] 1 I.L.R.M. 99

The Applicant was 18 years of age when he lured away a 10-year-old victim on the pretext of finding some puppies, and attempted to murder her. The Victim survived by pretending to be dead. The Applicant had pleaded guilty at trial. He had admitted to Gardai that he had wanted to inflict "real pain" on another and that he had intended to kill. He had no previous convictions. In sentencing him to a discretionary term of life imprisonment, the trial judge commented that it was the Court's primary duty to "prevent anything of this kind".

On appeal, the CCA rejected an argument that there was an error in principle in the sentence, but granted an application for an appeal to the Supreme Court on a point of law of exceptional public importance

Held by the Supreme Court, per Dunne J (nem. diss.), rejecting the application

It is lawful to sentence an accused person to the maximum term of imprisonment even when there are significant mitigating factors such as guilty plea, age, and absence of previous convictions.

A preventative component is an incidental effect of a proper sentence. The constitutional and legal prohibition on preventative detention only relate to that which exceeds the purely penal requirement. People (DPP) v Duffy [2009] 2 I.R. 395 approved.

In determining that an element of preventative detention is contained in a sentence, it is necessary to show that no court acting properly could have imposed the sentence.

MarkAnthony

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/0082a1c81cbf42a880257e28005387c4?OpenDocument

Incase anyone is looking for it.

'Head Note' for want of a better phrase when I get a chance to properly read it.

Probably needs it's own thread. So Far Hardiman seems bang on the money as far as I'm concerned! This just made by evidence exam a lot easier :pac:

Caithfidhme

What happened to this thread

hullaballoo

People must have stopped committing crimes.

hullaballoo

I actually think it might serve this thread to be unstickied! I always think there's an association between sticky threads and just looking a bit too much like hard work.

Caithfidhme

Yes agreed Hullabaloo, creates that notion of having to trudge through dozens of posts!

Glad all crime has stopped, though