IESC 64
THE SUPREME COURT
IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924
IN THE MATTER OF AN APPEAL AGAINST SEVERITY OF SENTENCE TO THE COURT OF CRIMINAL APPEAL
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Applicant/AppellantJudgment of Mr. Justice Hardiman delivered the 8th day of October, 2002.
1. This is an appeal from the Court of Criminal Appeal pursuant to Section 29 of the Courts of Justice Act, 1924. On the 14th December, 2001 that Court certified that the following question is one of exceptional public importance:-
Background to this question.
“Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a court of trial, is it strictly limited to considering the state of facts existing at the date when the sentence was imposed or may it receive evidence relating to events or facts subsequently occurring relating to the behaviour of the Applicant, his state of health or otherwise, which might be relevant if the Court were itself deciding on the correct sentence?”
2. On the 8th December, 1999 the Defendant/Appellant pleaded guilty to the offence of forgery contrary to Section 2 of the Forgery Act, 1913, at the Dublin Circuit Criminal Court (Her Honour Judge Dunne). The charge related to the events of the 25th November, 1996. On that date gardaí on surveillance duty observed the Defendant in South Richmond Street, Dublin with another man. The two went into a shop where they were joined by a third man. The Defendant asked this man to write the name “Oliver McDonald” several times on a piece of paper. He also got him to write out the figure “£45,000” several times. The Defendant then produced a blank bank draft to the man and instructed him as how to fill it out. This was a stolen draft which had been taken in the course of an armed robbery on the Bank of Ireland, Howth, on the 18th September, 1996. The draft was filled out in accordance with the accused’s instructions. The Gardaí then made themselves known and after some confusion the draft was found in the restaurant.
3. The accused was arrested and made no admissions while in custody. It transpired that he was, at the time of the offence, on bail on a charge of receiving stolen property.
4. It also transpired that he had in all thirteen previous convictions and that “the vast majority are forgery related”. It also emerged from the transcript that the charge of receiving stolen goods, in 1990, was eventually dealt with by the Dublin Circuit Criminal Court on the 14th January, 1998, by a five year suspended sentence. The present charge, relating to November 1996 was finalised in the Circuit Criminal Court in December, 1999, when a five year sentence was imposed.
5. As for the Defendant himself, it appears that he was 51 years of age in December, 1999. The undisputed evidence was that it was he who “masterminded these activities. from start to finish”. He was a father of a small child and, at the time of the hearing in the Circuit Court, had recently lost his mother. His plea of guilty was an extremely belated one: it was not offered until after the case had been sent to another court for trial and the learned trial judge remarked that “He has pleaded guilty to this particular offence at the last possible moment”. The only aspect of the facts which provided any ground for mitigation was the fact that he did, eventually, plead guilty, that apart from the receiving charge mentioned above he had no convictions for a considerable period of time and that no violence was involved in the offence, an observation which is probably true of forgery offences in general by their very nature.
6. The Defendant appealed this sentence to the Court of Criminal Appeal. The appeal was dismissed on the 25th July, 2001. The judgment of the Court on that occasion records that the propriety of the sentence of five years “is not challenged in itself in principle”. It appears from the judgment that the only point that was urged on behalf of the Appellant was that there was a “disproportionate discrepancy between the sentence imposed on the Appellant and the two other people involved in the event”. This point did not find favour with the Court of Criminal Appeal and was not relied on in this Court. The immediate background to the question now before us is set out in a further judgment of the Court of Criminal Appeal on the 14th December, 2001 as follows:-
7. The Court went on to refer to certain cases considered below and to certify the question set out above pursuant to Section 29 of the Courts of Justice Act, 1924.
“Testimonials or Certificates”.
8. The documents which the Court of Criminal Appeal refused to consider were all in the nature of testimonials or certificates. They were ten in number. The first eight included testimonials from a prison governor, the industrial manager of a prison, two teachers in the prison, another prison governor, a prison chaplain and a potential employer. The one on which most emphasis was placed was from the prison officer in charge of the catering department of Castlerea prison who said that the Applicant was “a keen team member of the catering group”, stated that he suffered “an obvious sense of shame” in respect of the effect his crime had on his partner and young child and expressed the view that the Appellant “appears to have taken responsibility for his wrong doing and is actively trying to make amends”.
9. Of the two certificates, one is from CERT confirming that in an “Introductory Vocational Skills” course, the Appellant had achieved the required standard in a variety of “personal skills” and one “practical skill”, Introduction to Gym Training.
10. Both sides made oral submissions on the hearing of this appeal and also provided written submissions.
11. On behalf of the Appellant Mr. Ciaran O’Loughlin SC made admirably focussed submissions. He first referred to the wording of the question emphasising the phrase “ Is the Court strictly limited”. He submitted that there was authority for the proposition that, in exceptional circumstances, the Court of Criminal could have regard to events or facts occurring subsequent to the prisoner’s conviction. In this connection he cited in particular the cases of DPP v. MS  2IR 591 and DPP v. Jethi and Syngh (Court of Criminal Appeal, unreported, 7th February 2000). These cases demonstrated, he said, that the Court was not “strictly” or absolutely precluded from having regard to such evidence: therefore the question should be answered in the negative.
12. Mr. O’Loughlin went on to submit that if a specific source for the jurisdiction to have regard to evidence of the relevant kind was needed, it could be found in Section 3(3) of the Criminal Procedure Act, 1993.
13. Mr. O’Loughlin further submitted that the test for the admissibility of new evidence of the kind in question here was: is the material such that, had it been available at the trial, it would have influenced the trial judge in imposing sentence. Putting it another way, Mr. O’Loughlin submitted, if the Court of Criminal Appeal thinks “Had the trial judge known of this it would have influenced his sentence”, the Court can do what it thinks the trial judge would have done in light of the new evidence.
14. Mr. O’Loughlin referred to certain cases relating to the principles to be applied by the Court of Criminal Appeal in the case of a review of sentence sought by the DPP on the ground of alleged undue leniency. In particular he referred to DPP v. Egan  2ILRM 289. This establishes that, if the Court believes that the sentence is unduly lenient and it proceeds to impose the sentence it considers appropriate, the latter is to be assessed in light of the circumstances prevailing at the time when the application for review is heard, and not those prevailing at the time the original sentence was imposed. By parity of reasoning, it is submitted, the same approach should be taken on a defendant’s appeal against severity of sentence.
15. More generally, Mr. O’Loughlin referred to the statutory constitution of the Court of Criminal Appeal. He submitted that the phrase “any other sufficient ground of appeal”, which appears in Section 32 of the Courts of Justice Act, 1924 gives the Court power to intervene to alter a sentence on the basis of the prisoner’s post incarceration behaviour. He lays still further emphasis on Section 13 of the same Act:-
16. A similar phrase occurs in Section 3(3) of the 1993 Act.
“The Court of Criminal Appeal shall be a superior court of record, and shall for the purposes and subject to the provisions of this Act, have full power to determine any questions necessary to be determined for the purpose of doing justice in the case before it”.
17. Mr. O’Loughlin submitted that the reference to “doing justice” was quite broad enough to encompass the consideration of evidence of the sort in question here. He relied in particular on the MS case and submitted that the statutory provisions had been correctly interpreted there.
18. On behalf of the Director, Mr. Thomas O’Connell SC submitted that the jurisdiction of the Court of Criminal Appeal on an appeal against the severity of sentence was limited to the question of whether the sentence actually imposed was, or was not, wrong in principle. Unless the Court came to the conclusion that the sentence was wrong in principle it had no power to alter it, whether by increase or reduction, merely on the grounds that the Court itself would have imposed a different sentence had it been dealing with the matter at first instance. He relied in particular on The State (Woods) v. The Attorney General and Kelly  IR 385 at 409:-
19. Mr. O’Connell referred to a number of cases, starting with R v. Sidlow  1 Cr. App. R. 28 to show that, from the very beginning of the history of the Court of Criminal Appeal in the United Kingdom the position in law had been that “The Court would not interfere with a sentence unless it was apparent that the Judge at the trial had proceeded upon wrong principles, or given undue weight to some of the facts proved in evidence. It was not possible to allow appeals because individual members of the Court might have inflicted a different sentence, more or less severe”.
“The Court of Criminal Appeal is the creature of statute and is a court of limited jurisdiction. The present Court of Criminal Appeal was established by Section 3 of the Courts (Establishment and Constitution) Act, 1961. Section 12(1) of the Courts (Supplemental Provisions) Act, 1961 made it a Superior Court of Record and provided that it shall have full power for the purposes of that Act and of the enactments which are applied by Section 48 of that Act to determine any question necessary to be determined for the purpose of doing justice in the case before it. It may be emphasised that the powers conferred on the Court of Criminal Appeal are exercisable in respect of ‘the case before the Court’ .”
20. He emphasised that the nature of the appeal which the Court of Criminal Appeal has jurisdiction to conduct has been the same since its inception in 1924. The relevant statutory provision now is Section 33 of the Courts of Justice Act, 1924 as inserted by Section 7 of the Criminal Justice (Miscellaneous Provisions) Act, 1997. This provides as follows:-
21. Mr. O’Connell submitted that, on the authorities, “new or additional evidence” relates to an issue which was before the Court of Trial, the decision on which can therefore be a proper subject matter for appeal. This, he says, is borne out by a consideration of the jurisprudence of the Court of Criminal Appeal in such cases as The People v. Kearns  IR 385 and equally in the cases on fresh evidence in civil appeals such as Lynagh v. Macklin  IR 180.
“33(1) The appeal, in case such certificate or leave to appeal is granted, shall be heard and determined by the Court of Criminal Appeal on:-
(a) A record of the proceedings of the trial and on a transcript thereof verified by the Judge before whom the case was tried and
(b) Where the trial judge is of opinion that the record or transcript referred to in paragraph (a) of this subsection does not reflect what took place during the trial, a report by him as to the defects which he considers such record or transcript contains, with power to the Court to hear new or additional evidence, and to refer any matter for report by the said trial judge.
22. In relation to evidence of matters arising after sentence Mr. O’Connell relied heavily on what he said was the case most clearly in point, DPP v. Walsh  3 Frewen 248 at page 250. In that case Finlay C.J. stated:-
23. Mr. O’Connell also pointed out that pursuant to Rule 38 of the Prison Rules the Applicant will attract remission at the rate of one quarter of the sentence in respect of good behaviour while in prison. Accordingly, it would be wrong and inconsistent with the remission system to give him further credit for good behaviour in prison by way of reduction of the judicially determined sentence.
“There are matters set out in a statement from the Applicant and repeated and pointed out by Mr. Sorahan here in his submission on behalf of the Applicant which would call for or raise the question of leniency and mercy towards this man in all the circumstances that have happened. There is a very clear division between the functions of this Court which is to review sentences imposed on the basis on which they were imposed and to see if an error has occurred and the function of the Executive which is to deal with questions of leniency and mercy. In particular, this is highlighted by the fact that one of the matters which Mr. Sorohan has stated, which I am sure is correct, is that this man has been an ideal or model prisoner and has not given any trouble in prison and he is very anxious to reform. All these cases are sad and the Court must view that, but would point out that that would be a matter properly to be included if a petition were brought to the Minister and it might well be that the Minister would see fit to alleviate the sentence that has been imposed but it is not part of the function of this Court, nor should it view it, in the view of the Court”.
24. He also relied upon the case of DPP v. Finn  2 IR 25 at pages 45 - 46 in the support of the proposition that, by reason of the constitutionally mandated separation of powers (mandated generally by Article 6 of the Constitution and in respect of the commutation or remission of sentences by Article 13.6), no court can exercise what amounts in all but name to a power of commutation or remission.
25. Mr. O’Connell also drew attention to a number of Australian cases. He said they establish the proposition that evidence of matters occurring after a sentence which are said to make the sentence excessive, is not admissible. The only exception to this rule permitted by the cases cited is where fresh evidence would throw a different light on circumstances which formed part of the sentencing decision at first instance. Typically this would be medical evidence which disclosed, for example, that the physical or mental condition of a defendant was in fact more parlous than was believed at the time he was sentenced. The most relevant of these cases is The Queen v. Babic  2VR 79.
26. Finally and perhaps most fundamentally Mr. O’Connell strongly opposed the proposition that general words such as “doing justice” had the effect of permitting the Court to act in the manner proposed. Such general words are to be interpreted, he submitted, in the context of, and subject to the limitations of, the jurisdiction of the Court in appeals against sentence, described above.
Nature of the Court of Criminal Appeal’s jurisdiction.
27. It is trite, but fundamental, to recall that the jurisdiction of the Court of Criminal Appeal is an “appellate” jurisdiction. Moreover, as was said in the case of Woods and elsewhere, the jurisdiction is a statutory one: the Court is entirely a creature of statute and has no other jurisdiction. The manner of exercising this jurisdiction is, by virtue of Section 33 of the 1924 Act, primarily on the note or record of the hearing in the Court below and not by way of oral rehearing as is the case in appeals from the District Court to the Circuit Court or from the Circuit Court to the High Court in civil matters. Accordingly, the members of the Court of Criminal Appeal cannot place themselves in the position of the trial judge who hears and sees the witnesses but, in the nature of their jurisdiction, can only assess whether the decision against which appeal is taken was correct in principle.
28. In my view, the provisions in relation to fresh evidence, must be read in the context of the nature of the Court’s jurisdiction in general. The power to admit fresh evidence has historically been interpreted in this way. For example, in DPP v. Kearns cited above, the Defendant pleaded guilty to what is colloquially referred to as statutory rape. In the hearing which preceded sentence his counsel was precluded by the trial judge from cross-examining a garda witness along the lines that the victim of the offence appeared to be over the statutory age. The Court of Criminal Appeal held that the judge was wrong in foreclosing this line of cross-examination and heard the evidence itself.
29. The Supreme Court, like the Court of Criminal Appeal, does not ordinarily hear fresh evidence but has power to do so under Order 58 Rule 8 of the Rules of the Superior Courts. The way in which this jurisdiction is exercised is illustrated in such cases as Lynagh v. Macklin  IR 180 and Murphy v. Minister for Defence  2IR 161. Finlay C.J. in the second of these cases stated the matters which an appellant seeking to introduce further evidence must show as follows:-
30. The first and most basic of these requirements, that the evidence must have been in existence at the time of the trial, in my view applies to an appeal to the Court of Criminal Appeal also and arises from the fundamental nature of an appeal on the note as opposed to an appeal by oral rehearing. This requirement may not apply to a “new or newly discovered” fact relied upon for the purpose of an appeal pursuant to Section 2 of the Criminal Procedure Act, 1993. That Section however has no application in the present case.
“(1) The evidence sought to be adduced must have been in existence at the time of the trial and must have been such that it could not have been obtained with the reasonable diligence for use at the trial.
(2) The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.
(3) The evidence must be such as is presumably to be believed or is apparently credible, though it need not be incontrovertible”.
31. Thus, in the Murphy case, the Supreme Court admitted fresh evidence in the form of a circular letter from the army’s medical advisers suggesting that the Plaintiff should have been medically assessed before being subjected to fitness tests which, he alleged, had caused him injury.
32. The cases cited are entirely consistent with the Australian materials on which Mr. O’Connell relied. The principle in Babic, cited above, was summarised by Winneke P. in the later case of ER v. WEF  2VR 385 as follows:-
33. The facts of the case last cited emphasise both the rarity of any exception and its basis in principle. The Appellant was known, at the time of sentence, to be in a state of ill health and to suffer from diabetes. Subsequently, further medical examination suggested that his condition was much more acute and less stable than had been believed at the time he was sentenced and, indeed, that he had a prognosis of limited life span. The contrast with the facts of the present case scarcely requires emphasis. The principle on which the Australian court had regard to the new evidence was that it related to events which “can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of the sentence”.
“In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy, and not a matter for an appellate court”.
34. Those exercises of the jurisdiction are different in principle from what is proposed here, which is that the Court should hear evidence about a matter - the post sentence behaviour of the accused - which not only was not, but could not have been, before the trial court in any form. I say “hear evidence” because, prima facie, evidence of this sort if admissible at all would require to be heard orally after an application in proper form to hear new evidence had been made. This step was not taken in the present case.
35. The new material is, however, material of a sort “which might be relevant if the Court were itself deciding on the correct sentence”, to quote the words of the certified question. That, however, is precisely what the Court is not doing. The Court of Criminal Appeal would itself impose an appropriate sentence only after it had decided that the original sentence was wrong in principle for excessive severity or (on the DPP’s application) for undue leniency. One or other of these findings is a condition precedent to the jurisdiction of the Court of Criminal Appeal itself to impose an appropriate sentence. It appears to me that confusion has arisen in the Applicant’s submission as a result of a failure to distinguish between the function of the Court in deciding whether or not a sentence is wrong in principle on the one hand and, if it is, in subsequently imposing an appropriate sentence on the other.
36. In terms of the statutory jurisdiction of the Court, the Applicant’s approach fails to give weight to the fact that before exercising the jurisdiction conferred by Section 34 of the Act of 1924, substituted by Section 3 of the Criminal Procedure Act, 1993, to “impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the court of trial” the Court must first have quashed the original sentence. The alternative sentence which it might then impose would be imposed “in place of” the original sentence. The Section does not, in my view, purport in any way to change the basis on which the Court approaches the question of whether or not the original sentence should be quashed; this requires that the sentence be wrong in principle. Sub-section (3) of the new Section 34 does indeed confer significant powers on the Court but the exercise of these powers is subject to a condition precedent that the new material be relevant to the particular application the Court has before it. The material here is explicitly agreed not to relate to whether the sentence originally imposed was wrong in principle, but to arise only “ad misericordiam” and cannot therefore be relevant to a decision as to whether the sentence should be quashed.
37. I would add that I do not consider either that the Section is ambiguous in any respect or that it is a penal section requiring any unusual approach to its construction. It is a section conferring a jurisdiction on a court where jurisdiction is entirely statutory and in my view falls to be construed in accordance with the ordinary canons.
38. Although the case of DPP v. Egan, cited above, was the subject of extensive oral and written submissions, these did not focus on the part of the judgment most relevant for present purposes. At page 307 of the report it is said:-
Application of the above principles.
“ The function of this Court (The Court of Criminal Appeal) on an application by the Director of Public Prosecutions to review a sentence on the ground of undue leniency is quite different from that performed by the trial court in imposing a sentence in the first instance. Specifically, the Court has no power to impose a greater sentence than the trial judge’s purely because the members of the Court of Criminal Appeal, if they had been dealing with the matter at first instance, would have thought a more severe sentence appropriate. This precisely mirrors the principle on which the Court of Criminal Appeal deals with an appeal by the Defendant against severity of sentence. In each case the Court is precluded from simply substituting its own judgment for that of the trial judge. In a defendant’s appeal the Court cannot reduce the sentence simply because its members would have imposed a lighter one had they been dealing with the matter at first instance. An error of principle is required.”
39. It appears to me, in light of the principles summarised above, that the Appellant is attempting to introduce at the “error in principle” stage of the appeal material which would be relevant (if at all) only at the “appropriate sentence” stage. He will not get to this stage unless he establishes an error in principle. Moreover, that error must be in the approach actually adopted by the learned trial judge to sentencing. By definition, this approach could not possibly include facts which were not in existence at the relevant time.
40. It is clear from the judgment of the Court of Criminal Appeal dismissing the Appellant’s appeal in this case that the only error of principle alleged to exist in the learned trial judge’s approach was a failure to impose a sentence more in proportion to that received by the co-accused. No appeal has been taken against the finding of the Court of Criminal Appeal that no such error in principle occurred. The evidential material to which the present appeal relates was sought to be introduced entirely ad misericordiam. It is in that context, and no other, that it is now contended that the Court of Criminal Appeal erred in omitting to consider the material.
41. Since the material in question was wholly directed at evoking the mercy or leniency of the Court of Criminal Appeal, it could not be said to have any bearing whatever on the question of whether the learned trial judge’s sentence was erroneous in principle. Since that was the only issue before the Court of Criminal Appeal it follows that that Court was entirely correct to reject the evidence since it failed to meet the first and most basic test of admissibility, which is relevance to the matter in issue.
42. In the citation from Finlay C.J. above, it is clearly laid down that matters relating to mercy and leniency, sought on a basis of fact which was not and could not have been opened to the trial court, were not relevant to the Court of Criminal Appeal in addressing whether there has been an error of principle. Equally, it is pointed out that such matters may be very relevant to the Executive or any body advising it, in relation to the exercise of the prerogative of remission or commutation of sentence. On the hearing of this appeal Mr. O’Loughlin SC did not dispute that the Executive was entitled to consider all of the matters sought to be put before the Court of Criminal Appeal, but suggested that it was open to the Court to consider them as well. I believe that this confuses the role of the Court and of the Executive in precisely the manner criticised by Finlay C.J. As was said by Denham J. in DPP v. KK (Court of Criminal Appeal unreported 17th October, 2001):-
43. I would only add that, in my view, such matters are not only best dealt with through the Executive but can only be dealt with in that way.
“ Policy as to the reintegration of offenders in society is best dealt with through Executive bodies who have the facility to obtain information and to monitor the situation”.
44. If it were otherwise, and it was open to a sentenced prisoner to ask a court to review a sentence which is not wrong in principle on the basis of how he has got on in prison, that would be a form of review overlapping to an unacceptable degree the Executive power of commutation and remission. This power must be regarded as an exclusive one unless it is conferred elsewhere by law.
45. It is true that in cases such as MS and Jethi the Court of Criminal Appeal has appeared to take into account matters arising subsequent to sentencing. It is not apparent to me from the reports that the Court had jurisdiction to do so. In the first case, in particular, it was expressly found that the trial judge had not erred in principle and it appears to me that that should have been the end of the matter. There can be no doubt that in both cases there were excellent reasons suggesting an earlier release than originally envisaged, the welfare of the Appellant and of society as a whole in the first case and extraordinary personal features suggesting that mercy be extended in the second. But both of these matters, it appears to me, are for the Executive.
46. Indeed, in MS a contention to that effect was made on behalf of the Director of Public Prosecutions and was answered by the statement that “while the Executive had power to grant remission it is well known that this is not given to sexual offenders”. If there were in existence a rigid policy whereby the Executive precluded itself from considering even the most extreme circumstances suggesting the early release of an offender, simply on the basis that his offence belonged to a particular category, that is a matter which might be agitated by way of judicial review: see Corish v. The Minister for Justice and Ors(High Court unreported O’Neill J. 13th January, 2000), in the context of temporary release. But it has not been suggested that any such policy exists in relation to offences of forgery, and even if it did, that could not be a reason for implying a jurisdiction in a court that is entirely a creature of statute, which it does not otherwise possess.
47. I would answer the certified question of the Court of Criminal Appeal as follows:-
48. The position will be different if the stage is reached where the Court has allowed an appeal against sentence, and quashed the sentence originally imposed. It may then proceed, in the exercise of its statutory power, to substitute an appropriate sentence of its own. In doing so the Court is entitled to consider all relevant factors then existing and properly before it, including matters arising subsequent to the original sentence. This is precisely because the Court is then “itself deciding on the correct sentence”, in the words of the certified question. This will not arise unless and until the original sentence has been found to be wrong in principle. In this context, the approach of the Court in imposing an appropriate sentence is similar to that adopted at the same stage of a DPP’s application for review on the ground of undue leniency. A prisoner can never be regarded as more constrained in the matters he can urge in relation to sentence than the Director.
“Where the Court of Criminal Appeal is hearing an appeal or an application for leave to appeal against the severity of a sentence imposed by a Court of trial, it is strictly limited to considering the state of facts existing at the date when the sentence was imposed and it may not receive evidence in relation to events or facts subsequently occurring relating to the behaviour of the Applicant, his state of health or otherwise which might be relevant if the Court were itself deciding on the correct sentence”.
49. It is important that the precise nature of the jurisdiction of the Court of Criminal Appeal be clearly understood and clearly explained by practitioners to Applicants and Appellants.