Director of Public Prosecutions v Carter

Factual and Procedural Background

This opinion concerns a consultative case stated by District Judge Watkin regarding the interpretation and application of section 99(9) of the Criminal Justice Act, 2006 as amended. The issue arises from the process by which a suspended sentence may be activated following a breach of the suspension terms.

The Defendant was sentenced by Judge Watkin in January 2011 to two suspended sentences on separate dates. In March 2011, the Defendant committed new offences ("breach offences") and was sent forward for trial to the Circuit Criminal Court. After guilty pleas in January 2012, the Defendant was remanded for sentencing in March 2012. The Circuit Court judge, noting the breach offences occurred during the suspension period, remanded the Defendant to the District Court for a hearing under section 99(9) of the Act, but for a date one week later rather than the "next sitting" as mandated.

At the District Court hearing on 2 April 2012, a submission was made that the remand did not comply with the statutory requirement to remand to the "next sitting" of the court that imposed the original sentence. The presiding District Judge declined jurisdiction and remanded the Defendant back to Judge Watkin. On 17 April 2012, Judge Watkin heard submissions on jurisdiction and subsequently ruled that the remand to a sitting one week later was not in compliance with the statute but that the Defendant had waived this requirement by not objecting. The matter was then referred back to Judge Watkin for determination of specific legal questions.

Legal Issues Presented

1. Whether section 99(9) of the Criminal Justice Act, 2006 requires that the Defendant be remanded to the very next sitting of the court that made the original suspended sentence order when the court is the District Court sitting in the Dublin Metropolitan District.
2. If so, whether failure to remand the Defendant to the next sitting deprives the court of jurisdiction to deal with the hearing under section 99(10) of the Act.
3. If so, whether a Defendant can consent to waive the requirement to be remanded to the next sitting, thereby conferring jurisdiction on the court.
4. If so, whether such consent can be implied by the Defendant's failure to object to a longer remand period.

Arguments of the Parties

Prosecutor's Arguments

• The purpose of section 99 is to provide a statutory mechanism to revoke suspended sentences before sentencing for breach offences.
• The phrase "next sitting" should be interpreted as directory, not mandatory, as the revocation process ordinarily does not occur on the day of remand.
• Authorities such as State (Elm Developments) v An Bord Pleanala and Monaghan UDC v Alf-A-Bet Promotions support a directory interpretation where non-compliance does not affect the substance of the statute.
• Citing Harvey v District Judge Leonard, the remanding judge has discretion as to how to comply with section 99(9) despite the absence of formal rules.
• Relying on DPP (Ivers) v Murphy, criminal procedure legislation may be given a purposive interpretation, and an illegality in process does not necessarily affect jurisdiction.
• The failure to object to the remand period is relevant to demonstrating acquiescence and waiving any procedural irregularity.
• A remand in custody for a "reasonable" time would not be unlawful, indicating flexibility in interpreting "next sitting".

Defendant's Arguments

• The issue is one of statutory interpretation, and the legislative intent behind section 99(9) is clear and unambiguous, requiring strict compliance.
• The cardinal rule is to construe Acts of Parliament according to their precise and natural meaning, as supported by Howard v Commissioners of Public Works citing Direct United States Cable Company v Anglo American Telegraph Company.
• The Court of Criminal Appeal decision in People (DPP) v Devine confirms that the District Court has no jurisdiction to impose sentence unless the remand complies strictly with section 99(9).
• The requirement to bring the Defendant before a "court" does not require the same judge but does require a valid remand order under subsection (9) for jurisdiction under subsection (10) to arise.
• The provision must be construed as mandatory and not directory, particularly because it contemplates remand in custody and is penal in nature.
• The argument that jurisdiction can exist despite procedural defects, based on Ivers and Killeen, conflicts with the statutory step-by-step procedure governing suspended sentences.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State (Elm Developments) v An Bord Pleanala [1981] I.L.R.M. 108	Legislative requirements may be directory rather than mandatory where not central to the statute's purpose.	Referenced by prosecutor to argue "next sitting" is directory.
Monaghan UDC v Alf-A-Bet Promotions [1980] I.L.R.M. 64	Similar principle on directory versus mandatory legislative provisions.	Referenced by prosecutor for directory interpretation.
Harvey v District Judge Leonard [2008] IEHC 209	Judge making remand orders has discretion in procedure despite lack of formal rules.	Supports prosecutor's argument on procedural flexibility.
DPP (Ivers) v Murphy [1999] 1 IR 98	Criminal procedure legislation may be purposively interpreted; procedural irregularities do not necessarily affect jurisdiction.	Prosecutor relied on this to argue for purposive interpretation and jurisdiction despite irregularity.
Killeen v Director of Public Prosecutions [1997] 3 I.R. 218	Jurisdiction of District Court unaffected by illegality in bringing accused before it, except in serious constitutional violations.	Quoted in Ivers and cited by prosecutor on jurisdiction despite process defects.
Howard v Commissioners of Public Works [1994] 1 I.R. 101	Acts of Parliament must be construed according to clear and unambiguous language.	Defendant relied on this principle for strict statutory interpretation.
People (DPP) v Devine [2011] IECCA 67	District Court lacks jurisdiction to impose sentence without compliance with section 99(9); statutory procedure is mandatory.	Primary authority for holding that jurisdiction depends on valid remand under section 99(9).
O'Brien v Special Criminal Court [2007] IESC 45	Jurisdiction depends on lawful bringing of accused; breach of statutory timing requirement can deprive court of jurisdiction.	Used to illustrate mandatory nature of statutory requirements.
Broe v DPP [2009] IEHC 549	Delay in charging breached statutory obligation but did not deprive court of jurisdiction due to absence of rights breach.	Shows nuanced approach to jurisdiction and procedural breaches.
DPP v Bradley [2000] 1 IR 420	Illegal arrest process does not necessarily affect court jurisdiction if accused is present.	Supports the principle that jurisdiction may survive procedural defects.

Court's Reasoning and Analysis

The court considered whether the requirement in section 99(9) to remand the Defendant to the "next sitting" of the court that made the original suspended sentence order is mandatory or directory. It concluded that the provision is mandatory, reasoning that if the Circuit Court judge had remanded the Defendant in custody beyond the next sitting, an immediate High Court application under constitutional grounds would have been expected. The court rejected the notion that the statute confers discretion to remand for a "reasonable" time.

The court acknowledged tension between the traditional common law principle that jurisdiction is generally unaffected by irregularities in how a Defendant is brought before the court (as seen in Ivers and Killeen) and the stricter statutory interpretation mandated by Devine, which requires strict compliance with the statutory procedure for suspended sentences. The court favored the latter approach, emphasizing that the statutory power to revoke a suspended sentence under subsection (10) depends on a valid remand order under subsection (9).

The court found that the Defendant’s failure to object to the one-week remand did not amount to consent or waiver of the statutory requirement, thus acquiescence was irrelevant to jurisdiction. It noted the primary obligation to avoid error lies with the prosecution, but recognized that neither the judge nor counsel identified the irregularity at the time.

Accordingly, the court answered the four questions posed: (1) the remand must be to the very next sitting; (2) failure to comply deprives the court of jurisdiction; (3) the question of waiver does not arise; and (4) consent cannot be implied from silence or failure to object.

Holding and Implications

The court held as follows:

• The requirement in section 99(9) to remand a Defendant to the next sitting of the court that made the original suspended sentence order is mandatory and not directory.
• Failure to comply with this requirement deprives the court of jurisdiction to deal with the matter under section 99(10).
• The Defendant cannot be deemed to have waived this requirement by failing to object.

The immediate effect is that the District Court lacked jurisdiction to proceed with revocation of the suspended sentence in this case due to non-compliance with the statutory remand procedure. No broader new legal principles were established beyond affirming the strict statutory interpretation of section 99(9) and its jurisdictional consequences as established by prior appellate authority.