Superior Court Decisions for Circuit Practice
Gerard Groarke BL
Introduction
In this paper I propose to look at a smörgåsbord of recent Superior Court decisions dealing
with legal and procedural issues that arise frequently in Circuit practice. I will be hoping that
I do not trespass into any of the topics that the other speakers will be dealing with!
Section 99 Criminal Justice Act 2006
This section deals with suspended sentences and places the power to impose suspended
sentences on a statutory footing. The section has already been amended on a number of
occasions and this in itself has resulted in some confusion when applications to revoke come
before a Court. The section, in its current form, reads as follows (I am only reproducing
those subsections that are directly relevant to this discussion):(1) Where a person is sentenced to a term of imprisonment (other than a mandatory
term of imprisonment) by a court in respect of an offence, that court may make an
order suspending the execution of the sentence in whole or in part, subject to the
person entering into a recognisance to comply with the conditions of, or imposed in
relation to, the order.
(9) Where a person to whom an order under subsection (1) applies is, during the
period of suspension of the sentence concerned, convicted of an offence, being an
offence committed after the making of the order under subsection (1), the court
before which proceedings for the offence were brought shall, before imposing
sentence for that offence, remand the person in custody or on bail to the next sitting
of the court that made the said order.
(10) A court to which a person has been remanded under subsection (9) shall revoke
the order under subsection (1) unless it considers that the revocation of that order
would be unjust in all the circumstances of the case, and where the court revokes
that order, the person shall be required to serve the entire of the sentence of
imprisonment originally imposed by the court, or such part of the sentence as the
court considers just having regard to all of the circumstances of the case, less any
period of that sentence already served in prison and any period spent in custody
(other than a period [spent in custody by the person]1 in respect of an offence
referred to in subsection (9)) pending the revocation of the said order.
Sub-section (9) therefore requires that both the offence and the conviction take place
during the period of the suspended sentence. This is a marked change from the first
iteration of the sub-section, which read as follows:1
Amendment effected by s.60(b) Criminal Justice Act 2007.
1
(9) Where a person to whom an order under subsection (1) applies is, during the
period of suspension of the sentence concerned, convicted of an offence, the court
before which proceedings for the offence were brought shall, after imposing
sentence for that offence, remand the person in custody or on bail to the next sitting
of the court that made the said order.
It can be seen that, previously, all that was required was that the conviction be recorded
during the period of the suspended sentence. The obvious problem with this arrangement
was that persons could be convicted of offences which had been committed prior to the
imposition of the suspended sentence. This went against one of the bases of a suspended
sentence, which is to encourage the subject of the suspended sentence to ‘go straight’ and
stay out of trouble. On the first enactment of s.99(9), a person could ‘go straight’ on the
imposition of a suspended sentence, and lead an exemplary trouble free life, but still have
the suspended sentence activated by reason of prior criminal behaviour. The amendment to
this aspect of the section was effected by Section 51 of the Criminal Justice (Miscellaneous
Provisions) Act 2009.
You may also have noticed that subsection (9) has been amended to change the stage of
proceedings at which a person is remanded back to the court which imposed the suspended
sentence. In its first iteration the section provided that a person be remanded to the court
which imposed the suspended sentence after having been sentenced in the court of the
new conviction. It now provides (following amendment by Section 60 of the Criminal Justice
Act 2007) that the remand occur before sentence is imposed in the court of new conviction.
It is not clear why the amendment occurred but it may well have been to ensure
proportionality in the total sentence the person ended up subject to (in circumstances
where, if a suspended sentence is activated, the sentence imposed by the court of new
conviction is to run consecutively to the activated suspended sentence). Section 99(9) was
thus amended by Section 60 of the Criminal Justice Act 2007 and by Section 51 of the
Criminal Justice (Miscellaneous Provisions) Act 2009.
The current position therefore is that the offence and the conviction must take place during
the period of the suspended sentence. There is anecdotal evidence of increased applications
for adjournments by practitioners who are buying time for their clients in order that their
suspended sentences might expire before they enter their plea!
The numerous amendments to Section 99 have given rise to a degree of confusion and to a
reasonably large number of moot applications being brought. One sees quite a few
applications brought where there has been a conviction during the period of the suspended
sentence but where it transpires that the offence was committed outside the period of the
suspension. At present there seems to be a practice of simply listing these applications
without the moving party being required to file or deliver any documentation setting out
the basis for the application. Respondents are required to attend Court and sometimes
neither they nor their legal representatives have any advance notice of the basis for the
application. It is my own view that a lot of time (and money) could be saved if applications
2
were based on some form of notice, in order that the respondent’s representatives could
cut off invalid applications at the pass.
As an example of the confusion which has arisen, see the case of D.P.P. v Robert Devine
[2011] IECCA 67. Mr. Devine was given a two year suspended sentence by the Court of
Criminal Appeal on 10th December 2007. On 22nd April 2008 (during the period of the
suspended sentence) Mr. Devine appeared before Clonmel District Court and pleaded guilty
to ten offences, all committed during the period of the suspension. The District judge
sentenced Mr. Devine to three months imprisonment and remanded him to the CCA for the
CCA to consider whether to activate the suspended sentence.
Having reviewed the provisions of Section 99 of the Criminal Justice Act 2006, and the
amendments thereto (the full text of each is set out in the short judgment), the CCA found
that it had no jurisdiction to deal with the matter as Mr. Devine ought to have been
remanded to the CCA prior to being sentenced by the District judge.
“Both the Court of Criminal Appeal and the District Court are creatures of statute and
have such jurisdiction as is conferred upon them by statute. The District Court had no
jurisdiction to impose sentence on the respondent without first complying with
section 99(9) as amended. The effect of section 99(9) as amended on the jurisdiction
of this court is that its jurisdiction to revoke in whole or in part the suspended portion
of the respondent’s sentence arises only if the respondent is remanded to this court in
accordance with section 99(9). As the respondent has not been remanded to this
court in accordance with section 99(9) this court has no jurisdiction to carry out its
function envisaged under section 99(10) and (10A)2. For the jurisdiction of this court
to arise it would be necessary that the orders made by the District judge on the 22nd
April 2008 be set aside and an order in compliance with section 99(9) of the Criminal
Justice Act 2006 made remanding the respondent to this court.”
The practical effect, for Mr. Devine, was that he escaped the potential activation of the two
year sentence, and got away with a three month sentence instead. This was because, by the
time the decision was delivered by the CCA (19th October 2011), the suspended sentence
had long expired.
It is also interesting to note the CCA’s finding that the ‘District Court had no jurisdiction to
impose sentence on the respondent without first complying with section 99(9) as amended.’
--------------------------------An interesting question arises where a person who is the subject of a s.99(1) order is
convicted of an offence but feels that the conviction is unsafe and wishes to appeal. Should
that person be placed on risk of revocation of the s.99(1) order prior to the appeal being
disposed of?
2
Section 99(10A) was inserted by s.60(c) Criminal Justice Act 2007 and provides that:- ‘The court referred to in
subsection (10) shall remand the person concerned in custody or on bail to the next sitting of the court
referred to in subsection (9) for the purpose of that court imposing sentence on that person for the offence
referred to in that subsection.’
3
That precise question arose in Muntean v Judge Hamill & Another [2010] IEHC 391. The
applicant was remanded under Section 99 CJA 2006, following conviction, to a court that
had imposed a suspended sentence (in order for that court to consider whether to activate
the sentence). Prior to the hearing in that latter court, the applicant lodged an application
for a case stated, effectively contending that the conviction (which triggered the Section 99
referral) was unsafe. The judge who had presided over the conviction refused to state a case
on the basis that the prosecution had not yet been ‘determined’ (as the applicant had not
been sentenced).
The logic of the applicant’s argument seems clear – why should the applicant be on risk of
the activation of a suspended sentence if the conviction (upon which that activation is
based) is unsafe? The applicant was arguing for a right to contest the validity of the
conviction prior to the activation of the suspended sentence being considered.
McCarthy J. conducted a comprehensive review of dictionary definitions and applicable
caselaw and concluded that:“With respect to the argument advanced on behalf of the applicant that there was no
jurisdiction in the District Court to remand her to the court of first conviction due to the
lodgement and service of the application to state a case by virtue of the fact that such
application will, once an appropriate recognizance is entered into, operate as a stay, I think
that this must also fail. Since no appeal lies before sentence, by definition, a stay cannot
operate by virtue of a purported application which a court has no jurisdiction to entertain.”
It remains to be seen whether there is an alternative means of challenging such a state of
affairs.
Injuries Board (PIAB) Applications
It is not clear to me whether the Personal Injuries Assessment Board has formally been
renamed InjuriesBoard.ie, but it seems in practice that the names are used interchangeably.
As practitioners are well aware, time does not run for the purposes of the Statute of
Limitations while an application is with PIAB. Time stops running when the completed
application is made to PIAB and only starts to run again six months after an Authorisation
has issued from PIAB. Time only stops running as against those prospective defendants
named in the PIAB application form so it is as well to adopt a belt and braces approach
when deciding who to name in the application (this will also be of benefit at a later stage in
the proceedings if a defendant applies to join a third party and the plaintiff wishes to join
the proposed third party as a co-defendant).
Section 3(1) of the Statute of Limitations Amendment Act, 1991 as amended by section 7(A)
of the Civil Liability and Courts Act, 2004 provides that an action for personal injuries caused
by negligence shall not be brought after the expiration of two years from the date on which
the cause of action accrued or the date of knowledge if later.
4
Section 50 of the Personal Injuries Assessment Board Act, 2003 provides that:“In reckoning any period of time for the purposes of any limitation period in relation
to a relevant claim specified by the Statute of Limitations 1957 or the Statute of
Limitations (Amendment) Act, 1991, the period beginning on the making of an
Application under Section 11 in relation to the claim and ending six months from the
date of issue of an Authorisation… shall be disregarded.”
The question of the precise date on which time stops running was examined in Kiernan v J.
Brunkard Electrical Limited [2011] IEHC 448. The plaintiff’s solicitors faxed a PIAB application
on the 27th May 2009 and posted it on the same date. The fax on the 27th May 2009
included a copy of the cheque which was being enclosed in the post. That cheque was not
received by PIAB until the 29th May 2009. PIAB deemed the 29th May 2009 to be the date
that the application was made for the purposes of section 50. The two day difference was of
critical importance in determining whether the plaintiff’s proceedings were statute barred,
and the defendant brought a motion to strike out the proceedings on that basis.
The High Court examined the applicable legislation and found as follows:“Examining the ordinary meaning of ‘making of an application’ the essential
components were in place after the fax had been successfully delivered on the 27th
May 2007 (sic). The Board had a copy application form and a copy of the medical
report. The payment was not made but a copy of the cheque was in the Board’s
possession and the cheque was sent by registered post on the 27th May 2009 for the
appropriate fee. The Court comes to the conclusion the appropriate date in respect of
the making of a claim for the purposes of the Statute was the 27th May 2009.”
Practitioners should accordingly note that, where there is any degree of urgency regarding
the making of an application to PIAB, the act of faxing through the completed application
together with a copy cheque should be sufficient to ensure the application is deemed
complete on that date rather than on the later date when the Board actually receives the
cheque.
---------------------------------It is now well established that an application to join a co-defendant to a personal injuries
action will be refused unless the plaintiff has received authorisation from PIAB to institute
proceedings against that defendant.
In Cunningham v North Eastern Health Board & Anor. [2012] IEHC 190 the second
defendant, Monaghan County Council, sought an order striking out the proceedings against
it on the basis of the plaintiff’s failure to obtain an authorisation from PIAB to sue the
Council. Proceedings had been commenced against the NEHB on 19th February 2004 and the
Council was joined on the 9th November 2009. No authorisation had been obtained to sue
the Council.
5
The plaintiff’s counter-argument was two-fold. In the first instance, it was argued that the
proceedings were instituted prior to the coming into effect of the PIAB Act 2003
(Commencement) (No.2) Order 2004 and, as such, the provisions of the Act did not apply to
the proceedings. The plaintiff also argued that various declaratory reliefs were sought which
brought the claim outside the provisions of the PIAB Act (see s.4 and the definition of a ‘civil
action’), as well as damages in respect of breach of fiduciary duty, assault, trespass and
intentional infliction of emotional distress. A further factor was that the reason the Council
had not been sued at the outset is because, in a letter dated 26th August 2003, the NEHB
identified itself as the appropriate defendant in any contemplated proceedings.
The High Court referred to the decision in Sherry v Primark and Cleaning Services Limited
[2010] IEHC 66 where it was held that ‘the correct conclusion is that s.12(1) [of the PIAB Act
2003] operates as a jurisdictional rather than a procedural provision, so that a court does
not have jurisdiction to permit the commencement of proceedings in respect of a relevant
claim, until the foregoing procedures under the Act of 2003 have been exhausted.’ So, if the
provisions of the PIAB Act applied to this case, the Court had no jurisdiction to deal with the
case as against the Council.
In respect of the plaintiff’s submission that, because the proceedings against the NEHB were
instituted prior to the coming into force of the relevant provisions of the PIAB, the plaintiff
should not be required to obtain an authorisation, the Court referred to Allied Irish Coal
Supplies Ltd v Powell Duffryn International Fuels Ltd [1998] 2 IR 519. The Court decided, on
the basis of the dicta in that case, that the nature of the application to join the Council was
that of new proceedings, and that the PIAB Act applied even though the original
proceedings predated the Act.
Finally, on the question of whether the reliefs sought in the proceedings brought the
proceedings outside the ambit of the PIAB Act 2003, the Court found as follows:“Assault and trespass to the person in the context of these proceedings seem to be
included in the description of personal injury. Declarations do not but the question to
ask is do these non personal injuries claims constitute a claim for damages or other
relief in respect of any other cause of action. It seems to me that the entire nature of
this case is one of personal injury and no other cause of action is being referred to
when the plaintiff refers to trespass to the person or declarations. The plaintiff
alleges against Monaghan County Council that it owed him a duty which it breached
as a result whereof he sustained the personal injury of which he complains. It seems
to me that the other matters raised in the pleadings are just different ways of seeking
the same thing i.e. damages for personal injury.”
The claim against the Council was accordingly dismissed.
-----------------------------------
6
Section 44 of the Personal Injuries Assessment Board Act 2003 makes provision for the
Board to direct, where an assessment is accepted, that the Respondent(s) pay certain of the
Claimant’s fees or expenses. Section 44(3) of the 2003 Act provides that:‘Those fees or expenses are fees or expenses that, in the opinion of the Board, have
been reasonably and necessarily incurred by the claimant in complying with the
provisions of this Part or any rules under section 46 in relation to his or her relevant
claim.’
Plewa and Giniewicz -v- Personal Injuries Assessment Board [2011] IEHC 516
Mr. Plewa was a Polish national who suffered a skull fracture and other injuries with serious
sequelae in a Road Traffic Accident. He retained a firm of solicitors to process his claim to
PIAB. On being informed that the respondent had consented to an assessment of the claim,
the solicitors lodged a claim for fees and expenses pursuant to s.44. The basis for the claim
was that the Claimant was a foreign national, he had limited / no understanding of the
English language, he had no knowledge of the law of torts within this jurisdiction, and he did
not hold a law degree and was not a qualified barrister or solicitor with particular expertise
in the areas of personal injury litigation and the assessment of quantum for general
damages in relation thereto. The claim was for a total of €3145 made up of €50 (PIAB
Application Fee), €325 (cost of medical report submitted with application), €350 (translation
and interpreting), and €2420 (legal advice fee).
The Board allowed three of the four items, refusing the claim for legal fees. The Board was
of the view that ‘legal services and/or advice were not reasonably and necessarily required
by the Applicant for the purpose of complying with Part 2 of the 2003 Act and the Rules
made thereunder’.
Mr. Giniewicz was a Polish national who sustained an injury at work consisting of soft tissue
injuries. There was some question as to the identity of the entity or person who was Mr.
Giniewicz’s employer at the material time. He separately retained the same firm of solicitors
as Mr. Plewa (the firm had contacts with the Polish community in Ireland and also had a
polish legal executive on its staff who could also act as translator and interpreter). Again, on
being informed that the respondent had consented to an assessment of the claim, the
solicitors lodged a claim for fees and expenses pursuant to s.44. the same bases for the
claim were put forward as in Mr. Plewa’s case. The claim was for a total of €2141 made up
of €50 (PIAB Application Fee), €350 (cost of medical report submitted with application),
€350 (translation fee), €1331 (legal fee), and €60 (A&E invoice). The solicitors also enclosed
a fee note in which they set out, in a very general way, the work that had been carried out
on the file. Such a fee note had not been sent in Mr. Plewa’s case (nor was there any effort
in that case to itemise the work carried out).
The Board allowed the PIAB application fee, the medical fees, the translation fees, and €484
for legal fees. The Board stated that ‘The allowance of €400 plus V.A.T. in respect of legal
fees was made for legal services and / or advices provided in relation to the identification of
the party /parties potentially liable in respect of the alleged matters the subject of the
7
Applicant’s claim. Before making that decision, the assessors carefully considered all of the
documentation received by the Board in relation to the claim to ascertain whether there
were any aspects of the claim in respect of which legal services and / or advice was
reasonably and necessarily required by the Applicant for the purpose of complying with Part
2 of the 2003 Act and the Rules made thereunder. In that regard, the assessors noted that
four respondents had been identified in the application form, two of which were
employment agencies. The assessors considered that the identification of the party /parties
potentially liable in respect of the alleged matters the subject of the Applicant’s claim was a
matter in respect of which a claimant reasonably and necessarily, required legal service
and/or advice.’
The applicants brought judicial review proceedings in respect of the Board’s decision in
respect of legal fees. In response, the Board denied that judicial review was appropriate in
circumstances where it had complied with its legislative obligations and did so in a manner
consistent with fair procedures. The Court was constrained to looking at the procedure as a
whole and deciding on legality and fairness, rather than deciding whether the assessments
of legal fees were correct.
Both sides relied on O’Brien v Personal Injuries Assessment Board [2009] 3 IR 243 in support
of their positions. In that case the Supreme Court had stated that ‘[t]he provisions of s. 7(1)
[of the Act of 2003] are neither intended nor permitted to interfere with the entitlement of a
claimant to obtain legal advice, the only caveat being that under the legislation a claimant
does not have a right to be indemnified in respect of the costs of such advice. This clearly
includes such advice as may be sought in relation to the completion of ‘an application or in
relation to correspondence between a claimant and the board. The position concerning costs
appears to be subject to an unelaborated discretion vesting in the board to award costs.’ The
Supreme Court at the same time acknowledged that even personal injuries cases leading to
a small award ‘may be difficult, complex or complicated, for a myriad of reasons, and in
consequence be equally of immense importance legally and personally for a claimant.’
In conclusion, the High Court found that the applicants had not established any failure by
the respondent to comply with the Act of 2003 nor were they able to demonstrate any
breach of fair procedures, unlawful fettering of discretion, unreasonableness, objective bias
or other ground to invalidate the Board’s decisions. The application for judicial review was
dismissed.
The case highlights the difficulties that lie in (i) trying to obtain legal costs from PIAB, and (ii)
successfully challenging any decision of the Board on an application for legal costs. It is also
useful in setting down the principles applicable to the Board’s decision, which may better
inform practitioners in future in obtaining legal costs from the Board. It seems clear that a
detailed and itemised fee note is a good first step, together with such information as will
assist the Board in determining that legal advice was reasonably and necessarily required.
Criminal Legal Aid
8
It is a matter of some concern to me that there is no real transparency to the dealings that
criminal lawyers have with the legal aid board. Only this year did practitioners become
aware of the fact that there was a fee payable for consultations and also a fee payable for
time spent considering disclosure. Practitioners only have themselves to blame for not
discovering this entitlement sooner, but it begs the question of why there isn’t some
centralised representative body (Bar Council, Criminal Lawyers Association) that would
clarify the position for the benefit of all practitioners.
In addition, there can be inconsistency on the part of the legal aid board in respect of the
fees it pays out, and I can’t find anything on which to challenge this. I requested that the
legal aid board send me a schedule of fees payable on criminal matters and was informed,
by return, that same was available from Official Publications on payment of the appropriate
fee. This does not seem to me to be an appropriate attitude for the legal aid board to adopt
in respect of professional lawyers providing services to the board.
Practitioners who are not already aware of the entitlement to a fee for non-custody
consultations (other than on hearing dates) and for time spent considering disclosure should
accordingly note the entitlement. At the present time the legal aid board appears to be
paying out on historical claims going back to 2007 (it is not clear whether a cut-off point is
going to be introduced at any point). Anyone who wishes to have the relevant forms and
schedule of fees is welcome to give me their e-mail address (or, if you are reading this
paper, e-mail me at [email protected]) and I will send them on.
--------------------------------The grant or refusal of legal aid, and the basis for same, is another matter which has come
under scrutiny recently. In David Joyce -v- Judge Patrick Brady and the D.P.P. [2011] IESC 36
the Supreme Court considered the circumstances in which legal aid should be granted. The
dicta in this case should be of considerable use to solicitors appearing in the District Court
on behalf of clients who require legal aid.
There appears to be a practice across many (if not all) District Courts whereby, in
considering whether to grant legal aid, the District Judge will enquire of the prosecution
whether the accused person is ‘at risk’ (ie. likely to receive a sentence of imprisonment if
convicted).
In this case the accused was charged with theft of property to the value of €287.45 from a
shop at Strand Road, Portmarnock. On his solicitor’s application for legal aid, the District
Judge enquired whether Mr. Joyce was ‘at risk’ and was told by the prosecuting Garda that
‘while not trivial the charge facing the Applicant is by no means at the more serious end of
the scale’. The District Judge refused legal aid.
The applicant instituted judicial review proceedings aimed at quashing the decision to
refuse legal aid, and was unsuccessful in the High Court. He then appealed to the Supreme
Court.
9
The Supreme Court examined the specific offence with which the applicant was charged,
and the nature of the evidence against him. It looked at what type of knowledge would be
required if the applicant were to represent himself:“It is worth considering what would be involved in a professional defence of the case.
It would be necessary to know that the offence itself was indictable but could be tried
in the District Court but only with the agreement of the accused. It would be
necessary therefore to form some view as to which court would be the most desirable
from this accused’s point of view. If the matter was to proceed in the District Court it
would be also necessary to know that an application could be made for disclosure
which might inform the accused of the case which he had to meet. It might also be
necessary to know the extensive law that has grown up in recent years about the
significance of CCTV evidence, and more particularly, its absence. Careful
consideration would have to be paid, to both the legal and factual basis upon which
it could be said that the actions of the two women in the Spar shop could be
attributed to the applicant3. In addition to all of these steps a lawyer would have to
consider what witnesses would be available for the defence. Leaving aside the
statutory formula for one moment, if the sole question for a court was whether
anyone would think this was the sort of case that could be fairly defended by a
litigant on their own whilst suffering perhaps from that ‘fumbling incompetence that
may occur when an accused is precipitated into the public glare and alien complexity
of courtroom procedures, and is confronted with the might of a prosecution backed
by the State’ (State (Healy) v. Donoghue [1976] I.R. 325, 354), then there could in my
view, be only one correct answer.”
In allowing the appeal, the Supreme Court made the following statements, which ought to
be of use to lawyers applying for legal aid.
“It is quite true to say that a number of the more well know passages in the judgment
in State (Healy) v. Donoghue refer to the injustice created by a person whose liberty
was at risk of facing a prosecution without the assistance of legal aid, and it is also
clear that that case establishes the fact that not all criminal cases in the District Court
require that legal aid. However, it is flawed logic to seek to conclude that because a
person who was at risk of imprisonment must receive legal aid, it necessarily follows
that absent a risk of imprisonment (the assessment of which is always somewhat
speculative) that legal aid should not be provided. More importantly such a
conclusion is in my view inconsistent with the reasoning of the Court in State (Healy)
v. Donoghue.”
“The constitutional right … is … the right to a trial in due course of law guaranteed by
Article 38 of the Constitution. That is a right to a fair trial; it cannot be reduced to a
3
Two young women were also there. A manager saw the women putting items into their bags. When she
confronted one of them the applicant came over and abused her. It was alleged that the woman struggled to
free herself from the manager’s grasp with the assistance of the applicant, and in doing so deliberately
scratched the manager’s face including attempting to scratch her eye.
10
right not to be deprived of liberty without legal aid. There is something
fundamentally incongruous in the contention that a trial for theft would be unfair if
the accused was convicted (perhaps having pleaded guilty) and sent to jail for even a
day, but that a trial of the selfsame offence including the same facts and issue of law
would become fair if the accused were only fined or required to do community service
if convicted, even though such conviction would brand him a thief.”
Of course, it is rare for members of the Bar to be applying for legal aid (and, as I understand
it, it is only within a solicitor’s remit to do so), but your instructing solicitors will thank you
for bringing this information to their attention!
----------------------------------One often sees practitioners applying to the trial judge for an extension of the legal aid
certificate to cover an expert report (medical, psychiatric, engineering, forensic, etc.) or
such like. It is not strictly speaking necessary to do so (although the adoption of a belt and
braces approach is perhaps unsurprising given the reluctance of the legal aid board to pay
anything over and above the basic fee). Walsh on Criminal Procedure puts the matter as
follows:‘It will often happen, particularly in the more serious cases, that the adequate
preparation and conduct of the defence will require the services of experts in
disciplines and professions other than law. The usual subjects are: medicine,
psychiatry, psychology, forensic science, chemistry, biology, engineering, language
and foreign law. Where the defence lawyers deem the services of such experts
necessary for the defence, their expenses will normally be covered by free legal aid.
The same applies to the reasonable expenses incurred by witnesses in attending the
trial to give evidence.’4
---------------------------Finally, on the subject of legal aid, a recent decision from the Court of Appeal in Northern
Ireland has confirmed that practitioners are entitled to be paid legal aid at the rate
applicable when the legal aid certificate was granted. In the Irish context this decision would
only (I think) have persuasive effect, but it is certainly an issue to be remembered in light of
the ever decreasing legal aid rates in this jurisdiction.
In Finucane's (John) Application [2012] NICA 12 the Court held that:“We conclude that the argument put forward on behalf of the Bar Council on which
the respondent relies is correct. As a matter of straightforward interpretation Rule
3(2) clearly applies to “cases” in which a criminal aid certificate was granted prior to
13 April 2011. In such cases work done under a criminal aid certificate is payable
under the rules set out in the 2005 Rules.”
4
Walsh, Criminal Procedure, p.573
11
It is not immediately clear whether the legal aid regime in Northern Ireland bears any
resemblance to the regime here, but I am assuming that there are sufficient similarities to
render this decision of more than academic significance5.
Financial Fraud
There has been a marked increase in this type of prosecution in the recent past. This may
simply be a perception on my part, and it may simply be that the media is taking more
interest in these cases. The case of garlic importer Paul Begley has made headlines, as have
the recent cases of Fred Forsey in Waterford (sentenced on Wednesday last) and the
members of the Quinn family found guilty of contempt of court (penalty postponed
yesterday). A number of other cases of this type have been reported in the media.
The starting point in any consideration of the current law in this area is a case that was
decided by Judge Kennedy on the Midland Circuit – D.P.P. v Paul Murray [2012] IECCA 60.
The appellant, Mr. Murray, was charged with one count of having a false passport, contrary
to s. 20(1)(b) of the Passports Act 2008, and seventy four counts of theft, contrary to s. 4 of
the Criminal Justice (Theft and Fraud Offences) Act 2011. In respect of the theft offences Mr.
Murray stood charged that on various individual dates between 2006 and 2010 he
dishonestly appropriated sums of money ranging from €165.80 to €408.60 from the
Department of Social Protection. Over the last number of years the appellant conceived an
elaborate and sophisticated social welfare fraud, which was said by a very experienced
investigating officer to be the largest fraud of its kind uncovered to date. During this period
the appellant misappropriated sums of an aggregate marginally less than €249,000 by
making diverse claims for jobseeker’s allowance, disability allowance and supplementary
welfare allowance, in the name of nine different identities, including members of his own
family. The appellant had been living in Thailand and travelling back to Ireland, as necessary,
to make his claims. He had procured several sets of false identity documents (and medical
reports) which he would produce to whatever social welfare office he was making the claims
from. He was sentenced to three years on the false passport charge, a concurrent 6 months
on the first theft charge, and 24 consecutive sentences of six months each on the remaining
24 sample theft charges. This made a total of 12½ years.
The Court of Criminal Appeal stated that:“This appeal against the severity of a sentence imposed in respect of social welfare
fraud raises an issue of fundamental importance at a time of crisis for the public
finances. How should a sentencing court treat offenders who have defrauded the
public revenue by either engaging in unlawful tax evasion on the one hand or (as in
this case) by making false social welfare claims on the other? Given the intrinsic
importance of such questions for the public weal - not least at a time of financial
emergency - it seems appropriate that this Court should now give some general
guidance for future cases of this kind given that prosecutions for tax evasion and
5
I am grateful to Mark Tottenham BL (www.staredecisishibernia.com) for bringing this case to my attention.
12
welfare fraud are likely to be a more common feature of the criminal justice
landscape in the years ahead than may have been the case heretofore.”
The Court noted that there was no possibility of any substantial recompense, the appellant
having only repaid €11,151. The Court agreed with Stephen Byrne BL, for the appellant, that
the sentences imposed offended the totality principle, and substituted a sentence of nine
years with the final year suspended. The Court of Criminal Appeal commented as follows in
relation to financial crime:“[S]erious offences against the person - involving as they do the unlawful use of
violence - are nearly always in a separate category of offending, involving as they do
moral delinquency of a high order. […]In the case of offences involving public revenue
- such as taxation offences and social welfare fraud - the level of moral delinquency
will not often approach that particularly elevated level, although, of course, it can do
so. This is not at all to suggest that crimes involving the loss of public revenue are
somehow victimless crimes. Quite the contrary: offences of this kind strike at the
heart of the principles of equity, equality of treatment and social solidarity on which
the entire edifice of the taxation and social security systems lean. This is especially so
at a time of emergency so far as the public finances are concerned.”
“In the case of offences involving the public purse, deterrence plays an important
value in the sentencing process. In the context of frauds upon the public revenue,
deterrence is an important consideration, in that it is a necessary quid pro quo of
social solidarity. It gives an assurance to the hard-pressed bona fide taxpayer that
the State will both collect and distribute its revenue fairly and that those who defraud
will be sternly dealt with. Some element of severity is necessary to ensure that
taxpayers will pay the State what has been deemed by law to be properly due and to
assure those who rely on social security payments that public support for the needy
will not be undermined by an official culture which either turns a blind eye to those
who commit illegal tax evasion on the one hand, or social security fraud on the other,
or which is indifferent to these consequences.”
“We therefore suggest for the future guidance of sentencing courts that significant
and systematic frauds directed upon the public revenue - whether illegal tax evasion
on the one hand or social security fraud on the other - should generally meet with an
immediate and appreciable custodial sentence, although naturally the sentence to be
imposed in any given case must have appropriate regard to the individual
circumstances of each accused.”
Subsequent cases appear to have followed the lead of the Court of Criminal Appeal. Paul
Begley was jailed in March by Dublin Circuit Criminal Court for six years for a garlic import
tax evasion scam worth about €1.6 million, having pleaded guilty and co-operated fully with
the investigation6. Having regard to the comments from the Court of Criminal Appeal in
Murray, his sentence is perhaps unsurprising. However, it did lead to a Baptist pastor going
6
th
th
Irish Times, 9 & 10 March 2012
13
on hunger strike in protest at the sentence imposed, stating that ‘I made a commitment to
go on hunger strike in protest against the injustice of sentencing in this country. I hope my
faith can get me through’.7 It also led to independent TD Finian McGrath calling on the
Minister for Justice to review the sentence. In Deputy McGrath’s letter to the Minister he
submitted that ‘[t]his a grave injustice for a non-violent crime. He has paid his fines8; he will
also do community service if requested; his business is now under serious threat and 200 jobs
are at risk while he is in prison. […] I strongly believe that the sentence does not fit the crime.
I urge you to review this case.’9
Before moving on from the Begley case, I should say that I saw that the Irish Times journalist
John Waters wrote an opinion piece about the case in which he maintained that Begley’s
action was not a crime, ‘full stop’, that lawyers are one of the ‘parasitical professions …
which modern societies have evolved as a way of compensating for the elimination … of
manual work’, and described the findings in the prosecution as ‘absurdistan in Paddyland’10.
Draw your own conclusions.
I understand that the Paul Begley case is under appeal, but it is difficult to see how (and to
what extent, if any) an appeal would succeed in the circumstances.
Also in March, car dealer John Hughes was jailed for four years after he failed to pay more
than €220,000 in VAT on second-hand vehicles. Hughes had pleaded guilty and had also paid
back the tax of €226,718 that was due on 119 cars11.
Corkman Barry McDonald was jailed for three years in May, with the final year suspended,
for personal and business tax offences amounting to almost €600,000. The loss to Revenue
arising from the company’s offences amounted to a total of €273,000, while the loss
resulting from his personal offences amounted to €343,000, of which €44,000 had been
repaid. McDonald had pleaded guilty and had co-operated with the Revenue investigation.12
Also in May, Mary Connors was sentenced to three years imprisonment for claiming nearly
€230,000 in welfare payments (over a 14 year period) while she had hundreds of thousands
of euro in a bank account.13 An appreciable difference between this case and Paul Murray’s
is that (according to media reports) all the money had been repaid.
Also in May, Derek Floyd was jailed for six years (with the final year suspended) for his role
in a ‘well organised and well planned’ VAT scam which cost the State some €680,000
between January 2001 and October 2003. He had been convicted by a jury after a 10 day
trial, but claimed that he was the ‘fall guy for far more sinister elements who benefited from
7
rd
Irish Times, 23 March 2012
th
The Irish Times report on the 9 March 2012 stated that Begley had been paying €33,000 a month for two
years but that some €700,000 remained outstanding.
9
th
Irish Times, 18 April 2012
10
th
Irish Times, 16 March 2012
11
rd
Irish Times, 23 March 2012
12
th
Irish Times, 12 May 2012
13
th
Irish Times, 24 May 2012
8
14
this scheme’.14 According to a report on the Revenue website15, the sentencing judge
referred to the Paul Murray decision and said it was worth repeating that revenue fraud is
not a victimless crime.
Just this week (on the 27 June 2012) former councillor Fred Forsey was sentenced to six
years, with two suspended, having been convicted following a jury trial of receiving corrupt
payments of €80,000 in exchange for lobbying his council colleagues to rezone agricultural
land for residential and industrial use. The mitigating factors mentioned in media reports
were limited to Forsey having no previous convictions and being from a respectable family.
As the Court of Criminal Appeal said in Murray, deterrence is an important consideration as
it ‘gives an assurance to the hard-pressed bona fide taxpayer that the State will both collect
and distribute its revenue fairly and that those who defraud will be sternly dealt with’. It will
be interesting to see what sentence (if any) is handed to the members of the Quinn family
recently found in contempt of Court. Also, given the admission made by TD Mick Wallace
that he made under-declaration of VAT payments by his construction firm, one wonders
whether he might face criminal sanction.
Employer’s Liability
There were two interesting, and diverging, recent decisions in relation to employer’s
liability. Both concerned situations where the employee sustained injury as a result of a
danger that was well known to the employee, but the liability findings were different in
each.
In Coffey v Kavanagh [2012] IESC 19 the Supreme Court was called upon to judge a situation
where a retail employee sustained injuries having tripped over a box in an untidy workplace.
Ms. Coffey was employed by the Mr. Kavanagh for seven and a half years, during the final
five years of which she was employed as the shop manager within Mr. Kavanagh’s premises
which was a shop on Camden Street in Dublin. On the 4th October, 2004 Ms. Coffey, in the
course of her employment, was caused or permitted to trip over a box in the office area of
the shop premises and suffered a fracture of her right wrist.
She claimed that the fall and consequent injuries which she suffered were caused by reason
of Mr. Kavanagh’s negligence and breach of duty in failing to provide her with a safe place of
work and in causing or permitting the office area of the premises to become cluttered,
unsafe and dangerous, with consequent risk of injury of the kind she sustained.
Mr. Kavanagh denied that he was negligent and claimed that Ms. Coffey’s injuries were
caused by her own negligence in failing to have adequate regard for her own safety.
The High Court having found that ‘the office area was constantly cluttered with articles
which comprised tripping hazards which were and remained a risk to staff members and
14
15
nd
Irish Times, 22 May 2012
http://www.revenue.ie/en/press/prosecutions/2012/pros-210512.html
15
other persons who were expected to use the office area and its environs’, but nonetheless
found 100% in favour of Ms. Coffey. It was submitted by Mr. Kavanagh that Ms. Coffey was
guilty of contributory negligence but the High Court could not accept, on the evidence, that
Ms. Coffey had failed to keep a proper lookout.
The Supreme Court, on appeal, referred to Hay v O’Grady [1992] 1 IR 210 in support of the
proposition that the Supreme Court was bound by the High Court’s findings of fact, but that
it could review any inferences drawn by the High Court. On appeal there was a finding of
25% contributory negligence on the grounds that:“[Ms. Coffey] was the manager of the shop. This role required her to work from a
desk in the office. She was very familiar with the office. She had a responsibility to
keep her desk and the area around it tidy. She knew of the clutter in the office; she
had made a complaint previously; she knew of the potential danger; she was clearing
the office when the accident occurred. She had started packing and unpacked two of
the boxes and put them in the store room, and while walking, something on the floor
caused her to trip and she fell. In all the circumstances I am satisfied that a degree of
contributory negligence was established. I would hold that the respondent was 25%
contributory negligent.”
In Thompson v Cleary [2012] IEHC 133 the employee was injured when he fell off the top of
his lorry. He had collected a consignment of cement and, as was required of him, was in the
process of cleaning excess cement from the top of his lorry (which was required in order for
him to be granted permission to leave the third party depot). Two hoses were available for
the task, a normal hose and a power hose. The employee had been specifically instructed by
his employer that under no circumstances was he to climb onto the top of the vehicle with
the power hose (although he was permitted to do so with the normal hose) as the pressure
in the hose could cause him to lose his balance and fall off. There was a prominent sign on
the power hose housing stating ‘Warning: Pressure hose can not be used while standing on
top of tanks – use from ground or gantry only’. The trial judge noted that the employee had
collected cement from the depot on about 800 occasions prior to the incident.
A complicating factor (for the employee) was that, while the power hose was only to be
used from atop a gantry, the employee’s lorry was not suitable to be driven under the
gantry. This fact was known to the employer. On the day in question the employee was told
by another driver that the normal hose was not working, so he felt he had little option but
to climb onto the truck with the power hose. He gave evidence that the power hose was
lying on the ground, away from its housing, and that he did not see the warning sign that
day. No sooner had he ascended the ladder on the back of the lorry and arrived at the top,
the site supervisor (Mr. Power) saw him and told him to immediately descend. As he
commenced his descent he fell from the lorry ‘due to the awkwardness of the lance and
hose he was carrying’ (according to his consulting engineer, Mr. Flahavan).
In dismissing the plaintiff employee’s claim, the High Court stated that:-
16
“There is little doubt that Mr Flahavan is correct in concluding that the plaintiff’s fall
was caused or at least contributed significantly by the fact that at the time he started
to descend the ladder having been told to do so immediately by Mr Power he was
carrying the power hose. It is reasonable to conclude on the balance of probabilities
that the carrying of the hose impaired his ability to descend safely.
There is also no doubt that if the vehicle had been able to enter the trough the
plaintiff would have been able to hose it down from the safety of the gantry as
intended, and this accident would not have happened.
Had the High Court stopped there, it would seem that arguably there was a case for the
employer to answer on the basis that the employee’s vehicle could not enter the trough and
the employer was aware of this fact. However, the High Court continued:“The critical fact in this case, and one which Mr Flahavan had not been aware of
when preparing his report, is that the plaintiff had been clearly and unequivocally
instructed that under no circumstances was he to ascend the ladder to the top of the
container with the power hose. In so far as he did so, contrary to that clear
instruction, he undertook a risk to himself.
[…]
It seems to me that the one thing which the plaintiff could not do, without assuming
liability himself for the consequences, was to take the law into his own hands and do
the very thing which he knew he was forbidden to do, namely carry the power hose
up the ladder so as to use it in a way which was absolutely forbidden on safety
grounds. Yet that is what he did, and he seeks to claim that it is the fault of his
employer and/or Irish Cement that he injured himself by having done so. That makes
no sense either as a matter of law or otherwise.”
29th June 2012
17