The Gazette 1973

Lack of Right of Appeal for Accused pleading Guilty remedied

When Senator Mary Robinson introduced the Criminal Procedure (Amendment) Bill 1973 in the Senate on 11 July 1972 she agreed to withdraw the Bill, on the understanding that the Minister for Justice would intro- duce a similar Bill which has since been printed. The Bill arose out of the short judgment of the Supreme Court given recently in the case of The State (Hunt) v. Governor of Portlaoise, in which they affirmed Fin- lay J's decision in the High Court, reported in 107 I.L.T.R. (1973) at page 53. The applicant was charged with attempted robbery in the District Court and pleaded guilty. As the District Justice had no juris- diction to try the case, he made an order under Section 13 (2) (b) of the Criminal Procedure Act 1967 sending the accused forward for sentence to the appropriate Circuit Court, which imposed a sentence of two years. The applicant in January 1972 purported to serve a notice of appeal to the Court of Criminal Appeal under Section 31 of the Courts of Justice Act 1924 for leave to appeal against the severity of the sentence. The Court of Criminal Appeal on 23 March 1972 ordered that the application be struck out on the ground of want of jurisdiction. The case of Anthony O'Brien, who re- ceived a similar two-year sentence under similar cir- cumstances, was treated in the same way. The appli- cants' then applied to the High Court for an Order of Habeas Corpus on the ground that there was no right of appeal from this plea of guilty in the District Court and from the subsequent sentence in the Circuit Court. Mr. Justice Finlay was unable to agree with Mr. Justice Butler's decision in The State (Andrew Murphy) v. Governor of Portlaoise, given on 23 November 1971 where it was apparently held that the applicant had a constitutional right of appeal from any decision of the Circuit Court. Mr. Justice Finlay in a clear and reas- oned judgment briefly held that Article 34 (3) (4) of the Constitution, which provides that "The Courts of First Instance shall also include Courts of local and limited jurisdiction with a right of appeal as determined by law" does not confer a universal right of appeal from

the Circuit Court, and Section 13 (2) (b) of the Crim- inal Procedure Act 1967 is not inconsistent with Article 34 (3) (4). The last word "law" in Article 34 (3) (4) is to be construed as "statute law", and not "constitutional law". It was pointed out that there is no moral or legal duty on a person when charged with an indictable offence before the District Court to signify his desire to plead guilty and that Section 13 (2) (b) does not come into operation until he does so. The accused appealed to the Supreme Court against the refusal of the grant of Habeus Corpus, but, despite a very able constitutional argument by Mr. Sean MacBride, S.C., lasting several days, that Court dismissed the appeal in an exception- ally short judgment. This is the background which led to the introduction of Senator Robinson's Criminal Procedure Bill 1973 although she only cited in argument the case of The People v. Tyrrell, 1970 I.R. 294, where the Court of Criminal Appeal had found that it had no jurisdiction in similar circumstances. In jurisprudence, the better legal opinion appears to follow American rather than British precedent, and to state that it is essential to give full and detailed reasons for making decisions in consti- tutional cases. Be that as it may, Section 1 of the Criminal Procedure (Amendment) Act 1973, intro- duced by the Minister for Justice, now reads as follows : "In the case of a person sent forward by the District Court under Section 13 (2) of the Criminal Procedure Act 1967, whether before or after the passing of the Act, an appeal shall lie against the sentence, as if he had been sentenced after conviction or indictment." In other words, the Minister deserves praise for agree- ing to remedy the manifest injustice of the present position. The Minister is also to be commended for extending legal aid under the same Bill to all cases of preliminary examination of indictable offences in the District Court under Part 2 of the Criminal Procedure Act 1967.

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