The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

Recent Irish Cases Edited by Ra ymond Byrne, BCL, LLM, BL, Lecturer in Law, Dublin City University The following case summaries have been reprinted f r om t he Irish La\v Times and Solicitors Journal w i t h t he kind permission of t he publishers.

Drogheda continued until July 1991 when Drogheda Corporation served a dangerous buildings notice on Louth County Council and the sittings were transferred to Dundalk. On 11 July 1991 the President of the Circuit Court made an order pursuant to s. 10 of Courts of Justice Act 1947 specifying the venues at which the court should sit in the East- ern Circuit. This order omitted Drogheda. The applicants, who were solicitors practising in the town of Drogheda, wrote to Louth County Council and the minister calling upon them to perform their duties under the 1935 Act. In a letter dated 19 June 1992 the minister indicated that pursuant to s. 3 of the 1935 Act, the county council was not required by the minister to pro- vide courthouse accommodation in Drogheda for sittings of the Circuit Court and that the sittings would be fully accommodated by the courthouse in Dundalk. Accordingly the county council was not required to repair the courthouse or provide a replacement building. The applicants were unaware that the minister had written to the county council on 8 January 1992 stat- ing that he did not require the provision of courthouse accommodation in Drogheda for the Circuit Court sittings and that sittings would be accommo- dated by the continued provision and maintenance of the courthouse in Dun- dalk. On 23 June 1992 the government and the Minister to make orders pursu- ant to s. 31 of the Civil Bill Courts (Ire- land) Act 1851 which provided that the courthouse in Drogheda should be dis- continued as a Circuit Court venue with effect from that date. The applicants sought an order of mandamus compel- ling the respondent to perform the du- ties imposed by s. 6 of the 1935 Act. Held by Lynch J in making an order of mandamus requiring the minister to di- rect the county council to provide ac- commodation for the Circuit Court in Drogheda but subject to a stay until 1 December 1993 and with liberty to both parties to apply for further relief: (1) The obligation of providing, maintaining and financing suitable courthouse ac- commodation rested on the local authority and it was not open to the executive to make arrangements with the local authority or, by promises made to the local authority, to attempt to relieve such local authority from the obligations expressly imposed upon

ment and an opportunity to the of- fender to reform serves the public inter- est which is the primary object in deter- mining sentence. People v. O'Driscoll (1972) 1 Frewen 351, People v. Poyning [1972] IR 402, State (Stanbridge) v. McMahon [1979] IR 214 and State (Healy) v. Donoghue [1976] IR 325 considered. (5) The exercise of judicial discretion in sentencing a convicted person should never be formulaic in approach, nor subordinated to fixed policy criteria. (6) The crime of rape is a serious offence which prima facie requires a custodial sentence but the courts will not adopt a formulaic or tariff approach to sentenc- ing a convicted person. R. v. McDonald [1989] NI37 and People v. Tiernan [1988] IR 250 considered. The category of case where a judge may consider imposing a non-custodial sentence where an ac- cused has pleaded guilty to rape is very rare. Reported at [1994] 1 ILRM 321 Courts and Courthouses - Mandamus - Provision and maintenance of courthouses by local authority - Whether statutory ob- ligation upon local authority to repair and maintain courthouse and upon the minister to enforce compliance with this obligation - Whether attempt to circumvent instant pro- ceedings - Financial and budgetary consid- erations - Civil Bill Courts (Ireland) Act 1851, s. 31 - Courthouses (Provision and Maintenance) Act 1935, ss. 3, 6,10 - Ad- aptation of Enactments Act 1922, s. 12 - Courts (Supplemental Provisions) Act 1961 - Civil Bill Courts (Ireland) Act 1851 (Adaptation) Order 1992 (SI No. 193 of 1992) - Civil Bill Courts (Ireland) Act 1851 (Adaptation) (No. 2) Order 1992 (SI No. 174 of 1992) Facts Sittings of the Circuit Court at the courthouse in Drogheda ceased in 1964 due to its state of disrepair. In 1972 the High Court ordered the Minister for Justice to perform the duties imposed on him by the Courthouses (Provision and Maintenance) Act 1935. Repairs were carried out in compliance with this order and sittings recommenced in 1974. The Circuit Court sittings at Vincent Hoey and Neil Matthews v. Minister for Justice: High Court (Lynch J) 3 September 1993

People (Director of Public Prosecu- tions) v. W.C.: Central Criminal Court (Flood J) 14 July 1993

Criminal Law - Sentencing - Rape - Con- stitutional duty to take all relevant circum- stances into account and impose sentence appropriate to degree of guilt - Principle of proportionality - Purpose of passing sen-. tence includes affording opportunity for re- form where appropriate - Formulaic ap- proach to sentencing not adopted by our courts - Offences Against the Person Act 1861 , s. 48 Facts On 15 July 1992, the accused pleaded guilty to a charge of raping his girlfriend on 31 December 1991. While it appeared that in the immediate after- math of the event the accused was nei- ther fully aware, nor appreciated, the wrong he had done, he had admitted his guilt promptly thereafter and had pleaded guilty to the charge as afore- said at his arraignment. Held by Flood J in imposing a sus- pended sentence of nine years penal servitude on the accused: (1) While the maximum sentence that a court may impose for the crime of rape is a term of penal servitude for life as provided by s. 48 of the Offences Against the Persons Act 1861, the sentence to be imposed on an accused person in a particular case is solely a matter for a trial judge in the independent and impartial exercise of judicial discretion. Costello v. Director of Public Prosecutions [1984] IR 436 consid- ered. (2) As well as a constitutionally protected independence in the selection of a particular sentence, a constitutional duty is imposed upon a judge to fix a sentence appropriate to the degree of guilt taking into account all relevant circumstances which may arise in that case. Deaton v. Attorney General [1963] IR 170, State (O.) v. O'Brien [1973] IR 50, State (Healy) v. Donoghue [1976] IR 325 and Cox v. Ireland [1992] 2 IR 503 ap- plied. (3) Where a person is convicted of a criminal offence or pleads guilty to such offence, that person does not thereby forfeit every legal and constitu- tional right he has previously enjoyed. Murray v. Ireland [1985] IR 532 applied. (4) The sentence imposed by a trial judge should be appropriate not only to the offence committed but also to the particular offender having regard to the fact that affording a compelling induce-