High Court: Inherent jurisdiction may be used to remand person awaiting hearing for revocation of suspended sentence

Killian Flood BL
Killian Flood BL

The High Court has rejected an applicant’s submissions that he was unlawfully remanded in custody by a Circuit Court judge for a hearing to revoke a suspended sentence. The court considered the terms of s.99(17) of the Criminal Justice Act 2006 as amended and ruled that a court has an inherent power to remand an individual in custody pending the hearing.

However, the court accepted the applicant’s submission that the bench warrant (which was used to bring him before the court) was bad on its face and therefore quashed the remand order on which the warrant was based.


In 2016, Mr Joseph Boyle was convicted in the Dublin Circuit Court by Judge Melanie Greally and sentence to four years’ imprisonment with the final twelve months suspended on a bond with certain conditions. One of the conditions was the supervision of the Probation Service. The applicant was released in 2018.

Subsequently, Mr Boyle received a notice pursuant to section 99(15) of the 2006 Act, which stated that his probation officer had applied to fix a date to revoke the part-suspension of his sentence. The basis for the application was that Mr Boyle had failed to comply with the terms of his suspended sentence.

The applicant failed to appear at two hearing dates in February and October 2019 for the application, despite the fact that a bench warrant had been issued for his attendance. A further bench warrant was issued and executed on 17 October 2019. The applicant was returned before Judge Martin Nolan who determined that the matter should be heard by Judge Greally, who originally had seisin of the case.

It was suggested that the case would be adjourned to 2pm that day and be returned before Judge Greally. However, the probation officer was unavailable at that time. As such, Judge Nolan remanded the applicant in custody for four days, including the weekend, so that he could be returned before Judge Greally.

The applicant lodged judicial review proceedings, claiming that there was no power under section 99 of the 2006 Act to remand an accused person who was awaiting a revocation hearing. In response, the Director of Public Prosecutions claimed that there was an implied and/or ancillary power in the Act to remand the applicant. Further, it was claimed that the court had an inherent jurisdiction to remand the applicant and therefore the detention was lawful.

High Court

Considering the provisions of section 99(17), Ms Justice Niamh Hyland determined that there was no express or implied jurisdiction in the section which conferred jurisdiction to remand pending a revocation hearing. This was contrasted with section 99(8A), where express jurisdiction to remand was given in cases where a person had been convicted of a so-called “triggering offence.”

The respondent sought to rely on cases such as An Blascaod Mor Teo v. Commissioners of Public Works [1996] IEHC 45 to say that a court had an implied power to remand under the statute. While the court accepted the principle that powers could be implied into statute, the court was not satisfied that there was any reliable inference of such powers in the present case.

The court considered Browne v. Ireland [2003] 3 I.R. 205 and said that there was a strong suggestion that the legislature did not intend for the court to have the power to remand a person pending a revocation hearing. In particular, the court considered that the absence of an express power to remand under section 99(17) and the explicit powers under section 99(8A) suggested that the Oireachtas intentionally differentiated between the two circumstances. The court said that “the legislature was free to include the power to remand if it wished to ensure that a person would be before the court for the purposes of a s.99(17) hearing following an adjournment: it chose not to do so.”

Further, the court held that the statue had to be construed strictly because it was a penal statute (Mullins v. Harnett [1998] 4 I.R. 426). Clear words were required to give the court the statutory power, but no such words appeared, the court said.

The court also considered a number of cases relied on by the respondent to say there was an ancillary power to statute to remand an individual based on section 99(17). The court commented that there seemed to be little difference to an implied power and an ancillary power to remand. The submission relating to ancillary power was similarly defeated by the lack of express provision in the statute.

However, the court accepted the respondent’s submission that the court was able to remand the applicant pursuant to its inherent jurisdiction. Ms Justice Hyland said “the court has such a power both because of its judicial function and because of its constitutional role in the administration of justice.” The court said that an application under section 99(17) could be adjourned for a number of reasons and a court had to have the power to ensure that the person was returned before it again.

As such, the court had the inherent jurisdiction to remand an individual in order to ensure that such person appeared at the revocation hearing. The court said this conclusion was fortified by the decisions in Stephens v. Governor of Castlerea Prison [2002] IEHC 169 and The State (Attorney General) v. Judge Roe [1951] I.R. 172, which related to the analogous issue of bench warrants.

On the issue of the validity of the bench warrant in the case, the court said that the warrant did not provide sufficient detail and was bad on its face. In particular, the warrant failed to provide information of the legal and jurisdictional basis for its issue. As such, the court held that the remand was based on an improper warrant.


The court quashed the remand decision on the basis that the warrant was erroneous on its face. However, the court accepted that the Circuit Court was entitled to remand the applicant pending the revocation hearing pursuant to its inherent jurisdiction.

© Irish Legal News Ltd 2021

Other judgments by Ms Justice Niamh Hyland