Supreme Court: Man whose suspended sentence was reactivated is entitled to rely on finding of unconstitutionality in Moore

Supreme Court
Supreme Court

A man whose suspended sentence for driving offences was reactivated after he was convicted of dangerous driving causing death and serious bodily harm has successfully argued that he is entitled to the benefit of the declaration of unconstitutionality in Moore.

Delivering the leading judgment of the Supreme Court, Ms Justice Elizabeth Dunne said that the man’s conduct in the course of the proceedings did not debar him from relief and there was no reason why he could not rely on the finding of invalidity.


In November 2013, Mr Eric Wansboro was given a three-year suspended sentenced after pleading guilty to the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended), an offence of drink driving, and driving without insurance (hereafter Bill 298/2012).

In May 2014, driving away from pursuing gardaí, Mr Wansboro crashed into a tree at speed, seriously injuring himself and two passengers. Unfortunately, the backseat passenger died as a result of her injuries.

In April 2015, Mr Wansboro pleaded guilty to dangerous driving causing death and serious bodily harm contrary to the provisions of s.53(1) of the Road Traffic Act 1961 (hereafter Bill 99/2015). As Mr Wansboro had previously been the subject of a suspended sentence, the question of sentence for these offences was adjourned pursuant to s. 99(9) of the Criminal Justice Act 2006. Accordingly, Mr Wansboro was remanded in custody.

Sentencing Mr Wansboro in May 2015, Her Honour Judge Mary Ellen Ring (as she then was) lifted the suspension of the sentences on Bill 298/2012 pursuant to the provisions of s. 99(10) of the Criminal Justice Act 2006.

Judge Ring observed that by virtue of the provisions of s. 99 of the Criminal Justice Act 2006, the sentence for Bill 99/2015 was required by law to be consecutive to the three-year sentence. Having regard to the totality principle, Judge Ring imposed a five-and-a-half-year sentence to commence on the lawful expiration of the three-year sentence on Bill 298/2012

Shortly thereafter, Mr Wansboro lodged an appeal against the order made in respect of Bill 298/2012 and against the severity of the sentence imposed on Bill 99/2015.

Moore v DPP

In April 2016, in Moore & Ors v DPP & Ors [2016] IEHC 434, Mr Justice Michael Moriarty found that ss. 99(9) and (10) of the Criminal Justice Act 2006 were unconstitutional.

Delivering his concurring judgment in the present case, Mr Justice Donal O’Donnell said that the “insurmountable difficulty” with s.99 was that it “…required the sentencing court to revoke the suspension unless it considered it to be unjust, and furthermore required that step to be taken before sentence was imposed for the trigger offence. However, this procedure did not provide for the possibility that the trigger offence conviction might be set aside on appeal, in which case the suspended sentence ought not to have been reactivated, with consequent injustice to the individual”.

High Court

Subsequent to the decision in Moore, Mr Wansboro was granted leave to seek, inter alia:

  • An order quashing the order of the Circuit Court in May 2015 pursuant to s. 99(10) of the Criminal Justice Act 2006 in respect of Bill 298/2012;
  • An order of certiorari quashing the committal warrant issued pursuant to the said order
  • A declaration that he was being held in unlawful detention by the Governor of Mountjoy Prison on foot of the committal warrant. 

In the High Court, Ms Justice Mary Faherty said that the net issue for the court was whether Mr Wansboro was precluded from obtaining the benefit of the declaration of unconstitutionality in Moore.

Ms Justice Faherty remarked that, whilst Mr Wansboro stressed that he was not looking for the declaration in Moore to have any retrospective effect; in reality, Mr Wansboro was seeking that the declaration of unconstitutionality should have a blanket effect.

Stating that the relevant jurisprudence pre and post-Moore was clearly against Mr Wansboro’s claim, Ms Justice Faherty said that there must be “a default of fundamental requirements such that the detention could be said to be wanting in due process of law or that his detention arises on a departure from fundamental rules of natural justice” (as per Clarke v. Governor of Mountjoy Prison [2016] IEHC 278), and held that there were no such features in this case.

As such, Ms Justice Faherty denied the reliefs sought by Mr Wansboro.

Supreme Court

Considering A v Governor of Arbour Hill Prison, Ms Justice Dunne explained that in this case the Supreme Court held that there was neither an express nor an implied principle of retrospective application of unconstitutionality in the Constitution. However, Ms Justice Dunne held that A v Governor of Arbour Hill Prison made it clear that “a finding that an act or part thereof is constitutionally invalid will not result in final decisions made in judicial proceedings being set aside by reason of the decision declaring the legislation concerned to be constitutionally invalid”.

Ms Justice Dunne said that this was not a case where the appellant’s proceedings were finalised – Mr Wansboro’s appeal against the severity of his sentence remained outstanding, and therefore the question for the Court was whether Mr Wansboro could be debarred from relying on the finding of invalidity made in Moore in the course of his appeal.

Ms Justice Dunne said that she found it impossible to reconcile the conclusion of Ms Justice Faherty with decisions such as A v Governor of Arbour Hill Prison and The State (Byrne) v Frawley.

Stating that Mr Wansboro “did not adopt any strategy or engage in any conduct in the course of the proceedings which could debar him from relief”, Ms Justice Dunne said that there was “no apparent reason” why Mr Wansboro could not rely on the finding of invalidity in Moore.

Finding that there had been “a want of due process of law in that the learned Circuit Court judge lacked jurisdiction to revoke the suspended sentence at issue by reason of the method by which the appellant was brought before the Court”, Ms Justice Dunne held that Mr Wansboro was entitled to the relief sought.

Allowing the appeal, Ms Justice Dunne said that it was a matter for the DPP to consider whether or not she wished to remit the issue of sentence  back to the Circuit Court for further consideration having regard to the provisions of s.99(17) of the Criminal Justice Act 2006.

Dissenting from the majority of the five-judge Supreme Court, Ms Justice Mary Finlay Geoghegan said that Mr Wansboro had acquiesced to the jurisdiction of the Circuit Court dealing with the re-entry of Bill 298/2012 and the sentencing of Bill 99/2015 together, and that in seeking to have the sentence on the latter reduced due to the totality principle – thereby obtaining some benefit – he was debarred on appeal from taking an approach inconsistent with that conduct. Ms Justice Finlay Geoghegan remarked that the facts did not “give rise to an apprehension of a real injustice having occurred”.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2019

Other judgments by Ms Justice Elizabeth Dunne

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