Supreme Court reaffirms courts should issue bench warrant if considering substantial prison sentences

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The High Court’s judicial review concerned a case in the District Court, in which a man, Jason O’Brien, failed to attend his trial for driving without tax, insurance or a license.

The District Court judge proceeded with the case despite Mr O’Brien’s absence, and although his solicitor suggested that there should be a bench warrant issued to secure his presence before the judge sentenced him, the judge disagreed and sentenced Mr O’Brien to 5 months’ imprisonment and disqualified him from driving a motor vehicle for 40 years.

Although the judicial review application also contained allegations of bias and alleged irrationality, the Supreme Court noted that these allegations “detract from any real point in the case” with the real issue being the imposition of a severe penalty in the absence of the accused.

In relation to holding the trial without the accused, the High Court had found that the District Judge was entitled to proceed. It was noted that the accused had been present when the date of trial was fixed, and his his excuse, that he had become confused about the dates, was not considered credible.

However, in relation to sentencing, the High Court found it was bound to follow the Supreme Court in Brennan v. Windle 3 I.R. 494which stated that “where the sentencing judge has in mind to impose a prison sentence of some length in circumstances where the offence in question would not invariably attract a prison sentence, the failure to at least…ascertain if there is a bona fide reason for non-attendance or to make some effort to secure the attendance of the applicant and hear him before proceeding to impose the sentence does amount to a breach of fair procedures and a breach of the requirements of constitutional justice.”

Such a situation was found to have occurred in the present case. The Prosecution appealed this decision to the Supreme Court.

On appeal, the Supreme Court noted that nothing could be clearer than the principle that in order to exercise any of the rights guaranteed by Article 38.1 of the Constitution, which prohibits any criminal trial taking place “save in due course of law”, a person must know when and where they are to be tried.

The Court cited cases such as The State (Healy) v Donoghue IR 325, Heaney v Ireland 2 ILRM 420 and Redmond v Ireland IESC 98, as showing the need to reach balance in these cases.

In reality, this means that the entitlement could be lost through persistent misconduct and could be waived by failing to turn up. Whether a right had been waived depended on the facts of the case.

It was also noted that a failure to attend was at the very least a serious inconvenience. Given the nature of a criminal trial, involving as it does perhaps several witnesses, of which the most important will be the victim, abandonment of a trial in favour of a later date in the face of a failure by the accused to attend may not present as an attractive option.

However, where it is a question of a sentence hearing, where much less in the way of evidence is required, the matter may be balanced more in favour of a process of compulsion to require the attendance of an offender before proceeding to impose an appropriate punishment on conviction.

In the present case, it was noted that Mr O’Brien manifestly knew the date, he had been present when it was set and he was represented by a solicitor who must be presumed to be both efficient and capable of using mobile communications.

Thus, his affidavit that he had confused the dates was found to offer “little in the way of a reason why a judge should adjourn a criminal trial”.

However, the Supreme Court found that there had no argument advanced to the effect that the decision in Brennan v. Judge Desmond Windle was incorrect and should be departed from.

Instead, the Prosecution had sought to distinguish the facts as in Brennan it was accepted that the applicant did not have actual notice of the summonses on foot of which he was convicted in his absence and sentenced to four months’ imprisonment.

In contrast, Jason O’Brien was present in court when the date for his trial was fixed.

Nevertheless, the Supreme Court found that the requirements of natural justice as outlined by Geoghegan J in Brennan are equally applicable to this case.

The appeal from the Prosecution was therefore dismissed.