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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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