About this case:

• Citation:
  [2025] IECA 131
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

Delivering judgment for the Court of Appeal, Mr Justice John Edwards explained: “While sentence selection is exclusively a judicial function, sentence implementation is an executive function. Time and again, the Irish appellate courts have emphasised that courts impose sentences without regard to future remission stressing that remission is solely and exclusively a matter for the executive branch of government.”

Background

The appellant, a former solicitor, was convicted on 10 counts of theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and on 19 February 2024 was sentenced by the Circuit Criminal Court to five-and-a-half years in prison on each count, to run concurrently.

The thefts in question, largely facilitated by the system of solicitors’ undertakings, amounted to €18,144,345 over a period of six months and involved six victims, all being financial institutions.

Following the collapse of his legal practice, a Law Society investigation commenced. The appellant had been due to appear before the High Court on 12 December 2007 in the “Solicitors’ Matters” list, but failed to appear. The High Court made an order for attachment against the appellant, but he had already left the jurisdiction.

The appellant moved from Portugal to Brazil in 2011. Thereafter, in 2013, the DPP decided to charge the appellant with theft offences and in circumstances where there was no prior extradition agreement with Brazil, Ireland entered into an ad hoc extradition agreement on foot of which the appellant’s extradition was secured.

The appellant was arrested in northern Brazil on 29 August 2013. He unsuccessfully contested his extradition to Supreme Court level in Brazil and was eventually extradited to Ireland on 1 March 2018, having spent approximately 4.5 years in inhumane prison conditions in Brazil which he described as posing “an ever present, latent threat of ultra violence”.

The appellant, having been deported, spent a further 105 days on remand in an Irish prison before obtaining bail pending his trial.

The appellant advanced 15 grounds of appeal against the severity of his sentence and against his conviction, with the Court of Appeal agreeing to hear the element of his appeal concerning the severity of his sentence first.

The appellant’s contentions included that the sentencing judge erred in the manner in which he structured the appellant’s sentence, alleging inter alia that when reducing the headline sentence of 16 years to 13 years by reason of the mitigation presented by the appellant, by including in that reduction a period of 105 days of pre-trial detention in Ireland, he was excluded from relying on that time served in custody for the purposes of an application for remission of his sentence.

Court of Appeal

On the issue of credit for the time spend by the appellant on remand in this jurisdiction, Mr Justice Edwards explained that there is no difficulty with due allowance being made at sentencing for time served on remand, “providing it is done in the right way, and in a way that shows judicial respect of the separation of powers”.

In this regard, the judge considered that if all that is being sought is no more a pro-rata deduction from or allowance against the proposed sentence in respect of time actually served in custody while on remand, a sentencing judge is at full liberty to make that deduction or afford that allowance and that this is frequently done by backdating the commencement date of the sentence or by nominating an appropriate sentence before deducting an appropriate portion of it to reflect credit.

The Court of Appeal identified a potential difficulty if the request must be construed as extending not just to the defendant receiving a pro-rata deduction or allowance, but rather that whatever allowance is made should be based on time “deemed” to have been served, rather than actual time served, to take account of a prisoner’s presumptive entitlement to standard remission in accordance with the statutory scheme set out in the Prison Rules 2007.

Mr Justice Edwards explained that the logic behind this, in part, is that if a person who spent no time on remand presumptively has the possibility of availing of standard remission in respect of their time in prison as a sentenced person, then a sentenced person who did spend time on remand should be in no worse position and should also be able to avail of standard remission in respect of all periods, including pre-trial and pre-sentence periods, during which they were deprived of their liberty in connection with the offences for which they were sentenced.

The court also observed that where there has not been a waiver, either expressly or by inference, of a claim for further credit based on additional time “deemed” to have been served, a sentencing judge cannot make any specific allowance designed to take account of both time served and additional time deemed to have been served so as to take account of a defendant’s presumptive entitlement to standard remission.

Mr Justice Edwards explained that this is because the implementation of a sentence is a function of the executive branch of government and remission is, therefore, not something that a sentencing court can take account of in light of the separation of powers and in light of the fact that there is no right to remission, rather it is a presumptive entitlement which can be earned or lost due to bad conduct.

The judge confirmed that the proper way to proceed, where a person seeks to have allowance made for time deemed to be served over and above time actually served, is to determine and impose the appropriate sentence without reference to time spent on remand, and to give an ancillary direction (to be included in the committal warrant) that the person should receive credit from the relevant executive authorities on account of time spent in custody on remand relating to the matter in question when that person’s release date is being determined.

The Court of Appeal considered that in circumstances where, immediately post-imposition of sentence and prior to the court rising, the appellant’s counsel had clarified that the appellant hoped to avail of standard remission earned in respect of all time spent on remand, including the 105 days spent in prison in Ireland, the sentencing judge was not entitled to infer a waiver on the appellant’s part of the opportunity to made a case to the executive to be afforded credit by way of standard remission for time spent on remand in Ireland.

In those circumstances, the court determined that the sentencing judge erred in failing to change the part of his order giving credit for time served on remand in this jurisdiction by a combination of straight deduction and backdating measures, and ought to have imposed a sentence containing no adjustment accounting for the 105 days, with a direction that in the executive’s calculation of the time to be served, the appellant should receive all due credit for time served on remand in this jurisdiction against the sentence being imposed.

Conclusion

Having found no other error in the sentencing judge’s approach, the Court of Appeal allowed the appeal in relation to the manner in which credit for time served on remand in Ireland was treated and quashed the sentence imposed by the Circuit Criminal Court.

On re-sentencing, the Court of Appeal removed the discount from the appellant’s sentence allowed in respect of the 105 days spent on remand in Ireland, with the result that the total discount to be applied to the headline sentence of 16 years was 10 years and three months, leaving a net post-mitigation sentence of five years and nine months in respect of all 10 counts, to run concurrently.

The Court of Appeal further directed that each sentence would date from 20 December 2023, and made a direction that in the executive’s calculation of the time to be served by the appellant, he should receive all credit lawfully due to him for the time served by him on remand in this jurisdiction exclusively in respect of those offences for which he was being re-sentenced.

The People v Michael Lynn [2025] IECA 131