R v Belfast Recorder, ex parte McNally
|01 January 1992
|01 January 1992
|Court of Appeal (Northern Ireland)
- Certiorari - Scope of remedy - Shoplifting - One months' detention at a young offenders' centre increased to three months' detention -Judicial review - Duty of court to accept defence's version of events unless evidence heard to resolve issue - Relevance of remission, failure to assist and plea of guilty - Whether sentence "harsh and oppressive" -Whether sentence imposed by inferior court can be quashed on certiorari - Certiorari - Scope of remedy - Conditions on which it may be granted -Effect of procedural changes - What may constitute a record.
In February, 1986, the applicant was arrested following a shoplifting incident which also involved several other people. The applicant had one previous conviction for shoplifting dating from 1981. At the trial there was conflicting evidence presented by counsels for the prosecution and defence regarding the assistance that the applicant was prepared to offer to the police in identifying her accomplices. The applicant was convicted of shoplifting and sentenced to one month's detention at a young offenders' institution. The applicant appealed, and the appeal was adjourned for the purpose of obtaining a probation report. At the adjourned hearing, the probation report having been furnished, a sentence of three months' detention at a young offenders' institution was substituted. The applicant sought an order of certiorari quashing the decision of the judge on the grounds that the judge had erred in law and exceeded his jurisdiction on the grounds (i) that he had made and acted on assumptions adverse to the applicant without due inquiry in that when passing sentence he had taken the view that the offence was a planned enterprise and that the applicant had not assisted the police by naming her accomplices, (ii) that in passing sentence the judge had taken into consideration the effect of remission which might be earned and the fact that the applicant had not named her accomplices, (iii) that he had failed to take into account the probation report, which was not available to the magistrate, and (iv) that the judge's sentence was harsh and oppressive. Held - Where there was a divergence between the prosecution and defence versions of the facts of the case, the court must, unless it resolved the conflict, accept the defence's version as far as possible and pass sentence accordingly. However, that did not mean that there should be a trial within the trial on...
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