Judge criticises DPP's office over improper sentence for prisoner

A HIGH Court judge has strongly criticised the handling by the office of the Director of Public Prosecutions (DPP) of legal proceedings brought after a man serving a life sentence for murder was improperly given a consecutive three-month sentence for having a mobile phone in prison.

Mr Justice Bryan McMahon said the agent for the DPP firstly misinformed the District Court that such a sentence could be imposed on Stephen Kelly.

The DPP’s office then failed for four months to satisfactorily respond to proposals from Kelly’s solicitors suggesting an appropriate appeal process for dealing with the error and then the DPP brought inappropriate High Court proceedings without setting out the full facts, Mr Justice McMahon said.

The failures and delay by the DPP’s office “showed little concern” for the fact that a man was wrongly sentenced on an error of law which was to some extent induced by the DPP’s agent or for the “proper” efforts by Kelly’s solicitor to rectify the injustice.

In the “unusual” circumstances, the judge granted an application by Kelly to set aside a High Court order granting leave to the DPP to bring judicial review proceedings for an order quashing the consecutive sentence.

Costs were also awarded against the DPP.

Kelly (24), of Balcurris Road, Ballymun, Dublin, was jailed for life in early 2007 after being convicted of the murder of Ian McConnell (28) in a Ballymun tower block in December 2005.

Mr McConnell was shot dead as part of a feud between rival gangs in Ballymun.

Kelly received a consecutive three-month sentence after he pleaded guilty at the District Court in August 2008 to having a mobile phone in his cell on May 29th, 2007. Yesterday, Mr Justice McMahon noted an agent for the DPP misinformed the District judge when he said that he could impose a consecutive sentence on to a life sentence, while Kelly’s lawyer had argued such a sentence was not permissible under law.

Section 13.2 of the Criminal Law Act 1976 explicitly prevented a consecutive custodial sentence being imposed and this was later acknowledged by the DPP, the judge noted.

Kelly’s lawyers had moved in a timely fashion to appeal the consecutive sentence and, as was normal practice, wrote to the DPP’s office in December 2008 seeking agreement to a draft statement of facts.

It took three more letters and four phone calls before the DPP’s office finally, on April 14th, 2009, gave more than a holding response.

The DPP responded by accepting there was an error of law, but said they were bringing judicial review proceedings to correct the error.

Later in April, the DPP secured leave for judicial review.

Kelly’s lawyers then applied to the High Court to set the leave order aside and Mr Justice McMahon ruled yesterday Kelly was entitled to that order.