Thursday 29 September 2016

Sentencing law delayed by Dáil deadlock

Shane Phelan and Tim Healy

Published 28/04/2016 | 02:30

A large garda operation takes place north of Arklow, Co Wicklow. The multi-agency checkpoint ran for a numbers of hours with back up support from the armed Emergency Response Unit. Photo: Garry O’Neill
A large garda operation takes place north of Arklow, Co Wicklow. The multi-agency checkpoint ran for a numbers of hours with back up support from the armed Emergency Response Unit. Photo: Garry O’Neill
A large garda operation takes place north of Arklow, Co Wicklow. The multi-agency checkpoint ran for a numbers of hours with back up support from the armed Emergency Response Unit. Photo: Garry O’Neill

The enactment of emergency legislation, required after suspended sentencing laws were deemed unconstitutional, is likely to be delayed until after a Government is formed.

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The Department of Justice said the approval of both the Dáil and the Seanad would be needed - and the Seanad election is still ongoing.

Although the counting of Seanad ballots is underway, the Upper House will not have a full complement until the next Taoiseach nominates 11 senators.

A spokesman for Justice Minister Frances Fitzgerald said she had brought draft legislative proposals to Cabinet on Tuesday.

"Any further issues raised in the final orders will have to be taken into account in the finalisation of legislative proposals which would then require final approval at Cabinet," he said.

Another issue delaying the emergency legislation emerged yesterday when it was confirmed it could not be finalised until final orders had been made in the High Court case which gave rise to the crisis.

But yesterday, Mr Justice Michael Moriarty delayed making those final orders after lawyers for the State asked for more time to prepare submissions.

Nine challenges have been brought to the High Court since Mr Justice Moriarty ruled last week that the law governing the power of the courts to revoke suspended sentences was unconstitutional while appeals against subsequent offences were still pending.

The ruling related to six test cases which challenged the constitutionality of Section 99 of the Criminal Justice Act 2006.

Since then, further challenges have been taken by prisoners who claim they are being unlawfully detained as a result of the ruling.

However, none of those challenges has been dealt with yet - as judges handling them have been waiting for Mr Justice Moriarty to finalise his orders.

Separately, several planned applications to commit people on suspended sentences to jail after they committed another offence have had to be abandoned in recent days due to Moriarty ruling.

Confusion over the impact of the ruling is likely to persist for a further fortnight after Mr Justice Moriarty yesterday adjourned making final orders in the test cases.

The request for more time to prepare submissions was criticised by lawyers for the some of the men.

Feichín McDonagh SC said it appeared the State was attempting to argue that parts of Section 99 had not been declared unconstitutional.

He said it was "extraordinary" when in another case arising from the judgment last week the State had accepted that it was unconstitutional.

Undermine

However, Conor Power SC for the State denied that any attempt was being made to undermine the judgment and it was simply a situation where more time was needed to address the judge.

Mr Justice Moriarty described the case as fairly urgent, but said he was conscious his ruling could have repercussions and did not want a potentially anarchic situation.

He adjourned the case to Friday week for mention. Submissions will be heard after that date. Mr Justice Moriarty said the priority was to resolve the matter before the law term ends on May 12 but both sides should have time to set out their arguments.

Eight of the nine challenges mounted since the Moriarty judgment are before Mr Justice Seamus Noonan.

He adjourned all of these until Friday and said they may be further adjourned.

Mr Justice Noonan said it was important, before deciding the eight cases, to have clarity on exactly what Mr Justice Moriarty had decided and exactly what orders followed.

Micheál P O'Higgins SC, for one of the eight, said there was "no lack of clarity" concerning Mr Justice Moriarty's finding that Section 99.9 and 99.10 of the Criminal Justice Act 2006, are unconstitutional.

A ninth application could be ruled upon this Friday by Mr Justice Paul McDermott.

In the case before Mr Justice McDermott, the State has argued that prisoner is not entitled to be released because he had not previously raised issues concerning Section 99.

Irish Independent

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