Thursday 8 December 2016

Stalemate fuels crisis as court opens door for criminals to fight jail terms

Kevin Doyle and Shane Phelan

Published 20/04/2016 | 02:30

Mr Justice Michael Moriarty has ruled that a section of law which
allows for the instant activation of suspended sentences where a
criminal is found guilty of a new offence is unconstitutional
Mr Justice Michael Moriarty has ruled that a section of law which allows for the instant activation of suspended sentences where a criminal is found guilty of a new offence is unconstitutional

Convicted criminals are set to challenge their jail terms after the courts struck down the law enforcing suspended sentences.

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The justice system is facing a fresh crisis that is likely to see a raft of test cases before judges in the coming days.

It is the result of a High Court ruling by Mr Justice Michael Moriarty that a section of law which allows for the instant activation of suspended sentences where a criminal is found guilty of a new offence is unconstitutional.

The ruling is the first major legislative crisis to emerge since the election more than seven weeks ago - but with no government in place, it is unclear how quickly it can be resolved.

Acting Justice Minister Frances Fitzgerald, who spent yesterday at talks about the formation of a new government, was last night facing calls to introduce emergency legislation to stave off the crisis.

The minister's office could not confirm whether she would break away from the negotiations to focus on the situation but said "the consequences and implications" of the ruling are being "examined in consultation with the Attorney General".

The ruling came as a result of separate cases brought by six young men - who were convicted of offences ranging from public order offences to driving without insurance, attempted robbery and violent disorder.

As a result of the ruling:

  • Criminals already behind bars could seek to be released.
  • Cases before the courts are likely to be delayed.
  • And uncertainty hangs over cases where a judge might be expected to hand down a suspended sentence.

Within hours of the ruling, two cases at Dublin Circuit Criminal Court stalled. The judge said she was only in a position to "request" that the accused attend the next sitting of the court.

Suspended sentences are used regularly by judges to give offenders an incentive to stay on the right side of the law.

If the person commits a separate offence while serving a suspended sentence, they are automatically returned to jail.

However, Mr Justice Moriarty declared key parts of Section 99 of the Criminal Justice Act 2006 unconstitutional, on grounds including that it allowed for significantly different treatment of persons as far as their rights of appeal are concerned.

Sources in the Department of Justice last night played down the significance of the situation - saying it would only affect a small number of minor cases.

They claimed there would only be a limited window of opportunity for someone to seek release from prison as District Court convictions must be appealed within 14 days and Circuit Court within 28.

But a senior criminal lawyer told the Irish Independent: "After this ruling, any decent lawyer will be down the courts seeking to test whether they can have their clients freed if they were dealt with under Section 99."

Problems with the application of Section 99 have been well flagged by the judiciary.

Mr Justice Moriarty said the Act was in need of "urgent and comprehensive review". He said it was drafted and enacted by persons "quite unacquainted of the actual practices of the courts".

Fianna Fáil justice spokesperson Niall Collins urged the minister to bring forward new legislation as a matter of urgency. He told the Irish Independent: "It is very clear from the judgment that the operation of Section 99 has been fraught with difficulty and has attracted so much adverse comments from judges that I very much doubt that an appeal to a higher court would be successful."

Irish Independent

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