Sunday 23 October 2016

Eilis O'Hanlon: Victims pay when dice loaded in favour of criminals

The real problem isn't that some offenders are returned to prison, but that they were let out at all, writes Eilis O'Hanlon

Eilis O'Hanlon

Published 24/04/2016 | 02:30

HIGH COURT: Judge Moriarty struck down certain subsections of the Criminal Justice Act. Photo: Tom Burke
HIGH COURT: Judge Moriarty struck down certain subsections of the Criminal Justice Act. Photo: Tom Burke

Duhaime's Legal Dictionary defines a suspended sentence as "a judicial prerogative retained by a sentencing judge on a person convicted of a crime by which the full sentencing of a convicted person is suspended or deferred until some future time commensurate with the convicted person's compliance with the terms of an interim probation order".

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Sounds sensible enough.

In fact, some might say it's a fair and enlightened way to deal with those who've committed serious crimes. They get a reduction in their sentences as long as they agree to keep their noses clean for the remainder of the unserved time behind bars. If they don't, then they can be rearrested and ordered back to jail to complete the full term.

Apparently, though, even that's beset with problems. Suddenly certain suspended sentences are being declared unconstitutional after prisoners spotted a loophole in the system and applied to have their sentences thrown out of court in consequence.

The latest prisoner to benefit was freed by the High Court on Friday. He had originally been charged with theft, receiving a three-year sentence in January 2014, with the last year suspended. He was subsequently rearrested and pleaded guilty earlier this year on a separate charge of domestic violence. Nice guy.

As a result, he was brought back to prison to serve the remaining one year of the earlier sentence. Then along came Tuesday's ruling.

Lawyers for the State didn't contest his release when his case came to the High Court. What would be the point? Mr Justice Michael Moriarty had already decreed by then that certain subsections of Section 99 of the 2006 Criminal Justice Act - as amended in 2007 and 2009 - were unconstitutional as they allowed for "significantly different" treatment of people who come before the courts, particularly in their right of appeal.

There is, of course, no suggestion that Justice Moriarty was wrong to issue his ruling. Clarifying the letter of the law is what judges are for, and the legal consensus seems to be that he was only putting the final nail in the coffin of an issue which has been flagged by constitutional experts since the act came into force, not least by Supreme Court Judge Mr Justice O'Donnell, who said the section in question had given rise to "innumerable practice difficulties and problems of interpretation".

To do otherwise would have led to cases where defendants who were being tried in one court then had a previous suspended sentence reactivated by another court, only for the later conviction to be overturned on appeal, meaning he shouldn't have been sent back to jail at all.

If the fault lies anywhere it's with the Criminal Justice Act, which was evidently not clear enough in its provisions, and the best solution would be to have a government in place at the earliest opportunity to clean up the mess which this has caused and will continue to cause as prisoner after prisoner now applies to the courts to have their own detentions under the terms of the legislation overturned on the grounds that the poor pets have been unfairly treated.

Because that, of course, would never do.

The numbers of those affected may be smaller than feared, as this ruling is only applicable to those whose sentences have already been reactivated and who are appealing a current conviction. Unless they questioned its legality at the time, they won't benefit. Problems down the line can also be avoided by adjourning cases currently before the courts while the legislation is amended.

Frances Fitzgerald, current Minister for Justice, says this can be done within days once a new government is in place.

But it highlights again the disconnect between how ordinary, law-abiding citizens hope the law operates and the way that it actually works in practice. All too often it seems as if defendants have armies of clever lawyers going through legislation with the proverbial fine tooth comb in search of loopholes that can exploited to the benefit of their clients.

Where are the equally dedicated teams of smart brains going through the same legislation in the service of victims? Isn't that what legal experts and Dail subcommittees are for? To spot anomalies and possible obstacles?

Moriarty was certainly unimpressed with the tests to which lawmakers had put their own legislation through, saying that the act seemed to have been put together by people who were "quite unacquainted with the actual practices of the courts", particularly the district and circuit courts. It's not what one would call reassuring.

Blunders such as this contribute to the widespread feeling that criminals are taking the proverbial mickey. That, having already been the beneficiaries of creeping liberalisation of the justice system, as sentences shrink and criminals are encouraged to think of themselves as the real victims, they keep pushing for further concessions so that the odds are weighted even more heavily in their favour.

Even the basis on which the law has now been effectively overturned contributes to that sense. What's wrong with "significantly different" treatment of defendants? Is it not proper to treat defendants differently on the basis of their different offences and case histories and the dangers they pose?

The offences for which the six men whose cases formed the basis of Michael Moriarty's ruling on Tuesday had been originally convicted ranged from public order offences to driving without insurance, attempted robbery and violent disorder. They were all serious charges, but some were obviously more serious than others. Within hours of Tuesday's ruling, even more serious cases were being referred back to the Circuit Criminal Court, with the Director of Public Prosecutions offering no contest to their claims that their sentences should be struck down.

One case involved a 23-year-old woman who had falsely imprisoned a recruitment agency owner in Harcourt Street while she ransacked the premises. A terrifying ordeal for the victim. Another was that of a man who, together with three others, dragged a young UCD student into a lane way off Dame Street, where they beat and robbed him.

Both had the final year of their sentences suspended. Having committed further offences on release, the suspended part was reactivated and they were returned to custody. Both won their cases last week and that part of each sentence was overturned.

Who knows who else may now be preparing to challenge the conditions under which they're being held, what offences they might have committed, or the risks to which the public might be subjected by their imminent release?

Though rather than slamming the workings of the legislation on suspended sentences for not being clear enough, perhaps what we should be doing is criticising the law for not ensuring that those guilty of such serious offences served what were already light sentences in full in the first place.

The false imprisonment in Harcourt Street was committed in July 2013. By last year, the guilty woman was already out again, meaning she served only two years for the offence.

The man in the mugging case was given a four-year sentence, with the last two years suspended. In other words, also a two-year sentence for a serious crime committed at a time when he already had 20 previous convictions. In January 2015, the same man was arrested again for stealing from a shop and committing a "minor" assault - namely, hitting the shopkeeper. Are we supposed to feel safe?

A further case at Cork Circuit Criminal Court last week involved a man who entered a shop in the city carrying a wheel brace and threatened a female assistant. She was so scared by this incident that she now carries a panic alarm.

This man had 423 previous convictions, but he too had the final year of his sentence suspended on condition that he be "required to enter into a good behaviour bond for the suspended period".

What do those words even mean? Why are we repeatedly fooling ourselves that defendants with charge sheets longer than the Lee are suddenly going to stop just because we're kind enough to let them off a part of their sentence?

How gullible are we?

The most disturbing revelation last week was that Irish courts are dealing with a huge number of cases every single week of defendants who've been given suspended sentences subsequently being returned to court on separate charges for offences committed while on suspension.

The system clearly isn't working. The very basis on which these prisoners are being released - that they will endeavour not to commit further crimes - is being flouted with arrogant regularity, while the courts and legislators do nothing. It makes a mockery of the arrangements.

Even if the new Dail manages to fix this problem -and that isn't guaranteed, as the bill has already been amended twice since 2006, to little effect - it still wouldn't address that concern. How many more dice must be loaded in favour of criminals before we admit that we're paying too high a price for our own leniency?

Sunday Independent

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