Paul Williams: Politicians playing catch-up as criminals seek to walk free
Published 21/04/2016 | 02:30
The decision of the High Court to strike down an important section of the criminal law which allowed for the activation of suspended prison sentences has yet again plunged the justice system into crisis.
This landmark ruling has created a legislative emergency at a time when we have no government to govern. Now we face the prospect of chaos as a string of convicted recidivist criminals clamour to get out of prison.
And let us just be absolutely clear about whom we are talking.
The long line of appellants who are currently behind bars and are now planning to invoke their constitutional rights as enunciated by Mr Justice Michael Moriarty on Tuesday, are repeat offenders, recidivists.
Until Tuesday someone found guilty of reoffending while serving a suspended prison term could be automatically committed to prison under Section 99 of the 2006 Criminal Justice Act to serve out the suspended portion of their initial sentence.
This was legislation which made great sense because it was a means by which the judiciary could demonstrate compassion to criminal offenders by incentivising them to go straight.
By suspending a portion of a prison sentence, the courts were giving the criminal some light at the end of the tunnel. They would serve less time behind bars on the condition that they stayed out of trouble when released.
In some cases the entire sentence was suspended, and no jail time was served - although the threat of activating the prison sentence loomed large in the background.
But if the individual did not appreciate the opportunity he was given, and was subsequently convicted of another criminal offence, then the reactivation of the suspended portion of his original sentence made perfect sense.
The offender got a chance, he didn't take it, so he got locked up. Tough.
Now a category of inmate in our prisons is eligible to seek release on the grounds of Mr Justice Michael Moriarty's controversial decision on Tuesday.
This is not the first time that the higher courts have turned the tables on the administration of criminal justice which has allowed convicted criminals and terrorists to walk free from prison.
The same happened some years ago when the Supreme Court struck down the Section 29 warrant which gave senior gardaí the power to issue warrants in the midst of an investigation when it was not practicable to seek one from a judge.
Scores of major criminal and terrorist trials and convictions were either abandoned or overturned and the suspects walked free on a technicality.
So where does the blame lie? With the politicians, and not the judiciary.
The constitutional problems with the application of Section 99 have been well flagged in the past.
Mr Justice Moriarty said the section was in need of "urgent and comprehensive review" and that it was drafted and enacted by persons "quite unacquainted of the actual practices of the courts".
In relation to the Section 29 warrant, the judiciary had been warning of difficulties for years.
But in both scenarios the Governments of the day, their legal advisers and legislative draftsmen paid no attention.
And the people who pay are the victims of crime.
The 'acting' Justice Minister Frances Fitzgerald was seemingly energised by this matter yesterday only when the media highlighted the significance of what is happening.
As always, the people we elected to lead us have let us down and are playing the eternal game of catch up.