Monday 18 December 2017

Four cases appear before the High Court as fall-out from law on suspended sentences continues

The High Court, Dublin
The High Court, Dublin

Tim Healy

The High Court is continuing to experience fall-out from a significant judgment declaring the law governing the courts’ powers to revoke suspended sentences is unconstitutional.

Four cases affected by the decision came before the court on Monday.

Acting Minister for Justice Frances Fitzgerald has said emergency legislation is being prepared to address issues arising from Mr Justice Michael Moriarty’s judgment last week which declared key provisions of Section 99 of the Criminal Justice Act 2006, as amended, are unconstitutional.

Of the four cases which came before Mr Justice Seamus Noonan on Monday, three were adjourned to Wednesday pending the making by Mr Justice Moriarty of final orders arising from his judgment.

The scope of the final orders has implications for prisoners contemplating legal actions arising from the judgment.

One of the adjourned cases involves a prisoner who is challenging activation of a six year suspended term imposed on him after being convicted of charges including burglary and attempted robbery.

The suspended term was activated after he pleaded guilty to other charges. As he has an outstanding appeal against his earlier

conviction, the suspended term should not have been activated, his counsel Micheál P. O'Higgins SC said.

A second adjourned case involves a prisoner who argues Judge Moriarty's decision meant a District Court judge had no power to

activate a four month suspended sentence, imposed in January 2015, when he was convicted in January 2016 of another offence for which he received a ten month term, to run consecutively with the four month term.

The issue in that case is whether the ten month sentence is affected by Mr Justice Moriarty’s decision.

In the third adjourned case, it is argued an 11-month-term being served by the prisoner as a result of revocation of a suspended

sentence is unlawful. The 11-month term arises from a sentence of two years for drug offences, of which 11 months was suspended.

The fourth case affected by the Section 99 judgment which came before Mr Justice Noonan was a case stated in 2015 to the High Court from the District Court.

On the application of the DPP, it was struck out by Mr Justice Noonan on grounds it was “moot” or pointless in light of the Moriarty decision.

The case concerned a man with several convictions for offences including under the Road Traffic Acts and for theft.  He came before the District Court for purposes of revoking a previous suspended term after he committed further offences while that suspension remained active.

The District Court had in 2015 referred legal issues concerning Section 99 to the High Court for decision after the man’s lawyers

argued the relevant subsections of that Act did not provide for lawful revocation of a suspended sentence.

The issues referred by Judge Patrick Durcan included whether he should refuse to revoke the suspension because the accused had an outstanding appeal against his earlier conviction for which the suspended sentence was imposed.

The man's lawyers argued, if he won his appeal against the earlier conviction but his suspended term was revoked in the meantime, that would mean he was jailed on foot of a conviction overturned on appeal.

Because Mr Justice Moriarty had struck down the disputed subsections (Section 99.9 and 99.10),  lawyers for the DPP asked Mr Justice Noonan to halt the case. The judge did so and also granted costs of the proceedings to the prisoner involved.

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