Friday 24 November 2017

High Court defers final orders on suspended sentences judgement

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The High Court has deferred to next month making final orders following a significant judgment that the law governing the courts’ powers to revoke suspended sentences is unconstitutional.

Separate actions brought by eight prisoners following the judgment of Mr Justice Michael Moriarty have been adjourned to Friday to await another judge's ruling on a challenge by a different prisoner seeking his release on foot of the Moriarty decision.

When the eight cases came before Mr Justice Seamnus Noonan today, he noted Mr Justice Moriarty has yet to approve a final version of his judgment and had also deferred to next month making final orders arising from that judgment.

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, as amended, are unconstitutional. Those subsections govern the courts' power to activate suspended sentences.

Mr O'Higgins said his client's case should be adjourned to Friday as it raised issues similar to those to be addressed by Mr Justice Paul McDermott in his judgment, due on Friday, on another case.

Mr Justice Noonan said he would adjourn all eight cases before him to Friday and indicated they may be further adjourned to await the making by Mr Justice Moriarty of his final orders.

Conor Power SC, for the State, told the judge, in the case before Mr Justice McDermott, the State argued that prisoner was not entitled to be released because he had not previously raised issues concerning Section 99.

Earlier, Mr Power told Mr Justice Moriarty the State wanted to make submissions concerning the type of orders to be made to address the "infirmity" found in Section 99.

Mr Justice Moriarty said he was conscious of the "repercussions" of his judgment and wanted to ensure against "a potentially anarchic situation". 

While he did not think that would arise, he would give the State an opportunity to make its case on paper and the other side to respond.

He adjourned the matter for mention on May 6th with a view to fix a hearing date the following week for the heraing as to what final orders should be made.

The judge last week ruled in favour of arguments by six men the law under which it was proposed to activate the suspended senteces imposed on them is unconstitutional. The six are on bail pending the outcome of their separate cases.

The government has said emergency legislation is being prepared to address the situation arising from the judgment and indicated earlier this week the legislation would take into account the final orders arising from the judgment.

When the cases returned before Mr Justice Moriarty on Wednesday, lawyers for the six argued the court should make formal declarations Section 99.9 and Section 99.10 are unconstitutional and also restrain any move to activate the suspended terms imposed on their clients.

Mr Power, for the State, said it accepted the judgment but wished to know if the court intended to declare Section 99.9 and 99.10 unconstitutional "in total" or to make "more limited" declarations. The State wished to address the court as to what form of order was suitable.

Feichín McDonagh SC, for four of the men, said the State had not informed his side what its issues were with the judgment and, had it done so,  those could have been addressed. 

It seemed the State was going to make the "extraordinary" argument the court had not found Section 99.9 and 99.10 unconstiututional when it made the opposite argument last week before Mr Justice McDermott, counsel said. The court should not revisit its judgment, counsel urged.  Michael P. O'Higgins SC, for the other two prisoners, agreed with those arguments.

Mr Power said he was not seeking to "look behind" the judgment, the court had clearly given "an account of an unconstitutional operation" and that was "accepted".

The judge said the priority is the matter should be resolved before this law term ends on May 12th but the sides should have time to set out their arguments.

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