Wednesday 21 February 2018

Prisoners to seek release today following striking down of sentencing law

Mr Justice Michael Moriarty (Picture: Steve Humphreys)
Mr Justice Michael Moriarty (Picture: Steve Humphreys)

Shane Phelan and Tim Healy

At least 15 cases are due before the High Court today involving prisoners challenging their detention following the striking down of the law on suspended sentences.

The development comes after Mr Justice Michael Moriarty finalised a judgment originally made last month which found laws governing the activation of suspended sentences were unconstitutional.

His decision has prompted a raft of challenges, but none of these has been able to go ahead until now.

At least nine cases were before the courts last week, but several more are now being brought forward as well.

The prisoners are seeking judicial reviews of their detention or have made applications for inquiries into the lawfulness of their detention under Article 40 of the Constitution.

Although it was well flagged the judge would finalise his ruling yesterday, the Department of Justice said emergency legislation to fix the issue was still not ready.

"The department can confirm that legislation is being drafted urgently and the final orders will be taken into account in finalising the legislative proposal with a view to enacting it as soon as possible," a spokesman said.

Mr Justice Moriarty struck down two parts of Section 99 of the Criminal Justice Act as they curtailed the ability of individuals to appeal sentences.

The law meant it was possible someone who received a suspended sentence and later re-offended could end up having the suspended sentence activated before they could appeal against their second conviction.

This meant it was possible that a person could be held in jail before having had the opportunity to exhaust their right of appeal.

As well as the six prisoners who brought the actions challenging the constitutionality of the provisions, at least another 16 cases have been initiated as a result of Judge Moriarty's findings.

Legal sources believe, now the final orders have been made, further cases will be initiated but there is no indication exactly how many prisoners may be affected.

One prisoner has been granted release on bail pending the outcome of his challenge.

Having heard arguments on behalf of the prisoners and the Attorney General yesterday, Mr Justice Moriarty refused the Attorney's application to stop short of actually striking down the relevant subsections of the law.

In addition to the detention challenges being taken in the High Court, there are indications representatives of other prisoners have written to the State seeking that their clients be released.

Solicitor Cahir O'Higgins, who represents Mihai Stancu, one of the six men who successfully challenged the constitutionality of the law, said this method was preferable to making applications to the High Court.

"Practitioners have a responsibility to behave in a reasonable fashion and therefore should approach the State and not just run straight off to the High Court incurring unreasonable and unnecessary costs when a simple letter to the State might well suffice in curing the problem.

"In other words the person would be released," he said.

Irish Independent

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