Tuesday 12 December 2017

Q&A: Law meant people could be jailed before being able to lodge an appeal

The judge's ruling has prompted something of a crisis for the criminal justice system. Stock picture
The judge's ruling has prompted something of a crisis for the criminal justice system. Stock picture
Shane Phelan

Shane Phelan

Laws on the activation of suspended sentences have come under fire. What is all the fuss about?

Courts in Ireland can make orders suspending the execution of a sentence, in whole or in part, on condition that an offender is of good behaviour and does not commit further offences during a specified time frame. It means offenders are not clogging up prisons and have an incentive to stay on the right side of the law.

However, Mr Justice Michael Moriarty of the High Court has ruled that the law governing the power of the courts to activate such sentences, Section 99 of the Criminal Justice Act 2006, is unconstitutional. He did so in judicial review proceedings taken by six men. The judge's ruling has prompted something of a crisis for the criminal justice system.

What does his decision mean?

Unless the law is changed, someone who re-offends while still serving a suspended sentence will not be sent to jail to serve out the suspended portion of that sentence. Two reactivation applications have already been delayed as a result of the decision. The ruling also raises the prospect that people who have recently had the suspended portion of their sentence activated and are in prison at present could apply to the courts to have the activation set aside.

So convicted criminals could be set free?

That is certainly a strong possibility. As one prominent legal source put it last night: "After this ruling any decent lawyer will be down the courts seeking to test whether they can have their clients freed if they were dealt with under Section 99."

How big of an issue is it?

It is unclear how many people have been recently sent to prison under Section 99. But this is potentially a big issue given the high number of suspended sentences handed down by the courts each year.

In 2014 alone almost 8,800 cases involved the imposition of a suspended sentence.

What is the problem with the law as it stands?

Mr Justice Moriarty has deemed it to be unfair. The nub of the issue is that the law denies a person who has re-offended the same rights of appeal as everybody else.

For example, if someone who got a suspended sentence from the circuit court gets a further conviction in the district court, they are immediately sent to the circuit court to have the suspended sentence activated.

So the law denies them the opportunity to appeal the district court conviction first before the circuit court sentence is activated.

In theory this means a person could end up spending time in jail unfairly. After all, they may subsequently succeed in their district court appeal.

Has this ruling caught people by surprise?

Not really. This is not a new issue and the Government has had plenty of warning. The unfairness of the legislation has been raised by other judges in the past, including Mr Justice Donal O'Donnell of the Supreme Court, who found it gave rise to "innumerable practical difficulties and problems of interpretation".

So what happens next?

The judge has adjourned making final orders in the six cases for two weeks to allow lawyers for the men, the Director of Public Prosecutions and State to consider his findings.

The most likely solution is that emergency legislation will be rushed through the Dáil to solve the problem, but there has been no announcement on this yet.

The Department of Justice would only say it was examining the ruling and would be consulting the Attorney General.

Irish Independent

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