Thursday 19 July 2018

Two prisoners to seek release today after law is struck down

Frances Fitzgerald. Photo: AFP/Getty Images
Frances Fitzgerald. Photo: AFP/Getty Images

Shane Phelan and Tim Healy

Two prisoners will today challenge the legality of their detention following the High Court's decision to strike down the law governing the activation of suspended sentences.

One of those seeking release is a convicted thief who was sentenced in 2014 to three years with the final 12 months suspended.

He is being held in Cloverhill Prison ahead of a planned application to activate the suspended portion of his sentence after he pleaded guilty to a domestic violence offence.

The second man is in prison after a seven-year suspended sentence he received was activated.

Lawyers for both men have made applications, brought under Article 40 of the Constitution, seeking their release.

The cases are the first in a raft of challenges expected to hit the courts after Mr Justice Michael Moriarty earlier this week issued a ruling striking down laws governing the powers of the courts to activate suspended sentences.


Three days on from that ruling there was still no sign last night of any announcement from the Department of Justice on a solution to the issue, which has caused a major crisis for the criminal justice system.

Officials have been consulting with Attorney General Máire Whelan.

Justice Minister Frances Fitzgerald signalled that emergency legislation could be brought within days, but it remains unclear if this will happen.

As well as triggering challenges to the detention of people already in custody, the Moriarty ruling has also meant the courts have been unable to deal with new applications to activate sentences.

It is understood the Director of Public Prosecutions has informed State counsel not to seek such orders in light of the judgment.

The Office of the DPP declined to comment yesterday.

The cases of the two prisoners seeking release today were mentioned to Mr Justice Seamus Noonan in the High Court yesterday.

Conor Power SC, for the State, said both applications raised similar issues and he wanted time to address those.

He said the State was dealing with issues arising from the Moriarty judgment.

Michéal P O'Higgins SC, for one of the applicants, said a remand order was the sole basis for his client's detention and, as a result of the ruling, that appeared to "fall away".

Mr Power said the legal issues that arose in that particular case may not be as simple as indicated.

Mr Justice Noonan said there are "very significant issues" arising from Mr Justice Moriarty's decision and the State should have a reasonable opportunity to consider its position.

The judge noted one of the applications was already fixed for hearing before Mr Justice Paul McDermott today and he said the second could also be adjourned to then.

Mr Justice Moriarty deemed Section 99 of the Criminal Justice Act 2006 to be unfair as it effectively denied a person who had re-offended the same rights of appeal as everybody else.

It allowed for a person to be immediately committed to prison on foot of the activation of a suspended sentence without first being allowed to appeal against the second conviction which triggered that activation.

The law had been controversial for some time and was the subject of much criticism from the judiciary.

Irish Independent

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