A High Court judge has made formal declarations that the laws allowing the courts activate suspended sentences are unconstitutional.
Mr Justice Michael Moriarty formally declared Section 99.9 and 99.10 of the Criminal Justice Act 2006, as amended, are unconstitutional. Those subsections govern the courts' powers to activate suspended sentences.
It is understood emergency laws to deal with the consequences of the court's declarations are in the final stages of drafting and may be ready to be put before the Oireachtas within two weeks.
As well as the six prisoners who brought the actions challenging the constitutionality of the provisions, at least another 12 cases have been initiated as a result of Mr Justice Moriarty’s findings, made in a judgment delivered on April 19th and on foot of which he made the final orders on Wednesday.
Legal sources believe, now that the final orders have been made, other cases will be initiated but there is no indication exactly how many prisoners may be affected.
Having heard arguments on behalf of the prisoners and Attorney General, the judge refused the AG’s application to stop short of actually striking down the relevant subsections.
Reservations
While accepting the provisions were unconstitutional, it was argued on behalf of the Attorney the matter could be addressed via particular revocation arrangements in the six individual cases with which the judgment was concerned.
Mr Justice Moriarty said he had considerable reservations about the “appropriateness and fairness” of such a course.
He noted he had voiced concerns in his judgment about the “sheer proliferation” of legal challenges over the years arising from the operation of Section 99.9 and 99.10.
The issues raised on foot of these subsections have created a state “of considerable crisis” before the courts and have left participants in the legal process unsure where they stood in relation to advising their clients, he said.
Given the sheer incidence of cases that had lead to the constitutional challenges by these six prisoners, he was satisfied the appropriate thing to do was to make a declaration the two subsections are unconstitutional. He also awarded costs to the applicants but placed a 28 day stay on the costs order in the event of an appeal.
Jesuit school
Earlier, in arguments, Conor Power SC, for the Attorney, had argued the provisions could be deemed institutionalist without actually being struck down and the problems which the court had identified with the Section could be addressed by essentially releasing prisoners on bail pending appeals against convictions for the offence that had triggered their suspended sentence being activated.
Feichín McDonagh SC, for some of the prisoners, said, despite having gone to a Jesuit school, he could not understand the logic of what was being advanced on behalf of the AG. Given the court’s findings, it must strike down the provisions, counsel said.
Tom O’Malley BL, for the DPP, said she was neutral on the form of order to be made as that was a matter appropriate for the AG to address. The DPP had been proceeding on the basis the subsections are no longer operable and was neutral on the precise orders to be made.
The judge’s declaration of unconstitutionality means suspended sentences cannot be revoked or enforced under Section 99 if the person affected is convicted in another court of a second offence.
Mr Justice Moriarty struck down the revocation provisions arising from their effects on the right to liberty and to equal treatment before the law in relation to appeals. If a suspension was revoked upon conviction for a second or subsequent crime, and that subsequent conviction was later overturned on appeal, the person may have spent time in jail pending the appeal.
In his judgment, he said it should be possible to devise a system that would work. The many difficulties that had arisen with the subsections could have been avoided if any “proper effort” was made to consult the judges “who actually implement the procedures for activation of a suspended sentence”, he added.
