The fate of several prisoners awaits a High Court judge’s clarification of the scope of orders to be made following his significant judgment declaring the law allowing judges revoke suspended sentences is unconstitutional.
In a statement on Friday evening, Minister for Justice and Equality Frances Fitzgerald said she will be asking the Government to approve emergency legislation at its meeting next week “with a view to it being enacted as soon as possible thereafter”.
Just hours after a prisoner was released on Friday with the State’s consent on foot of Mr Justice Michael Moriarty’s judgment, and with similar applications by three other prisoners before the High Court, Mr Justice Seamus Noonan was told an “issue” has arisen as to the exact scope of the orders Mr Justice Moriarty intends to make arising from his judgment.
Those final orders were due to be made on May 5th but will now be addressed next Wednesday, Shane Murphy SC, for the Governor of Portlaoise Prison said.
Pending that, counsel asked for an adjournment of a challenge by a prisoner to the lawfulness of his detention in Portlaoise.
Mr Justice Noonan said he would adjourn the prisoner’s application to Wednesday as the court could not decide the issues fully until there was clarification of the scope of Mr Justice Moriarty’s orders.
Unconstitutional
Last Tuesday, Mr Justice Moriarty declared unconstitutional two subsections of Section 99 of the Criminal Justice Act 2006, as amended, giving the courts power to activate suspended sentences. The judgment, given in six cases raising similar challenges to Section 99.9 and Section 99.10, is regarded as having significant implications for some prisoners whose suspended terms were activated under those subsections and for the day to day operation of the criminal justice system.
The judgment prompted the issuing of proceedings by four prisoners seeking their release. One has been freed and the three other cases have yet to be decided
On Friday, Mr Justice Noonan, on consent of the State, freed one of the four on foot of a challenge, brought under Article 40 of the Constitution, to the legality of his detention following Mr Justice Moriarty’s decision. Article 40 requires the immediate release of any person not detained in accordance with law.
Released
Mr Justice Noonan was told by Conor Power SC and Ms O’Neill, for the Governor of Cloverhill Prison and State, they were not standing over that prisoner’s detention and he could be released.
The prisoner had received a three year sentence in January 2014, with the last 12 months suspended, on a charge of theft. He was released having served the two year custodial term but again remanded in custody earlier this month, for the purposes of activating the suspended 12 months, after admitting a different offence under the Domestic Violence Act.
Following the striking down of the revocation power, he claimed he was unlawfully in custody and the proposed revocation of the suspended part of his earlier sentence cannot proceed.
In another Article 40 case by a different prisoner, opposed by the State, Mr Justice Paul McDermott has reserved his decision to next week.
That prisoner was sentenced in 2010 to eight years imprisonment, seven of which were suspended, on robbery and firearms charges. The suspension was activated in November 2014 and the man was jailed after he pleaded guilty at Dublin District Court to road traffic offences for which he received a five month sentence and 30 year driving ban.
Conor Power SC, for the State, argued the man is validly detained as he had not appealed the road traffic offences and nor had he raised an issues previously related to Section 99.
Unlawful
Mr Justice Noonan dealt with a third prisoner’s case, brought via judicial review, which has been adjourned to Monday. In that, it is argued an 11 month term being served by the prisoner as a result of revocation of a suspended sentence is unlawful.
The 11 month term arises from a sentence of two years for drug offences, of which 11 months was suspended.
After the man was freed having served the custodial part of that sentence, he was charged with different offences under the Criminal Justice (Theft and Fraud Offences) Act, which lead to his 11 month suspension being revoked by the District Court on April 14th last and his been jailed. On the same date, he admitted the new offences for which he was sentenced to one month in custody, to be served consecutively with the 11 months.
Because he could not raise the necessary cash lodgment for bail pending his appeal against the District Court’s orders, he remains in custody.
On Friday afternoon, when another Article 40 application by the fourth prisoner came before Mr Justice Noonan, he was asked to adjourn it pending the making of final orders by Mr Justice Moriarty. That prisoner is in custody since 2012 on foot of revocation of a suspended term imposed for theft.
That prisoner had challenged the constitutionality of Section 99 in proceedings not yet decided and argues he is entitled to release following the striking down of the same subsections of Section 99 he is challenging. His counsel Brendan Gageby BL said his client was entitled to benefit from Mr Justice Moriarty’s findings.
