If someone with a suspended sentence hanging over them is convicted of a second crime, what happens?
Through the 20th century, the judiciary had no law to guide them on this question so they developed their own procedures. In 2006, however, the Fianna Fáil/Progressive Democrat coalition decided to clear up any confusion by enacting a law that spelled out exactly what should happen.
That law said: the person, once convicted of the new crime, must go back to the judge who gave him the suspended sentence in the previous case. That judge must then activate the suspended sentence and send him to prison.
The problem was the law, far from clearing up the confusion, added to it. Solicitors and barristers have long complained that the relevant part of that 10-year-old law, section 99, is cluttered and unclear.
Over the years High Court and Supreme Court judges have also indicated they found it difficult to understand. In the Supreme Court, Mr Justice Donal O'Donnell said it had given rise to "innumerable practical difficulties and problems of interpretation" and was in need of "urgent and comprehensive review".
The Department of Justice, which drafted the original law and guided it through the Oireachtas, appears not to have paid any attention to the courts' warnings.
This week it is living to regret its inertia because on Tuesday a clearly exasperated Mr Justice Michael Moriarty in the High Court declared two parts of section 99 unconstitutional.
In the judge’s view it was unfair to activate a suspended sentence on the basis of a new conviction which an individual had not even had the chance to appeal.
Conviction
After all, it could lead to a situation where a person would end up spending time in jail because of a conviction that was later quashed. Citing the constitutional provisions on the right to liberty and equal treatment before the law, he struck down the relevant parts of the Act.
Already the effects of the decision are being felt. Two prisoners went to the High Court on Thursday seeking to be released on the back of Tuesday’s declaration. Their cases will be heard on Friday.
Separately, in the Circuit Court, the State requested that “no order” be made in two cases where a suspended sentence was to be activated.
Implications
Overall, the implications of Mr Justice Moriarty’s decision are still difficult to assess. But there are at least two categories of people who can seek to benefit from Mr Justice Moriarty’s decision.
First, those who are in prison as a result of a suspended sentence having been activated after a second conviction. How many people fall into that category is anybody’s guess. They would certainly have a strong case. But working against them is the fact that the judiciary tends not to like releasing lots of people from prison on the back of its own decisions.
The judges could say you cannot benefit from this decision because you did not raise the point yourself when you were sent to prison.
There is a precedent for this: in 2006, when the Supreme Court declared part of a law on statutory rape unconstitutional, a number of convicted men sought to be released on the back of it.
However the Supreme Court kept them in jail on the basis that they had not raised the relevant point at their original trials. That is why, in a statement by Minister for Justice Frances Fitzgerald this week, she said there were "grounds for believing" that people who had not raised this issue in their own cases would not stand to benefit from Mr Justice Moriarty's decision.
The second category of people who could be affected are those who are convicted this week of a second offence while already having been given a suspended sentence. The procedure for activating the suspended sentence cannot be used now because the relevant section of the 2006 does not exist any more.
Legislation
The solution is for the Oireachtas to patch the problem by passing emergency legislation. Not having a new government is not necessarily a problem here; the new Dáil can pass legislation and the old Seanad remains in place as of now.
The potential problem, however, is that early next week the old Seanad will be replaced by a new one, and as things stand there will be no taoiseach to name his 11 nominees.
That would raise the question as to whether the Seanad has the power to pass a piece of legislation, potentially bringing us into uncharted constitutional waters.
