The importance of Mr Justice Michael Moriarty’s ruling is captured by leading criminal law solicitor Michael Staines’s observation that suspended sentences are “useless if they cannot be enforced”.
Mr Staines said suspended sentences are a “very important tool of the judicial system and its rehabilitative aspects” but their effectiveness depends on enforcement.
The judge’s declaration of unconstitutionality of the revocation provisions of Section 99 of the Criminal Justice Act 2006, as amended in 2007 and 2009, means suspended sentences cannot be revoked or enforced under Section 99 if the person affected is convicted in another court of a second offence.
According to barrister Catherine McGillicuddy, a High Court judgment of December 2015 found the common-law power to revoke a suspended sentence had not survived the enactment of Section 9, leaving the only power to revoke a suspension under the statutory scheme of Section 99.
“There is no point in having power to suspend a sentence if you cannot activate the suspension,” she said.
Re-enter a case
Ms McGillicuddy noted, under other provisions of Section 99 which remain in force, gardaí, prison governors and probation officers may still re-enter a case if they believe there has been behaviour such as to breach a suspended sentence.
Senior counsel Michael O’Higgins, an experienced criminal law barrister, agreed the ruling was very significant and said amending legislation was needed urgently, “the quicker, the better”.
There may be an issue whether amending legislation would apply retrospectively, he added.
Several lawyers said there may be difficulties with Section 99 cases already in the system and anticipated litigation before the High Court shortly.
It will be open to affected persons to bring challenges to their detention under article 40 of the Constitution and/or judicial review or other challenges.
Before Section 99 was introduced, a person given a suspended sentence might have that revoked if convicted of a new crime but the judge revoking the earlier suspension might not have known all the reasons why the original decision to suspend was made.
First crime Many criminal lawyers regarded the Section 99 law as a good development because it allowed the first crime for which a suspended sentence was given go back to the original judge.
However, there is widespread agreement Section 99 was badly drafted and created a nightmare in logistical terms, including its requirement applications for revocation be heard by the “next sitting” of the court, a stipulation creating major administrative difficulties and strongly criticised by the Supreme Court in judgments on the Carter case in March 2015.
Other problems relate 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.
Criticism of Section 99 began almost from its introduction in 2006 and it has been the subject of consistent and often trenchant criticism across all courts since, including the High Court, Court of Appeal and the Supreme Court.
Mr Justice Moriarty noted a 2014 High Court McCabe decision found in favour of a man who challenged the provision on broadly similar grounds as in the cases before him.
While the McCabe decision was partly reversed by the Court of Appeal, that reversal arose from a finding there was a subsisting right of appeal in the facts of that case, he said.
The High Court’s primary reasoning about the predicament of persons as a result of Section 99, including of fundamentally different treatment with regard to sentencing and rights of appeal, was “valid and highly persuasive”, he said.
The judge also endorsed calls in Supreme Court judgments in the Carter case in March last year by Mr Justice Donal O'Donnell and the late Mr Justice Adrian Hardiman for "urgent and comprehensive" review of Section 99.
Revocation provisions
Mr Justice Moriarty struck down the revocation provisions in Section 99.9 and Section 99.10 arising from their effects on the right to liberty and to equal treatment before the law in relation to appeals.
Arising from those provisions, the right to appeal was more limited and a situation could occur where a person could end up spending time in prison although the conviction that triggered the revocation of their suspended sentence was later quashed, he noted.
It was also “not of utter irrelevance” judges from all jurisdictions had expressed “at best pronounced wariness” towards Section 99, especially subsections 9 and 10; that a “weekly and apparently increasing incidence” of judicial review and article 40 applications relevant to the section was apparent and that protagonists, lay and professional, in the arena of criminal law “simply do not know where they stand”.
It should be possible to devise a system that would work, he added.
The many difficulties that had arisen 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”.
