Activating suspended terms unconstitutional

A High Court judge has made formal declarations that laws allowing the courts activate suspended sentences are unconstitutional. At least 15 cases are to come before another judge today, with five of them initiated yesterday.

Yesterday, arising from his judgment delivered in cases by six other prisoners on April 19, Mr Justice Michael Moriarty formally declared sections 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 16 cases have been initiated as a result of Judge Moriarty’s findings.

Fifteen of those are due before Mr Justice Seamus Noonan today, while Mr Justice Paul McDermott has reserved judgment on the 16th pending Mr Justice Moriarty’s final orders.

Legal sources believe more cases will be initiated.

Having heard arguments on behalf of the prisoners and attorney general yesterday, the judge refused the AG’s bid to stop short of actually striking down the relevant subsections.

Given the sheer incidence of cases that had led 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.

In his judgment, Mr Justice Moriarty also 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.


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