Man loses bid for release via loophole

A prisoner has lost his bid for release in a major ruling concerning the effect of the striking down last month of the laws governing the courts powers to activate suspended sentences.

Mr Justice Paul McDermott’s judgment on the case of Paul Clarke is regarded as a test ruling with implications for at least 16 other cases by prisoners seeking their release. These include Alan Hutch, whose father Eddie Hutch Sr was among the victims of the gangland feud raging in Dublin.

The 16 brought separate proceedings following the decision by Mr Justice Michaal Moriarty last month that Section 99.9 and 99.10 of the Criminal Justice Act 20006, as amended, are unconstitutional.

The cases of Hutch and several others have been adjourned to Wednesday pending consideration of Mr Justice McDermott’s judgment.

While Mr Justice McDermott yesterday stressed that each application will have to be addressed on its merits, legal sources believe his findings on key issues are unlikely to assist some of the prisoners’ prospects of success.

Among those findings is that the relevant legal authorities do not establish the declaration of constitutional invalidity of the subsections “has a blanket retrospective effect”.

The judge found, for reasons including that Clarke pleaded guilty to the offences for which suspended terms were imposed, agreed to abide by the conditions for suspension but later breached them, and never challenged the Section 99 procedure, he was not entitled to benefit from the Moriarty ruling.

Clarke, the judge noted, had a chronic heroin addiction problem and very dysfunctional childhood. He was jailed in 2010 after pleading guilty to robbery and having a sawn-off shotgun. He received separate sentences of five years; eight years, with seven suspended; seven years, all suspended; and five years, with four suspended, on the various counts.

Under suspension conditions, he agreed to be of good behaviour for seven years following his release from prison in October 2013.

He failed to do so, relapsed into drug abuse and later pleaded guilty to driving offence charges arising from two separate incidents. That lead to the suspensions being reactivated in November 2014 and he also received a five-month suspended sentence and 30-year driving ban for the driving offences. He had lodged an appeal against the reactivation but no appeal date has been set.

In these proceedings brought under Article 40 of the Constitution, he argued he was not in lawful custody and was entitled to release arising from the Moriarty judgment.

Mr Justice McDermott said Clarke claimed his constitutional rights to trial in due course of law and equality before the law were violated because the sentencing hearing where his suspended terms were reactivated was conducted under a procedure later declared invalid.

While the criminal proceedings in this case had not been finalised as Clarke’s appeal against activation of the suspended terms had been lodged, the judge said he was not satisfied the finality argument must always prevail in deciding the retroactivity of a declaration of unconstitutionality. The behaviour of the applicant and all other circumstances must also be considered.


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