New law due after offender walks free

Emergency legislation is being drafted to close a legal loophole on suspended sentences after a prisoner walked free from court on the grounds his detention was unconstitutional.

Justice Minister Frances Fitzgerald said last night she would be asking the Government to approve the legislation at its next meeting with a view to having it enacted as soon as possible.

However, a legal expert who warned of the problems almost a year ago, said it may be possible to keep using the existing legislation as it retained sufficient powers that were not problematic.

Barrister James Dwyer said: “It may be an overstatement to describe the current situation as a crisis.”

The situation concerns people who get a suspended or partially suspended sentence for an offence and who offend again while the suspension is still in effect.

Conviction on the new offence means the suspension can be revoked and the full sentence imposed, but the High Court ruled on Tuesday that parts of Section 99 of the Criminal Justice Act 2006 dealing with the issue infringed on the rights of a person who wanted to appeal the new conviction.

Several more cases, similar to the one that saw a man convicted of theft and domestic violence walk free yesterday, will be determined by the courts next week and other challenges are expected, leading to pressure on the Government to act and to explain why the problem wasn’t fixed earlier.

James Dwyer gave an address on the problems with Section 99 to the Irish Criminal Bar Association last summer and followed it up with a detailed paper in the profession’s periodical, the Bar Review, last November.

“The problems with the drafting of section 99 have been flagged by judges and lawyers for some time,” he said yesterday.

However, Mr Dwyer stressed that only subsections 9 and 10 of Section 99 had been struck down by the High Court and he felt only a limited number of cases would be affected.

“It should be noted that there is another mechanism for revoking suspended sentences which will remain in the section, namely subsection 17.”

“If the section remains without new legislation amending it following the striking down of subsections 9 and 10, the rest of the section is arguably workable.”

When asked if she had been aware of the earlier warnings about the law prior to Tuesday’s ruling, Ms Fitzgerald said: “Section 99 of the Criminal Justice Act 2006 has been under review in the department and, as part of this, legal advices had been sought as part of the examination of the section.”