Prisoner loses bid for release in major ruling for suspended sentences

A prisoner has lost his bid for release in a major ruling on Friday concerning the effects 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 Senior was among the victims of the gangland feud still raging in inner city Dublin.

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

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

While Mr Justice McDermott stressed in that judgment 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 legal authorities do not establish the declaration of constitutional invalidity of the subsections “has a blanket retrospective effect”.

The judge also found, because Clarke pleaded guilty to the offences for which suspended terms were imposed and had agreed to abide by the conditions for suspension but later breached them, and had also 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 a very dysfunctional childhood with both parents addicted to heroin.

He sought his release from Mountjoy Prison under Article 40 of the Constitution, arguing he was not in lawful custody.

He was jailed in 2010 after pleading guilty to robbery and possession of a sawn-off shotgun.

He received separate sentences of five years; eight years with seven suspended; seven years, all of which was suspended; and five years, with four suspended, on the various counts.

All the sentences were to run consecutively.

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

He failed to do so and in September 2013 pleaded guilty to charges arising from separate incidents in 2015 including driving without insurance and a license.

That ultimately lead to the earlier 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 lodged an appeal in 2014 against the reactivated sentence but no appeal date has been set.

While his offences were serious, the suspension of most of his sentences was in the hope he was determined to stay out of trouble and support his partner and child but he relapsed into drug abuse and the court decided there was no option but to activate the suspended sentence.

While Clarke argued he was entitled to release arising from the Moriarty judgment, none of the elements of potential prejudice to the six prisoners involved in that challenge were relevant to the facts of this case, the judge said.

Clarke, he noted, claimed his right to trial in due course of law and to 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 an 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.

There was no evidence Clarke suffered any fundamental injustice in relation to the hearing concerning revocation of his suspension, he held.

He was convicted and sentenced following a trial in due course of law, had not appealed that conviction, undertook to abide by the conditions of the suspended sentence, breached those and committed further offences to which he pleaded guilty in 2014.

He had not experienced the prejudicial or suggested discriminatory effects of the disputed sub-sections found to apply to the prisoners in the Moriarty ruling. Nor had he during the revocation hearing sought to challenge the constitutionality of the sub-sections but he was now challenging re-activation 17 months after the end of the relevant hearing.

There were no exceptional circumstances here which required the declaration of unconstitutionality should have a retrospective effect, much less the “blanket effect” suggested, the judge ruled.