Judgment does not affect validity of criminal offences

Every day in courtrooms across the country judges impose suspended sentences where a custodial sentence is merited but the person before the court demonstrates that he/she deserves a chance to avoid imprisonment.

Suspended sentences are a useful tool for judges because the threat of imprisonment remains. Where a suspended sentence is imposed by a judge, it is made subject to conditions and lasts for a specified period of time. One condition which always attaches to a suspended sentence is that the person must not commit further offences during the period of the suspended sentence.

Section 99 of the Criminal Justice Act 2006, as amended, governs the imposition and revocation of suspended sentences. So it is little wonder that the High Court judgment delivered last Tuesday which struck down certain provisions of section 99 as unconstitutional has caused somewhat of a furore among lawyers, the judiciary, the Garda Síochána, State officials including the Minister for Justice, persons affected by the provisions and ordinary citizens concerned about the operation of law and order in the State.

By way of background, section 99 is an elaborate and technical provision of law designed to ensure that judges can effectively deal with persons who breach suspended sentences.

Section 99 created an automatic and mandatory regime whereby a person who was convicted of an offence during the currency of a suspended sentence would face serious consequences including (a) being returned to the original court which imposed the suspended sentence so that some, none or all of the original suspended sentence could be activated, ie that he/she might be imprisoned; and (b) being subject to consecutive sentences because section 99 set down a requirement that the sentence imposed for the offence committed during the currency of the suspended sentence would have to be consecutive to whatever portion of the original sentence was activated (if any).

While gardaí, prison governors and probation officers also had powers under section 99 to re-enter cases for breaches of suspended sentences, the effectiveness of these provisions depended on how pro-active the gardaí, prison governors and probation officers were in following up on cases where breaches had occurred.

Urgent review

In theory, section 99 provided an automatic, uniform method to ensure that persons did not simply get away with breaching suspended sentences. However, the procedural operation of the provisions concerning the activation of suspended sentences led to several challenges being brought before the courts.

Section 99 was closely scrutinised and in March 2015 the Supreme Court warned that it was "in need of urgent and comprehensive review".

One particular difficulty arose where a person was convicted of an offence during the currency of a suspended sentence and the automatic provisions set out in section 99 kicked in but the person later successfully appealed against his/her conviction for the offence which was alleged to have occurred during the suspended sentence.

People who found themselves in this situation complained that it was unfair that they were subject to the automatic provisions set out in section 99 before their appeal was determined. These people sometimes found that they were imprisoned for having breached their suspended sentence but the conviction which formed the basis of that breach was later overturned on appeal. They claimed that it was unfair that they could be imprisoned in this way.

In short, the judgment delivered by the High Court this week found that there was no protection available under section 99 for a person who wished to appeal the conviction for the offence which breached the suspended sentence before they were sent back to the original court which imposed the suspended sentence.

The impact of the High Court’s judgment is still being considered and debated among lawyers. In truth, the significance of the judgment will only become clear over the coming days and weeks as matters unfold and develop. In this regard, the High Court case is due to be listed before Moriarty J again next week for clarification on the scope of the judgment including the precise provisions which were found to be unconstitutional.

Also, the Minister for Justice has indicated that amending legislation is being drafted and should be made available to her “within the next few days”.

Of course, the impact of the judgment is likely to be tested in the courts. Already, persons who have appeared before the courts concerning the activation of their suspended sentence have found that their cases did not proceed because lawyers for the DPP applied for “no order” to be made on the basis that all lower courts are bound by the High Court decision.

Significant obstacle

Another category of persons who may seek to benefit from the High Court decision are those who have already had their suspended sentences activated and are now imprisoned. The potential for successful challenges brought by such persons will very much depend on the individual facts of a case.

However, any person seeking to rely on a windfall effect created by the High Court judgment may well encounter a significant obstacle due to the Supreme Court decision in A vs Governor of Arbour Hill Prison in 2006. In A, the applicant sought his release from prison on the basis that the offence for which he was imprisoned, namely, unlawful carnal knowledge, was found to be unconstitutional after his case had been finalised.

The Supreme Court refused to order his release. It was held that A’s case was finalised and he had never raised an issue about the constitutionality of the offence. As a result, the final decision in his case remained lawful and could not be re-opened notwithstanding the subsequent ruling rendering the offence for which he was detained unconstitutional.

It should be borne in mind that the situation which has arisen this week is entirely different to that which arose in 2006 at the time of the A case. The High Court judgment this week did not find any substantive criminal offence unconstitutional.

The judgment raises procedural problems but does not undermine the validity of any criminal offence in Ireland.

Katherine McGillicuddy is a barrister