The Court of Appeal has dismissed Paul Clarke’s appeal against a High Court decision refusing to order his release from prison under Article 40 of the Constitution. The court held that his detention was not unlawful and said he could challenge the full activation of his suspended sentences through a separate sentence appeal.
Clarke had been released from prison in October 2013 after serving the custodial part of sentences imposed for robbery and firearms offences. The remaining sentences were suspended subject to conditions, including keeping the peace, probation supervision and participation in drug treatment.
In November 2014, the Circuit Court reactivated the suspended sentences after Clarke breached conditions. The Court of Appeal judgment recounts that he had pleaded guilty to road traffic offences arising from two incidents in February and April 2014, including driving without insurance. At the reactivation hearings, his counsel argued that activating any part of the suspended terms would be disproportionate given the nature of the triggering offences.
The appeal followed a 2016 High Court judgment concerning the effect of the decision in Moore and Others v DPP, Ireland and the Attorney General, which had declared Criminal Justice Act 2006 procedures for returning certain cases to the sentencing court unconstitutional. Clarke argued that the procedure used in his case made his detention unlawful.
The Court of Appeal said the Circuit Court’s consideration had expanded beyond the procedure challenged in Moore. It concluded that the sentencing judge had considered broader information about Clarke’s compliance with probation and treatment conditions, and appeared to be exercising the court’s general power under section 99(17) to revoke a suspended sentence when conditions were breached. The appeal court said that power did not depend on Clarke being returned to court through the specific procedure struck down in Moore.
The judgment also gave an alternative reason for dismissing the appeal. It said the existence of Clarke’s pending sentence appeal did not automatically entitle him to release, and that the hearings on reactivation had been full and fair. Clarke could argue in that appeal that activating the sentences in full was excessive and disproportionate. The Court of Appeal found no failure of fundamental due process that would justify release under Article 40 and dismissed the appeal.