The High Court has refused Anthony Foley’s application for release from prison, ruling that a declaration invalidating parts of the suspended-sentence law did not entitle him to retrospective relief in his case.
Mr Justice McDermott delivered the judgment on 14 June 2016. Foley sought an inquiry under Article 40.4.2 of the Constitution after the High Court had declared sections 99(9) and 99(10) of the Criminal Justice Act 2006 unconstitutional in Moore & Ors v Director of Public Prosecutions & Ors. He argued that his detention depended on powers under those provisions and that he should benefit from the Moore decision.
Foley was serving a five-year suspended sentence imposed after an appeal against the leniency of his original sentence. Following later convictions for handling stolen cigarettes and possessing a screwdriver with intent to use it in a theft, the Court of Criminal Appeal revoked the suspension on 12 November 2012. It ordered the full five-year term to be served. The Supreme Court later upheld the Court of Criminal Appeal’s jurisdiction to decide the revocation, on a certified point of law.
The High Court held that the criminal proceedings had reached finality when the Supreme Court ruled on 23 January 2014. Foley’s separate constitutional proceedings, begun in July 2014 and still pending, did not mean that the later Moore declaration applied retrospectively to him. The judge said that allowing a challenge started after criminal proceedings had concluded to secure the benefit of a later ruling would undermine the principle governing retrospective declarations of invalidity.
The judge also distinguished the basis of the Moore ruling from Foley’s case. Moore concerned people whose suspended sentences could be revoked before they had a chance to appeal their later convictions. That issue did not arise for Foley, who pleaded guilty to the offences that triggered the revocation process. His main argument concerned the scope of his appeal rights after revocation. He did not challenge section 99(12) in this Article 40 application, and the court said it had to treat that provision as constitutional while his separate proceedings remained pending.
The court found no evidence that the revocation hearing lacked fair procedures or breached natural justice. It concluded that Foley had not shown the exceptional failure of fundamental requirements needed for release under Article 40. The application was refused.