The High Court has held that parts of the law governing suspended prison sentences were unconstitutional in the circumstances of six joined judicial review cases, which raised difficulties appealing a later conviction before a suspended sentence could be activated.
In a judgment delivered on 19 April 2016, Mr Justice Moriarty considered section 99 of the Criminal Justice Act 2006, as amended. The six applicants had argued that the procedure could prevent them from appealing a later District Court conviction before a court considered activating an earlier suspended sentence. They said that if the earlier sentence took effect and they later won their appeal, they could have served time on the basis of a conviction that was overturned.
The cases arose from differing circumstances. They included later District Court convictions and a Circuit Court conviction, each followed by a remand or proposed hearing concerning an earlier suspended sentence. The judge described the case histories as sharing features but also having relevant differences. The applicants sought various remedies, including declarations on the constitutionality of section 99 and orders preventing or quashing steps in individual proceedings.
The respondents argued, among other things, that the constitutional challenges were premature or speculative, that the applicants claimed appeal rights beyond those provided by law, and that any problems could be addressed within the existing statutory framework. A submission for the Attorney General proposed that a court could defer the start of a reactivated prison term until an appeal against the later conviction was decided.
Justice Moriarty considered that proposal insufficient to resolve the practical difficulties. He noted concerns expressed by judges in different courts and the recurring applications linked to section 99. He referred to earlier cases addressing the potential for a person to be imprisoned after a suspended sentence was revoked, then succeed in appealing the later conviction that had prompted the process.
The judge concluded that, despite the presumption that legislation is constitutional, “the subsections under review of s. 99 fall to be viewed as unconstitutional in the context of the facts reviewed and the arguments made.” The judgment does not identify in its concluding paragraph the subsection numbers covered by that finding, so the precise scope of the ruling should not be inferred from the general discussion of subsections 9 and 10.
Separately, the court dismissed the Irish Human Rights and Equality Commission from Dean Cormack’s proceedings, with no order, explaining that the constitutionality question should be resolved before considering a declaration of incompatibility under the European Convention on Human Rights Act 2003. The judge said he would hear counsel on any other matters. The judgment therefore records those conclusions and the dismissal; it does not set out a final disposition of every remedy sought in the six proceedings.