The High Court has refused a judicial review application challenging the activation of a suspended sentence, finding that the applicant was not entitled to benefit from a declaration that related provisions of the Criminal Justice Act 2006 were unconstitutional.
In a judgment delivered on 16 June 2017, Ms Justice Faherty said the applicant’s criminal proceedings had not reached finality because appeals against the activation and the sentence for a later offence remained pending. That did not, however, entitle him to the relief he sought.
The suspended sentences arose from a 2013 Circuit Court case involving the unlawful taking of a vehicle, drink driving and driving without a licence. The court imposed a three-year sentence and two concurrent six-month sentences, all suspended for three years. In May 2015, after the applicant pleaded guilty to dangerous driving causing death and serious injury, the Circuit Court activated those sentences and imposed a further five-and-a-half-year prison term, to begin after the earlier sentences.
The applicant argued that the Circuit Court lacked authority to activate the suspended sentences under sections 99(9) and 99(10) of the 2006 Act. The High Court had declared those provisions invalid in Moore v Director of Public Prosecutions [2016] IEHC 434. He sought orders quashing the activation order and committal warrant, and a declaration that his detention under the warrant was unlawful.
The respondents opposed the application, relying on earlier decisions rejecting similar post-Moore challenges. They pointed to the applicant’s guilty pleas, his failure to challenge the statutory procedure at the time, and the absence of any claim that the hearings involved unfair procedures or fundamental injustice. The applicant disputed that his conduct barred relief and maintained that the invalidity of the statutory provisions deprived the Circuit Court of jurisdiction.
Justice Faherty said the applicant could raise the constitutional issue because his appeals remained live. But she concluded that the authorities did not give the Moore declaration blanket retrospective effect. She also noted that the Circuit Court had acted in good faith under the law as it was understood at the time, and that the applicant’s counsel had acknowledged at the activation hearing that the court could impose all or part of the suspended sentence.
The judge said the applicant could argue in his pending appeal that activation was excessive or disproportionate. She found no departure from fundamental requirements of due process or natural justice that would justify the judicial review relief sought. Bound by the Court of Appeal decision in Clarke, she denied the requested relief.