The Court of Appeal has dismissed Anthony Foley’s appeal against the refusal of a High Court inquiry into the lawfulness of his detention in Portlaoise Prison. The appeal concerned whether a later ruling that parts of the Criminal Justice Act 2006 were unconstitutional could invalidate the earlier activation of his suspended sentence.
Foley had received an eight-year sentence in 2006 for three offences, with the final five years suspended subject to conditions. Following two later convictions in 2009, the Court of Criminal Appeal revoked the suspended portion in October 2011. Foley remained in prison serving that sentence.
In 2014, Foley brought separate civil proceedings challenging the constitutionality of provisions governing the remand and activation of suspended sentences and the appeal route from an activation decision. Those proceedings remained pending. In 2016, the High Court in Moore v DPP declared subsections 99(9) and 99(10) unconstitutional, finding that the process could interfere with a person’s right to appeal a triggering conviction before the activation question was decided.
Foley argued that the Moore ruling applied to his case because he had challenged the statutory process during his criminal proceedings and later brought constitutional proceedings. He said the provisions underpinning his detention were void from the outset and that his case fell within an exception to the finality principle in A v Arbour Hill.
The respondent argued that the Moore declaration did not retrospectively invalidate orders made in proceedings that had already concluded. The Court of Appeal applied the Supreme Court’s approach in A v Arbour Hill: a later finding of unconstitutionality does not generally unsettle a final criminal decision where the prosecution was not challenged on relevant grounds before finality.
The court said Foley’s earlier challenge during his criminal appeal concerned a different issue from the one decided in Moore, and had been determined in those criminal proceedings. It also rejected the argument that Foley’s separate civil action, begun after the criminal proceedings had concluded, kept those proceedings open or extended the effect of the later declaration.
The Court of Appeal held that the Moore ruling could not be used to invalidate the activation of Foley’s suspended sentence, which had occurred about two years before that ruling. It dismissed the appeal. The decision did not determine the substantive issues in Foley’s still-pending civil proceedings.