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Irish law around suspended sentences ruled unconstitutional

It means emergency legislation will likely be required.

Image: Niall Carson/PA Images

THE HIGH COURT has ruled that certain aspects of the law governing suspended sentences are unconstitutional.

The decision was made today by Judge Michael Moriarty after the constitutionality of Section 99 of the Criminal Justice Act 2006 was challenged.

The decision could have serious implications for the criminal justice system and emergency legislation will likely be required to deal with the problem.

Asked whether this is the case, the Department of Justice has confirmed that officials are now consulting with the Attorney General to study the inplications of the judgement.

Section 99 deals with the power of courts to suspend sentences and also to activate suspended sentences.

This section being ruled unconstitutional means that the power of the courts to activate suspended sentences has currently been removed.

Justice Moriarty noted in his judgement that Section 99 frequently causes difficulty and is in need of “urgent and comprehensive review”.

He said the section was unconstitutional on a number of grounds, including it allows for significantly different treatment of persons before the law as far as their rights of appeal are concerned.

The judge said that, while enactments are presumed to be 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. 

Justice Moriarty gives a number of examples which demonstrates the difficulties Section 99 causes, these include the legal problems that occur when a criminal with a suspended sentence is convicted of a second sentence and wants to appeal the second conviction to a higher court.

Played out

The judge’s decision and its possible implications were already referenced in at least two subsequent cases this afternoon.

A State solicitor told Judge Melanie Greally at Dublin Circuit Criminal Court that the DPP was looking for time to consider the judgment but it was his understanding that sub-sections 9 and 10 of the Act were now unconstitutional.

He requested that no order be made in the two cases appearing before her under section 99 and that the two men be requested to attend at the next sitting of the relevant District Court.

In such cases the accused are usually remanded back to the District Court which has dealt with any new offences they have allegedly committed.

Judge Greally noted that because of Mr Justice Moriarty’s decisions she no longer has jurisdiction to remand a person but can only “request that the accused undertake” to attend the next sitting of that court.

- Additional reporting by Sonya McLean

Read Justice Moriarty’s in full here >

Read: Elderly man cleared of shooting two intruders, killing one >

Read: Irish people seem to trust the judges and the legal system… >

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Rónán Duffy

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