High Court declares suspended sentencing regime unconstitutional

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Mr Justice Moriarty noted that the section had had a relatively chequered history, as judges around Ireland attempted to navigate situations in which convicted individuals were given a suspended custodial sentence, following which a further charge was brought during the relevant period.

He noted that the section had already undergone two processes of amendment.

The hearing involved six cases, who in addition to the usual remedies sought by way of judicial review in such instances, has each made “a concerted and diligently researched assault on the constitutionality of s. 99, given the manner in which adherence to the operative portions of s. 99 has impacted on each of their individual clients.”

The judge outlined the text of the section, and summarized the factual backgrounds of each of the six cases, all of which involved young men who had been given suspended sentences, and who argued that s.99 was unfair and unconstitutional due to its impact on the ability of the accused to appeal.

He then turned to the case law and submissions. He noted that s.99 had engaged all jurisdictions, and that the most significant and recent Supreme Court case was delivered on 5th March, 2015, in the joined cases of Director of Public Prosecutions v. Jeffrey Carter, and Director of Public Prosecutions v. Sean Kenny.

In this case, the Supreme Court spoke of the need for “urgent and comprehensive review” of the section.

In the High Court, in Sharlott v. Judge Collins and Judges of the Dublin Circuit Court and the Director of Public Prosecutions, Hanna J. stated in relation to the applicant, that “Were he ultimately to succeed and to stand innocent of the District Court charge, he would undoubtedly suffer a grave injustice were the Circuit Court sentence in the meantime activated.”

Lastly, he noted that in the course of a detailed Paper prepared by District Judge Gráinne Malone of the District Court on the general topic of Suspended Sentences, she noted at the outset “given the scarcity of the reported decisions, the area of suspended sentences and s. 99 has caused some confusion and practical difficulties in the District Court”.

The judge then turned to what he considered to be the three most obvious situations of potential jeopardy or prejudice that may arguably arise under the section:

First, an individual could be given a suspended sentence for a relatively serious offence by a District Court, and then have further criminal proceedings brought within the period in a different District Court. If convicted, he would then be brought back before the original District Judge, before a sentence hearing could take place before the second judge. He may wish to appeal the latter conviction, but would be unable to under s.99.

Second, if the same situation occurred but the second criminal offence was more serious and before the Circuit Court, the entitlement to appeal would only extend to a more truncated right to an appeal before the Court of Criminal Appeal, which would not be a full rehearing, and in which he would have to persuade that court that the outcome was wrong in law on grounds that can be sustained.

Another scenario, although one less demonstrably at the heart of the s. 99 controversy, was a situation in which a young offender, who was facing reactivation on foot of his still operative suspended sentence by reason of having been convicted of a further offence, had to consider the possibility that he might fare better by abandoning the appeal and throwing himself upon the mercy of the initial judge who had treated him with clemency, and who might still be disposed to reactivate only at worst a limited portion of the suspended sentence.

In essence, the respondents claimed that the applications to impugn the relevant portions of the Section were premature, speculative, contend for appellate entitlements beyond what the Oireachtais had properly provided for, that the threshold for having a legislative measure declared unconstitutional had not been reached, and that, insofar as any limited problems have been established, they could readily and properly be addressed within the existing statutory framework.

The judge observed that Mr O’Malley B.L., on behalf of the Attorney General, had on occasion adopted less sanguine views of the potential difficulties under the section than those he was (as professionally obliged to do) putting forward on behalf of his client.

The judge stated that:

“The Constitution cannot be pronounced upon for reasons of expedience or popularity, but it is not a factor of utter irrelevance that judges from all jurisdictions have expressed at best pronounced wariness towards the provisions of s. 99, especially subs. 9 and 10, that a weekly and apparently increasing incidence of Judicial Review and Article 40 applications relevant to the section is apparent, and that protagonists, lay and professional, in the arena of criminal law simply do not know at present where they stand.”

He cited with approval the case of Damian McCabe v. Ireland and the Attorney General IEHC 435, in which Hogan J observed that “the significantly differing treatment of otherwise similarly situated accuseds, so far as rights of appeal are concerned, is incapable of objective justification, and let it be recalled, no such justification has really been advanced, the conclusion that such a state of affairs plainly offends the guarantee of equality before the law and Article 40.1 is, accordingly, inescapable”.

Hogan J proceeded to state that any such law as the provisions comprised in the Section presently under review must, by virtue of Article 34.3.4, comply with the principles articulated by Henchy J in the case of King v. Attorney General I.R. 233, since the law must not ignore the fundamental norms of the legal order postulated by the Constitution.

The judge concluded that:

“I am persuaded that notwithstanding the presumption of constitutionality that exists in relation to enactments, and the regard and respect that Courts must show to enactments of the Oireachtais, the subsections under review of s. 99 fall to be viewed as unconstitutional in the context of the facts reviewed and the arguments made.”