The Government may change the law on the use of suspended jail sentences “within days” after a judge ruled that enforcing them can be unconstitutional, Frances Fitzgerald has said.
The caretaker Justice Minister has been forced to act swiftly to plug a hole in legislation after the High Court backed a challenge by six convicted offenders who argued against their being imprisoned.
But Ms Fitzgerald claimed the landmark judgment would not lead to a landslide in offenders seeking release from jail or fighting their sentences.
“There are no grounds for believing that persons generally who had not raised this issue in the course of proceedings which have been concluded will now be able to benefit from the finding of the High Court,” she said.
Ms Fitzgerald said the acting Government is taking all necessary action in the wake of Judge Michael Moriarty’s ruling, which found key elements of the Criminal Justice Act 2006 were in breach of some offenders’ rights.
“While legislation cannot retrospectively affect criminal cases before the courts, if, in the light of the consultations with the Attorney General, it is concluded that amending legislation is necessary, this can be introduced in the Dail very quickly – if necessary within days,” she said.
But one of the country’s leading criminal lawyers, Cahir O’Higgins, said “huge” uncertainty has been cast over the whole system of suspended sentences.
“The judgment is extremely significant, it appears as if the rationale for [Judge Moriarty’s] decision is based on the unfairness in the way the process works,” he said.
“There is now a huge level of uncertainty concerning the imposition of suspended sentences both present and future.”
The suspension of a sentence by a judge generally allows a convicted offender to avoid prison if they remain on good behaviour.
But confusion has reigned over the enforcement of the original sentence and the problems that causes if a person re-offends and would normally be sentenced by a different court or judge for the second offence.
Despite being tweaked twice already, the law remained controversial.
Judge Moriarty’s ruling, in a 30-page judgment on Tuesday, plunged the use of suspended sentences by courts country-wide on a daily basis into further disarray.
Attorney General Maire Whelan, the Government’s chief legal advisor, has been asked to make sense of the outcome.
Six young men, convicted of offences including driving without insurance, attempted robbery and violent disorder, mounted the legal challenge over their suspended sentences being activated.
Judge Moriarty said the contentious section of the law “was drafted and enacted by persons quite unacquainted of the actual practices of the courts, and in particular of the District and Circuit Courts”.
He added: “I am quite certain that the myriad difficulties which have arisen with the section could have been avoided if any proper effort had been made to consult the judges who actually implement the procedures for the activation of a suspended sentence.”
