A number of prisoners are expected to challenge the legality of their detention before the High Court tomorrow after a judge finalised a judgment that now formally declares part of the law on suspended sentences as unconstitutional.
Mr Justice Moriarty's declaration of unconstitutionality means suspended sentences cannot be revoked or enforced under parts of Section 99 of the Criminal Justice act if the person affected is convicted in another court of a subsequent offence.
The judgment, which was issued last month in six test cases, led to a further 12 cases taken by prisoners who said their detention was unlawful.
Today's finalisation of the judgment will allow those new cases to proceed. It is expected they will come before the High Court tomorrow. Further cases may also be taken but there is no indication of how many prisoners could be affected.
The ruling affects those who were sent back or risk being sent back to prison to serve out suspended sentences after they were convicted of a new offence and if they wish to appeal that new conviction.
Emergency legislation had also been promised by the Department of Justice to deal with the fallout from the judgment.
Mr Justice Moriarty struck down the law in subsection 9 and 10 of Section 99, which gave the courts the power to revoke a suspended sentence where a person has offended again.
He said if the subsequent offence was overturned on appeal the person's detention pending that appeal would be a breach of their right to liberty and equal treatment.
In his judgment, he said it should be possible to devise a system that would work.
The many difficulties that had arisen with the subsections could have been avoided if any "proper effort" was made to consult the judges "who actually implement the procedures for activation of a suspended sentence", he added.
Lawyers for the Attorney General had asked the judge to stop short of striking down the relevant parts of the Act.
They argued the issue could be addressed through particular revocation arrangements in the six individual cases involved in the judgment. Senior counsel Conor Power said prisoners could be released on bail pending appeals on new convictions.
However, the judge said he had considerable reservations about the appropriateness and fairness of such action.
He said he had voiced concern about the sheer proliferation of legal challenges over the years arising from the operations of those sub sections of Section 99.
He said the issues raised had created a state of considerable crisis and left participants in the legal process unsure where they stood in relation to advising their clients.
Lawyers for the prisoners said given the courts findings, it must strike down the provisions of the Act.
