Court of Appeal: Man not entitled to retrospective application of the declaration of unconstitutionality in Moore

A man remanded into custody as a result of breaking the conditions of his suspended sentence has lost a constitutional challenge to his sentence in the Court of Appeal.

The man had argued that since subsections 99 (9) and (10) of the Criminal Justice Act 2006 had been declared unconstitutional in Moore v DPP , that he was entitled to benefit from this decision. Dismissing the appeal, Mr Justice Alan Mahon held that Moore did not retrospectively invalidate his prosecution.


In October 2006 Mr Anthony Foley was sentenced at Dublin Circuit Criminal Court to an eight-year sentence in respect of offences concerning the handling of stolen property and false imprisonment, suspended on conditions for five years.

In April 2007, the DPP made an application for a review of that sentence pursuant to s. 2 of the Criminal Justice Act 1993 to the Court of Criminal Appeal – which upheld the eight-year term but directed that only the final five years should be suspended.

In August 2009 – therefore within the period of the suspended sentence – Mr Foley was convicted of handling stolen property, and remanded to the Court of Criminal Appeal under s. 99(9) of the Criminal Justice Act 2006 (as amended).

In September 2009, he was also convicted for possession of a screwdriver with the intention that it be used in connection with the theft of property from a motor vehicle and likewise, he was remanded to the Court of Criminal Appeal pursuant to s. 99(9) of the 2006 Act in respect of that conviction.

In October 2011, the Court of Criminal Appeal revoked the five year suspended sentence resulting in Mr Foley being sent back to prison.

The Court of Criminal Appeal granted a certificate under s. 29 of the Courts of Justice Act 1924 certifying that the case involved a point of law of exceptional public importance namely:

“Where the Court of Criminal Appeal has varied a sentence pursuant to s. 2 of the Criminal Justice Act by wholly or partly suspending it, is the Court of Criminal Appeal the appropriate Court vested with jurisdiction to consider the revocation of the suspended sentence pursuant to s. 99(10) of the Criminal Justice Act 2006, as amended?”

In January 2014, the Supreme Court answered this question in the affirmative.

Following this, in July 2014 Mr Foley instituted declaratory proceedings by way of plenary summons seeking, inter alia, a declaration that s. 99(9)(10) and (12) of the Criminal Justice Act 2006 (as amended) are invalid having regard to the provisions of the Constitution.

In November 2014, a defence was delivered, but the Court heard that no further step had been taken in these proceedings since that time.


In the interim, Moore and ors. v. DPP and ors. IEHC 244 established that ss. (9) and (10) of the 2006 Act were invalid on the basis that they were repugnant to the Constitution.

The issue in Moore was the requirement under s. 99 (9) and (10) that the activation of a sentence be considered prior to any appeal that might be taken against the conviction and the determination by the original sentencing Court as to whether the suspended sentence or a part of the suspended sentence be activated. In Moore, the High Court held that the said subsections were repugnant to the Constitution because they unduly interfered with the right of appeal from the District or Circuit Courts insofar as they prevented persons from initiating and concluding appeals against conviction prior to the determination of the activation issue – thus the provisions were invalid as being repugnant to Art. 38.1 and Art. 40.3 of the Constitution.

Court of Appeal

Relying primarily on the Supreme Court’s decision in A v Governor of Arbour Hill Prison 4 I.R. 88; IESC 45, it was contended by the respondent (the Governor of Portlaoise Prison) that the declaration in Moore that s. 99(9) and (10) of the 2006 Act was unconstitutional did not retrospectively invalidate their application in the prosecution of Mr Foley, and more specifically in the activation of Mr Foley’s suspended sentence; and therefore could not undermine orders made in concluded proceedings prior to the declaration in Moore

However, Mr Foley maintained that his case came within the exception to the rule as provided for in A, in that he sought to sought to impugn the bringing or conduct of the prosecution prior to its conclusion in early 2014, some six months or so prior to the institution of his civil proceedings.

Considering Ryan v. DPP IEHC 380; and Larkin v. The Governor of Mountjoy Prison IEHC 680; the Court of Appeal was satisfied that Mr Foley could not succeed in his appeal.

Mr Foley was not entitled to benefit from the declarations of unconstitutionality in Moore in relation to subsections (9) and (10) in a manner which would serve to undermine or invalidate the activation of his five year suspended sentence at a time approximately two years prior to the decision in Moore and at a considerable remove after the conclusion of his criminal proceedings.

The Court was also satisfied in the circumstances that the institution by Mr Foley of civil proceedings in July 2014, some six months following the conclusion of the criminal proceedings, could not reopen the retrospectivity aspect of the decision in Moore in a manner which could undermine or invalidate the activation of the five year suspended sentence, or the basis of his imprisonment in consequence of such activation.

Consequently, the three-judge Court unanimously dismissed Mr Foley’s appeal.

  • by Seosamh Gráinséir for Irish Legal News
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