Edward O'Sullivan (application for Habeas Corpus),  IEHC 311 (2016)
|Docket Number:||2016 12SSP|
THE HIGH COURT  No. 12 SSP
IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION AND IN
THE MATTER OF AN
APPLICATION FOR HABEAS CORPUS BY
AT PRESENT IN CUSTODY IN CORK PRISON
JUDGMENT of Ms. Justice Stewart delivered on the 9th day of June 2016.
This is an application for a conditional order of habeas corpus made in writing by the applicant, who is in post-conviction custody and seeking an inquiry into the lawfulness of his detention.
On the 15th October, 2009, the applicant took possession of or used a mechanically propelled vehicle without the consent of its owner. This was a violation of s112 of the Road Traffic Act 1961, as amended. On 7th May, 2010, the applicant was brought before His Honour Judge Carroll Moran (as he then was) at the Circuit Criminal Court sitting at Limerick, who handed down a sentence of four years imprisonment. The final year of this sentence was suspended for a further four years under s99 of the Criminal Justice Act 2006, on the proviso that he keep the peace and be of good behaviour during that time. On 26th July, 2013, the applicant was found to have breached those terms by committing a robbery offence contrary to s14 of the Criminal Justice (Fraud and Offences) Act 2001, as amended. His suspended sentence was therefore reactivated by Moran J., per s99 (9) and (10) of the 2006 Act, on 24th October, 2013. He is currently in custody in Cork Prison, where he is serving a four year sentence for robbery, with the final two years suspended for five years, consecutive to the service of his reactivated sentence.
The applicant refers to Moriarty J.’s judgment in Moore v. DPP  IEHC 244, where s99 (9) and (10) of the 2006 Act were deemed unconstitutional. These provisions served as the basis for the reactivation of his suspended sentence and he argues that he is therefore entitled to habeas corpus relief within the meaning of Article 40.4.2 of the Irish Constitution 1937.
McDermott J.’s reasoning in Clarke v. Governor of Mountjoy Prison  IEHC 278 is helpful in analysing the legal effect of Moriarty J.’s judgment in Moore, as well as the law applicable to habeas corpus cases in general. As outlined in The State (McDonagh) v. Frawley  I.R. 131, habeas corpus is not triggered by mere technicalities. In finding that deprivation of the applicant’s liberty is not in accordance with law, the court must be convinced that there has been a departure from the fundamental rules of...
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