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Applicant not entitled to benefit of declaration of invalidity of suspended sentences legislation
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Court of Appeal, in habeas corpus proceedings, dismisses appeal, and affirms High Court ruling that a prisoner serving a suspended sentence was not in unlawful custody following a ruling that parts of the legislation dealing with the power to suspend sentences were unconstitutional, on the grounds that the appellant was not entitled to the benefit of the declaration of invalidity in the circumstances of the case and the court was entitled to take a broader approach to the legislation.
Criminal law – Article 40.4.2 of the Constitution – habeas corpus – s. 99 of the Criminal Justice Act 2006 – whether legislation empowering judges to suspend sentences having been found to be unconstitutional rendered the applicant’s detention unlawful – whether the declaration of invalidity in relation to the two subsections gave rise to a mere procedural defect in procuring the attendance of Mr. Clarke before the Circuit Court which was cured by his appearance – whether the declarations operated to vitiate the jurisdiction of the Court to make the orders – whether the appellant/applicant was entitled to the benefit of the declaration of invalidity in the circumstances of the case – appellant is not in unlawful custody – Court decided to take a broader view as it was entitled to do under subs. (17) – appeal dismissed.
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