Supreme court justice Peter Garling warned wording of new provision could impact its interpretation
But the laws have caused concern within legal circles. In a recent judgment by supreme court justice Peter Garling, he noted errors in the wording of the bill, which he warned could impact its interpretation by the courts, warning of an “infelicity of drafting”.
“[The court] is not called upon to determine if the offender may be so sentenced, nor whether they might be so sentenced. Nor is it called upon to determine that a sentence of full-time imprisonment will on the balance of probabilities be imposed,” he wrote in his decision. But in another judgment last week, also by Garling, Van Gestel was found to not be covered by the law because Garling was “not satisfied” it was impossible for him to be given anything other than a full-time prison sentence.
Barrister Stephen Lawrence, who represented one of three men whose convictions prompted the initial outcry, said the new law was having “a significant effect on criminal cases with many detention applications being made”.While Lawrence said he was less concerned about the use of the laws in serious cases, there was a significant issue in lower courts where a “comparative lack of procedural safeguards might well lead to some misuse of the provision”.
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