About this case:

• Citation:
  [2019] IESC 30
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Mary Finlay Geoghegan

Concluding that the section should be struck down as unconstitutional, Ms Justice Mary Finlay Geoghegan said the Oireachtas “impermissibly crossed the divide in the constitutional separation of powers” by determining the minimum penalty to be imposed by a court on a limited group of persons convicted of an offence contrary to s. 27A(1) of the Firearms Act 1964, as amended.

Background

In July 2012, Mr Wayne Ellis was found in possession of a sawn-off shotgun at Knocklyon Shopping Centre, and charged with an offence contrary to s. 27A(1) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006 and amended by s. 38 of the Criminal Justice Act 2007 (hereafter the 1964 Act).

In November 2012, Mr Ellis was charged with the offence of possession of a sledgehammer, plastic bottle containing petrol and socks with the intention that they be used in connection with that same offence at Knocklyon Shopping Centre, contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (the 2001 Act). In April 2013, Mr Ellis pleaded guilty to both offences.

Fully suspended sentence

In May 2013, the Circuit Court heard evidence of, inter alia, 26 previous convictions, including an offence of carrying a firearm with criminal intent contrary to s. 27B of the 1964 Act. Mr Ellis had been sentenced in respect of that conviction in July 2009 to a period of 7 years imprisonment, with 2 years suspended. 

Her Honour Judge Ring (as she then was) adjourned the sentencing hearing initially to obtain reports in relation to Mr Ellis and again three further times before finalising the sentence. At the time, Mr Ellis was addressing his drug problems in Coolmine Drug Treatment Centre. On each adjournment, evidence was given that Mr Ellis was continuing to progress his drug rehabilitation successfully and had not come to adverse Garda attention.

In May 2014, Judge Ring imposed a fully suspended five-year sentence in respect of the offence contrary to s. 27A(1) of the 1964 Act and a fully suspended three-year sentence in respect of the offence contrary to the 2001 Act. 

The Director of Public Prosecutions brought an application pursuant to s.2 of the Criminal Justice Act 1993 seeking a review of the sentence on grounds of undue leniency. The DPP’s principal argument focused on whether or not the Circuit Judge was entitled to suspend the five-year sentence having regard to s.27A(8) of the 1964 Act and the fact that Mr Ellis had a previous relevant conviction for a firearms offence. S.27A(8) provides a minimum sentence of five years imprisonment.

Following its judgment in DPP v Prenderville [2015] IECA 33, the Court of Appeal allowed the review, and determined that the trial judge was bound by s.27A(8) to impose a 5-year custodial sentence.

Constitutional challenge

The constitutional challenge brought by Mr Ellis was based upon two arguments:

1. That the sub-section is an impermissible encroachment on the exclusive jurisdiction of the courts under Article 34 and Article 38.1 of the Constitution in sentencing a person convicted of an offence.
2. That even if the Oireachtas may legislate for such a mandatory minimum sentence, any such statutory provision must pass proportionality tests set out in Heaney v. Ireland [1996] 1 IR 580, and s. 27A(8) of the 1964 Act does not do so.

In the High Court, Mr Justice Michael Twomey refused to strike down s.27A(8) of the 1964 Act, stating that if he did, it would ‘amount to a very significant fetter on the right of elected representatives of this state to make laws which they believe are designed to protect the citizens of this State’. Mr Justice Michael Twomey also refused a declaration of incompatibility of s.27A(8) of the 1964 Act with the European Convention on Human Rights, pursuant to s.5(1) of the European Convention on Human Rights Act 2003.

In the Court of Appeal, Mr Justice George Birmingham concluded that the Oireachtas can prescribe minimum sentences, that it is entitled to “a considerable margin of appreciation when addressing sentencing policy”, and that the particular approach in the enactment of s. 27A(8) of the 1964 Act cannot be seen as “irrational or disproportionate”. 

Delivering the leading judgment of the Supreme Court, Ms Justice Geoghegan concluded that in enacting s. 27A(8) of the 1964 Act, the Oireachtas “impermissibly crossed the divide in the constitutional separation of powers and sought to determine the minimum penalty which must be imposed by a court, not on all persons convicted of an offence contrary to s. 27A(1), but only on a limited group of such offenders identified by one particular characteristic, namely that such person has previously committed one or more of the listed offences”. 

Allowing the appeal, Ms Justice Geoghegan said Mr Ellis was entitled to a declaration that s.27A(8) of the Firearms Act 1964 (as substituted by s.59 of the Criminal Justice Act 2006) is repugnant to the Constitution. 

Ms Justice Geoghegan said that she wished to make clear that, on this appeal, the Court was not asked to consider “any form of legislation which falls short of excluding the entitlement of a court to depart, in any way, from the sentence specified by law. In accordance with the judgments considered, the Oireachtas clearly has a role in determining policy in relation to penalties for the commission of offences which apply to all convicted persons”. She said the “extent of the permissible role of the Oireachtas in specifying factors which should be taken into account by a court in deciding on an appropriate sentence or a starting point from which a court may, for stated or exceptional reasons, depart did not require consideration”.

In a separate judgment, Mr Justice Peter Charleton agreed that the way s.27 of the 1964 Act was recast by s.59 of the Criminal Justice Act 2006 offends the Constitution and should be struck down.

• by Seosamh Gráinséir for Irish Legal News