Killian Flood BL

About this case:

• Citation:
  [2021] IEHC 385
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Michael Twomey

Giving judgment in the case, Mr Justice Michael Twomey held that he was bound by the previous decision in Ellis v. The Minister for Justice and Equality, Ireland and the Attorney General [2019] 3 I.R. 511, which had determined that similar provisions of the Firearms Act, 1964 (as amended) were unconstitutional. The court also rejected a submission by the State that the plaintiff was precluded from challenging the legislation due to the jus tertii principle.

Background

The plaintiff, Mr Seán McManus, had pleaded guilty in the Cork Circuit Criminal Court in April 2018 to a drug offence contrary to section 15A of the 1977 Act. He admitted to having cocaine worth more than €13,000 in his possession.

The plaintiff had a previous conviction under section 15A in 2009, where he received seven years’ imprisonment with two years suspended.

At the sentencing hearing, it was established that the plaintiff and his co-accused were running a sophisticated cocaine extraction laboratory in a rented house in Bantry, Co. Cork. They were found with cocaine totalling €51,000. The operation included importing cocaine in strips of fabric from Brazil and then extracting the cocaine using a solvent called isopropanol.

The plaintiff gave full admissions to the Gardaí regarding his involvement in the drug trafficking operation. In sentencing Mr McManus, the trial judge stated that it was a “most significant case” and that the plaintiff was involved to “an extraordinarily high degree” It was noted that the plaintiff was the principal actor in the entire operation and that it was “unusually involved and complicated.”

The court held that the mandatory minimum sentence of ten years applied to the plaintiff under section 27(3F) of the 1977 Act. However, having regard to the facts of the operation and the plaintiff’s involvement, the court said that ten years imprisonment “goes nowhere near approaching the seriousness of his involvement in this case. Accordingly, the court imposed a 15-year sentence on the plaintiff, with the final three years suspended.

The plaintiff subsequently issued plenary proceedings seeking to challenge the constitutionality of the mandatory minimum sentence imposed on him. The State’s main point of opposition was based on the principle of jus tertii (third party rights). The State claimed that the comments of the judge established that there was no causal connection between the mandatory minimum sentence and the final sentence imposed on the plaintiff.

High Court

The court began by outlining the facts of the Ellis case, which was the principal case relied on by the plaintiff. In Ellis, the Supreme Court had determined that a section under the Firearms Act, 1964 (as amended) which imposed a mandatory minimum sentence on reoffenders was unconstitutional. The Supreme Court reasoned that the Oireachtas was entitled to legislate for sentencing which applies to all people in the State, but could not impose specified sentences on a limited class of people who shared a particular characteristic. Given that the sentencing legislation under section 27(3F) was virtually identical to the Firearms Act, the plaintiff argued that the section was unconstitutional.

The court first addressed the objection by the State that there was no causal connection between the final sentence and the mandatory minimum. The court rejected this submission, holding that the 15-year sentence imposed by the judge was the end-point rather than the starting point of sentencing. As such, the starting point was 10 years for the plaintiff rather than zero years for his co-accused. The court held that it was very difficult to see how the trial judge was not influenced by the mandatory minimum sentence in his decision.

The court accepted that it was possible that the trial judge may have handed down a 15-year sentence irrespective of the mandatory minimum requirement. However, it could not be ruled out that a lesser sentence might have been imposed if there were no mandatory minimum.

The court held that it was obliged to follow the decision in Ellis that the mandatory minimum sentence under the 1977 Act was unconstitutional. It was noted by the court that under A v. Governor of Arbour Hill Prison [2006] 4 I.R. 88, this declaration of unconstitutionality would not affect other prisoners who had failed to appeal their sentences in time or where their appeals failed to raise the issue of constitutionality. As such, the retrospective effect of the declaration would be limited.

The court also commended the parties as to the brevity of the proceedings, stating that the pragmatic approach of the State had saved half a day of costs to the taxpayer.

Conclusion

The court granted a declaration of that section 27(3F) of the Misuse of Drugs Act 1977 was repugnant to the Constitution and quashing the sentence of the plaintiff. On the basis that the plaintiff pleaded guilty to the offences, the matter would be remitted to the Circuit Criminal Court for fresh consideration. The court would liaise with counsel on the precise form of order. The court held that the plaintiff had succeeded and was therefore provisionally entitled to his costs.