Ellis v Minister for Justice and Equality

• Jurisdiction: Ireland
• Judge: O'Donnell J.,McKechnie J.,Finlay Geoghegan J.
• Judgment Date: 04 May 2018
• Neutral Citation: [2018] IESCDET 64
• Date: 04 May 2018
• Court: Supreme Court

[2018] IESCDET 64

THE SUPREME COURT

DETERMINATION

O'Donnell J.

McKechnie J.

Finlay Geoghegan J.

Between:

Wayne Ellis

Applicant

and

The Minister for Justice and Equality, Ireland

and

the Attorney General

Respondents

Constitutionality – Firearms Act 1964 s. 27A – Matters of general public importance – Applicant seeking leave to appeal from an order of the Court of Appeal – Whether the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases

Facts: The applicant, Mr Ellis, applied to the Supreme Court seeking leave to appeal under Article 35.5.3 of the Constitution from the order of the Court of Appeal made on 24 October 2017 pursuant to a judgment delivered on the 31st July, 2017. The applicant sought to appeal that portion of the decision that related to the constitutionality of s. 27A(5) to (8) of the Firearms Act 1964 insofar as it provided for a mandatory minimum term of 5 years imprisonment to be served where a person is convicted of a second or subsequent fire arm offence. The applicant identified the following matters of general public importance: (i) whether, and in what circumstances, the Oireachtas can provide for mandatory terms of imprisonment without trespassing on the judicial function of administering justice in individual cases; (ii) whether the ability of the Oireachtas to legislate for fixed penalties is only in breach of the separation of powers where the sentence fixed is disproportionately heavy; (iii) whether a mandatory term of five years imprisonment in all cases of a second of subsequent offence under s. 27A of the 1964 Act is disproportionately heavy. The applicant also indicated an intention to ask the Court to distinguish the decision in Lynch & Whelan v Minister for Justice [2012] 1 IR 1 on the grounds that it applied to the offence of murder which the Court recognised could properly be differentiated from all other crimes and if necessary depart from Deaton v Attorney General [1963] IR 170.

Held by O'Donnell J, McKechnie J and Finlay Geoghegan J that the appeal from the decision of the Court of Appeal on the constitutionality of s. 27A(8) of the 1964 Act did involve a matter of general public importance having regard to the matters identified by the applicant.

O'Donnell J, McKechnie J and Finlay Geoghegan J held that they would grant leave to challenge the decision of the Court of Appeal on the grounds set out in the notice of application.

Application granted.

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to the Applicant to appeal to this Court from the Court of Appeal.

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 31 st July, 2017

DATE OF ORDER: 24 th October, 2017

DATE OF PERFECTION OF ORDER: 5 th December, 2017

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 22 nd December, 2017 AND WAS IN TIME.

Jurisdiction

1 This determination relates to an application for leave to appeal under Article 35.5.3 of the Constitution from the order of the Court of Appeal made on 24 October 2017 pursuant to a judgment (Birmingham J.: Mahon J. and Hedigan J. concurring) delivered on the 31st July, 2017. The Applicant seeks to appeal that portion of the decision that relates to the constitutionality of Section 27A(5) to (8) of the Firearms Act 1964 (as inserted by s.59 of the Criminal Justice Act 2006), insofar as it provides for a mandatory minimum term of 5 years imprisonment to be served where a person is convicted of a second or subsequent fire arm offence.

2 As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the Thirty Third Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court

3 The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations...