Gilligan v Ireland and Others

• Jurisdiction: Ireland
• Judge: MacMenamin J.
• Judgment Date: 14 October 2013
• Neutral Citation: [2013] IESC 45
• Court: Supreme Court
• Docket Number: [S.C. No. 419 of 2012]
• Date: 14 October 2013

[2013] IESC 45

THE SUPREME COURT

Denham C.J.

Murray J.

Fennelly J.

Clarke J.

MacMenamin J.

Appeal No: 419/2012]

Gilligan v Ireland & Ors

Between/

John Gilligan

Plaintiff/Appellant

and

Ireland, The Attorney General, The Minister for Justice, Equality and Defence and the Governor of Portlaoise Prison

Defendants/Respondents

BUCKLEY & ORS (SINN FEIN) v AG & POWER 1950 IR 67

CONSTITUTION ART 6

CROTTY v AN TAOISEACH & ORS 1987 IR 713 1987 ILRM 400

CONSTITUTION ART 13.6

CONSTITUTION ART 13.9

HAUGHEY, IN RE 1971 IR 217

LAW REFORM CMSN REPORT ON MANDATORY SENTENCES (LRC 108-2013)

CRIMINAL LAW ACT 1976 S13

CRIMINAL LAW ACT 1976 S13(2)

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

MCDONALD v BORD NA GCON & AG 1965 IR 217

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD & ORS v AG 1970 IR 317

DEATON v AG & REVENUE CMRS 1963 IR 170 1964 98 ILTR 99

O'DELL LEADING CASES OF THE TWENTIETH CENTURY 2000 196

CUSTOMS CONSOLIDATION ACT 1876 S186

SHEERIN, STATE v KENNEDY 1966 IR 379

PREVENTION OF CRIME ACT 1908

O, STATE v O'BRIEN 1973 IR 50

OSMANOVIC & SWEENEY v DPP & ORS 2006 3 IR 504 2006/47/10113 2006 IESC 50

FINANCE ACT 1997 S89(B)

CRIMINAL JUSTICE ACT 1990 S2

LYNCH & WHELAN v MIN FOR JUSTICE & ORS 2012 1 IR 1 2012/23/6653 2010 IESC 34

CRIMINAL JUSTICE ACT 2007 S25(3)

CRIMINAL JUSTICE ACT 1984 S11(1)

CRIMINAL LAW ACT 1976 S13(1)

CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION ART 49(3)

DPP, PEOPLE v HEALY 1990 1 IR 388 3 FREWEN 188 1989/5/1265

CONSTITUTION ART 40

CONSTITUTION ART 38

FLEMING v IRELAND & ORS UNREP SUPREME 29.4.2013 2013 IESC 19

BRENNAN & ORS v AG & WEXFORD CO COUNCIL 1983 ILRM 449 1982/14/2701

EMPLOYMENT EQUALITY BILL 1996, IN RE 1997 2 IR 321 1998/18/6758

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003

CRIMINAL JUSTICE ACT 1960 S2(2)(G)

COX v IRELAND & ORS 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939

Constitutional law - Sentencing - Separation of powers - Consecutive sentences - Mandatory regime - Equal treatment - Serious offences - Criminal Law Act 1976

Facts: The applicant was serving a number of sentences of imprisonment. The Court considered the sentencing power of the judiciary and the constitutionally of s. 13 Criminal Law Act 1976, a provision which stipulated that custodial sentences be consecutive. He contended that he was subject to a more severe regime that those convicted of more serious offences. He alleged that he was denied equality of treatment through the operation of a mandatory consecutive sentencing schema. The High Court in the proceedings below had dismissed the claim.

Held by the Supreme Court per MacMenamin J. (Denham CJ, Murray, Fennelly, Clarke JJ concurring), that the section was not arbitrary either in its scope or effect. It was intended to advance a rational, logical and legitimate goal, so as to mark the gravity of a situation. It did not prescribe a constitutionally questionable role in the administration of justice. The appeal would be dismissed.

1 Judgment of the Supreme Court delivered the 14th day of October, 2013, by MacMenamin J.

2 Judgment delivered by MacMenamin J.

Introduction

3 1. In Buckley v The Attorney General [1950] I.R. 67, O'Byrne J., speaking for the former Supreme Court, observed the following in relation to the principle of separation of powers, as identified in Article 6 of the Constitution:

"The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers."

4 2. This same principle was referred to by Finlay C.J. in Crotty v An Taoiseach [1987] I.R. 713 as being "fundamental" to all the provisions of the Constitution. He observed that:

"[The separation of powers] involves for each of the three constitutional organs not only rights but duties also; not only areas of activity and function, but boundaries to them as well."

5 It cannot be gainsaid that these boundary lines are fundamental to the rights, duties, areas of activity and functions identified in the Constitution. They are an aspect of the sovereignty of the State, the authority for which is derived from the people.

The issue

6 3. The question which arises for consideration in this appeal lies in the realm of criminal law. It relates to the sentencing power of the judiciary, which is an essential aspect of the judicial function. No question arises in this appeal regarding the commutation of sentences, or discretionary release on licence, matters in which the executive has a recognised role (see Articles 13.6 and 13.9 of the Constitution). Sentencing is a part of the trial process. In Re Haughey [1971] I.R. 217 at p. 250, Ó'Dálaigh C.J. pointed out that each stage of the criminal process (trial, conviction and sentence) were integral parts of the "constitutional activity" of the administration of justice and the functioning of the courts.

7 4. The issue here relates to a statutory provision specifying the powers of a court in the sentencing of persons who, while serving a sentence in prison for other offences, commit a further offence. The impugned provision stipulates that custodial sentences for such offences are to be consecutive. It is said that this mandatory provision constitutes an impermissible invasion of the judicial domain, thus offending against the principle of the separation of powers, which is constitutionally guaranteed to the people as a protection of the right to liberty. It should be emphasised that this judgment concerns itself with what is constitutionally permitted; any question of whether statutes should provide for mandatory or presumptive minimum sentences lies with the executive and the legislature (see the Law Reform Commission's Report on Mandatory Sentences, published on the 12 ^th June, 2013). However, this does not mean that the judiciary has no role in the assessment as to whether any such statutory provisions are valid having regard to the Constitution.

8 5. The appellant is currently serving a number of sentences of imprisonment. The first sentence in time was a very lengthy one. While serving this term of 20 years for drugs-related offences, the appellant assaulted a prison officer. For this offence, committed while in prison, he was sentenced to a further two years imprisonment, to run consecutively after the term of 20 years. While serving that sentence in turn, he was convicted in the District Court of two further offences in relation to the possession of mobile telephones while in prison. The two District Court custodial sentences of imprisonment for these offences are presently under appeal to the Circuit Court. The appellant has again been sentenced to consecutive terms of imprisonment for these. These have been stayed pending this appeal.

The Impugned Section

9 6. Section 13 of the Criminal Law Act 1976 provides:

10 2 "(1) Any sentence of penal servitude or imprisonment or of detention in St Patrick's Institution passed on a person for an offence committed while he is serving any such sentence shall be consecutive on the sentence that he is serving or, if he is serving or is due to serve more than one sentence, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment or detention in respect of these consecutive sentences shall not exceed two years."

11 7. Subsection 2 is also relevant. The appellant makes the case that he is the subject of discrimination and denied the right to equality before the law. He points out he was sentenced to a fixed term of 20 years imprisonment, but not to life imprisonment. But the impugned provision does not relate to prisoners serving a life sentence, yet it does apply to him. The subsection provides:

12 2 "(2) Subsection (1) of this section shall not apply in any case where the sentence being served or to be passed is a sentence of penal servitude for life or imprisonment for life."

13 In addition to a separation of powers argument, the appellant contends that he is the subject of discrimination contrary to the guarantee of equality before the law, the guarantees of vindication of personal rights, and the right to liberty, provided for under Articles 40.1, 40.3.1 and 40.3.2 of the Constitution. He submits that subs. (2) of the Act imposes on him a regime more rigorous than that applicable, even in the case of a prisoner serving a life sentence, and that, consequently, the provision impacts on him more severely than would be the case of prisoners who have been convicted of more serious offences, such as murder, where there is a mandatory life sentence. Section 13(2) creates an exception in the case of life sentences. The appellant says that because he is precluded from availing of that exception, he is denied equality of treatment. In the High Court, Roderick Murphy J. dismissed the claim, holding that the section did not offend against any constitutionally guaranteed right.

The appellant's case

14 8. The first issue in this appeal is whether the mandatory consecutive nature of such sentences impermissibly offends against the discretion which should reside with the judiciary. It is said that the provision offends against the enunciation of separation of powers which can be traced from the Constitutions of 1937 and Saorstát Éireann, back to the thinking of the eighteenth century French political philosopher,...