Keith Willis v Anthony Murphy and Others
| Jurisdiction | Ireland |
| Judge | Kearns P. |
| Judgment Date | 24 April 2015 |
| Neutral Citation | [2015] IEHC 251 |
| Judgment citation (vLex) | [2015] 4 JIC 2407 |
| Court | High Court |
| Date | 24 April 2015 |
[2015] IEHC 251
THE HIGH COURT
BETWEEN
AND
AND
AND
AND
AND
Constitution – Articles 15.2.1 and 40.4.1 – Misuse of Drugs Act 1977 – Possession of controlled drugs – Legality of continued detention
Facts: The applicants pleaded guilty and were convicted of alleged possession of controlled drugs in violation of Misuse of Drugs Act 1977. The applicants questioned the legality of continued detention citing the prospective effect of the Court of Appeal judgment in Bederev v. Ireland & Ors. [2015] IECA 38, which declared the permission granted to the Government to make law in violation of art. 15.2.1, as repugnant to the Constitution. The applicants pleaded that the principle consideration propounded in the Supreme Court judgment in A. v. The Governor of Arbour Hill Prison [2006] 4 I.R. 88, regarding the 'abhorrent' nature of the offence was absent in the instant case and therefore it fell within the ambit of the exception laid down by the Supreme Court.
Mr. Justice Kearns held following the decision of the Supreme Court in A. v. The Governor of Arbour Hill Prison [2006] 4 I.R. 88, that the applicants' prayer for relief against the illegal continued detention would be denied. The Court held that the applicants' case did not satisfy the exception rule propounded in Supreme Court's decision. The Court stated that the applicants were legally advised and represented during the proceedings of the case. The applicants were aware that they had committed a criminal offence and therefore, they pleaded guilty. There was no waiver of any rights. The applicants had not suffered any actual injustice or oppression.
JUDGMENT of Kearns P. delivered on the 24th day of April, 2015
Each of the above named applicants seeks release from detention pursuant to Article 40.4.2 of the Constitution having been convicted of offences in relation to the possession of certain drugs pursuant to the Misuse of Drugs Act 1977 and the classification of certain substances as controlled drugs within the meaning of the 1977 Act by the Misuse of Drugs Regulations 1988 and 1993, and by S.I. No. 551/2011 (the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) Order 2011).
By judgment delivered by the Court of Appeal in Bederev v. Ireland & Ors. [2015] IECA 38 on the 10 th March, 2015, s.2(2) of the Act of 1977 was declared by that court to be repugnant to the Constitution in that it permitted the Government to make law in violation of Article 15.2.1 in circumstances where the "principles and policies test" for the delegation of such authority was not met. The consequential finding of the decision was that the Regulations purportedly made under s.2(2) of the Act of 1977 were judged to be invalid.
Each of the applicants therefore claims that although they had pleaded guilty to being in possession of substances declared to be controlled drugs by regulations made under s.2(2) of the Act of 1977, the substances may no longer be seen to have been such controlled drugs, either at the time the applicants possessed them, or at the time when they were convicted in respect of them, or at the time when they were sentenced to a term of imprisonment for possession of them. They thus contend that they are entitled to be released forthwith.
In making this application, the applicants' case, reduced to its simplest version, is that as Article 40.4.1 of the Constitution provides "no citizen shall be deprived of his personal liberty save in accordance with law", and as there is no law which would warrant their continued detention, they are entitled to such release.
Article 40 of the Constitution states:-
2 "4. 1 No citizen shall be deprived of his personal liberty save in accordance with law.
2. Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.'"
A brief description of the relevant offences may be stated. In respect of the first applicant, Keith Willis, the warrant purporting to detain him recites that he is detained and serves a sentence of imprisonment by order of the Circuit Court in respect of a single count, namely, possession of a controlled drug for the purpose of selling it or otherwise supplying it to another, contrary to S.15A (as inserted by s.4 of the Criminal Justice Act, 1999) and s.27 (as amended by s.5 of the Criminal Justice Act 1999) of the Misuse of Drugs Act 1977 and the Misuse of Drugs Regulations 1988 and 1993, made under s.5 of the Misuse of Drugs Act 1977. In his case the substance in question, stated by the warrant purporting to detain him to be a controlled drug, and the subject of the conviction is MDMA, more commonly known as ecstasy. On the 10 th October, 2013 this applicant was ordered to serve a sentence of five years imprisonment, with the final two years suspended for a period of three years. As s.2 (2) of the Misuse of Drugs Act 1977 was found to be repugnant to the Constitution on the 10 th March, 2015, the ministerial order enacting the Misuse of Drugs Regulations 1988 and 1993 (as made under s.5 of the Misuse of Drugs Act 1977) which proscribed ecstasy as a controlled drug, was thus invalid at the time of the passing of sentence on the applicant. In short it was the applicant's case that he was detained simply for being in possession of a substance proscribed by the Government and not the Oireachtas.
In respect of the second applicant, Anthony Murphy, the warrant purporting to detain the second applicant recites that he is detained and is serving a sentence of imprisonment by order of the Circuit Court in respect of a count of being in possession of a controlled drug for the purpose of selling it or otherwise supplying it to another, contrary to S.15A (as inserted by s.4 of the Criminal Justice Act 1999) and s.27 (as amended by s.5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act 1977 and the Misuse of Drugs Regulations 1988 and 1993, made under s.5 of the Misuse of Drugs Act 1977. Following the entry of a plea of guilty, the applicant was sentenced to a term of eight years imprisonment on the 25 th October, 2013 with the final three years suspended. The substances in respect of which the applicant was charged pertain to the possession of a synthetic cannabinoid, which had previously been lawful and available to purchase in head shops and which only became a controlled drug as a consequence of a declaration to that effect made by the Minister on the 11 th May, 2010 under S.l. 199/2010. This applicant also contends that the substance in question has not been validly proscribed by law and that he is thus being detained for being in possession of a substance that was not legally prohibited at the time of his arrest or sentence.
In respect of the third applicant, Joseph Carberry, he is detained and serving a sentence of imprisonment imposed by order of the Circuit Court in respect of the possession of pentedrone, a substance declared to be a controlled drug by the Minster in the Misuse of Drugs Act 1977 (Controlled Drugs) (Declaration) order 2011, S.I No. 551/2011. On the 25 th February, 2014, the applicant was sentenced to a term of eleven years imprisonment (with the final twelve months suspended), which said sentence was back-dated to the 14 th July, 2013 when the applicant went into custody.
In so far as this applicant is concerned, it is contended that, notwithstanding his plea of guilty, the applicant has a live appeal in being which he himself initiated from custody. The applicant sought leave to enlarge time to appeal against both conviction and sentence on the 29 th September, 2014. The grounds stated for seeking the enlargement of time and the grounds for the appeal itself were the same, namely, that pentedrone was not classed as a S.15A drug, but a mixing agent. In relation to this application to enlarge the time for an appeal, Mr. James P. Moloney, Principal Solicitor in the Chief State Solicitor's Office, has sworn an affidavit on the 8 th April, 2015 in which he states that the applicant was significantly out of time within which to appeal. He says that the respondents are not aware of any excuse or explanation proffered for the delay in lodging the appeal and that no further step has been taken in pursuance of the purported appeal. Further, in so far as there is a single stated ground of appeal, no point has been raised as to the constitutionality of s.2(2) of the Misuse of Drugs Act 1977 or the constitutionality of the statutory instrument controlling the substance the subject matter of the applicant's prosecution.
At paragraph 17 of his affidavit, Mr. Moloney points out that any defects identified by the Court of Appeal...
To continue reading
Request your trial