Seán McManus v The Minister for Justice and Equality, Ireland and the Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Twomey |
| Judgment Date | 04 June 2021 |
| Neutral Citation | [2021] IEHC 385 |
| Docket Number | [2020 No. 3949 P] |
| Court | High Court |
| Date | 04 June 2021 |
[2021] IEHC 385
[2020 No. 3949 P]
THE HIGH COURT
Declaratory relief – Constitutionality – Misuse of Drugs Act 1977 s. 27(3F) – Plaintiff seeking declaratory relief – Whether s. 27(3F) of the Misuse of Drugs Act 1977 is unconstitutional
Facts: The plaintiff, Mr McManus, was sentenced to 15 years for drug trafficking under s. 27(3F) of the Misuse of Drugs Act 1977 (as amended). He claimed that s. 27(3F) was unconstitutional, since it had the effect of requiring a court to impose a mandatory minimum sentence on a limited class of persons, namely those who had been previously convicted of an offence for drug trafficking contrary to s. 15A or 15B of the 1977 Act. In bringing the challenge, he relied in particular on the fact that an almost identical provision contained in the Firearms Act 1964 (as amended) was found to be unconstitutional by the Supreme Court in Ellis v The Minister for Justice and Equality, Ireland and the Attorney General [2019] 3 I.R. 511. There, the Supreme Court found that that section was unconstitutional as it legislated for a mandatory minimum sentence to be imposed only on a limited class of persons who shared one particular characteristic, i.e. they had been previously convicted of a firearms offence under the 1964 Act. The defendants, the Minister for Justice and Equality, Ireland and the Attorney General (the State), in defending the claim did not seek to distinguish Ellis from this case, but relied on the principle of jus tertii to claim that the plaintiff was seeking to advance arguments regarding mandatory minimum sentencing which did not arise on the facts of his particular case, when he was sentenced for a second drug trafficking offence.
Held by the High Court (Twomey J) that it could not conclude that there was no causal connection between what happened in the plaintiff’s case and the terms of s. 27(3F) of the 1977 Act. Accordingly, the Court rejected the State’s claim that the plaintiff was prevented by the jus tertii rule from challenging the constitutionality of s. 27(3F). Twomey J noted that the Attorney General, who was constrained to defend the proceedings as a matter of constitutional proprietary and who was obliged to operate on the basis of the presumption of constitutionality applying to all legislation, did not seek to suggest that there was any significant distinction between s. 27A(8) of the 1964 Act and s. 27(3F) of the 1977 Act which would be such as to distinguish the facts of this case from that of Ellis. The Court agreed with that approach. On that basis it seemed clear to the Court that it was obliged to follow Ellis and hold that s. 27(3F) of the 1977 Act was unconstitutional since that section did not apply to all persons who were convicted of the drug trafficking offence, but only applied to a limited class of persons who committed the offence of drug trafficking (i.e. those with previous convictions under s. 15A and/or 15B ) and accordingly that it breached Article 34.1 of the Constitution by impermissibly encroaching on a court’s exclusive jurisdiction to determine sentencing. Twomey J held that the plaintiff was entitled to a declaration that s. 27(3F) of the 1977 Act is repugnant to the Constitution.
Twomey J held that it was the Court’s preliminary view that it should award the plaintiff 100% of his legal costs against the State, including, but not limited to, the costs of a half-day hearing.
Declaration that s. 27(3F) of the Misuse of Drugs Act 1977 is repugnant to the Constitution.
JUDGMENT of Mr. Justice Twomey delivered on the 4th day of June, 2021
This case concerns a claim that s. 27(3F) of the Misuse of Drugs Act, 1977 (as amended) (the “1977 Act”) is unconstitutional, since it has the effect of requiring a court to impose a mandatory minimum sentence on a limited class of persons, namely those who have been previously convicted of an offence for drug trafficking contrary to s. 15A or 15B of the 1977 Act.
In bringing the challenge, the plaintiff, who was sentenced to 15 years for drug trafficking under s. 27(3F) of the 1977 Act, relies in particular on the fact that an almost identical provision contained in the Firearms Act, 1964 (as amended) (the “1964 Act”) was recently found to be unconstitutional by the Supreme Court in Ellis v. The Minister for Justice and Equality, Ireland and the Attorney General [2019] 3 I.R. 511. There, the Supreme Court found that that section was unconstitutional as it legislated for a mandatory minimum sentence to be imposed only on a limited class of persons who shared one particular characteristic, i.e. they had been previously convicted of a firearms offence under the 1964 Act.
The defendants (the “State”) in defending this claim did not seek to distinguish Ellis from the present case, but relied on the principle of jus tertii to claim that the plaintiff is seeking to advance arguments regarding mandatory minimum sentencing which did not arise on the facts of his particular case, when he was sentenced for a second drug trafficking offence.
While a finding by the High Court that legislation passed by the Oireachtas is a significant step, nonetheless this Court rejects the reliance by the State on the jus tertii principle for the reasons set out below and concludes that it is bound by the Supreme Court decision in Ellisand therefore must find that section 27(3F) of the 1977 Act is unconstitutional.
This judgment also considers the concept of the State as a model litigant, as it is by far and away the most frequent litigant in the country. This concept was recently considered by Murphy J., writing extrajudicially, in The Role and Responsibility of the State in Litigation (2020, Irish Judicial Studies Journal, Vol. 4(1)), which article was relied upon by Charleton J. in his judgment in Zalewski v. The Workplace Relations Commission [2021] IESC 24 at para. 18 therein. In the present case, the principle of the State as a model litigant arises for consideration in the context of the awarding of the costs of these proceedings to the plaintiff. As noted below the focused approach of the State to the litigation led to a 50% saving on court resources (i.e. this case took a half day of court time, rather than the estimated one day).
On 24th April, 2018, the plaintiff pleaded guilty before Cork Circuit Criminal Court to the offence of drug trafficking contrary to s. 15A of the 1977 Act – as he had in his possession cocaine of a value of €13,000 or more. The plaintiff's three co-accused, Ms. Molly Sloynan, Mr. Dean Gilsenan and Mr. William Gilsenan (the father of Dean Gilsenan), also pleaded guilty on that date.
On 8th May, 2018, a sentencing hearing took place before Judge Ó Donnabháin at Cork Circuit Criminal Court. At that hearing, evidence was given that the plaintiff had twelve previous convictions in Ireland, as well as one previous conviction in Spain relating to a road traffic offence. Of relevance is that in sentencing the plaintiff for this drug trafficking offence under the 1977 Act, the judge was aware that the plaintiff had a previous conviction for drug trafficking i.e. the offence of possession of cannabis resin and cocaine with a value of €13,000 or more contrary to s. 15A of the 1977 Act — hence the activation of the mandatory minimum sentence of 10 years pursuant to s. 27(3F) of the 1977 Act. That was a conviction for which the plaintiff was sentenced in Cavan Circuit Criminal Court on 19th May, 2009, with a sentence imposed of seven years' imprisonment with two years suspended.
Evidence was also given in relation to the previous convictions of the three co-accused. Ms. Sloynan had nine previous convictions, including one conviction for an offence contrary to s. 3 of the 1977 Act, but had no previous convictions for drug trafficking. Neither Mr. Dean Gilsenan nor Mr. William Gilsenan had any previous convictions.
It may be helpful at the outset to set out the terms of s. 15A(1) and s. 27(3F) of the 1977 Act as both were relevant for the purposes of the sentencing hearing:
“15A.—(1) A person shall be guilty of an offence under this section where—
(a) the person has in his possession, whether lawfully or not, one or more controlled drugs for the purpose of selling or otherwise supplying the drug or drugs to another in contravention of regulations under section 5 of this Act, and
(b) at any time while the drug or drugs are in the person's possession the market value of the controlled drug or the aggregate of the market values of the controlled drugs, as the case may be, amounts to €13,000 or more.”
“27.—(3F) Where a person (other than a person under the age of 18 years)—
(a) is convicted of a second or subsequent offence under section 15A or 15B of this Act, or
(b) is convicted of a first offence under one of those sections and has been convicted under the other of those sections,
the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.”
Though not relevant to the circumstances of the present case, for clarity, it should be noted that s. 15B sets out that it is an offence to import controlled drugs where those drugs have a value of €13,000 or more.
At the sentencing hearing, evidence was given of the particulars of the s. 15A offence to which the plaintiff and his co-accused had pleaded guilty. The evidence was that on 26th November, 2017, the plaintiff and his three co-accused were found in a rented house in Bantry, Co. Cork with a quantity of cocaine estimated to have a value of €51,292. A sophisticated cocaine extraction laboratory was found in a downstairs bedroom of the house. The evidence was that the cocaine found in...
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