Murphy v Governor of Mountjoy Prison (Training Unit); Carberry v Governor of Mountjoy Prison
| Jurisdiction | Ireland |
| Judge | Clarke J.,MacMenamin J.,Dunne J. |
| Judgment Date | 04 March 2016 |
| Neutral Citation | [2016] IESCDET 35 |
| Court | Supreme Court |
| Date | 04 March 2016 |
[2016] IESCDET 35
DETERMINATION
Clarke J.
MacMenamin J.
Dunne J.
This Determination concerns two applications brought by the applicants herein, Anthony Murphy and Joseph Carberry. They seek leave to appeal from decisions of the Court of Appeal, which affirmed a decision of the President of the High Court dismissing applications brought by both applicants for inquiries into the legality of their detention, pursuant to Article 40.4 of the Constitution. The applications followed on from the decision of the Court of Appeal in Bederev v. Ireland [2015] IECA 38.
This Court has jurisdiction to hear an appeal from the Court of Appeal, in the circumstances described in Article 34.5.3 of the Constitution, which states:
‘3. The Supreme Court shall, subject to such regulations as may be prescribed by law, have appellate jurisdiction from a decision of the Court of Appeal, if the Supreme Court is satisfied that:
(i) The decision involves a matter of general public importance, or
(ii) In the interests of justice it is necessary that there be an appeal to the Supreme Court.’
3. The decision of the Supreme Court under Article 34.5.6 is, in all cases, ‘final and conclusive’.
The constitutional framework established by the Thirty-third Amendment to the Constitution thus requires in order for a party to be entitled to appeal to this Court from a decision of the Court of Appeal it has to be demonstrated that either a ‘ matter of general public importance’ arises, or that ‘in the interests of justice it is necessary that there be an appeal to this Court.’
The statutory framework for the exercise of the right to appeal to this Court is to be found in the Court of Appeal Act, 2014, and, in particular, in the provisions of s.44 of that Act, which inserts a new s.7 into the Courts (Supplemental Provisions) Act, 1961. The Rules of Court are set out in the amended Order 58.
The Constitution has retained the entitlement to have one appeal as a right from the High Court to the Court of Appeal, subject to express exclusions or regulation by statute. What is sought here is a second appeal. The jurisdiction to bring an appeal to this Court is confined, principally, to cases where, as a result of the determination of the Court of Appeal, the decision of that court is such that the issues raised on a proposed appeal would involve a matter of general public importance, or would be such that it is in the interests of justice that there should be a further appeal to this Court.
The Court of Appeal delivered its judgment in Bederev v. Ireland & Others on the 10th day of March, 2015. In the light of the determination of this Court in Bederev, it is unnecessary to set out the particulars relating to each applicant in as much detail as would otherwise be necessary. Briefly, both were charged with, pleaded guilty, and received significant sentences for, offences under the sections of the Misuse of Drugs Act, 1977 (‘the Act’). The charges relate to the possession with intent to sell of certain controlled substances. Each of the controlled substances were proscribed under statutory instruments made under the Misuse of Drugs Act, 1977. In Bederev, the Court of Appeal held:
‘(i) That s.2(2) of the Misuse of Drugs Act, 1977 was framed in such a way as to give the government freedom to make an order under the sub-section, so that it was not constrained by the parameters of existing categories of controlled drugs specified in the Schedule.
(ii) That the fundamental difficulty was that the 1977 Act determined that the only ‘certain’ dangerous or harmful drugs would be controlled, thus leaving policy judgments to be made by the government, rather than by the Oireachtas.
(iii) That the government was thereby left at large in determining which substances or products should be declared to be controlled drugs, given the breadth of s.2(2) of the 1977 Act, and there was almost no guidance on which drugs were liable to misuse, such that they should be declared ‘controlled’ by the provisions of the 1977 Act, and that the key words in the long title of the Act (‘misuse’, ‘certain’, ‘harmful’, ‘dangerous’) were too general to be sufficient for this purpose.
(iv) That while terms such as ‘misuse’, ‘dangerous’ and ‘harmful’, which are contained in the long title of the Act represented desirable objectives, they did not, in themselves, constitute a sufficient restriction on the more, or less, unlimited power of regulation vested in the government by s.2(2) of the 1977 Act, in relation to what ‘substances, products, or preparations’ should be declared to be controlled drugs.
(v) While a power of annulment, such as that contained in s.38(3) of the Act, might be of assistance in considering whether the legislation under challenge violated Article 15.2.1, the presence of such a provision would rarely be a decisive consideration. The fact that an order of this kind could subsequently be annulled was not, in the Court's view, sufficient to save the statutory provision which offended Article 15.2.1.
(vi) That s.2(2) of the 1977 Act purported to vest the government with what, in the absence of appropriate principles and policies set out in the legislation in itself, were, effectively, law making powers.
(vii) That the appeal should be allowed, as a consequence of which the Court granted a declaration that s.2(2) of the Misuse of Drugs Act, 1977 was repugnant to Article 15.2.1 of the Constitution, and was, therefore, invalid.
(viii) Having regard to the said finding, the Misuse of Drugs Act, 1977 (Controlled Drugs) Declaration Order, 2010 was, therefore, invalid.’
The issue which comes before this Court is, however, somewhat more nuanced. Anthony Murphy, on the 24th June, 2013, entered a guilty plea to an offence contrary to s.15A of the Misuse of Drugs Act, 1977, as amended. This related to an incident on the 6th February, 2011 wherein he was in possession of a quantity of a synthetic cannabinoid at premises at Carnlough Road, Cabra in Dublin. On the 25th October, 2013, he was sentenced by the Circuit Court to a term of 8 years imprisonment, with the final 3 years suspended on certain conditions.
The charge, to which he pleaded guilty, was as follows:
‘Anthony Murphy, on the 6th of February, 2011, at Carnlough Road, Cabra, in the County of the City of Dublin, you had in your possession one or more controlled drugs, namely 1-butyl-3-(1-naphthoy) Indole (jwh-073) and 1-pentyll-3-(1-naphthoy) Indole (jwh-018), for the purpose of selling or otherwise supplying it to another in contravention of the Misuse of Drugs Regulations, 1988 and 1993, and at the time while the drugs were in your possession, the market value of the controlled drugs amounted to €13,000 or more.’
In this case, the substances in question were declared to be controlled drugs by regulations made under s.2(2) of the 1977 Act; the Misuse of Drugs Act, 1977 (Controlled Drugs) Declaration) Order, 2010, S.I. 199/2010.
Joseph Carberry pleaded guilty to a charge of:
‘Possession of a controlled drug for the purpose of selling or otherwise supplying to another, contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 (as amended by...
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