Murphy v Governor of Mountjoy (The Training Unit)

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date16 Nov 2015
Neutral Citation[2015] IECA 259
Docket Number2015/42

[2015] IECA 259

THE COURT OF APPEAL

Birmingham J

Sheehan J.

Edwards J.

2015/42

Anthony Murphy
Applicant/Appellant
and
Governor of Mountjoy Prison (The Training Unit)
Respondent
and
Keith Willis
Applicant/Appellant
and
Governor of Wheatfield Prison
Respondent
Joseph Carberry
Applicant/Appellant
and
Governor of Wheatfield Prison
Respondent

Release from prison – Possession of a controlled drug – Unlawful detention – Appellants seeking orders directing their release from prison – Whether Court of Appeal is bound by the decision in A v the Governor of Arbour Hill Prison [2006] 4 IR 88

Facts: The applicants/appellants, Mr Willis, Mr Murphy and Mr Carberry, were convicted in the Circuit Court, on pleas of guilty, of offences contrary to s. 15A of the Misuse of Drugs Act 1977, namely possession of a controlled drug, the value of which exceeded €13,000. The applicants/appellants appealed to the Court of Appeal against the judgment and order of Kearns P of the 24th April, 2015, which declined to made orders pursuant to Article 40.4.2 of the Constitution directing their release from prison. On the 10th March, 2015, the Court of Appeal gave judgment in the case of Bederev v Ireland [2015] IECA 38. In that case, Mr Bederev challenged the constitutionality of s. 2(2) of the 1977 Act, the section that permitted the Government, as opposed to the Oireachtas, to declare a substance to be a controlled drug for the purpose of the Misuse of Drugs legislation. Mr Bederev was unsuccessful in the High Court, but the Court of Appeal allowed his appeal, declaring s. 2(2) to be repugnant to the Constitution, in that it permitted the Government to have law making authority in violation of Article 15.2.1 of the Constitution. This was in circumstances where the principles and policies test first enunciated in Cityview Press Ltd v AnCO [1980] IR 381 providing a basis for valid delegated legislation had not been met. The applicants/appellants contended that the substances that they were convicted of being in possession of were not in fact controlled drugs as they were not controlled at the time that they were in the possession of the applicants nor at the time when the applicants were convicted or when sentenced. Accordingly, the applicants argued that they are each serving a term of imprisonment for something that was not in fact unlawful and therefore that they are entitled to be released forthwith. The respondents, the Governor of Mountjoy Prison and the Governor of Wheatfield Prison, argued that, because of the decision of the Supreme Court in A v Governor of Arbour Hill Prison [2006] 4 IR 88, the detention of the three appellants is lawful and that they should be refused orders directing their release.

Held by Birmingham J that possible areas for distinguishing A were that the case concerned a pre-1937 statute, whilst Bederev was dealing with a post-1937 statute. However, Birmingham J held that there was nothing in the judgments to suggest that this was a point of significance. Another possible basis for distinguishing the present case was considered by reference to the fact that all three appellants before the Court could have launched a challenge on the same basis that Mr Bederev did, while Mr A, as a 38 year old, having sexual intercourse with the twelve year old friend of his daughter would never have been in a position to make the arguments that were advanced successfully in CC v Ireland [2006] IESC 33. However, Birmingham J noted that a careful reading of the five judgments in the A case did not indicate that this provided a basis for distinguishing the present case from A. He did not believe that the distinction between malum prohibitum and malum in se had any relevance in the present case. Birmingham J held that the similarities between the situation of the three applicants and Mr A were striking; all four had entered pleas of guilty when arraigned, in all cases the criminal proceedings had reached finality and the Article 40 inquiries launched amounted to a collateral attack on the outcome of the proceedings.

Birmingham J held that the situation of all three applicants could not be distinguished from Mr A and that the Court is bound by the decision in A v the Governor of Arbour Hill Prison. Accordingly, Birmingham J dismissed the three appeals and refused to make an order directing the release of the three applicants.

Appeal dismissed.

Judgment of the Court delivered on the 16th day of November 2015 by Mr. Justice Birmingham
1

These three cases have, by agreement, been heard together. Each involves an appeal by the appellants/applicants Mr. Willis, Mr. Murphy and Mr. Carberry against the judgment and order of Kearns P. of the 24th April, 2015, which declined to made orders pursuant to Article 40.4.2 of the Constitution directing their release from prison. The background to these appeals is that each applicant/appellant was convicted in the Circuit Court, on pleas of guilty, of offences contrary to s. 15A of the Misuse of Drugs Act 1977 or, in common parlance, possession of a controlled drug, the value of which exceeded €13,000.

2

The particulars of these convictions are as follows.

Keith Willis
3

Keith Willis was charged with offences contrary to s. 3, s.15 and s.15A of the Misuse of Drugs Act 1977. He appeared at Sligo Circuit Court on the 1st October, 2013 and pleaded guilty to one charge on the Indictment being, at Count 3,: unlawful possession of controlled drug with an aggregate value of €13,000 or more for the purpose of sale or supply, contrary to s. 15(A)(1) of the Misuse of Drugs Act 1977, (as inserted by s. 4 of the Criminal Justice Act 1999) and s. 27 of the Misuse of Drugs Act 1977 (as inserted by s. 33 of the Criminal Justice Act 2007) and contrary to Article 4(1)(b) of the Misuse of Drugs Regulations 1988 and 1993, as made under s. 5 of the Misuse of Drugs Act 1977.

4

The particulars of the offence were that the Appellant, on the 16th April, 2013, at Sligo garda station, Pearse Road, was in possession of a controlled drug, to wit methylenedioxymethylamphetamine (MDMA), for the purpose of sale or supply and at the time when the controlled drug was in his possession, the outlet market value of the controlled drug amounted to €13,000 or more.

5

On the 10th October, 2013 the appellant was sentenced to a term of five years imprisonment, with the final two years suspended for a period of three years. In addition, provision was made for a twelve month post release probation service supervision order on his entering into a bond which was duly entered into. A warrant for the committal of Mr. Willis issued on the 10th October, 2013.

Anthony Murphy
6

Anthony Murphy was charged with offences contrary to s.3 and s.15 of the Misuse of Drugs Act 1977 on the 7th February 2011, and was subsequently charged on the 27th May, 2011 with a further offence contrary to s.15A of the Misuse of Drugs Act 1977, as amended. The Appellant pleaded guilty on the 24th June, 2013 at Dublin Circuit Criminal Court to Count 5 on the indictment, being as follows: 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) CJA 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). A nolle prosequi was entered in respect of the remaining charges.

7

The particulars of the offence were that Anthony Murphy, on the 6th of February, 2011, at Carnlough Road, Cabra, in the County of the City of Dublin, had in his 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 his possession, the market value of the controlled drugs amounted to €13,000 or more. The drug referred to in the particulars of offence is a synthetic cannabinoid.

8

On the 25th October, 2013, the appellant was sentenced by the Circuit Court to a term of eight years imprisonment, with the final three years suspended on certain conditions. The warrant for his committal was issued on the 25th October, 2013.

Joseph Carberry
9

Joseph Carberry was charged with offences contrary to the Misuse of Drugs Act 1977 and appeared at Dublin Circuit Court on the 6th December, 2013 where he pleaded guilty to Count 6 on the Indictment, that being: 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 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.

10

The particulars of the offence were that the allegation was one of possession of Pentedrone, with a value exceeding €13,000 with the intention to sell or supply on the 24th July, 2013, at properties located at the junction of Sillogue Road and Balcurris Road and on the R132, on the Swords Road.

11

On the 25th February, 2014, the applicant/appellant was sentenced to a term of eleven years imprisonment with the final twelve months suspended. The sentence was backdated to the 14th July, 2013. Pentedrone, was chemically identified as (2-methylamino) -1-phenyl-1-pentin-1. Pentedrone is a so called designer drug with stimulant effects. In the context of the sentence of eleven years imprisonment with one year suspended that was imposed on Mr. Carberry, it should be noted that he came before the court as a person with a...

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1 cases
  • Kennedy v Governor of Portlaoise Prison
    • Ireland
    • High Court
    • 23 June 2017
    ...circumstances, counsel for the respondent said there was no appeal, read alongside Murphy v. Governor of Trading Unit, Mountjoy Prison [2015] IECA 259, in which Birmingham J. noted:- ‘37. It is true that in the case of Mr. Carberry he lodged a notice of appeal out of time which was addresse......

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