James Browne (Wexford, Fianna Fail) | Oireachtas source

I move amendment No. 2:

2. In page 5, between lines 19 and 20, to insert the following:

“Retrospective application of certain amendments 10. (1) Subject to subsection (2), the amendments effected by this Act (other than those effected by subparagraphs (i) and (iii) of section 5(c) and by section 6) shall apply in

respect of a relevant offence committed before the date of the coming into operation of this Act, including a relevant offence in respect of which proceedings had commenced before that date.

(2) Subsection (1) shall not apply in respect of a relevant offence committed prior to the date of the coming into operation of this Act where final judgment was given before that date in the proceedings in respect of the relevant offence.

(3) In this section “relevant offence” means—

(a) an offence to which section 49 of the Dublin Police Magistrates Act 1808 refers,

(b) a subsequent offence referred to in section 40 of the Illicit Distillation (Ireland) Act 1831,

(c) a third offence referred to in section 32 of the Refreshment Houses (Ireland) Act 1860,

(d) an offence to which section 15(8) of the Firearms Act 1925 applied, immediately before its repeal by section 4(b),

(e) an offence to which section 26(8), section 27(8) or section 27B(8) of the Firearms Act 1964 applied, immediately before their repeal by section 5, or

(f) an offence to which section 12A(13) of the Firearms and Offensive Weapons Act 1990 applied, immediately before its repeal by section 7(b).”.

This amendment involves the insertion of a new section 10 into the Bill which aims to deal with transitional issues in the form of the retrospective application of this Bill in certain circumstances. By way of background, the normal position under section 27 of the Interpretation Act 2005 is that any repeals or amendments of existing criminal penalties by way of new legislation only apply to offences committed after the new legislation has been enacted. Therefore, the proposed repeal of mandatory minimum sentences in the Bill as published would not apply to persons who have committed an offence before enactment of the Bill but who have not yet been charged, persons currently before the courts or persons who have been convicted of a relevant offence and are currently serving a sentence. I am advised that in these circumstances there is the potential for further litigation and legal uncertainty in the cases of persons who may have committed offences or may have been convicted before the enactment of this Bill which could potentially engage the penalties for mandatory minimum sentences for second or subsequent offences that are to be repealed in this Bill.

Such litigation would potentially involve continued legal uncertainty and legal costs. In these circumstances, the Attorney General has advised that the State must be clear and explicit on the issue of the retrospective application of the repeal of sentences in the Bill. The net effect of the proposed new section 10 will be to ensure that persons who have already committed an offence, persons who have been charged with an offence or persons who have been convicted of an offence will also be subject to the repeal of the mandatory minimum sentences for second or subsequent offences. In any case where such persons will be sentenced, the mandatory penalties for second or subsequent offences would not be a sentencing option. In any case where such persons are already serving a sentence, they will have to seek a fresh sentencing hearing.

It is also important to note that the amendment provides that the repeal of sentencing provisions in the Bill applies in all cases, with the exception of those that have reached final judgment, that is, where cases have already proceeded to appeal stage and have been finalised or the time for appeal has expired. This approach is consistent with the case law of the European Court of Human Rights.

Turning to amendment 2, section 10(1) provides that retrospection shall apply only to relevant offences, that is, those listed in section 10(3). Section 10(2) provides that retrospection shall not apply in respect of a relevant offence that has reached final judgment before the Act comes into force.

Section 10(3) lists the relevant offences where retrospection will apply. It should be noted the amendment does not apply to the impugn provisions in the Ellis and McManus cases, namely, section 27A(8) of the Firearms Act 1964 and sections 27(3)(e) and (f) of the Misuse of Drugs Act 1977. This is because there is already a clear signal or clear legal pathway following these judgments for relevant cases.

Amendment No. 3 is the consequential amendment to the Long Title of the Bill which captures the effect of amendment No. 2. In effect, the amendment is necessary for those who are currently going through the system.

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