Wednesday, 6 October 2021
Criminal Justice (Amendment) Bill 2021: Committee and Remaining Stages
I move amendment No.1:
In page 5, to delete line 5.
This amendment proposes to delete section 6(b) of the Bill as published. Section 6(b) of the Bill repeals subsections (3E) and (3F) of section 27 of the Misuse of Drugs Act 1977. These subsections provide for a mandatory minimum sentence of not less than ten years imprisonment for a second or subsequent possession or importation of drugs offence. I am advised that in June of this year, subsequent to the publication of this Bill, the High Court ruled in a further case, that of Sean McManus v. the Minister for Justice and Equality and others, that sections 27(3E) and (3F) of the Misuse of Drugs Act 1977 were unconstitutional. The ruling was made on the same grounds as those in the 2019 Ellis case that motivated this legislation. As it is not standard drafting practice to repeal provisions that have already been struck down by the courts, I propose deleting section 6(b) of the Bill. However, on legal advice, I propose to proceed with sections 6(a), 6(c) and 6(d) as published as these contain secondary references to section 27(3F) of the Misuse of Drugs Act 1977 which were not struck down by the High Court in the McManus judgment.
In effect, the proposal in the original drafting was to include an amendment to repeal various subsections of the Misuse of Drugs Act as the McManus decision now effectively finds them unconstitutional. The practice appears to be that one does delete a section that has been found to be unconstitutional.
I have a technical question for the Minister of State. He is proposing the deletion of section 6(b). How stands then the lettering of the other sections 6(a), (c) and (d)? Will they be renumbered or relettered? How does that work?
Effectively, what the court has found in both the Ellis case and the McManus case is that a mandatory sentence for a second or subsequent conviction is unconstitutional because it is only applying the criminal law to a very small subset of people. That is the basis on which the court found it to be unconstitutional. A provision in criminal law should effectively apply to everybody.
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.
Does the Minister of State have any idea of the number of people on which this will impact? Are there any cases or is this just ar eagla na heagla, a belt-and-braces approach, in case there are some people caught in this because we cannot know if there are people who have committed an offence and have not been charged yet.
I do not have any numbers on that. It is belt-and-braces approach. There may be no cases affected but considering the relevant pieces here, it is possible or even probable that there will be a couple of cases going through the system. We have to make sure.
For clarity, this affects retrospectively anyone who has committed an offence before the date of the enactment of this legislation, which is, I presume, the date on which the Minister commences the Act. The retrospection relates to people who have committed the offences relevant to the section prior to that date. Is that what the Minister of State is saying?
That is correct. The way the interpretation of retrospection works is that those people could still be subject to the law as extant at the time of a second or subsequent offence that carries a penalty of a mandatory minimum sentence. Therefore, such persons would have grounds for appeal and there would be all sorts of consequences from that. This is to ensure the provisions we pass here apply to those cases.
Correct. It would not apply only in the cases of persons whose time for appeal has elapsed. They have run out of road and are either serving their sentence without further grounds for appeal or have completed their sentence.
Pursuant to Standing Order 187(3) I have to report specially to the Dáil that the Committee has amended the Title to read as follows:
An Act to amend the Dublin Police Magistrates Act 1808, the Illicit Distillation (Ireland) Act 1831, the Refreshment Houses (Ireland) Act 1860, the Firearms Act 1925, the Firearms Act 1964, the Misuse of Drugs Act 1977, the Firearms and Offensive Weapons Act 1990, the Criminal Justice Act 2007 and the Parole Act 2019; to provide for the retrospective application of certain of these amendments in certain circumstances; and to provide for related matters.
It is a good thing we were not discussing them earlier in the year. It would have made things more difficult. I thank the Minister of State and all those involved in this work.