James Browne (Wexford, Fianna Fail) | Oireachtas source

I am pleased to bring the Bill before the Seanad today. It is a relatively short Bill but it is significant.

The need for the Bill follows from the 2019 Supreme Court ruling in the case of Wayne Ellis v. Minister for Justice and Equality. In this ruling, the Supreme Court struck down section 27A(8) of the Firearms Act 1964, which provides for a mandatory minimum sentence of five years' imprisonment for a second or subsequent offence of possession of a firearm or ammunition in suspicious circumstances. The court found that it is not constitutionally permissible for the Oireachtas to specify a mandatory minimum sentence that only applies to a limited class of persons, namely, those who have committed a second or subsequent offence for one or more listed offences. The court held that the application of a mandatory minimum sentence to a distinct category of persons in such cases amounted to the administration of justice and, under Article 34 of the Constitution, justice may only be administered by the Courts, not by the Oireachtas.

From a policy perspective, the Bill only has one purpose, which is to rectify the constitutional infirmities identified by the Supreme Court in the Ellis case. This is achieved by the repeal of all sentences on the Statute Book that provide for a mandatory minimum sentence of imprisonment for a second or subsequent offence. I am advised that it is not necessary to repeal the specific firearms provision that was struck down in the Ellis case. I am advised that the practice is not to repeal such provisions as they are already deemed void.This Bill repeals all other penalties, including those linked to firearms and drug offences, which involve mandatory sentences for second or subsequent offences.

It is important to note that the Ellis judgment only deals with mandatory minimum sentences for second or subsequent offences. It does not affect provisions in statute which provide for presumptive minimum sentences where there is judicial discretion. In addition, the ruling did not mean the automatic release of offenders who may currently be in prison having been convicted of an offence which has a mandatory minimum sentence for a second or subsequent offence. Instead, the Supreme Court ruled that the appropriate course of action in such cases was for the offender concerned to receive a new sentencing hearing. It is also worth noting that in giving its judgment in this case, the Supreme Court made the important general point that sentencing always involves a consideration of the following factors by the Judiciary: the gravity of the offence; the circumstances in which it was committed; the personal situation of the accused; and mitigating factors. These important sentencing principles are unaffected by the Bill.

I will now outline the Bill's main provisions. The first three sections refer to pre-1922 legislation that is still in force in Ireland. These older Acts contain unusual provisions with a type of mandatory sentence for repeat offenders which have now been identified as being in conflict with the judgment in the Ellis case. Amendments are being made to ensure that the offence referred to in each section operates in line with judicial discretion and does not provide for a mandatory sanction which is more punitive for persons who have committed second or subsequent offences.

Section 1 amends section 49 of the Dublin Police Magistrates Act 1808 and mandatory penalties for second or subsequent offences relating to the concealment of stolen goods. Section 2 amends section 40 of the Illicit Distillation (Ireland) Act 1831 and penalties for second or subsequent offences relating to illicit making of malt and distillation of spirits. Section 3 amends section 32 of the Refreshment Houses (Ireland) Act 1860 and penalties for second or subsequent offences relating to wine licences for refreshment houses.

Section 4 amends section 15 of Firearms Act 1925 which provides for penalties for the offence of possession of firearms with intent to endanger life. Section 5 provides for the amendment of four separate provisions in the Firearms Act 1964, namely: section 26, which provides for penalties for possession of a firearm while taking a vehicle without authority; section 27, which provides for penalties for use of firearms to assist or aid escape; section 27A, which provides for penalties for possession of a firearm or ammunition in suspicious circumstances; and section 27B, which provides for penalties for carrying a firearm with criminal intent.

Section 6 amends section 27 of Misuse of Drugs Act 1977 which provides for penalties for a range of offences relating to the misuse of drugs. Section 7 amends section 12A of the Firearms and Offensive Weapons Act 1990 which provides for penalties for shortening the barrel of a shotgun or rifle and similar offences. Section 8 amends section 25 of the Criminal Justice Act 2007 which provides penalties for the commission of a scheduled offence where a person has already been convicted on indictment of a scheduled offence within a specified period.

Section 9 is a technical amendment to section 24 of the Parole Act 2019, which sets out provisions on the eligibility for parole. Section 24(12) of this Act makes reference to section 27(3F) of the Misuse of Drugs Act 1977, which provides for the mandatory minimum sentences for second and subsequent drug offences. This reference is in the context of specifying the minimum term of imprisonment to be served before a person may become eligible for parole. Section 9 removes this reference from the Parole Act 2019.

Section 10 addresses 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 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 potential for further litigation in the case 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 by 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 retrospective application of the repeal of sentences in the Bill.

The net effect of section 10 is 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 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 will not be a sentencing option. In any case where such persons are already serving a sentence, they will have been able to seek a fresh sentencing hearing. It is also important to note that section 10 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 a case has already proceeded to appeal stage and been finalised or where the time for the appeal has expired. This approach is consistent with the case law of the European Court of Human Rights.

Section 11 is a standard provision providing for the Short Title and commencement.

I look forward to hearing the contributions of Senators. There will of course be an opportunity on Committee Stage to discuss in more detail any aspects of the Bill that Senators wish to explore further.