Michael McDowell (Independent) | Oireachtas source

It is not agreed. I was unfortunately not able to participate in the Second Stage debate on the Bill. I would have liked to have said a few words about its general principle. I will take this opportunity on the section to make a few remarks about the Bill.

First, in light of the judgment of the Supreme Court in Wayne Ellis v. the Minister for Justice and Equality, I believe the present Government and the present Attorney General have no option but to introduce legislation along these lines. Therefore, I make no criticism whatsoever of the Department of Justice or the Government for sponsoring this legislation.

Second, the judgment of Ms Justice Finlay Geoghegan in the Supreme Court on 15 May 2019 broke new ground insofar as it effectively said the Oireachtas, in determining by statute penalties that can be imposed for offences, may not provide for penalties - or mandatory penalties at any rate - for second and subsequent offenders that are greater than those for first offences. I wish to put on the record a couple of points in that regard.

When the Criminal Justice Act 2006 amended section 27A of the Firearms Act 1964, it provided as follows: "It is an offence for a person to possess or control a firearm or ammunition in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose." In other words, it is an offence to have a weapon for an unlawful purpose unless one has a lawful purpose, which is obvious. That section continues:

A person guilty of an offence under this section is liable ... on indictment— (a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and

(b) at the court's discretion, to a fine of such amount as the court considers appropriate.

This is possession of a firearm with an intent to commit a serious offence. Section 27A(3) states: "The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts ..., the Offences against the State Acts ... or the Criminal Justice (Terrorist Offences) Act 2005." Thus far there is no problem with that. In imposing a sentence up to a maximum, the court may have regard to the fact that the person has previously committed a fairly serious firearms offence. Section 27A(4) states: "Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person." That is simple too. It is a minimum tariff of five years for all offenders. However, following amendments made by the Criminal Justice Act 2007, the Act went on to state, in section 27A(4A), "The purpose of subsections (5) and (6) of this section is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (except a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 10 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so." I was the Minister at the time of the drafting of that legislation, and that section was crafted in close consultation with the then Attorney General, Rory Brady SC. It provided that the minimum sentence for a repeat offender was to apply unless, having regard to the exceptional circumstances of the offence, or specific circumstances relating to the offence or the person convicted of it, it would be "unjust in all circumstances to do so". Section 27A(5) provides that subsection (4)

"does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it ... [which would make the minimum term] unjust in all the circumstances, and for this purpose the court may [subject to subsection (6)] have regard to any matters it considers appropriate, including— (a) whether the person pleaded guilty to the offence and, if so—

(i) the stage at which the intention to plead guilty was indicated,

(ii) the circumstances in which the indication was given

and

(b) whether the person materially assisted in the investigation of the offence.

Section 27A(6) states:

The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 10 years imprisonment is unjust in all the circumstances, may have regard, in particular, to (a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts ..., the Offences Against the State Acts ... or the Criminal Justice (Terrorist Offences) Act 2005, and

(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

This was a second way out for a court. This was the essence of what was provided by the then Attorney General, in consultation with the Department of Justice. First, the Judiciary was not required in any case where it would be unjust to apply a minimum sentence. Second, the criteria that were set out were not exhaustive but purely indicative, and it was left to the court to take a very broad view of whether a minimum sentence should be imposed under the section. The Supreme Court in the Wayne Ellis case came to consider the issue as to whether a minimum sentence imposed was in fact unlawful or, as the Supreme Court was later to find, an unlawful invasion of the sole prerogative of the Judiciary to administer justice and to impose sentences as part of the judicial function of the State.In other words, those provisions that I have just read out were regarded by the Supreme Court's judgment as an impermissible invasion of the courts' jurisdiction. In so finding, the court relied on previous jurisprudence to the effect that minimum sentences could be legitimate if they apply to everyone, but they could not be regarded as legitimate if they did not apply to everyone who committed an offence of the type in question.

This is the first occasion on which I have had any opportunity to discuss this decision. When a person is a Minister, an Attorney General or in government, it is suicide to even query the correctness of a Supreme Court decision. One just cannot do it. The media would devour you and say you are arrogant, stupid and all the rest of it for querying it. Therefore, the Constitution means what the Supreme Court says it means, and I fully accept this proposition. Even though a person may in good faith disagree with the Supreme Court, if he or she holds executive office, either as Attorney General or as a Minister, then he or she is bound to comply with the jurisprudence of the Supreme Court and bound to comply with their view of what the Constitution does or does not permit. I fully accept all of that. It is obvious. I make no criticism whatsoever of this Bill. It interests me to point out that it was not simply the section in question that had to be amended, but that a variety of other sections also had to be amended to take account of this new determination by the Supreme Court as to where the boundaries lie between the legislative powers of the State, on the one hand, and scope of the judicial function, on the other.

The ratio decidendiof the Supreme Court was that it was, in effect, bound by previous court decisions that if there was to be a minimum sentence or a general sentence of a minimum kind for an offence, it had to apply to everybody who committed that offence and not just to some classes of people who might have committed it. The Bill before us deals with a series of offences under previous statutes where differentiation was made in sentencing of a minimum kind between people who had previous convictions for that offence and people who had not. Of course, it is very commonplace to say in legislation that in the case of a first offence the maximum is two years and in the case of a second or subsequent offence it is seven years. This is nothing to do with the Supreme Court decision that we are dealing with here.

I am tentative on this next point, but I do want to make it. Having been the Minister involved, having consulted with the Attorney General and having carefully considered that there was an issue that a minimum sentence law had to respect, in the ultimate, the right of the Judiciary to depart from it where it considered that its result would be unjust, it was strange indeed that we would find ourselves in the position that the legislation should be struck down. Very few people have been in the position that I am in now of having introduced legislation on the advice of the Attorney General and saying that it was legitimate and kosher in the context of the Constitution, only to find afterwards that the Supreme Court, having addressed the issue, took a radically different view to the effect that the provisions that had been included in order to ensure that no court would be forced to impose a minimum sentence where it would be unjust to do so, and in throwing out categories of issues which the court could look at to see whether it would be unjust, not do so exhaustively and allow the court a wider discretion not to impose it on the grounds that it would be unjust to do so. I am long enough in the tooth, as a Member of the Houses of the Oireachtas, as a person who has held ministerial office and served as Attorney General, and as someone who has practised law, including criminal law, and who has appeared in many constitutional cases, to afford myself the opportunity to say that I believe that in this respect the approach of the Supreme Court was wrong. I just want to record that fact.

I am not saying that my view is preferable to the court's view, or that my view should dissuade the Minister of State from going ahead with the legislation or that my view has any real weight in this matter. I do, however, make the point - it is worthwhile making it but nowhere is it referred to in a satisfactory way in the majority judgment of the Supreme Court - that there is, in my view, a very clear rule of double construction to the effect that any statute which comes before the Supreme Court should be looked at and if it contains a constitutional interpretation, it should be accorded that meaning. Looking at the judgment of the Supreme Court, I find that it failed completely to address that issue. I just want to put this on the record - very few people are in a position to be able to say this - I find that it failed completely to address that issue. It simply looked at the judicial function and the legislative function and, without determining the legality of it - and it expressly prescinds from that of generalised minimum sentences - and stated that this provision offends the distinction between the competence of the Oireachtas to provide minimum sentences and the rule, which the court found in earlier case law, that if there are to be minimum or mandatory sentences, they should apply to everybody in the category and not just to classes of offenders.

I believe that the late Attorney General Rory Brady got it right. I also believe that the Supreme Court did not apply its own jurisprudence on the question of the constitutional interpretation of statutes in a satisfactory way. I have the greatest of respect for the judges who are mentioned in the case report. I have huge respect for all of them. I felt that simply to acquiesce in the judgment and not point out that the whole constitutional dimension had been very carefully considered by the Attorney General at the time in the context of the advice he gave to the Department of Justice and that the Supreme Court seems to have departed from the rule of double construction in that if the Act were in every case and if it is indeed the case that there is something wrong with distinguishing between different categories of persons who commit the same offence, then the statute was capable of being given a constitutional interpretation and ought not have been struck down.Respectfully and humbly, therefore, I consider that the reasoning of the Supreme Court in this case was wrong. I put that on the record humbly, accepting that we live in a constitutional democracy and that the Constitution, by way of how we have enshrined the judicial function in the Constitution, means what the Supreme Court says it means. However, I feel it is important to put on the record that this statute did not require any court to impose the minimum sentence where it found that it was unjust to do so. The consequence of that must be that it was advisory at the most and was not mandatory. Although its language approaches mandatory language, it has this escape valve of non-application where it would result in an injustice.

It may be a bit self-indulgent to dispute the correctness of a Supreme Court judgment in the Houses of the Oireachtas and perhaps very few people would dare to do so. While accepting that the Supreme Court judgment is the binding judgment, and that my view of the matter is not in any sense a reason Ministers should not act on their judgment and implement the substance of their view, it occurs to me that sometimes the Judiciary takes a view of its province which is, and properly so, jealous of invasion by the Oireachtas. Where the Oireachtas, however, enacts a law which on the face of it respects the right of the Judiciary regarding a minimum sentence for a repeat offender and expressly provides that it shall not have effect if in the opinion of the sentencing court it would be unjust to do so, which is the cardinal principle of what the Attorney General advised the Department to put into the statute at the time, it is hard, applying the double construction rule, to come to the view that the underlying effect of the provision in question was permissive and advisory and not mandatory in respect of any particular outcome in any particular case.

We rarely have situations like this, because at the end of a Supreme Court decision as to what the Constitution means, that is it and that is what the Constitution means. Nobody can argue with it. The Supreme Court has held that whatever was in question means X or Y, and there is no opportunity for anybody to ask if that decision was right. We live in a democracy and legal academics can challenge decisions on areas such as, for instance, the admissibility of evidence and all that type of jurisprudence. People can take sides in a particular case on something of that kind. I must say, however, in respect of applying the double construction rule, which was undoubtedly in the mind of the then Attorney General, Mr. Rory Brady SC, and applying the absolute principle which was set out in this section that the minimum sentence for a repeat offender would not apply where in the view of the court it was unjust, full stop, and considering that the provisions giving examples of reasons for injustice were not exhaustive but purely exemplary, that it seems to me that the double construction rule was not properly applied in this case.

To make one further point on this subject, I believe this was a warning shot across the bows of the Oireachtas to signal that the judicial function in imposing sentences should not be the subject of a legislative policy as regards the circumstances in which any particular punishment is given. I fully accept that the Judiciary is entitled to fire such a shot across the bows of the Oireachtas, but I consider that the enthusiasm of the Supreme Court in arriving at this judgment and this outcome in the Wayne Ellis case was coloured more by a desire to fire that warning shot than to pay adequate respect to the principle of double construction which should have saved the statute.

I will not say more than that. I thank the Acting Chairperson for indulging me in saying that. I feel that sometimes these things should be said and this House is one where these kinds of issues can be discussed. I do not want to trespass on the patience of Members, but I do want to provide some explanation as to what happened and to put a serious question mark over the correctness of the decision eventually arrived at.

The Supreme Court prayed in aid of its decision a prior decision about offences applying to all offenders committing an offence rather than just some or specifying a class of offenders. That was not, however, dispositive of the issue in question, because the kernel of the issue in the Wayne Ellis case in my view, and that of the Minister of Justice, was new territory previously uncharted and therefore it should have attracted the double construction rule. I have made my contribution, and I am thankful to the Acting Chairperson and the House for allowing me to do so.