Mandatory minimum sentencing: High Court decision on section 27(3F) of the Misuse of Drugs Act

7th June 2021

The High Court has ruled that mandatory minimum sentencing for those with previous convictions for serious drug trafficking is contrary to the Constitution. Under section 27(3F) of the Misuse of Drugs Act 1977 (as amended), the minimum sentence someone could receive if they had previously been convicted of having drugs worth more than €13,000 in their possession was 10 years’ imprisonment.

The plaintiff in Sean McManus v Minister for Justice and Equality, Ireland and the Attorney General claimed that s.27(3F) of the Misuse of Drugs Act 1977 is unconstitutional since its effect requires the court to impose a mandatory minimum sentence on a limited class of people, namely only those previously convicted of an offence for drug trafficking contrary to s.15A or 15B of the 1977 Act.

In bringing the challenge, the plaintiff, Sean McManus, relied on Ellis v Minister for Justice and Equality. Ellis dealt with a nearly identical provision contained under the Firearms Act 1964 (as amended) that was found to be unconstitutional in a Supreme Court ruling. The Supreme Court found that the section was unconstitutional due to the mandatory minimum sentence being only applicable to a limited class of persons, those that had been convicted of a second firearms offence under the 1964 Act.

Under Ellis, the Supreme Court concluded that s.27(8) of the Firearms Act 1964 was unconstitutional due to the infringement of the separation of powers between the powers of the Oireachtas and the judiciary. Through s.27(8), the Oireachtas had assumed legislative power it did not have in declaring mandatory minimum sentences imposed on only a limited class of people sharing one particular characteristic. The plaintiff in the present case brought the claim that s.27(3F) of the Misuse of Drugs Act, 1977 is unconstitutional on the basis of the Ellis decision since the effect of the provision has the same effect of being imposed on only a limited class of people, those convicted of their second drug trafficking offence.

Mr. Justice Twomey found that 27(3F) breached Article 34.1 of the Constitution as it interfered with the court’s power to oversee sentencing matters that pertain to individuals or a specific group of individuals. This judiciary power is protected under the Constitution and cannot be provided by the legislature, except for in the case that the penalty applies to all persons.

The High Court recognised the limited applicability of its decision in other cases. Any sentence finalised under s.27(3F) cannot be challenged based on unconstitutionality due to the present court decision. Following a decision under A v Governor of Arbor Hill Prison, the subsequent declaration of unconstitutionality would not permit prisoners sentenced under the statutory provision who did not appeal their sentence in time or failed to appeal their case before it was finalised. Any person about to be sentenced or has a sentence that has not been finalised under s.27(3F) can now benefit under the fact that the sentencing judge cannot consider a previous drug trafficking conviction under s.15A or 15B of the 1977 Act which would have previously subjected them to a mandatory minimum sentence of 10 years.

The sentence of the plaintiff was quashed. The matter will be remitted to the Circuit Criminal Court for fresh consideration.

The judgment of the case ([2021] IEHC 385) can be accessed here.
 

IPRT position:

• IPRT has repeatedly called for an end to mandatory and presumptive sentencing. There is no evidence from Ireland or abroad that mandatory minimum sentencing works to address any category of offending. 
• Both the Law Reform Commission and the Strategic Review of Penal Policy also recommended that no new mandatory sentences or presumptive minimum sentences should be introduced.
• For more on mandatory sentencing, see our 2013 Position Paper (currently being updated). This paper outlines the disadvantages of mandatory sentencing and proposed alternatives to improve consistency and transparency in sentencing practice.