A section of anti-drug trafficking legislation has been found by the High Court to be unconstitutional.
Mr Justice Michael Twomey agreed with submissions made on behalf of Sean McManus, currently serving a sentence for drug dealing that Section 27 (3F) of the 1977 Misuse of Drugs Act was unconstitutional.
The section, the judge said, was unconstitutional as it has the effect of requiring a court to impose a mandatory minimum sentence on a limited class of persons, namely those who have previously been convicted of drug trafficking.
The section, he said, wrongfully interfered with the constitutional powers entrusted to judges regarding the imposition of sentences on convicted persons.
The Supreme Court had ruled, in a case involving an offence under the 1964 Firearms Act, in 2019 that imposing mandatory minimum sentences on someone previously convicted of an offence under that legislation was unconstitutional.
McManus was jailed after he pleaded guilty to an offence under the 1977 Drugs Act at Cork Circuit Criminal Court in 2018.
McManus was previously convicted for a drug trafficking offence and in 2009 was jailed for five years.
Mr Justice Twomey said McManus' 2018 conviction should stand. However, the 15-year with the final three years suspended, prison sentence imposed on him should be remitted back to the Circuit Criminal Court for a reconsideration, the judge said.
McManus (39) from Burrowfield Road, Baldoyle, Dublin was jailed after he, and three others pleaded guilty to possession of cocaine for sale or supply at Seascape, Dromleigh, Bantry, Co Cork, on November 26th, 2017, at a time when its street value exceeded €13,000.
Joint operation
They were arrested following a joint Garda and Customs operation.
McManus's co-accused and girlfriend Molly Sloyan, aged 28, from Abbey Court, Kinsale, Co Cork, was jailed for ten years with the final three suspended.
William Gilsenan, aged 51, and his son Dean Gilsenan, aged 27, both of Kilmahuddrick Green, Clondalkin, got respective sentences of seven years with two suspended and 10 years with three suspended.
The sentences were imposed by Judge Seán Ó Donnabháin who said that McManus and the others were involved in the running of a cocaine factory, where they used a solvent to extract cocaine from fabric posted to Ireland from Brazil.
Identical language
In High Court proceedings against the Minister for Justice, Ireland and the Attorney General McManus's lawyers argued that the sentencing judge took Section 27 (3F) of the 1977 Act into account when passing sentence on McManus.
That section was identical to the language used in the 1964 Firearms Act, which the Supreme Court had found to be unconstitutional, it was submitted and therefore should also be struck down.
The Supreme Court unanimously ruled that, in enacting Section 27A(8) of the Firearms Act 1964, the Oireachtas “impermissibly crossed the divide” between the constitutional separation of powers because it sought to decide the minimum sentence to be imposed by the court on some, but not all, persons convicted of listed offences.
On that basis, it granted a declaration of unconstitutionality to Wayne Ellis, with an address at Landen Road, Ballyfermot, who brought the challenge arising out of a sentence he recieved for possession of sawn-off shot gun in 2012.
Opposition
The State respondents opposed McManus' action.
They argued he lacked the legal standing to bring the action, and McManus was seeking to advance arguments regarding mandatory minimum sentencing which did not arise on the facts of his particular case, when he was sentenced for a second drug trafficking offence.
In his judgment Mr Justice Twomey said that, based on the Ellis judgment, McManus was entitled to a declaration that s. 27(3F) of the 1977 Act is repugnant to the Constitution.
He said that the court "is obliged to follow Ellis and hold that s. 27(3F) of the 1977 Act is unconstitutional".
This was because the section does not apply to all persons who are convicted of the drug trafficking offence, but only applies to a limited class of persons who commit the offence of drug trafficking (i.e. those with previous convictions under s. 15A and/or 15B ).
The section breaches Article 34.1 of the Constitution by impermissibly encroaching on a court’s exclusive jurisdiction to determine sentencing.
The legislature can determine the penalty to apply to all persons who commit a specific offence.
When it comes to determining the appropriate sentence for a particular individual who committed that offence, that is part of the administration of justice entrusted to the courts pursuant to the Constitution, and it is not something which can be done by the legislature, the Judge added.
He rejected the State's arguments and said that the High Court was bound by the Supreme Court's decision.
The matter will be mentioned before the court at a later date, when final orders are to be considered.
