Supreme Court rejects Gilligan appeal
Convicted drug dealer claimed he was discriminated against over mobile phone sentencing
John Gilligan: twice convicted for having a mobile phone in prison. Pic: Collins Courts
Gilligan, who is eligible for release from tonight, argued in April that mandatory consecutive prison sentences imposed on those convicted of an offence while already serving a prison sentence were unconstitutional.
Gilligan was twice convicted for having a mobile phone in prison. The first conviction was at Portlaoise District Court in 2011, when he received an eight-month sentence, and the second at the Special Criminal Court in 2012 when a six-month term was imposed.
His appeal against the eight-month prison term he received in 2011 has been stayed pending the outcome of his constitutional action.
Gilligan brought legal proceedings, seeking to challenge the constitutionality of section 13 of the Criminal Justice Act 1976 which in his case as a prisoner already serving sentences, made it mandatory that the sentences imposed on him by the District Court, or on appeal, the Circuit Court, be consecutive and not concurrent.
He claimed that the section was invalid because it unlawfully restricted the discretion of a judge in imposing a sentence upon him in those circumstances, and that as a result, the provision offended against the fundamental constitutional principle of separation of powers.
He also claimed that this provision unlawfully discriminated against him as a prisoner serving a 20-year sentence, by contrast with a prisoner serving a life sentence to which the section does not apply. These claims failed in the High Court
The Supreme Court ruled that the section “does not prescribe that any one sentence shall be imposed, but rather, provides that, if a sentence of imprisonment is to be imposed in such circumstances, it shall be consecutive. A judge is not prevented from imposing any other form of penalty prescribed by law”.
“Thus judicial discretion in sentencing in any particular case, applying the principle of proportionality, is protected.”
It said the judgment also concludes that the section, insofar as it applies to the appellant, “does not discriminate against him in an unlawful way”.
“It serves a lawful purpose and operates in clearly defined and lawful circumstances.
“For these reasons the appeal is dismissed, and the appellant’s challenge fails. The stay imposed on the prosecution of the appeal will be lifted.”