High Court rules section of Misuse of Drugs Act is unconstitutional

Fifteen year sentence imposed because of previous conviction to be reviewed

Mr Justice Michael Twomey found the section wrongfully interfered with the constitutional powers entrusted to judges regarding the imposition of sentences on convicted persons.

Mr Justice Michael Twomey found the section wrongfully interfered with the constitutional powers entrusted to judges regarding the imposition of sentences on convicted persons.

 

The High Court has struck down the 12-year prison sentence imposed on a convicted drug dealer after finding a section of anti-drug trafficking legislation 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 is unconstitutional.

The section is unconstitutional because it has the effect of requiring a court to impose a mandatory minimum sentence on a limited class of persons, namely those previously convicted of drug trafficking, the judge said.

The section thus wrongfully interfered with the constitutional powers entrusted to judges regarding the imposition of sentences on convicted persons.

The Supreme Court had ruled in 2019, in a case involving offences under the 1964 Firearms Act, that imposing mandatory minimum sentences on someone previously convicted of an offence under that legislation is unconstitutional.

McManus was jailed after he pleaded guilty to an offence under the 1977 Act at Cork Circuit Criminal Court in 2018.

He had previously been convicted of a drug trafficking offence and in 2009 was jailed for five years.

Mr Justice Twomey said McManus’s 2018 conviction should stand. However, the 15-year prison sentence, with the final three years suspended, imposed on him should be remitted to the Circuit Criminal Court for reconsideration.

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 value exceeded €13,000.

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.

She made headlines of a different kind some years ago when a clip of the Daniel O’Donnell fan who was a Late Late Show audience member went viral.

William Gilsenan, aged 51, and his son Dean Gilsenan, aged 27, both of Kilmahuddrick Green, Clondalkin, were sentenced to seven years with two suspended and 10 years with three suspended respectively.

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.

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 their client.

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, Ballyfermotwho brought the challenge arising out of a sentence he received for possession of sawn-off shot gun in 2012.

The State respondents opposed McManus’s action.

They argued that the plaintiff, 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 judgement, McManus was entitled to a declaration that section 27(3F) of the 1977 Act is repugnant to the Constitution.

He said that the court “is obliged to follow Ellis and hold that section 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 (ie those with previous convictions under section 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.