Court refuses to declare sections of Fire Arms Act unconstitutional
The High Court has refused to grant a declaration sought by an applicant who had challenged s.27C(4) of the Firearms Act 1964 as unconstitutional, due to its precluding his temporary release from prison in order to pursue a course of study.
The applicant, Keith Doyle, was sentenced in June 2013 to five years in prison for possession of a controlled drug, as well as a concurrent five year sentence for possession of a fire arm in suspicious circumstances contrary to s.27A of the Firearms Act 1964, as substituted by s.59 of the Criminal Justice Act 2006, as amended.
Mr Doyle subsequently sought temporary release in order to pursue a course of study, but was refused on the grounds of s.27C(4) of the Firearms Act 1964 (as inserted by s.61 of the Criminal Justice Act 2006), as he was serving a “minimum term of imprisonment” as defined within s.27C(1) of the 1964 Act.
Delivering the judgment, Kearns P outlined the relevant statute provisions. S.27A of the Fire Arms Act was identified as applying a “minimum sentence” of five years imprisonment to those found guilty of illegal possession of a firearm, while s.27C prohibits the commuting or remitting of punishment for the period of the “minimum sentence”.
Mr Doyle’s counsel submitted that such a rule constitutes a “blunt instrument” which fails to take into account personal circumstances or the wide range of criminal wrongdoing of varying degrees of seriousness covered by s.27A.
It was noted that presumptive mandatory sentences have been declared unconstitutional and disproportionate in other jurisdictions. Counsel cited the decision of the Canadian Supreme Court in R v Nur SCC 15, in which the Court found that such sentences deprived courts of the “ability to tailor proportionate sentences”, and infringed the Canadian Charter of Rights and Freedoms.
While the applicant accepted that the granting of temporary release did not amount to a constitutional right, it was submitted that the applicant’s rights to personal liberty under Article 40.4.1 and his guarantee of equality pursuant to Article 40.1 were infringed by the disproportionate interference of the provisions of s.27C.
Furthermore, the applicant argued that determining whether to grant temporary release is an executive decision, and the legislation therefore violates the principle of separation of powers. Counsel cited Dowling v The Minister for Justice 2 IR 535, Gilligan v Ireland and Others JIC 1403 and Whelan v The Minister for Justice and Others 1 IR 1 in support.
In response, the counsel for the respondents, comprising the Minister for Justice and the Governor Training Unit Mountjoy Prison, the Irish Prison Service, Ireland and the Attorney General, argued that much of the applicant’s arguments related to mandatory sentences, which were not covered in the current grounds of challenge.
Furthermore, the mandatory sentences satisfy the proportionality test, due to s.27A (4A) of the Fire Arms Act, which allows the court to find that such a sentence would be unjust. Similarly, s.27C is not absolute, as temporary release is allowed “for grave reasons of a humanitarian nature”.
In response to the alleged violation of equality, the respondent submitted that the restriction on the granting of temporary release is rendered proportionate and justified by the legitimate legislative purpose which it pursues, namely addressing the harm caused to society by the unlawful possession and use of fire arms.
Counsel argued that no constitutional right to temporary release existed, but that any such right was created and could be controlled by statute. Counsel cited Kinahan v Minister for Justice 4 IR 454, Grogan v Parole Board IEHC 204 and Laurentiu v. Minister for Justice, Equality and Law Reform 4 IR 26 in support of this position.
Kearns J voiced general agreement with the respondent’s position. It was found that s.27C did not constitute an interference with the separation of powers, following Keane J’s statement in Laurentiu v. Minister for Justice that “the Oireachtas may properly decide as a matter of policy to impose specific restrictions on the manner in which the executive power in question is to be exercised”.
In relation to the argument that s.27C was disproportionate and inflexible, the Court found that the level of discretion given to judges both when determining whether to deliver the minimum sentence, and when determining whether to grant temporary release, precluded challenges of being unconstitutional.
Furthermore, the Court noted the European Prison Rules, which allow programmes of rehabilitation to be pursued within the prison as well as outside it.
Concluding the judgment, Kearns J found that “the Court does not accept that s.27C infringes upon the applicant’s right to equal treatment before the law under Article 40.1 of the Constitution. The purpose of the presumptive minimum sentences is expressly stated in s.27A, the constitutionality of which is not challenged in these proceedings.
The Court accepts the submission of counsel for the respondent that the restrictions on the granting of temporary release to persons sentenced in accordance with s.27A as set out in s.27C are justified having regard to the purpose of the sentence itself and the wide range of alternative rehabilitative options available to persons such as the applicant”.