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Cite as:  1 ILRM 153,  IESC 45,  2 IR 745
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Judgment Title: Gilligan -v- Ireland & ors
Neutral Citation: [2013 IESC 45
Supreme Court Record Number: 419/12
High Court Record Number: 2012 3820 P
Date of Delivery: 14/10/2013
Court: Supreme Court
Composition of Court: Denham C.J., Murray J., Fennelly J., Clarke J., MacMenamin J.
Judgment by: Judgement of the Court
Status of Judgment: Approved
Notes on Memo: Judgment of the Court
THE SUPREME COURT
[Appeal No: 419/2012]
Ireland, The Attorney General, The Minister for Justice, Equality and Defence and the Governor of Portlaoise Prison
Judgment of the Supreme Court delivered the 14th day of October, 2013, by MacMenamin J.
4. The issue here relates to a statutory provision specifying the powers of a court in the sentencing of persons who, while serving a sentence in prison for other offences, commit a further offence. The impugned provision stipulates that custodial sentences for such offences are to be consecutive. It is said that this mandatory provision constitutes an impermissible invasion of the judicial domain, thus offending against the principle of the separation of powers, which is constitutionally guaranteed to the people as a protection of the right to liberty. It should be emphasised that this judgment concerns itself with what is constitutionally permitted; any question of whether statutes should provide for mandatory or presumptive minimum sentences lies with the executive and the legislature (see the Law Reform Commission’s Report on Mandatory Sentences, published on the 12th June, 2013). However, this does not mean that the judiciary has no role in the assessment as to whether any such statutory provisions are valid having regard to the Constitution.
5. The appellant is currently serving a number of sentences of imprisonment. The first sentence in time was a very lengthy one. While serving this term of 20 years for drugs-related offences, the appellant assaulted a prison officer. For this offence, committed while in prison, he was sentenced to a further two years imprisonment, to run consecutively after the term of 20 years. While serving that sentence in turn, he was convicted in the District Court of two further offences in relation to the possession of mobile telephones while in prison. The two District Court custodial sentences of imprisonment for these offences are presently under appeal to the Circuit Court. The appellant has again been sentenced to consecutive terms of imprisonment for these. These have been stayed pending this appeal.
The Impugned Section
The appellant’s case
9. It is contended that the power of the judiciary is unconstitutionally fettered in the imposition of a sentence because, in this context, the Act stipulates that any such sentence must be consecutive. Thus, it is said that the impugned provision is contrary to the rule of law; violates the constitutional right to be sentenced by a trial court in due course of law; fails to respect the right to be sentenced by a judge, who is entitled to have regard to the appropriate degree of guilt in each case, and is charged with taking into account all relevant circumstances of the case, bringing to bear values of impartiality and independence.
Principles of construction applicable
The respective roles of the executive, legislature and judiciary
12. Certain indicia of what defines the judicial domain can be discerned from decided cases. But this process must primarily be informed by the principles enshrined in the Constitution. Modern authorities make clear that the judiciary are entrusted with the task of applying the principle of proportionality in sentencing. The origin of this principle can be found in the very nature of the judicial task. But, in identifying the gravity of an offence, its context and the needs of society can also form part of the analysis; consequently, both the legislature and executive play a role.
13. What is in question in this appeal is not that there is some fixed mandatory sentence, or a presumptive sentence, or a stipulated minimum sentence; but, rather, a legislative prescription, contained in the impugned section, to the effect that any sentence of imprisonment, for an offence committed while in prison must be consecutive to the term already being served. The provision does not however provide that there must only be one sentence, unlike the offence of murder, where a life sentence is mandatory. In the case of offences committed whilst in prison, a sentence upon conviction might consist of a fine or a suspended sentence. In either of the latter cases, the provision as to consecutive sentences would not be triggered.
14. The question then is whether this provision, delimited to a specific category of offenders, offends against the doctrine of separation of powers.
Deaton v Attorney General – the role of the executive in selecting penalties within a prescribed range
16. It will be at once evident that the questions arising in this appeal bear directly on the seminal and influential case of Deaton v The Attorney General. Deaton has been internationally cited and relied upon as identifying appropriate boundary lines between the executive and judicial organs of government (see O’Malley “The Power to Punish: Reflections on Deaton v Attorney General” in O’Dell ed., Leading Cases of the 20th Century (Dublin, 2000) 196). The legislation there challenged was such an inheritance from a time where the demarcation lines between the sovereign, the executive, the legislature and the judiciary were less well distinguished than under our Constitution.
17. In Deaton, the pre-independence statute under challenge provided for alternative penalties for certain revenue offences. Section 186 of the Customs Consolidation Act 1876 provided that any person found guilty of such an offence, “should forfeit either treble the value of the goods, including duty payable thereon, or one hundred pounds” at the election of the Revenue Commissioners, who were successors in title to the Crown Commissioners of Customs and Excise. The impugned section conferred authority on the executive to choose between those alternative penalties in any given case. There could have been no doubt that the legislature had the power to prescribe a range of penalties as punishment. As Ó’Dálaigh C.J. pointed out at p. 181 of the report:
19. What was determinative in Deaton was that the selection of the penalty was not in fact a judicial function; that power lay with the executive. This Court held that, once there was a choice of penalty prescribed by the legislature, any question of the exercise of that choice by the executive would be tantamount to an administration of justice by the executive and thus offend against the principle of separation of powers.
20. As is accepted in Deaton, the legislature may prescribe mandatory sentences in certain instances. But, as Ó’Dálaigh C.J. explained, a fixed or mandatory penalty suffers from the flaw that all citizens if convicted, no matter what their circumstances, must face the same penalty. The Chief Justice observed that where the legislature prescribes a choice of penalties, the rights of the citizens against the executive were to be safeguarded by an independent judiciary. He explained:
22. What the then Chief Justice emphasised in Deaton was the principle that the legislature cannot retain or transfer what properly lies in the judicial domain. The legislature states a general rule; the application of that rule is for the courts. The degree of punishment which a particular citizen is to undergo for an offence is a matter which may vitally affect his liberty; the identification of the degree of punishment is a function of the administration of justice. The Chief Justice considered that it was:
In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive…”
The State (Sheerin) v Kennedy invalidates a ministerial discretion in the selection of the terms of detention
The State (O.) v O’Brien condemns detention “during His Majesty’s pleasure”
25. More recently, issues quite akin to Deaton arose in Osmanovic v. The Director of Public Prosecutions and Others  3 IR 504. The question there was again whether the legislature had transgressed into the judicial domain by fixing a penalty contrary to the separation of powers doctrine. Section 89(b) of the Finance Act 1997 amended s. 186 of the Customs Consolidation Act 1876. The impugned section provided inter alia, that the penalty for conviction on indictment on charges of illegal importation of goods was to be a fine of treble the value of the goods, including the duty payable thereon or €12,700, which ever was the greater; or at the discretion of the court, imprisonment for a term not exceeding five years, or both the fine and the imprisonment.
26. Relying on Deaton, the applicants in Osmanovic unsuccessfully sought a declaration that the provisions were inconsistent with the Constitution as the fine imposed in the section was a fixed penalty contrary to the principles of the separation of powers. In dismissing the appeal, this Court pointed out the vital distinction between that case and the earlier precedents was that the fine provided for in the impugned section was not a fixed penalty at all. It provided for a choice of penalties which could be imposed. Thus it did not offend against the Constitution. This Court emphasised that, where a section provided for a choice of penalty, the process of selection of that penalty to be imposed was to be made by the court in the exercise of the administration of justice. Insofar as the further point was made that the Act contained an inherent discrimination on the basis of the fine being predicated on the means of the convicted person, Murray C.J., speaking for the court on this issue, held that the impugned provision did not constitute “wealth based” discrimination, and that a judge, in dealing with an impecunious accused, might variously impose a custodial or suspended sentence (as otherwise there would be no punishment). In the case of a wealthy accused, the imposition of a fine might also be a real option; but there was no duty in law to impose any monetary sentence; therefore, an impecunious person could not be the subject of wealth-based discrimination.
27. Murray C.J.’s observations on the range of judicial discretion are à propos in the instant appeal. He pointed out at p. 504 of Osmanovic:-
29. In its Report, “Mandatory Sentences”, the Law Reform Commission outlines the various forms which sentences of a mandatory nature can take. Such sentences fall into three categories. The first are mandatory sentences where there is no discretion vested in the sentencing court whatsoever. The court must impose the fixed sentence as prescribed by legislation. The life sentence for murder under s. 2 of the Criminal Justice Act 1990 (held to be constitutional in Lynch & Whelan v Minister for Justice  1 I.R. 1) falls into this category. Second, there are “presumptive minimum sentences”, where a court must impose a sentence of prescribed minimum length unless there are “exceptional and specific circumstances”, which would make such a sentence of the prescribed minimum length unjust in all the circumstances. Certain offences under the Misuse of Drugs Act 1977 and the Firearms Acts are examples of this category. The third category is where mandatory sentences are prescribed in the event of a person committing an offence on a second or subsequent occasion. When the conditions for the imposition of such a sentence have been met, then the sentencing court is obliged to impose a prescribed minimum sentence. However, some, though not all, of the legislative provisions providing for this category of penalty, also allow a court to depart from the minimum term prescribed. For instance, s. 25(3) of the Criminal Justice Act 2007 permits a court not impose the minimum sentence, where it would be “disproportionate in all the circumstances of the case”.
30. By contrast with these three categories, there are sentences where, by virtue of the status of the offender, a court is obliged, if imposing a custodial sentence, to make such sentence consecutive to any other custodial sentence to be served. Such sentences are limited to two categories; first, offences committed whilst on bail (s. 11(1) of the Criminal Justice Act 1984, as amended) and, second, offences committed whilst serving a prison sentence (s. 13(1) of the Criminal Law Act 1976). This last category of offence is at issue in the present appeal.
Analysis of this case in light of the authorities thus far cited
32. A flaw in the case presented is that it presumes a sentence which imposes a term of imprisonment. But what s. 13 requires, merely, is that any custodial sentence, if one is actually passed on a serving prisoner, shall be consecutive to the term then being served. It does not require that a custodial sentence be selected at all.
33. But even ignoring that fallacy the effect of the section is actually to provide that, in the event that a term of imprisonment is to be imposed on a prisoner such as the appellant by a sentencing judge, such sentence will be consecutive to the term of imprisonment already being served. Rather than being a situation where the executive has a role in selecting within a range of penalties, therefore, the provision merely stipulates that a sentence of imprisonment, if imposed, shall be consecutive to the sentence already being undergone. The critical distinctions between the impugned provision and that in Deaton are instantly identifiable; here the executive does not select the sentence; it has no role in the trial process; a sentence of a particular type or term is not mandatory.
No denial of the principle of proportionality in sentencing
35. By now, it is well established that the distributive principle of punishment under our law requires that, in general, every sentence must be proportionate to the gravity of the offence, and take into account the personal circumstances of the offender (see Deaton; Osmanovic; and Lynch and Whelan v Minister for Justice). Here, the term “proportionality” is used in the sense of the judicial task of striking a balance between the particular circumstances of the commission of the offence, and the circumstances of the offender to be sentenced.
36. In sentencing, proportionality only arises when the judge is exercising a judicial discretion as to sentence, within parameters laid down by law. Obviously, the principle does not arise in the case of mandatory penalties. The test of proportionality does however apply in every case where the offence, on conviction, carries a maximum, as opposed to a mandatory sentence. Thus, it arises in any situation where a trial court has a discretion as to the particular penalty to be imposed, within the statutory maximum sentence. Turning to the section under challenge, it is clear the proportionality test is as applicable to offences committed by serving prisoners as to others. Were there to be a denial of the power to apply this principle, there might indeed be discrimination between one category of prisoner and another. But this is not the case.
37. It is not open to the appellant to argue that by virtue of his status as a prisoner serving a lengthy term of imprisonment, he will ipso facto be subject to a sentence which is either disproportionate or unduly severe. This is because the impugned section does not, in fact, mandate any standard or minimum level of punishment in any given case. For the purposes of a challenge to the constitutionality of the statute, it must be presumed, that any sentence imposed according to s. 13(1) must be proportionate. The constitutional duty of ensuring proportionality devolves on the judge in imposing sentences in these, as in any other categories of offences. If an offender considers that the sentences imposed are unduly severe, he or she will have the right to appeal to the relevant appeal court in order to ensure any error in principle is cured.
The appellant actually availed of, and benefited from, the application of the principle of proportionality
39. If the regime was such that the principle of proportionality could not apply to the appellant in relation to offences which do not hold the same gravity as murder, then, clearly, constitutional considerations might well arise. Deaton recognises that the legislature may constitutionally prescribe a mandatory sentence for a particular offence; but that is because of the grave denial of rights involved in the crime of murder.
40. Here, it may be noted that Article 49(3) of the Charter of Fundamental Rights of the European Union provides:
Totality in sentencing
42. This test applies, irrespective of the gravity of the offences. Save in the case of truly mandatory sentences then, this totality check will apply when sentences are imposed by different courts in which the later court, or appeal court, may have regard to the punishment appropriate for the overall level of criminal conduct involved. It applies when separate trials are held for several related charges following a severance of the indictment. The fact that a custodial sentence may run consecutively to another, does not preclude its imposition by a sentencing court; nor does it inhibit a court, in exercising its discretion, from imposing a sentence that is just and appropriate having regard to all the circumstances. At its simplest, therefore, there is no reason why a court, applying the overall principle of proportionality, could not consider from the range provided under the applicable statute: a fine; a suspended sentence; or an appropriate prison sentence. In fact, applying the presumption of compliance with constitutional principles, that is precisely what a sentencing court must do.
43. In carrying out the constitutional function of sentencing, therefore, a court (save in a case where there is a true mandatory sentence, which does not arise here) must balance the considerations of individuation and consistency, applying the principle of proportionality, which may involve considering the totality of the sentence as part of the process. It cannot be said that the court’s discretion, in carrying out the sentencing process, is impermissibly fettered. Were the provision to have the effect of preventing the courts from differentiating between the circumstances of each case, or each offender, constitutional questions might arise as a court would be inhibited or prevented from considering all the circumstances of the case. But this is not so.
44. No case is made that the section offends against the principle of proportionality applicable in public law, where decisions and acts are scrutinised with regard to their compatibility with the Constitution or the law (see the judgment of Murray C.J. in Lynch and Whelan v The Minister for Justice  1 I.R. 1). Does the section then impose a constitutionally questionable principle of sentencing based on breach of Article 40 rights of equality and liberty or indeed under Article 38 (trial in due course of law)? These issues are now briefly addressed.
Is there unconstitutional discrimination?
46. The appellant’s case is that the effect of the statute is arbitrary and unfair, insofar as it affects him. It is said it “disproportionately” discriminates between him and a prisoner serving a life sentence who is not subject to the section. This objection can only be determined by identifying the rationale of the section. No objection can legitimately be made to the reasonableness of a statutory provision, the object of which is to deter criminal conduct by prisoners. The rationale of the provision is, clearly, deterrence. But provided the manner of imposition of a penalty does not trench on judicial discretion, and provided the means adopted are limited, rational, and reasonably connected to the objective of the section, there can be no constitutional impropriety. The justification for the section is clear. Discrimination may generally arise within certain categories of person. But the section here does not discriminate on the basis of race, religion, gender or nationality. It takes effect in the protection of the rule of law.
47. This Court recently pointed out in Fleming v Ireland  IESC 19:
“Article 40 s.1… is not a guarantee of absolute equality for all citizens in all circumstances but it is a guarantee of equality as human persons and (as the Irish text of the constitution makes quite clear) is a guarantee related to their dignity as human beings and a guarantee against any inequalities grounded upon an assumption, or indeed a belief, that some individual or individuals or classes of individuals, by reason of their human attributes or other ethnic or racial, social or religious background, are to be treated as the inferior or superior of other individuals in the community.””
49. The litmus test is whether this classification made by the Oireachtas is for a legitimate legislative purpose, is relevant to its purpose, and treats members of each class fairly. The fact of classification always involves a degree of exclusion or inclusion; whether that inclusion is legitimate can be measured by relevance to its purpose, fairness and the category of classification.
50. Clearly, the appellant’s situation is unusual. But it is not irrational, that, in circumstances that arise, the legislature lays emphasis on the elements of deterrence and punishment which are part of a necessary and rational criminal sanction. The sentencing regime in the Act seeks by deterrence to dissuade an offender in a specific category from committing further offences.
51. In any event, those serving life sentences fall into a different category than those serving sentences of a specified period. As was explained in the judgment of this Court in Lynch, a life sentence is one which subsists for the entire life of the person convicted. This is so even though the person may “by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation … but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reasons.”
52. Since a life sentence endures for life, there would be a logical frailty in the imposition of a consecutive sentence to a life sentence. One cannot add a period that extends beyond that of a sentence for life. Although a person may be tried and convicted of committing a criminal offence while serving a life sentence, there are logical grounds for differentiating between a sentence imposed in those circumstances, and a sentence imposed on a person serving a specified term of imprisonment, whatever its length. That might be thought to pose difficulties to the State from the point of view of punishing and deterring offences in prison by persons serving a life sentence. That is precisely why such persons fall into a different category than those who are serving fixed terms of imprisonment.
53. There are other means by which the conviction for an offence by a person serving a life sentence may be the subject of negative consequences, even if by way of a deterrent, rather than by way of punishment. A person serving a life sentence is liable, in principle, to remain in prison for the rest of his or her life; although, in practice, this never occurs since he or she is invariably, at some point, granted temporary release pursuant to the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003. The application of the regime of temporary release, although an administrative process, may be virtually the only means by which a person serving a life sentence can be deterred from committing an offence while in prison. Section 2(2)(g) of the Act of 1960, as amended, permits the Minister to take into account the conduct of the person concerned while in custody in making a decision whether or not to grant temporary release. It would also appear that the prisoner’s conduct while serving his life sentence may inform other discretionary considerations which the Minister may take into account when determining whether or not to grant temporary release – such as the likelihood of a prisoner re-offending on release.
54. In short, persons serving a sentence of imprisonment for life fall into an objectively different category and are in a different situation to those serving a specified term of imprisonment. Since a person in the appellant’s position is not in the same situation as a person subject to a life sentence, different treatment of these two categories is not a basis for concluding that there is an unlawful form of discrimination.
55. The situation here is also very different from that which obtained in Cox v Ireland  2 I.R. 503. The application of s. 13 of the Act does not entail a broad sweep of apparently random or arbitrary consequences. By contrast, in Cox, this Court condemned the effect of a statutory provision which disqualified the plaintiff from holding an office or employment remunerated out of public funds for seven years subsequent to conviction under the Offences Against the State Act 1939. That provision had the arbitrary effect that the disqualification sanction might arise in a very wide range of totally diverse circumstances. Such ancillary disqualifications could arise in an arbitrary fashion, even in circumstances where a convicted person might be in a position to establish that his motive or intention in committing the offence “bore no relation at all to any question of the maintenance of public peace and order or the authority or stability of the State”. Thus the issue of individuation, so fundamental to the proportionality principle, was effectively set at naught. That is not the case here.
57. In summary, therefore, the section does not ascribe a constitutionally questionable role in the administration of justice either to the executive or the legislature. It is to be presumed that the section will be applied in a constitutional manner. The section itself does not prescribe a fixed mandatory sentence; but, rather, only stipulates that, in certain limited conditions, an offender on conviction will receive a consecutive sentence. The provision challenged allows for the application of proportionality by the judiciary in sentencing. There is a rational connection between the nature of the penalty and the harm it seeks to address. For these reasons, the appeal will be dismissed.