S45 Gilligan -v- Ireland & ors [2013] IESC 45 (14 October 2013)

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Cite as: [2014] 1 ILRM 153, [2013] IESC 45, [2013] 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

Judgments by
Link to Judgment
MacMenamin J.
Appeal dismissed - affirm High Court Order

Outcome: Dismiss

Notes on Memo: Judgment of the Court


[Appeal No: 419/2012]

Denham C.J.
Murray J.
Fennelly J.
Clarke J.
MacMenamin J.


John Gilligan


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.

1. In Buckley v The Attorney General [1950] I.R. 67, O’Byrne J., speaking for the former Supreme Court, observed the following in relation to the principle of separation of powers, as identified in Article 6 of the Constitution:

      “The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”
2. This same principle was referred to by Finlay C.J. in Crotty v An Taoiseach [1987] IR 713 as being “fundamental” to all the provisions of the Constitution. He observed that:
      “[The separation of powers] involves for each of the three constitutional organs not only rights but duties also; not only areas of activity and function, but boundaries to them as well.”
It cannot be gainsaid that these boundary lines are fundamental to the rights, duties, areas of activity and functions identified in the Constitution. They are an aspect of the sovereignty of the State, the authority for which is derived from the people.

The issue
3. The question which arises for consideration in this appeal lies in the realm of criminal law. It relates to the sentencing power of the judiciary, which is an essential aspect of the judicial function. No question arises in this appeal regarding the commutation of sentences, or discretionary release on licence, matters in which the executive has a recognised role (see Articles 13.6 and 13.9 of the Constitution). Sentencing is a part of the trial process. In Re Haughey [1971] I.R. 217 at p. 250, Ó’Dálaigh C.J. pointed out that each stage of the criminal process (trial, conviction and sentence) were integral parts of the “constitutional activity” of the administration of justice and the functioning of the courts.

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
6. Section 13 of the Criminal Law Act 1976 provides:

      “(1) Any sentence of penal servitude or imprisonment or of detention in St Patrick’s Institution passed on a person for an offence committed while he is serving any such sentence shall be consecutive on the sentence that he is serving or, if he is serving or is due to serve more than one sentence, on the sentence last due to expire, so however that, where two or more consecutive sentences as required by this section are passed by the District Court, the aggregate term of imprisonment or detention in respect of these consecutive sentences shall not exceed two years.”
7. Subsection 2 is also relevant. The appellant makes the case that he is the subject of discrimination and denied the right to equality before the law. He points out he was sentenced to a fixed term of 20 years imprisonment, but not to life imprisonment. But the impugned provision does not relate to prisoners serving a life sentence, yet it does apply to him. The subsection provides:
      “(2) Subsection (1) of this section shall not apply in any case where the sentence being served or to be passed is a sentence of penal servitude for life or imprisonment for life.”
In addition to a separation of powers argument, the appellant contends that he is the subject of discrimination contrary to the guarantee of equality before the law, the guarantees of vindication of personal rights, and the right to liberty, provided for under Articles 40.1, 40.3.1 and 40.3.2 of the Constitution. He submits that subs. (2) of the Act imposes on him a regime more rigorous than that applicable, even in the case of a prisoner serving a life sentence, and that, consequently, the provision impacts on him more severely than would be the case of prisoners who have been convicted of more serious offences, such as murder, where there is a mandatory life sentence. Section 13(2) creates an exception in the case of life sentences. The appellant says that because he is precluded from availing of that exception, he is denied equality of treatment. In the High Court, Roderick Murphy J. dismissed the claim, holding that the section did not offend against any constitutionally guaranteed right.

The appellant’s case
8. The first issue in this appeal is whether the mandatory consecutive nature of such sentences impermissibly offends against the discretion which should reside with the judiciary. It is said that the provision offends against the enunciation of separation of powers which can be traced from the Constitutions of 1937 and Saorstát Éireann, back to the thinking of the eighteenth century French political philosopher, Montesquieu, and the Framers of the United States Constitution. Clearly, the system of checks and balances between the three organs of government is a necessary and vital check to executive and legislative power in a republican democracy.

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
10. As the impugned provision was enacted subsequent to the adoption of the Constitution of 1937 by the people, it is subject to the principle of double construction. Thus, where two constructions of the provision are reasonably open, one of which is constitutional, and the other which is not, it is to be presumed that the Oireachtas, in carrying out its legislative function, and the courts in applying legislation so enacted will act in accordance with constitutional principles. In a case of doubt, this court must prefer an interpretation of the statute which favours its validity. It is also to be presumed that proceedings, procedures and adjudications made thereunder will be conducted in accordance with constitutional justice (McDonald v Bord na gCon (No. 2) [1965] I.R. 217; East Donegal Co-operative Livestock Mart Limited v Attorney General [1970] I.R. 317). The appellant’s case cannot therefore proceed on a hypothesis that he would receive a disproportionate sentence on appeal.

The respective roles of the executive, legislature and judiciary
11. The boundaries of the respective roles of the legislature and judiciary in the sentencing of offenders can best be discerned on the basis of decided case law. This process of identification can be assisted by induction from historical antecedents, and by deduction from constitutionally defined principles. The decided authorities now considered show the extent to which the evolution of the judicial function in sentencing can be empirically analysed from decided case law and deducted from high principle. It is noteworthy that, in the leading authority on the point, Deaton v The Attorney General [1963] I.R. 170, the inductive “historical” analysis conducted by Kenny J. in the High Court was based on a consideration of the judicial function seen from the standpoint of how that function evolved. The reasoning of this Court, in reversing that High Court decision, was based on analysis and application of the overarching principles of sovereignty contained both in the Constitution itself, and its 1922 predecessor.

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
15. The first category of cases which must be considered are those where, historically, the executive had once been permitted to select a penalty from a range of options prescribed by law. Such powers were relics of the indeterminable boundary lines between judiciary and executive in the era prior to independence.

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:

      “It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of penalties.”

18. The then Chief Justice observed:
      “There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case … If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain.” (emphasis added)
In essence, the Chief Justice is identifying here the principle of proportionality.

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:

      “The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as his trial for the offence”.
21. By analogy from this, it follows that, if the Oireachtas can constitutionally prescribe mandatory sentences, it may also prescribe certain other rules to govern the sentencing process. It is important to emphasise that such rules can only be in the nature of parameters, within which judicial discretion may operate.

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:

      “…inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers — and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one — could have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power …

      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 further identification of these separate roles continued in cases which further delineate powers ascribed by the Constitution of 1937. These judgments invalidated any forms of sentence or penalty which bore the hallmarks of the royal prerogative or a role for the executive in the determination of the sentence to be imposed in a criminal case.

The State (Sheerin) v Kennedy invalidates a ministerial discretion in the selection of the terms of detention
23. Three years after Deaton, in State (Sheerin) v Kennedy [1966] I.R. 79, this Court had to consider a statute which vested in the Minister for Justice the power to transfer “incorrigible” juvenile offenders from St. Patrick’s Institution to Mountjoy Prison, and then to decide whether the offender thus transferred should undergo hard labour or not. The Prevention of Crime Act 1908 actually vested a discretion in the Minister as to the precise nature, and the place where the punishment was to be imposed. This Court condemned this purported discretion as constitutionally impermissible. This discretion was held to be a remnant of the royal prerogative which had been eliminated by the Constitution of 1937. Again, one can see that one of the matters in issue was that the Act allowed the executive to determine punishment in an individual case rather than in a category or class.

The State (O.) v O’Brien condemns detention “during His Majesty’s pleasure”
24. In The State (O.) v O’Brien [1973] I.R. 50, where a minor detained under a section of the Children’s Act 1908 was ordered to “be detained until the pleasure of the government be made known concerning him”. This Court condemned this form of order. Walsh J. pointed out that the formula, “during His Majesty’s pleasure”, deployed in the statute of 1908 was constitutionally impermissible and that:

      “…the effect of the constitutional changes since 1922 had been to vest the exercise of all judicial power in the Courts save where expressly otherwise provided for in the constitutional provisions themselves.”

The distinction in Osmanovic v D.P.P.
25. More recently, issues quite akin to Deaton arose in Osmanovic v. The Director of Public Prosecutions and Others [2006] 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:-

      “There is clearly a multiple choice here. Even within the power to impose a prison term there is clearly the implied power to suspend all or part of that term. The prison sentence whether custodial or suspended or partly custodial and partly suspended may be the only sentence or may be combined with the fine. The selection is entirely to be made by the court. There is no question, therefore, of either the legislature or the executive fixing the punishment. Only the court exercising its judicial power does that. This court cannot accept that because there is a legislative prescription in relation to the fine option there is a breach of the principle of separation of powers.”
28. The general principle enunciated by Ó’Dálaigh C.J. in Deaton proceeds on the basis that the individual citizen who commits an offence is safeguarded from the executive’s displeasure, as the choice of penalty remains in the determination of an independent judge. This is so because the issue of selection of punishment is an integral part of the administration of justice, and as such, cannot be committed to the hands of the executive. It was the very fact that the impugned statutory provisions or powers allowed the executive the choice of penalty, of punishment regime, or duration of sentence, that rendered the impugned provisions in Deaton, Sheerin and O. inconsistent with the separation of powers doctrine contained in Article 6 of the Constitution.

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 [2012] 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
31. How do the principles identified in the case law apply to the facts of this case? In the first place, to state the obvious, the case made begs the question: is there a logical infirmity in there being a sentence consecutive to a life sentence?

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
34. One of the hallmarks of the exercise of judicial discretion in sentencing in the application of the overriding principle of proportionality. Does the section impermissibly prevent the judge from applying this principle?

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
38. The appellant’s own history in fact shows that he has actually benefited from the appeal system. The original 28 year sentence imposed on him in the Special Criminal Court was said to be disproportionate: it was reduced to 20 years on appeal. The consecutive sentence for assaulting a prison officer subsequently imposed on him, in accordance with s. 13(1) of the Act, was also reduced on appeal. The very fact of these reductions in sentence by application of the principle substantially undermines one of the foundations of the appellant’s case. It is difficult to argue that the principle of proportionality cannot apply, when that principle has already been applied in the operation of the section under challenge.

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:

      “The severity of penalties must not be disproportionate to the criminal offence”.
The provision on its face appears to re-iterate the general principle of proportionality between penalties and criminal offences which is applied in the common constitutional traditions of the member states and in the case law of the Court of Justice. Very arguably, it is an expression of the same principle of proportionality that applies to criminal cases in this jurisdiction.

Totality in sentencing
41. Can it then be said that the provision inhibits the application of the test of totality in sentencing? This concept must be viewed only as an aspect of the fundamental principle of proportionality. The totality concept is a form of check to ensure that, where proportionate sentences are chosen for each offence, the court may, when appropriate, adjust that overall sentence, or the last sentence imposed, in order to achieve proportionality and overall fairness. An authority from the Court of Criminal Appeal demonstrates how this balancing test applies in practice. In The People (DPP) v Healy [1990] I.R. 388, the court observed that, in a proper case, a sentencing court might, even in the case of a grave offence, adjust the sentence downwards where not to do so would “impose a manifestly unjust punishment on the accused”.

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 [2012] 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?
45. The appellant contends that the nature of the prescribed penalty is arbitrary and discriminatory; thus, he claims he is denied the constitutional guarantees of equality before the law and the right to trial in due course of law. He says he was serving a fixed term of imprisonment. It is said that discrimination arises in that it is provided that he may be the subject matter of a consecutive sentence, and that even a prisoner serving a term of life imprisonment for the more serious crime of murder is not subject of the same regimen. He claims that the sentences that he has to serve are, in effect, lengthier than many life sentences.

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 [2013] IESC 19:

      “An important guide to the understanding of Article 40.1 is contained in the following passage in the judgment of Walsh J. in Quinn’s Supermarket v Attorney General [1972] IR 1 at 13 to 14:-

      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.””

The Court continued:
      “129. If a law makes a distinction on its face between citizens, it may be necessary, depending on its context, to inquire into its justification. The justification for the application of a law to a particular category of persons may be obvious. Where a law is concerned with the regulation of a particular type of economic or other activity, it will necessarily be framed so as to apply only to people carrying on the activity in question. Even then, it may in principle be possible to show that the category of persons regulated is unfairly over or under inclusive. It may be unfairly targeted against one class of persons.”
The Court added:
      “130. More generally, a law will be closely scrutinised if it classifies people by reference to such classes as race, religion, gender or nationality. These are categories, where as a matter of history, it is possible to detect the operation of conscious or unconscious prejudice.” (emphasis added)
48. The impugned section does not demonstrate any such discriminatory intent. The fact that it has an impact on a person coming within the plaintiff’s category as an offender is not indicative of discrimination. The provision does not have any discriminatory effect under the heading where objection might legitimately be raised. (See also Barrington J.’s statement of principle in Brennan v Attorney General [1994] I.L.R.M. 355; approved by this Court in the Employment Equality Bill 1996 [1997] 2 IR 321)

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 [1992] 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.

56. The court concludes this section is not arbitrary in its scope or effect. It takes effect only in a manner which is legitimate to its legislative purpose, relevant to that purpose, and allows for constitutional fairness. The general principles applicable to sentencing remain the same here, as elsewhere. It is true that there is an effect arising from the consequence that a consecutive sentence would follow a conviction – but in this case, such situation can be justified on the basis that the nature and circumstances of such an offence are grave. The rule is intended to advance a rational, logical and legitimate goal, that is, to mark the gravity of a situation where a prisoner, while serving a term of imprisonment, commits another offence during that time. Furthermore, where it is judicially determined that a sentence of imprisonment should be imposed on a person for an offence committed while he is already serving a sentence, it would defeat the legitimate purpose of such a sentence, including its deterrent effect, if the sentence was not consecutive but concurrent to the sentence already being served. But, there is nothing in the provision here which has an arbitrary or discriminatory intent or effect.

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.

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URL: http://www.bailii.org/ie/cases/IESC/2013/S45.html