The Criminal Justice (Amendment) Bill 2021 has just been given its first reading in the Irish parliament. It reflects the results of a judicial fightback against increasing legislative encroachment on the courts’ sentencing function through the introduction and expansion of mandatory minimum sentence provisions.
It is most unusual to find a government introducing legislative proposals to reduce the length of prison sentence or amount of fines applicable to specific criminal offences. Yet, that is essentially what the Irish government is doing in an innocuous looking Criminal Justice (Amendment) Bill 2021 that was given its first reading in the Dail (Irish equivalent of Westminster House of Common) just over one week ago. The Bill repeals a number of statutory provisions which impose a mandatory minimum prison sentence (and in some cases a minimum specified fine) for certain offences. This is not the result of a policy change in favour of lighter sentences. Instead, it is a consequence of the Supreme Court decision in Ellis v Minister for Justice  IESC 30 which declared certain mandatory minimum punishments or penalties unconstitutional.
Mandatory minimum sentences
In common law jurisdictions, legislation prescribing the punishment or penalty applicable to a criminal offence usually stipulates a maximum term of imprisonment and/or a maximum (or unlimited) fine. Typically, the judge will have discretion over the length of prison sentence (if any) and/or the amount of fine (if any) to impose on conviction in any individual case subject to the relevant statutory limit. There have always been exceptions where the judge has no discretion. These can come in one of two forms. The first is that the offence attracts a fixed sentence, and the judge has no option but to impose that sentence on conviction. The most well-known example is the mandatory life sentence for murder.
The second variation is what might be referred to as a mandatory minimum sentence. This requires the judge to start from a minimum threshold in determining what sentence to impose on the individual offender. It is also worth noting a possible third variation where the judge is obliged to impose a specified penalty or imposition as part of the sentence. This is found most frequently in the context of regulatory offences where, for example, conviction for a specified offence entails the compulsory suspension or revocation of a licence to pursue the regulated activity in question.
With the mandatory minimum sentence (the second variation above), the judge must start from a minimum threshold in determining what sentence to impose on the offender in question. So, for example, the legislation might prescribe a term of imprisonment of at least five years on conviction on indictment for a certain type of drug trafficking offence. So, when the judge is determining the appropriate sentence to impose on an individual for such an offence, he or she will still take all the usual factors into account in tailoring a sentence specific to the circumstances of that individual and to the circumstances of the offence. In doing so, however, the judge must start from the minimum punishment that he or she must impose for the offence.
This mandatory minimum formula has been deployed increasingly by legislatures over the past few decades. This has been driven largely, although not exclusively, by the desire to be seen as getting tough on organised crime and terrorism. Criminal offences targeted include: drug-trafficking, firearms offences, serious offences against the person and terrorism offences. In some jurisdictions (including Ireland), the net has been spread over a wider range of serious offences and to certain types of repeat offending.
A key feature of these mandatory minimum provisions is that they represent a significant encroachment by the legislature on the judicial power in sentencing for the offences concerned. Initially, this power grab was ameliorated by the inclusion of provision for the judge in an individual case to impose a lesser sentence where there were exceptional circumstances which would have rendered the prescribed minimum unfair. Such provisions, sometimes referred to as ‘presumptive minimum’ sentences, retained some degree of judicial discretion over the whole sentence; at least in some cases.
In Ireland, judges were perceived in some quarters as being too willing to take advantage of the ‘exceptional circumstances’ outlet to avoid the harshness of the presumptive minimum in some cases. A frustrated executive reacted by getting the legislature to enact measures which imposed mandatory minimum sentences for certain offences, with no provision for a lesser sentence to be imposed in exceptional circumstances.
These provisions can be interpreted as the legislature usurping the judicial power in sentencing. In Ireland, that raises an acute constitutional issue over the separation of powers. Ireland’s written Constitution confers the sole and exclusive power to make laws on the Oireachtas (Irish legislature). That power, however, is not unlimited. It must be exercised in accordance with the Constitution. Legislation in breach of the Constitution can be struck down as null and void by the courts.
Critically, the Constitution confers the administration of justice exclusively on judges appointed in accordance with the Constitution. Selecting the sentence in an individual case is part of the judicial function in the administration of justice. Accordingly, the legislature is curtailed in the extent to which it can enact legislation encroaching on the judicial power to determine the appropriate sentence in an individual case.
In May 2019 in the Ellis case, the Supreme Court was called on to rule whether the statutory imposition of a mandatory minimum sentence, with no room for discretion over exceptional circumstances, was constitutionally sound. This raised “the important but difficult question of the constitutional boundary between the respective roles of the Oireachtas and the Courts in deciding what is the appropriate sentence to be served by a person convicted of an offence.”
Ellis v Minister for Justice et al.
In Ellis, the appellant had pleaded guilty to possession of a sawn-off shotgun, among other things, at a shopping centre in Dublin. He had 26 previous convictions, including one for possession of a firearm with criminal intent. By virtue of s.27A(8) of the Firearms Act 1964, as substituted by s.58 of the Criminal Justice Act 2006, the judge is generally required to impose a minimum sentence of at least five years imprisonment (without any element of suspension) for the firearms offence in question.
The same provision preserves a limited judicial discretion by stipulating that the judge is not obliged to impose at least the minimum term when satisfied that there are exceptional and specific circumstances relating to the offence or the offender which would make it unjust in all the circumstances to impose it. Critically, however, a further amendment in 2007 removed this limited discretionary element in respect of offenders who had already been convicted of a similar offence or of one of certain specified firearms offences.
The appellant had a long history of drug abuse. After hearing evidence of his successful efforts to turn his life around and overcome his drug addiction, the trial judge imposed a sentence of five years imprisonment and suspended the whole term to assist his rehabilitation. She seems to have been unaware of the effect of the 2007 amendment in removing the limited discretion with respect to the five year minimum in cases such as the appellant’s (where the offender has been convicted in the past of one of the specified firearms offences).
The Court of Appeal, on the application of the DPP, replaced the trial judge’s sentence with the full statutorily prescribed minimum of five years imprisonment with no part suspended. In separate proceedings, the appellant challenged the constitutional validity of the 2007 amendment unsuccessfully in the High Court (and in the Court of Appeal). He then appealed to the Supreme Court.
The Supreme Court acknowledged that the legislature and the courts may each have a role in the determination of a sentence which will be imposed on a convicted person. The prescription of a fixed penalty or range of penalties applicable to a specified offence is a proper matter for the legislature in the exercise of its exclusive law-making power. The selection of a penalty in a particular case, by contrast, is a matter for the courts as it is an integral part of the administration of justice.
Clearly, the concept of a fixed (or mandatory minimum) penalty for a specified offence, as prescribed by the legislature, would appear to usurp the judicial function in selecting the appropriate penalty in an individual case. Nevertheless, the Supreme Court accepted that it can be compatible with the constitutional separation of powers where two conditions are satisfied. The first is that the prescribed penalty applies indiscriminately to all persons convicted of the offence in question. The second is that there is a rational relationship between the prescribed penalty and the requirements of justice. So, for example, the prescribed penalty must be justifiable (or proportionate) by reference to the gravity of the offence, irrespective of the circumstances in which it was committed or the personal circumstances of the offender.
Applying the first of these principles to the case in hand, the Court concluded that the absolute mandatory minimum sentence applicable to the firearms offence breached the constitutional separation of powers. It pointed to the fact that the absolute minimum threshold does not apply to all persons convicted of the offence. Instead, it applies only to a limited class of such persons who are singled out either because they have been convicted of the same offence on a previous occasion or because they have been convicted of a similar specified offence in the past. In effect, the legislature is selecting who should be subject to the mandatory minimum sentence from among all those who have been convicted of the offence. This trespasses into the administration of justice and the exclusive competence of the court to determine the appropriate sentence for the particular offence committed by the individual offender.
The Court expressly stated that it was not addressing (and did not need to address) the broader question of whether it is constitutionally permissible to prescribe a mandatory minimum sentence by reference to the gravity of the offence. In other words, if the mandatory minimum was applicable to all persons convicted of a relevant offence, would it be constitutionally safe if there was considered to be a rational or proportionate connection with the gravity of the offence? That question will have to await a suitable case in the future.
The immediate consequence of the Supreme Court’s decision was that the absolute mandatory minimum sentencing provision at issue in the case was a constitutional nullity. The ramifications, however, did not stop there. All other sentencing provisions suffering from the same infirmity were unconstitutional by implication. Accordingly, the Ministry for Justice had to conduct a trawl through current sentencing provisions to root out and amend those affected. The Criminal Justice (Amendment) Bill seems to be aimed at identifying and amending the measures in question.
A surprising feature of the measures affected is that some of them date back to the 1800s. These are: s.49 of the Dublin Police Magistrates Act 1808 which provides for a mandatory fine of £200 (and imprisonment in default for a term that increases for every subsequent offence) for a repeat conviction for concealing stolen goods; s.40 of the Illicit Distillation (Ireland) Act 1831 which effectively doubles the fine (or term of imprisonment in default) for a repeat conviction for a relevant offence; and s.32 of the Refreshment Houses (Ireland) Act 1860 which provides for a person convicted of a third licencing offence to pay a fine of £50. It is unlikely, of course, that the repeal of these measures will have much relevance in practice.
More significant, perhaps, is the proposed repeal of provisions for a mandatory minimum term of five years imprisonment to be imposed in respect of a second or subsequent conviction for certain firearms offences. Equally significant are the proposed repeals of the mandatory minimum term of ten years for second or subsequent convictions for possession of a firearm with intent to endanger life, and for possession or importation of drugs with a value of over €13,000. The latter is further reflected in the proposed repeal of the provision in the Parole Act 2019 which precludes eligibility for parole for an offender while serving that mandatory minimum for the drugs offence.
It should be emphasised that these proposed repeals relate only to provisions which compel the court to impose a higher penalty on the basis that it is a second or subsequent conviction of the person for the same offence or because the person has been convicted of a similar specified offence in the past. They do not affect mandatory minimum sentences that apply universally to persons convicted of the offence in question. Nor do they affect presumptive minimum sentences.
The amendments in the Bill seem designed to effect the minimum changes required to satisfy the decision and reasoning of the Supreme Court in Ellis. As such, they will not fully undo the damage that these mandatory minimum provisions are inflicting on the capacity of the courts to tailor an appropriate sentence to the circumstances of the individual offender and offence on a case by case basis. Nevertheless, they should make some contribution to fairness and wisdom in sentencing in situations such as those which arose in the Ellis case itself. Equally, they should avoid some of the injustices associated with the application of the mandatory ten year minimum term for second or subsequent convictions for possession of drugs with a value in excess of €13,000.
A notable and objectionable feature of the Bill is the relatively inaccessible style in which it is drafted. It is framed as a collection of amendments to disparate statutory provisions. As such, they are incomprehensible on their face. To make sense of them, the reader will need to have in hand the text of each statutory provision that is being amended. They, however, are identified only by reference to sections in the Acts that introduced the original provisions (eg. the Firearms Act 1925). Almost invariably, each provision will have been amended on a piecemeal basis (perhaps on several occasions) by subsequent statutes. Frequently, these will be omnibus measures with a generic title (eg. Criminal Justice Act 2006).
In practice, it can be a difficult and fraught exercise, even for the expert, to track down all of the relevant amendments in a specific matter. They must then be pieced together to construct the text of the measure that is being amended by a specific provision of the Bill. Finally, it must be read and interpreted in light of the amendment effected by the Bill. That process must be repeated for each disparate provision amended by a provision in the Bill. The scope for error and confusion is immense, especially given that the substantive measures in question are usually technical and complex. It is surely an impossible exercise for the layperson.
Ultimately, the Bill will be debated and (presumably) enacted into law by parliamentarians. It can be questioned, however, whether they have the necessary resources and expertise to understand fully what they are enacting. They will, of course, have the benefit of the explanatory memorandum prepared by the Department of Justice, but that is very brief and superficial. The published version does not include a full statement of the current version of the measures being amended or a full statement of the proposed amended version. It would hardly be surprising if many parliamentarians (perhaps most) simply accept at face value what they are told about the proposals by the sponsoring Minister and Department. Perhaps that is why they are framed as they are.