The High Court has declared unconstitutional a provision requiring a minimum 10-year prison term for a second or subsequent drug trafficking conviction, holding that it improperly restricted the courts’ role in sentencing.
Mr Justice Twomey delivered the judgment on 4 June 2021 in proceedings brought by Seán McManus against the Minister for Justice and Equality, Ireland and the Attorney General. The court held that section 27(3F) of the Misuse of Drugs Act 1977, as amended, was repugnant to the Constitution because it imposed a mandatory minimum on a limited class of offenders with specified previous convictions.
McManus had pleaded guilty in 2018 to possessing cocaine worth at least €13,000 for supply. At sentencing, Cork Circuit Criminal Court heard that he had a previous conviction under section 15A of the Act. The judge was therefore required by section 27(3F) to impose a term of at least 10 years. He sentenced McManus to 15 years, with the final three years suspended.
The State accepted that McManus had standing to challenge the provision but argued that the challenge was barred by the rule against relying on hypothetical rights. It said the sentencing judge had regarded 15 years as appropriate and had said that 10 years would not reflect the seriousness of McManus’s role, so the minimum had not affected the sentence.
The High Court rejected that argument. The statutory minimum set a 10-year floor rather than zero, the judge found, and the court could not rule out that the floor influenced the final sentence. The court therefore found a sufficient connection between the provision and McManus’s case to allow him to bring the challenge.
The judgment followed the Supreme Court’s decision in Ellis, which had struck down a similar mandatory minimum provision for repeat firearms offences. The State did not argue that the drug trafficking provision was materially distinguishable. Applying Ellis, Justice Twomey held that the Oireachtas had crossed the constitutional boundary by prescribing a minimum sentence for a limited group of people, a matter reserved to the courts under Article 34.1.
The declaration concerns McManus’s sentence, not his conviction. The court said the sentence would be quashed and the proceedings remitted to the Circuit Court for resentencing. McManus did not seek release from prison or damages. The judgment also said that sentences already finalised after the permitted appeal period could not be reopened on the basis of this ruling; people awaiting sentence or whose sentencing was not finalised could rely on it.
On costs, the court gave a preliminary view that McManus should receive all his legal costs, including the half-day hearing costs. The parties could make further submissions, with the matter listed for mention one week after judgment.