Minister of State at the Department of Justice (Deputy James Browne): I move: "That the Bill be now read a Second Time."

The Criminal Justice (Amendment) Bill 2021 is a relatively short but significant item of legislation. I am very pleased to introduce it to the House. The purpose of the Bill is to provide for the repeal of the second or subsequent mandatory sentences in the areas of firearms and misuse of drugs. It also addresses similar mandatory type offences in older legislation dealing with the concealment of stolen goods, illicit distillation and licensing laws.

The Supreme Court ruling in its judgment of 15 May 2019 in Wayne Ellis v. the Minister for Justice and Equality, found subsection 8 of section 27(A) of the Firearms Act 1964, regarding possession of a firearm or ammunition in suspicious circumstances, to be repugnant to the Constitution. The subsection provides for a mandatory sentence of a minimum of five years for a second or subsequent serious firearms offence. The court held that the Oireachtas may impose mandatory penalties but only if they apply to all persons. It is not constitutionally permissible for the Oireachtas to specify a mandatory penalty that only applies to a limited class of persons, such as those who had previously committed one or more listed offences. The application of a penalty in such cases is the administration of justice and under Article 34 of the Constitution may only be administered by the courts. The Attorney General has advised that this subsection, and all similar provisions on the Statute Book, should be repealed and that no further sentencing hearings should proceed until the relevant legislation has been amended.

The full implications of the judgment for existing sentences have yet to be worked through by the courts. I understand a number of cases are under way and Deputies will appreciate that I cannot say anything that might be regarded as prejudicing existing proceedings. In this context, however, my attention has been drawn to paragraph 22 of the judgment of Mr. Justice Peter Charleton in the Ellis case, in which he states:

This does not mean, and should not mean in this case, the automatic release of the offender. The correct disposal of the matter requires further submission as to the imposition of a just sentence before the Court of Appeal.

I understand that the issue in these cases is that the appropriate sentencing regime be applied.

The purpose of this Bill is to rectify the constitutional infirmity identified by the Supreme Court for the purpose of determining future sentences in these cases. The Supreme Court ruling does not affect provisions in the statute which provide for presumptive minimum sentences where there is judicial discretion and the issue is not addressed by the Bill.

The scope of the Bill is therefore limited. The sentencing provision that was the subject of the Ellis case was introduced by the Criminal Justice Act 2007. The 2007 Act had a number of similar provisions affecting a number of firearms offences and certain drug offences. While the court had discretion in the case of a first conviction, its discretion was fettered in respect of a second or subsequent conviction and there were mandatory minimum penalties that had to be imposed. The Bill provides the courts with discretion in respect of a second or subsequent firearms conviction in this regard. Accordingly, the Bill provides for the repeal of all instances within the Firearms and Misuse of Drugs Acts in respect of a second or subsequent conviction being mandatory.

The first three sections of the Bill refer to pre-1922 legislation that is still in force in Ireland. These older Acts have unusual provisions, with a type of mandatory sentence for repeat offenders. These, too, are in conflict with the judgment in the Ellis case and are being amended accordingly.

Section 1 relates to section 49 of the Dublin Police Magistrates Act 1808 and mandatory penalties for second or subsequent offences relating to the concealment of stolen goods. Section 2 relates to section 40 of the Illicit Distillation (Ireland) Act 1831 and penalties for second or subsequent offences relating to illicit making of malt and distillation of spirits. Section 3 relates to section 32 of the Refreshment Houses (Ireland) Act 1860 and penalties for second or subsequent offences relating to wine licences for refreshment houses. Section 4 relates to the amendment of section 15 of the Firearms Act 1925, which provides for penalties for the offence of possession of firearms with intent to endanger life.

Section 5 relates to the amendment of section 26 of the Firearms Act 1964, which provides for penalties for possession of a firearm while taking a vehicle without authority; section 27 of the Firearms Act 1964, which provides for penalties for use of firearms to assist or aid escape; section 27A of the Firearms Act 1964, which provides for penalties for possession of a firearm or ammunition in suspicious circumstances and section 27B of the Firearms Act 1964, which provides for penalties for carrying a firearm with criminal intent.

Section 6 relates to the amendment of section 27 of the Misuse of Drugs Act 1977, which provides for penalties for a range of offences relating to the misuse of drugs. Section 7 relates to the amendment of section 12A of Firearms and Offensive Weapons Act 1990, which provides for penalties for shortening the barrel of shotgun or rifle and similar offences. Section 8 relates to the amendment of section 25 of the Criminal Justice Act 2007, which provides penalties for the commission of a scheduled offence where a person has already been convicted on indictment of a scheduled offence within a specified period. Section 9 relates to the amendment of section 24 of the Parole Act 2019, which provides that a person serving a minimum term of imprisonment under the Misuse of Drugs Act 1977 shall not be eligible for parole before expiry of the minimum term. Section 10 is a standard provision providing for the Short Title and commencement.

My Department is also considering the implications of the judgment for existing criminal cases where the persons concerned may have been convicted of a relevant offence but a sentence has not, as of yet, been imposed by the courts. Further to legal advice, I will give consideration to the tabling of a Committee Stage amendment that would clarify the sentencing regime that would apply in such cases. There will, of course, be an opportunity on Committee Stage to discuss in more detail any aspect of the Bill that Deputies wish to explore further.

[For the full debate, click on this link to the Oireachtas website]