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2026 IEHC 388

APPROVED AN ARD-CHÚIRT THE HIGH COURT [2026] IEHC 388 Record No. 2024/1120JR BETWEEN/ GERARD KELLEHER APPLICANT -ANDTHE IRISH PRISON SERVICE, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL RESPONDENTS (No. 2) JUDGMENT of Mr. Justice Conleth Bradley delivered on the 12th day of June 2026 INTRODUCTION Preliminary 1. These proceedings, brought by way of judicial review, concern the interpretation of the ‘penalties’ provisions in s. 27 of the Misuse of Drugs Act 1977 as amended and substituted by the Criminal Justice Act 2007 (“the 1977 Act”) in the context of the application by Mr. Kelleher (“the Applicant”) for temporary release. 2. The Applicant had been sentenced by the Dublin Circuit Criminal Court on 21st December 2016 on a total of six counts which included two counts of possession of drugs with intent to sell or supply where the value of the drugs exceeded €13,000. 3. The general background to this application is briefly described in the Applicant’s Statement of Grounds at para. E(

  1. ix)under the subheading ‘Factual background’ where it is stated as follows: “The Applicant applied for temporary release in 2021. The Applicant received a response from the Operations Directorate of the first-named Respondent dated 9th December 2021. That response informed him that because he had four years of his sentence left to serve it was too soon to approve him for temporary release but that his case would be considered again. However the response also included the following statement: “In order to assist you, it is my understanding that, given you are serving 12 years’ imprisonment under Section 15A (as inserted by Section 4 of the Criminal Justice Act, 1999) and Section 27 (as amended by Section 5 of the Criminal Justice Act, 1999) of the Misuse of Drugs Act, 1977, you are subject to a minimum mandatory sentence and as such are 2 only entitled to be considered for temporary release for reasons of a grave humanitarian nature and any release so granted shall be only of such limited duration as justified by that reason.” 4. Upon the Applicant’s commencement of his term of imprisonment, the Respondents submit that he would have been informed of his release date based on a calculation carried out pursuant to the application of the Prison Rules 2007 (S.I. No. 252/2007 as amended by S.I. No. 385/2014) (“the Prison Rules 2007”). This provides that all prisoners sentenced to a term of imprisonment qualify for one-quarter remission on the basis of good behaviour. At the commencement of his prison term, therefore, it is submitted that the Applicant would have been told that his 12-year sentence was due to expire on 4th December 2025, which was his initial release date. 5. Later, as a serving prisoner, the Applicant applied for ‘temporary release’ under the provisions of s. 2 of the Criminal Justice Act 1960 (“the 1960 Act”) on or about 27th June 2024. 6. By response also dated 27th June 2024, an official of the first named Respondent informed the Applicant that he was ineligible for ‘temporary release concessions’ and stated that “You queried your eligibility for temporary release in light of your conviction under [s.15A of the 1977 Act]. I confirm my understanding that a sentence handed down of 10 years under [s.15A] is not eligible for temporary release concessions.” 7. On 5th September 2024, the High Court (Barr J.) granted the Applicant leave to apply for judicial review for a number of reliefs set out in the Statement of Grounds dated 4th 3 September 2024, including an order of mandamus directing either the first and/or second named Respondents to consider the Applicant’s application for temporary release pursuant to s. 2 of the 1960 Act. This was grounded on Mr. Kelleher’s Affidavit dated 4th September 2024 and the exhibits referred to in that Affidavit. 8. A Statement of Opposition dated 8th November 2024 was verified by the Affidavit sworn on 7th November 2024 of Mr. John Twaddle, Manager of the Operations Directorate of the Irish Prison Service (the first named Respondent). 9. By operation of the provisions of remission in Rule 59 of the Prison Rules 2007, prisoners may also receive enhanced remission of greater than one quarter but not exceeding one third of their sentence if they (
  2. i)demonstrate good behaviour by engaging in authorised structured activity, and (
  3. ii)satisfy the Minister that as a result of (
  4. i)they are less likely to re-offend and would be better able to re-integrate into the community. The application of those Rules in this case resulted in the Applicant being released on 4th February 2025. 10. Consequent upon his release, the question as to whether the Applicant’s judicial review challenge was rendered moot fell to be considered and in Kelleher v The Irish Prison Service & Ors (No. 1) [2025] IEHC 253, delivered on 9th May 2025, the High Court (Kennedy J.) inter alia decided that the Applicant’s legal challenge was not moot and that it was appropriate to allow this application for judicial review to continue. 4 THE ISSUES 11. It was submitted on behalf of the Applicant that there were two issues to be decided in this application for judicial review: (
  5. i)the first issue relates to the interpretation of the various sub-paragraphs of s. 27

(3)of the 1977 Act. The Applicant submits that s. 27(3I) of the 1977 Act operates to preclude the entitlement of a prisoner to be considered for temporary release under s.2 of the 1960 Act during the currency of a minimum term specified by the sentencing court under s. 27(3C) of the 1977 Act but only if such a minimum term has been directed by the sentencing judge. The Applicant contends that no such minimum term was in fact directed by the sentencing judge in his case and, therefore, he remained eligible for consideration for temporary release. The Respondents submit, however, that the sentences of imprisonment of 12 years imposed constituted the specification of a term of not less than 10 years as the minimum term of imprisonment to be served and, therefore, the Applicant was ineligible for temporary release. The resolution of this first issue resolves around the interpretation of the relevant sub-paragraphs of s. 27
(3)of the 1997 Act; (ii) the second issue relates to the Applicant’s contention that if he is incorrect in his interpretation of the relevant provisions of s. 27
(3)of the 1977 Act, and that s. 27(3I) of the 1977 Act operates to preclude the Applicant from consideration for temporary release because he had a sentence of more than 10 years imposed for offences under the 1977 Act, he contends that s. 27(3I) is contrary to the provisions of the Constitution and the European Convention on Human Rights. 5 STATUTORY INTERPRETATION
  1. When this application for judicial review was initially brought, the Applicant was at that time a serving prisoner, having been sentenced on 8th December 2016 to multiple terms of imprisonment, including two 12-year sentences.
  2. The first issue in this application for judicial review involves the interpretation of inter alia a number of interrelated sub-provisions of s. 27
(3)of the 1977 Act dealing with ‘penalties’.
  1. In a number of relatively recent decisions, the Superior Courts have restated that the ascertainment of the literal words and plain meaning in a statutory provision cannot be reduced to the reflexive rehearsal of the literal meaning of words in isolation from the text of the legislation as a whole, its context (both immediate and proximate) or the purpose for which it was enacted. The point being that the words in a statutory provision cannot be viewed in the abstract or in isolation. Rather, the words must be viewed in context, including the pre-existing relevant legal framework and having regard to the subject matter and the objective of the legislation: Heather Hill Management Company v An Bord Pleanála [2022] IESC 43; [2024] 2 I.R. 222 per Murray J. at para. 109; A, B & C (A Minor Suing by His Next Friend A) v The Minister for Foreign Affairs and Trade [2023] IESC 10; [2025] 1 I.R. 417; TRI (a minor suing by his mother and next friend, LB) v The Minister for Foreign Affairs and the Minister for Justice [2025] IESC 7; Dunnes Stores v The Revenue Commissioners [2019] IESC 50; [2020] 3 I.R. 480 per McKechnie J. at para.
  2. 6
  3. In the judgment of the Supreme Court in The People (DPP) v Crawford [2024] IESC 44; [2024] 2 ILRM 313, at para. 92 of her judgment, Donnelly J. set out the applicable approach as follows: “
  4. In recent years, this Court has addressed the issue of statutory interpretation in a number of important judgments (see especially People (DPP) v AC [2021] IESC 74, [2022] 2 I.R. 49 and Heather Hill Management Company v An Bord Pleanála [2022] IESC 43, [2022] 2 I.L.R.M. 313). In the case of A, B and C v The Minister for Foreign Affairs and Trade [2023] IESC 10, 1 I.L.R.M. 335, Murray J. said that the cases on statutory interpretation including Heather Hill Management Company CLG and Anor v An Bord Pleanála:“have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words”.” 7
  5. In his judgment in The People (DPP) v Crawford [2024] IESC 44 Hogan J., at para.5, offered a similar analysis to that of Donnelly J. as follows: “… as Murray J. indicated in Heather Hill v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313, the exercise of statutory interpretation requires the court to have regard to the relevant context. This means that regard must be had to the entirety of the legislation and the relevant words or even a section of an Act cannot be viewed in isolation. As Black J. famously said in The People (Attorney General) v. Kennedy [1946] IR 517 at 536: “A small section of a picture, if looked at close-up, may indicate something clearly: but when one stands back and views the whole canvass, the close-up view of the small section is often found to have been given a wholly wrong view of what it really represented.”” PRESUMPTIVE MINIMUM SENTENCE OF IMPRISONMENT
  6. Earlier in this judgment, the factual context which led to the Applicant applying for temporary release and the refusal of same was briefly set out.
  7. In construing the ‘penalties provisions’ in s. 27
(3)of the 1977 Act, including by reference to their language, place, function and context and locating the legal context of the provisions, as a new offence in 1999, s. 15A of the 1977 Act was inserted by s. 4 of the Criminal Justice Act
  2. The Irish statutory criminal code, therefore, outlaws the possession, by someone aged 18 years or over, of controlled drugs for sale or supply which have a market value of €13,000 or more. 8
  3. The description of this offence has been commented upon separately by Professor Tom O’Malley SC and Professor Dermot Walsh in their respective textbooks.
  4. In addition to providing a contextual explanation for these provisions as part of the interpretive process, their respective observations are also relevant in the context of the constitutional and Convention challenges brought by the Applicant in this case.
  5. In Sentencing-A Modern Introduction (2025, Clarus Press), Professor O’Malley, at para. 10-67 (p. 391) observed as follows in relation to s. 15A of the 1977 Act: “The significance of this offence is that, while it is punishable with a maximum life of imprisonment, it is also subject to a presumptive minimum sentence of 10 years’ imprisonment. This is not, as is sometimes claimed, a ‘mandatory’ minimum sentence. It is presumptive in the sense that a court must impose at least 10 years’ imprisonment (or, in the words of the statute, “specify a term of not less than 10 years as the minimum term of imprisonment to be served”), unless it determines that, by reason of exceptional and specific circumstances relating to the offence or the offender, it would be unjust in all the circumstances to do so. For this purpose, a court may have regard to any matters it considers appropriate including whether the offender pleaded guilty, the stage at which the plea was entered, the circumstances in which an indication to plead was given, and whether the offender materially assisted in the investigation of the offence. As a result of further amendments by the Criminal Justice Act 2006 (s.84), considerable emphasis is placed on the presence or absence of previous convictions for similar offences. When 9 imposing sentence for a s.15A offence, a court must, in the first instance, have regard to whether the offender has previous convictions for a drug trafficking offence (s.27(3B) of the 1977 Act). Further, when deciding if it would be unjust in all the circumstances to impose the presumptive 10-year minimum, a court may “in particular” have regard to whether the offender has previously been convicted of a drug trafficking offence and whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence… (s.27(3D)(c) of the 1977 Act)”. (Emphasis and underlining added in this judgment).
  6. The concept of a ‘presumptive minimum sentence of imprisonment’ was further described by Professor Dermot Walsh, in Walsh on Criminal Procedure, (Third Edition, Vol. 2, 2025, Thomson Reuters (Professional) Ireland Limited), at para. 49-17 (p. 2455), as being “first introduced for drug trafficking offences by the Criminal Justice Act 1999 and extended to firearms offences by the Criminal Justice Act 2006” and representing “a significant new departure in Irish sentencing law which had always been characterised by the centrality of judicial discretion exercised in accordance with principles developed by the courts themselves.”
  7. As pointed out later in this judgment, subsequent developments in the caselaw in relation to firearms offences and drugs offences in the context of sentencing have had a symbiotic relationship.
  8. Professor Walsh, observed at para. 49-19 (pp. 2455-2456) of Walsh on Criminal Procedure, in the context of offences generally, that “[s]ome offences attract a 10 mandatory sentence of imprisonment. The sentence for murder and treason is statutorily fixed as life imprisonment (s.2 of the Criminal Justice Act 1990). This differs from a presumptive minimum sentence provision which specifies the minimum sentence that the judge must normally impose, while leaving some wiggle room for the judge to avoid injustice on the facts of the individual case.”
  9. In referring to Deaton v Attorney General [1963] I.R. 170; Lynch and Whelan v Minister for Justice [2012] 1 I.R. 1., at para. 49-20 (p. 2456), Professor Walsh observed that it was open to the Oireachtas to provide for a fixed or mandatory penalty for a particular offence and that there was “no inherent unconstitutionality in the concept of the mandatory penalty. It does not entail the usurpation of the judicial power in the administration of justice. Nevertheless, that does not preclude the possibility of a particular mandatory penalty being called into question constitutionally if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence in question.”
  10. Prof. Walsh has further described the provisions in the sub-paragraphs of s. 27 of the 1977 Act as “quite complex” and offered the explanation that “prompted presumably by constitutional concerns, the measures do not always prescribe strict mandatory minimum sentences that the judge must impose irrespective of the facts of an individual case and/or the circumstances of the offender. For the most part, they prescribe a minimum sentence that must be imposed for a specified offence (or on repeat offenders in respect of specified offences), and then leave limited room for judicial deviation in certain prescribed circumstances. It is more accurate, therefore, to refer to them as presumptive (as distinct from mandatory) minimum sentencing provisions.” 11
  11. In light of the two central issues in this judicial review challenge (referred to earlier), from the perspective of statutory interpretation but also viewed through a constitutional lens (and through the prism of the European Convention on Human Rights Act 2003 (“the ECHR Act 2003”), there is a distinction between provisions which are deemed to be “presumptive” which allow for judicial flexibility in contrast to those which are “mandatory”.
  12. In this regard, the “Penalties” under s. 27
(3)of the 1977 and which are applicable in Mr. Kelleher’s case fall within the former category and the description of being “presumptive” provisions. 30. A similar observation was made in Charleton & McDermott’s Criminal Law and Evidence (Second Edition, 2020, Bloomsbury Professional) at pp. 423-424, in their description of the functional context of these provisions and their attendant flexibility, as follows, “[p]resumptive minimum sentences are set out in the 1977 Act:
(1)Section 15A, for possessing controlled drugs with a value of €13,000 or more with intent to sell or supply;
(2)Section 15B, for importing controlled drugs with a value of €13,000 or more with intent to sell or supply. For offences under s.15A and s.15B, there is a minimum sentence of ten years for those convicted who are aged 18 years and over. However, the court can depart from such minimum sentence if it determines that ‘by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence’ it would be ‘unjust in all the circumstances’ to impose a ten year sentence. In doing so, the court can have regard to a number of factors, including 12 whether the accused pleaded guilty and the accused materially assisted in the investigation of the offence”.
  1. In assessing the applicable sentence in Mr. Kelleher’s case, the trial judge was likewise applying the legislation and specifying a term of not less than 12 years. While this has consequences for the management of his sentence, it is something which the Oireachtas has prescribed in addressing the type of offences contemplated in ss. 15 and 15A of the 1977 Act.
  2. In ascertaining the correct interpretation of these provisions, and the approach which a court should adopt of the penalty provisions in s. 27
(3)of the 1977 Act, a further insight in to how these particular provisions are operated in practice can be seen from a number of the decisions of the Court of Criminal Appeal. 33. In People (DPP) v John Duffy (unreported, Court of Criminal Appeal (Keane C.J., O’Higgins and Butler JJ., 21st December 2001) (“Duffy”) giving the judgment of the Court, Keane C.J., after setting out the provisions of s. 15(A) and 27
(3)of the 1977 Act, observed as follows: “Since the market value of the controlled drugs in this case amounted to £10,000 or more, it is clear that it is a case to which the provisions of s. 27(3A) and (3B) applied. The learned Circuit Court judge, in considering the manner in which he should apply the provisions, said that his view was that he should, in the first instance, assess the length of sentence which should be imposed, on the assumption that there were no mitigating factors. He would then take into account the various mitigating factors and make whatever deduction was 13 appropriate from that sentence. If that approach resulted in a sentence which was in excess of the statutory minimum, then that would be the sentence which he would impose. If, however, that process resulted in a sentence which was below the statutory minimum, he would consider whether, having regard to the provision by Oireachtas for such a statutory minimum sentence, he should increase the sentence to the statutory minimum”.
  1. In People (DPP) v Sarsfield [2019] IECA 260 (“Sarsfield”), an application was brought by the DPP seeking to review, on grounds of undue leniency, a sentence of seven years’ imprisonment which had been imposed following the entry of a plea of guilty to an offence contrary to s. 15A of the 1977 Act for possession of drugs with a value of €13,000 or more with an intention to supply. Mr. Sarsfield had been found in possession of diamorphine and cannabis with a combined value of €4.1million. In arriving at the sentence of seven years, the sentencing judge took into account certain other offences relating to the possession of a stun gun.
  2. At para. 18 of the judgment of the Court of Appeal in Sarsfield, Birmingham P. reiterated the approach to sentencing in the context of a s. 15A offence which a court should adopt, as follows: “It has long been recognised that the proper approach to sentencing is for a judge to identify the appropriate sentence without reference to the presumptive minimum. If the appropriate sentence is at or in excess of the statutory minimum, nothing further is required. If the sentence under contemplation is below the presumptive minimum, the Court will have to address the presumptive minimum and consider whether the imposition of the mandatory presumptive 14 minimum would, in all the circumstances of the case, be unjust. Where the offence involves significant involvement in a very high-level drug offence, the headline or pre-mitigation sentence is likely to be well in excess of the statutory presumptive minimum. In the case of high-level commercial drug dealing involving very large quantities of drugs, we would expect that the headline or pre-mitigation sentence is likely to be of the order of fourteen or fifteen years, and in some exceptional cases, significantly higher”.
  3. In Duffy, Keane C.J. referred to the approach to be followed and outlined by Murphy J. in The People (DPP) v Renald (unreported, Court of Criminal Appeal, 23rd November 2001) (“Renald”), which is further discussed in Charleton and McDermott’s Criminal Law and Evidence (Bloomsbury Professional, Second Edition, 2020).
  4. In Renald, the accused sought leave to appeal a five-year sentence following a conviction under s. 15A of the 1977 Act. He had argued that the presumptive ten-year minimum sentence was no longer relevant once circumstances had been identified which warranted a departure from that minimum. The Court of Criminal Appeal disagreed, stating that even though the sentence of ten years was not applicable to the particular case, the very existence of a lengthy mandatory minimum sentence was an important guide to the Courts in determining the gravity of the offence and the appropriate sentence to impose for its commission.
  5. In the recent decision of the Supreme Court in People (DPP) v Mountassir [2025] IESC 53, O’Malley J. referenced Renald and several other authorities at para. 99 of her judgment, when observing at para. 98 that “[t]he modern sentencing practice, aimed at 15 achieving proportionality and clarity, is to determine the appropriate sentence in a case by way of a process that begins with the selection of a “headline”, or “pre-mitigation”, sentence. (It is not clear when this terminology first came into use in this jurisdiction but the principle dates from, at least, the judgment of Egan J. in People (Director of Public Prosecutions) v M [1994] 3 I.R. 306.) This is the model now in use in most (but not all) trial courts. It is a model only, not a legally required practice, and the Court of Appeal has said on a number of occasions that it is not necessarily an error in principle to disregard it”.
  6. The aforesaid, therefore, assists generally in understanding the context and purpose for the penalty provisions in the sub-paragraphs (or sub-provisions) of s. 27
(3)of the 1977 Act which fall to be considered in this application for judicial review. 40. Section 27
(3)provides that subject to s. 28 of the 1977 Act, every person guilty of an offence under s. 15 shall be liable (
  1. a)on summary conviction, to a fine not exceeding [€1,269.74]* or, at the discretion of the court, to imprisonment for a term not exceeding twelve months, or to both the fine and the imprisonment, or “(
  2. b)on conviction on indictment, to a fine of such amount as the court considers appropriate or, at the discretion of the court, to imprisonment for life or such lesser period as the court shall determine, or, at such discretion, to both such fine and such lesser period of imprisonment.” (*See the Fines Act 2010). 41. Further, s. 27(3A) of the 1977 Act provides that “Every person guilty of an offence under section 15A or 15B of this Act shall be liable, on conviction on indictment- (
  3. a)to imprisonment for life or such shorter term as the court may determine, subject to 16 subsections (3C) and (3D) of this section, and (
  4. b)at the court’s discretion, to a fine of such amount as the court considers appropriate.” 42. A sentencing court has, therefore, two options: to give an indeterminate sentence of life imprisonment or to impose a shorter determinate sentence. Both are subject to s. 27(3C) and (3D) of the 1977 Act. 43. In the context of the Applicant’s challenge in this judicial review application, the relevant sentences, in terms of the central interpretative issue to be considered, were those at count 2 where a sentence of imprisonment of 12 years was imposed for possession of a controlled drug for the purpose of sale or supply, contrary to s. 15 and s. 27 (as amended by s. 6 of the Misue of Drugs Act 1984) of the 1977 Act, and at count 3 where a sentence of imprisonment of 12 years was imposed for possession of a controlled drug for the purpose of sale or supply, where the market value of the controlled drug amounts to €13,000 or more, contrary to s. 15A (as inserted by s. 4 of the Criminal Justice Act 1999), and s. 27 (as amended by s. 5 of the Criminal Justice Act 1999) of the 1977 Act. 44. Section 27(3C) of the 1977 Act provides that “[w]here a person (other than a person under the age of 18 years) is convicted of an offence under section 15A or 15B of this Act, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.” 45. Pausing there, the gravamen of the Applicant’s case, in summary, is arguably captured at paras E
(3)(
  1. iv)and (
  2. v)of the Statement of Grounds dated 4th September, 2024, where 17 it is said that in imposing the said sentences in respect of the s. 15 and s. 15A offences, the court did not specify any minimum term to be served by the Applicant and the cumulative sentence was, in effect, one of 12 years’ imprisonment. 46. In the Applicant’s case, s. 27(3A) of the 1977 Act, however, was applied having regard to the provisions of s. 27(3C) of the 1977 Act and a term of not less than 10 years as a minimum term of imprisonment was given, i.e., 12 years. 47. In considering these matters, therefore, the sequential aspects of the sentencing process are important in the interpretation of these provisions. 48. The starting point, for example, is the sentence that is in fact imposed or received by the person, which in this case was 12 years, read together with the provisions of s. 27(3I) of the 1977 Act. The relevant offences (having regard to the contentions made in this case) for which the Applicant in this case was convicted – ss. 15 and 15A offences – required minimum terms of not less than 10 years (again that was 12 years in this case). 49. The length of the minimum sentence under s. 27(3C) of the 1977 Act which was imposed (12 years) read together with s. 27(3I) of the 1977 Act creates in effect a jurisdictional pre-requisite or conditional requirement as s. 27(3I) provides that “[a]ny powers conferred by rules made under s.2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is 18 prohibited by subsection (3G) of this section unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason.” (Underlining and bold added in this judgment). 50. Section 27(3I) of the 1977 Act, therefore, is the basis under which the first named Respondent deemed the Applicant’s application as ineligible in this case. 51. From the perspective of statutory interpretation, s. 27(3I) is the relevant starting point from which other sub-paragraphs of sub-provisions of s. 27 can be read sequentially. (Further, as pointed out later in this judgment, the reference to “unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason” is also a significant provision having regard to the Applicant’s constitutional challenge and ‘ECHR Act 2003’ challenge in terms of his arguments around the concept of ‘equality’). 52. After the tariff is imposed – in this case 12 years – regard can then be had to the provision dealing with the question of remission. 53. Accordingly, s. 27(3G) of the 1977 Act provides that “[t]he power conferred by s.23 of the Criminal Justice Act 1951 to commute or remit a punishment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised before the expiry of the minimum term specified by the court under subsection 3(C) of this section less any reduction of that term under subsection (3H) of this section.” 19 54. As mentioned earlier, the Respondents submit that upon the commencement of his sentence, the Applicant would have been informed of his release date as per the application of the Prison Rules which provides that all prisoners sentenced to a term of imprisonment qualify for one-quarter remission on the basis of good behaviour which reduction is recognised under s. 27(3H) and applied under s. 27(3G) of the 1977 Act. The Applicant’s indicative release date would have been 4th December 2025. 55. Section 27(3H) of the 1977 Act refers to the period of statutory remission. 56. Section 27(3H) of the 1977 Act provides that “[t]he rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence imposed under subsection (3A) of this section and the minimum term specified by the court under subsection (3C) of this section shall be reduced by the amount of any remission so earned by the person.” 57. Thus, the reduction referred to in s. 27(3H) of the 1977 Act is remission of a sentence by industry and good conduct which is one quarter of a sentence. When applied to the Applicant’s circumstances this is 12 years less one quarter which is 3 years, therefore giving a figure of 9 years. Thus, the period is less than the term of 10 years after the period of remission has been applied. The reference is made in s. 27(3G) of the 1977 Act to the minimum term specified by the court under s. 27(3C) of the 1977 Act, i.e., 12 years, less any reduction of that term under s. 27(3H) of the 1977 Act, in this case 25% or 3 years, giving a total of 9 years. 20 58. In addition, prisoners may also receive enhanced remission of greater than one quarter but not exceeding one third of their sentence if they (
  3. i)demonstrate good behaviour by engaging in authorised structured activity, and (
  4. ii)satisfy the Minister that as a result of same (
  5. i)they are less likely to re-offend and would be better able to re-integrate into the community. 59. Thereafter, once he was approved for enhanced remission the end date of the Applicant’s sentence was automatically recalculated and his sentence concluded on 4th February 2025, which was the date on which he was in fact released. 60. Hypothetically, and in contrast to the position which applied in this case, in circumstances where, for example, an indeterminate life sentence is imposed, the sentencing judge would be required, in those circumstances, to also set out a minimum term. 61. Accordingly, the first contention of the Applicant that no minimum term was in fact directed by the sentencing judge in his case and, therefore, that he remained eligible for consideration for temporary release, is incorrect and is rejected as a proposition. As a matter of statutory construction of, and engagement with, the sub-provisions of s. 27
(3)referred to above, the trial judge, in imposing sentences of imprisonment of 12 years, was specifying the minimum terms which the Applicant should serve.
  1. I now address the second central argument raised by the Applicant in relation to the Constitution and the ECHR Act
  2. 21 THE CONSTITUTION AND THE ECHR ACT 2003
  3. It is axiomatic that a law enacted post-1937 is presumed to be constitutional unless and until the contrary is clearly shown. Accordingly, s. 27
(3)of the 1977 Act, and its subprovisions, enjoy the presumption of constitutionality (see Pigs Marketing Board v Donnelly [1939] I.R. 413 (Hanna J.)) and the onus is on the Applicant if he seeks to challenge that presumption. Equality 64. In Donnelly v The Minister for Social Protection & Ors [2022] IESC 31; [2023] 2 I.R. 415 (“Donnelly”), the Supreme Court dismissed a challenge, brought under Article 40.1 of the Constitution and Article 14 of the European Convention on Human Rights (“ECHR”), to a decision of the Minister of Social Protection and to certain provisions of the Social Welfare Consolidation Act 2005 (as amended) (“the 2005 Act”). 65. The effect of the 2005 Act provisions which were challenged, excluded the applicant in that case from eligibility for Domiciliary Care Allowance in respect of his severely disabled son during a prolonged period when he was in hospital. The Supreme Court held that the statutory classification, which distinguishes between parents who care for children with severe disabilities at home and parents caring for such children while they are in hospital, was not irrational and pursued a legitimate objective. 66. The Supreme Court reviewed the case-law in relation to the constitutional prescription of ‘equality’ and at para. 188 of her judgment, O’Malley J. set out the following principles: 22 (
  1. i)Article 40.1 provides protection against discrimination that is based on arbitrary, capricious or irrational considerations; (
  2. ii)The burden of proof rests upon the party challenging the constitutionality of a law by reference to Article 40.1 of the Constitution; (iii) In assessing whether or not a plaintiff has discharged that burden, the court will have regard to the presumption of constitutionality; (
  3. iv)The court will also have regard to the constitutional separation of powers, and will in particular accord deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy; (
  4. v)Where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the court will assess the legislation with particularly close scrutiny. Conversely, where there is no such impact, a lesser level of examination is required; and (
  5. vi)The objectives of a legislative measure, and its rationality (or irrationality) and justification (or lack of justification) may in some cases be apparent on its face. Conversely, in other cases it may be necessary to adduce evidence in support of a party’s case. 67. In Donnelly, the Supreme Court rejected the contention that a proportionality test should apply in a case where the ‘sole’ basis of challenge was predicated on the constitutional prescription of equality. 68. In Braney v Ireland & Ors [2021] IESC 7 (“Braney”), the Supreme Court dismissed the applicant’s claim that s.30 of the Offences Against the State Act 1939 contravened the 23 equality provisions of the Constitution and the ECHR and addressed similar arguments in relation to equality having regard to the provisions of the Constitution and the ECHR Act 2003, to those now raised by the Applicant. 69. In terms of equality and Article 40.1 of the Constitution (which provides that “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function”), Charleton J. observed in Braney that there was “no imperative discoverable from any case decided by this Court whereby all situations must be resolved in law into homogeneity. One situation of nonhomogeneity may be unconstitutional unless treatment is underpinned by practical reasons that do not seek to discriminate on an unfair basis that draws from prejudice or the differentiation of people on the basis of their essential attributes. As the criminal law has developed over time, and by experience of what is needed to combat distinctly different wrongs against society, differing crimes have required varying powers of investigation and while the overlapping sets of circumstances are not always entirely uniform, there is a reasoned basis underpinning those different powers which the legislature has ascribed to the police in the pursuit of attaining true social order”(Emphasis and underlining added in this judgment). 70. The difference in treatment which s. 27 of the 1977 Act provides for is, in my view, proportionate and reasoned and is not contrary to the provisions of the Constitution or the ECHR Act 2003. 71. In this regard in Sarsfield (referred to earlier in this judgment), under the sub-heading “Section 15A Offences”, the Court of Appeal (Birmingham P., Whelan and McCarthy 24 JJ.), in the judgment of the President, explained the ‘rationale’ for the sentencing regime and penalties referred to in s. 27(3D) of the 1977 Act which inter alia included the harm caused to society by drug trafficking, as follows: “10. Unusually, s.27(3D)(
  6. a)of the 1977 Act contains a specific statement of the rationale behind the sentencing regime by justifying those provisions “in view of the harm caused to society by drug trafficking”. The Courts have long been aware of the effects of drug trafficking and are called on to deal with those effects, and the affected, on a daily basis. On very many occasions, the Court has to deal with the fact that those who become addicted to drugs find their lives destroyed. On other occasions, the Court is dealing with victims one step further removed i.e. those victims of crimes committed by individuals in order to feed a habit or to clear a drugs debt. 11. The culpability of those coming before the courts varies considerably. Sometimes, though perhaps not as often as one would wish to see, the Courts are dealing with those in a supervisory role: those managing or directing the operations in question. Probably more frequently, however, those brought before the Courts play a lesser role and could be described as lower-ranking operatives in a wider criminal enterprise. These lesser roles, whether they involve storing or transporting drugs, may still be very important and without which major drug dealing and trafficking could hardly occur. 12. In assessing the gravity of a particular offence, the value and quantity of drugs seized have long been regarded as critical factors to be taken into account in evaluating where on the scale of seriousness the offence falls. See, in that regard, the judgment of the Court of Criminal Appeal in the case of DPP v. Derek Long [2008] IECCA 133. However, as that judgment itself makes clear, 25 that is not of course to say that the value of a drugs haul is, in and of itself, determinative of the sentence to be imposed. As the Court of Criminal Appeal observed, there may well be cases where the person found in possession of the drugs is left unaware, or could not have known, of the quantity or value of the drugs in question. This can arise in the case of a drugs mule who is handed a suitcase at a foreign airport and asked to import it into Ireland for a reward. As this Court often finds itself emphasising, each case will necessarily turn upon its own particular facts and the individual circumstances of an offender may serve to move the dial considerably in either direction. Even in the case of a very large haul indeed, it is possible to imagine cases where the evidence will indicate that the individual was playing a totally subservient role. Those living in abject poverty and deprivation analogous to the situation of the “gardeners” in cultivation cases is one such situation that comes to mind. On the other hand, there may be cases where the quantity of drugs is less, though perhaps still substantial, but the manner in which the individual dealt with the drugs left no room for doubt that he was the actual owner, was in effective control, and/or was the individual, or one of the individuals, who stood to make major profit from the exercise. In general, the greater the authority exercised, the greater the culpability. Where the decision to become involved in drug trafficking was one taken in order to make a financial gain, that too will increase the level of culpability. 13. The absence of financial gain and the fact that the offence achieved nothing more for the offender than being provided with a small quantity of drugs for immediate personal use would tend to reduce culpability. Duress, even at a level falling short of what would provide a defence in law, may still be relevant. 26 However, sentencing courts will need to be conscious that it is easy to assert that one is acting under duress and such assertions are not infrequent. A factual basis to support the assertion is required. It is not unknown for the prosecution and for investigating Gardaí to accept that duress was a factor, and indeed, to introduce the issue of duress into the case. Where that happens it is likely to have a significant impact on the case. 14. In the case of s. 15A offences, the headline or pre-mitigation sentence is only a first step, and as always, save where the sentence is a mandatory one, it will be necessary to have regard to the individual circumstances of the individual offender. Those circumstances will vary widely from the individual with relevant previous convictions making a conscious and unforced decision to become involved, to individuals falling into offending in circumstances of extreme distress and vulnerability. The circumstances can be expected to vary so widely that there can be no real expectation of uniformity of actual sentences imposed, as distinct from consistency in identifying a headline or pre-mitigation sentence and the principles to be applied in arriving at the ultimate sentence”. 72. As stated in Sarsfield, the rationale underpinning the provisions for penalties in s. 27 of the 1977 Act is explained in s. 27(3D) of the 1977 Act as follows: “(
  7. a)The purpose of this subsection is to provide that in view of the harm caused to society by drug trafficking, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under section 15A or 15B of this Act, shall specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person, unless the court determines that by reason of exceptional and specific circumstances relating to 27 the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so. [Underlining added in this judgment] (
  8. b)Subsection (3C) of this section shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years’ imprisonment unjust in all the circumstances and for that purpose the court may, subject to this subsection, have regard to any matters it considers appropriate, including (
  9. i)whether that person pleaded guilty to the offence and, if so (I) the stage at which he or she indicated the intention to plead guilty, and (II) the circumstances in which the indication was given, and (
  10. ii)whether that person materially assisted in the investigation of the offence. (
  11. c)The court, in considering for the purposes of paragraph (
  12. b)of this subsection whether a sentence of not less than 10 years’ imprisonment is unjust in all the circumstances, may have regard, in particular, to—(
  13. i)whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence, and (
  14. ii)whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence.” 73. In addition to setting out the rationale, by referring to and incorporating the following terms “unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances to do so” (underlining added), the Oireachtas, in enacting s. 27(3D)(
  15. a)of the 1977 Act, has expressly caveated and provided for judicial flexibility in the specification of a term of not less than 10 years as the minimum term of imprisonment. 28 74. In this regard s. 27(3D)(
  16. b)of the 1977 Act provides that s. 27(3C) of the 1977 Act shall not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of the offence, which would make a sentence of not less than 10 years’ imprisonment unjust in all the circumstances and for that purpose a court may consider the time and circumstances of an indicated intention to plead guilty, and the fact of a guilty plea and whether that person materially assisted in the investigation of the offence. 75. Further, providing in s. 27(3D)(
  17. c)that “the court, in considering for the purposes of paragraph (
  18. b)of this subsection whether a sentence of not less than 10 years’ imprisonment is unjust in all the circumstances, may have regard, in particular, to (
  19. i)whether the person convicted of the offence concerned was previously convicted of a drug trafficking offence, and (
  20. ii)whether the public interest in preventing drug trafficking would be served by the imposition of a lesser sentence”, allows for a judicial adjustment of a sentence to be less than a minimum period of 10 years in the circumstances of outlined in s. 27(3D). 76. In addition, as referred to earlier in this judgment, a further safeguard is set out in s. 27(3I) of the 1977 Act which provides that “any powers conferred by rules made under s.2 of the Criminal Justice Act 1960 to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence imposed under subsection (3A) of this section, be exercised during the term for which the commutation or remission of his or her punishment is prohibited by subsection (3G) of this section 29 unless for a grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by such reason.” 77. The Oireachtas also provided in s. 27(3J) of the 1977 Act that “[i]n imposing a sentence on a person convicted of an offence under section 15A or 15B of this Act, a court (
  21. a)may inquire whether at the time of the commission of the offence the person was addicted to one or more controlled drugs, and (
  22. b)if satisfied that the person was so addicted at that time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the term specified by the court under subsection (3C) of this section”. 78. Together, in enacting the provisions and sub-provisions in ss. 27
(3), (3A), (3B), (3C), (3D), (3G), (3H), (3I), (3J), (3K), (3L), (3N) of the 1977 Act, the Oireachtas has incorporated and provided for a proportionate and flexible response in terms of the imposition of penalties, and minimum terms, which are consistent with the equality provisions of the Constitution and the ECHR Act 2003. 79. Further, the treatment of penalties for the s. 15 and s. 15A offences in s. 27
(3), (3A), (3B), (3C), (3D), (3G), (3H), (3I), (3J), (3K), (3L), and (3N) of the 1977 Act are not arbitrary, capricious, or irrational and are relevant to the legislative purpose outlined n s. 27(3D) of the 1977 Act and the approach given effect to in a number of the decisions of the Court of Criminal Appeal referred to: see Brennan v Attorney General [1983] ILRM 449, Dillane v Attorney General [1980] ILRM 167 and their application by O’Malley J. in Donnelly at para.
  1. 30
  2. A challenge to s. 27(3I) of the 1977 Act on the basis of the constitutional equality guarantee could only succeed if this provision (and its related provisions) was (were) grounded upon some constitutionally illegitimate consideration and drew an irrational distinction resulting in some people treated as inferior for no justifiable reason. No such basis exists in how the penalty provisions treat of s. 15 and s. 15A offences. Proportionality & The Constitution
  3. In addition to the constitutional provisions in relation to equality (i.e., “a pure equality claim”) a claim, for example, that s. 27(3I) of the 1977 Act breaches a substantive constitutional right, such as, for example, personal liberty (Article 40.4.1º of the Constitution), is assessed via the prism of the decision of the High Court (Costello J., as he then was) in Heaney v Ireland [1996] 1 I.R. 580, at p. 607, [1997] 1 ILRM 117 (“Heaney”).
  4. As stated earlier in this judgment, s. 27(3I) of the 1977 Act (and the other provisions in s. 27
(3)and sub-provisions in sections (3A), (3B), (3C), (3D), (3G), (3H), (3J), (3K), (3L), and (3N) of the 1977 Act), in my view, relate to concerns pressing and substantial in a free and democratic society and comply with the proportionality test posited by Costello J. in Heaney and are: (
  1. a)rationally connected to the objectives sought therein and are not arbitrary, unfair or based on irrational considerations; (
  2. b)impair the Applicant’s claimed rights right as little as possible; and (
  3. c)and are such that their effects on such claimed rights are proportional to the objective as provided for in s. 27
(3)of the 1977 Act and the rationale for which has been out earlier in this judgment in the case law and in s. 27
(3)– which included addressing the harm caused to society 31 by drug trafficking – and in the manner by which these provisions are operated in the courts. 83. There are almost identical provisions in the ‘penalties’ section dealing with drugs offences in the 1977 Act and the sentencing provisions dealing with firearms offences in the Firearms Act 1964 (as substituted by the Criminal Justice Act 2006) (“the 1964 Act”). 84. Section 27(3F) of the 1977 Act, for example, had provided that “[w]here a person (other than a person under the age of 18 years)(
  1. a)is convicted of a second or subsequent offence under section 15A or 15B of this Act, or (
  2. b)is convicted of a first offence under one of those sections and has been convicted under the other of those sections, the court shall, in imposing sentence, specify a term of not less than 10 years as the minimum term of imprisonment to be served by the person.” (Emphasis/underlining added in this judgment). 85. Section 27A
(8)of the 1964 Act had provided that “[w]here a person (except a person under the age of 18 years)- (
  1. a)is convicted of a second or subsequent offence under this section, (
  2. b)is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.” 32 86. In Ellis v Minister for Justice [2019] IESC 30; [2019] 3 I.R. 511 (“Ellis”), the Supreme Court declared that s. 27A
(8)the 1964 Act was unconstitutional (Finlay Geoghegan J. delivered the principal judgment with Charleton J. giving a concurring judgment). 87. Mr. Ellis had been convicted of a firearms offence contrary to s. 27A
(1)of the 1964 Act. The effect of the various subsections of s. 27A of the 1964 Act was to make all convicted persons liable to a penalty of imprisonment with a maximum of 14 years and a fine, but to prescribe two different statutory regimes applicable to a minimum term of imprisonment, depending on whether the offence of conviction was the first offence contrary to s. 27A
(1)of the 1964 Act (and certain other specified firearm offences) or a second or subsequent offence. 88. The Supreme Court found that s. 27A
(8)of the 1964 Act was unconstitutional as it legislated for a mandatory minimum sentence to be imposed only on a limited class of persons who shared one particular characteristic, i.e., they had been previously convicted of a firearms offence under the 1964 Act. 89. In her judgment, at para. 62, Finlay Geoghegan J. concluded that in enacting what became s. 27A
(8)of the 1964 Act, the Oireachtas had impermissibly crossed the divide in the constitutional separation of powers and sought to determine the minimum penalty which must be imposed by a court, not on all persons convicted of an offence contrary to s. 27A
(1)of the 1964 Act, but only on a limited group of such offenders who were identified by the particular characteristic that they had previously committed one or more of the listed offences. 33 90. At paras 51 and 52 of her judgment, Finlay Geoghegan J. differentiated between the provisions in the 1964 Act (ss. 27A
(4)-
(7)of the 1964 Act) which incorporated presumptive minimum terms and, therefore, provided for judicial flexibility based on exceptionality, compared to s. 27A
(8)of the 1964 Act which, in contrast, provided for a mandatory minimum sentence to be imposed only those who had been previously convicted of a firearms offence under the 1964 Act and which, therefore, comprised a limited class of persons: “
(51)Sub-sections 27A
(4)-
(7)[of the 1964 Act] prescribe what is sometimes referred to as a ‘presumptive’ or ‘indicative’ minimum sentence to be imposed of five years’ imprisonment, but permits the court to depart from this if it ‘is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances’. However, where the offence of conviction contrary to s. 27A
(1)is a second relevant offence, s. 27A
(8)precludes any departure by the court from the minimum term of five years to be served, irrespective of the circumstances in which the offence of conviction was committed or the personal circumstances of the offender. Hence, this mandatory minimum penalty only applies to a limited class of persons convicted of an offence contrary to s. 27A
(1)of the 1964 Act, as amended. It is not a penalty prescribed for all persons who commit an offence contrary to s. 27A
(1).
(52)Accordingly, what is at issue in this appeal is a question which has not previously been considered by a judgment of this Court. It is whether it is consistent with the Constitution for the Oireachtas to legislate for a fixed or minimum mandatory sentence or penalty which does not apply to all persons convicted of the offence, but only to a limited class of such offenders, determined 34 by reference to a fact which is either one characteristic of the offender, namely that he has one or more prior relevant conviction, or is one of the circumstances in which the offence of conviction is considered to have been committed, namely that it is the second time or more that the offender has committed this offence or a similar relevant offence.”
  1. In his judgment in Ellis, Charleton J. observed that a reference to judicial discretion in this specific context was a misnomer since the courts do not act out of discretion in sentencing but rather sentences are chosen by the courts at a level up to the maximum sentences prescribed by legislation.
  2. The concurring judgment of Charleton J. referred to what I described earlier in this judgment as the symbiotic nature of the statutory penalty (sentencing) provisions in relation to drugs offences and firearms offences.
  3. Charleton J. described the background to the introduction of s. 15A in 1999 as the Oireachtas amending the 1977 Act to provide that those who possessed drugs for unlawful supply which had a market value of €13,000 (then IR£10,000 or more) were liable under s.15A to an enhanced penalty. He stated that “[t]his was proscribed by s.27(3D) as carrying a 10 year mandatory minimum sentence unless “the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of the offence, it would be unjust in all the circumstances”; inserted by section 33 of the Criminal Justice Act
  4. With a second conviction, for possession or importation for supply of that value of drugs, sections 35 27(3E) and 27(3F) remove the unless provision for all convicts who committed the offences when aged 18 years and upwards” (emphasis added in this judgment).
  5. Turning to the 1964 Act, Charleton J. observed that “the existing law was altered by setting down a potential maximum penalty of up to life imprisonment for possessing a firearm with intent to endanger life with an indicative sentence of 10 years, provided that such a sentence would not have to be imposed by the courts if by “reason of exceptional and specific circumstances relating to the offence, or the person convicted of it” it “would be unjust in all the circumstances.” Again, the exception is removed by section 42
(6)of the 2006 Act in the case of a subsequent offence or for a second offence under sections ‘26, 27, 27A or 27B of the Firearms Act 1964 or section 12A of the Firearms and Offensive Weapons Act 1990’. Provided the offences were committed by those of 18 years and upwards, the legislation provides that “the court shall, in imposing sentence, specify a term of imprisonment of not less than 10 years as the minimum term of imprisonment to be served by the person.” There are no exceptions” (emphasis added in this judgment). 95. The enactment of s. 27A
(8)of the 1964 Act was, therefore, an example of a legislative provision going “too far” .
  1. Charleton J. observed, at para. 11 of his judgment, that “[i]n this instance” its effect was “to remove from the courts their entitlement to suspend even a year out of ten years or a month out of five years with a view to both encouraging and warning a prisoner into turning to a useful and law-abiding life. Such has always been the entitlement of the courts” and added at para. 20 that “[w]hat is indicative from the Oireachtas cannot 36 be wrong, provided there is an interests of justice clause to enable an appropriate sentence to be handed down notwithstanding the legislative view”.
  2. Consequent upon the decision of the Supreme Court in Ellis which declared that s. 27A
(8)of the 1964 Act was unconstitutional, s. 27(3F) of the 1977 Act, which, as set out earlier, was framed in similar terms, was subsequently declared unconstitutional by the High Court (Twomey J.) in McManus v Minister for Justice [2021] IEHC 385 (“McManus”). 98. In contrast to the provisions of s. 27
(3)of the 1977 Act applicable to Mr. Kelleher’s case, s. 27(3F) of the 1977 Act had provided for the “mandatory”, as distinct from “presumptive”, minimum 10-year sentences for “repeat” s. 15A and s. 15B offences.
  1. A judicial flexibility is therefore present in the provisions (and sub-provisions) of s. 27 of the 1977 Act, including s. 27(3I). These provisions are not irrational, arbitrary or capricious and include a stated rationale, in light of their function in society, which is articulated in s. 27(3D) of the 1977 Act. Further, the provisions in s. 27, including s. 27(3I) of the 1977 Act, are not grounded upon a constitutionally illegitimate consideration and do not provide an irrational distinction resulting in some people being treated as inferior for no justifiable reason.
  2. In addition, I have also had regard to similar arguments made in Mr. Kelleher’s case which also arose in Doyle v The Minister for Justice [2015] IEHC 514 (“Doyle (No. 1)”) delivered on 30th July 2015 and Doyle v The Minister for Justice [2015] IEHC 728 (“Doyle (No. 2)”) delivered on 20th November, 2015, where the High Court (Kearns P.) 37 had to consider a challenge on both non-constitutional grounds (Doyle (No. 1)) and constitutional grounds (Doyle (No. 2)) to the similar sentencing and penalties legislative regime which had been inserted into the Firearms Act 1964 (by s. 61 of the Criminal Justice Act 2006), and which also arose in the context of an application for temporary release from prison pursuant to s. 2 of the Criminal Justice Act 1960 (as amended).
  3. Mr. Doyle had applied for temporary release in order to pursue a course of study and his request was refused on the basis that the granting of temporary release to him in respect of his firearms offence was precluded by s. 27C
(4)of the 1964 Act, as he was serving a minimum term of imprisonment as defined in s. 27C
(1)of the 1964 Act. (He had been sentenced to five years imprisonment for possession of a controlled drug at which point in time he also received a concurrent five year sentence for possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006, as amended).
  1. The arguments in his case replicate some of the arguments which have been made on behalf of Mr. Kelleher in this application for judicial review.
  2. In Doyle (No. 2), as with the provisions in the 1977 Act applicable in Mr. Kelleher’s case, s. 27C
(4)of the 1964 Act provided that “[a]ny powers conferred by rules made under section 2 of the Criminal Justice Act 1960, as applied by section 4 of the Prisons Act 1970, to release temporarily a person serving a sentence of imprisonment shall not be exercised during a minimum term of imprisonment, unless for grave reason of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by that reason.” 38 104. On behalf of Mr. Doyle it had been contended inter alia that s. 27C
(4)of the 1964 Act was unconstitutional as it disproportionately affected his constitutional rights to personal liberty (Article 40.4.1º of the Constitution) and equality (Article 40.1 of the Constitution). It was further submitted that the provisions of s. 27C were in breach of the principle of the separation of powers as the discretion of the executive to grant temporary release to a particular category of convicted person had been removed by an Act of the Legislature.
  1. In relation to the temporary release scheme, it was argued on behalf of Mr. Doyle that whilst the granting of temporary release did not amount to a constitutional right, this did not mean the Constitution was not engaged by virtue of the impact of the statutory provisions on other constitutional rights. It was submitted that his rights to personal liberty under Article 40.4.1º and his guarantee of equality pursuant to Article 40.1 of the Constitution were infringed by what was contended to be a disproportionate interference of the provisions of s. 27C of the 1964 Act and reference was made to the decision of the High Court (Hogan J.) in Byrne (a minor) v The Director of Oberstown School [2013] IEHC 562; [2020] 2 I.R.
  3. Kearns P. refused Mr. Doyle’s constitutional challenge.
  4. Kearns P. did not accept that s. 27C of the 1964 Act infringed upon Mr. Doyle’s right to equal treatment before the law under Article 40.1 of the Constitution. He stated that the purpose of the presumptive minimum sentences was expressly stated in s. 27A of the 1964 Act (the constitutionality of which had not been challenged). He agreed that the restrictions on the granting of temporary release to persons sentenced in accordance 39 with s. 27A, as set out in s. 27C, were justified having regard to the purpose of the sentence itself and the wide range of alternative rehabilitative options available to persons such as Mr. Doyle.
  5. In terms of proportionality, Kearns P. held that it was relevant that the purpose of the presumptive minimum sentences contained in s. 27A was expressly set out at s. 27A(4A) of the 1964 Act, which also conferred a discretion on the sentencing judge to deviate from the minimum sentence in certain circumstances. Further, s. 27C of the 1964 Act which precluded the granting of temporary release to those convicted of specified firearms offences was not an absolute provision. It allowed for the granting of temporary release to all such convicted persons in certain circumstances. Kearns P. also had regard to the Prison Rules and the entitlement to enhanced remission, which he considered tempered any perceived harshness of the rule that temporary release may not be granted to persons such as Mr. Doyle and offered an increased incentive to participate in rehabilitation programmes within the prison environment.
  6. In relation to the separation of powers argument, Kearns P. held that in applying Laurentiu v Minister for Justice, Equality and Law Reform [1999] 4 I.R. 26, the Supreme Court (Keane J., as he then was) to Mr. Doyle’s case, even if the granting of temporary release was a purely executive function, such executive discretion can be controlled by an Act of the Legislature and that it could not be said, therefore, that s. 27C of the 1964 Act interfered with the separation of powers in a manner which rendered the provision unconstitutional. 40
  7. In Doyle (No. 1), Kearns P. referred to the nature of the “temporary release scheme” considered by the Supreme Court in Kinahan v The Minister for Justice and Law Reform [2001] 4 I.R. 454 where Hardiman J. observed that “[i]n the course of this hearing there was some debate about the nature of temporary release. It does not appear to me that temporary release is a specific exercise of the general power of commutation or remission envisaged in the Constitution. Rather, it appears to be a statutory creation administered under the Prisoners (Temporary Release) Rules,1960 which instrument was in turn made under the powers conferred by the Criminal Justice Act,
  8. It is clear from the above-mentioned Statute and Rules that temporary release is envisaged as release from custody for a limited period during the currency of a sentence, subject to conditions and carrying an obligation to return to the prison at its conclusion. In this it seems quite distinct from the general executive power of remission.”
  9. In Doyle (No. 1), Kearns P. considered that legislation providing for temporary release was permissive and could not be construed a penal statute. He held that the Criminal Justice (Temporary Release of Prisoners) Act 2003 did not intend to undermine and render nugatory the clear determination of the Oireachtas that, for a firearms offence, a presumptive minimum sentence must be served by a prisoner for the clearly stated public policy considerations elaborated in the statutory code. He inter alia held that to draw any other conclusion would result in an absurdity and the unintended repeal of s. 27C
(4)simply by reference therein to the existence of rules which were superseded and replaced by different temporary release rules in 2004. 41 Equality & the ECHR Act 2003 112. Insofar as the Applicant refers to the provisions of the European Convention on Human Rights, its application in Irish domestic law is viewed through the prism of the ECHR Act 2003. 113. Thus, there is a duty on all State bodies (save the courts and the Oireachtas) to comply with the State’s ECHR obligations. There is also an interpretive obligation on courts inter alia to interpret Irish law insofar as is possible so as to comply with the State’s ECHR obligations, and a court can, in certain circumstances, grant a ‘declaration of incompatibility’ of a law in relation to its failure to comply with the State’s ECHR obligations. 114. In the interpretation of Convention provisions (which are defined in the ECHR Act 2003), s. 4 of the 2003 Act refers to “judicial notice shall be taken of the Convention provisions and of (
  1. a)any declaration, decision, advisory opinion or judgment of the European Court of Human Rights established under the Convention on any question in respect of which that Court has jurisdiction, (
  2. b)any decision or opinion of the European Commission of Human Rights so established on any question in respect of which it had jurisdiction, (
  3. c)any decision of the Committee of Ministers established under the Statute of the Council of Europe on any question in respect of which it has jurisdiction, and a court shall, when interpreting and applying the Convention provisions, take due account of the principles laid down by those declarations, decisions, advisory opinions, opinions and judgments.” (Underlining added in this judgment). 42 115. The ECHR has, therefore, been given indirect effect in Ireland at a sub-constitutional level by the enactment of the ECHR Act 2003 and the ECHR provisions are not directly effective in Irish domestic law. 116. In MD v Ireland [2012] IESC 10; [2012] 1 I.R. 697, Denham C.J., at para. 59 of her judgment, stated as follows: “[i]n reality the Convention claim has been presented as subsidiary to the constitutional claim. The claim, as pleaded, is simply that s. 3 is “in breach of” the Convention. That formulation is not acceptable. It treats the Convention as if it had direct effect and presumes that the Court has the power to grant a declaration that a section is in breach of the Convention. It is clear from the judgments of this Court in McD v L [2010] 2 I.R. 199 that the European Convention on Human Rights Act 2003 did not give direct effect in Irish law to the European Convention on Human Rights. As Murray C.J. stated at page 248, “The Convention does not of itself provide a remedy at national level for victims whose rights have been breached by reference to the provisions of the Convention.” 117. In Costello v Government of Ireland [2022] IESC 44; [2025] 1 I.R. 1, Hogan J., at para. 182 of his judgment in the Supreme Court, similarly observed that “[t]he 2003 Act does not state … that such decisions of the [ECtHR] have binding legal status in our domestic law” 118. Further, the seeking of a ‘declaration of incompatibility’ under s. 5 of the ECHR Act 2003 can be contrasted with a declaration of unconstitutionality. A declaration of unconstitutionality has immediate, erga omnes prospective effect, described by Henchy J. as the equivalent of a “judicial death certificate” in Murphy v Attorney General 43 [1982] IR 241 at p. 340, whereas s. 5
(2)of the ECHR Act 2003 inter alia provides that the granting of a declaration of incompatibility shall not affect the validity, continuing operation or enforcement of the statutory provision or rule of law in respect of which it is made.
  1. As a matter sequential priority, the Supreme Court has stated in a number of cases that the first port of call should always be the constitutional challenge: see Corcoran & Anor v The Garda Commissioner & Anor [2023] IESC 15, Gorry v Minister for Justice [2020] IESC 55, Clare County Council v McDonagh [2022] IESC 1; [2022] 2 I.R.122, Middlekamp v Minister for Justice [2023] IESC 3; [2023] 1 ILRM 277 and Odum v Minister for Justice [2023] IESC
  3. In giving effect to that sequential priority, I have, earlier in this judgment refused the Applicant’s constitutional challenge and for the same reasons I would refuse the Applicant’s challenge based on references to the ECHR.
  4. Further, in viewing that aspect of the Applicant’s challenge through the prism of the ECHR Act 2003, the decision of the ECtHR in Gerger v Turkey [1999] ECHR 44 (“Gerger”) was referred to by the Supreme Court in Braney, at para. 47, where the judgment of Charleton J. dismissed the applicant’s claim that s. 30 of the Offences Against the State Act 1939 contravened the equality provisions of the Constitution and the ECHR. 44
  5. In Braney, the Supreme Court addressed similar arguments in relation to equality having regard to the provisions of the Constitution and the ECHR Act 2003 to that made on behalf of the Applicant in this case.
  6. In Gerger, the ECtHR held that differences in treatment between prisoners in relation to parole did not confer on them “other status”. Homogeneity was not the same as unlawful discrimination as the distinction had not been made between different groups of people, but rather between different types of offences, according to their gravity.
  7. At paras 66 to 69 of its decision in Gerger, the ECtHR held as follows: “
(66)The applicant said that the fact that he had been sentenced to a term of imprisonment under Law no. 3713 meant that he had not been entitled to automatic parole until he had served three quarters of his sentence, unlike prisoners sentenced under the ordinary criminal law, who were entitled to parole after serving half their sentence. He considered that that difference constituted unlawful discrimination under Article 14 of the Convention, which provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
(67)The Court considers that this question relates to “the lawful detention of a person after conviction by a competent court” and should therefore be examined under Article 14 taken together with Article 5§1(
  1. a)of the Convention. The latter provision provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in 45 accordance with a procedure prescribed by law: (
  2. a)the lawful detention of a person after conviction by a competent court;”
(68)The Government submitted that Article 5§1(a) did not secure convicted prisoners a right to automatic parole. They added that in any event the restrictions on entitlement to parole imposed on persons convicted of an offence under the Prevention of Terrorism Act were warranted by the intrinsic seriousness of such offences.
(69)The Court considers, firstly, that, although Article 5§1(
  1. a)of the Convention does not guarantee a right to automatic parole, an issue may arise under that provision taken together with Article 14 of the Convention if a settled sentencing policy affects individuals in a discriminatory manner. The Court notes that in principle the aim of Law no. 3713 is to penalise people who commit terrorist offences and that anyone convicted under that law will be treated less favourably with regard to automatic parole than persons convicted under the ordinary law. It deduces from that fact that the distinction is made not between different groups of people, but between different types of offence, according to the legislature’s view of their gravity. The Court sees no ground for concluding that that practice amounts to a form of “discrimination” that is contrary to the Convention. Consequently, there has been no violation of Article 14 taken together with Article 5§1(
  2. a)of the Convention.” 125. In Gerger, Turkish law had distinguished between those convicted of terrorist offences and those convicted under the ordinary law and as para. 69 in the quoted extract confirms, the ECtHR held that this did not to amount to discrimination. 46 CONCLUSION AND PROPOSED ORDER 126. In the circumstances, for the reasons set out in this judgment, I reject the interpretation of the sub-paragraphs (and sub-provisions) of s. 27
(3)of the 1977 Act put forward on behalf of the Applicant and I also reject the grounds of challenge based on the Constitution and the ECHR Act
  2. I propose, therefore, to make an order refusing the reliefs sought by the Applicant by way of judicial review.
  3. I shall put the matter in for mention on Thursday 18th June 2026 at 10.30am to deal with the question of costs and any ancillary or consequential matters which arise. CONLETH BRADLEY Friday 12th June 2026 47

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