New legislation published by the Minister for Justice Helen McEntee will ensure that all persons convicted for a second or subsequent offence for possession of firearms with intent to endanger life will no longer face a mandatory minimum 10-year sentence.  

The new legislation will also ensure that anyone convicted of carrying a firearm with criminal intent for a second or third time will no longer be automatically subject to a minimum of 5 years imprisonment.

The new provisions laid out in the Criminal Justice (Amendment) Bill 2021 will give effect to a 2019 Supreme Court judgement by Ms. Justice Finlay Geoghegan in the case of Wayne Ellis v Minister for Justice and Equality.

The background to this case is that Mr Ellis was charged with offences arising out of an incident at Knocklyon Shopping Centre in 2012, including an offence of possession of a sawn-off shotgun contrary to section 27A(1) of the 1964 Firearms Act.

Although he pleaded guilty to this offence, Mr Ellis received a fully suspended 5-year sentence in the Circuit Court because the presiding judge was of the view that Mr Ellis was making every reasonable effort to rehabilitate himself.

The Director of Public Prosecutions appealed the sentence for undue leniency while noting that the option of a suspended sentence was not available to the Circuit Court judge and therefore should not have been applied.

This led to Mr Ellis challenging the constitutionality of the mandatory minimum sentence for second offences as contained in the 1964 Firearms Act.

Although this challenge was rejected twice; once by the High Court and once by the Court of Appeal, it was eventually accepted by the Supreme Court in 2019 that Mr Ellis was in fact correct.

As Daniel Hurley and Finn Keyes of the Oireachtas Library and Research Service have pointed out, the High Court had concluded that:

“This Court does not believe that a sentence length of five years, for a person who has been guilty of possessing a firearm in suspicious circumstances, where he has a previous offence of carrying a firearm with intent, is so irrational as to be unconstitutional. In this Court’s view there exists an obvious rational relationship between the length of that sentence and the requirements of justice and, in particular, the desire of the Oireachtas to seek to address gun-crime in a country where the Gardaí are unarmed.”

However, The Supreme Court found that while the Oireachtas clearly has an important role in setting out the term of a sentence attached to criminal offences, it was ultimately and exclusively a matter for judges sitting in courts to determine what constituted a “just and fair” minimum sentence” based on the circumstance presented to the court on a case by case basis.

The Law Reform Commission had already advanced a similar perspective in 2013.

The Supreme Court also found that it was unconstitutional for legislation to specifically provide mandatory minimum sentences for ‘class’ of person only; i.e those convicted for a second or subsequent offence, as opposed to ‘all persons’ equally.

In light of this the new Bill that has been published by Minister Helen McEntee will repeal all sections of firearms and drug legislation where a mandatory minimum sentence for second and subsequent offences is provided for.

These sections have also been listed by Lianne Reddy and Daniel Hurley of the Oireachtas Library and Research Service.

These include those mentioned above such as possession of firearms with intent to endanger life or carrying a firearm with criminal intent.

But the new Bill will also ensure that those sections of The Firearms Act 1964 which provides for mandatory minimum sentences of 10-years for second and subsequent convictions where a firearm has been used to assist or aid the escape of a person from custody will be repealed.

Also being repealed under the new Bill is the mandatory minimum sentence of 5-years for someone convicted of being in possession of a firearm or ammunition in suspicious circumstances.

Finally, Section 27 of the Misuse of Drugs Act 1977 sets out a mandatory minimum sentence of 10 years for a second or subsequent offence of possession of drugs worth more than €13,000 or the importation of controlled drugs in excess of certain value.

The governments amendment will remove that mandatory minimum sentence.

It is important to note that the three entirely mandatory life sentences in Irish law: murder; capital murder and treason are unaffected by this new Bill.