THE Supreme Court has dismissed a constitutional challenge by convicted drug dealer John Gilligan to a law under which he received consecutive sentences of six and eight months for having mobile phones in prison.
The decision means Gilligan's appeal against the consecutive sentences can now proceed in the Circuit Court. The appeal had been stayed pending the Supreme Court's decision on the constitutional issue.
A five-judge Supreme Court dismissed Gilligan's challenge to the constitutionality of the relevant law, which provides that a sentence imposed on a convicted person for another offence committed by them while in prison should be consecutive.
Gilligan argued the requirement that the sentence be consecutive was an impermissible encroachment on the sentencing powers of the judiciary but the court disagreed that it breached the doctrine of the constitutional separation of powers between the legislature, executive and judiciary.
The disputed law, Section 13 of the Criminal Law Act 1976, merely provides that a sentence of imprisonment, "if" imposed for an offence committed by a person while serving a sentence for another offence, call be consecutive to the existing sentence, he said.
This was not a case of the executive selecting the sentence and it had no role in the trial process, Mr Justice John MacMenamin, giving the court's judgment, said.
It was not open to Gilligan to argue, because he is a prisoner serving a long period of imprisonment, he would as a result of Section 13 be subject to an unduly severe or disproportionate sentence, the judge added.
That was because Section 13 did not mandate any standard or minimum level of punishment in any given case. An appeal against any such sentence could also be taken.
The fact Section 13 does not apply to those serving life sentences did not amount to unlawful discrimination against Gilligan, he ruled.
Section 13 was not arbitrary either in its scope or effect, it was intended to advance a rational, logical and legitimate goal - to mark the gravity of a situation where a prisoner, while serving a term of imprisonment, commits another offence during that time. It would defeat the purpose of such a sentence if it were concurrent to the sentence being served.
The judge also stressed the court's decision related to what was constitutionally "permitted". Any question whether statutes "should"
provide for mandatory or presumptive minimum sentences was an issue for the executive and legislature, he said.
The judgment came amid reports that Gilligan, who was jailed for 20 years for drug trafficking, could be freed from Portlaoise prison this week.
In addition to the 20 year sentence, Gilligan was later jailed to a consecutive two years for assaulting a prison officer. While serving that term, he was also convicted on charges of having a mobile phone and jailed for six and eight months on those charges.
Gilligan was initially given a 28-year sentence in March 2001 which was reduced by eight years on appeal in 2003. His anticipated release this week arises from an entitlement to remission.
Gilligan had brought several unsuccessful legal challenges to his detention while his family contested the confiscation by the Criminal Assets Bureau of various properties, including a Co Kildare stud farm, Jessbrook.