A rapist jailed for 12 years has won his Supreme Court challenge to the constitutionality of a law stopping the payment of the State contributory old age pension to people from the date of their imprisonment.
While concluding the law is unconstitutional, the five-judge court has deferred final orders in the case to later this year after indicating there may be a legislative solution.
The court also stressed its finding does not mean prisoners have to get the full benefit of pension or other welfare payments while jailed as there was already a statutory scheme for payment of compensation orders, by instalments, to victims of crime.
As this man is already sentenced, his position is more complex and the court will hear arguments in November over the appropriate remedy for him. It will also address the costs issues later.
The relevant law – Section 249.1 of the Social Welfare Consolidation Act 2005 – disqualifies persons, otherwise qualified for various welfare benefits, from receiving “any” of those benefits, including the old age contributory pension, while imprisoned or detained in legal custody.
Mr Justice John MacMenamin, giving the unanimous judgment, said, while the State argued the law was intended to prevent “unjust enrichment” of prisoners, its true effect “can only be described as punitive, retributive, indiscriminate and disproportionate”.
Additional punishment
The measure was an additional punishment not imposed by a court and was therefore in breach of the separation of powers and Articles 34 and 38 of the Constitution, he said. Those provide justice shall be administered in courts and no person shall be tried on any criminal charge except in due course of law.
No such penalty is mandatorily imposed on prisoners with independent means, he noted.
The 76-year-old prisoner was jailed for 12 years in 2011 after he was convicted on 14 counts of rape and 60 counts of sexual assault against a family member. He had worked in the State and made PRSI contributions and, when he retired in 2005, got the contributory pension. After his conviction in 2011, his pension payment was stopped.
He took High Court proceedings over that, seeking a declaration that Section 249.1 was incompatible with the Constitution and European Convention on Human Rights (ECHR) and also sought damages.
After the High Court rejected his challenge, he was given permission to appeal to the Supreme Court. The core issue was whether a prisoner has a constitutional right to payment of the State contributory pension.
Proportionate
The State argued the measure was a legitimate and proportionate restriction on the prisoners’ rights in pursuit of the common good and to ensure State benefits should not be made to prisoners whose needs are otherwise provided for by the State.
Mr Justice MacMenamin noted the man’s weekly prison allowance was €11.90, less than the normal weekly allowance of €18.90 due to his inability to engage in work activities in prison.
The man claimed he had insufficient funds to buy items in the prison tuck shop or electrical goods and could not afford coffee despite having a kettle. He said he relied on clothes provided by the prison service or St Vincent de Paul and also argued some other prisoners had access to non-State pensions.
In this case, the man is entitled to the pension and the reason for his disqualification from entitlement was the fact of imprisonment, the judge said. That sanction did not arise from any judicial finding or determination, was arbitrary and discriminatory and operated without any proportionality consideration.
The effect of the section, and regulations made under it, is an additional penalty not imposed by a court and intended to have an impact only on “culpably” guilty persons. It was an “impermissible administration of justice by legislation”.
Given his findings of unconstitutionality, it was unnecessary to fully consider the claims under the ECHR, the judge said.
