The Irish Supreme Court has found that legislation withdrawing payment of the State pension to prisoners is unconstitutional.
The appellant, who had made sufficient contributions to render him eligible for what was then known as the contributory old age pension, now called the State Pension Contributory (SPC), began receiving his pension in 2006. In 2011, he was convicted of serious criminal offences, with an expected release date of 2020. The appellant contended that without his State pension, he did not have sufficient money for items from the prison tuck shop, such as coffee, clothes or electrical items.
The Court stated that the withdrawal of the State pension had become a fact of imprisonment, affecting some prisoners in a more severe way than others in receipt of private pensions, or other pensions, emanating from the State, such as Army pensions. Differentiating between ‘primary’ and ‘secondary’ punishments, it noted that the sanction comes into effect without any court order or exercise of judicial discretion, and as such was “arbitrary and discriminatory, operating without any proportionality consideration.” The Court was of the view that the prohibition on the payment could only constitute an additional punishment that contravened the separation of powers by removing it from the domain of court proceedings.
The Court did not engage in full consideration of rights under the European Convention on Human Rights given divergent judgements that did not inform its decision any further.
The Court did add, however, that their determination did not necessarily have the result that prisoners should receive their full benefit during incarceration. The Court set down that going forward a sentencing court will be able to consider future social welfare payments as a source of compensation under the statutory scheme for making compensation orders to benefit victims of crime. The situation for the appellant was said to be more complex given that he is currently serving a sentence which had already been finalised by the court.
The Court adjourned the case to allow the parties make submissions as to the order that should be made, particularly in light of a possible legislative solution.
Click here to read the judgment in P v Minister for Social Protection