Report on Mandatory Sentences - Law Reform Commission

discretionary power which may be exercised in favour of prisoners at any time before they qualify for
standard remission and prisoners serving life sentences (who, as noted at paragraph 3.05, are not eligible
for standard remission). Although it was originally envisaged that temporary release would be granted for
short periods for compassionate reasons or to facilitate integration, temporary release also came to
function as an early release mechanism for those serving life sentences. 15 Prisoners serving life
sentences who are granted temporary release are released for a certain number of years and, unless
they breach their release conditions or commit a further offence, can expect to remain at large
indefinitely. 16
3.07 There is thus an important distinction to be drawn between early release prisoners who are
serving life sentences and early release prisoners who are serving determinate sentences. Prisoners
serving life sentences are generally considered for early release under the “temporary release”
mechanism. As a result, a life sentence prisoner who has been granted early release may expect to be
recalled to prison if he or she breaches the conditions of the release or commits a further offence. By
contrast, prisoners serving determinate sentences are generally considered for release under the
“standard remission” mechanism which causes the final fourth of the sentence (or, as the case may be,
the final third of the sentence) to expire. As a result, a determinate sentence prisoner who has been
granted early release is free from recall.
(b)
The Parole Board
3.08 In 2001 the Minister for Justice, Equality and Law Reform established the non-statutory Parole
Board to review the cases of prisoners serving long-term sentences and to provide advice in relation to
the administration of those sentences. 17 The Parole Board may only review cases which have been
referred to it by the Minister and which generally concern prisoners serving sentences of 8 years or more.
Prisoners serving mandatory life sentences for ordinary murder may be referred to the Parole Board but
not prisoners serving sentences for certain offences such as murder contrary to section 3 of the Criminal
Justice Act 1990. 18
3.09 The Parole Board advises the Minister for Justice by way of recommendation as to whether the
prisoner should be released. 19 These recommendations may be accepted or rejected in whole or in part
by the Minister for Justice with whom the final decision regarding release lies. 20 As discussed at
paragraphs 2.101 to 2.104, it is uncertain whether this arrangement is compatible with Article 5(4) of the
European Convention on Human Rights. In the absence of a relevant decision of the European Court of
Human Rights or the Irish High Court or Supreme Court (who interpret the law in light of the European
Convention on Human Rights), it remains unclear whether Article 5(4) entitles those serving wholly
punitive life sentences to regular reviews of their detention by an independent, court-like body. If such a
review is required, it would appear that the operation of the Parole Board does not satisfy this
requirement because it is not independent of the Executive.
3.10 In general, cases are reviewed at the half-way stage of the sentence or after 7 years, whichever
comes first. The Commission notes, however, that while the Parole Board has formally indicated that it
will review detention after 7 years, in 2004 the then Minister for Justice stated that he would not consider
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20
O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl
Smith and Dunkel, eds, Release from Prison: European Policy and Practice (Willan Publishing, 2010) at 9.
O’Malley “The Ends of Sentence: Imprisonment and Early Release Decisions in Ireland” in Padfield, van Zyl
Smith and Dunkel, eds, Release from Prison: European Policy and Practice (Willan Publishing, 2010) at 10.
Annual <strong>Report</strong> 2011 (Parole Board, 2012) at 6.
See: Department of Justice and Equality “Life Sentences”. Available at:
http://justice.ie/en/JELR/Pages/Life_sentences [Last accessed: 22 May 2013].
Annual <strong>Report</strong> 2011 (Parole Board, 2012) at 6.
See: Department of Justice and Equality “Parole Board”. Available at:
http://justice.ie/en/JELR/Pages/Parole_Board [Last accessed: 22 May 2013].
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