Report on Mandatory Sentences - Law Reform Commission

The risk of the person failing to return to prison upon expiration of any period of temporary
release;
The conduct of the person while in custody or while previously on temporary release (whether
under the system operated before or after the coming into force of the 2003 Act);
Any report of, or recommendation made by -
(i) a prison governor or person for the time being performing the functions of governor,
(ii) the Garda Síochána,
(iii) a probation and welfare officer, or
(iv) any other person whom the Minister considers would be of assistance in enabling the
Minister to make a decision as to whether to grant temporary release to the person concerned;
The risk of the person committing an offence during any period of temporary release;
The risk of the person failing to comply with any conditions attaching to his temporary release;
and
The likelihood that any period of temporary release might accelerate the person’s reintegration
into society or improve his prospects of obtaining employment.
3.13 It can be seen that the Parole Board and the Minister for Justice both take into account a number
of factors that are similar, though not identical, to those considered by the judge in the sentencing
process. In particular, consideration by the Parole Board and the Minister of the nature and gravity of the
offence resemble factors at issue in the sentencing process. 27 While the objective of their analysis is to
determine whether and when it would be appropriate to release a particular prisoner, where a mandatory
life sentence is concerned a consequence of that analysis is that the Minister determines how long that
prisoner should remain in prison. This is an unavoidable consequence because the Parole Board and the
Minister for Justice should not be blind in their analysis to the seriousness of the particular offender’s
offence or to the severity of the sentence that he or she is serving. The concerns that this overlaps with
considerations that are more appropriate to the judicial sentencing process will be addressed at
paragraphs 3.77 to 3.84 below.
C
Comparative Analysis
3.14 In this section, the Commission considers how the mandatory life sentence in Ireland compares
with the approach taken by other common law countries. As a preliminary observation, it may be noted
that in each of these countries there is some version of the prerogative of mercy whereby the Executive,
in rare circumstances, may grant the prisoner early release.
(1) Northern Ireland
3.15 As discussed in Chapter 2, section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973
provides for a mandatory life sentence for murder. The 2000 <strong>Report</strong> on the Review of the Criminal
Justice System in Northern Ireland 28 recommended that, in relation to all indeterminate sentence cases,
including mandatory life sentence cases, sentencing judges should be required to set a period for
retribution and deterrence (along the lines already in place in England and Wales, discussed below). The
<strong>Report</strong> considered that in most cases the period would be a fixed term of years, although it also
envisaged that some offences might be so serious that a whole life period would be appropriate. The
<strong>Report</strong> recommended that the period would be announced in court and would be subject to appeal in the
usual way. The <strong>Report</strong> also recommended that once this period had been served, it would be the
responsibility of an independent body to determine, primarily on grounds of risk, when the prisoner should
27
28
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 222.
<strong>Report</strong> on the Review of the Criminal Justice System in Northern Ireland (Northern Ireland Office, 2000), at
paragraph 12.56. The 2000 <strong>Report</strong> comprised a wide-ranging review of the criminal justice system in the
wake of the 1998 Belfast Agreements.
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