Report on Mandatory Sentences - Law Reform Commission

e released. These recommendations were implemented in the Life Sentences (Northern Ireland) Order
2001. In the parliamentary debates on the 2001 Order, 29 it was noted that in this respect the 2000 <strong>Report</strong>
endorsed the conclusions of a review of Northern Ireland prisons legislation conducted by the UK
Government in anticipation of the coming into effect of the UK Human Rights Act 1998. The review
concluded that the existing procedures for discretionary life sentence prisoners and those sentenced to
detention at the Secretary of State’s pleasure could be deemed inconsistent with the requirements of the
European Convention on Human Rights (ECHR). The procedures were based on advice on the suitability
of the prisoner for release being given to the Secretary of State by the Life Sentence Review Board, a
non-statutory body consisting largely of senior officials of the Northern Ireland Office (NIO). It was
considered that compliance with the ECHR would require that, once the punitive element of the sentence
had been completed, each prisoner should have his or her case reviewed periodically by a judicial body.
To have judicial character, the body would need to be independent of the Executive (and of the parties
concerned); impartial; and able to give a legally binding direction regarding the prisoner’s release. These
considerations are reflected in the 2001 Order.
3.16 Article 5(1) of the Life Sentences (Northern Ireland) Order 2001 provides that where a court
imposes a life sentence, it must, unless the case falls within Article 5(3), specify the minimum period that
must be served by the offender before he or she becomes eligible for parole. Article 5(2) provides that
the minimum period specified under Article 5(1) is intended “to satisfy the requirements of retribution and
deterrence having regard to the seriousness of the offence, or of the combination of the offence and one
or more offences associated with it.” Article 5(3) of the 2001 Order provides that where the offence
warranting the life sentence is particularly serious, the court may order that no minimum period is
specified at sentencing. The effect of an order under Article 5(3) is that the offender is subject to a “whole
life tariff” and is ordered to be detained for the remainder of his or her natural life. Such whole life tariffs
are rare. 30
3.17 Where a minimum period is specified, since 2001 the question as to whether the offender is to be
released on parole is a matter for the Parole Commissioners for Northern Ireland, who are an
independent body appointed by the Northern Ireland Department of Justice. 31 Where the Parole
Commissioners determine that the offender may be released on licence, they must make an order to that
effect subject to such conditions as they deem appropriate. These conditions attach to the offender for
the rest of his or her life, and the offender may be recalled to prison where the conditions are breached.
While the formal order of release is made by the Northern Ireland Department of Justice, 32 the decision of
the Parole Commissioners to release an offender on licence must be complied with by the Department.
3.18 As to how a sentencing judge is to calculate a minimum term under Article 5(1) of the 2001
Order, the Northern Ireland Court of Appeal in R v Candless 33 held that the courts are to have regard to
the guidance provided in the English 2002 Practice Statement (Crime: Life Sentences). 34 The 2002
Practice Statement issued by the English Lord Chief Justice sets out the starting points and the
circumstances in which each starting point applies. The starting points range from the “normal starting
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34
See Hansard HL Deb, 12 July 2001, c1215.
In R v Hamilton [2008] NICA 27, a whole life tariff had been imposed on the defendant by the trial judge but
this was overturned by the Northern Ireland Court of Appeal, which substituted a 35 year minimum period
before he could be considered for parole.
The Parole Commissioners for Northern Ireland were established under the Criminal Justice (Northern Ireland)
Order 2008 and replaced the Life Sentence Review Commissioners who had been established under the Life
Sentences (Northern Ireland) Order 2001.
Life Sentences (Northern Ireland) Order 2001, as amended by the Northern Ireland Act 1998 (Devolution of
Policing and Justice Functions) Order 2010, which transferred the relevant functions from the Secretary of
State for Northern Ireland to the Northern Ireland Department of Justice.
R v Candless [2004] NI 269 at 274-275.
Practice Statement (Crime: Life Sentences) [2002] 3 All ER 412 at 413-415; [2002] 1 WLR 1789 at 1790-1792.
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