Report on Mandatory Sentences - Law Reform Commission

case if the sentencing judge were permitted to recommend a minimum term to be served by an offender
convicted of murder.
3.57 As with the principle of consistency, the Commission considers that full compliance with the
principle of proportionality requires that any exacting standard that applies to sentencing should also
apply to early release. Arguably, a more proportionate approach is taken in respect of early release than
in respect of the sentence for murder in so far as the Parole Board and the Minister for Justice consider
the individual circumstances of each case. In much the same way as with the principle of consistency,
this may be jeopardised where, for instance, the Parole Board and the Minister for Justice are: (i) dealing
with a case in which the sentence has been imposed following the application of a disproportionate
approach, or (ii) influenced by external events. Such external events might include adverse media
attention surrounding the circumstances of a particular case or intervening changes in policy. As
discussed below at paragraphs 3.77 to 3.84, this risk may be minimised if the Minister for Justice and the
Parole Board were to receive guidance from the sentencing judge in the form of a recommended
minimum term to be served by the relevant offender.
(3) Discussion
3.58 In Chapter 2, the Commission observed that the system comprising the mandatory life sentence
and early release mechanisms has been considered by the Irish courts and the European Court of
Human Rights.
3.59 The constitutionality of the mandatory life sentence was upheld by the Supreme Court in Whelan
and Lynch v Minister for Justice, Equality and Law Reform. 115 Regarding section 2 of the Criminal Justice
Act 1990, the Supreme Court held that it was not contrary to the constitutional doctrine of the separation
of powers for the Oireachtas to prescribe a mandatory sentence for certain offences provided that there
was a rational connection between the prescribed sentence and the requirements of justice. It also held
that although murder could be committed in a variety of circumstances, it was not contrary to the
constitutional principle of proportionality for the Oireachtas to prescribe a mandatory life sentence for all
murders as any murder, even at the lowest end of the scale, is so abhorrent and offensive to society that
it merits a life sentence. 116 The Court also held that a constitutional interpretation of section 2 of the 1990
Act did not require the sentencing courts to make a non-binding recommendation regarding the minimum
term to be served by an offender before he or she became eligible for release. It did not, however, reject
the possibility that the Oireachtas could introduce such a system. Regarding temporary release, the
Supreme Court held that the Minister’s power to grant temporary release was not contrary to the
constitutional doctrine of the separation of powers as the granting of temporary release was not a
sentencing exercise. 117
3.60 The compatibility of a mandatory sentencing system with the European Convention on Human
Rights was upheld by the European Court of Human Rights (ECtHR) in Kafkaris v Cyprus. 118 Regarding
the mandatory life sentence, the Court ruled that a mandatory life sentence would not in itself give rise to
an issue under Article 3 provided that there was a de facto and de jure possibility of release. It also held
that prolonged detention under an entirely punitive life sentence, irrespective of considerations of risk or
dangerousness, was compatible with Article 5(1) as there was a clear and sufficient causal connection
between the conviction and the continued detention. The Court refrained from ruling on a complaint
under Article 5(4), which might have clarified whether, in the case of a mandatory life sentence, the
115
116
117
118
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2008] 2 IR 142; [2012] 1 IR 1.
See also the decision of the High Court in Nascimento v Minister for Justice, Equality and Law Reform [2007]
IEHC 358; [2011] 1 IR 1, discussed at paragraphs 2.79 to 2.85 above.
See also the Supreme Court decision in Caffrey v Governor of Portlaoise Prison [2012] IESC 4; and the High
Court decision in Nascimento v Minister for Justice, Equality and Law Reform [2007] IEHC 358; [2011] 1 IR 1.
Kafkaris v Cyprus (2009) 49 EHRR 35.
119