Report on Mandatory Sentences - Law Reform Commission

equirements of Article 5(1) were satisfied by the original trial and appeal proceedings 119 or whether a
review was required. 120
3.61 It should be noted, however, that since its decision in Kafkaris the ECtHR appears to have
modified its position regarding the compatibility of the mandatory life sentence with Article 3. In Vinter,
Bamber and Moore v United Kingdom, 121 the Court indicated that a mandatory life sentence without the
possibility of parole might in itself give rise to an issue under Article 3 where it was considered to be
grossly disproportionate. It noted, however, that “gross disproportionality” was a strict test which would
rarely be met. This modified position appears to coincide with the recognition by the Court of a trend
away from the mandatory life sentence among the Council of Europe Member States. In Kafkaris, the
Court indicated that in the absence of a discernible trend amongst Member States it was within the
margin of appreciation of each Member State to decide on the system it adopted in respect of life
sentences. The Court thus concluded that it was acceptable for a Member State such as Cyprus to
operate a mandatory life sentence without parole. By contrast, in Vinter, the Court observed that the
trend in Europe was “clearly against” the mandatory life sentence without parole. While the Court did not
conclude that it was no longer acceptable for a Member State to operate a mandatory life sentence
without parole, the inference is that if the current tide against the mandatory life sentence continues the
Court might develop further the test of “gross disproportionality.”
3.62 Nevertheless, as the law currently stands, it would appear that the system comprising a
mandatory life sentence and early release is, in general terms, compatible both with the Constitution of
Ireland and with the European Convention on Human Rights (ECHR). (As discussed above at
paragraphs 2.101 to 2.104, this is subject to continuing uncertainty as to whether Article 5(4) of the ECHR
entitles prisoners serving wholly punitive life sentences to regular reviews of their detention by an
independent, court-like body.) In light of the Attorney General’s request, however, there remains the
question of whether the current system should be retained, repealed or reformed. Accordingly, the
Commission now turns to the arguments that may be made in favour of each of these options. In doing
so, it first discusses the mandatory life sentence itself. The Commission then discusses related matters
that arise in the context of the arrangements for early release and the extent to which this aspect of the
system might be reformed.
(a)
The Mandatory Life Sentence for Murder
3.63 The Commission acknowledges that a variety of arguments exist in favour of both the retention
and the abolition of the mandatory life sentence for murder. During the public consultation and
roundtable discussion which the Commission conducted after the publication of the Consultation Paper, a
range of contrasting views were expressed in relation to the persuasiveness of these arguments.
Similarly, within the Commission itself, differing views have emerged as to which set of arguments carries
greater weight.
3.64 In this section, the Commission first outlines the arguments in favour of retaining the
mandatory life sentence for murder. These arguments are considered to be persuasive by a majority of
the Commission, President Quirke and Commissioners Baker and Flanagan. The arguments in favour of
replacing the mandatory life sentence for murder with a discretionary life sentence are then outlined in
turn. These arguments are considered to be persuasive by a minority of the Commission,
Commissioners O’Connell and O’Malley.
(i)
Arguments in favour of retaining the mandatory life sentence for murder
3.65 In the first place, as observed by the Supreme Court in Whelan and Lynch v Minister for
Justice, Equality and Law Reform:
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Wynne v United Kingdom (1995) 19 EHRR 333.
Stafford v United Kingdom (2002) 35 EHRR 32.
European Court of Human Rights 17 January 2012 (Application Nos 66069/09, 130/10 and 1396/10).
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