Report on Mandatory Sentences - Law Reform Commission

“[i]n committing the crime of murder the perpetrator deprives the victim, finally and irrevocably, of
that most fundamental of rights, the right ‘to be’ and at the same time extinguishes the enjoyment
of all other rights inherent in that person as a human being.” 122
For this reason, the offence has long “been regarded as the ultimate crime against society as a whole”. 123
3.66 Murder is the most serious criminal offence and it is therefore appropriate that it should attract
the most severe sanction permissible under Irish law. As discussed at paragraph 2.218 since the
abolition of the death penalty by the Criminal Justice Act 1990, life imprisonment fits this mould. It is
arguable that only this, the most punitive of available penalties, serves to denounce murder as the most
heinous offence under Irish law.
3.67 This is not to deny that murder may be committed in a variety of circumstances and that some
offenders may be more culpable than others. However, as acknowledged by the Supreme Court in
Whelan and Lynch, it remains the case that “the crime itself, by its very nature, has always been
considered at the highest level of gravity among all forms of homicide or other crimes against the person,
whatever the circumstances”. 124 It may thus be argued that murder, even in its least culpable form, is so
repugnant to society that it merits the imposition of a mandatory life sentence. This was the view adopted
by the High Court and affirmed by the Supreme Court in Whelan and Lynch. In the High Court, Irvine J
notably concluded that “there can be nothing offensive in the Oireachtas promoting the respect for life by
concluding that any murder even at the lowest end of the scale, is so abhorrent and offensive to society
that it merits a mandatory life sentence... ”. 125 As discussed below at paragraphs 3.77 to 3.84, however,
differences in culpability could be reflected if the sentencing judge were permitted to recommend the
minimum term to be served by an offender convicted of murder.
3.68 A closely related argument is that the provision of a discretionary life sentence for murder
would fail to reflect the unique gravity of this form of homicide. At present, life imprisonment is the
discretionary maximum penalty for the offence of manslaughter. If both murder and manslaughter were
subject to the same penalty regime, it is considered that this would blur the distinction between these
offences. As murder alone involves the killing of a person arising from an intention to kill or cause
serious injury, it is considered that this should be differentiated by the application of a distinct penalty
regime.
3.69 A further argument in favour of retaining the mandatory life sentence for murder is that this
penalty facilitates the protection of the public against the risk of further violence on the part of a convicted
murderer. Although prisoners serving life sentences will rarely remain in prison for the rest of their natural
lives, the fact that they are serving life sentences means that their release is conditional on their good
behaviour (as discussed at paragraphs 3.06 and 3.07). 126 If released, these offenders remain at liberty
subject to the conditions of their temporary release under the Criminal Justice Act 1960, as amended by
the Criminal Justice (Temporary Release of Offenders) Act 2003. In addition, they are monitored by the
Probation Service of the Department of Justice and can be returned to prison if they breach the terms of
their temporary release. By contrast, an individual who has served a determinate sentence cannot, in the
event that he or she breaches the terms of their temporary release, be returned to prison on the basis of
the original conviction.
(ii)
Arguments in favour of repealing the mandatory life sentence for murder
3.70 In the first place, as not all murders are equally heinous, it is considered unjust that an identical
penalty should apply in every case. While some murderers may exhibit a level of appalling depravity or
sadism, the majority of these offences occur in an emotional context. As the mandatory life sentence
122
123
124
125
126
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34; [2012] 1 IR 1 at 18.
Ibid.
Ibid. at 19.
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2007] IEHC 374; [2008] 2 IR 142.
See: Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34; [2012] 1 IR 1 at 24-
26.
121