Report on Mandatory Sentences - Law Reform Commission

cannot reflect these variations in culpability, it is difficult to reconcile this penalty regime with the principles
of consistency and proportionality in sentencing.
3.71 A related argument is that if judges had sentencing discretion for both murder and
manslaughter, sentencing practice could reflect the fact that some instances of murder are very close to
voluntary manslaughter in terms of culpability. 127 The Supreme Court noted in The People (DPP) v
Conroy (No. 2) that:
“[h]aving regard to the multiple factors which enter into consideration of sentence in the case of a
homicide, there would not appear to... be any grounds for a general presumption that the crime of
manslaughter may not, having regard to its individual facts and particular circumstances be in
many instances, from a sentencing point of view, as serious as, or more serious than, the crime of
murder.” 128
3.72 The provision of sentencing discretion for both murder and manslaughter would also offset the
possibility that juries may, in some instances, feel tempted to acquit some killers of murder and convict
them of manslaughter in order to spare the offender the application of the mandatory life sentence.
3.73 It would not necessarily follow, however, that the substitution of a discretionary life sentence for
the mandatory life sentence would erode the distinction between murder and manslaughter as the
elements of these homicide offences would remain the same notwithstanding any reform of the applicable
punishments.
3.74 A further argument against the retention of the mandatory life sentence is that there is a lack of
clarity regarding the consequences of this penalty. While the sentence endures for life in the sense that a
released murderer may be recalled to prison for breaching his or her conditions of temporary release, the
term ‘life sentence’ is nonetheless misleading. This term suggests that the offender will spend the
remainder of his or her life in prison. However, in practice, the sentence specified in court bears no
relationship to the punishment which a convicted murderer will undergo. The pronouncement of this
penalty therefore provides no meaningful information to the offender, the victim’s family, the media or the
public as to what the sentence really means. As those convicted of murder do not in reality receive the
same penalty, the argument that there is only one appropriate punishment for this offence is also
problematic.
3.75 Finally, if the mandatory life sentence for murder were replaced with a discretionary life
sentence, a convicted murderer could still be subjected to ‘life-long’ post-release conditions. An offender
who receives a discretionary life sentence is also eligible to be recalled to prison, in the event that he or
she breaches the conditions attached to temporary release. In this respect, a discretionary life sentence
for murder would afford just as much protection to the public as a mandatory life sentence.
3.76 The Commission, by a majority, recommends that the mandatory life sentence for murder be
retained.
127
128
See, for example, the Commission’s <strong>Report</strong> on Homicide: Murder and Involuntary Manslaughter (LRC 87-
2008) at paragraph 3.68ff. There, the Commission noted that where, for example, a person sets fire to or
shoots at an occupied building and the building’s occupants die, this is likely to result in a murder conviction.
However, if the accused persuades the jury that he or she genuinely (that is, from his or her subjective
perspective) did not intend to kill or seriously injure but only to frighten the occupants, a verdict of voluntary
manslaughter could also be reached (at paragraph 3.18). There followed a discussion of whether, to deal with
such borderline cases, murder should also be defined to include “recklessness” comprising “extreme
indifference to the value of human life.” The Commission acknowledged that this proposed change to the
definition of murder had elicited mixed views among consultees, and that a number of practitioners suggested
that it could lead to a lack of clarity regarding the elements of the offence of murder (at paragraph 3.23ff). This
discussion in the 2008 <strong>Report</strong> indicates that it may be difficult to find complete consensus as to where a
precise line can be drawn between murder and manslaughter.
The People (DPP) v Conroy (No. 2) [1989] IR 161 at 163.
122