Report on Mandatory Sentences - Law Reform Commission

(b)
Judicial recommendation at sentencing stage
3.77 The Commission now turns to consider how the mandatory sentencing regime for murder
could be reformed by the introduction of a judicial power to recommend a minimum term to be served.
3.78 As discussed at paragraph 3.15ff, in Northern Ireland, a mandatory life sentence for murder is
prescribed by section 1(1) of the Northern Ireland (Emergency Provisions) Act 1973. Article 5 of the Life
Sentences (Northern Ireland) Order 2001 requires that where a court imposes a life sentence, it must
specify the minimum period that must be served by the offender “to satisfy the requirements of retribution
and deterrence,” before he or she becomes eligible for parole. 129 Where the offence is particularly
serious, the court may order a “whole life tariff” if it considers that the offender should be detained for the
remainder of his or her natural life. 130 In calculating the minimum term to be served by an offender, the
Northern Ireland Court of Appeal, in R v Candless, 131 directed the courts to have regard to the guidance
provided by Lord Woolf LJ in his 2002 Practice Statement (Crime: Life Sentences). The Practice
Statement (as discussed at paragraph 3.18) sets out the starting points, and the circumstances in which
each starting point applies, and also outlines the factors which tend to aggravate or mitigate the duration
of the minimum term.
3.79 As discussed at paragraph 2.12, in England and Wales, section 1(1) of the Murder (Abolition of
the Death Penalty) Act 1965 provides for a mandatory life sentence for murder. Under section 269 of the
Criminal Justice Act 2003, a court is required, when imposing a life sentence, to make an order specifying
the minimum term to be served by the offender before he or she may be considered for release by the
Parole Board. 132 Where the court is of the opinion that, because of the seriousness of the offence, no
such order should be made, it must order that the early release provisions are not to apply to the
offender. 133 As to how to calculate a minimum term, Schedule 21 of the Criminal Justice Act 2003 (as
discussed at paragraph 3.23ff) sets out the starting points, the circumstances which dictate which starting
point applies, and the factors which tend to aggravate or mitigate the duration of the minimum term. The
Commission considers that the approach adopted in Northern Ireland is preferable to the more
prescriptive legislative model established in England and Wales, under which the appropriate starting
points are specified by the Criminal Justice Act 2003.
3.80 In the view of the Commission, the Northern Irish experience illustrates the benefits of
permitting sentencing courts to pronounce on the relative culpability of convicted murderers. Cases such
as R v Howell 134 and R v Stewart 135 (discussed above at paragraphs 3.19 and 3.20) demonstrate that this
approach enables the courts to incorporate elements of the principles of proportionality and consistency
when sentencing the offence of murder. Furthermore, where courts are afforded scope to acknowledge
the various aggravating and mitigating factors which may characterise murder cases, this plays an
important role in maintaining public confidence in the sentencing process.
3.81 The Commission also considers that permitting sentencing courts to pronounce on the relative
culpability of convicted murderers may reduce two problems associated with the current early release
arrangements for murder. The first problem relates to the factors considered by the Parole Board and
the Minister for Justice in assessing whether an offender is suitable for release. As discussed at
paragraph 3.13, in performing this role, the Parole Board and the Minister for Justice take into account a
number of factors that are comparable, though not identical, to those considered in the sentencing
129
130
131
132
133
134
135
Article 5(1) and Article 5(2) of the Life Sentences (Northern Ireland) Order 2001.
Article 5(3) of the Life Sentences (Northern Ireland) Order 2001.
R v Candless [2004] NI 269.
Section 269(1) and Section 269(2) of the Criminal Justice Act 2003.
Section 269(4) of the Criminal Justice Act 2003.
R v Howell [2010] NICC 48.
R v Stewart [2011] NICC 10.
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