Report on Mandatory Sentences - Law Reform Commission

process. In particular, consideration of the nature and gravity of the offence engages the Parole Board
and the Minister for Justice in a process that closely resembles a sentencing exercise. 136 This is an
unavoidable consequence because the Parole Board and the Minister for Justice should not be blind in
their analysis to the seriousness of the particular offender’s offence or to the severity of the sentence that
he or she is serving. The concerns that this overlaps with considerations that are more appropriate to the
sentencing process might be alleviated if the Parole Board and the Minister for Justice were to receive
guidance from the sentencing judge in the form of a recommended minimum term to be served by the
particular offender.
3.82 The second problem relates to the possibility that external events may influence the Minister
for Justice or the Parole Board in their consideration of a case for early release. As discussed at
paragraph 3.51, it is arguable that a more consistent and proportionate approach is taken in respect of
the granting of early release than in respect of sentencing for murder. This is because the Parole Board
and the Minister for Justice: (i) consider each case against broadly the same factors, namely, those listed
at paragraphs 3.11 and 3.12 (thereby facilitating consistency), and (ii) have regard to the individual
circumstances of each case under consideration (thereby facilitating proportionality). This approach may
be jeopardised, however, where 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 an inconsistent and/or
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
sentencing or early release policy. The Commission considers, however, that this risk would be reduced
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 offender.
3.83 The Commission has concluded, therefore, that it would be “appropriate and beneficial” to
permit sentencing courts to recommend a minimum term to be served by an offender convicted of
murder. As noted at paragraph 3.05, Article 13.6 of the Constitution provides that the power to commute
or remit punishment imposed by any court is vested in the President but may also be conferred by law on
other authorities. This was done in the Criminal Justice Act 1951, which confers the right to remit a
sentence on the Government. 137 For this reason, any judicial indication at sentencing that an offender
sentenced to life imprisonment should serve a minimum term is subject to the power of remission of the
Executive under Article 13.6 and therefore would constitute a recommendation only that the offender
serve such term. The Commission considers that this proposed reform would complement its earlier
recommendation that a Judicial Council be empowered to provide guidance on sentencing. It is
suggested that, together, these changes would serve to enhance consistency and proportionality in the
Irish sentencing process.
3.84 The Commission recommends that where an offender is convicted of murder, and is therefore
sentenced to life imprisonment, legislation should provide that the judge may recommend a minimum
term to be served by the offender.
(c)
The establishment of the Parole Board on an independent statutory basis
3.85 As discussed above at paragraphs 2.101 to 2.104, it may be questioned whether the
mandatory life sentence for murder and the accompanying early release arrangements comply with
Article 5(4) of the European Convention on Human Rights (ECHR). The case-law of the European Court
of Human Rights has not addressed the question of whether Article 5(4) entitles prisoners serving wholly
punitive life sentences to regular reviews of their detention by an independent, court-like body. For this
reason, in Whelan and Lynch v Minister for Justice, Equality and Law Reform, 138 the Supreme Court held
that the non-statutory, advisory nature of the Parole Board does not necessarily conflict with the
requirements of Article 5 ECHR. The Commission considers, however, that the establishment of the
Parole Board on a statutory basis is desirable and welcomes the Government’s stated intention to
136
137
138
O’Malley Sentencing - Towards a Coherent System (Round Hall, 2011) at 222.
O’Malley Sentencing Law and Practice (Thomson Round Hall, 2 nd ed, 2006) at 540.
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34; [2012] 1 IR 1.
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