Report on Mandatory Sentences - Law Reform Commission

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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. 124
introduce this reform. 139 It notes that the establishment of a statutory Parole Board would have the benefit of enhancing the consistency and transparency of sentencing outcomes in murder cases. The specification of a recommended minimum term by a sentencing court (as recommended by the Commission in this <strong>Report</strong>) would, in turn, assist the proposed statutory Parole Board in performing its functions. 3.86 The Commission recommends that the Parole Board be established on an independent statutory basis, and welcomes the Government’s proposal to introduce legislation bringing about this effect. 139 See: Dáil Debates, Written Answers - Parole Board, 18 April 2012, Vol 761, No 3. 125
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REPORT MANDATORY SENTENCES (LRC 108
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MEMBERSHIP The Law Reform Commissio
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ADMINISTRATION STAFF Head of Admini
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ACKNOWLEDGEMENTS The Commission wou
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TABLE OF CONTENTS TABLE OF LEGISLAT
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CHAPTER 5 (1) Presumptive Minimum S
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Pg N o . Criminal Code Act 1899 (Ql
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Pg N o . Misuse of Drugs Act 1971 c
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TABLE OF CASES Pg N o . Attorney Ge
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Pg N o . The People (DPP) v Barry T
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Pg N o . The People (DPP) v Kelly C
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INTRODUCTION A Background: Request
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sentences for offences committed wh
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1 CHAPTER 1 CONCEPTUAL FRAMEWORK FO
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from loss of liberty is clearly evi
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3. Criminal conduct will, in genera
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1.19 In the context of preventing f
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and vocational programmes. 39 Suppo
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standards, recognising that these m
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he lost his post, pension and pay-r
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(i) Identifying the range of applic
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1.58 In general, however, the court
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Thus, depending on the presence of
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matters. She lost interest in study
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of the person who must pay it. In t
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(9) Whether the offence was committ
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e put through the additional suffer
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(1) The Problem of a Lack of Struct
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conviction that restricted employme
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and to hold public seminars on matt
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A mechanism based on measures being
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since 1996; and (iii) information i
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which captured adverse public atten
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compromise which failed to achieve
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2.16 It may be recalled that the ma
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y law and applicable in all cases w
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ody under Article 5(4). As the Secr
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irrespective of whether the sentenc
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2.45 In Attorney General for Northe
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five years. This was made permanent
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penalty or suspending it for an exp
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protection from those with murderou
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an application for release under Ar
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2.87 The Supreme Court upheld the d
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independent judicial body which wou
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whether the life prisoner poses a c
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offences became extremely unpopular
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Page 100 and 101: 2.124 The Crime (Sentences) Act 199
Page 102 and 103: and suppliers. 300 It was proposed
Page 104 and 105: Bill which would, among other matte
Page 106 and 107: (2) Mandatory Sentences for Firearm
Page 108 and 109: (b) England and Wales 2.154 In 2002
Page 110 and 111: filtered into the public domain. Th
Page 112 and 113: now applied to a range of drug and
Page 114 and 115: D Historical Evolution of Mandatory
Page 116 and 117: supervision should be liable to one
Page 118 and 119: “These are unduly weak provisions
Page 120 and 121: offender is being sentenced for any
Page 122 and 123: 2.208 Section 24 of the 2007 Bill p
Page 124 and 125: proportionality and judicial discre
Page 126 and 127: 2.220 The Commission notes that an
Page 128 and 129: the Prison Rules 2007. 5 This mecha
Page 130 and 131: the case of a prisoner serving a ma
Page 132 and 133: e released. These recommendations w
Page 134 and 135: considers that the seriousness of t
Page 136 and 137: then adjusted to reflect the aggrav
Page 138 and 139: 3.37 In three jurisdictions (the No
Page 140 and 141: (8) Summary 3.43 From this survey,
Page 142 and 143: (b) The Principle of Proportionalit
Page 144 and 145: equirements of Article 5(1) were sa
Page 146 and 147: cannot reflect these variations in
Page 151 and 152: 4 CHAPTER 4 PRESUMPTIVE MINIMUM SEN
Page 153 and 154: (b) Importation 4.08 The first elem
Page 155 and 156: creates a risk of arbitrary and unj
Page 157 and 158: This permits the court to presume,
Page 159 and 160: should apply. Thus, it has been not
Page 161 and 162: injury. 66 An admission voluntarily
Page 163 and 164: 4.44 Section 27(3D)(c)(i) provides
Page 165 and 166: (4) Drug Mules 4.52 The Commission
Page 167 and 168: used, and (b) a vehicle the means o
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Page 173 and 174: endanger life or cause serious dama
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Page 177 and 178: offensive weapon or an article with
Page 179 and 180: 4.117 Minimum sentences are also pr
Page 181 and 182: identity theft; 257 (v) certain gan
Page 183 and 184: examinations; 282 (xv) stalking in
Page 185 and 186: in Schedule I or Schedule II to the
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Page 189 and 190: of age. 355 Second, the following o
Page 191 and 192: ecent years, it would appear that t
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Page 195 and 196: to commit an indictable offence. 41
Page 197 and 198: 4.183 Section 297 of the Criminal C
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offences. aims. It is arguable, how
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analysis suggested, among other thi
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4.210 Third, the Commission observe
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4.224 In Chapter 1, the Commission
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eneficial” response to other form
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while under the age of 18 years, bu
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C Mandatory Sentence for a Second o
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institution. For the purposes of th
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5.37 Subject to certain conditions,
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operates retrospectively in so far
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the perpetrator has a previous conv
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(iv) Federal Government 5.58 At fed
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(f) Australia 5.65 Certain Australi
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coerced the offender to commit the
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5.79 Division 2A of the Criminal La
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would be manifestly unjust. If the
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deterrent effect of mandatory sente
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treat dissimilar cases differently.
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and have therefore been discussed,
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6 CHAPTER 6 SUMMARY OF RECOMMENDATI
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