Report on Mandatory Sentences - Law Reform Commission

INTRODUCTION
A
Background: Request by the Attorney General on Mandatory Sentences
1. This <strong>Report</strong>, which follows the publication of the Commission’s Consultation Paper on Mandatory
Sentences, 1 arises from a request made to the Commission by the then Attorney General under section
4(2)(c) of the Law Reform Commission Act 1975 which requested the Commission:
“to examine and conduct research and, if appropriate, recommend reforms in the law of the State,
in relation to the circumstances in which it may be appropriate or beneficial to provide in
legislation for mandatory sentences for offences.”
2. As the Commission noted in the Consultation Paper, the Attorney General’s request is clearly
wide-ranging in scope. It requires the Commission, firstly, to determine the scope of the term “mandatory
sentences.” In addition, the Commission is requested to consider mandatory sentences in general terms,
although the Commission notes that existing legislation that already provides for mandatory sentences in
connection with specific offences provides a valuable reference point for the analysis required in
response to the request. The Commission’s third task is to assess whether provision in legislation for
such sentences is “appropriate and beneficial.” In order to reach conclusions on that aspect of the
Attorney General’s request, the Commission has examined the aims of criminal sanctions and relevant
sentencing principles in the State. The <strong>Report</strong> therefore begins in Chapter 1 with a discussion of those
aims and objectives before progressing to a detailed review of the existing legislation on mandatory
sentences.
B
Scope of the Attorney General’s Request: “Sentences,” “Offences” and General
Principles of Sentencing
3. The first matter addressed by the Commission in preparing this <strong>Report</strong> was to determine the
scope of the term “sentences” in the Attorney General’s request. In this respect, the Commission
considers that it is important to note that the Oireachtas, the Judiciary and the Executive each play a role
in the sentencing process defined in a broad sense. The Oireachtas, which has the sole and exclusive
law-making authority in the State, 2 is primarily responsible for the creation and definition of criminal
offences through enacted legislation. It also specifies the relevant sentence, which usually consists of
setting out a maximum sentence for an offence, but in some instances it also sets out a mandatory
sentence (notably, life imprisonment for murder) or a presumptive sentence (that is, a mandatory
sentence to be applied save in exceptional circumstances). The Judiciary is responsible for the
determination, based on the aims of the criminal justice system and relevant sentencing principles, of the
specific sentence to be imposed in a particular case, unless the offence carries a mandatory sentence.
The Executive is responsible for the implementation of sentences imposed and this includes the exercise
of statutory powers to commute or remit any sentence imposed by the courts and to grant temporary
release to prisoners (which broadly corresponds to a parole system).
4. The term “sentence” has also been given a narrow or a broad interpretation in terms of the
sanctioning outcome or outcomes envisaged. Thus, section 1(1) of the Transfer of Sentenced Persons
Act 1995 defines “sentence” narrowly to mean “sentence of imprisonment.” This may be contrasted with,
for example, section 106 of the Criminal Justice Act 2006, which defines “sentence” to include not just a
sentence of imprisonment but also other orders of the court made on conviction, such as a restriction on
movement order. This therefore envisages that a “sentence” covers both custodial and non-custodial
sanctions; indeed, it is notable that section 99 of the Criminal Justice Act 2006 regulates the noncustodial
suspended sentence. Other important non-custodial sentences include community service
orders and fines. An even wider concept of “sentence” would include a probation order made by the
District Court under the Probation of Offenders Act 1907 (one of the most commonly-used sanctions in
1
2
Consultation Paper on Mandatory Sentences (LRC CP 66-2011). This is referred to as the Consultation
Paper in the remainder of this <strong>Report</strong>.
Article 15.2.1° of the Constitution of Ireland.
1