Report on Mandatory Sentences - Law Reform Commission

he lost his post, pension and pay-related social insurance rights and became ineligible to work in a similar
post for a period of 7 years.
1.41 Both the High Court and the Supreme Court found section 34 to be unconstitutional. The High
Court (Barr J) held that the penalties imposed by section 34 were patently unfair and capricious in nature
and that they amounted to an unreasonable and unjustified interference with the personal rights of the
plaintiff. The Supreme Court observed that the State was entitled to impose onerous and far-reaching
penalties for offences threatening the peace and security of the State but that it must, as far as
practicable, protect the constitutional rights of the citizen. It found that the State had failed in this regard
as the provisions of section 34 were “impermissibly wide and indiscriminate”. The mandatory penalties
contained in section 34 applied to all scheduled offences which included less serious offences and
offences of the utmost gravity. Furthermore, there was no way to escape the mandatory penalties even if
a person could show that his or her intention or motive in committing the offence bore no relation to
considerations of the peace and security of the State.
1.42 More recently, in Whelan and Lynch v Minister for Justice, Equality and Law Reform, 68 the
Supreme Court applied the Heaney proportionality test to section 2 of the Criminal Justice Act 1990 which
imposes a mandatory life sentence for murder. Confirming that the Oireachtas was empowered to enact
legislation setting mandatory penalties, Murray CJ observed that such legislation might be
unconstitutional if “there was no rational relationship between the penalty and the requirements of justice
with regard to the punishment of the offence specified”.
1.43 The decision in Cox may, however, be contrasted with the decision in Whelan and Lynch. In
Cox, the Supreme Court found that the mandatory provision concerned was impermissibly wide and
indiscriminate in so far as it applied to all scheduled offences without distinction as to their gravity. In
Whelan and Lynch, however, the Supreme Court rejected the appellants’ argument that the mandatory
provision concerned was unconstitutional in so far as it prevented the judge from exercising his or her
discretion to treat differently, different types of murder case. The unique nature of murder was found to
justify treating all cases of murder, irrespective of the degree of moral blameworthiness, in the same way.
1.44 As mandatory sentencing provisions have the potential to infringe the rights of the accused to a
greater extent than discretionary sentencing provisions, the Commission observes that the doctrine of
constitutional proportionality should be stringently applied to all mandatory sentencing provisions. The
doctrine of constitutional proportionality thus requires, first, that the mandatory sentencing provision
should be rationally connected to the objective it seeks to achieve and should not be arbitrary, unfair or
based on irrational considerations. Second, the mandatory provision should impair the rights of the
accused as little as possible. Third, there should be proportionality between the mandatory provision and
the right to trial in due course of law and the objective of the legislation.
(b)
Sentencing Proportionality
1.45 Proportionality in the context of sentencing operates quite differently from constitutional
proportionality. Here, proportionality requires that a sentence be proportionate to the gravity of the
offence and (as is generally accepted) the circumstances of the offender. 69 The Irish courts have
reaffirmed this aspect of proportionality on numerous occasions, including, as already discussed, in the
leading case on sentencing in Ireland, The People (Attorney General) v Poyning. 70 In The People
(Attorney General) v O’Driscoll, 71 for instance, the Court of Criminal Appeal stated:
“It is… the duty of the Courts to pass what are the appropriate sentences in each case having
regard to the particular circumstances of that case – not only in regard to the particular crime but
in regard to the particular criminal.” 72
68
69
70
71
72
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
O’Malley The Criminal Process (Roundhall, 2009) at paragraph 22.02.
The People (Attorney General) v Poyning [1972] IR 402, discussed at paragraph 1.10ff, above.
The People (Attorney General) v O’Driscoll (1972) 1 Frewen 351.
Ibid at 359.
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