Report on Mandatory Sentences - Law Reform Commission

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CHAPTER 2
HISTORICAL EVOLUTION OF MANDATORY SENTENCES
A
Introduction
2.01 In this Chapter, the Commission traces the historical evolution of the three types of mandatory
sentence discussed in this <strong>Report</strong>. Part B outlines the historical evolution of entirely mandatory
sentences (specifically, the mandatory life sentence for murder) in the United Kingdom and Ireland. In
Part C, the Commission discusses the development of presumptive and mandatory minimum sentences
for drugs and firearms offences in the United States of America, the United Kingdom and Ireland. Part D
considers the evolution of mandatory sentences for repeat offenders in the United States of America,
England and Wales, and Ireland. In Part E, the Commission draws a number of conclusions from the
manner in which these sentencing regimes developed.
B
Historical Evolution of Entirely Mandatory Sentences
2.02 An entirely mandatory sentence is a mandatory sentence that permits of no exceptions. In
Ireland, an entirely mandatory life sentence is prescribed for the offences of: (a) murder; 1 (b) the murder
of a designated person such as a member of An Garda Síochána; 2 and (c) treason. In this section, the
Commission considers the historical evolution of the mandatory life sentence for murder in Ireland in
comparison to contemporaneous developments in England and Wales.
(1) United Kingdom
(a)
(i)
England and Wales
Abolition of the Death Penalty
2.03 While capital punishment had been progressively abolished throughout the first half of the 19 th
century, section 2 of the Offences Against the Person Act 1861 retained the death penalty as the penalty
for murder. 3 Section 2 provided that “Upon every Conviction for Murder the Court shall pronounce the
Sentence of Death”. The provision applied to all persons convicted of murder but, in reality, the death
penalty was commuted to imprisonment or some other form of detention in most cases.
2.04 During the first half of the 20 th century, several statutes were enacted which further reduced the
circumstances in which the death penalty applied. 4 In 1908, the death penalty was abolished in respect
of children under 16 years of age 5 and in 1933 the statutory age limit was raised to 18 years. 6 In 1922,
the death penalty was abolished in respect of the killing of a baby by its mother 7 and in 1938 it was
abolished in respect of the killing of a one-year-old child. 8 There were also a number of high-profile cases
1
2
3
4
5
6
7
Section 2 of the Criminal Justice Act 1990. Section 10 of the International Criminal Court Act 2006 clarifies
that if genocide; a crime against humanity; a war crime; or an ancillary offence under the 2006 Act involves
murder, then a mandatory life sentence will apply.
Section 3 of the Criminal Justice Act 1990
See: O’Malley “Sentencing Murderers: The Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32ff for a
comprehensive account.
Dawtry “The Abolition of the Death Penalty in Britain” (1966) 6 Brit J Criminology 183 at 188.
Children and Young Persons Act 1908.
Children and Young Persons Act 1933.
Infanticide Act 1922.
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