Report on Mandatory Sentences - Law Reform Commission

however, in so far as it indicated that certain murder cases might be of such gravity (such as where the
victim was a child or a police officer acting in the course of his or her duty, or where a firearm was used)
that the punishment part should be approximately 20 years. 150 The High Court rejected the suggestion
that the starting point for the punishment part in most murder cases was 12 years. 151 In cases where the
offender had armed himself or herself with a sharp weapon, the High Court indicated that, in the absence
of exceptional circumstances, a starting point of 16 years would be more appropriate. 152
2.58 In Scotland, the responsibility for recommending the exercise of the royal prerogative of mercy is
devolved to Scottish Ministers by virtue of section 53 of the Scotland Act 1998. 153 The royal prerogative
of mercy has been superseded in many instances by statutory provisions. 154 The effect of a pardon is to
free the convicted person from the effects of the conviction, but it does not quash the conviction. 155
Pardons are only granted in exceptional circumstances where no other remedy is open to the convicted
person.
(2) Ireland
(a)
Abolition of the Death Penalty
2.59 Section 2 of the Offences Against the Person Act 1861 applied in Ireland when it was enacted
and was carried over into Irish law on the establishment of the State in 1922. As in England and Wales,
the death penalty applied to all persons convicted of murder but was commuted to imprisonment or some
other form of detention in many cases. In 1925, Annie Walsh became the last woman to be executed
when she and her nephew, Michael Talbot, were hanged for the murder of her elderly husband, Edward
Walsh. 156
2.60 From the 1930s onwards, mounting concern regarding the continued presence of the death
penalty on the statute books became evident in both Houses of the Oireachtas. 157 The 1937 Constitution
of Ireland, however, clearly envisaged the retention of the death penalty as it vested the power to
commute a sentence in the President, subject to the advice and consent of the Government. 158 In 1951,
Seán MacBride tabled a motion in the Dáil proposing that a Select Committee be appointed to examine
the desirability of abolishing the death penalty. 159 The motion was defeated. 160 In 1956, Professor
Stanford tabled a motion in the Seanad proposing that the Government consider abolishing the death
150
151
152
153
154
155
156
157
158
159
160
HM Advocate v Boyle and Others [2009] HCJAC 89 at paragraph 13; see also: Walker v HM Advocate 2002
SCCR 1036.
HM Advocate v Boyle and Others [2009] HCJAC 89 at paragraph 14.
Ibid at paragraph 17.
Governance of Britain - Review of the Executive Royal Prerogative Powers: Final <strong>Report</strong> (Ministry of Justice,
2009) at 17.
For example, section 3 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 empowers the
Secretary of State, on the advice of the Parole Board, to grant temporary release on compassionate grounds.
Sheehan and Dickson Criminal Procedure - Scottish Criminal Law and Practice Series (LexisNexis
Butterworths, 2 nd ed, 2003) at paragraph 443.
“You shall hang by the neck” Irish Independent 21 November 2009; and “British hangman’s price drop save
Free State a bit of capital” Irish Times 5 January 2012.
O’Malley “Sentencing Murderers: The Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32.
Article 13.6 of the Constitution.
O’Malley “Sentencing Murderers: The Case for Relocating Discretion” (1995) 5(1) ICLJ 31 at 32. See: Dáil
Debates, Private Members’ Business Abolition of Capital Punishment Motion, 21 November 1951, Vol 127;
Dáil Debates, Private Members’ Business Abolition of Capital Punishment Motion, 5 December 1951, Vol 128;
and Dáil Debates, Private Members’ Business Abolition of Capital Punishment Motion, 30 January 1952, Vol
129.
Dáil Debates, Private Members’ Business, Abolition of Capital Punishment Motion, 30 January 1952, Vol 129.
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