Report on Mandatory Sentences - Law Reform Commission

protection from those with murderous intent is the statutory protection we can afford them by way
of a penalty with deterrent effect. Three, the security situation which exists in this country where
there are armed subversive groups operating which represent a particular threat to our
democratic institutions. Four, very heavy maximum penalties are already prescribed for the types
of crimes which might give rise to the circumstances where a Garda’s life is put in danger. For
example, the maximum penalty for armed robbery is life imprisonment. An ordinary sentence of
life imprisonment for the murder of a Garda is very unlikely, therefore, to have any deterrent
effect on an armed robber who is trying to evade capture. Five, what has for many years past
been effectively the penalty for capital offences, namely, 40 years imprisonment.” 180
2.67 In addition, the Criminal Justice Act 1990 limits the power to grant early release to offenders
convicted of such murders. It precludes the possibility of commuting or remitting the sentence until the
minimum period has expired. 181 However, it permits the grant of standard remission for good behaviour
under the Prison Rules. 182 Thus, the minimum period ordered to be served might be reduced by onefourth.
It also permits a limited form of temporary release for “grave reasons of a humanitarian nature”. 183
2.68 The enactment of the 1990 Act “was widely viewed as having brought the debate on sentencing
for murder to a satisfactory conclusion”. 184 However, it was inevitable in some ways that there would be
some public disquiet surrounding the fact that the penalty for murder would no longer be equal to the
offence in fact or in effect. As Hardiman J noted in The People (DPP) v Kelly, 185 a manslaughter case:
“In cases where there has been a death and especially a death caused by an intentional as
opposed to negligent act, unhappiness with the sentence is often expressed in the reflection that
even the longest sentence will end at some point, probably while the defendant is still quite
young, whereas the suffering and deprivation of the deceased person’s family will be permanent.
This is very sadly true. But it ignores the fact that under our present sentencing regime,
sentences must be proportionate not only to the crime but to the individual offender.” 186
In its 1996 <strong>Report</strong>, 187 the Constitution Review Group recommended that the Constitution should be
amended so as to preclude the possibility of the death penalty ever being re-introduced. In 2001 the
Constitution was amended at Article 15.5.2 to impose a constitutional ban on the death penalty. 188
(b)
(i)
Constitutionality
Constitutionality of the Mandatory Life Sentence
2.69 The constitutionality of section 2 of the Criminal Justice Act 1990 was upheld by the Supreme
Court in Whelan and Lynch v Minister for Justice, Equality and Law Reform. 189 The appellants argued
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Dáil Debates, Criminal Justice (No 2) Bill 1990, Committee and Final Stages, 12 June 1990, Vol 339, No 10,
page 22, Minister for Justice.
Section 5(1) of the Criminal Justice Act 1990.
Section 5(2) of the Criminal Justice Act 1990.
Section 5(3) of the Criminal Justice Act 1990. See: Dáil Debates, Criminal Justice (No 2) Bill 1990,
Committee and Final Stages, 12 June 1990, Vol 339, No 10, page 22, Minister for Justice.
O’Malley “Sentencing Murderers: The Case for Relocating Discretion” (1995) 5(1) ICLJ 31. In its <strong>Report</strong> on
Sentencing (LRC 53-1996) at Recommendation 12, and in its <strong>Report</strong> on Homicide: Murder and Involuntary
Manslaughter (LRC 87-2008) at paragraph 1.67, the Law Reform Commission recommended the abolition of
the mandatory life sentence for murder.
The People (DPP) v Kelly [2005] 1 ILRM 19.
Ibid at 29-30. Hardiman J cites The State (Healy) v Donoghue [1976] IR 325; The People (Attorney General)
v O’Driscoll (1972) 1 Frewen 351; and The People (DPP) v M [1994] 3 IR 306 in relation to rehabilitation.
<strong>Report</strong> of the Constitution Review Group (Dublin Stationery Office, 1996).
Article 15.5.2° provides: “The Oireachtas shall not enact any law providing for the imposition of the death
penalty.”
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