Report on Mandatory Sentences - Law Reform Commission

that section 2 offended the constitutional doctrine of the separation of powers as it amounted to a
sentencing exercise on the part of the Oireachtas in so far as it mandated that a life sentence be imposed
for murder. In addition they argued that the imposition of a mandatory life sentence in every murder case
offended the constitutional principle of proportionality as it deprived the trial judge of discretion as to the
sentence to be imposed.
2.70 Addressing the separation of powers argument, the Supreme Court upheld the decision of the
High Court that it was constitutionally permissible for the Oireachtas to specify the maximum, minimum or
mandatory sentence to be imposed following conviction. Citing Deaton v Attorney General, 190 the
Supreme Court held that:
“[T]he Oireachtas in the exercise of its legislative powers may choose in particular cases to
impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation
which imposed a fixed penalty could not have its compatibility with the Constitution called in
question if there was no rational relationship between the penalty and the requirements of justice
with regard to the punishment of the offence specified.” 191 [Emphasis added.]
2.71 Regarding the proportionality argument, the Supreme Court conceded that the crime of murder
could be committed in a “myriad of circumstances” and that the “degree of blameworthiness [would] vary
accordingly”. It nevertheless upheld the decision of the High Court that the Oireachtas was entitled to
promote respect for life by concluding that any murder, even at the lowest end of the scale, was so
abhorrent and offensive to society that it merited a mandatory life sentence. In this regard, the Supreme
Court observed that the “sanctity of human life and its protection [was] fundamental to the rule of law in
any society”. Murder was thus a crime of profound and exceptional gravity:
“In committing the crime of murder the perpetrator deprives the victim, finally and irrevocably, of
that most fundamental of rights, the right ‘to be’ and at the same time extinguishes the enjoyment
of all other rights inherent in that person as a human being. By its very nature it has been
regarded as the ultimate crime against society as a whole. It is also a crime which may have
exceptional irrevocable consequences of a devastating nature for the family of the victim.” 192
2.72 As an alternative to the constitutionality argument, the appellants argued that section 2 of the
1990 Act should be given an interpretation that would accord with the Constitution. They asserted that
such an interpretation would require the sentencing court to make a non-binding recommendation as to
the minimum term to be served by the offender before he or she would become eligible for temporary
release.
2.73 The Supreme Court rejected this argument to the extent that it was asserted that such an
interpretation was required by the Constitution. However, it did not reject outright the potential benefits
and possibility of introducing such a system:
“Whether the making of any such recommendation would have some advantages from a policy
point of view is not obviously a matter for the Court but such a process would not change the
existing position in principle.” 193
2.74 Thus, while it might be outside the jurisdiction of the Supreme Court to introduce a system
whereby the sentencing court would be encouraged or required to recommend a minimum term to be
served by an offender convicted of murder, it would not, it seems, be outside the jurisdiction of the
Oireachtas.
2.75 The view of the Supreme Court was supported by two recent decisions. In Caffrey v Governor of
Portlaoise Prison, 194 the Supreme Court considered an appeal against a High Court decision 195 to refuse
189
190
191
192
193
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
Deaton v Attorney General [1963] IR 170.
Whelan and Lynch v Minister for Justice Equality and Law Reform [2012] 1 IR 1; [2010] IESC 34
Ibid.
Ibid.
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