Report on Mandatory Sentences - Law Reform Commission

an application for release under Article 40.4.4° of the Constitution. In 2005, the appellant had been
transferred to Ireland to serve the remainder of a mandatory life sentence for murder which had been
imposed on him in England in 1999. The trial judge had recommended that the appellant should serve a
minimum term of 12 years for the purposes of punishment and deterrence, before being considered for
parole. The position in England was that imprisonment beyond the point at which the minimum term
expired could only be justified if it was preventative detention. As the minimum term had expired in March
2010, the appellant argued that his continued detention in Ireland had no legal basis as preventative
detention was not permitted in Ireland.
2.76 The Supreme Court began by considering section 7 of the Transfer of Sentenced Persons
(Amendment) Act 1997 and, in particular, what was meant by the “legal nature” of a sentence. Section
7(1) stated that a reference to the legal nature of a sentence did not include a reference to the duration of
such a sentence. The Supreme Court thus observed that it was necessary to consider the nature of a
sentence and not merely its duration.
2.77 The Supreme Court stated that the nature of the sentence in issue was imprisonment for life,
which meant that even when a person was released from prison the sentence continued to exist. It
indicated that the English system of setting tariffs related to the management of life sentences and thus
did not affect the nature of the life sentence. Once the appellant was transferred to Ireland, the
management of his sentence became the responsibility of the Irish authorities and was governed by Irish
law. As a result, the English system of setting tariffs and the 12-year tariff in the particular case were no
longer relevant.
2.78 In a dissenting judgment, 196 Fennelly J formulated the core legal issue as being whether the
“legal nature” of the life sentence was confined to its duration or whether it extended to include the fact
that the trial judge had imposed a minimum tariff of 12 years, the balance of the sentence being justified
solely by preventative considerations relating to public protection. Fennelly J observed that:
“The expression legal nature is one of the [sic] broad import. It is clear and is common case that
it is distinct from the duration of the sentence. The fact that it is a life sentence relates to its
duration, not its nature. It seems clear, beyond any doubt or argument, that the sentence of life
imprisonment which was imposed on the appellant is comprised of two distinct elements wellestablished
and recognised in English law. There is a first period, 12 years in this case, called
the tariff, which was imposed by way of retribution and general deterrence. That is the punitive
element of the sentence. Following the expiry of the tariff period, a prisoner such as the appellant
is, when detained in England, serving a part of the sentence which is justified exclusively on
grounds of public protection, i.e. to prevent him from committing further crimes during the period
of detention.
That, it seems to me, relates to the ‘legal nature’ of the sentence...”
He thus concluded that there was no legal basis for the appellant’s continued imprisonment, which was
justified by reference to preventative considerations which were not recognised by Irish law.
2.79 In Nascimento v Minister for Justice, Equality and Law Reform, 197 the High Court considered an
application for judicial review. The applicant, a Portuguese national, had been convicted of murder and
received a mandatory life sentence under section 2 of the Criminal Justice Act 1990. He had then applied
to the Minister to be transferred to Portugal, under the provisions of the Transfer of Sentenced Persons
Acts 1995 to 2006. There was no equivalent of a life sentence in Portugal and the Portuguese
authorities, in converting the sentence, proposed a sentence of 25 years’ imprisonment, the maximum
sentence permissible in Portugal. Following the expiry of this sentence, the applicant would be subject to
194
195
196
197
Caffrey v Governor of Portlaoise Prison [2012] IESC 4.
Caffrey v Governor of Portlaoise Prison [2010] IEHC 213.
Ibid.
Nascimento v Minister for Justice, Equality and Law Reform [2011] 1 IR 1.
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