Report on Mandatory Sentences - Law Reform Commission

no further conditions in respect of his release. The Minister refused the applicant’s transfer request on
the ground that the 25-year sentence was not appropriate given the gravity of the crime.
2.80 The applicant sought an order of certiorari quashing the Minister’s decision to refuse his transfer
request and a declaration that the refusal was ultra vires. He argued that once the conditions set out in
section 4(3) of the Transfer of Sentenced Persons Act 1995 were met, the Minister was obliged to effect a
transfer. He further argued that the effect of the Minister’s decision was to prevent any transfer, unless
there was equivalence of sentence, and this was ultra vires his powers under section 4. The applicant
also sought declarations that the decision regarding the length of sentence required was properly a
judicial decision, and that section 2 of the Criminal Justice Act 1990 was unconstitutional, in that it
contravened the doctrine of proportionality, and (or alternatively) that it was incompatible with section 5 of
the European Convention on Human Rights Act 2003. Furthermore, the applicant submitted that the
Minister’s decision was unreasonable, given that 25 years was the maximum sentence under Portuguese
law and was longer than the sentence that would be served by most prisoners convicted of murder in
Ireland. He also argued that a more rigorous test of anxious scrutiny should apply because of the human
rights issues involved, including the applicant’s right of access to his family.
2.81 In refusing the reliefs sought, the High Court (Dunne J) made a number of findings which are
relevant to the issue of sentencing. First, it held that the power to release a prisoner through a system of
temporary or early release was an executive function that did not involve the determination of sentence.
The exercise of this power was subject to supervision by the courts, which would only intervene if it could
be established that it was being exercised in a capricious, arbitrary or unjust manner.
2.82 Second, the Minister’s discretion under section 4 of the 1995 Act could not be exercised without
regard to the function of the executive to give effect to sentences imposed by the judiciary. In considering
the converted sentence, the Minister could look to its effect to see if it met that obligation and, in doing so,
he was not determining sentence contrary to the doctrine of separation of powers as he was not making a
decision in relation to the length of time to be served by the applicant in custody.
2.83 Third, section 2 of the Criminal Justice Act 1990 was not unconstitutional. The doctrine of
proportionality did not curtail the right of the Oireachtas to prescribe a mandatory sentence in respect of
the offence of murder, which was of the utmost gravity. It was open to the Oireachtas to prescribe a
sentence that recognised the gravity of the offence and in doing so, the Oireachtas properly balanced the
competing rights involved, namely, the right to life of the victim, society’s need for a sentence that
reflected that murder was the gravest crime, and the rights of the person convicted. Due regard was had
by the Oireachtas to the doctrine of proportionality in only prescribing a mandatory sentence in the most
serious case of wrongful killing.
2.84 Fourth, the concept of a mandatory life sentence was not incompatible with the European
Convention on Human Rights. A life sentence imposed on a person convicted of murder in Ireland was
one imposed by the court and prescribed by the Oireachtas and was not a sentence determined by the
Minister. The sentence did not comprise a punishment part and a preventative part which would operate
after the expiry of a fixed tariff.
2.85 Finally, a challenge to the regime by which temporary release was granted to those serving life
sentences did not come within the scope of section 5 of the European Convention on Human Rights Act
2003 as what was at issue was the exercise of a discretion, not a statutory provision or rule of law.
(ii)
Constitutionality of Temporary Release
2.86 In Whelan and Lynch v Minister for Justice, Equality and Law Reform, 198 the appellants
challenged the constitutionality of the Executive’s power to grant temporary release. They argued that
the Minister’s power to grant temporary release to prisoners serving life sentences amounted to a
sentencing exercise as it determined the actual length of imprisonment. This, they asserted, was
incompatible with the constitutional doctrine of the separation of powers.
198
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 142, [2012] 1 IR 1.
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