Report on Mandatory Sentences - Law Reform Commission

2.87 The Supreme Court upheld the decision of the High Court that the Minister’s power to grant
temporary release did not offend the Constitution. Citing a number of precedents, the Supreme Court
confirmed that the power to grant temporary release rested exclusively with the Executive. It emphasised
that the grant of temporary release was not an indication that the punitive part of the life sentence had
been served. It was, instead, the grant of a privilege which was subject to conditions such as an
obligation to keep the peace and observe the law. As the mandatory life sentence subsisted for life,
temporary release could be terminated at any stage of the prisoner’s life for good and sufficient reason,
such as a breach of the temporary release conditions. The Supreme Court thus concluded:
(c)
(i)
“In all these circumstances the Court does not consider that there is anything in the system of
temporary release which affects the punitive nature or character of a life sentence imposed
pursuant to s. 2. In particular a decision to grant discretionary temporary release does not
constitute a termination let alone a determination of the sentence judicially imposed. Any release
of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of
a privilege in the exercise of an autonomous discretionary power vested in the executive
exclusively in accordance with the constitutional doctrine of the separation of powers.” 199
European Convention on Human Rights
Irish Case Law
2.88 In Whelan and Lynch v Minister for Justice, Equality and Law Reform, 200 the plaintiffs also sought
a declaration 201 that the Irish system of imposing mandatory life sentences for murder was incompatible
with the European Convention on Human Rights on three grounds.
2.89 Their first submission relied on Article 3 of the European Convention on Human Rights which
provides that no one shall be subjected to torture or to inhuman or degrading treatment or punishment.
They argued that section 2 of the 1990 Act was incompatible with Article 3 in so far as it imposed a
mandatory life sentence for all murder convictions. They further argued that they had been subjected to
inhuman and degrading treatment in so far as they knew that they would probably be released at some
point during their lives but had no way of assessing how or when that release would occur.
2.90 In response, the Supreme Court cited the European Court of Human Rights decision of Kafkaris v
Cyprus 202 and observed that:
“(a) a mandatory life sentence imposed in accordance with law as punishment for an offence is
not in itself prohibited by or incompatible with any Article of the Convention and,
(b) will not offend against Article 3 of the Convention ‘when national law affords the possibility of
review of a life sentence with a view to its commutation, remission, termination or conditional
release of the prisoner’ and,
(c) this requirement may be met even if that prospect of release is limited to the exercise of an
executive discretion.” 203
Since the Irish system of imposing mandatory life sentences carried with it a prospect of release in the
form of an executive discretion, namely, temporary release, the Supreme Court dismissed the appellants’
Article 3 submission.
2.91 The applicants’ second submission relied on Article 5 of the European Convention on Human
Rights. The appellants asserted that the role of the Parole Board and the exercise of the Minister of his
power to commute or remit sentence or to direct the temporary release of prisoners serving mandatory
199
200
201
202
203
[2012] 1 IR 1 at 26.
[2007] IEHC 374, [2008] 2 IR 142; [2010] IESC 34, [2012] 1 IR 1.
Pursuant to section 5(1) of the European Convention on Human Rights Act 2003.
Kafkaris v Cyprus (2009) 49 EHRR 35, at paragraphs 98-99.
Whelan and Lynch v Minister for Justice, Equality and Law Reform [2010] IESC 34, [2012] 1 IR 1 at 32.
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