Report on Mandatory Sentences - Law Reform Commission

life sentences was incompatible with Article 5(1) 204 and Article 5(4). 205 They argued that the manner in
which the Minister, on the advice of the Parole Board, could grant temporary release amounted to a
sentencing exercise on the part of the Executive contrary to Article 5(1). They further argued that they
had been denied an appropriate mechanism to have their continued detention reviewed on a regular and
frequent periodic basis in breach of Article 5(4). 206
2.92 Addressing the Article 5(1) submission, the Supreme Court reiterated that the power of the
Minister to grant temporary release was an executive function rather than a sentencing exercise. The life
sentence subsisted notwithstanding the grant of temporary release which was, in any case, subject to
conditions. Thus, the prisoner might be required to continue serving the life sentence if good and
sufficient reason, such as a breach of the temporary release conditions, was found to exist. Citing the
European Court of Human Rights decision in Kafkaris v Cyprus, 207 the Supreme Court observed that for
detention to be lawful, Article 5(1) required that there be a causal connection between the conviction and
the deprivation of liberty. In Kafkaris, the European Court had found that a causal connection existed
between a conviction for murder and a mandatory life sentence which was wholly punitive. 208 Such a
connection would not exist where the punitive part of a life sentence which was comprised of both a
punitive part and a preventative part had been served, and the prisoner remained in custody under the
preventative part. As life sentences in Ireland were wholly punitive, the Supreme Court ruled that a
causal connection existed between a conviction for murder and the mandatory life sentence. The
Supreme Court thus dismissed the appellants’ Article 5(1) submission.
2.93 Regarding Article 5(4), the Supreme Court accepted that the European Court of Human Rights
had ruled that in certain circumstances persons in custody and serving life sentences were entitled to
regular reviews of their sentences by a court-like body. It observed, however, that much of the case law
of the European Court of Human Rights related to the United Kingdom system of sentencing which was
different to the Irish system. In the United Kingdom, life sentences contained two parts. The first part of
the sentence, the punitive or tariff part, was fixed to reflect the punishment of the offender for the offence.
The second part of the sentence, the preventative part (which was served after the first part had been
served) was calculated having regard to the risk that an offender might pose to the public if released. The
European Court of Human Rights had held that under Article 5(4), a prisoner was entitled to have the
preventative part of his or her detention regularly reviewed to assess whether he or she posed (or
continued to pose) such a risk. As life sentences in Ireland were “wholly punitive”, the Supreme Court
held that Article 5(4) was not applicable to prisoners serving life sentences in Ireland. The Supreme
Court thus dismissed the appellants’ Article 5(4) submission.
2.94 The applicants’ third submission relied on Article 6 of the European Convention on Human
Rights. The appellants asserted that the role of the Parole Board and the process whereby the Minister
considered the continued detention of an offender serving a mandatory life sentence contravened their
rights under Article 6(1). 209 They argued that such continued detention should only be decided by an
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Article 5(1): Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty
save in the following cases and in accordance with a procedure prescribed by law: a) the lawful detention of a
person after conviction by a competent court...
Article 5(4): Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the
detention is not lawful.
This echoes the view taken by the Irish Human Rights Commission in its <strong>Report</strong> into the Determination of Life
Sentences (IHRC, 2006) at 3.
Kafkaris v Cyprus (2009) 49 EHRR 35.
Ibid at paragraph 121.
Article 6(1) of the European Convention on Human Rights: [I]n the determination of his civil rights and
obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a
reasonable time by an independent and impartial tribunal established by law...
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