Report on Mandatory Sentences - Law Reform Commission

whether the life prisoner poses a continuing danger to society. As the Stafford judgment makes
clear, the determination of both questions should in principle be in the hands of an independent
body, following procedures containing the necessary judicial safeguards, and not of an executive
authority.” 229
2.104 In sum, therefore, it would appear from Kafkaris that the Irish approach to the life sentence is
broadly consonant with the principles of the European Convention on Human Rights. Like the Supreme
Court, the European Court of Human Rights distinguished between countries, such as the United
Kingdom, which had a tariff system and countries, such as Cyprus and Ireland, which did not. It
emphasised that in the absence of a discernible trend amongst Member States, it was still within the
margin of appreciation of each Member State to decide on the system to be adopted in respect of life
sentences. This system must still be within the bounds of the Convention, however. The Court stated
that a mandatory life sentence would not in itself give rise to issues under Article 3, provided that there
was a de facto and de jure possibility of release. And, in respect of Article 5(1), it stated that where a
mandatory life sentence was concerned, there was a sufficient causal connection between the conviction
for murder and the continued detention. The position regarding Article 5(4) is, however, less clear.
2.105 Even in the absence of a definitive ruling regarding Article 5(4), a number of observations may be
made. As noted at paragraph 2.15, the general purpose of Article 5 is to prevent arbitrariness. In this
regard, the position of the European Court of Human Rights is to query the absence of: (i) any judicial
involvement in determining the actual length of the term to be served in prison; and (ii) any involvement
by a body independent of the Executive in the release decision.
C
Historical Evolution of Presumptive Minimum Sentences
2.106 Certain sentencing provisions prescribe a minimum sentence subject to exceptions in specified
circumstances. In Ireland, there are two examples of this type of provision. One provides the penalty for
certain offences under the Misuse of Drugs Act 1977 and the other provides the penalty for certain
offences under the Firearms Acts. In this section, the Commission considers the historical evolution of
this type of mandatory sentence, primarily, as it applies to drugs and firearms offences. It would appear
that the modern practice of prescribing mandatory sentences for drugs and firearms offences originated in
the United States of America and, in turn, influenced sentencing practices in England and Wales, and
Ireland.
(1) Mandatory Sentences for Drugs Offences
(a)
United States of America
2.107 Drug addiction became a significant issue for legislative consideration in the United States of
America at the turn of the 20 th century. 230 There were a number of reasons for this. First, as morphine
had been freely dispensed to the wounded during the Civil War, there were now thousands of veterans,
along with members of their families and friends, who had become addicted to the drug. Second, the
practice of smoking opium, which had been popular among Chinese immigrants who had been employed
to help build the American railroads, had spread beyond the Chinese population. Third, it had been
discovered that heroin, which had been introduced as a cure for morphine addiction in 1898, caused even
greater problems than morphine. Fourth, opium and cocaine had been common ingredients in many
patented medicines and sodas which were marketed widely throughout the United States prior to the
1900s.
2.108 By the early 20 th century, drug addiction had become a widespread problem. 231 This led to the
enactment of federal laws aimed at controlling the drug problem. Over time, the federal response to the
229
230
231
Kafkaris v Cyprus (2009) 49 EHRR 35, concurring opinion of Judge Bratza (at paragraph O-I8).
Quinn and McLaughlin “The Evolution of Federal Drug Control Legislation” (1972-1973) 22 Cath U L Rev 586
at 588.
Ibid at 589.
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