REPORT

MANDATORY SENTENCES

 

 

 

 

 

 

 

 

(LRC 108 - 2013)

 

© Copyright

Law Reform Commission

 

FIRST PUBLISHED

June 2013

 

ISSN 1393-3132   

 


LAW REFORM COMMISSION’S ROLE

The Law Reform Commission is an independent statutory body established by the Law Reform Commission Act 1975. The Commission’s principal role is to keep the law under review and to make proposals for reform, in particular by recommending the enactment of legislation to clarify and modernise the law. Since it was established, the Commission has published over 180 documents (Working Papers, Consultation Papers and Reports) containing proposals for law reform and these are all available at www.lawreform.ie. Most of these proposals have led to reforming legislation.

 

The Commission’s law reform role is carried out primarily under a Programme of Law Reform. Its Third Programme of Law Reform was prepared by the Commission following broad consultation and discussion. In accordance with the 1975 Act, it was approved by the Government in December 2007 and placed before both Houses of the Oireachtas. The Commission is currently engaged in the preparation of a Fourth Programme of Law Reform. The Commission also works on specific matters referred to it by the Attorney General under the 1975 Act.

 

The Commission’s Access to Legislation project makes legislation more accessible online to the public. This includes the Legislation Directory (an electronically searchable index of amendments to Acts and statutory instruments), a selection of Revised Acts (Acts in their amended form rather than as enacted) and the Classified List of Legislation in Ireland (a list of Acts in force organised under 36 subject-matter headings)

 


Membership

Law Reform Commission consists of a President, one full-time Commissioner and three part-time Commissioners.

 

The Commissioners at present are:

 

President:

Mr. Justice John Quirke, Former Judge of the High Court

 

Full-time Commissioner:

Finola Flanagan, Barrister-at-Law

 

Part-time Commissioner:

Marie Baker, Senior Counsel

 

Part-time Commissioner:

Professor Donncha O’Connell

 

Part-time Commissioner:

  Thomas O’Malley, Barrister-at-Law

 


Law Reform Research Staff

Director of Research:

Raymond Byrne BCL, LLM (NUI), Barrister-at-Law

 

Legal Researchers:

Joseph Harrington LLB (Ling Franc) (Dub), BCL (Oxon), Barrister-at-Law

Colm Kitson BCL (NUI), LLM (QUB), Barrister-at-law

Kate McGovern LLB (Dub), LLM (Edin), Barrister-at-Law

  Emma Roche-Cagney BCL (Clinical) (NUI), LLM (NUI)

  Denise Roche BCL (Int.), Solicitor

 

ACCESS TO LEGISLATION RESEARCH STAFF

Project Manager:

Alma Clissmann BA (Mod), LLB, Dip Eur Law (Bruges), Solicitor

 

Assistant Project Manager:

[Vacant at time of writing]

 

Legal Researchers:

Aileen O’Leary BCL (NUI), LLM (NUI), AITI, Solicitor

Morgan Harris LLB (UKC), Barrister-at-Law

 


 

Administration Staff

Head of Administration:

Ciara Carberry

 

Executive Officer:

Deirdre Bell

 

Staff Officer:

Annmarie Cowley

 

Clerical Officers:

Ann Browne

 Joe Cooke

Liam Dargan

 

Legal Information Manager:

Órla Gillen, BA, MLIS

 

Principal legal researchers for this report

Tara Murphy BCL (Law with French Law), LLM (Essex), Barrister-at-Law

Emma Roche-Cagney BCL (Clinical) (NUI), LLM (NUI)

 

The Commission also wishes to thank legal research intern Lianne Meagher Reddy LLB, LLM (NUI) for her contribution to this Report. 


CONTACT DETAILS

Further information can be obtained from:

 

Head of Administration

Law Reform Commission

35-39 Shelbourne Road

Ballsbridge

Dublin 4

 

Telephone:

+353 1 637 7600

 

Fax:

+353 1 637 7601

 

Email:

info@lawreform.ie

 

Website:

www.lawreform.ie

 


ACKNOWLEDGEMENTS

The Commission would like to thank the following people who provided valuable assistance:

 

Ms Eileen Creedon, Chief State Solicitor

Mr Brian Davison

Ms Valerie Fallon, Department of Justice and Equality

Ms Áine Flynn, KOD/Lyons Solicitors

Ms Mary Rose Gearty, SC

Mr Liam Herrick, Director of Irish Penal Reform Trust

Ms Liz Howlin, Chief Prosecution Solicitor

Mr Richard Humphreys, SC

Ms Claire Loftus, Director of Public Prosecutions

Mr Justice Patrick McCarthy, Judge of the High Court

Mr Michael McDowell, SC

Dr Anthony McGrath

Ms Jane Mulcahy, Irish Penal Reform Trust

Ms Úna Ní Raifeartaigh, SC

Mr David O’Donovan

Mr Robert Purcell, M E Hanahoe Solicitors

Mr Luigi Rea, BL

Mr Dara Robinson, Sheehan and Partners Solicitors

Lord Justice Colman Treacy, Judge of the Court of Appeal of England and Wales and

Member of the Sentencing Council for England and Wales

Mr Justice Barry White, Judge of the High Court

 

 

Full responsibility for this publication lies, however, with the Commission.

 


TABLE OF CONTENTS

 

Introduction  1

A     Background:  Request by the Attorney General on Mandatory Sentences  1

B     Scope of the Attorney General’s Request:  “Sentences,” “Offences” and General Principles of Sentencing  1

C     Scope of the Attorney General’s Request:  “Mandatory Sentences” 2

D    Outline of the Report 3

CHAPTER 1                 conceptual framework for criminal sanctions and sentencing   5

A     Introduction  5

B     Overview of the Aims of the Criminal Justice System and Principles of Sentencing  5

C     Aims of the Criminal Justice System and Sanctions  11

(1)   Deterrence  11

(2)   Punishment 12

(3)   Reformation and Rehabilitation  12

(4)   Reparation  13

(5)   Incapacitation  13

(6)   Discussion  14

D    Principles of Sentencing and Justice  14

(1)   Consistency  14

(2)   Proportionality  16

(3)   Discussion  32

E     Towards a Principles-Based Structured Sentencing System   32

(1)   The Problem of a Lack of Structure and Inconsistent Approaches  33

(2)   Improved Structure and Greater Consistency in Sentencing  35

(3)   Conclusions and the Commission’s General Approach  40

(4)   Structured Sentencing in the Context of Mandatory and Presumptive Regimes  41

CHAPTER 2                 historical evolution of mandatory sentences  42

A     Introduction  42

B     Historical Evolution of Entirely Mandatory Sentences  42

(1)   United Kingdom   42

(2)   Ireland  58

C     Historical Evolution of Presumptive Minimum Sentences  69

(1)   Mandatory Sentences for Drugs Offences  69

(2)   Mandatory Sentences for Firearm Offences  81

D    Historical Evolution of Mandatory Sentences for Second or Subsequent Offences  89

(1)   United States  89

(2)   England and Wales  90

(3)   Ireland  95

CHAPTER 3                 entirely mandatory sentences  102

A     Introduction  102

B     The Mandatory Life Sentence for Murder 102

(1)   The Mandatory Life Sentence  102

(2)   The Mandatory Life Sentence and Temporary Release  102

C     Comparative Analysis  106

(1)   Northern Ireland  106

(2)   England and Wales  108

(3)   Scotland  111

(4)   Canada  111

(5)   Australia  112

(6)   New Zealand  114

(7)   United States of America  114

(8)   Summary  115

D    The Mandatory Life Sentence and the Conceptual Framework  115

(1)   The Mandatory Life Sentence and the Aims of Sentencing  115

(2)   The Mandatory Life Sentence and the Principles of Justice  116

(3)   Discussion  118

CHAPTER 4                 Presumptive minimum sentences  125

A     Introduction  125

B     Presumptive Minimum Sentences under the Misuse of Drugs Act 1977  125

(1)   Elements of the Offences  125

(2)   Penalties  131

(3)   Early Release  137

(4)   Drug Mules  138

C     Presumptive Minimum Sentences under the Firearms Acts  139

(1)   Elements of the Offences  139

(2)   Penalties  143

(3)   Early Release  146

D    Comparative Analysis  146

E     Presumptive Minimum Sentences an d the Conceptual Framework  172

(1)   Presumptive Minimum Sentences and the Aims of Sentencing  172

(2)   Presumptive Minimum Sentences and the Principles of Justice  176

(3)   Discussion  179

CHAPTER 5                 mandatory sentences for second or subsequent offences  182

A     Introduction  182

B     Presumptive Sentence for a Second or Subsequent Offence under the Criminal Justice Act 2007  182

(1)   Elements which Trigger the Presumptive Minimum Sentence  182

(2)   Penalty for Subsequent Scheduled Offence  184

(3)   Early Release  184

C     Mandatory Sentence for a Second or Subsequent Offence under the Misuse of Drugs Act 1977  185

(1)   Operation of the Mandatory Sentencing Regime under section 27(3F) of the Misuse of Drugs Act 1977  185

D    Mandatory Sentence for a Second or Subsequent Offence under the Firearms Acts  185

(1)   Operation of the Mandatory Sentencing Regime under the Firearms Acts  185

E     Comparative Analysis  186

F     Mandatory and Presumptive Sentences for Second or Subsequent Offences and the Conceptual Framework  204

(1)   Mandatory and Presumptive Sentences for Second or Subsequent Offences and the Aims of Sentencing  204

(2)   Mandatory Sentences for Second or Subsequent Offences and the Principles of Justice  206

(3)   Discussion  208

CHAPTER 6                 Summary of recommendations  211

 

 

TABLE OF LEGISLATION

 

 

 

Pg No.

Anti-Drug Abuse Act 1986

Pub. L. No. 99-

570

US

72

Bail Act 1997

No 16 of 1997

Irl

183

Baume's Law 1926

 

US

89

Boggs Act 1951

Ch 66, 65 Stat

767

US

70

Children and Young Persons Act 1908

c 67

UK

42

Children and Young Persons Act 1933

c 12

Eng

42

Competition Act 2002

No. 14 of 2002

Irl

8

Comprehensive Drug Abuse Prevention and Control

Act 1970

Pub. L. No. 91-

513

US

71

Controlled Drugs and Substances Act

SC 1996, c 19

Can

158

Controlled Substances Act

21 USC 841

US

195

Controlled Substances Import and Export Act

21 USC 960

US

195

Convention Rights (Compliance) Scotland Act 2001

2001 asp 7

Scot

57

Corrective Services Act 2006 (Qld)

No. 29 of 2006

Aus

114

Courts of Justice Act 1924

No 10 of 1924

Irl

18

Courts of Justice Act 1929

No 37 of 1929

Irl

129

Crime (Sentences) Act 1997

c 43

Eng

49

Crime and Punishment (Scotland) Act 1997

c 48

Scot

57

Crimes (Sentence Administration) Act 2005 (ACT)

No. 59 of 2005

Aus

113

Crimes (Sentencing Procedure) Act 1999 (NSW)

No 92 of 1999

Aus

37

Crimes (Sentencing Procedure) Amendment

(Standard Minimum Sentencing) Act 2002 (NSW)

No 90 of 2002

Aus

165

Crimes (Sentencing) Act 2005 (ACT)

No 58 of 2005

Aus

113

Crimes Act 1900 (ACT)

 

Aus

112

Crimes Act 1900 (NSW)

No 40 of 1900

Aus

112

Crimes Act 1914 (CW)

No 12 of 1914

Aus

37

Crimes Act 1958

No. 6231 of 1958

Vic

112

Crimes Amendment (Murder of Police Officers) Act

2011 (NSW)

No 20 of 2011

Aus

112

Criminal Appeal Act 1968

c 19

E,W,S

48

Criminal Assets Bureau Act 1996

No 31 of 1996

Irl

85

Criminal Code Act 1899 (Qld)

 

Aus

113

Criminal Code Act 1924 (Tas)

No 69 of 1924

Aus

112

Criminal Code Act 1995 (CW)

No 12 of 1995

Aus

112

Criminal Justice (Drug Trafficking) Act 1996

No 29 of 1996

Irl

77

Criminal Justice (Northern Ireland) Order 2008

No 1216 of 2008

(NI 1)

NI

56

Criminal Justice (Public Order) Act 1994

No 2 of 1994

Irl

88

Criminal Justice (Scotland) Act 2003

2003 asp 7

Scot

57

Criminal Justice (Temporary Release of Prisoners)

Act 2003

No 34 of 2003

Irl

103

Criminal Justice (Theft and Fraud Offences) Act

2001

No 50 of 2001

Irl

9

Criminal Justice Act (Northern Ireland) 1966

c 20

NI

55

Criminal Justice Act 1948

c 58

Eng

91

Criminal Justice Act 1951

No 2 of 1951

Irl

103

Criminal Justice Act 1960

No 27 of 1960

Irl

103

Criminal Justice Act 1964

No 5 of 1964

Irl

59

Criminal Justice Act 1967

c 80

Eng

91

Criminal Justice Act 1988

c 33

Eng

150

Criminal Justice Act 1990

No 16 of 1990

Irl

10

Criminal Justice Act 1991

c 53

Eng

73

Criminal Justice Act 1999

No 10 of 1999

Irl

30

Criminal Justice Act 2003

c 44

Eng

51

Criminal Justice Act 2006

No 26 of 2006

Irl

79

Criminal Justice Act 2007

No 29 of 2007

Irl

80

Criminal Justice and Licensing (Scotland) Act 2010

asp 13 of 2010

Scot

152

Criminal Law (Rape) (Amendment) Act 1990

No 32 of 1990

Irl

9

Criminal Law (Sentencing) Act 1988 (SA)

 

Aus

201

Criminal Law Act 1997

c 14

Irl

96

Criminal Law Amendment (Homicide) Act 2008

(WA)

No 29 of 2008

Aus

112

Criminal Law Consolidation Act 1935 (SA)

No 2252 of 1935

Aus

113

Criminal Procedure (Scotland) Act 1995

c 46

Scot

57

Criminal Reform Amendment Act (No 2) 2006 (NT)

No 34 of 2006

Aus

113

Defence Act 1954

No 18 of 1954

Irl

59

Domestic and Family Violence Act 2007 (NT)

No 34 of 2007

Aus

199

Drug Trafficking Act 1994

c 37

Eng

75

Euro Changeover (Amounts) Act 2001

No 16 of 2001

Irl

78

European Convention on Human Rights Act 2003

No 20 of 2003

Irl

64

Fair Sentencing Act 2010

Pub. L. No. 111-

220

US

73

Felony Firearm Law 1975 (Florida)

 

US

82

Felony Firearm Statute 1977 (Mich)

 

US

82

Firearms (Amendment) (Northern Ireland) Order

2005

No 1966 of 2005

(NI 16)

NI

146

Firearms (Northern Ireland) Order 1981

No 3267 of 1992

NI

147

Firearms (Northern Ireland) Order 2004

No 702 of 2004

(NI 3)

NI

146

Firearms Act 1925

No. 17 of 1925

Irl

3

Firearms Act 1964

No 1 of 1964

Irl

86

Firearms Act 1968

c 27

UK

84

Firearms and Offensive Weapons Act 1990

No 12 of 1990

Irl

86

Gun Control Act 1968

Pub. L. No. 90-

618

US

81

Habitual Criminals Act 1869

c 69

UK

90

Habitual Felony Offender Act (Alabama)

 

US

153

Harrison Act 1914

Ch 1, 38 Stat

785

US

70

Health and Safety etc at Work Act 1974

c 37

UK

27

Homicide Act 1957

c 11

UK

44

Human Rights Act 1998

c 42

UK

55

Human Rights Commission Act 2000

No 9 of 2000

Irl

98

Infanticide Act 1922

 c 18

UK

42

Infanticide Act 1938

c 36

Eng

42

International Criminal Court Act 2006

No. 30 of 2006

Irl

42

Legal Aid, Sentencing and Punishment of Offenders

Act 2012

c 10

UK

94

Life Sentences (Northern Ireland) Order 2001

No 2564 of 2001

(NI 2)

NI

55

Migration Act 1958 (CW)

No. 62 of 1958

Aus

165

Misuse of Drugs Act (NT)

 

Aus

168

Misuse of Drugs Act 1971

c 38

UK

75

Misuse of Drugs Act 1977

No 12 of 1977

Irl

10

Misuse of Drugs Act 1984

No 18 of 1984

Irl

76

Murder (Abolition of Death Penalty) Act 1965

c 71

UK

45

Narcotics Control Act 1956

Ch 629, s 103,

70 Stat 567

US

70

Non-Fatal Offences Against the Person Act 1997

No 26 of 1997

Irl

9

Northern Ireland (Emergency Provisions) Act 1973

c 53

NI

55

Northern Ireland Act 1998

c 48

UK

56

Northern Ireland Act 1998 (Devolution of Policing

and Justice Functions) Order 2010

No 976 of 2010

NI

56

Offences Against the Person Act 1861

c 100

Irl

9

Offences Against the State Act 1939

No 13 of 1939

Irl

16

Omnibus Anti-Drug Abuse Act 1988

 

US

72

Parole Act 2002

No 10 of 2002

NZ

114

Penal Servitude Act 1857

c 3

UK

90

Penal Servitude Act 1864

c 47

UK

90

Penalties and Sentences Act 1992 (Qld)

No 48 of 1992

Aus

37

Persistent Offender Accountability Act 1994

c 1

US

89

Powers of Criminal Courts (Sentencing) Act 2000

c 6

Eng

75

Powers of Criminal Courts Act 1973

c 62

Eng

92

Prevention of Crime Act 1908

c 59

UK

91

Prevention of Crime Act 1953

c 14

E,W,S

150

Prevention of Crimes Act 1871

c 112

UK

91

Prevention of Crimes Act 1879

c 55 (42 & 43

Vict)

UK

90

Prisoners and Criminal Proceedings (Scotland) Act

1993

c 9

Scot

57

Probation of Offenders Act 1907

7 Edw. 7. Ch.17

UK

2

Proceeds of Crime Act 1996

No 30 of 1996

Irl

77

Road Traffic Act 1961

No 24 of 1961

Irl

140

Safe Streets and Communities Act

SC 2012, c 1

Can

158

Safety, Health and Welfare at Work Act 1989

No 7 of 1989

Irl

26

Safety, Health and Welfare at Work Act 2005

No 10 of 2005

Irl

26

Scotland Act 1998

c 46

Scot

58

Sentencing (Amendment) Act 2007

No 27 of 2007

NZ

37

Sentencing Act 1991 (Vic)

No 49 of 1991

Aus

201

Sentencing Act 1995 (NT)

 

Aus

37

Sentencing Act 1995 (WA)

No 76 of 1995

Aus

37

Sentencing Act 1997 (Tas)

No 59 of 2007

Aus

113

Sentencing Act 2002

No 9 of 2002

NZ

37

Standing up for Victims of White Collar Crime Act

SC 2011, c 6

Can

164

Transfer of Sentenced Persons Act 1995

No 16 of 1995

Irl

1

Treason Act 1939

No 10 of 1939

Irl

59

Uniform Determinate Sentencing Act 1976

 

US

82

Violent Crime Reduction Act 2006

c 38

UK

146

 

 

 

 

TABLE OF CASES

 

 

 

Pg No.

Attorney General for Northern

Ireland v Gallagher

[1962] NI 122

NI

55

Caffrey v Governor of

Portlaoise  Prison

[2012] IESC 4

Irl

63

Cox v Ireland

[1992] 2 IR 503

Irl

16

Deaton v Attorney General

[1963] IR 170

Irl

62

DPP v Smith

[1961] AC 290

NI

55

Dunne v Judge Coughlan

High Court 25 April 2005

Irl

21

Heaney v Ireland

[1994] 3 IR 593

Irl

16

HM Advocate v Al Megrahi

High Court of Justiciary 24 November

2003

UK

111

HM Advocate v Boyle and

Others

[2009] HCJAC 89

UK

57

Hussain v United Kingdom

(1996) 22 EHRR 1

ECHR

48

In re the Employment Equality

Bill 1996

[1997] 2 IR 321

Irl

16

Kafkaris v Cyprus

(2009) 49 EHRR 35

ECHR

65

Locke v HM Advocate

2008 SLT 159

UK

111

Lockyer v Andrade

583 US 63 (2003)

US

192

Minister for Justice and

Equality v Nolan

[2012] IEHC 249

Irl

13

Minister for Posts and

Telegraphs v Campbell

[1966] IR 69

Irl

126

Nascimento v Minister for

Justice, Equality and Law

Reform

[2011] 1 IR 1

Irl

64

Practice Statement (Crime:

Life Sentences)

[2002] 3 All ER 412

UK

56

Pudlizsewski v Judge

Coughlan

[2006] IEHC 304

Irl

18

R (on the application of

Westlake) v Criminal Cases

Review Commission

[2004] EWHC 2779 (Admin)

UK

43

R (Smith) v Secretary of State

for the Home Department

[2006] 1 AC 159

UK

49

R v Bieber

[2009] 1 WLR 223

UK

52

R v Candless

[2004] NI 269

NI

56

R v Dalton

[1995] 2 Cr App R 340

UK

48

R v Dobson and Norris

Central Criminal Court 4 January 2012

UK

110

R v Ellis

[2003] EWCA Crim 3556

UK

44

R v F Howe & Sons

(Engineers) Ltd

[1999] 2 All ER 249

Eng

27

R v Howell

[2010] NICC 48

NI

108

R v Howells

[1999] 1 WLR 307

UK

19

R v Jones and Others

[2006] 2 Cr App R (S) 19

UK

53

R v Kelly

[2011] 4 All ER 687

UK

109

R v King

(1986) 82 Cr App R 120

Eng

31

R v Latimer

[2001] 1 SCR 3

Can

12

R v M(CA)

[1996] 1 SCR 500

Can

12

R v Oliver

(2003) 1 Cr App R 28

Eng

28

R v Secretary of State for the

Home Department ex

parte Bentley

[1993] EWHC QB 2

UK

44

R v Stewart

[2011] NICC 10

NI

108

R v Veregrin

[1933] 2 DLR 362

Can

103

R v Walsh

[2004] NI 269

NI

108

Re Royal Prerogative of Mercy

upon Deportation Proceedings

[1933] SCR 269

Can

103

Stafford v United Kingdom

(2002) 35 EHRR 32

ECHR

50

State (C) v Frawley

[1976] IR 365

Irl

7

State (Healy) v Donoghue

[1976] IR 325

Irl

61

State (P Woods) v Attorney

General

[1969] IR 385

Irl

178

The People (AG) v

O'Callaghan

[1966] IR 501

Irl

13

The People (Attorney General)

v O’Driscoll

(1972) 1 Frewen 351

Irl

17

The People (Attorney General)

v Poyning

[1972] IR 402

Irl

7

The People (DPP) v Alexiou

[2003] 3 IR 513

Irl

133

The People (DPP) v Anderson

[2010] IECCA 46

Irl

133

The People (DPP) v Barry

Court of Criminal Appeal 23 June

2008

Irl

142

The People (DPP) v Benjamin

Court of Criminal Appeal 14 January

2002

Irl

133

The People (DPP) v Black

[2010] IECCA 91

Irl

25

The People (DPP) v Botha

[2004] 2 IR 375

Irl

131

The People (DPP) v Brodigan

Court of Criminal Appeal 13 October

2008

Irl

133

The People (DPP) v Byrne

[2012] IECCA 72

Irl

133

The People (DPP) v Carmody

[1988] ILRM 370

Irl

13

The People (DPP) v Charles

Portlaoise Circuit Court 13 July 2004

Irl

79

The People (DPP) v Clail

[2009] IECCA 13

Irl

141

The People (DPP) v Cleary

and Brown

[2012] IECCA 32

Irl

134

The People (DPP) v Colclough

[2010] IECCA 15

Irl

20

The People (DPP) v Coles

 [2009] IECCA 144

Irl

133

The People (DPP) v Connolly

[2011] IESC 6

Irl

128

The People (DPP) v Costelloe

Court of Criminal Appeal 2 April 2009

Irl

132

The People (DPP) v Crowe

[2010] 1 IR 129

Irl

19

The People (DPP) v Curtin

[2010] IECCA 54

Irl

141

The People (DPP) v Davis

[2008] IECCA 58

Irl

134

The People (DPP) v Deans

[2012] IECCA 11

Irl

136

The People (DPP) v Delaney

[2010] IECCA 57

Irl

133

The People (DPP) v Delaney

Court of Criminal Appeal 28 February

2000

Irl

137

The People (DPP) v Dermody

[2007] 2 IR 622

Irl

133

The People (DPP) v Dillon

Court of Criminal Appeal 17

December 2008

Irl

21

The People (DPP) v Ducque

[2005] IECCA 92

Irl

131

The People (DPP) v Duffy

[2009] 3  IR 613

Irl

8

The People (DPP) v Duffy

Court of Criminal Appeal 21

December 2001

Irl

131

The People (DPP) v Dunne

[2003] 4 IR 87

Irl

138

The People (DPP) v Dwyer

Court of Criminal Appeal 9 February

2009

Irl

142

The People (DPP) v Farrell

[2010] IECCA 116

Irl

132

The People (DPP) v Finn

[2001] 2 IR 25

Irl

138

The People (DPP) v

Finnamore

[2008] IECCA 99

Irl

130

The People (DPP) v Fitzgerald

[2010] IECCA 53

Irl

142

The People (DPP) v Foley

[1995] 1 IR 267

Irl

126

The People (DPP) v Gallagher

[2006] IECCA 110

Irl

126

The People (DPP) v Galligan

Court of Criminal Appeal 23 July 2003

Irl

132

The People (DPP) v Gilligan

(No 2)

[2004] 3 IR 87

Irl

135

The People (DPP) v Gilloughly

Court of Criminal Appeal 7 March

2005

Irl

131

The People (DPP) v GK

[2008] IECCA 110

Irl

13

The People (DPP) v Godspeed

Court of Criminal Appeal 13 July 2009

Irl

133

The People (DPP) v Goulding

[2010] IECCA 85

Irl

126

The People (DPP) v H

[2007] IEHC 335

Irl

18

The People (DPP) v Halligan

Court of Criminal Appeal 15 February

2010

Irl

19

The People (DPP) v Hanley

[2010] IECCA 99

Irl

127

The People (DPP) v Harding

[2011] IECCA 20

Irl

136

The People (DPP) v Harty

Court of Criminal Appeal 19 February

2008

Irl

18

The People (DPP) v Heelan

[2008] IECCA 73

Irl

142

The People (DPP) v Heffernan

Court of Criminal Appeal 10 October

2002

Irl

178

The People (DPP) v Henry

Court of Criminal Appeal 15 May 2002

Irl

132

The People (DPP) v Hogarty

Court of Criminal Appeal 21

December 2001

Irl

131

The People (DPP) v Howard

and McGrath

Court of Criminal Appeal 29 July 2005

Irl

133

The People (DPP) v Jackson

Court of Criminal Appeal 26 April 1993

Irl

13

The People (DPP) v Keane

[2008] 3 IR 177

Irl

18

The People (DPP) v Kelly

[2005] 1 ILRM 19

Irl

18

The People (DPP) v Kelly

Court of Criminal Appeal 28 June

2010

Irl

142

The People (DPP) v Kelly

Court of Criminal Appeal 9 November

2009

Irl

142

The People (DPP) v Kelly

Court of Criminal Appeal 24

November 2008

Irl

143

The People (DPP) v Keogh

[2009] IECCA 128

Irl

133

The People (DPP) v Kinahan

[2008] IECCA 5

Irl

133

The People (DPP) v Kirwan

[2010] IECCA 43

Irl

135

The People (DPP) v Lernihan

[2007] IECCA 21

Irl

133

The People (DPP) v Long

[2008] IECCA 133

Irl

135

The People (DPP) v Long

[2006] IECCA 49

Irl

135

The People (DPP) v Loving

[2006] 3 IR 355

Irl

19

The People (DPP) v M

[1994] 3 IR 306

Irl

12

The People (DPP) v Maguire

[2008] IECCA 56

Irl

19

The People (DPP) v Malric

[2011] IECCA 99

Irl

133

The People (DPP) v McCann

[2008] IECCA 129

Irl

143

The People (DPP) v

McDonnell

 [2009] IECCA 16

Irl

137

The People (DPP) v McGinty

[2007] IR 633

Irl

137

The People (DPP) v McGrane

[2010] IECCA 8

Irl

133

The People (DPP) v McGrath

[2008] IECCA 27

Irl

20

The People (DPP) v McMahon

[2011] IECCA 94

Irl

99

The People (DPP) v Murphy

[2010] IECCA 44

Irl

136

The People (DPP) v Murray

[2012] IECCA 60

Irl

20

The People (DPP) v Nelson

Court of Criminal Appeal 31 July 2008

Irl

132

The People (DPP) v O’Dwyer

[2005] 3 IR 134

Irl

18

The People (DPP) v O'C

Court of Criminal Appeal 15

November 2009

Irl

18

The People (DPP) v Ormonde

[2011] IECCA 46

Irl

133

The People (DPP) v Pakur

Pakurian

[2010] IECCA 48

Irl

22

The People (DPP) v Power

[2007] 2 IR 509

Irl

79

The People (DPP) v Princs

[2007] IECCA 142

Irl

19

The People (DPP) v Purcell

[2010] IECCA 55

Irl

136

The People (DPP) v Redmond

[2001] 3 IR 390

Irl

26

The People (DPP) v Renald

Court of Criminal Appeal 23

November 2001

Irl

131

The People (DPP) v Roseberry

Construction Ltd and McIntyre

[2003] 4 IR 338

Irl

26

The People (DPP) v Rossi and

Hellewell

 Court of Criminal Appeal 18

November 2002

Irl

132

The People (DPP) v Ryan

[2008] IECCA 63

Irl

136

The People (DPP) v Sheedy

[2000] 2 IR 184

Irl

18

The People (DPP) v Shekale

 [2008] IECCA 28

Irl

133

The People (DPP) v Spratt

[2007] IECCA 123

Irl

135

The People (DPP) v Sweeney

Court of Criminal Appeal 12 March

2009

Irl

134

The People (DPP) v Tiernan

[1988] IR 251

Irl

18

The People (DPP) v

Vardacardis

Court of Criminal Appeal 20 January

2003

Irl

136

The People (DPP) v Wall

[2011] IECCA 45

Irl

135

The People (DPP) v Walsh

Court of Criminal Appeal 17

December 2009

Irl

142

The People (DPP) v Ward

Court of Criminal Appeal 16 January

2012

Irl

100

The People (DPP) v WC

[1994] 1 ILRM 321

Irl

18

The People (DPP) v WD

[2008] 1 IR 308

Irl

21

The People (DPP) v

Whitehead

[2008] IECCA 123

Irl

135

The People (DPP) v Woods

Court of Criminal Appeal 10

December 2010

Irl

18

Thynne, Wilson and Gunnell v

United Kingdom

(1991) 13 EHRR 666

ECHR

47

V and T v United Kingdom

(2000) 30 EHRR 121

ECHR

49

Vinter, Bamber and Moore v

United Kingdom

European Court of Human Rights 17

January 2012 (Application Nos

66069/09, 130/10 and 1396/10

ECHR

51

Walker v HM Advocate

2003 SLT 130

UK

111

Weeks v United Kingdom

(1988) 10 EHRR 293

ECHR

47

Whelan and Lynch v Minister

for Justice, Equality and Law

Reform

[2007] IEHC 374, [2008] 2 IR 142;

[2010] IESC 34, [2012] 1 IR 1

Irl

16

Wynne v United Kingdom

(1995) 19 EHRR 333

ECHR

47

 

 

 

 

Introduction

A                  Background:  Request by the Attorney General on Mandatory Sentences

1.             This Report, which follows the publication of the Commission’s Consultation Paper on Mandatory Sentences,[1] arises from a request made to the Commission by the then Attorney General under section 4(2)(c) of the Law Reform Commission Act 1975 which requested the Commission:

“to examine and conduct research and, if appropriate, recommend reforms in the law of the State, in relation to the circumstances in which it may be appropriate or beneficial to provide in legislation for mandatory sentences for offences.”

2.             As the Commission noted in the Consultation Paper, the Attorney General’s request is clearly wide-ranging in scope.  It requires the Commission, firstly, to determine the scope of the term “mandatory sentences.”  In addition, the Commission is requested to consider mandatory sentences in general terms, although the Commission notes that existing legislation that already provides for mandatory sentences in connection with specific offences provides a valuable reference point for the analysis required in response to the request.  The Commission’s third task is to assess whether provision in legislation for such sentences is “appropriate and beneficial.”  In order to reach conclusions on that aspect of the Attorney General’s request, the Commission has examined the aims of criminal sanctions and relevant sentencing principles in the State.  The Report therefore begins in Chapter 1 with a discussion of those aims and objectives before progressing to a detailed review of the existing legislation on mandatory sentences.

B                  Scope of the Attorney General’s Request:  “Sentences,” “Offences” and General Principles of Sentencing

3.             The first matter addressed by the Commission in preparing this Report was to determine the scope of the term “sentences” in the Attorney General’s request.  In this respect, the Commission considers that it is important to note that the Oireachtas, the Judiciary and the Executive each play a role in the sentencing process defined in a broad sense.  The Oireachtas, which has the sole and exclusive law-making authority in the State,[2] is primarily responsible for the creation and definition of criminal offences through enacted legislation.  It also specifies the relevant sentence, which usually consists of setting out a maximum sentence for an offence, but in some instances it also sets out a mandatory sentence (notably, life imprisonment for murder) or a presumptive sentence (that is, a mandatory sentence to be applied save in exceptional circumstances).  The Judiciary is responsible for the determination, based on the aims of the criminal justice system and relevant sentencing principles, of the specific sentence to be imposed in a particular case, unless the offence carries a mandatory sentence.  The Executive is responsible for the implementation of sentences imposed and this includes the exercise of statutory powers to commute or remit any sentence imposed by the courts and to grant temporary release to prisoners (which broadly corresponds to a parole system).

4.             The term “sentence” has also been given a narrow or a broad interpretation in terms of the sanctioning outcome or outcomes envisaged.  Thus, section 1(1) of the Transfer of Sentenced Persons Act 1995 defines “sentence” narrowly to mean “sentence of imprisonment.”  This may be contrasted with, for example, section 106 of the Criminal Justice Act 2006, which defines “sentence” to include not just a sentence of imprisonment but also other orders of the court made on conviction, such as a restriction on movement order.  This therefore envisages that a “sentence” covers both custodial and non-custodial sanctions; indeed, it is notable that section 99 of the Criminal Justice Act 2006 regulates the non-custodial suspended sentence.  Other important non-custodial sentences include community service orders and fines.  An even wider concept of “sentence” would include a probation order made by the District Court under the Probation of Offenders Act 1907 (one of the most commonly-used sanctions in the criminal justice system in Ireland), which can be made without recording a conviction.[3]  The Commission notes that this wide definition of “sentence”, covering both custodial and non-custodial sanctions and including orders made even where a conviction has not been recorded, is consistent with the general literature on sentencing.[4] 

5.             The Attorney General’s request refers to “offences” without any apparent limitation.  In the context of this Report and in particular the request to consider whether mandatory sentences are “appropriate or beneficial”, the Commission understands that the Attorney General was not requesting that this be considered in relation to all criminal offences.  The Commission notes that various terms have been used to distinguish between the most significant criminal offences and those which are less serious.  Thus, the term “arrestable offence” refers to offences punishable by a term of imprisonment of 5 years or more;[5] indictable offences are those for which the accused is entitled as of right to a trial by jury; and summary offences are those heard in the District Court, without a jury, and for which the maximum term of imprisonment permissible is generally 12 months (and/or a fine).

6.             On the issue of the sentences and offences envisaged by the Attorney General’s request, therefore, the Commission has concluded that it is required to assess whether mandatory sentences “may be appropriate or beneficial” in general terms and should not confine its review of the law to a very small group of specific offences.  At the same time, bearing in mind the very wide potential scope of an examination of all “offences” and all “sentences”, the Commission has also concluded that it should restrict the scope of its review to offences at the higher end of the criminal calendar (such as murder), or which by their nature pose major risks to society (such as organised drugs offences or firearms offences), or which involve specific aspects that merit special attention (for example, consecutive offences committed by the same person).  While the examples given here reflect the types of offences for which mandatory sentences, as described below, are currently prescribed in Ireland, the Commission has not confined its analysis to these examples.

7.             Indeed, the need to look beyond existing examples is directly connected to the Commission’s conclusion, already mentioned, that it should examine and review the general principles of sentencing.  This involved the Commission reviewing relevant developments in the literature on sentencing since its 1996 Report on Sentencing[6] in order to provide a framework for analysing a selection of offences, including those for which mandatory sentences are currently provided.  This framework of principles would in turn allow it to determine whether such mandatory sentencing provisions had been “appropriate or beneficial” and, as a consequence, allow it determine whether such provisions would be “appropriate or beneficial” in other settings. 

C                  Scope of the Attorney General’s Request:  “Mandatory Sentences”

8.             In addition to focusing on certain offences, the Commission also considered that in preparing this Report it was necessary to determine the scope of the term “mandatory sentences.”  As with the other aspects of the Attorney General’s request already mentioned, the term could be given a narrow or a broad interpretation.  It could be limited to “entirely” mandatory sentences, such as the provision in Irish law of a mandatory life sentence for murder.  Alternatively, it could encompass provisions that impose significant sentencing constraints in respect of certain offences or certain types of offender behaviour.  Thus, it may be taken to include current statutory provisions that stipulate:  presumptive minimum sentences subject to specific exceptions (such as for certain drugs and firearms offences); consecutive sentences for offences committed while on bail; and mandatory sentences for second or subsequent offences.  In some jurisdictions, the term could include those provisions that indicate a defined “tariff” (the minimum term of imprisonment that must be served before the prisoner can be considered for release) based on binding sentencing guidelines, as had been the case at one time at federal level in the United States of America.

9.             The Commission has concluded that it should not confine its examination to “entirely” mandatory sentences but should review legislative provisions that set down a fixed sentence, or a minimum sentence, following conviction for a particular type of offence.  Within that broad definition, a variety of mandatory sentences are already in use in Ireland.

10.               The first and clearest example of a mandatory sentence is the entirely mandatory life sentence for murder (and treason).[7]   In the case of a person convicted of “capital murder” (the form of murder for which the death penalty formerly applied), a mandatory minimum sentence of 40 years’ imprisonment applies.  In the case of an attempt to commit capital murder, a minimum sentence of 25 years’ imprisonment applies.[8]   

11.          A second type of mandatory sentence is probably more accurately described as a “presumptive” minimum sentence.[9]  This is the type that applies to certain drugs offences[10] and firearms offences.[11] These sentencing regimes require that a court must ordinarily impose a prescribed minimum term of imprisonment.  However, it allows the court to impose a sentence below the prescribed minimum term where this is justified by exceptional and specific circumstances.  Another example of a presumptive minimum sentence is that which applies to an individual who commits a second or subsequent serious offence within a prescribed period, having previously received a sentence of at least five years’ imprisonment for a first serious offence.[12]  

12.          A third example of a mandatory sentence is the mandatory minimum sentence which applies where an offender commits a second or subsequent specified drugs or firearms offence.[13]  This particularised treatment of recidivist offenders is also evident in the statutory provisions mandating consecutive sentences for offenders who have, for instance, committed an offence while on bail.

D                  Outline of the Report

13.          In Chapter 1, the Commission outlines a conceptual framework within which current Irish mandatory sentencing regimes may be analysed.  This chapter suggests that these regimes may be evaluated by reference to three key concepts:  1) the overarching purpose of the criminal justice system (the reduction of criminal conduct); 2) the specific aims of criminal sanctions (deterrence, punishment, reform and rehabilitation, reparation, and incapacitation); and 3) the fundamental principles of justice (the principles of consistency and proportionality).  The chapter describes these concepts, and their interaction, in detail.  It emphasises, in relation to the two principles of justice, that the courts have sought to enhance consistency and proportionality in sentencing through the formulation of general guidance regarding:  (i) points of departure in the sentencing of certain serious offences; (ii) sentencing ranges for serious offences; and (iii) factors that aggravate and mitigate the gravity of an offence and severity of a sentence.  The Commission notes, however, that the Irish sentencing system does not always adhere to a consistent approach in terms of the application of key sentencing aims and principles.  It observes that improved structure and consistency in sentencing is desirable and, in turn, assesses various potential options for realising this aim. 

14.          In Chapter 2, the Commission outlines the historical evolution of the three forms of mandatory sentence under review.  As noted in Part C above, these are the entirely mandatory life sentence for murder; minimum sentences for drugs and firearms offences; and minimum sentences for repeat offences.  The chapter begins by tracing the historical development of the mandatory life sentence in the United Kingdom, the United States of America, and Ireland.  It proceeds to describe the historical evolution of minimum sentences for drugs offences in these countries, before addressing the extension of these sentencing regimes to firearms offences.  Chapter 2 then details the development of mandatory sentencing regimes for repeat offences in the United States of America, England and Wales, and Ireland.  The chapter concludes by drawing a number of conclusions from the manner in which these sentencing regimes have evolved.  These conclusions provide material relevant to the analysis contained in the remaining chapters.  

15.          Chapter 3 assesses whether the mandatory life sentence for murder complies with the conceptual framework outlined in Chapter 1.  The Commission begins by outlining the practical operation of this mandatory sentencing regime.  This discussion includes a description of the applicable early release mechanisms and the roles played by the Minister for Justice and the Parole Board in relation to these mechanisms.   The chapter then undertakes a comparative analysis of the sentencing regimes that certain other common law countries apply in respect of murder.  The Commission concludes by evaluating the mandatory life sentence for murder against the sentencing aims of deterrence and punishment (those which tend to feature most heavily in the continued use of the mandatory life sentence), and the two principles of justice, namely, the principles of proportionality and consistency.     

16.          Chapter 4 assesses whether presumptive minimum sentences for drugs and firearms offences comply with the conceptual framework outlined in Chapter 1.  The Commission begins by examining the practical operation of the presumptive minimum sentencing regimes under: (i) section 15A and section 15B of the Misuse of Drugs Act 1977, and (ii) the Firearms Acts.  This discussion details, among other things, the elements of these offences, the relevant penalties and the applicable early release provisions.  Chapter 4 then undertakes a comparative analysis of presumptive and mandatory minimum sentencing regimes enacted in other common law countries.  The Commission concludes by evaluating presumptive minimum sentences for drugs and firearms offences against the particular sentencing aims of deterrence, punishment and rehabilitation (those most closely associated with these regimes), and the two principles of justice.

17.          Chapter 5 assesses whether presumptive and mandatory sentences for repeat offences comply with the conceptual framework outlined in Chapter 1.  The Commission begins by examining the practical operation of: (i) the presumptive minimum sentencing regime prescribed by section 25 of the Criminal Justice Act 2007 for serious repeat offences; (ii) the mandatory sentencing regime prescribed by section 27(3F) of the Misuse of Drugs Act 1977 for repeat section 15A and section 15B offences; and the mandatory sentencing regime prescribed for certain repeat firearms offences under the Firearms Acts.  This discussion details, among other things, the elements of these provisions, the relevant penalties and the applicable early release provisions.  The chapter then undertakes a comparative analysis of presumptive and mandatory minimum sentencing regimes prescribed in other common law countries for repeat offences.  The Commission concludes by evaluating the Irish presumptive and mandatory sentencing regimes for repeat offences against the aims and principles of sentencing outlined in Chapter 1.

Chapter 6 contains a summary of the recommendations made in this Report.       

 

 

1         

CHAPTER 1            conceptual framework for criminal sanctions and sentencing

A                  Introduction

1.01        In this chapter, the Commission outlines a conceptual framework within which current Irish mandatory sentencing regimes may be analysed.  It suggests that these regimes may be evaluated by reference to three key concepts: 1) the purpose of the criminal justice system; 2) the specific aims of criminal sanctions; and 3) the fundamental principles of justice.  In Part B, the Commission begins by providing an overview of the general aims of the criminal justice system.  It identifies the reduction of crime as the overarching aim of the justice system.  It notes that each of the component parts of this system, including the sentencing process, contributes to this aim.  In this Part, the Commission observes that the sentencing process may have different attributes (discussed in the next Part), each of which seeks to facilitate crime-reduction.  It proceeds to discuss the Court of Criminal Appeal decision in The People (Attorney General) v Poyning[14] which illustrates how these attributes may feature in the sentencing process.     

1.02        In Part C, the Commission discusses in detail the following aims of the criminal justice system: deterrence, punishment, reformation and rehabilitation, reparation and incapacitation.  It notes that while crime-reduction (the core purpose of the justice system) is a constant concern, the specific aims of criminal sanctions may be differently prioritised in individual cases.  This Part outlines what each of these aims entails and notes that the extent to which mandatory sentencing regimes further these goals requires consideration.

1.03         In Part D, the Commission discusses the key principles of sentencing, namely that: (a) there should be a consistent approach to sentencing so that like cases should be treated alike, and (b) the criminal sanction should be proportionate to the circumstances of the particular offence and the particular offender.  This Part identifies as another key matter that requires consideration, the extent to which mandatory sentencing regimes comply with these principles.

1.04        In Part E, the Commission notes that while the Supreme Court and the Court of Criminal Appeal have sought to increase consistency and proportionality in sentencing, commentators and surveys of sentencing practice call into question whether the aims and principles discussed in Parts C and D are being realised.  The Commission discusses proposals to develop a more structured sentencing system in order to address this, including the development of sentencing guidance or guidelines under the auspices of a proposed Judicial Council.  The discussion in this chapter thus provides the conceptual framework against which the Commission examines the mandatory and presumptive sentencing regimes that are analysed in Chapters 3 to 5 of the Report.  The Commission concludes the chapter by outlining the relevance of the discussed aims and principles to the analysis contained in the remaining chapters.

B                  Overview of the Aims of the Criminal Justice System and Principles of Sentencing

1.05        A key aim of the criminal justice system is to reduce crime, that is, prohibited and unwanted conduct that is detrimental or harmful to society.[15]  The criminal justice system comprises several component parts, each of which contributes to this aim.  These parts include the substantive criminal law, which contains a list of prohibited or unwanted conduct that is graded or labelled according to the seriousness with which it is associated, including in terms of the sanctions to be imposed on conviction.  The other important component parts of the criminal justice system include the relevant processes and services connected with the system as a whole, notably the Garda Síochána (who operate both as a peace-keeping prevention-based component of the system and also as an investigative force), the prosecutorial process, the trial process, and (in the event of a conviction) the sentencing process and the probation and prisons service.  While the system as a whole is intended to reduce crime (including by clearly stating what constitutes criminal activity) and to have in place mechanisms that are at least in part aimed at the prevention of such conduct, many of the components listed operate as salutary after-the-event processes where a crime has been committed.

1.06        The preventive aspect of the criminal justice system is that aspect which seeks to prevent people from becoming offenders in the first place.[16]  The extent to which the criminal justice system is succeeding in this aim is difficult to establish in so far as statistics are more concerned with those who come in contact with the criminal justice system than those who do not.  However, an examination of the numbers of people prosecuted in any year suggests that the vast majority of the Irish population does not offend the criminal law in a serious way.[17]  This suggests that the criminal justice system (in tandem with inherent and cultivated values that influence human behaviour) is, for the most part, working.  While some people may be more influenced by the fact that certain behaviour has been labelled “criminal”, others may be more influenced by the fact that they feel that certain behaviour is morally wrong.  Thus, for instance, a person driving home late at night might stop for a red traffic light even in the absence of any apparent risk of detection or punishment or, indeed, of causing an accident.  He or she may accept that this behaviour is morally appropriate as well as being in compliance with the law.

1.07        In this Report, the primary focus of the Commission is on a specific aspect of the criminal justice system, namely, the sentencing process and, in particular, mandatory sentences.  (As outlined above at paragraphs 8 to 11, a mandatory sentence is one which applies in all cases regardless of the particular circumstances, whereas a presumptive sentence is one which applies in all cases except where there are specific and exceptional circumstances).  The sentencing process is that aspect of the criminal justice system concerned with the determination and application of criminal sanctions to those who have been convicted of offending the substantive criminal law.  In the context of reducing prohibited or unwanted conduct, these sanctions are necessarily endowed with deterrent and punitive attributes.[18] 

1.08        Even taking what are regarded as low level sanctions, such as fines or community service orders, it is clear that these are intended to have a salutary effect and to bring home to the offender that harm has been done to society.  Of course, it is also clear that such sanctions are imposed as an alternative to the other most common sanction, imprisonment, and that a community service order is also intended to convey to the offender that he or she is being “given a chance” because, for example, this was a first time offence or was relatively minor in the scale of criminality.  It is therefore intended to mark the seriousness of the past behaviour but also to reflect the expectation that future behaviour can be adjusted positively.    A sentence of imprisonment is clearly intended to be a more punitive sanction.  However, even so, there is a general expectation that not all criminals convicted of the same offence will receive the same sentence of imprisonment and that, for example, the experienced leader of a group of robbers will receive a longer sentence than the young, first-time member of that same group.  While each might receive a custodial sentence, the first-time offender may still be “given a chance” with a shorter term of imprisonment (perhaps even suspended) while the leader may be given a lengthy term.  Thus, even when a sentence of imprisonment is imposed, many different attributes are at play; the punitive element arising from loss of liberty is clearly evident, but there are also reformative, rehabilitative, reparative and incapacitative attributes involved.

1.09        In pursuing the general preventive aim of the criminal justice system, the sentencing process must also comply with what can be described as external constraints that emanate from fundamental principles of justice.[19]  Many of these constraints arise from national constitutional requirements and international or regional human rights standards.  Thus, as a member state of the Council of Europe,[20] Ireland accepts that the death penalty is forbidden as a sanction.[21]  Similarly, other former sanctions such as whipping have been abolished on the basis that they would amount to torture or inhuman and degrading treatment.[22]  In addition, Article 15.5 of the Constitution provides that the Oireachtas is prohibited from declaring acts to be infringements of the law which were not so at the date of their commission.  This reflects the fundamental principle that a person must have done something wrong to warrant the imposition of a sanction, and that the list of wrongs must have been signalled in advance to the offender, not after the event.[23]  Also of importance in this respect is Article 40.1 of the Constitution, which provides that all citizens shall, as human persons, be held equal before the law.  This equality principle requires that there should be a consistent approach to sentencing so that like cases are treated alike, the corollary being that different cases should be treated differently.[24]  In the literature on sentencing, there is also reference to the principle of proportionality, ie. the requirement that “the punishment must fit the crime and the criminal”.   

1.10        The application of many of these features of the criminal justice system and the sentencing process can be seen in one of the leading Irish cases on sentencing, the 1972 decision of the Court of Criminal Appeal in The People (Attorney General) v Poyning.[25]  In Poyning, the defendant was charged with a number of offences related to a single incident, including armed robbery and taking a motor car without authority.  He pleaded guilty to both counts and was sentenced to four years’ imprisonment for armed robbery and six months’ imprisonment for the motor car offence.  Along with the defendant, two other men were charged in respect of the armed robbery.  They also pleaded guilty but were sentenced by a different judge.  While that sentencing judge imposed a sentence of six years’ imprisonment on the other two defendants, the sentence of imprisonment was suspended on condition that the defendants enter into a bond to keep the peace for five years.  As both entered into this bond, they were released.  In those circumstances the defendant appealed against the sentences imposed on him.

1.11        At the hearing of the appeal, counsel for the defendant argued that the result was “a gross inequality of treatment for his client”.  Giving its judgment, the Court of Criminal Appeal stated:

            “The law does not in these cases fix the sentence for any particular crime, but it fixes a maximum sentence and leaves it to the court of trial to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances of each case.  Not only in regard to each crime but in regard to each criminal the court of trial has the right and the duty to decide whether to be lenient or severe.  It is for these reasons and with these purposes in view that, before passing sentence, the court of trial hears evidence of the antecedents and character of every convicted person.  It follows that when two persons are convicted together of a crime or of a series of crimes in which they have been acting in concert, it may be (and very often is) right to discriminate between the two and to be lenient to the one and not to the other.  The background, antecedents and character of the one and his whole bearing in court may indicate a chance of reform if leniency is extended; whereas it may seem that only a severe sentence is likely to serve the public interest in the case of the other, having regard both to the deterring effect and the inducement to turn from a criminal to an honest life.  When two prisoners have been jointly indicted and convicted and one of them receives a light sentence, or none at all, it does not follow that a severe sentence on the other must be justified.”[26] (emphasis added)

The Court also added:

            “Of course, in any particular case the Court must examine the disparity in sentences where, if all other things were equal, the sentences should be the same; it must examine whether the differentiation in treatment is justified.  The Court, in considering the principles which should inform a judge’s mind when imposing sentence and having regard to the differences in the characters and antecedents of the convicted person, will seek to discover whether the discrimination was based on those differences.”[27]   

The Court of Criminal Appeal held that while it appeared that Poyning’s co-defendants had been treated more leniently, the sentence of penal servitude was an appropriate one and should not be reduced. 

1.12        Therefore, Poyning reflects the equality and proportionality principles discussed above, which require sentencing to be individualised in so far as the criminal sanction must be proportionate to the particular circumstances of both the offence and the offender.  Thus even where, as in this case, each defendant has committed the same crime, the criminal sanction for each may be different because the individual circumstances of each defendant (“background, antecedents and character”) are different.  Poyning also illustrates that a number of the other factors discussed above are at issue, including “the public interest,” “the deterring effect” and “a chance of reform.”  Thus, marking the seriousness of the offence is not simply a matter of ensuring a proportionate sentence for the offender; it is also required to serve the public interest by seeking to reduce prohibited and unwanted conduct in society, as well as inducing the individual offender to reform, whether by a relatively lenient sentence or a relatively severe sentence.  As a result, the courts will generally include as part of their deliberations the possibility that through a combination of interventions such as education, therapy and, in some instances, non-custodial sanctions such as community service, the offender will be induced to refrain from committing prohibited or unwanted conduct in the future.  The sentencing process also relies, as discussed, on the severity of the sanction imposed to dissuade the particular offender from re-offending and other would-be offenders from offending in the first place.

1.13        As illustrated by Poyning, the operation of the sentencing process may therefore be described in the following terms:

1. Sentencing should mark the seriousness of the criminal conduct that has occurred.  In general therefore, the more serious the criminal conduct, the more severe the sanction that is likely to be imposed. 

2. The seriousness of the conduct is determined by reference to three interlinking factors: (a) the harm caused; (b) the culpability of the offender; and (c) the behaviour of the offender in relation to the offence.  This reflects the proportionality requirement that the punishment should fit the individual crime and the individual offender.

3. Criminal conduct will, in general, be considered more serious in terms of harm caused where it has caused death or serious injury and will, in general, be considered less serious where it has caused property damage or financial loss.  In general, physical harm to other humans is ranked more seriously than property damage or financial loss.  Clearly, of course, there are cases where financial loss arising from, for example, fraud may be on such a large scale that it will be regarded as having caused more harm than, for example, a once-off assault. 

4. Criminal conduct will be considered more serious in terms of culpability where the offender intended to behave in a particular way, and less serious where he or she was reckless or negligent.

5. Criminal conduct will be considered more serious in terms of the offender’s behaviour where he or she has aggravated the situation, for example, by using a weapon, targeting a vulnerable person, breaching a position of trust or being involved in a group or gang.

6. The absence of these aggravating factors does not necessarily amount to a mitigating factor, but the sentencing court may take into account, as mitigating factors, other individual offender behaviour, whether before or after the offence itself, such as whether the case involves a first-time offender (as part of their “background, antecedents and character”) or whether the offender pleads guilty (thus avoiding, for example, a potentially difficult cross-examination for the victim or the cost to the public of a long trial).

7. In addition to ensuring a proportionate sentence for the offence and the offender, the sentencing process also involves the general public interest aim of reducing prohibited or unwanted conduct in society.  For the individual offender, the sentencing court will consider (with the benefit of a probation report) whether interventions such as education, therapy or non-custodial sanctions such as community service will induce the offender to refrain from committing prohibited or unwanted conduct in the future.  The sentencing court will also take into account whether the severity or leniency of the sanction imposed will dissuade would-be offenders from offending in the first place. 

1.14        This summary of the sentencing process, as illustrated in the Poyning case, reflects the reality that, in respect of virtually all criminal offences, the sentencing court has a wide discretion as to the sentence to be imposed in a specific case.  Thus, for most criminal offences, the Oireachtas provides for a range of sentences, from zero to a maximum, leaving to the sentencing judge the specific sentence to be imposed.  Some examples are:

·            Manslaughter: maximum sentence:  life imprisonment (section 5 of the Offences against the Person Act 1861)

·            Rape: maximum sentence: life imprisonment (section 4 of the Criminal Law (Rape) (Amendment) Act 1990)

·            Assault causing serious harm: maximum sentence:  life imprisonment (section 4 of the Non-Fatal Offences against the Person Act 1997)

·            Assault causing harm: maximum sentence:  five years’ imprisonment (section 3 of the Non-Fatal Offences against the Person Act 1997)

·            Assault: maximum sentence:  six months’ imprisonment (section 2 of the Non-Fatal Offences against the Person Act 1997)

·            Robbery: maximum sentence:  life imprisonment (section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001)

·            Theft: maximum sentence:  10 years’ imprisonment (section 4(6) of the Criminal Justice (Theft and Fraud Offences) Act 2001)

1.15        In the case of each of these offences, which are clearly among the most serious in the criminal calendar, the Oireachtas has legislated to set the maximum sentence but it has left it to the trial judge to decide the actual sentence to be imposed, applying the sentencing principles described above.

1.16        The Commission has been requested by the Attorney General to examine the small number of instances in which the Oireachtas has prescribed mandatory or presumptive sentences.  These include:

·   The mandatory life sentence for murder (section 2 of the Criminal Justice Act 1990);

·   The presumptive minimum sentence of 10 years’ imprisonment for the possession or importation of drugs with a certain market value, with intent to sell or supply (section 27 of the Misuse of Drugs Act 1977, as amended);

·   The presumptive minimum sentences of five years’ imprisonment[28] or 10 years’ imprisonment[29] for certain offences under the Firearms Acts;

·   The mandatory minimum sentence of 10 years’ imprisonment for a second or subsequent offence of possessing or importing drugs with a certain market value, with intent to sell or supply (section 27(3F) of the Misuse of Drugs Act 1977);

·   The mandatory minimum sentences of five years’ imprisonment[30] or 10 years’ imprisonment[31] for second or subsequent specified offences under the Firearms Acts; and

·   The presumptive minimum sentence of three-quarters of the maximum term provided by law - or 10 years’ imprisonment where the maximum term is life imprisonment - for a second or subsequent “serious” offence[32] under the Criminal Justice Act 2007 (section 25 of the Criminal Justice Act 2007).

1.17        The key question addressed by the Commission in this Report, therefore, is the extent to which mandatory or presumptive sentences contribute to a general aim of the criminal justice system: that of reducing prohibited or unwanted conduct.  This in turn requires the Commission to examine to what extent such mandatory or presumptive sentencing regimes are consistent with the conceptual framework for criminal sanctions and sentencing, as described already in general terms, and discussed in more detail below in this chapter. 

1.18        As a preliminary observation, the Commission notes that, unlike ordinary sentencing provisions which require an examination of the culpability of the offender, the harm caused, and the behaviour of the offender in relation to the particular offence, mandatory and presumptive sentencing provisions tend to focus primarily on the harm caused ahead of culpability and offender behaviour.  The extent to which the harm caused may take primacy over other factors depends on whether the sentence is entirely mandatory or presumptive and subject to exceptions.  Where the sentence is presumptive, it is more likely that the courts will be able to consider individual factors such as culpability and behaviour.

1.19        In the context of preventing future criminal conduct, mandatory sentencing provisions may also be contrasted with other types of sentencing provision in so far as mandatory sentencing provisions tend to rely more heavily on the severity of the sentence to dissuade future offending, rather than on other mechanisms such as education, therapy or community service.  Again, the extent to which the sentencing system relies more heavily on the severity of the sentence to dissuade future offending depends on whether the sentence is entirely mandatory or presumptive and subject to exceptions.  As discussed in detail in subsequent chapters, some presumptive sentencing provisions permit sentence reviews where, for instance, the offender is addicted to drugs.

C             Aims of the Criminal Justice System and Sanctions

1.20        As noted at paragraphs 1.07 and 1.08, criminal sanctions pursue the following key aims: deterrence, punishment, reformation and rehabilitation, reparation and incapacitation. 

(1)           Deterrence

1.21        Criminal sanctions are deterrent in so far as they seek to dissuade the particular offender from re-offending (specific deterrence) and would-be offenders from offending in the first place (general deterrence), by signalling the painful consequences that will otherwise result.[33]  In this regard, it has been asserted that there is a necessary link between punishment and deterrence in so far as you cannot have the former without the latter.[34]  In its 1993 Consultation Paper on Sentencing,[35] the Commission noted that it was the certainty of punishment rather than the severity of punishment that gave rise to a deterrent effect.[36]  However, it has since been noted that there are other factors, such as the nature of the crime, the target group of the particular sanction, the extent to which the offending behaviour attracts moral condemnation, the extent to which the public has knowledge of the criminal sanction, and the swiftness of the punishment, which may also affect the extent to which a particular criminal sanction deters.[37]

1.22        The Commission observes that deterrence features strongly in the debate on mandatory and presumptive sentences in so far as it is often advanced as a justification for the enactment of such provisions.  It is unclear, however, to what extent (if any) mandatory or presumptive sentences actually deter.  Some writers assert that entirely mandatory sentences are ineffective as deterrents.  It has been noted, for instance, that countries which retain the death penalty for murder often have high murder rates.[38]  Other writers note, however, that crimes like murder are exceptional in so far as they are often committed in the heat of the moment when the perpetrators are in not in the frame of mind to contemplate the legal consequences.[39]  In its 1993 Consultation Paper on Sentencing,[40] the Commission stated that it found no evidence to suggest that mandatory minimum sentences acted as a deterrent.[41]  Tonry cites research which, he asserts, establishes that mandatory sentences have either no demonstrable deterrent effects or short-term effects that are quickly extinguished.[42]  He further observes that there has been little impact on the crime rates in American states in which mandatory sentences have been introduced.[43] 

(2)           Punishment

1.23        Criminal sanctions are also punitive in so far as they seek to punish the offender for his or her wrong-doing (retribution)[44] and give formal expression to society’s condemnation of his or her behaviour (denunciation).[45]  The retributive aspect of punishment should be distinguished from vengeance in so far as retribution relates to an action between the State and the offender, rather than the victim and the offender, and is concerned with proportionate punishment determined by reference to objective criteria, rather than emotion or anger.[46]  That the punishment should be proportionate to the offence (and the offender) is often associated with “just deserts” theory.[47]  The denunciatory aspect of punishment, on the other hand, may (as indicated by the Commission in its 1996 Report on Sentencing[48]) be described as a “safety-valve” for victims who might otherwise be tempted to take the law into their own hands.[49]

1.24        The Commission observes that punishment, comprising retribution and denunciation, is an important aspect of the debate on mandatory and presumptive sentences.  The offences for which mandatory sentencing provisions have been enacted tend to be those offences which have a particularly deleterious impact on society, such as murder, drug trafficking, firearms offences and certain repeat offences.  It is thus understandable that the Oireachtas should wish to increase the severity of the applicable sanctions through the enactment of mandatory and presumptive sentencing provisions.  It is equally understandable that this might also serve a denunciatory aim by affording individual members of society, who might otherwise feel victimised and powerless, an opportunity to express their condemnation of such offences. 

(3)           Reformation and Rehabilitation

1.25        Criminal sanctions may seek to reform and/or rehabilitate an offender with a view to re-integrating him or her into society.[50]  Indeed, it has been noted that rehabilitation is an “essential ingredient for consideration in the sentencing of a person”[51] and may justify the imposition of a lighter sentence where this would, for instance, facilitate the offender’s participation in a rehabilitative programme.  Reformative and rehabilitative programmes seek to address factors which may have contributed to the offender’s criminal behaviour and include programmes such as alcohol and drug treatment programmes, counselling and vocational programmes.[52]  Support for the reformative and/or rehabilitative aspects of criminal sanctions is not, however, universal.[53]

1.26        The Commission observes that reform and rehabilitation are rarely, if ever, advanced as justifications for mandatory or presumptive sentencing provisions.  On the contrary, reform and rehabilitation are often submitted as “exceptional and specific circumstances” justifying a sentence lower than the sentence prescribed by presumptive sentencing provisions (such as those in the Misuse of Drugs Act 1977 and the Firearms Acts). 

(4)           Reparation

1.27        Criminal sanctions may be reparative in so far as they require an offender to do something to repair the damage that his or her wrong-doing has inflicted on society.[54]  This may take the form of directly or indirectly compensating the victim of the offence.  Alternatively, if there is no individual or identifiable victim or, indeed, if the victim is unwilling to accept it, reparation can be made to the community as a whole, for example, through the performance of community service or the payment of a fine into public funds.  In this way, reparation may contribute to policies aimed at the reintegration of offenders.  It has been noted, however, that a sentencer who discriminates between an offender who can afford to make monetary reparation and an offender who cannot, particularly where the alternative is imprisonment, may be regarded as acting inequitably.[55]

1.28        Reparation is rarely, if ever, asserted as a justification for mandatory or presumptive sentencing provisions.  This may be due to the fact that criminal sanctions which are predominantly reparative in nature are usually proposed as an alternative to a sentence of imprisonment. 

(5)           Incapacitation

1.29        Criminal sanctions may be incapacitative in so far as they deprive the offender of the opportunity to commit another offence.[56]  While this may be the effect of certain criminal sanctions, the Commission observes that there is a constitutional objection to introducing a criminal sanction in order to deprive an offender of his or her liberty on the basis of anticipated rather than proven offending.[57]  Aside from the practical issues (including that it is notoriously difficult to make accurate predictions regarding future behaviour[58] and that the incapacitative effects of imprisonment are, at best, modest[59]) the courts have clarified that an incapacitative rationale would run counter to the constitutionally protected right to personal liberty and the presumption of innocence.[60]  As will be discussed below, it would also run counter to the principle that a criminal sanction should be proportionate to the circumstances of the particular offence and the particular offender.

1.30        The Commission observes that the issue of incapacitation carries some weight in the debate on mandatory and presumptive sentences.  The need to take and keep certain offenders off the streets is often cited in support of these sentencing provisions.  While such an argument may carry political weight, it would appear, in light of the foregoing analysis, to be unconstitutional.

(6)           Discussion

1.31        It is thus clear that criminal sanctions and sentencing are motivated by a number of factors including the overarching aim of the criminal justice system (the reduction of prohibited or unwanted conduct) and the various aims of criminal sanctions (deterrence, punishment, reform and rehabilitation, reparation and incapacitation).  Whereas the overarching aim of the criminal justice system will remain the same in every case, sentencing courts may give priority to one or more of the aims of criminal sanctions depending on the particular circumstances of the individual case.  Thus, for instance, the aims of deterrence, punishment and incapacitation will generally feature in cases involving more serious offences which attract more severe sanctions such as a term of imprisonment.  As discussed, these aims are therefore often raised as justifications for mandatory and presumptive sentencing provisions which are generally enacted to deal with offences which have a particularly harmful effect on society.  By contrast, the aims of reform and rehabilitation and reparation usually feature in cases involving less serious offences which attract less severe sanctions such as a non-custodial sentence.  As discussed therefore, these aims are not usually raised in favour of mandatory or presumptive sentencing provisions.

D             Principles of Sentencing and Justice

1.32        As noted at paragraph 1.09, in pursuing the general aim of the criminal justice system, the sentencing process must comply with external constraints that emanate from fundamental principles of justice.  To begin with, the use of certain criminal sanctions is prohibited because the sanctions are considered to be inhumane under current constitutional and international human rights standards.  Likewise, the use of certain other criminal sanctions is not feasible because they would be too costly.  The remaining criminal sanctions (in other words, those criminal sanctions which are not considered to be inhumane or too costly) must comply with the two fundamental principles of justice. These are that: (a) there should be a consistent approach to sentencing so that like cases are treated alike, and (b) the criminal sanction should be proportionate to the particular offence (and the particular offender).  These principles of consistency and proportionality are closely connected in so far as a consistent approach to sentencing is necessary to ensure that proportionate sentences are imposed in all cases. 

(1)           Consistency

1.33        The principle of consistency has traditionally been explained in terms of like cases being treated alike and different cases being treated differently.[61]  The corollary of this is that inconsistency arises where like cases are treated differently and different cases are treated alike.  It should be reiterated, however, that when we refer to consistency, we are referring to consistency of approach rather than consistency of outcomes.[62]  In the Halliday Report, it was observed that consistency could be viewed as like cases resulting in like outcomes but:

“The variety of circumstances in criminal cases... makes this an incomplete definition, and one which can result in undesirable priority being given to apparently uniform outcomes, regardless of the circumstances.  A better approach is to seek consistent application of explicit principles and standards, recognising that these may result in justifiably disparate outcomes.”[63] [Emphasis added]

In this regard, it has been observed that the challenge posed by the principle of consistency is “to eliminate undue disparity without replacing it with excessive uniformity.”[64]

1.34        In its 2004 Consultation Paper on Prosecution Appeals from Unduly Lenient Sentences in the District Court,[65] the Commission took a similar approach by distinguishing between sentencing disparity and sentencing inconsistency:

“While sentencing disparity may be justified, given the nature of the offence and the individual circumstances of the offender, sentencing inconsistency is not acceptable, such as where individual judges may differ widely in dealing with similar offenders for similar offences.”[66]

1.35        The need for a consistent approach becomes obvious when one considers the numerous factors which may influence sentencers.[67]  Ashworth asserts that these factors fall into four broad categories.  The first category relates to the views that sentencers may have regarding the facts of the case.  The second category relates to the views that sentencers may have regarding the principles of sentencing.  In this category, Ashworth includes views regarding the gravity of offences; the aims, effectiveness and relative severity of the available types of sentence; the general principles of sentencing; and the relative weight of aggravating and mitigating factors.  The third category relates to views regarding crime and punishment.  In this category, Ashworth includes views regarding the aims of sentencing; the causes of crime; and the function of courts passing sentence.  The final category relates to the demographic features of sentencers.  In this category, Ashworth lists age, social class, occupation, urban or rural background, race, gender, religion, and political allegiance.  While sentencers are expected to have developed a high level of resistance to outside influences, the Commission observes that no-one can be entirely immune.

1.36        It has been observed that sentencing is not an exact science so the principle of consistency cannot be applied in absolute terms and some degree of variation is inevitable.[68]  It has been argued that this is a small price to pay for a justice system which guarantees individualised punishment.[69]  However, this argument should not be taken too far as a system which tolerates gross inconsistency is manifestly unfair and risks losing public confidence.[70]  Whereas the normal approach of the Oireachtas to ensuring consistency is to prescribe a maximum sentence only, it might, in such circumstances, feel compelled to circumscribe judicial discretion further by establishing mandatory sentences or rigid sentencing guidelines.[71] 

 

(2)           Proportionality

1.37        In Whelan and Lynch v Minister for Justice, Equality and Law Reform,[72] the High Court (Irvine J) distinguished between two types of proportionality: (a) constitutional proportionality, and (b) proportionality in the context of sentencing.  On appeal, this distinction was upheld by the Supreme Court.[73]  Citing the judgment of Costello J in Heaney v Ireland,[74] Murray CJ observed in Whelan and Lynch that the constitutional doctrine of proportionality:

“...is a public law doctrine with specified criteria, according to which decisions or acts of the State, and in particular legislation, which encroach on the exercise of constitutional rights which citizens are otherwise entitled freely to enjoy, are scrutinised with regard to their compatibility with the Constitution or the law.”

By contrast, “proportionality” in the context of sentencing is a term which is descriptive of the manner in which judicial discretion should, as a matter of principle, be exercised within particular proceedings. 

(a)           Constitutional Proportionality

1.38        Constitutional proportionality is thus applicable to Acts of the Oireachtas.  In the decision of the High Court in Heaney v Ireland,[75] Costello J pronounced the test for constitutional proportionality as follows:

“The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right.  It must relate to concerns pressing and substantial in a free and democratic society.  The means chosen must pass a proportionality test.  They must:-

(a) Be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,

                    (b)  Impair the right as little as possible, and

(c) Be such that their effects on rights are proportional to the objective... .”[76]

1.39        The Supreme Court adopted a similar test in In re the Employment Equality Bill 1996:[77]

“In effect a form of proportionality test must be applied to the proposed section.  (a) Is it rationally designed to meet the objective of the legislation?  (b) Does it intrude into constitutional rights as little as is reasonably possible?  (c) Is there a proportionality between the section and the right to trial in due course of law and the objective of the legislation?”[78]

1.40        Heaney and In re the Employment Equality Bill 1996 were preceded by the Supreme Court decision in Cox v Ireland.[79]  Cox v Ireland has been identified as an important landmark in modern judicial thinking on mandatory sentences.[80]  The plaintiff challenged section 34 of the Offences Against the State Act 1939, which provided that any person convicted by the Special Criminal Court of a scheduled offence would forfeit any office or employment remunerated from public funds and be disqualified from holding any such office or employment for a period of 7 years from the date of conviction.  The plaintiff, a teacher at a community school, was convicted by the Special Criminal Court of a scheduled offence.  As a result, he lost his post, pension and pay-related social insurance rights and became ineligible to work in a similar post for a period of 7 years. 

1.41        Both the High Court and the Supreme Court found section 34 to be unconstitutional.  The High Court (Barr J) held that the penalties imposed by section 34 were patently unfair and capricious in nature and that they amounted to an unreasonable and unjustified interference with the personal rights of the plaintiff.  The Supreme Court observed that the State was entitled to impose onerous and far-reaching penalties for offences threatening the peace and security of the State but that it must, as far as practicable, protect the constitutional rights of the citizen.  It found that the State had failed in this regard as the provisions of section 34 were “impermissibly wide and indiscriminate”.  The mandatory penalties contained in section 34 applied to all scheduled offences which included less serious offences and offences of the utmost gravity.  Furthermore, there was no way to escape the mandatory penalties even if a person could show that his or her intention or motive in committing the offence bore no relation to considerations of the peace and security of the State.

1.42        More recently, in Whelan and Lynch v Minister for Justice, Equality and Law Reform,[81] the Supreme Court applied the Heaney proportionality test to section 2 of the Criminal Justice Act 1990 which imposes a mandatory life sentence for murder.  Confirming that the Oireachtas was empowered to enact legislation setting mandatory penalties, Murray CJ observed that such legislation might be unconstitutional if “there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified”.

1.43        The decision in Cox may, however, be contrasted with the decision in Whelan and Lynch.  In Cox, the Supreme Court found that the mandatory provision concerned was impermissibly wide and indiscriminate in so far as it applied to all scheduled offences without distinction as to their gravity.  In Whelan and Lynch, however, the Supreme Court rejected the appellants’ argument that the mandatory provision concerned was unconstitutional in so far as it prevented the judge from exercising his or her discretion to treat differently, different types of murder case.  The unique nature of murder was found to justify treating all cases of murder, irrespective of the degree of moral blameworthiness, in the same way.

1.44        As mandatory sentencing provisions have the potential to infringe the rights of the accused to a greater extent than discretionary sentencing provisions, the Commission observes that the doctrine of constitutional proportionality should be stringently applied to all mandatory sentencing provisions.  The doctrine of constitutional proportionality thus requires, first, that the mandatory sentencing provision should be rationally connected to the objective it seeks to achieve and should not be arbitrary, unfair or based on irrational considerations.  Second, the mandatory provision should impair the rights of the accused as little as possible.  Third, there should be proportionality between the mandatory provision and the right to trial in due course of law and the objective of the legislation. 

(b)           Sentencing Proportionality

1.45        Proportionality in the context of sentencing operates quite differently from constitutional proportionality.  Here, proportionality requires that a sentence be proportionate to the gravity of the offence and (as is generally accepted) the circumstances of the offender.[82]  The Irish courts have reaffirmed this aspect of proportionality on numerous occasions, including, as already discussed, in the leading case on sentencing in Ireland, The People (Attorney General) v Poyning.[83]  In The People (Attorney General) v O’Driscoll,[84] for instance, the Court of Criminal Appeal stated: 

“It is… the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”[85]

1.46        To the same effect, in The People (DPP) v Tiernan,[86] the Supreme Court was asked to consider a point of law of exceptional public importance,[87] namely, the guidelines applicable to sentences for the crime of rape.  While the Supreme Court refrained from formulating any such guidelines, Finlay CJ observed that “in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him.”[88]

1.47        In The People (DPP) v M,[89] the Supreme Court considered the severity of sentences imposed for a number of counts of buggery, indecent assault and sexual assault.  During the course of its consideration, Denham J indicated that sentences should be proportionate in two respects:

“Firstly, they should be proportionate to the crime.  Thus, a grave offence is reflected by a severe sentence...

However, sentences must also be proportionate to the personal circumstances of the appellant.  The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court.”[90]

1.48        There are numerous other examples where this principle is applied by the Irish courts.[91]

1.49        For the purpose of formulating proportionate sentences, the courts have adopted a three-tiered approach by which they first identify the range of applicable penalties.  Then they locate where on the range of applicable penalties a particular case should lie and finally, they consider the factors which aggravate and mitigate the sentence.[92]  Thus, in the Supreme Court decision in The People (DPP) v M,[93] Egan J stated:

“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable.  One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie.  The mitigating circumstances should then be looked at and an appropriate reduction made.”[94]

Egan J considered the following mitigating factors: (i) the appellant’s guilty plea, (ii) the likelihood of him reoffending, (iii) the appellant’s age, and (iv) the possibility of rehabilitation.  It is clear that “mitigating circumstances”, in this regard, is a reference to circumstances which would mitigate a sentence rather than circumstances which would mitigate the seriousness of an offence.[95]

1.50        The Commission notes therefore, that Egan J’s approach involves three inter-related steps:[96]

            (i) Identifying the range of applicable penalties;

            (ii) Locating the particular case on that range; and

            (iii) Applying any factors which mitigate or aggravate the sentence.

Each of these steps will be considered in turn.

(i)            Identifying the Range of Applicable Penalties

1.51        To determine the range of penalties applicable to the particular offence, the courts consider whether the Oireachtas has provided any guidance by means of, for instance, a statutory maximum or minimum sentence.[97]  Thus, for example, section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 provides that robbery is subject to a maximum penalty of life imprisonment.  As a result, a person convicted of robbery may expect to receive a sentence ranging from zero years to life imprisonment, depending on the circumstances of the case and the offender.  The fact that robbery is subject to a maximum sentence of life imprisonment also indicates how seriously robbery should be considered, as does the statutory direction that an accused charged with robbery should be tried on indictment.[98]  It is thus fair to assume that robbery, for which an offender is “liable on conviction on indictment to imprisonment for life”,[99] is a serious offence.

1.52        For some serious offences, excluding those to which entirely mandatory and mandatory minimum sentences apply, the courts have established points of departure regarding the sentence to be imposed.  Thus, in the Supreme Court decision in The People (DPP) v Tiernan,[100] Finlay CJ made the following remark regarding the sentence for rape:

“Whilst in every criminal case a judge must impose a sentence which in his opinion meets the particular circumstances of the case and of the accused person before him, it is not easy to imagine the circumstances which would justify departure from a substantial immediate custodial sentence for rape and I can only express the view that they would probably be wholly exceptional.”[101] [emphasis added]

Thus a person convicted of rape would ordinarily expect to receive a substantial custodial sentence save where it is shown that there are “wholly exceptional” circumstances.

1.53        Similarly, in the Court of Criminal Appeal decision in The People (DPP) v Princs[102] regarding the sentence for manslaughter, the Court observed:

“[T]he offence of manslaughter, particularly voluntary manslaughter where an unlawful act of violence is involved, should normally involve a substantial term of imprisonment because a person has been killed.  Only where there are special circumstances and context will a moderate sentence or in wholly exceptional circumstances, a non-custodial sentence, be warranted.  Those circumstances are more likely to arise in cases [of] involuntary manslaughter... .” (emphasis added)

Thus a person convicted of manslaughter would ordinarily expect to receive a substantial custodial sentence save where “special circumstances” would justify a moderate sentence or “wholly exceptional circumstances” would justify a non-custodial sentence.

1.54             In considering the range of penalties applicable in manslaughter cases, the Court of Criminal Appeal has, on occasion, had regard to statistical information concerning sentences previously imposed for this offence.[103]  In The People (DPP) v Kelly,[104] the Director of Public Prosecutions provided the Court with two lists detailing 50 recent sentences specified on foot of pleas to, or convictions for, manslaughter.  The Court confirmed that “a trial judge is entitled to request information of this sort and we are glad to have it”.[105]  It also emphasised, however, that such statistical information is of limited value because it does not give information on the individual crimes or what aggravating or mitigating factors there may have been in any case.”[106]  The Court further noted that these particular lists related only to cases tried in the Central Criminal Court and, as such, concerned instances where the accused was originally charged with murder and either a plea to manslaughter was accepted by the Director of Public Prosecutions or the accused was acquitted of murder but convicted of manslaughter.  The Court acknowledged, therefore, that the statistics supplied were not a guide to the practice in the Circuit Court where it may be that the manslaughtercases are of a less aggravated kind.”[107]  This statistical information was also taken into account by the Court of Criminal Appeal in The People (DPP) v Colclough.[108]

1.55        In The People (DPP) v Murray,[109] the Court of Criminal Appeal considered an appeal against the severity of a sentence of 12 and a half years’ imprisonment for 25 counts of social welfare fraud.  Observing that social welfare fraud should not be considered a victimless crime, the Court stated:

            “Quite the contrary: offences of this kind strike at the heart of the principles of equity, equality of treatment and social solidarity on which the entire edifice of the taxation and social security systems lean.  This is especially so at a time of emergency so far as the public finances are concerned.”

1.56             Emphasising the particular importance of maintaining social solidarity through deterrent measures, the Court indicated that:

            “We therefore suggest for the future guidance of sentencing courts that significant and systematic frauds directed upon the public revenue - whether illegal tax evasion on the one hand or social security fraud on the other - should generally meet with an immediate and appreciable custodial sentence, although naturally the sentence to be imposed in any given case must have appropriate regard to the individual circumstances of each accused.” (emphasis added)

1.57             Noting, however, that the sentence of 12 years’ imprisonment for the particular offences would infringe the totality principle,[110]  the Court substituted a sentence of 9 years’ imprisonment with the final year suspended.  Nevertheless, the message of the Court of Criminal Appeal is clear in so far as it states that a person convicted of an offence against the public purse, in the current economic climate at least, may expect to receive “an immediate and appreciable custodial sentence”.

1.58        In general, however, the courts have emphasised that they should not constrain their discretion in sentencing by following a fixed policy where none has been prescribed by law.  In The People (DPP) v WC,[111] the Central Criminal Court indicated that:

“It is not open to a judge in a criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy, or to otherwise pre-determine the issue.”[112]

1.59        Thus, in The People (DPP) v Kelly,[113] where the trial judge had indicated that on the basis of a policy of deterrence he would impose a sentence of 20 years’ imprisonment in cases involving death and serious injury caused by the use of knives, the Court of Criminal Appeal found that he had erred in principle.[114]

1.60        In some cases, the courts have gone further than establishing points of departure by formulating the ranges of penalties applicable to various combinations of facts.  In The People (DPP) v WD,[115] for instance, the Central Criminal Court considered cases of rape over a three-year period in which lenient, ordinary, severe and condign punishments had been imposed.[116] 

1.61        In the category of lenient punishments, the Court considered cases in which a suspended sentence had been imposed.[117]  It noted that a suspended sentence could only be contemplated where the circumstances of the case were “so completely exceptional as to allow the court to approach sentencing for an offence of rape in a way that deviates so completely from the norm established by law.”[118]

1.62        In the category of ordinary punishments, the Court considered cases in which a sentence range of three to 8 years had been applied.[119]  It noted that a sentence at the upper end of the scale, a sentence of 8 years or more, for which the courts took into account aggravating factors, could be imposed even on a plea of guilty.  An offender could expect a sentence at the upper end of the scale where there had been “a worse than usual effect on the victim, where particular violence has been used or where there are relevant previous convictions, such as convictions for violence of some kind.”[120]  An offender could expect a sentence of five years’ imprisonment where he or she had pleaded “guilty to rape in circumstances which involve no additional gratuitous humiliation or violence beyond those ordinarily involved in the offence,”[121] whereas he or she could expect a sentence of six or 7 years’ imprisonment where there was no early admission, remorse or early guilty plea.[122]

1.63        In the category of severe punishments, the Court considered cases in which a sentence range of 9 to 14 years’ imprisonment had been applied.[123]  The Court observed that five of the cases involved individual offences of a single count of rape; 9 involved a single attack that generated more than one conviction; and four involved multiple counts.[124]  It noted that previous convictions for a sexual offence were an aggravating factor which would normally result in the imposition of a severe sentence.[125]  A sentence of 10 or 11 years’ imprisonment was unusual, even after a plea of not guilty, unless there were circumstances of unusual violence or premeditation.[126]  A sentence range of 9 to 14 years’ imprisonment was more likely where the degree to which the offender chose to violate and humiliate the victim warranted it.[127]

1.64        In the category of condign punishments,[128] the Court considered cases in which a sentence range of 15 years’ imprisonment to life imprisonment had been imposed.[129]  The Court observed that 9 involved a single incident that lasted for a considerable number of hours; two involved gang rape; and 11 involved multiple incidents or multiple victims or both.[130]  It noted that factors such as the nature of the victim (being very young or very old), the effect of the attack and the especial nature of the violence or degradation were characteristic of sentences within this most serious category.[131]  A life sentence had been imposed where there had been a need to protect the community and where very serious, vicious and degrading sexual crimes had been committed against a victim over a period of years.[132]  An abuse of trust[133] and the pursuit of a campaign of rape against prostitutes,[134] for instance, were also seen as aggravating factors.

1.65        In The People (DPP) v H,[135] the Court of Criminal Appeal considered the more significant cases in which lenient, ordinary and serious sentences had been imposed for sexual offences which had been committed between 10 and 40 years before prosecution.

1.66        In The People (DPP) v Pakur Pakurian,[136] the Court of Criminal Appeal considered the range of punishments that might apply to robbery:

“...[I]n a very well planned commercial robbery one might be looking at eighteen years for the most culpable people, or twelve years for those less culpable, and one might also find that there are cases where because of the particular circumstances such as a mugging which was caused by heroin addiction which has been cured or where the person has entered rehabilitation, or matters of those nature, that the sentence might be significantly less than the seven years sentence, even perhaps a suspended sentence.  But in between one finds a range of sentences and the Court is sure there are even ones of more than eighteen years, but a range of sentences which are appropriate.”[137]

Thus, depending on the presence of various factors, a person convicted of robbery might expect to receive a sentence in one of the ranges outlined above up to the statutory maximum sentence of life imprisonment.[138]

1.67        The Commission notes that these decisions support the view that it is appropriate that certain offences at the highest end of the scale of gravity should attract an immediate, substantial custodial sentence, save in exceptional circumstances.

(ii)           Locating the Particular Case on the Range of Applicable Penalties: culpability, harm caused and offender behaviour

1.68        Having identified the range of applicable penalties, the courts must then locate the particular case on that range.  In order to do this, the courts must first determine the seriousness or gravity of the particular case.  In The People (DPP) v GK,[139] the Court of Criminal Appeal attempted to identify the factors that must be considered in order to assess the gravity of a particular case:

“Having regard to the jurisprudence of this Court and of the Supreme Court the matters which determine the gravity of a particular offence are the culpability of the offender, the harm caused and the behaviour of the offender in relation to the particular offence.”[140] [emphasis added]

(I)            Culpability

1.69        Regarding culpability, it is useful to have regard to the nature of the mental element or mens rea which the offender is found, or appears, to have had when committing the offence:[141] 

“Intention to cause harm clearly represents the highest level of culpability and the more harm intended, the greater the blameworthiness.  Recklessness, in the sense of a conscious disregard of an unjustifiable risk, comes next, and again the greater and more dangerous the risk, the greater the culpability.  Negligence would rank as the lowest form of culpability, which is not to say that it should be met with impunity if it has produced serious harm.”[142]

Thus, on a scale of culpability, intention ranks highest, negligence ranks lowest and recklessness ranks somewhere in between.

1.70        In The People (DPP) v O’Dwyer,[143] for example, which  concerned careless driving, the Court of Criminal Appeal made the following observation regarding culpability:

“The concept of careless driving covers a wide spectrum of culpability ranging from the less serious to the more serious.  It covers a mere momentary inattention, a more obvious carelessness, a more positive carelessness, bad cases of very careless driving falling below the standard of the reasonably competent driver and cases of repeat offending.  However, since even a mere momentary inattention in the driving of a mechanically propelled vehicle can give rise to a wholly unexpected death, the court has always to define the degree of carelessness and therefore culpability of the driving.”[144]

Thus, for any given offence, the sentencing court must look at the particular circumstances of the case (and the offender) to determine the level of culpability.

1.71        In the same case, the Court considered whether the fact that a death had occurred as a result of the careless driving could be considered an aggravating factor.  In this regard, it distinguished between cases in which death had been an unfortunate consequence and cases in which there had been a high risk of death:

“[T]here is a world of difference between a mere momentary inattention in the driving of a mechanical (sic) propelled vehicle, which unexpectedly and tragically causes a loss of a life, and grossly careless driving, which, though still short of dangerous driving, hardly surprisingly results in a fatal collision.  A rigid adherence in sentencing to an approach which excludes any reference to the death in itself as an aggravating factor, despite the many and various differences in the degrees of careless driving, would not be proportionate.

While the fact of death occurring may be a separate factor in itself, it should not be so in every case where there is a death.  The occasions on which it becomes a factor must depend upon the finding of the court on the primary issue of the degree of carelessness and therefore of the culpability of driving.”[145]

In the particular circumstances of the case, where the primary issue of carelessness revolved around the fact that the applicant had driven with bald tyres, the Court found that it would be disproportionate to regard the death as an aggravating factor in itself.  Nevertheless, this case clearly highlights the close connection between: (a) the culpability of the offender, and (b) the harm caused (which will be considered in the next section) in determining the seriousness of the offence.

(II)           Harm

1.72        Regarding harm, the greater the harm caused, the more serious the offence is likely to be considered.[146]  However, harm alone would be an unreliable indicator of seriousness.[147]  An offender might cause more harm than he or she intended or, through some form of diminished capacity, might not have fully appreciated the likely consequences of his or her actions.  Equally, a person might cause less harm than he or she intended or risked.  It has thus been asserted that the test should be the harm that the offender intended to cause or risked causing where the harm is a reasonably foreseeable consequence.[148]  Thus, as noted at paragraph 1.71, “harm and culpability are inextricably linked”.[149]

1.73        In The People (DPP) v WD,[150] the Central Criminal Court considered the harm caused by a rape in terms of its effect on the victim (which was “somewhat worse than is usual”) in concluding that a sentence at the upper end of the normal range would be appropriate:[151]

“[T]he victim impact statement indicates that the victim had difficulty sleeping at first and suffered panic attacks.  Her concentration went as to her studies and she began to panic about all matters.  She lost interest in study and almost dropped out and left her part time job.  She suffered a big character change from being outgoing into being closed with family and friends.  Now she is uncomfortable in the presence of men and wary while out particularly at night and looking over her shoulder.”[152]

1.74        In The People (DPP) v GK,[153] the Court of Criminal Appeal referred to the “serious harm” done to the victim in concluding that the particular aggravated sexual assault lay in “the mid to upper range of seriousness on the scale of gravity of such assaults”:

“Though the victim did not receive any psychological or psychiatric treatment, it is clear from the Victim Impact Statement that the effect of this sexual assault on her was very grave.  She was unable to work for four weeks.  The cost of treatment to her damaged teeth is €2,900.  Her enjoyment of life has been permanently impaired in that her sense of security in society has been lost and she has become overcautious in moving about during daylight hours and is afraid to go out at night unaccompanied.  This is a very great imposition in the case of a single lady of twenty five years of age.”

1.75        There are a number of general propositions that may be of assistance in determining the extent of the harm caused in a particular case.[154]  On any hierarchy of protected rights and interests, life and bodily integrity should rank highest.  In addition, personal dignity and autonomy are increasingly recognised as important interests that merit strong legal protection.  Similarly, personal liberty should also rank highly.[155]  While private property ordinarily ranks next after life, liberty and bodily integrity, for sentencing purposes the important question is not whether the law should protect private property as an institution, but rather the degree of hardship or harm caused by the offence.  In other words, the seriousness of a property offence should not be assessed solely by reference to the amount taken but also by reference to the suffering or hardship which the offence caused to the victim.  Serious offences involving the violation of fundamental rights may carry a broad presumption in favour of a custodial sentence, but no more than that as mitigating factors may justify the imposition of a more lenient sentence.[156]

(III)          Offender Behaviour

1.76        Regarding offender behaviour, an offence will be considered more serious where there are aggravating factors arising from the offender’s behaviour when committing the offence.[157]  These include the use of a weapon (and the more dangerous the weapon, the more serious the factor);[158] the deliberate procurement of a weapon to commit the offence;[159] the targeting of vulnerable victims;[160] intrusion into a victim’s home;[161] premeditation and planning;[162] participation in a criminal gang;[163] abuse of trust or power;[164] infliction of deliberate and gratuitous violence or degradation over and above that needed to commit the offence;[165] commission of the offence for profit or other personal gain; or evidence of hostility towards the victim on racial, religious or other grounds.

1.77        Thus, for example, in The People (DPP) v Tiernan[166] (a case concerning sentencing for rape) the Supreme Court identified the following aggravating factors:

            “(1) It was a gang rape, having been carried out by three men.

            (2) The victim was raped on more than one occasion.

            (3) The rape was accompanied by acts of sexual perversion.

(4) Violence was used on the victim in addition to the sexual acts committed against her.

(5) The rape was performed by an act of abduction in that the victim was forcibly removed from a car where she was in company with her boyfriend, and her boyfriend was imprisoned by being forcibly detained in the boot of the car so as to prevent him assisting her in defending herself.

(6) It was established that as a consequence of the physical trauma involved in the rape the victim suffered from a serious nervous disorder which lasted for at least six months and rendered her for that period unfit to work.

            (7) The appellant had four previous convictions, being:-

                        (a) for assault occasioning actual bodily harm,

                        (b) for aggravated burglary associated with a wounding,

                        (c) for gross indecency, and

                        (d) for burglary.

Of this criminal record, particularly relevant as an aggravating circumstance to a conviction for rape are the crimes involving violence and the crime involving indecency.”[167]

In light of these factors, the Supreme Court concluded that this was a particularly serious case of rape.

1.78        This approach was applied by the Court of Criminal Appeal in The People (DPP) v Roseberry Construction Ltd and McIntyre,[168] in which the first defendant was a building company and the second defendant was its managing director.  The defendants pleaded guilty to charges under the Safety, Health and Welfare at Work Act 1989 (since replaced by the Safety, Health and Welfare at Work Act 2005) related to the death of two persons on the building site for which the company had overall responsibility as main contractor.  The defendant company was fined €254,000 (£200,000) for failure to have a safety statement under section 12 of the 1989 Act (since replaced by section 20 of the 2005 Act) and the managing director was fined €50,800 (£40,000) for managerial neglect under section 48(19) of the 1989 Act (since replaced by section 80(1) of the 2005 Act).

1.79        The company appealed against the severity of the fines imposed on it, but the Court of Criminal Appeal dismissed the appeal.  The Court applied the general sentencing principle set out in The People (DPP) v Redmond[169] that a fine is neither lenient nor harsh in itself but only in regard to the circumstances of the person who must pay it.  In this case, the Court noted that the somewhat unusual approach had been taken of stating that the company could pay the fine (it was not going to drive it out of business or anything of that sort) without giving any indication of the level of business which the company conducted.  The information which the Court had was the same as the trial judge, namely that it was a medium to large company and that at the time of the fatality it was conducting the building of 90 houses at the building site.  The Court concluded that the company “was a substantial, relatively complex and profitable enterprise.”

1.80             The Court of Criminal Appeal then went on to consider the detailed principles it should apply.  It approved of the list of aggravating and mitigating factors set out by the English Court of Appeal in R v F Howe & Son (Engineers) Ltd,[170] to be taken into account in considering the level of fines to be imposed in prosecutions under the equivalent British Health and Safety at Work Act 1974.[171]  The aggravating factors included: death resulting from a breach of the Act or Regulations; failure to heed warnings; and risks run specifically to save money.[172] The mitigating factors included: prompt admission of responsibility and a timely plea of guilty; steps to remedy the deficiencies; and a good safety record.[173]

1.81        The Court in Roseberry also quoted the following comment of the English Court of Appeal in the Howe case:[174]

“Next it is often a matter of chance that death or serious injury results from even a serious breach.  Generally where death is the consequence of a criminal act it is regarded as an aggravating feature of the offence, the penalty should reflect public disquiet at the unnecessary loss of life.”[175]

1.82        The Court in the Roseberry case commented that what had occurred at the building site “undoubtedly was an unnecessary loss of life.”  The Court also rejected the suggestion that the company could in any substantial way mitigate its liability by saying, in effect, “[w]ell the sub-contractor and not myself and not my company, was directly in charge of digging the trench where the fatality occurred.”  On this aspect, the Court concluded that it was “perfectly plain… that control of the site had been retained by Roseberry Construction Ltd.”  The Court added that its failure to have a Safety Statement and the other failures significantly contributed to what occurred; if the Safety Statement had been prepared, the risk would have been formally considered and no doubt something done about it.  The Court added:

“It was the failure of any party to take the simple remedial measures that gave rise to the substantial legal and moral guilt which must be regarded as attaching in the circumstances of this case.”[176]

1.83        On this basis, the Court concluded that there had been no error in the fine which had been imposed in the Circuit Criminal Court and that, since the defendant was a successful company, the penalty was not excessive in the circumstances.  A significant feature of the decision in the Roseberry case was the reference to the specific aggravating and mitigating factors identified in the English Howe case.

1.84        Similarly, in The People (DPP) v Loving,[177] a child pornography case, the Court of Criminal Appeal referred approvingly to the categorisation of child pornography by the English Court of Appeal in R v Oliver.[178]  In that case, the court suggested the following graduated levels of seriousness in respect of images of child pornography:

            1. Images depicting erotic posing with no sexual activity;

            2. Sexual activity between children solo or masturbation as a child;

            3. Non-penetrative sexual activity between adults and children;

            4. Penetrative sexual activity between children and adults;

            5. Sadism or bestiality.[179]

1.85        The Court in Loving also cited with approval the following comments of Rose LJ in the Oliver case,[180] where he suggested the following elements as being relevant to the offender's proximity to, and responsibility for, the original abuse:

“Any element of commercial gain will place an offence at a high level of seriousness.  In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material.  Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles and by reference to the shame and degradation to the original victims.

Merely locating an image on the internet will generally be less serious than down-loading it.  Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity ...”[181] 

These examples indicate the influence of developments in other jurisdictions concerning sentencing principles and the appropriate grading of sentences within an offence.

1.86        In its 1996 Report on Sentencing,[182] the Commission identified a number of factors which would aggravate the seriousness of an offence:[183]

            “Aggravating factors

            (1)         Whether the offence was planned or premeditated;

(2)        Whether the offender committed the offence as a member of a group organised for crime;

            (3)         Whether the offence formed part of a campaign of offences;

(4)        Whether the offender exploited the position of a weak or defenceless victim or exploited the knowledge that the victim's access to justice might have been impeded;

(5)        Whether the offender exploited a position of confidence or trust, including offences committed by law enforcement officers;

(6)        Whether the offender threatened to use or actually used violence, or used, threatened to use, or carried, a weapon;

(7)        Whether the offender caused, threatened to cause, or risked the death or serious injury of another person, or used or threatened to use excessive cruelty;

(8)        Whether the offender caused or risked substantial economic loss to the victim of the offence;

            (9)         Whether the offence was committed for pleasure or excitement;

(10)      Whether the offender played a leading role in the commission of the offence, or induced others to participate in the commission of the offence;

            (11)       Whether the offence was committed on a law enforcement officer;

            (12)       Any other circumstances which:

                        (a) increase the harm caused or risked by the offender, or

                        (b) increase the culpability of the offender for the offence.”

1.87        The Commission also identified a number of factors which would mitigate the seriousness of an offence:[184]

            “Mitigating factors

(1)        Whether the offence was committed under circumstances of duress not amounting to a defence to criminal liability;

            (2)         Whether the offender was provoked;

(3)        Whether the offence was committed on impulse, or the offender showed no sustained motivation to break the law;

(4)        Whether the offender, through age or ill-health or otherwise, was of reduced mental capacity when committing the offence;

(5)        Whether the offence was occasioned as a result of strong temptation;

(6)        Whether the offender was motivated by strong compassion or human sympathy;

(7)        Whether the offender played only a minor role in the commission of the offence;

            (8)         Whether no serious injury resulted nor was intended;

(9)        Whether the offender made voluntary attempts to prevent the effects of the offence;

(10)      Whether there exist excusing circumstances which, although not amounting to a defence to criminal liability, tend to extenuate the offender's culpability, such as ignorance of the law, mistake of fact, or necessity;

            (11)       Any other circumstances which:

                        (a) reduce the harm caused or risked by the offender, or

                        (b) reduce the culpability of the offender for the offence.”

1.88        The Commission is of the view that it would be useful to set out the factors which aggravate and mitigate the seriousness of an offence for the purposes of any arrangements that may be put in place to develop sentencing guidance and guidelines, such as those discussed in more detail below in this Chapter. 

(iii)         Applying any Factors which Aggravate or Mitigate the Severity of a Sentence

1.89        The factors which aggravate or mitigate the severity of a sentence, as opposed to the seriousness of an offence, are those factors which are likely to affect an otherwise proportionate sentence.  In its 1996 Report on Sentencing,[185] the Commission explained, and underlined the importance of, the distinction:

“The most important distinction drawn is that between factors which mitigate offence seriousness and factors which mitigate sentence.

Factors which aggravate or mitigate the offence arise for consideration when the sentencer is deciding the seriousness of the offending conduct for which the offender is to be held responsible.  Although this may include a consideration of the state of mind or the culpability of the offender during the commission of the offence, the sentencer is, at this stage, primarily concerned with the offending behaviour rather than with the offender personally.

Factors which mitigate sentence arise later.  When the sentencer considers these factors, he or she has decided the seriousness of the offending conduct for which the offender is responsible, but now asks if there is any reason why the offender should not suffer the full punishment which should attach to such responsibility or blameworthiness.  Mitigation of sentence is the making of a concession: the sentencer is saying: ‘although you are undoubtedly responsible for the offending conduct and should be punished for it, I am letting you off a little because of your personal circumstances.’

If there is confusion between the two types of factors a problem arises.  If the confused sentencer takes factors which mitigate sentence into account at the ‘determination of seriousness’ stage then the offender will be found to be less responsible or blameworthy than he or she actually is and the sentence may well give rise to controversy.”[186]

1.90        The Commission identified four factors which would ordinarily mitigate the severity of a sentence:

            “1. The offender has pleaded guilty to the offence;

2. The offender has assisted in the investigation of the offence or in the investigation of other offences;

3. The offender has attempted to remedy the harmful consequences of the offence;

4. The sentence, whether by reason of severe personal injury suffered by the offender in consequence of the offence, age, ill-health, or otherwise, would result in manifest hardship or injustice to the offender or his or her dependents.”[187]

To this list could be added factors such as “previous good character” and “the possibility of rehabilitation”.

1.91        The Oireachtas has provided limited guidance regarding the effect of a guilty plea and cooperation with law enforcement authorities.  Section 29 of the Criminal Justice Act 1999 provides that the courts may take a guilty plea into account when sentencing.  In this regard, the courts should consider: (a) the stage at which the person indicated an intention to plead guilty, and (b) the circumstances in which this indication was given.  Notwithstanding a guilty plea, however, the courts may, in exceptional circumstances, impose the maximum sentence prescribed by law.  In Chapter 4, the Commission will consider in greater detail the provisions of the Misuse of Drugs Act 1977 and the Firearms Acts which provide that the courts may have regard to: (i) whether the person pleaded guilty, and (ii) whether the person materially assisted in the investigation of the offence in determining whether to impose a presumptive minimum sentence.

1.92        The courts have provided more detailed guidance regarding the factors which mitigate the severity of a sentence.  In The People (DPP) v Tiernan,[188] for instance, the Supreme Court indicated that the stage at which a plea of guilty was entered was a relevant consideration:

“[I]n the case of rape an admission of guilt made at an early stage in the investigation of the crime which is followed by a subsequent plea of guilty can be a significant mitigating factor.  I emphasise the admission of guilt at an early stage because if that is followed with a plea of guilty it necessarily makes it possible for the unfortunate victim to have early assurance that she will not be put through the additional suffering of having to describe in detail her rape and face the ordeal of cross-examination.”[189]

1.93        In the English case R v King,[190] Lord Lane CJ indicated that the extent to which cooperation with law enforcement authorities may mitigate the severity of a sentence will depend on a number of factors:

“The quality and quantity of the material disclosed by the informer is one of the things to be considered, as well as the accuracy and the willingness or otherwise of the informer to give evidence against them in due course if required by the court.  Another aspect to consider is the degree to which he has put himself and his family at risk by reason of the information he has given; in other words the risk of reprisal.  No doubt there will be other matters as well.  The reason behind this practice is expediency.”[191]

1.94        The extent to which an attempt to remedy the harmful consequences of an offence may mitigate the severity of a sentence will also depend on the circumstances of the case.[192]  In The People (DPP) v Princs,[193] a case concerning the sentence for manslaughter, it was argued in mitigation of the sentence that the respondent had attempted to save the deceased by stemming the flow of blood with towels or bandages.  The Court of Criminal Appeal indicated that this merited limited credit as the respondent “never called for outside medical assistance even though he told the Gardaí that the deceased was alive after the stabbing for ten or fifteen minutes.”

1.95        In the same case, the Court of Criminal Appeal indicated that the trial judge had been right to taken into account the fact that imprisonment would be particularly difficult for the offender, who was a foreign national.[194]  Similarly, in The People (DPP) v H,[195] a case concerning the sentence for sexual offences which had been committed 30 years before, the Court of Criminal Appeal indicated:

“The age and health of the offender should be looked at.  If the offender is so elderly, or so unwell, then prison will be a special burden to bear, the sentence should reflect how a particular term may punish him as much [as] a longer term for a younger offender in reasonable health.”

1.96        In The People (DPP) v GK,[196] the Court of Criminal Appeal distinguished between the effect of “previous good character” and the effect of previous convictions:

“This court is satisfied that while previous good character is relevant to the character and circumstances of the accused which may be mitigating factors in terms of sentence previous convictions are relevant not in relation to mitigation of sentence but in aggravation of offence.”

1.97        In The People (DPP) v Kelly,[197] a case concerning the sentence for manslaughter, the Court of Criminal Appeal indicated that it would have to “give considerable weight to the absence of previous convictions.”[198]  However, in The People (DPP) v Duffy,[199] the Central Criminal Court emphasised that the weight to be attached to an absence of previous convictions, and to other potential mitigating factors, must relate not only to the person convicted but to the offence at issue.  Thus, McKechnie J observed that in the context of competition law infringements arising from the operation of a price cartel, an absence of previous convictions would “in general have less weight because of the type of individual likely to be involved and the type of conduct maintained.”[200]  In more specific terms, the Court explained that the “generally pernicious nature [of these offences], the fact that the perpetrators knew that their conduct was illegal, and the level of detailed planning and concealment involved in both the network and the activity” meant that an absence of previous convictions would be “of limited application”.[201]

1.98        Regarding the possibility of rehabilitation, the Supreme Court in The People (DPP) v M[202] stated:

“As was stated in the judgments of the Court of Criminal Appeal... an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible is the chance of rehabilitating such person so as to re-enter society after a period of imprisonment...”[203]

Having regard to the accused’s age, the stage at which he would re-enter society, the age he would be at that time and the period of life remaining to him, the Court thus concluded that an overall sentence of 18 years’ imprisonment should be reduced to 12 years’ imprisonment.

(3)           Discussion

1.99        It is thus clear that in addition to the aims of sentencing, criminal sanctions and sentencing are also framed by the justice principles of consistency and proportionality.  It is also clear that the courts have been striving to improve consistency in sentencing by formulating general guidance regarding: (i) points of departure for certain serious offences such as manslaughter (Princs), rape (Tiernan) and social welfare fraud (Murray); (ii) sentencing ranges for offences such as rape (WD), sexual offences (H) and robbery (Pakur Pakurian); (iii) the factors relevant to the determination of the seriousness of an offence (GK); and (iv) the factors that are likely to aggravate or mitigate the seriousness of an offence and the severity of a sentence.  This is a significant development because, as noted at paragraph 1.32, a consistent approach to sentencing is necessary to ensure that a sentence that is proportionate to the circumstances of the particular offence and the particular offender is imposed in all cases.

1.100      On the basis of this analysis, the Commission considers that a principles-based sentencing system which reflects the importance of consistency and proportionality would lead to sentencing outcomes in which:  (1) the most severe sanctions, including lengthy prison sentences, are reserved for the most serious crimes; (2) less severe sanctions, including medium range prison sentences, are reserved for less serious crimes; and (3) the least severe sanctions including fines, probation orders and community service orders are reserved for the least serious crimes.

1.101      In the next Part of this Chapter, the Commission notes, however, that the current Irish sentencing system does not always, in practice, lead to the sentencing outcomes that might be expected in light of the described principles-based approach.

 

E             Towards a Principles-Based Structured Sentencing System

1.102      In Parts B to D, the Commission summarised the key elements of the sentencing system.  In this Part, the Commission notes that while the Supreme Court and the Court of Criminal Appeal have been striving to improve the level of consistency and proportionality in sentencing, commentators and surveys of sentencing practice call into question whether these key elements are, in fact, being realised.  The Commission also notes that significant proposals to develop a more structured sentencing system have been put forward in order to address this issue, including the development of sentencing guidance or guidelines under the auspices of a proposed Judicial Council.  The Commission discusses to what extent such proposals would be of benefit in the context of mandatory and presumptive sentences.

(1)           The Problem of a Lack of Structure and Inconsistent Approaches

1.103      It has been noted that Ireland, by contrast with most common law jurisdictions, has a largely unstructured sentencing system[204] in which the courts exercise a relatively broad sentencing discretion.[205] Commentators have also referred to the “regional organisation of the lower courts, the dearth of formal contact between them and the undoubted duty of all judges to act independently”[206] and to the individualised sentencing system, the multiplicity of sentencing aims, and judicial variability.[207] While it has been correctly noted that “[a]vailable data are insufficient to support any reliable conclusion on the existence or extent of sentencing disparity in Ireland”,[208] two studies appear to support the view that this lack of structure may lead to inconsistency in the sentencing process.

(i)            2007 Study

1.104      In a 2007 study,[209] a number of District Court judges were interviewed and asked to respond to several sentencing vignettes.[210]  The purpose of the study was to explore: (i) judicial views on sentencing and consistency in sentencing; (ii) the degree of consistency in sentencing between individual judges; and (iii) the reasons for inconsistency, if any, in sentencing practices of individual judges. 

1.105      The study made several findings regarding judicial views on sentencing.  The judges’ descriptions of sentencing appeared to correspond with the “instinctive synthesis” approach to sentencing.[211]  While most judges indicated that there was no tariff or “going rate”,[212] some indicated that judges developed their own views of things or their own particular approaches to certain types of cases and penalties.[213]  Some judges rejected the idea that consistency in sentencing was possible in an individualised system.[214]  It would appear, however, that “consistency” in this context referred to consistency of outcomes rather than consistency of approach.

1.106      The study also made several findings regarding the degree of consistency in sentencing between individual judges.  Overall, there were high levels of inconsistency when the sentencing outcomes of the different District Court judges were compared.[215]  The degree of inconsistency in sentencing outcomes varied according to the seriousness of the offence.[216]  The sentencing outcomes were most consistent for the most serious case whereas they were least consistent for the least serious case.  Inconsistency was most pronounced in relation to the type of penalty judges would impose, and was particularly apparent in relation to the choice between different non-custodial sanctions.[217]  The less serious the case the more likely the judges were to agree that it warranted a non-custodial sanction, and the more likely they were to disagree about which non-custodial sanction to impose.  The more serious the case the more likely the judges were to impose a custodial sanction and the more likely they were to agree about the type of custodial sanction.  Even when judges agreed about the type of penalty to impose in a particular case, they disagreed, in some cases quite significantly, about the quantum of penalty to impose. 

1.107      At the same time, several general patterns in sentencing were identified.[218]  In relation to the assault vignette, for instance, one group comprised those who would impose some form of financial penalty; a second group comprised those who would either impose a financial penalty or a more severe penalty such as community service, prison or a suspended sentence; and a third group comprised those who would impose either a community service order, prison sentence or suspended sentence.  A general pattern also emerged in respect of sentencing heroin-addicted offenders.[219]  Most judges indicated that they would offer the offender an opportunity to get drug treatment in order to avoid a prison sentence.  In general, if the offender was successful and complied with all the requirements the court had imposed, the judges indicated that he or she should face a non-custodial penalty.  However, if the offender was unwilling to engage in drug treatment, the majority of judges indicated that they would impose a prison sentence.[220]  In addition, a uniform rationale emerged in respect of the imprisonment of persistent offenders.[221]  Many judges indicated that they would impose an immediate prison sentence principally because the offender had had previous chances yet had refused to change.

1.108      The study concluded that inconsistencies in the sentencing outcomes could be traced back to several discrete factors, all of which related to inconsistency in approach.  These included differences in how judges interpreted the facts of the case, especially the seriousness of the offence; differences in the weight they attached to certain factors, in particular aggravating and mitigating factors; differences in judicial views regarding the appropriateness of different penalties for certain offenders and offences; and differences in the sentencing objectives prioritised.[222]  Maguire thus asserts that reducing inconsistency in Ireland will require “addressing the incoherency of current sentencing policy and law, as well as trying to mitigate the worst effects of judicial variability”.[223] 

(ii)           2003 Study

1.109      In 2003, the Irish Penal Reform Trust undertook a study into sentencing patterns in the Dublin District Court.[224]  The study was carried out over an 8-week period by two IPRT researchers who observed proceedings in the Dublin District Court.  The purpose of the study was to: (i) identify how judges use the sentencing options open to them and the patterns, if any, in their choices; and (ii) determine how often reasons are given for sentences.  The study found that judges rarely made explicit connections between custodial sanctions and rationales for imprisonment.  When they did speak of rationales, however, they demonstrated no coherent policy.  Thus there was little consistency in approach.  Researchers also witnessed very different outcomes for cases with very similar factual matrices.  For the same minor offence, the penalty ranged from a simple reprimand to a fine to a recorded conviction that restricted employment opportunities and might expose an impecunious offender to the risk of imprisonment.  Thus, there was little consistency in outcomes.

(b)           Discussion

1.110      As noted at paragraph 1.36, there are certain important advantages to the current system of sentencing, in particular, judicial independence and discretion.  Without these vital aspects there would be little justice in sentencing and the Commission thus observes that they should be preserved.  The studies discussed, however, suggest that the unstructured nature of the current sentencing system may (in spite of guidance provided by the Oireachtas, the Supreme Court and the Court of Criminal Appeal) give rise to a degree of inconsistency in the application of sentencing aims and principles.  This may suggest that the guidance provided is not taking hold and/or is not transmitting down to the lower courts, such as the Dublin and Cork District Courts surveyed in those studies.  In addition, it suggests that the reasons for the apparent inconsistencies may not be dealt with either on a once-off basis, such as where the Oireachtas prescribes a mandatory, presumptive or maximum sentence, or on an ad-hoc basis, such as where the Supreme Court or the Court of Criminal Appeal formulates guidance in specific cases.  For these reasons, the Commission next considers the option of building on the existing level of structure to improve consistency in sentencing.

(2)           Improved Structure and Greater Consistency in Sentencing

1.111      The Commission acknowledges the progress that has been made by the courts and the Irish Sentencing Information System (ISIS) with regard to improving the structure of sentencing.  Given the level of inconsistency which remains in the system, however, the Commission observes that the work undertaken by the courts and ISIS might be usefully supplemented and/or supported by a dedicated body, such as a Judicial Council, empowered to formulate sentencing guidance on an ongoing basis. 

(a)           Judicial Guidance

1.112      Regarding the courts, the Commission observes that the courts have developed their thinking since the decision of The People (DPP) v Tiernan,[225] in which the Supreme Court showed an initial reluctance towards sentencing guidance, at least in respect of the rigidity that sentencing standards or tariffs might entail.  As illustrated in Part D above, the Supreme Court and the Court of Criminal Appeal are responsible for much of the judicial guidance on sentencing today.  In particular, the Court of Criminal Appeal, through its appellate review power, is uniquely situated to offer effective guidance on many key aspects of sentencing.[226]

1.113       Despite its advantageous position, however, the reach of the Court of Criminal Appeal is limited in a number of respects.  First, the capacity of the Court to formulate sentencing principles is restricted by the range of offences within its jurisdiction.[227]  Typically, it is confined to dealing with appeals against sentence for serious offences and will have little opportunity to consider sentencing practice in the courts of summary jurisdiction.[228]  Second, the Court lacks a sufficient volume of sentencing appeals from which to develop considered and principled sentencing guidance.[229]  Third, even when the opportunity does arise to develop sentencing guidance, it is limited to a case-by-case consideration.[230]  Where guidance is delivered on this basis, sometimes over many years by differently constituted courts, there is a risk that the resulting judgments may be internally consistent, yet inconsistent with each other.[231]  The sentencing ranges specified for one offence may thus be higher than those specified for another offence that would usually be regarded as less grave.[232]  Fourth, the Court of Criminal Appeal operates in an information vacuum[233] in so far as it is, by and large, dependent on the information submitted by counsel and any pre-sentence reports.  Finally, it is difficult to compile a comprehensive record of the guidance formulated by the Court of Criminal Appeal as the dissemination of appellate decisions is somewhat unstructured.[234]

 

(b)           Irish Sentencing Information System

1.114      In addition to the Court of Criminal Appeal, the Irish Sentencing Information System (ISIS) was established on a pilot basis.  The results of the pilot project, which was completed in 2010, have been made available on a dedicated website (www.irishsentencing.ie).  ISIS, which is broadly similar to information systems in New South Wales and Scotland,[235] is a searchable database of the sentencing decisions of the Dublin, Limerick, and Cork Circuit Criminal Courts.[236]  It is hoped that ISIS will be established on a permanent basis, perhaps as part of a Judicial Council,[237] and that it will assist judges to form preliminary views as to appropriate sentences; to deal with unusual features of cases; and to locate offences on the spectrum of sentences.[238]  At the moment, however, the potential of ISIS is limited in a number of respects.  The database, which has not been updated since 2010, provides access to a limited selection of sentencing decisions from the Circuit Criminal Court in Dublin and, to a lesser extent, Cork and Limerick.[239]  In addition, the database does not provide any formal analysis of the sentencing decisions.

1.115      The Commission notes, however, the announcement by the ISIS Committee, in January 2013, of three new initiatives designed to advance its work in providing sentencing information.[240]  Firstly, the Committee has confirmed that ISIS has received the necessary resource support to recommence its work in gathering and providing sentencing information through its online database.  Secondly, the Committee has signalled its intention to recommence providing sentencing information in relation to specific issues and to hold public seminars on matters relevant to sentencing.[241]  Thirdly, ISIS has also published three recent analyses,[242] prepared by the Judicial Researchers’ Office, of sentencing in cases of:  (i) rape, (ii) manslaughter, and (iii) robbery. 

(c)           Judicial Council

1.116      The Commission observes that a Judicial Council may now be added to this list.  In 2011, the Chief Justice established a Judicial Council on an interim basis.[243]  This followed the publication in 2010 of the Scheme of a Judicial Council Bill.[244]  This was inspired by the 2000 Report of the Committee on Judicial Conduct and Ethics (the Keane Committee) which recommended the establishment of a Judicial Council which would have “functions similar in some respects to those of the judicial commission established in New South Wales.”[245]  Head 4 of the Scheme of a Judicial Council Bill proposes that the members of the Judicial Council would be the Chief Justice, the President of the High Court, the President of the Circuit Court and the President of the District Court.  Head 12 proposes the establishment of a Judicial Studies Institute as a committee of the Judicial Council.  It also proposes that the functions of the Institute would include the preparation and distribution of Bench Books and the dissemination of information on sentencing.[246]

1.117      By contrast with the courts and ISIS, it is likely that such a Judicial Studies Institute would be in a position to formulate guidance on a regular and on-going basis.  This guidance could be informed by wide ranging research and made available to all the courts and the public.  Furthermore, as a Judicial Council would be led by members of the judiciary, this process of developing guidance should not take away from the need to preserve judicial independence or judicial discretion.

(d)               Developments in Northern Ireland

1.118      The Commission observes that Ireland is somewhat behind the majority of its common law counterparts regarding the development of structured sentencing mechanisms which have, by and large, taken the form of statutory sentencing frameworks.[247]  However, in respect of Northern Ireland (a legal jurisdiction which closely resembles our own), Ireland seems to have reached a similar stage in its consideration of how best to achieve a more structured sentencing system.

1.119      Traditionally, the courts of Northern Ireland have been guided by the guideline sentencing judgments of the Northern Ireland Court of Appeal and, to a lesser extent, by comparable guidelines from England and Wales.  In 2010, the Hillsborough Agreement,[248] which provided for the devolution of justice matters to the Northern Ireland Executive and Northern Ireland Assembly, contained a proposal to establish a sentencing guidelines council. This followed the establishment in 2009 by the Northern Ireland Lord Chief Justice of a Sentencing Working Group, which reported in June 2010.[249]  In its report, the Working Group recommended the establishment of a Sentencing Group which would be chaired by a Lord Justice of Appeal and would comprise representatives of the judiciary.  The functions of the Working Group would be to: (a) take views on priority areas in which sentencing guidelines were needed, (b) put arrangements in place for guidance to be delivered in those areas, and (c) consider Court of Appeal and first instance sentencing cases which might merit inclusion in the Northern Ireland Sentencing Guidelines and Guidance Case Compendium on the Judicial Studies Board website.[250]  Following this, the Lord Chief Justice launched a public consultation on what should be included in a priority list of areas for which sentencing guidelines were needed.[251]  As a result of this consultation process, a First Programme of Action on Sentencing was developed.  This set out the following categories of offence:

·  Domestic violence;

·  Serious sexual offences;

·  Human trafficking;

·  Attacks on public workers, including police officers;

·  Attacks on vulnerable people, including the elderly;

·  Duty evasion and smuggling;

·  Environmental crime in the Crown Court;

·  Honour-based crime;

·  Tiger kidnapping;

·  Intellectual property crime;

·  Road traffic offences;

·  Hate crime;

·  Health and safety offences causing death;

·  Manslaughter; and

·  Child cruelty and neglect and serious assaults on children.

1.120      Parallel to this, the Northern Ireland Minister for Justice published a Consultation Document on a Sentencing Guidelines Mechanism in 2010.[252]  This set out three options for a sentencing guidelines mechanism:

·       A Sentencing Guidelines Council with responsibility for producing guidelines;

·       A Sentencing Advisory Panel with responsibility for drafting guidelines for the approval of the Court of Appeal; and

·       A mechanism based on measures being introduced by the Lord Chief Justice to enhance procedures for monitoring and developing sentencing practice.

The results of the consultation process seemed to suggest that amongst those who responded the first option was the preferred option, the second option was the second most popular and the third option was the least favoured option.[253] 

1.121      The issue of structured sentencing (and, more particularly, the issue of mandatory sentencing) has arisen on a number of occasions in the Northern Ireland Assembly.  In November 2011, a private member’s motion, which called for the introduction of mandatory minimum prison sentences for those convicted of violent crimes against older or vulnerable people, was introduced.[254]  In response, the Northern Ireland Minister for Justice expressed the view that sentencing in individual cases was a matter for judicial discretion guided by sentencing guidelines.[255]  Those guidelines indicated that the courts should include issues such as the vulnerability of the victim as a factor which aggravated the sentence to be imposed.  By contrast, mandatory minimum sentences left no room for discretion and thus no allowance for the exceptional case.  The Minister also referred to the work being undertaken by the Northern Ireland Department of Justice and the Lord Chief Justice regarding the development of a sentencing guidelines mechanism.

1.122      In June 2012, following the sentencing of those who had been convicted of the murder of Police Constable Stephen Carroll, a private member’s motion, which called for the introduction of a 30-year minimum sentence for the murder of PSNI officers, was introduced.[256]  In addition, a proposed amendment to the motion called for the establishment of an independent sentencing guidelines council for Northern Ireland.[257]  In response, the Northern Ireland Minister for Justice indicated that once the Court of Appeal had time to consider an appeal against the sentence imposed on one of the accused, the Department of Justice would launch a review of the legislation governing the determination of tariffs where the court has passed a life sentence.[258]  Regarding the establishment of an independent sentencing guidelines council, the Minister responded that such a model would be too costly to establish and too costly to maintain in the current economic climate.[259]  He indicated that, instead, the Lord Chief Justice’s initiative would deliver everything a formal sentencing guidelines council could without the unnecessary expenditure.[260]  In addition, he noted that the Lord Chief Justice, in the interest of community engagement, had agreed to include two lay members in the Sentencing Group.[261]  He also stated that he would be developing a community engagement strategy to ensure a two-way flow of information on sentencing issues.[262]  He concluded by indicating that these mechanisms would be reviewed within two years to assess their effectiveness and that if a case existed for a formal sentencing guidance council, he would be prepared to reconsider it at that point.[263]

(3)           Conclusions and the Commission’s General Approach

1.123      In this Chapter, the Commission has considered the general aim of the criminal justice system (namely, the reduction of prohibited or unwanted conduct) as well as the attributes of criminal sanctions and the principles of justice, in order to provide a conceptual framework for the analysis of the different forms of mandatory sentences to be reviewed in Chapters 3 to 5.  In this regard, the Commission identified four main aims of criminal sanctions, namely: (a) deterrence, (b) punishment, (c) reform and rehabilitation, and (d) reparation.  The Commission also identified two key aspects of the justice principle, namely: (a) consistency, and (b) proportionality (including constitutional and sentencing proportionality).

1.124      The Commission notes the particular importance of proportionality which requires an individualised approach to sentencing whereby the court has regard to the circumstances of both the offence and the offender.  In this context, the Commission fully appreciates (based on the review of the relevant case law in this Chapter) that the Supreme Court and the Court of Criminal Appeal have developed general guidance and, in some instances, specific guidelines, such as the strong presumption in favour of a custodial sentence on conviction for manslaughter, rape and social welfare fraud.  These are clearly intended to provide principle-based clarity around likely sentencing outcomes and to reflect comparable developments in many other jurisdictions.  The Commission notes the importance of such guidance and guidelines, bearing in mind that the Oireachtas has provided for a very wide discretion as to the actual sentence to be imposed for the majority of criminal offences, including some of the most serious offences, such as manslaughter, rape and fraud, for which the sentence can range from no custodial sentence to a maximum of life imprisonment.

1.125      The Commission has also discussed in this Chapter, the extensive case law in Ireland which indicates that sentencing courts are also conscious of the need to consider a wide range of aggravating and mitigating factors, set out in the Commission’s 1996 Report on Sentencing,[264] as well as the individual circumstances of the offender. It is equally clear that since 1996, the courts have also had regard to comparable case law and developments in other jurisdictions concerning the ongoing development of such factors.

1.126      The Commission also notes, however, that in spite of the development and recognition of the general aim of the criminal justice system and the principles of justice, there remain deficiencies in the sentencing system in Ireland.  The Commission has discussed the recommendations made in 2000, and reiterated in 2011, that sentencing guidance and guidelines should be developed in an even more structured manner by a proposed Judicial Council.  The Commission fully supports those recommendations and notes that such guidance and guidelines could build on the framework provided by the general aims of criminal sanctions, and principles of sentencing, discussed in this Chapter.  They would also have the benefit of the guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal, including those discussed in this Chapter.  Such guidance could also build on the growing importance of the Irish Sentencing Information System (ISIS) which, as already discussed, has the potential to provide a significant database of sentencing information for the courts.  In this respect, the Commission agrees with the view that ISIS could in time be regarded as a leading model of its type.[265]

1.127      In conclusion therefore, the Commission supports the recommendations made in 2000, and reiterated in 2011, that a Judicial Council be empowered to develop and publish suitable guidance or guidelines on sentencing, which would reflect the general aim of the criminal justice system and the principles of sentencing discussed in this Report.  The Commission has also concluded, and recommends, that such guidance or guidelines should have regard to: (i) the sentencing guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal (including those discussed in this Report); (ii) the aggravating and mitigating factors, and individual offender characteristics, identified in the Commission’s 1996 Report on Sentencing and developed by the courts since 1996; and (iii) information in relevant databases including, in particular, the Irish Sentencing Information System (ISIS).

1.128      The Commission supports the recommendations made in 2000, and reiterated in 2011, that a Judicial Council be empowered to develop and publish suitable guidance or guidelines on sentencing, which would reflect the general aims of criminal sanctions and the principles of sentencing discussed in this Report.  The Commission also recommends that such guidance or guidelines should have regard to: (i) the sentencing guidance and guidelines available from decisions of the Supreme Court and the Court of Criminal Appeal  (including those discussed in this Report); (ii) the aggravating and mitigating factors, and individual offender characteristics, identified in the Commission’s 1996 Report on Sentencing and developed by the courts since 1996; and (iii) information in relevant databases including, in particular, the Irish Sentencing Information System (ISIS).

 

(4)           Structured Sentencing in the Context of Mandatory and Presumptive Regimes

1.129      The Commission acknowledges the importance of a structured sentencing system because, in general terms, such a system is more likely to lead to outcomes that reduce the risk of an inconsistent application of key principles.  In particular, a structured system would be more likely to ensure that the principles-based appellate guidance discussed above would be applied in practice.  This is important in the context of the general discretion that the Oireachtas has conferred on the courts in respect of such serious offences as manslaughter, rape and fraud, and which the appellate courts have recognised (in the discussed Princs, Tiernan and Murray cases) should be reflected in the general approach to be taken in determining individual sentencing outcomes.

1.130      In Chapter 2, the Commission discusses in detail the history of the development of mandatory and presumptive sentences.  This Chapter notes that the development of the mandatory life sentence for murder evolved as a replacement for the death penalty and thus has a very different narrative and can be considered sui generis.  Bearing in mind that unique history, the Commission makes specific proposals in Chapter 3 in connection with the sentencing regime for murder, which are informed by the principles discussed in this Chapter and the proposed development of a more structured sentencing system.

1.131      The Commission also notes in Chapter 2 that the development of presumptive sentences, notably for certain drugs and firearms offences, differed from that of the mandatory life sentence for murder.  The Commission notes that, both internationally and nationally, these sentences were introduced against specific backgrounds, notably the emergence of organised crime.  The Commission acknowledges that, to some extent, these sentencing regimes emerged in Ireland against the backdrop of a growing recognition of the significant harm caused to society by such offences, and a wish on the part of the Oireachtas to mark the gravity of these offences by placing severe constraints on sentencing discretion. 

1.132      The Commission considers that, in these contexts, the nature of the constraints imposed on sentencing discretion may also have been influenced by the relatively unstructured nature of the sentencing system and the resulting risk of inconsistency identified in the surveys discussed above.  In that respect, the Commission considers that the proposals for a principles-based structured sentencing system (as outlined in this Chapter and supported by the Commission) would assist in ensuring that, in practice, there is an appropriate application of relevant sentencing principles.  In that respect also, the specific recommendations in Chapter 4 regarding drugs and firearms offences have been influenced by these proposed developments.

1.133      As to mandatory and presumptive sentencing regimes for habitual offenders, the Commission acknowledges in Chapter 2 the much longer history of these statutory interventions.  The Commission’s specific recommendations in Chapter 5 regarding repeat offences have also been influenced by the discussion of sentencing principles in this Chapter, and by the proposals for a more structured sentencing regime.

 


2         

CHAPTER 2            historical evolution of mandatory sentences

A             Introduction

2.01        In this Chapter, the Commission traces the historical evolution of the three types of mandatory sentence discussed in this Report.  Part B outlines the historical evolution of entirely mandatory sentences (specifically, the mandatory life sentence for murder) in the United Kingdom and Ireland.  In Part C, the Commission discusses the development of presumptive and mandatory minimum sentences for drugs and firearms offences in the United States of America, the United Kingdom and Ireland.  Part D considers the evolution of mandatory sentences for repeat offenders in the United States of America, England and Wales, and Ireland.  In Part E, the Commission draws a number of conclusions from the manner in which these sentencing regimes developed. 

B             Historical Evolution of Entirely Mandatory Sentences

2.02        An entirely mandatory sentence is a mandatory sentence that permits of no exceptions.  In Ireland, an entirely mandatory life sentence is prescribed for the offences of: (a) murder;[266]  (b) the murder of a designated person such as a member of An Garda Síochána;[267] and (c) treason.  In this section, the Commission considers the historical evolution of the mandatory life sentence for murder in Ireland in comparison to contemporaneous developments in England and Wales.

(1)           United Kingdom

(a)           England and Wales

(i)            Abolition of the Death Penalty

2.03        While capital punishment had been progressively abolished throughout the first half of the 19th century, section 2 of the Offences Against the Person Act 1861 retained the death penalty as the penalty for murder.[268]  Section 2 provided that “Upon every Conviction for Murder the Court shall pronounce the Sentence of Death”.  The provision applied to all persons convicted of murder but, in reality, the death penalty was commuted to imprisonment or some other form of detention in most cases.

2.04        During the first half of the 20th century, several statutes were enacted which further reduced the circumstances in which the death penalty applied.[269]  In 1908, the death penalty was abolished in respect of children under 16 years of age[270] and in 1933 the statutory age limit was raised to 18 years.[271]  In 1922, the death penalty was abolished in respect of the killing of a baby by its mother[272] and in 1938 it was abolished in respect of the killing of a one-year-old child.[273]  There were also a number of high-profile cases which captured adverse public attention,[274] including the case of Edith Thompson and her lover, Frederick Bywaters, in 1923[275] and the case of George Stoner and his lover, Alma Rattenbury, in 1935.[276] 

2.05        A number of attempts were made to abolish the death penalty.  In 1929, a Select Committee on Capital Punishment recommended the suspension of the death penalty for a trial period of five years.[277]  In 1938, the House of Commons carried an amendment to the abortive Criminal Justice Bill 1938 which sought to abolish the death penalty entirely.[278]  In 1948, the House of Commons carried an amendment to the Criminal Justice Bill 1948 which again sought to suspend the death penalty for a period of five years.[279]  This was reversed by the House of Lords and, at report stage, a back-bencher, Sydney Silverman, tabled an amendment to the same effect.[280]  Each attempt failed.

2.06        In 1949, a Royal Commission on Capital Punishment, the Gowers Commission, was established to consider whether liability to suffer capital punishment for murder should be limited or modified and, if so, to what extent or by what means.[281]  In its 1953 Report,[282] the Gowers Commission made a number of recommendations including that the statutory age limit for the death penalty should be raised from 18 to 21 years; that discretion should be given to the jury to decide whether to impose the death penalty or a life sentence; that degrees of murder should not be established; and that the M’Naghten rules governing the insanity defence should be reformed.[283]  It has been asserted that the report had a limited impact on policy-makers as its most significant recommendations were subsequently rejected by the government.[284] 

2.07        In spite of this setback, those in favour of abolition continued to campaign.  They were spurred on not least by three controversial cases which raised considerable doubt about the fairness and infallibility of the law relating to murder.[285]  The first case was that of Timothy Evans who was hanged in 1950 for the murder of his baby daughter, Geraldine, while a count relating to the murder of his wife, Beryl, was left on file.[286]  It later transpired that a neighbour turned Crown Prosecution witness, John Christie, was responsible for the deaths.  The second case was that of Derek Bentley who was sentenced to death in 1952 for the murder of Police Constable Sidney Miles during a robbery.[287]  Bentley was 19 years of age at the time but had the mental capacity of an 11-year-old.  His co-accused, 16-year-old Christopher Craig, who had fired the fatal shot, was sentenced to detention during Her Majesty’s pleasure.  Notwithstanding a jury recommendation for mercy, Bentley was hanged in 1953.[288]  The third case was that of Ruth Ellis who was hanged in 1955 for the murder of her former lover, David Blakely.[289]  Ellis was a young mother of two, who led a “life that left much to be desired by suburban standards of morality”.[290]  While she did not deny the killing, it was argued on her behalf that she had shot Blakely after he had caused her to miscarry their baby by punching her repeatedly in the abdomen.  This did not, however, persuade the court to amend the charge to one of manslaughter. 

2.08        In 1956, a motion to retain the death penalty but change the law on murder was defeated in the House of Lords, as was a Death Penalty (Abolition) Bill introduced by Sydney Silverman.[291]  As a compromise, the government introduced a Homicide Bill which was later enacted as the Homicide Act 1957.[292] 

2.09        The Homicide Act 1957 implemented some of the recommendations made by the Gowers Commission.[293]  It limited the scope of murder by abolishing the doctrine of “constructive malice” and extending the defence of provocation to cover words as well as deeds.  The Act also provided that in cases involving suicide pacts, a surviving party should be liable only for the manslaughter (as opposed to murder) of the victim.  While it did not extend the defence of insanity under the 1843 M’Naghten Rules, the Act did introduce the concept of “diminished responsibility”.  Furthermore, contrary to the recommendation of the Gowers Commission, it introduced degrees of murder.  Certain types of murder, designated “capital murder,” would continue to attract the death penalty[294] while other types of murder would in future attract a mandatory life sentence.  It has been noted that this proved to be an unstable compromise which failed to achieve the support of the senior judiciary and did little to diminish anxieties about the possibility of mistake in capital cases.[295] 

2.10        In 1964, Peter Anthony Allen and Gwynne Owen Evans,[296] who were hanged for the murder of John West during a robbery, became the last people to suffer the death penalty before abolition in 1965.[297] 

2.11        In 1965, Sydney Silverman introduced the Murder (Abolition of Death Penalty) Bill as a private member’s Bill.[298]  The Bill completed its passage through Committee Stage in the House of Commons with one amendment that limited its period of operation to five years, unless Parliament by affirmative resolution of both Houses determined otherwise.[299]  At Committee Stage in the House of Lords, Lord Parker proposed an amendment to the Bill that would replace the mandatory life sentence with a discretionary life sentence.[300]  While this proposal received some support, it was ultimately defeated.  Lord Parker proposed a further amendment that would enable the court to recommend a minimum period which should elapse before the Secretary of State ordered the release of the prisoner on licence.[301]  This proposal met with greater success.

2.12        The Bill was enacted as the Murder (Abolition of Death Penalty) Act 1965.  Section 1(1) provided that persons convicted of murder who were aged 18 years or more at the time of the offence would receive an automatic life sentence whereas persons aged less than 18 years would continue to be detained at Her Majesty’s Pleasure.  Section 1(2) provided that the court could, in imposing a life sentence for murder, recommend a minimum period which should elapse before the Secretary of State ordered the release of the offender on licence.  In 1969, Parliament, by affirmative resolution of both Houses, determined that the Murder (Abolition of Death Penalty) Act 1965 should remain in force without time limit.[302] 

2.13        While the mandatory life sentence remains the penalty for murder in England and Wales, the enactment of the Murder (Abolition of Death Penalty) Act 1965 did not mark the end of the debate.  Over time, public dissatisfaction with the life sentence grew as it came to be understood that those who received a life sentence would, in fact, serve a much shorter period in prison, specifically, in the region of 9 years.[303]  This led to a reference to the Criminal Law Revision Committee in England and Wales to review the penalty for homicide.[304]  In its 1973 Report,[305] the Committee recommended the retention of the mandatory life sentence for murder and a number of procedural clarifications.  It expressed the view that the courts should not be required to recommend a minimum term in every case;[306] that any recommendation should not be binding;[307] that any recommendation should be considered part of the sentence and, therefore, appealable;[308] and that the court should not be required to give reasons for its recommendation.[309]  It also expressed the view that the deterrent value of the life sentence would be enhanced and a number of misunderstandings removed if the pronouncement of the court were to reflect the fact that the prisoner sentenced to life imprisonment might be released but would remain liable to imprisonment for the rest of his or her life.[310] 

2.14        Subsequently, the Butler Committee on Mentally Abnormal Offenders[311] and the Advisory Council on the Penal System[312] recommended, for different reasons, the abolition of the mandatory life sentence and its replacement with a maximum sentence of life imprisonment.[313]  The Advisory Council disliked the life sentence because it was wholly indeterminate.  This, it asserted, would have a detrimental effect on the prisoner and place a severe burden on an already pressurised prison system.  The Butler Committee, on the other hand, was dissatisfied with the operation of the defence of “diminished responsibility” which, it thought, would be rendered obsolete if the mandatory life sentence was abolished.  The Criminal Law Revision Committee returned to consider the mandatory life sentence in its Report on Offences against the Person in 1980.[314]  This time, however, the Committee members were almost equally divided between those who favoured the mandatory sentence and those who preferred a discretionary sentence.  

(ii)           European Convention on Human Rights

2.15        The life sentence for murder in England and Wales has been considered on numerous occasions by the European Court of Human Rights.  These cases are primarily concerned with Article 5(1) and Article 5(4) of the European Convention on Human Rights.  Two key principles regarding Article 5 have been extracted from the resultant jurisprudence:

“First, the underlying purpose of Article 5 is to protect individuals from being deprived of their liberty arbitrarily:  in the context of life sentence prisoners a decision to continue their detention should not be taken arbitrarily.  The required protection is achieved through the review mechanism prescribed by Article 5(4).  Second, it may be inferred from the jurisprudence that prolonged detention can be justified on the limited grounds of risk and dangerousness.”[315] [Emphasis added.]

2.16        It may be recalled that the mandatory life sentence in the United Kingdom is composed of two parts:  a punitive part and a preventative part.  (This may be contrasted with the Irish sentencing system which considers life sentences to be wholly punitive.)  Once the punitive part of a sentence is served, the continued detention of a prisoner under the preventative part can only be justified on the ground that the prisoner continues to represent a risk or danger to the public.  Thus, while the imposition of a life sentence may be lawful under Article 5(1), the continued detention of a prisoner may become unlawful where the punitive part of the sentence has been served and the prisoner no longer represents a risk or danger to the public. 

2.17        Thus, the European Court of Human Rights established the principle that the continued detention of a prisoner under the preventative part of a life sentence must be periodically reviewed in accordance with Article 5(4) of the European Convention on Human Rights.  In Weeks v United Kingdom,[316] the applicant had received a discretionary life sentence for armed robbery on the basis that he was a dangerous offender.  He had been subsequently released on licence which was revoked when he committed a further offence.  The applicant contended that his detention subsequent to the revocation of his licence was contrary to Article 5(1) and that he had not been able to have his continued detention reviewed in accordance with Article 5(4).[317]  The Court acknowledged that the freedom enjoyed by a prisoner on licence was “more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen” but held that it qualified as “freedom” for the purpose of Article 5(1).[318]  The applicant was thus entitled to invoke Article 5(1).  Referring to the disturbed and aggressive behaviour of the applicant, the Court found, however, that the decision to revoke his licence and re-detain him had been neither arbitrary nor unreasonable and was, therefore, compatible with Article 5(1).[319]  Once returned to custody and at reasonable intervals thereafter, however, the Court ruled that the applicant was entitled to have his continued detention reviewed in accordance with Article 5(4).[320]

2.18        The European Court of Human Rights initially drew a distinction between discretionary life sentences and mandatory life sentences.[321]  Whereas the discretionary life sentence was composed of both a punitive and a preventative part, the mandatory life sentence was wholly punitive.  Thus, periodic review of detention under a mandatory life sentence was not required.  In Wynne v United Kingdom,[322] the applicant had received a mandatory life sentence for murder.  He had been subsequently released on a life licence during which time he killed a woman.  The applicant was convicted of manslaughter and the domestic court imposed a discretionary life sentence and revoked his life licence.  Once the punitive part of the discretionary life sentence was served, the applicant contended that he was entitled to have his continued detention reviewed.[323]  The European Court of Human Rights dismissed his claim, holding that his conviction for manslaughter did not affect the continued validity of the mandatory life sentence or its reactivation on his recall.  The conviction or, more particularly, the discretionary life sentence merely provided a supplementary legal basis for his detention.  Citing Thynne, Wilson and Gunnell v United Kingdom,[324] the Court held that in the context of mandatory life sentences, the guarantee of Article 5(4) was satisfied by the original trial and appeal proceedings.[325]  It thus conferred no additional right to challenge the lawfulness of continuing detention or re-detention following the revocation of a licence.  In the course of its judgment, the Court distinguished between discretionary life sentences and mandatory life sentences:

“[T]he fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender... .  That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases ... does not alter this essential distinction between the two types of life sentence.”[326]

2.19        In Thynne, Wilson and Gunnell v United Kingdom,[327] the applicants were convicted sex offenders who had been sentenced to discretionary terms of life imprisonment.  Having served the punitive parts of their sentences, the applicants complained that they had not been able to have their continued detention periodically reviewed in accordance with Article 5(4).[328]  Each of the applicants had been found to be suffering from a mental or personality disorder and to be dangerous and in need of treatment.  Since the factors of mental instability and dangerousness were susceptible to change over the passage of time, the Court found that new issues of lawfulness could arise during the course of their detention.[329]  Thus, the applicants were entitled to have their continued detention reviewed by a court-like body.

2.20        As a result of this decision, section 34 of the Criminal Justice Act 1991 introduced a procedure to review the preventive part of a discretionary life sentence.[330]  It also formalised the sentencing procedure so that a judge imposing a discretionary life sentence was now required to specify in open court the punitive part of the sentence.  In the 2002 Practice Direction (Criminal Proceedings: Consolidation),[331] it is indicated that it is only in very exceptional circumstances that a judge would be justified in not specifying a tariff.  This might occur where the judge considers that the offence is so serious that detention for life is justified by the gravity of the offence alone, irrespective of any risk to the public.  In such a case, the judge should state this when imposing the sentence.  The tariff is a sentence for the purposes of the Criminal Appeal Act 1968 and may thus be subject to appeal.[332] 

2.21        Over time, the European Court of Human Rights began to question the distinction between discretionary life sentences and mandatory life sentences.[333]  This initially occurred in several cases concerned with juvenile offenders who had been convicted of murder and sentenced to detention during Her Majesty’s Pleasure.  In Hussain v United Kingdom,[334] the applicant contended that he was entitled to have his continued detention periodically reviewed under Article 5(4).[335]  The Court considered whether a sentence of detention during Her Majesty’s Pleasure was more akin to a discretionary life sentence or a mandatory life sentence.[336]  The Court observed that the sentence was mandatory in terms of being fixed by law and applicable in all cases where persons under the age of 18 years were convicted of murder.[337]  The Court stated, however, that the decisive issue was whether the nature and purpose of the sentence were such as to require the lawfulness of the detention to be periodically reviewed in accordance with Article 5(4).[338]  The Court considered that an indeterminate term of detention for a convicted young person, which might be as long as that person’s life, could only be justified by considerations based on the need to protect the public.[339]  The Court thus concluded that the applicant’s sentence, after the expiration of his tariff, was more comparable to a discretionary life sentence.[340]  The decisive ground for the applicant’s detention had been and continued to be his dangerousness to society.[341]  As this was a characteristic which could change over time, the Court held that the applicant was entitled to have his continued detention periodically reviewed by a court-like body in accordance with Article 5(4).[342]

2.22        As a result of this decision, section 28 of the Crime (Sentences) Act 1997 extended to juvenile offenders sentenced to detention at Her Majesty’s Pleasure, the same right as offenders sentenced to discretionary life imprisonment, to have the preventive part of their sentences periodically reviewed by the Parole Board.[343]

2.23        The European Court of Human Rights also began to question the role of the Home Secretary in setting the tariff for sentences such as detention at Her Majesty’s Pleasure.[344]  In V and T v United Kingdom,[345] the Court ruled that the fixing of a tariff was a sentencing exercise and that the applicants were thus entitled to the safeguards of Article 6(1) of the European Convention on Human Rights,[346] which required that the determination of civil rights and obligations be conducted by an “independent and impartial tribunal”.[347]  As the Home Secretary could not be considered “independent” of the Executive, the Court found that there had been a violation of Article 6(1).[348]

2.24        As a result of this decision, the Home Secretary relinquished his power to set the tariff for sentences of detention at Her Majesty’s Pleasure and this is now set by the trial judge.[349]  The Lord Chief Justice issued a Practice Direction[350] setting out the various factors which judges should take into account when setting tariff periods for murder by offenders of all ages.  It is interesting to note, however, that the Home Secretary retains a duty to keep the minimum term of every child detained during Her Majesty’s Pleasure under review, and may still use the prerogative of mercy to shorten it.[351] 

2.25        The distinction between discretionary life sentences and mandatory life sentences finally collapsed in Stafford v United Kingdom[352], when the European Court of Human Rights assimilated the various regimes applicable to discretionary life sentences, mandatory life sentences and sentences of detention during Her Majesty’s Pleasure.[353]  The applicant had received a mandatory life sentence for murder.  He had been subsequently released on licence and this was revoked when he was convicted of a number of fraud offences.  Having served his sentence for the fraud offences, the Parole Board recommended that the applicant be released on licence but this was rejected by the Secretary of State on the ground that there was a risk that the applicant would commit further fraud offences. 

2.26        The applicant contended that his continued detention was in breach of Article 5(1).[354]  In this regard, he argued that it was arbitrary to justify indefinite imprisonment by reference to a risk of future non-violent offending, which involved no physical harm to others and bore no relationship to the criminal conduct which had resulted in the mandatory life sentence.[355]  For its part, the Government contended that the mandatory life sentence for murder satisfied Article 5(1) and continued to provide a lawful basis for the applicant’s detention.[356]  It argued that the mandatory life sentence could be distinguished from the discretionary life sentence as it was imposed as punishment for the seriousness of the offence and was not governed by factors, such as risk and dangerousness, which could change over time.[357]  The applicant further contended that as the basis for his continued detention was the risk of future offending, he was entitled to have his detention reviewed under Article 5(4).[358]  He argued that, since Wynne, the courts in the United Kingdom had so altered their approach to, and understanding of, the mandatory life sentence, that it was no longer possible to argue that the requirements of Article 5(4) were satisfied by the original trial.[359]  The Government, on the other hand, insisted that where mandatory life sentences were concerned, the requirements of Article 5(4) were met by the original trial and appeal proceedings and that no new issues of lawfulness could arise requiring review.[360] 

2.27        The Court held that there was no causal connection between the risk of future non-violent offending and the original mandatory life sentence for murder.[361]  The applicant’s re-detention was thus in breach of Article 5(1).  The Court referred to legal developments in the United Kingdom and concluded that it could no longer be maintained that where mandatory life sentences were concerned, the requirements of Article 5(4) were satisfied by the original trial and appeal proceedings.[362]  Thus, detention beyond the expiry of the tariff period could only be justified by considerations of risk and dangerousness associated with the objectives of the original sentence for murder.[363]  As these elements could change over time, the Court held that the applicant was entitled to have his detention reviewed by a court-like body under Article 5(4).  As the Secretary of State was not a court-like body, his exclusive power to grant release violated Article 5(4).

2.28        In Stafford, the European Court of Human Rights was influenced by legal developments in the United Kingdom regarding life sentences.  Having regard to these legal developments, the Court came to the conclusion that the distinction between discretionary life sentences, mandatory life sentences and sentences of detention during Her Majesty’s Pleasure could no longer be maintained in respect of tariff-fixing:

“The Court considers that it may now be regarded as established in domestic law that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing.  It is a sentencing exercise.  The mandatory life sentence does not impose imprisonment for life as a punishment.  The tariff, which reflects the individual circumstances of the offence and the offender, represents the punishment.  The Court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner.”[364]

While the Court did not expressly confine this statement to the situation pertaining to the United Kingdom, the fact that it followed its consideration of the legal developments in the United Kingdom suggests that this was the intention.  It is thus arguable that Stafford is not (as some might suggest) an authority for imposing review requirements on mandatory life sentences in countries, such as Ireland, which do not have a tariff system.  This argument gains support in the decision of Kafkaris v Cyprus,[365] which will be discussed at paragraph 2.96ff.

2.29        The European Court of Human Rights did not have to consider whether the setting of the tariff by the Home Secretary was compatible with Article 6 of the Convention but did note that the role of the Home Secretary had “become increasingly difficult to reconcile with the notion of the separation of powers between the executive and the judiciary.”[366]  In R v Secretary of State for the Home Department, ex parte Anderson,[367] however, the House of Lords ruled that Article 6(1) required the tariff to be fixed by an independent and impartial tribunal.  As the Home Secretary was not an independent and impartial tribunal, he should not fix the tariff of the mandatory life sentence for murder.

2.30        The life sentence was again considered in Vinter, Bamber and Moore v United Kingdom.[368]  In that case, the applicants were British nationals who had each received a “whole life” order in respect of a mandatory life sentence for murder.  The applicants had been sentenced prior to the entry into force of the Criminal Justice Act 2003 when the practice had been for the Secretary of State, having received recommendations from the trial judge and Lord Chief Justice, to determine the minimum term to be served by a life sentence prisoner.  The fact that a whole life order had been imposed meant that the applicants could not expect to be released other than at the discretion of the Secretary of State on compassionate grounds.  In general, however, the Secretary of State would review a whole life order once the prisoner had served 25 years’ imprisonment.  The Criminal Justice Act 2003 was introduced to implement a finding by the House of Lords that it was contrary to Article 6 of the European Convention on Human Rights for the Secretary of State to determine minimum terms.[369]  Under section 269 of the 2003 Act, it became the responsibility of the trial judge, in accordance with Schedule 21, to determine the minimum term to be served by life sentence prisoners.  Under section 276 and Schedule 22, persons serving mandatory life sentences, who had received minimum terms under the old system, were entitled to apply to the High Court to have their sentences reviewed.  The practice whereby whole life orders were reviewed after 25 years was discontinued. 

2.31        The applicants’ whole life orders were upheld by the High Court and they applied to the European Court of Human Rights, alleging violations of Article 3, Article 5(4) and Article 7 of the Convention.  Regarding Article 3, the applicants made a number of submissions.  First, citing Kafkaris v Cyprus,[370] they argued that it was clear that the European Court of Human Rights considered that an irreducible life sentence would not merely raise an issue under Article 3, but would in fact violate Article 3.  Second, they argued that the English Court of Appeal had erred in R v Bieber[371] by distinguishing between irreducible mandatory life sentences and irreducible discretionary life sentences.  There was no proper basis in Kafkaris for the Court of Appeal to conclude that only an irreducible mandatory life sentence could raise an issue under Article 3.  Such a conclusion would, in any case, lead to inconsistent findings where some irreducible life sentences would violate Article 3 because they were mandatory, whereas others would not violate Article 3 because they were discretionary, even though both types of sentence would entail the same hopelessness regarding release.  Third, they argued that the Court of Appeal had erred in finding that a violation of Article 3 could not arise at the moment of the imposition of a sentence.  They submitted that a violation arose because of the imposition of hopelessness that came with such a sentence.  Finally, they argued that the Secretary of State’s power of compassionate release was not sufficient to make a life sentence reducible.  The second applicant further relied on the fact that he had been promised reviews at various stages of his sentence, and that an irreducible sentence imposed on a young man was very different to one imposed on a much older man, which served to underline the inequality, cruelty and illogicality of irreducible life sentences.

2.32        The Court stated that it was first necessary to consider whether a grossly disproportionate sentence would violate Article 3 and, second, at what point in the course of a life sentence or other very long sentence an Article 3 issue might arise.  In relation to the first issue, the Court stated that it was prepared to accept that a grossly disproportionate sentence could amount to ill-treatment contrary to Article 3 at the moment of its imposition.  It observed, however, that “gross disproportionality” was a strict test and that it would only be on “rare and unique occasions” that the test would be met.[372] 

2.33        In relation to the second issue, the Court indicated that, subject to the general requirement that a sentence should not be grossly disproportionate, it was necessary to distinguish between three types of life sentence: (i) a life sentence with eligibility for release after a minimum period has been served; (ii) a discretionary sentence of life imprisonment without the possibility of parole; and (iii) a mandatory sentence of life imprisonment.  The Court indicated that the first type of sentence was clearly reducible and thus no issue could arise under Article 3. 

2.34        Regarding the second type of sentence, the Court indicated that if a discretionary life sentence was imposed by a court after due consideration of all relevant mitigating and aggravating factors, an Article 3 issue could not arise at the moment it was imposed.  Rather, it would only arise when it could be shown that: (i) the applicant’s continued imprisonment could no longer be justified on any legitimate penological grounds (such as punishment, deterrence, public protection or rehabilitation); and (ii) the sentence was irreducible de facto and de iure

2.35        Regarding the third type of sentence, the Court indicated that a mandatory sentence of life imprisonment without the possibility of parole would require greater scrutiny.  The Court observed that the “vice of any mandatory sentence is that it deprives the defendant of any possibility to put any mitigating factors or special circumstances before the sentencing court”.  This was especially true in respect of a mandatory life sentence without the possibility of parole, a sentence which, in effect, condemned a defendant to spend the rest of his or her days in prison, irrespective of his or her level of culpability and irrespective of whether the sentencing court considered the sentence to be justified.  These considerations did not mean that a mandatory life sentence without the possibility of parole was per se incompatible with the Convention, although the trend in Europe was clearly against such sentences, but that such a sentence was much more likely to be grossly disproportionate than any other type of life sentence.  In the absence of any such gross disproportionality, an Article 3 issue would arise for a mandatory life sentence without the possibility of parole in the same way as for a discretionary life sentence, that is when it could be shown that: (i) the continued imprisonment of the applicant could no longer be justified on any legitimate penological grounds; and (ii) the sentence was irreducible de facto and de iure.

2.36        The Court observed that in the present cases, the whole life orders were, in effect, discretionary life sentences without parole.  Regarding de iure reducibility, the Court noted that once imposed, such sentences were not subject to later review and release could only be obtained from the Secretary of State on compassionate grounds.  The policy of the Secretary of State regarding compassionate release appeared to be much narrower than the Cypriot policy on release, which had been considered in Kafkaris.  First, the policy could conceivably mean that a prisoner would remain in prison even if his continued imprisonment could not be justified on any legitimate penological grounds, as long as he or she did not become terminally ill or physically incapacitated.  Second, it was of some relevance that the practice of a 25-year review, which existed prior to the introduction of the Criminal Justice Act 2003, had not been included in the reforms introduced by the 2003 Act.  No clear explanation had been given for the omission, even though it appeared that a 25-year review, supplemented by regular reviews thereafter, would be one means by which the Secretary of State could satisfy himself that the prisoner’s imprisonment continued to be justified on legitimate penological grounds.  Third, the Court stated that it doubted whether compassionate release for the terminally ill or physically incapacitated could really be considered release at all, if all that it meant was that a prisoner died at home or in a hospice rather than behind prison walls.

2.37        However, the Court considered that the issue of de facto reducibility did not arise for examination in the present cases.  First, the applicants had not sought to argue that their whole life orders were grossly disproportionate.  Given the gravity of the murders of which they had been convicted, the Court was satisfied that the whole life orders were not grossly disproportionate.  Second, none of the applicants had demonstrated that their continued incarceration served no legitimate penological purpose.  For each case, the Court was satisfied that detention served the legitimate purposes of punishment and deterrence.  The Court thus concluded that there had been no violation of Article 3.

2.38        Regarding Article 5(4), the applicants submitted that the imposition of whole life orders without the possibility of regular review by the courts violated Article 5(4) of the Convention.

2.39        The Court indicated that while continued detention might violate Article 3 if it was no longer justified on legitimate penological grounds and the sentence was irreducible de facto and de iure, it did not follow that the applicants’ detention had to be reviewed regularly in order for it to comp