Embargo: Midnight tuesday 17th JANUARY 2012
LAW REFORM COMMISSION PUBLISHES CONSULTATION PAPER ON MANDATORY SENTENCES
CONSULTATION PAPER RECOMMENDS THAT: IN MURDER CASES THE SENTENCING JUDGE BE ALLOWED TO RECOMMEND SPECIFIC MINIMUM TERM AS PART OF LIFE SENTENCE; THAT CURRENT MINIMUM SENTENCE LAW FOR DRUGS OFFENCES BE REVIEWED BECAUSE IT HAS LED TO BULGE IN PRISON POPULATION WITHOUT ANY MAJOR EFFECT ON THOSE AT THE TOP OF THE DRUGS INDUSTRY; AND THAT THE PROPOSED JUDICIAL COUNCIL SHOULD DEVELOP SENTENCING GUIDANCE AND GUIDELINES
Wednesday 18th January 2012: The Law Reform Commission’s Consultation Paper on Mandatory Sentences will be launched by the Attorney General, Máire Whelan SC, at the Commission’s offices at 6pm this evening. The Commission prepared this Consultation Paper in response to a request from the Attorney General under the Law Reform Commission Act 1975 to carry out research on the law of mandatory sentences and, if appropriate, recommend reforms in relation to the circumstances in which it may be appropriate or beneficial to provide for mandatory sentences for offences.
Detailed analysis of sentencing principles and the law on mandatory sentences
In order to respond to the Attorney General’s request, the Commission identified four main aims of criminal sanctions: (a) punishment, (b) deterrence, (c) reform and rehabilitation and (d) reparation. The Commission also identified three key principles of sentencing: (a) the humanitarian principle (which incorporates respect for constitutional and international human rights), (b) the justice principle (including proportionality) and (c) the economic principle.
The Consultation Paper contains a detailed analysis of the development of the law in Ireland on mandatory sentences, including analysis of similar laws enacted in other jurisdictions such as the UK and US. The Commission notes that the only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence, and do not even have the power to suggest any specific minimum sentence, unlike the position in Northern Ireland where the sentencing judge can recommend a minimum life tariff (as in the recent case of former dentist Colin Howell, where the judge recommended a 21 year minimum term).
The Commission also examined other “presumptive” mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the “street value” is over €12,170 (£10,000), but also allows for a lesser sentence in exceptional circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is a repeat offender or has committed offences on bail.
Main recommendations
The main recommendations in the Consultation Paper are:
- the Commission supports the recommendation (most recently reiterated in the 2011 Report of the Thornton Hall Review Group) that the proposed Judicial Council should develop and publish suitable guidance or guidelines on sentencing; and also provisionally recommends that these would have regard to decisions of the Court of Criminal Appeal, to the sentencing principles discussed in the Consultation Paper, and to information in databases such as the Court Service’s Irish Sentencing Information System (ISIS).
- the Commission provisionally recommends that, while the use of the entirely mandatory sentence may be applied to the offence of murder, it should be amended to provide that, on the date of sentencing, the court should be empowered to indicate or recommend that a minimum specific term should be served by the defendant, having regard to the particular circumstances of the offence and of the offender.
- the Commission provisionally recommends that the presumptive sentencing regime that applies in the case of certain drugs and firearms offences should not be extended to any other offences but should be reviewed because, while it has succeeded in one objective, namely, an increased severity of sentences for certain drugs and firearms offences, it has not been established that it has achieved another general aim of the criminal justice system, namely reduced levels of criminality through deterrence. The Commission notes that, in particular, the presumptive drugs offences regime has had the following results: a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders; the adaptation of the illegal drugs industry to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the drugs industry, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent bulge in the prison system comprising low-level drugs offenders.
- The Commission provisionally recommends that the existing legislation concerning mandatory sentences (and, where relevant, presumptive mandatory sentences) as it applies in the case of second and subsequent offences should not be extended to any other offences; but the Commission also considers that, as a general proposition, a statutory framework that takes account in sentencing of repeat offending is consistent with the general aims of the criminal justice system and the principles of sentencing.
Background Notes for Editors
The Law Reform Commission is an independent statutory body whose main role is to keep the law under review and to make proposals for reform. To date, the Commission has published over 180 documents (Working Papers, Consultation Papers and Reports) containing reform proposals, available on its website www.lawreform.ie. About 70% of these proposals have led on to reforming legislation. The Consultation Paper (which will be available on the Commission’s website on the launch date) contains the Commission’s provisional recommendations on this area, and submissions are invited on all of these until 30 April 2012 in advance of the Commission’s final recommendations and Report.