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Cite as:  1 IR 1,  IESC 34
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Judgment Title: Lynch -v- Minister for Justice Equality and Law Reform & Whelan -v- same
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Macken J.
Judgment by: Murray C.J.
Status of Judgment: Unapproved
THE SUPREME COURT
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
JUDGMENT of the Court delivered by Murray C.J. on the 14th day of May 2010
These two cases were heard together as they raise the same issues concerning a challenge to the constitutionality of s. 2 of the Criminal Justice Act 1990 and a claim made pursuant to s. 5(1) of the European Convention on Human Rights Act 2003 for a declaration that 2 section is incompatible with the provisions of the Convention.
Section 2 of the Act of 1990 provides as follows:-
Section 4 of the Criminal Justice Act 1964 provides:
On 10th February 1997 Paul Lynch was convicted for the crime of murder at the Central Criminal Court and also sentenced to life imprisonment for that offence.
The detention of the second appellant, Paul Lynch, was considered by the Parole Board in 2004, which has an advisory role only, and in July 2004 the first named defendant, the Minister, determined that the appellant should not be released from prison and that any further application in respect of his sentence would not be considered for a further period of three years.
As appears from s. 2 of the Act of 1990 a life sentence for the crime of murder is a mandatory sentence, leaving the courts no discretion but to impose it once a person is convicted of that crime. It is the mandatory nature of the sentence in all cases of murder that has given rise to the proceedings brought by each of the appellants.
History of punishment for murder in the State
For the purpose of addressing the issues raised in this case the Court considers it relevant to place the punishment imposed by the courts for the crime of murder in its legal and historical context.
At the foundation of the State in 1922 the crimes of murder, treason and piracy carried a mandatory death penalty. The duty of the courts to impose the mandatory death sentence upon any individual convicted of murder arose from sections 1 and 2 of the Offences Against The Person Act 1861.
That remained the position in law until the passing of the Criminal Justice Act 1964 which restricted the imposition of the death penalty to certain offences of murder which were categorized as capital murder in s. (1)(b) of the Act. Capital murder included, for example, murder of a member of An Garda Siochana or a prison officer acting in the course of his or her duty. Section (2) of the Act of 1964 provided for a mandatory life imprisonment for any person convicted of the crime of murder other than those designated as capitol murder in s. (1) of the Act. The 1861 Act was amended accordingly. It should be noted however that after the last such execution in 1956 the sentence of death was commuted to one of life imprisonment in every case.
In 1990 provision was made by law for the abolition of the death penalty for murder, and other offences. Section 1 of the Criminal Justice Act 1990 provided that no person should suffer death for any offence. As stated at the outset s. 2 of that Act makes provision for a mandatory life sentence for the offence of murder. Section 4 of the same Act requires the Court, when passing sentence in relation to certain types of murder, referred to in s. 3 of that Act, to specify that the minimum period of imprisonment to be served in such cases will not be less than 40 years. Again the types of murder referred to in the latter category include the murder of a member of the Garda Siochana or prison officer in the course of his or her duty.
The Constitution, although it did not provide for the imposition of the death penalty, implicitly recognized, until its amendment in 2001, that the death penalty could be imposed in certain cases. Article 13.6 of the Constitution vested in the President the right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction and also provided that such powers could also be conferred by law on other authorities “except in capital cases”. Article 40.5 made special provision for the deferring of a death sentence where the Court had made an order pursuant to Article 40 for the production of the body of a person who was in detention and under sentence of death.
The Twenty First Amendment of the Constitution Act 2001 provided for the removal of all references to the death penalty in the Constitution and inserted in the Constitution Article 15.5.2 which now provides:
Every person serving a sentence for the commission of a crime, including those serving a life sentence, may be granted temporary release, subject to conditions. Section 2 of the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003 confers on the Minister the discretionary power to grant such temporary release and provides as follows:
(a) for the purpose of—
(i) assessing the person's ability to reintegrate into society upon such release,
(ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or
(iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence,
(b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on—
(i) grounds of health, or
(ii) other humanitarian grounds,
(c) where, in the opinion of the Minister, it is necessary or expedient in order to—
(i) ensure the good government of the prison concerned, or
(ii) maintain good order in, and humane and just management of, the prison concerned, or
(d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society.
(2) The Minister shall, before giving a direction under this section, have regard to—
(a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates.
(b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto,
(c) the period of the sentence of imprisonment served by the person,
(d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison,
(e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates,
(f) the risk of the person failing to return to prison upon the expiration of any period of temporary release,
(g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied,
(h) any report of, or recommendation made by—
(i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned,
(ii) the Garda Síochána,
(iii) a probation and welfare officer, or
(iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned.
(i) the risk of the person committing an offence during any period of temporary release,
(j) the risk of the person failing to comply with any conditions attaching to his temporary release, and
(k) the likelihood that any period of temporary release might accelerate the person's reintegration into society or improve his prospects of obtaining employment.
(3) The Minister shall not give a direction under this section in respect of a person—
(a) if he is of the opinion that, for reasons connected with any one or more of the matters referred to in subsection (2), it would not be appropriate to so do,
For the purpose of placing the imposition of a life sentence in its factual context it was pointed out in the course of their submissions that once a jury had returned a verdict of guilty of murder the trial judge had no further judicial discretion in the matter and was required to impose the life sentence as laid down by the Oireachtas in the Act of 1990. It was contended however that in practice a life sentence imposed is never, or hardly ever, a true life sentence since few, if any, who are sentenced to life for murder are kept in prison for the rest of their lives. It was claimed that the first named respondent, the Minister, has a statutory discretion to release prisoners at any stage after sentence and that he would, de facto, determine the length of a life sentence. In support of that view counsel adopted the observations of Mustill L.J., in the United Kingdom case of R. v. Secretary of State for the Home Department, Ex Parte Doody  1 AC 531 concerning the imposition of a life sentence for murder Mustill L.J., observed:
The sentence of life imprisonment is also unique in that the words which the judge is required to pronounce do not mean what they say. Whilst in a very small minority of cases the prisoner is in the event confined for the rest of his natural life, this is not the usual or intended effect of a sentence of life imprisonment, as a judge faced with a hard case will take pains to explain to the offender before sentence is passed. Although everyone knows what the words do not mean, nobody knows what they do mean, since the duration of the prisoner’s detention depends on a series of recommendations too, and the executive decisions by, the Home Secretary, some made at an early stage and others much later, none of which can be accurately forecast at the time when the offender is sent to prison.”
Imposition of a Proportionate Sentence
In the foregoing context the first substantive ground upon which it is sought to impugn the constitutionality of s. 2 of the Act of 1990 is that it offends against the principle or doctrine of proportionality.
It was submitted on behalf of the parties that the imposition of the mandatory life sentence offended against the constitutional doctrine or principle of proportionality, as it was put, since the trial judge had no discretion to impose or tailor a sentence which reflected the particular circumstances in which the offence may have been committed. Even for the offence of murder there may be attendant mitigating factors relating to the circumstances in which it was committed including the circumstances of the victim and the murderer or on the other hand there may be particularly aggravating factors in those circumstances giving the offence a more heinous character than others. It was submitted that the constitutional principle of proportionality required that a judge in every criminal case must be permitted sufficient discretion to impose a sentence that was proportionate the gravity of the offence having regard to all relevant circumstances and that the non discretionary sentence of life imprisonment offended against that principle.
In support of that proposition counsel referred in particular to statements of Flood J., in The People (D.P.P. v. W.C.)  1 I.L.R.M 321 when giving a ruling on the sentence to be imposed on a person convicted of rape in the following terms:
This principle in itself is well established and is derived at least partly from the Constitution. In The State (Heaney) v. Donoghue  I.R 325 Henchy J., said that the Constitution guarantees that a citizen should not be deprived of his liberty by a trial conducted so as to shut out “a sentence appropriate to his degree of guilt and his relevant personal circumstances.”
It was also submitted that the learned High Court judge was incorrect in treating the offence of murder as falling into a category of its own because it involved the taking of a life, a point she emphasised by the protection of the right to life in the Constitution. Such an approach is inconsistent with the fact that the principles referred to apply to the crime of manslaughter which, it was submitted, can encompass a range of crimes which could be infinitely more brutal and terrible on the facts than murder. It is true that manslaughters can vary greatly in the degree of blameworthiness or moral culpability but so can murder. In the circumstances, it was submitted, there was no justifiable reason why sentencing for the offence of murder should be excluded from the application of the doctrine of proportionality.
The doctrine of proportionality which should apply is governed by the statement of Costello J., in Heaney v. Ireland  3. I.R. 593where he held that national provisions overriding a constitutionally protected right must comply with that principle, and in particular they must:
b. impair the right as little as possible, and
c. be such that their effects on rights are proportional to the objective.”
Interference with Judicial Function
It was submitted that the Constitution recognises and provides for the separate exercise of executive powers by the government and judicial powers by the courts so that judges may exercise their judicial functions independently in accordance with the Constitution. Punishment is a matter for the courts as opposed to the executive branch of government (Deaton v. The Attorney General and the Revenue Commissioners  I.R 170). In submitting that the mandatory life sentence imposed by a judge is in effect a vague and uncertain one counsel relied on the fact that convicted murderers never have to actually serve a life sentence and when sentenced neither the judge nor the convicted person knows how long he will in fact serve before he is eventually released. It is the Minister that systematically defines the actual length a prisoner will spend in prison by eventually setting a release day pursuant to s. 2 of the Act of 1960. In this respect the Court should look at the substance of what occurs and not merely the form.
Accordingly, it is asserted, in substance the sentence or tariff is the length of time a prisoner will remain in jail. The Minister determines how long the prisoner will remain in jail therefore the Minister’s decision is analogous to a sentencing exercise.
This involves the Minister in selecting the punishment which a person convicted of murder must undergo and offends against the statement of O’Dalaigh C.J., in Deaton v. Attorney General where he held:
It was also submitted as an alternative or parallel argument that s. 2 should be interpreted as permitting a judge imposing a life sentence under that section to make a recommendation as to the minimum period which the prisoner should be required to serve before the Minister should consider remission or conditional release. This would permit a judicial “input” into the sentencing and respond adequately to the constitutional principle of proportionality. Neither, it was submitted, would such a recommendation be an interference with the Minister’s executive power to remit or conditionally release. The judicial input would be in the nature of a recommendation and the Minister would be free in the exercise of his discretion to grant temporary release at a time earlier than that recommended by the trial judge. Such an approach would give the section an interpretation consistent with the Constitution. It would also reconcile the principles laid down in Deaton which spoke of the separation of powers between the executive and the judiciary. Otherwise s. 2 must be treated as being unconstitutional since the doctrine of proportionality must trump the power of the Oireachtas to exclude the judiciary from judicial decision making.
In summary, the first ground relied upon the State for resisting the plaintiff’s claim was the principle of the separation of powers according to which it is for the Oireachtas in the first instance to determine the penalties which may be imposed by the courts for specified criminal offences. The Oireachtas may, when enacting legislation, specify, in relation to any particular offence, a range of penalties or sentences which a court may, in its discretion, impose on a convicted person or may specify a fixed penalty or sentence to be imposed generally on all persons convicted of a particular offence. The State relied, inter alia, on Deaton v. Attorney General  1 I.R. 170. Murder, it was submitted, is undoubtedly the most serious criminal offence and the legislation requiring a mandatory life sentence for the crime of murder underlies and reflects society’s abhorrence for the intentional taking of life. The imposition of the mandatory life sentence for murder is clearly within the legislative powers of the Oireachtas which was entitled to take the view that there is no murder that warrants less than a punitive life sentence. The contention of the appellants that there should be no distinction between murder and manslaughter is incorrect because it overlooks the fact that murder punishes “intentional” killing. It is the combination of culpability and life taking that makes murder particularly grave. Accordingly the learned trial judge’s conclusion that the imposition of a life sentence for the crime of murder was a proportionate or rational exercise of the legislative power of the Oireachtas should be upheld.
On that basis, the fact that a trial court was not left with a discretion as to the sentence to be imposed for the crime of murder cannot be said to be an intrusion by the Oireachtas in the judicial sphere or compromising any principle of proportionality which may apply to sentencing. Moreover there is no authority to support the proposition that a trial judge must be given a discretion in every sentencing case.
With regard to the power of the Minister to grant temporary release or commute the sentence of a convicted criminal the question of whether to exercise such discretionary power is, under the principles of constitutional and administrative law, a decision of the executive which is administrative in nature, subject to the usual principles of judicial review; in this respect the State referred, inter alia, to the State (Murphy) v. Kielt (cited below) and Murray v. Ireland and the Attorney General (cited below. Further, it was submitted there is no right to temporary release; it is in the nature of a privilege or concession granted by the executive: Ryan v. Governor of Limerick Prison  I.R. 198. In exercising its discretion to temporarily release a prisoner the Minister is not making a decision determining the sentence or punishment to be served by the prisoner but deciding whether, by way of commutation of sentence for one of the purposes referred to in the Act of 1960 (as amended), he should accord to him or her the privilege of temporary release. It was submitted that a consideration of the mandatory life sentence and the provisions for temporary release show that in substance (a) the whole of the life sentence is penal or punitive in nature and remains in place as an enforceable order of the trial court for the convicted person’s lifetime notwithstanding any temporary release granted to him or her as a discretion: (b) preventative detention plays no role in the sentence, either at the time of sentence or during its continuation at any time. The Irish courts have consistently maintained that there is no role for preventative detention in sentencing law – Carmody  I.L.R.M. 370; Bambrick  I.R. 26; (c) the Minister’s role in evaluating a prisoner’s situation for the purpose of considering whether to grant temporary release is one purely related to whether or not he should exercise his discretionary power, pursuant to the separation of powers, to commute or remit the sentence; (c) a person has no legal right to be released from a life sentence upon the existence of any particular set of circumstances.
Accordingly it was submitted the exercise of a discretionary power of temporary release cannot be considered as constituting an interference with the judicial functions of the courts or directly or indirectly imposing some form of preventative detention on a person serving a life sentence.
Since a punitive sentence of life imprisonment is a whole life sentence without any element of preventative detention it cannot be compared to the sentencing regime which exists in the United Kingdom and which was scrutinised in the case-law of the European Court of Human Rights as relied upon by the appellants. It was submitted that the learned High Court judge was correct in her reasoning on the issue of constitutionality and that the appeal should be dismissed.
Decision on the Constitutional Issue
With the abolition of the death sentence and its constitutional prohibition the law still mandates the most punitive permissible sentence, life imprisonment, in every case in which a person is convicted of murder. It does not require any elaboration to note that this is an approach that is common in democratic societies across the world. However, the Court is concerned with the position under the law of this country and, as outlined earlier in this judgment, the provisions of the Constitution, prior to its amendment, acknowledged that the imposition of the death penalty was consistent with the Constitution. Accordingly it was certainly consistent with the duty of the State to defend and vindicate the rights of citizens including the right to life.
In committing the crime of murder the perpetrator deprives the victim, finally and irrevocably, of that most fundamental of rights, the right ‘to be’ and at the same time extinguishes the enjoyment of all other rights inherent in that person as a human being. By its very nature it has been regarded as the ultimate crime against society as a whole. It is also a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim.
At various points in the arguments advanced on behalf of the appellants it was sought to establish some equivalence or parallel between the crime of murder and other crimes which involve the unlawful killing of the victim, in particular manslaughter. Again it was sought on behalf of the appellant to suggest that the sentencing principles applying to the punishment of other such crimes as manslaughter, should also apply to murder and in particular the principle that the sentence imposed should be one which is judicially determined in each case so that the sentence is proportionate to all the circumstances of the particular case.
The Court is satisfied that this approach by the appellant is unfounded and misconceived.
While it is undoubtedly the case that the crime of murder may be committed in a myriad of circumstances and the degree of moral blameworthiness will vary accordingly, such as where it is committed in particular heinous circumstances, nonetheless the crime itself, by its very nature, has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person, whatever the circumstances. Again, that is the reason why the most serious of deterrents is provided by law.
It is in the foregoing context that the assertion by the appellants that the Oireachtas, in providing that a mandatory life sentence be imposed in respect of the offence of murder has usurped the powers of the judiciary to an extent incompatible with the Constitution falls to be considered.
In Deaton v. Attorney General  I.R 170 this Court considered the question of the separation of powers and the respective functions of the legislature and the judiciary in relation to sentencing. That was a case in which the defendant had been convicted of two customs offences contrary, inter alia, to s. 186 of the Customs Consolidation Act 1876. The penalty provision of s. 186 was that any person who was guilty of an offence under the section “shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or £100, at the election of the Commissioners of Customs.” (Which had then become the Revenue Commissioners). Because the provision permitted the Revenue Commissioners to choose which one of two penalties to impose in an individual case the provision was set aside as wrongfully interfering with the judicial function conferred by the Constitution on the courts.
In delivering the judgment of the Court O’Dalaigh C.J., stated:
In this case however s. 2 of the Act of 1990 applies to the crime of murder. For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the Court’s view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury it is one which can therefore properly be differentiated from all other crimes including manslaughter.
The Court is of the view that the learned trial judge was correct when she concluded “…there can be nothing offensive in the Oireachtas promoting the respect for life by concluding that any murder even at the lowest end of the scale, is so abhorrent an offensive to society that it merits a mandatory life sentence …”.
Accordingly the Court concludes that s. 2 of the Act of 1990 in requiring the imposition of a mandatory life sentence for murder is not repugnant to the Constitution.
In the light of the foregoing conclusion it is difficult to discern any basis for the contention on behalf of the appellants that s. 2 of the Act of 1990 is unconstitutional because it allegedly deprives the trial judge of imposing a sentence which is in accord with, as the appellants have put it, the constitutional doctrine of proportionality. Since, as the Court has concluded, the stipulation of a mandatory sentence of life imprisonment in s. 2 of the Act of 1990 for the crime of murder is consistent with the Constitution it cannot be accepted that the Constitution, in some other fashion, requires that a trial judge should be able to give consideration to imposing a different sentence which he or she might consider more appropriate or proportionate to the particular circumstances of the case. Insofar as the appellants relied on the doctrine of proportionality as articulated by Costello J., in Heaney v. Ireland (cited above) and approved in various judgments of this Court, such reliance is, in the Court’s view, misconceived. Broadly speaking the specific doctrine of proportionality referred to by Costello J., in that case 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. When used in that context the doctrine of proportionality might be said to be a term of art.
On the other hand words such as proportionate and proportionality have their ordinary meaning. They may be, and are, terms which are descriptive of the manner in which a judicial discretion or function should, as a matter of principle, be exercised within particular proceedings. For example in civil proceedings it might be properly said that a trial judge, when awarding damages for personal injuries, should, inter alia, award damages which are proportionate to the gravity of the injury sustained by a plaintiff and its impact on him or her in all the circumstances of the case. One could just as readily say ‘appropriate’ to the gravity of the injury. But that is not an exercise in intruding on the constitutional right of an individual because it can only arise after it has been determined that the defendant has a civil liability to the plaintiff. Similarly, the question of sentencing a person to a term of imprisonment only arises after the person concerned has been convicted of a criminal offence. It is not a deprivation of liberty in some broad public interest but a deprivation of liberty because of the criminal culpability of the person to be sentenced. The exercise of a judicial discretion then is a consequence of that. That the doctrine of proportionality as stated in Heaney v. Ireland has no application to and indeed would be inapplicable to the exercise of imposing an appropriate or proportionate prison sentence in a criminal case is probably self evident but is in any event evident from the innumerable cases which make reference to the principle of proportionality in sentencing and refers to proportionality in its ordinary meaning. This includes the case-law on which the appellants have placed particular reliance. For example the appellants rely on the reference by Flood J., in D.P.P. v. W.C (cited above) to the “constitutional principle of proportionality”. But Flood J., went on to give it quite a different meaning than that in Heaney but which is consistent with the case-law of this Court and the Court of Criminal Appeal: “By this I mean that the imposition of a particular sentence must strike a balance between the particular circumstances of the commission of the relevant offence and the relevant personal circumstances of the person sentenced.” The statement of Walsh J., also relied upon, in The People (Attorney General) v. O’Driscoll (cited above) contains the statement “It is therefore the duty of the Courts to pass what are appropriate sentences in each case having regard to the particular circumstances of the case…” There are many other judicial dicta, including those of Denham J., and Hardiman J., cited in the arguments of the appellants above from which it is apparent that when a court is obliged to impose a sentence which is proportionate, it means proportionate or appropriate to the circumstances of a case.
Of course the duty to impose the sentence which is proportionate or appropriate to the circumstances of the case only arises where a judge is exercising a judicial discretion as to the sentence to be imposed within the parameters laid down by law. It does not arise where a court is lawfully imposing a fixed penalty generally applicable to a particular offence as described in Deaton v. The Attorney General. Accordingly, although it may not have been strictly necessary to decide the point, the appellants are incorrect in contending that the doctrine of proportionality as specified in the Heaney case applies to the sentencing process.
As indicated earlier in this judgment it is contended on behalf of the appellants that the law as explained in the Deaton case has no application to the mandatory life sentence for murder because the sentence imposed is not in substance a determinate one. Since a person sentenced to life imprisonment is invariably released during his or her lifetime the length of the sentence and therefore the punishment is in substance decided by the Minister when he decides to bring to an end the period of imprisonment and release the prisoner under the temporary release provisions. Moreover, it is argued, the fact that the Minister, when deciding whether to grant temporary release, can take into account any risk which the prisoner may be thought to pose to public safety if released means that such a prisoner may be kept in prison as a preventative measure and his imprisonment ceases to be punitive. In that sense, it is claimed, there is in substance a period of punitive imprisonment and a subsequent period of preventative detention. Thus the length of sentence served by a prisoner will vary according to the circumstances in which the Minister exercises the power of temporary release in individual cases. Thus, when a person convicted of murder is sentenced to life imprisonment he does not know how long he will serve. Since the principles of the Deaton case do not apply s. 2 must be considered incompatible with the Constitution because it deprives the trial Court of the power to impose the sentence which is proportionate to the circumstances of the case. Alternatively s. 2 should be interpreted as permitting the trial judge to make a recommendation as to the length of time which the convicted person should serve which was proportionate to the circumstances of the case. Such a recommendation could be made so as to leave intact the Minister’s executive discretion to release in that he would not be bound by the recommendation and would retain his discretion to release on a date earlier or later than that recommended.
In the Court’s view these submissions are not well founded. First of all the life sentence imposed by a court is exclusively punitive. As Walsh J., pointed out in The People v. O’Callaghan  I.R. 501 preventative justice “has no place in our legal system”.
In The People (The Director of Public Prosecutions) v. Jackson (Unreported, Court of Criminal Appeal, 26th April 1993) Hederman J., said: “It is submitted on behalf of the applicant that what in fact the Central Criminal Court did in this instance was that it imposed a preventative sentence on the accused, a sentence of life in order, as the trial judge said, to protect women from the applicant. The Court is satisfied that preventative detention is not known to our judicial system and that there is no form of imprisonment for preventative detention.” The fact that the Constitution has been amended with regard to the grounds for refusing bail for a person awaiting trial does not affect the principle that a convicted person may not be sentenced by a court or detained by an executive order for a preventative or non punitive purpose.
The appellants do not, as such, impugn the constitutionality of the powers to grant temporary release although the consequences of temporary release are challenged on the basis already indicated. The legitimacy of the discretionary power to grant temporary release as conferred on the Minister has, as counsel for the State pointed out, been acknowledged in successive judgments of this and other courts. In Murray v. Ireland  I.L.R.M. 465 Finlay C.J., said:
Moreover, the exercise of that discretion to grant release by the Minister is not one to which any prisoner is entitled as of right. It is a privilege which may be withdrawn at any time by the Minister for good and sufficient reason. In that respect the appellants’ submissions are based on the misconception that the punitive element of the life sentence terminates on temporary release. Temporary release may and is granted subject to conditions including conditions to the effect that the released prisoner must keep the peace and observe the law. Apart from the fact that such a release may at the time it is granted be for a defined or limited period, even where the temporary release is open-ended, so to speak, the released prisoner remains liable to arrest and return to imprisonment to continue serving the life sentence should he be in breach of the conditions. In Dowling v. Minister for Justice, Equality and Law Reform Fennelly J., (nem diss) cited with approval Murphy J., in Ryan v. Governor of Limerick Prison and Anor  I.R. 198 to the following effect: “The temporary release is a privilege or concession to which a person in custody has not a right and indeed it has never been argued so far as I am aware that he should be heard in relation to any consideration given to the exercise of such a concession in his favour. That being so, it seems to me that the only right of the applicant or any other person is to enjoy such temporary release as may be granted to him for whatever period is allowed and subject to such conditions as are attached to it.” Later in his judgment Fennelly J., confirmed: “It is, of course, true that temporary release decisions are entirely within the discretion of the Minister acting in the exercise of executive clemency on behalf of the State.” In the same case Murray J., as he then was, in a judgment with which other members of the Court also agreed, stated: “It follows that the temporary release of a prisoner before the sentence imposed by a court has expired is a privilege accorded to him at the discretion of the executive. The liberty which a prisoner enjoys while on temporary release, being a privilege, is clearly not on a par with the right to liberty enjoyed by an ordinary citizen …”
Later in the same judgment, in referring to a decision to terminate a prisoner’s temporary release he stated: “Such a decision is an administrative one for the purpose of withdrawing a discretionary privilege to a convicted prisoner whose sentence has not expired” (emphasis added).
In the Court’s view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention.
It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason.
It may be appropriate at this point to note that in the event of a prisoner’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is bound to observe fair procedures before withdrawing the privilege of temporary release as was held by this Court in The State (Murphy) v. Kielt  1.R. 459 and Dowling v. Minister for Justice, Equality & Law Reform. Should the Minister fail to observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review before the courts.
In all these circumstances the Court does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to s. 2. In particular a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers (Finlay C.J. in Murray v. Ireland, cited above).
Finally, on this aspect of the matter the appellants have attached significance to the fact that in exercising his power to grant temporary release under s. 2 of the Act of 1960 the Minister must, inter alia, have regard to the gravity of the offence and the potential threat which the person’s release might pose to the safety of members of the public (including the victim of the offence for which he was imprisoned). That does not mean that the Minister is exercising a judicial function when making such a decision and in particular it does not mean that a decision not to release because of a risk of safety to the public converts the punitive sentence for murder into a preventative one. The Act specifies a range of grounds upon which a Minister may consider granting temporary release. They include preparing him for release upon the expiration of his sentence, the re-integration of a rehabilitated prisoner in society, release on grounds of health or other humanitarian grounds. It is a necessary incident to the exercise of a purely executive discretion that the decision-maker would be bound to have, before directing a person’s release on any of the possible grounds, have regard to a whole range of matters of which some twelve are specified in s. 2 subs. 2 of the Act of 1960. Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. It is not a decision on the sentence to be served. Refusing temporary release is a decision not to grant a privilege to which a prisoner has no right. Any such decision or policy on which it is based must serve the purpose or objects of the provision of the Act of 1960 only. It cannot be seen in any sense as converting a subsisting punitive sentence into some form of preventative detention.
The appellants did suggest that s. 2 of the Act of 1990 if not incompatible with the Constitution must nonetheless be given an interpretation that will accord with the Constitution namely one which required the sentencing judge to make a recommendation as to the minimum term which a person convicted for murder should serve before his temporary release is considered. It is to be noted that the premise on which this submission is advanced means such a recommendation would not be binding on the Minister. This somewhat belies the appellants’ arguments since if the trial judge makes a mere non-binding recommendation there is no judicial determination for the prisoner’s temporary release which would remain exclusively within the discretion of the Minister. Whether the making of any such recommendation would have some advantages from a policy point of view is not obviously a matter for the Court but such a process would not change the existing position in principle. In any event, the Court is satisfied that the terms of s. 2 are quite clear and the sole function of the Court, once a person has been convicted for the crime of murder, is to impose a sentence of life imprisonment. Furthermore, for the reasons already stated above, s. 2 of the Act of 1990 as so understood must be considered compatible with the Constitution. An implication that the section means that a judge must make a recommendation as to the length of imprisonment to be served is neither permissible nor required.
Having regard to all the aforesaid considerations the Court upholds the judgment of the High Court which decided that s. 2 of the Criminal Justice Act 1990 is compatible with the Constitution and dismisses the appeal against that finding.
Declaration of Incompatibility Pursuant to Section 5(1) of the European Convention on Human Rights 2003
The appellants have sought a declaration pursuant to s. 5 of the European Convention on Human Rights Act 2003 which confines the Court’s jurisdiction to making a declaration that a statutory provision or a rule of law is incompatible with the State’s obligations under the Convention provisions. At the hearing of the appeal it was made clear by the appellants that the declaration was sought in respect of s. 2 of the Act of 1990 providing for mandatory life imprisonment in the case of the crime of murder. The application for such a declaration is not affected by the provision in the section that it may only be made where no other legal remedy is adequate and available since the Court has decided that the claims of the appellants on foot of their constitutional arguments should be dismissed.
The essence of the appellant’s claim is that s. 2 of the Act is incompatible with Article 5 of the European Convention in that the length of time actually served in prison by the appellant is left to be determined by the executive.
In particular the appellants rely on their assertions that the mandatory life sentence is an indeterminate sentence since it is ultimately left to the Minister to weigh up the range of prison terms possible and select the appropriate length of time to be served. In other words the Ministers carry out a judicial function and determines the limits of the sentence imposed by the Court since the sentence is not in substance a fixed penalty and confers on the executive the power to determine the actual length of imprisonment. Moreover the manner in which the length of the sentence which the appellants undergo is determined in an arbitrary fashion by a Minister many years after sentencing in a social and political context that may be entirely different from what it was at the time of the sentencing. The effect of s. 2 of the Act of 1990 is to submit the appellants to such a sentencing regime and constitute a breach of Articles 5(1) and 5(4) of the European Convention on Human Rights.
The relevant part of the Convention provides:
a. the lawful detention of a person after conviction by a competent court…"
He went on to state “…I am precluded from approaching this case on the basis that over and above any considerations of punishment, this dangerous accused should be preventively detained until in the opinion of the most qualified experts he is safe to be let back into the community.” This conclusion that a sentence could not, as a matter of law, include a preventative element was arrived at after a consideration of the relevant case-law. Any convicted person on whom a sentence comprising a preventative element was imposed would be entitled to successfully appeal his sentence on that ground to the Court of Criminal Appeal or any such person who claimed that he was being detained in prison, by the executive or otherwise, as a form of preventative detention rather than punishment would be entitled to seek a review of the lawfulness of that detention pursuant to Article 40 of the Constitution.
The power of the executive, in this case the Minister, to release a prisoner “whether exercising what might be called conventional grounds of compassionate or of a humanitarian nature” as Keane C.J. put it in O’Neill v. Governor of Castlerea Prison (cited above) is a distinct executive function and does not constitute a determination of what punishment a person should undergo as a consequence of his crime. It is in the form of an exercise of clemency or commutation and although it may bring to an end the period of incarceration, subject to conditions in the case of temporary release. As already pointed out the life sentence imposed by the Court continues to exist notwithstanding any conditional release and he may be required to continue serving it if there are found to be good and sufficient reasons in accordance with law to withdraw the privilege of temporary release, or the period of release simply expires.
The distinction between these two functions was recognised by the European Court of Human Rights in Kafkaris v. Cyprus (judgment 12th February 2008). One of the issues in that case was whether the life sentence imposed on the applicant was in breach of Article 5(1). For present purposes it is not necessary to go into the particular facts of that case. At paragraph 117 of the judgment, when addressing the issue of the “lawfulness” of the applicant’s detention in the context of Article 5.1 the Court stated “The ‘lawfulness’ required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty permitted by sub-paragraph (a) of Article 5.1 … Furthermore the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from “follow and depend upon” or occur “by virtue of” the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue …” In its conclusion at paragraph 119 the Court stated: “The Court observed that the applicant was convicted for premeditated murder by the Limassol Assize Court on 9 March 1989 and on the next day received a mandatory life sentence by that Court on the basis of s. 203(2) of the Criminal Code. Such a sentence is imposed automatically under the Criminal Code as the punishment for the offence of premeditated murder irrespective of the consideration pertaining to the dangerousness of the offender. In imposing the life sentence the Limassol Assize Court made it plain that the applicant had been sentenced to life imprisonment for the remainder of his life as provided by the Criminal Code…”
In the ensuing paragraph 120 the Court went on to state “The Court considers therefore that the fact that the applicant was subsequently given a notice by the prison authorities on the basis of the prison regulations in force at the time, setting a conditional release date cannot, and does not, affect the sentence of life imprisonment passed by the Limassol Court or render his detention beyond the above date unlawful. In the Court’s view there is a clear and sufficient causal connection between the conviction and the applicant’s continuing detention which is pursuant to his conviction and in accordance with the mandatory life sentence imposed on him by a competent court, in conformity with the requirements of the Convention.
In Irish law any person detained following the imposition of a life sentence may only be detained for the purpose of giving effect to that punitive sentence. Therefore his or her detention is always and can only “depend upon” and be “by virtue” of the conviction.
Earlier in the same case the Court had stated at paragraph 97, that “the imposition of a sentence of life imprisonment on an adult offender is not of itself prohibited by or incompatible with Article 3 or any other Article of the Convention.” (emphasis added). That statement was made in the context of an issue under Article 3 which inter alia contains a prohibition against inhuman or degrading treatment and, as the Court noted in paragraph 92 of its judgment, the imposition of an irreducible life sentence on an adult may raise an issue under Article 3. At paragraph 98 it went on to state “An analysis of the Court’s case-law on this subject discloses that where national law affords the possibility of a review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3.” (emphasis added). The Court expressly acknowledged that the possibility of release by executive commutation was not only consistent with the Convention but may serve to ensure that it is consistent with Article 3.
The Court in that case having reviewed the limited scope in Cyprus at the time for discretionary release of persons serving a life sentence, including provisions for discretionary conditional release stated, at paragraph 103, “It follows from the above provisions that the prospect of release for prisoners serving life sentence in Cyprus is limited, any adjustment of a life sentence being only within the President’s discretion subject to the agreement of the Attorney General.” Accordingly the Court did not find “that life sentences in Cyprus are irreducible with no possibility of release;” and went on to conclude that there was no breach of Article 3. In its conclusion on this issue at paragraph 107 the Court stated: “It is true that the life sentence such as the one imposed on and served by the applicant without a minimum term necessarily entails anxiety and uncertainty related to prison life but these are inherent in the nature of the sentence imposed and, considering the prospects for release under the current system do not warrant a conclusion of an inhuman or degrading treatment under Article 3.” [The applicant succeeded in establishing a violation of Article 7 of the Convention which prohibits, inter alia, a heavier penalty being imposed than the one that was applicable at the time the criminal offence was committed. This issue concerned the specifics of Cypriot law and is unrelated to the issues in this case.]
The Court is satisfied, having regard to the decision of the European Court of Human Rights in the Kafkaris case including the case-law cited by the Court itself that:
In its analysis the Court of Human Rights made a clear distinction between the imposition of a mandatory and punitive life sentence by a court and the exercise of an executive discretion to commute, remit or grant conditional release which gives the prisoner a de facto and de jure prospect of release at some point. It clearly did not consider that the existence of an executive discretion to grant conditional release or commutation to constitute the determination or imposition of a sentence by the executive. On the contrary it sees it as a necessary but distinct matter for executive discretion which serves to satisfy concerns that an irreducible life sentence might be contrary to Article 3.
Provided a causal connection remains between the detention and the punishment imposed by the court of trial remains the sentence cannot be considered arbitrary or in breach of Article 5(1). The discretionary power of the executive to grant conditional release on humanitarian or other grounds does not affect the lawfulness of the continued detention of a person as long as that detention is punitive by reason of its nexus with the sentence imposed following conviction.
The Court is satisfied, for the reasons explained earlier in this judgment, that any objective analysis of the sentences being currently served by the appellants in this case pursuant to s. 2 of the Act of 1990 are the punitive sentences imposed by the court of trial. They are not, and cannot, be detained for any other purpose other than to serve the sentence imposed by the court. The Minister has not chosen to exercise any power to temporary release the appellants on any ground provided for in the Act of 1960. That does not affect what is objectively the case, de jure and de facto, that they remain detained in accordance with the punishment provided by law and ordered by the court of trial. If it was objectively otherwise this detention would be unlawful.
In support of their submissions for a declaration of incompatibility the appellants focused primarily on certain judgments of the European Court of Human Rights which pronounced on the compatibility of the United Kingdom sentencing regime for life sentences, including mandatory life sentences. The main authorities relied upon were Weeks v. United Kingdom  10 EHRR, Thynne, Gunnell & Ors v. The United Kingdom  13 EHRR 66, Thynne v. United Kingdom  19 EHRR 33 and Stafford v. United Kingdom [ 2002] 35 EHRR 1121. It is this line of cases which the appellants relied upon for their submissions that the sentence imposed by s. 2 of the Act of 1990, when account is taken of the power of conditional release by the Minister, must be considered incompatible with the Convention, in particular Article 5, because the sentence is arbitrary and its duration determined by the executive. That was the approach and conclusions adopted by the European Court of Human Rights in a number of those cases when pronouncing on the life sentence regime in the United Kingdom.
However, as the learned High Court judge has pointed out, and as adverted to above in this judgment, the sentencing regime in the United Kingdom which was under scrutiny in the relevant judgments relied upon by the appellants is radically different to the sentencing regime in this country. Counsel for the State pointed out, as is evident from the relevant case-law, that a common thread running through these cases was the dual element of punishment and preventative detention although the manner in which the sentencing system functioned evolved over the years.
The sentencing regime in the United Kingdom which was found incompatible with the provisions of the Convention consisted of a life sentence composed of a punitive element identified as “the tariff” period and the subsequent detention of a preventative nature, being for public safety reasons. Thus the nexus between the crime and its punishment was broken or terminated and the prisoner’s detention continued for reasons which were unrelated to the punishment of the crime. Because decisions on the further detention of a prisoner were not related to a sentence of punishment for the offence as imposed by a court, the European Court of Human Rights concluded that the procedures for deciding on a prisoner’s further or continued detention offended against the provisions of Article 5 of the Convention. These considerations placed the particular sentencing regime in a special category unlike the case of a person sentenced to life imprisonment because of the gravity of the offence committed. (See Weeks v. United Kingdom paragraph 58).
At page 73 in the Thynne case the Court of Human Rights having considered the law and in particular judicial dicta in cases that came before the courts of England and Wales stated: “… It seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they are composed of a punitive element and subsequently of the security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner’s release. This view is confirmed by the judicial description of the “tariff” as denoting the period of detention considered necessary to meet the requirements of retribution and deterrents ….” The Court added “…the objectives of the discretionary life sentence as seen above are distinct from the punitive purposes of the mandatory life sentence and have been so described by the courts in the relevant cases … .”
In the Stafford case the Court analysed the evolution and changes in the sentencing regime in the United Kingdom and observed at paragraph 40 of the judgment in the case that “…The English courts have recognised that the mandatory sentence is like the discretionary sentence, composed of a punitive period (“the tariff”) and a security period. As regards the latter, detention is linked to the assessment of the prisoner’s risk to the public following the expiry of the tariff …” and in this respect the Court cited a number of English judicial decisions.
At paragraph 80 of its conclusions in that case the Court noted: “Once the punishment element of the sentence (as reflected in the tariff) has been satisfied, the grounds for the continued detention, as in discretionary life and juvenile murder cases, must be considerations of risk and dangerousness.” Here the Court is referring to the mandatory life sentence for adults. The Court then went on to state in the same paragraph: “As Lord Justice Simon Brown commented in Anderson v. Taylor …, it is not apparent how public confidence in the system of criminal justice could legitimately require the continued incarceration of a prisoner who has served the term required for punishment for the offence and is no longer a risk to the public.”
In the Stafford case the prisoner had been recalled after release, even though he “must be regarded as having exhausted the punishment element for his offence of murder”. Since the specified “tariff” or punishment element of the offence had been exhausted before he was recalled to prison the detention of the prisoner after recall could not be justified as “punishment for the original murder”. It was on that basis that the Court concluded that the applicant’s detention on foot of the original mandatory life sentence (the one in which the punishment element had already been exhausted) was in violation of Article 5.1 of the Convention. That is in stark contrast to the longstanding position in Irish law as explained earlier in this judgment.
In the light of the foregoing the Court is satisfied that the learned High Court judge was correct in her conclusion that that case-law of the European Court of Human Rights relied upon by the appellants in their application pursuant to s. 5(1) of the Act of 2003 has no material application to the circumstances of this case where the sentences imposed under s. 2 of the Act are wholly punitive and bear no relationship to the system in the United Kingdom which was scrutinised by the Court of Human Rights. The Court of Human Rights continues to recognise that a mandatory life sentence as a punitive measure for a serious crime imposed in accordance with national law does not as such offend against any provision of the Convention provided at least that national law affords the possibility of review with a view to its commutation or conditional release (Kafkaris cited above).
No issue was taken with the procedures before the court of trial at which the appellants were sentenced to life imprisonment pursuant to s. 2 of the Act of 1960. Since the subsequent detention of persons so sentenced is at all times referable to and a consequence of the punitive sentence so imposed no issue arises concerning the compatibility of s. 2 of the Act of 1990 with Article 6 of the Convention.
Accordingly the appellant’s appeal on this ground is also dismissed.