Case Comment: Whelan and Lynch v The Minister for Justice, Equality and Law Reform

• Author: Rebecca West
• Position: BCL (International) III University College Cork
• Pages: 86-93

[2011] COLR

86

CASE COMMENT: WHELAN AND LYNCH v THE MINISTER FOR

JUSTICE, EQUALITY AND LAW REFORM

Rebecca West*

A INTRODUCTION

It was established in section 2 of the Criminal Justice Act 1990 (1990 Act) that a life sentence

shall be imposed upon every individual convicted of murder in Ireland. Consensus as to the

desirability of such a provision in this jurisdiction has never universal, and it has been the subject

of academic and institutional debate in the decades following its promulgation.

1

The recent case

of Whelan and Lynch v The Minister for Justice, Equality and Law Reform

2

was therefore

seminal, as it afforded the courts the opportunity to resolve the question of whether or not section

2 of the 1990 Act ought to be preserved as a feature of Irish sentencing jurisprudence. In this

note, this author will examine the decision of the Supreme Court in Whelan and Lynch. A brief

outline of the relevant facts will firstly be provided. An evaluation of the approach adopted by

the Court in analysing the legitimacy of section 2 of the 1990 Act will subsequently be offered.

This discussion will be conducted with specific regard to the issues of proportionality, judicial

discretion and compatibility with the European Convention on Human Rights Act 2003 (ECHR

Act 2003).

B FACTS

The appellants, Whelan and Lynch, had been convicted of the murder of a young woman and a

taxi driver respectively. A mandatory life sentence was accordingly imposed upon both, pursuant

to section 2 of the 1990 Act. Following sentencing, legal proceedings were instigated by the

appellants who sought to challenge the constitutionality of section 2 of the 1990 Act. It was

alleged that it offended the doctrines of proportionality and the separation of powers through its

failure to allow courts to take into consideration ‗the particular circumstances in which the

offence may have been committed‘

3

in order to formulate a truly appropriate sentence, and its

usurpation of the powers of the judiciary. It was claimed that the latter arose due to the fact that

temporary release could eventually be granted to prisoners by the executive, which therefore

determined ‗in substance‘

4

the length of time an individual would remain in jail. It was also

argued that a sanction of this nature was repugnant to the ECHR Act 2003 (and by extension the

European Convention on Human Rights), for reasons related to the purported ‗sentencing

*BCL (International) III University College Cork.

1

See for example the Law Reform Commission, Homicide: Murder and Involuntary Manslaughter (LRC 87-2008)

[1.49] (2008 Report) and Tom O‘Malley Sentencing Law and Practice (2nd ed n Thomson Round Hall 2006).

2

[2010] IESC 34 (Supreme Court) (Whelan).

3

ibid [Imposition of a Proportionate Sentence].

4

ibid [Interference with Judicial Function].