A Comparative Analysis Of The Sentencing Process In Cases Of Murder In Ireland, England And Wales

• Author: Rebecca West
• Position: BCL (International) IV, University College Cork
• Pages: 39-47

[2012] COLR

39

A COMPARATIVE ANALYSIS OF THE SENTENCING PROCESS IN

CASES OF MURDER IN IRELAND, ENGLAND AND WALES

Rebecca West*

A INTRODUCTION

The Irish Criminal Justice Act 1990 (the 1990 Act) and the English Murder (Abolition of the

Death Penalty) Act 1965 (the 1965 Act) both stipulate that the penalty for committing a

murder is mandatory life imprisonment. While it may therefore appear that a similar approach

has been adopted by the two jurisdictions, it is submitted that divergences may be noted in

the mechanisms employed by each for delivering and implementing the sanction.

Consequently, this paper will explore the similarities and differences in the procedures which

exist between the Irish and English legal systems, with specific regard to the role played by

the various organs of State in determining the length of the murderer‟s incarceration, the

meaning of a „life‟ sentence in reality, the manner in which this imprisonment may be

abridged by release on a licence, and proposals for reform of the sentence.

B ROLE OF STATE ACTORS IN IMPOSING THE SENTENCE IN IRELAND,

ENGLAND AND WALES

1 Ireland

As stated in section 2 of the 1990 Act, the Court is compelled to impose a life sentence upon

those convicted of murder. It is not afforded any discretion in the process by the legislature,

and may not offer any recommendations in relation to the length of the prisoner‟s

incarceration – as will be discussed in detail below, this is determined at a later juncture by

the Minister for Justice, Equality and Law Reform, working in conjunction with the Parole

Board.

In order to comprehensively treat the subject of the role of judiciary, executive and legislature

in the sentencing process in murder cases in Ireland, it is important to note that the legitimacy

of the mandatory sentencing provisions of the 1990 Act was unsuccessfully challenged in the

seminal case of Whelan and Lynch v The Minister for Justice, Equa lity and Law Reform.1 In

Whelan it was argued that statutorily stipulating a life sentence for murder offended the

Constitutional 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‟2 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

* BCL (International) IV, University College Cork.

1 [2010] IESC 34.

2 ibid.