Peter Whelan v The Minister for Justice, Equality and Law Reform and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Irvine
• Judgment Date: 05 October 2007
• Neutral Citation: [2007] IEHC 374
• Court: High Court
• Docket Number: [2004 No. 38JR & 2005
• Date: 05 October 2007

[2007] IEHC 374

THE HIGH COURT

[No. 38 J.R./2004]

[No.4326 P/2005]

Whelan & Lynch v Minister for Justice

BETWEEN/

PETER WHELAN

PLAINTIFF

AND

MINISTER FOR JUSTICE EQUALITY AND LAW REFORM, IRELAND AND ATTORNEY GENERAL

DEFENDANTS

BETWEEN/

PAUL LYNCH

PLAINTIFF

AND

MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND IRELAND AND ATTORNEY GENERAL

DEFENDANTS

CRIMINAL JUSTICE ACT 1990 S2

CONSTITUTION ART 6

CONSTITUTION ART 34.1

CONSTITUTION ART 38.1

CONSTITUTION ART 40.4.1

CONSTITUTION ART 40.3.1

CONSTITUTION ART 40.3.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(1)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 5(4)

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6(1)

CRIMINAL JUSTICE ACT 1951 S23

CRIMINAL JUSTICE ACT 1951 S23(a)

CRIMINAL JUSTICE ACT 1964 S1

DEFENCE ACT 1954

OFFENCES AGAINST THE STATE ACT 1939

CONSTITUTION ART 15.5.2

OFFENCES AGAINST THE PERSON ACT 1861 S1 (UK)

OFFENCES AGAINST THE PERSON ACT 1861 S2 (UK)

OFFENCES AGAINST THE PERSON ACT 1861 S5 (UK)

CRIMINAL JUSTICE ACT 1964 S4

CRIMINAL JUSTICE ACT 1964 S3

TWENTY-FIRST AMDT OF THE CONSTITUTION ACT 2001

CRIMINAL JUSTICE ACT 1990 S3

CONSTITUTION ART 13.6

CRIMINAL JUSTICE ACT 1951 S23(1)

CRIMINAL JUSTICE ACT 1990 S9

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S17

CRIMINAL JUSTICE ACT 1951 S23(3)

CRIMINAL JUSTICE ACT 1951 S23A(1)

RULES FOR THE GOVERNMENT OF PRISONS 1947 SI 320/1947

PRISONS (IRELAND) ACT 1907 S38(1) (UK)

PRISONS ACT 2007 S35(2)(f)

PRISON RULES 2007 SI 252/2007 ART 59

PRISON RULES 2007 SI 252/2007 ART 59(3)

CRIMINAL JUSTICE ACT 2006 S110

KINAHAN v MIN FOR JUSTICE 2001 4 IR 454 2001/13/3766

CRIMINAL JUSTICE ACT 1960 S2

PRISONERS (TEMPORARY RELEASE) RULES 1960 SI 167/1960

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S1

CRIMINAL JUSTICE (TEMPORARY RELEASE OF PRISONERS) ACT 2003 S2

EAST DONEGAL CO-OP v AG 1970 IR 317

CONSTITUTION ART 34

CONSTITUTION ART 38

DEATON v AG & REVENUE CMSRS 1963 IR 170

CUSTOMS (CONSOLIDATION) ACT 1876 S186 (UK)

OSMANOVIC v DPP, IRELAND & AG UNREP SUPREME 25.7.2006 2006/47/10113 2006 IESC 50

FINANCE ACT 1997 S89(b)

HOGAN JM KELLY: THE IRISH CONSTITUTION 4ED 2003 PARA 6.1.124

O'ROURKE, STATE v KELLY 1983 IR 58

HOUSING ACT 1966 S62(3)

INTOXICATING LIQUOR ACT 1988 PART IV

ROAD TRAFFIC ACT 1961 S26

DPP, PEOPLE v W C 1994 ILRM 321

COX v IRELAND 1992 2 IR 503

OFFENCES AGAINST THE STATE ACT 1939 S34

PEOPLE, DPP v M 1994 3 IR 306 1994 2 ILRM 541

AG PEOPLE v O'DRISCOLL 1972 1 FREWEN 351

DPP v KELLY 2005 2 IR 321

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 42

OFFENCES AGAINST THE STATE ACT 1939 S52

ART 26 OF THE EMPLOYMENT EQUALITY BILL 1996, RE 1997 2 IR 321

DPP v SHAW 1982 IR 1

CONSTITUTION ART 40

CONSTITUTION ART 41

DPP v CASH UNREP CHARLETON 28.3.2007 2007 IEHC 108

CONSTITUTION ART 40.1

CRIMINAL JUSTICE (MISCELLANEOUS PROVISIONS) ACT 1997 S17

DPP, PEOPLE v CAHILL 1980 IR 8

DPP v FINN 2001 2 IR 25 2001 2 ILRM 211

DPP v AYLMER 1995 2 ILRM 624

DPP, PEOPLE v TIERNAN 1988 IR 250

MURRAY v IRELAND & AG 1991 ILRM 465

BRENNAN v MIN FOR JUSTICE 1995 1 IR 612

MCDONALD v BORD NA GCON (NO 2) 1965 IR 217

CRIMINAL JUSTICE ACT 1990 S3

WEEKS v UNITED KINGDOM 1988 10 EHRR 293

HUSSAIN v UNITED KINGDOM 1996 22 EHRR 1

RYAN v UNITED KINGDOM 27 EHRR CD 204

CRIMINAL JUSTICE ACT 1982 S8

LEGER v FRANCE UNREP ECHR 11.4.2006 (APP NO 19324/02)

DPP v JACKSON UNREP CCA 26.4.1993 2003/17/3741

DPP v BRAMBRICK 1996 1 IR 265

THYNNE, WILSON & GUNNELL v UNITED KINGDOM 1991 13 EHRR 666

STAFFORD v UNITED KINGDOM 2002 35 EHRR 32

R (LICHNIAK) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2001 3 WLR 933

R (ANDERSON) v SECRETARY OF STATE FOR THE HOME DEPARTMENT 2002 3 WLR 1800

CRIME (SENTENCES) ACT 1997 S29 (UK)

COMPANY LAW

Statute

Validity of statute - Mandatory life sentence for murder - Separation of powers - Whether mandatory sentence encroachment on judicial function - Presumption of constitutionality - Onus on plaintiff - Double construction rule - Functions of judiciary and Oireachtas - Prescribing of general rules - Doctrine of proportionality - Removal of judicial discretion - Whether mandatory life sentence proportionate to public good - Right to life - Special position of family - Seriousness of offence - Balancing of rights of accused and interests of community - Remission - Temporary release - Powers of executive - Whether remission sentencing by executive - Roles of judiciary and executive - Prison Rules - Role of Parole Board - Executive clemency - Supervision by courts - Characteristics of administration of justice - People (DPP) v Shaw [1982] IR 1, Deaton v AG [1963] IR 170, Osmanovic v DPP [2006] IESC 50, [2006] 3 IR 504, State (O'Rourke) v Kelly [1983] IR 58, People (DPP) v Jackson (Unrep, CCA, 26/4/1993), DPP v Bambrick [1996] IR 265, Murray v Ireland [1991] ILRM 465, People (DPP) v Cahill [1980] IR 8, People (DPP) v Finn [2001] 2 IR 25, People v Tiernan [1988] IR 250 and Brennan v Minister for Justice [1995] 1 IR 612 considered - Criminal Justice Act 1990 (No 16), s. 2 - Constitution of Ireland 1937, Articles 13.6, 34, 38, 40.3 and 41.1 - Claim dismissed (2004/38JR & 2005/4326P - Irvine J - 5/10/2007) [2007] IEHC 374

Whelan v Minister for Justice

HUMAN RIGHTS

Liberty

Detention - Sentence - Mandatory life sentence - Right to review of detention - Whether right to review by independent body - Roles of Minister for Justice and Parole Board - Whether review sentencing by executive - Concept of preventative detention - Punitive nature of punishment - Consideration of risk to public - Whether inhuman and degrading treatment - Prospect of release - Weeks v UK (1987) 10 EHRR 293, Hussain v UK (1996) 22 EHRR 1, Ryan v UK (1999) 27 EHRR 204, Leger v France (Unrep, ECHR, 11/4/2006), Thynne, Wilson and Gunnell v UK (1990) 13 EHRR, Wynne v UK (1994) 19 EHRR 333, Stafford v UK (2002) 35 EHRR 1121 and R (Anderson) v Secretary of State for the Home Department [2002] UKHL 46 [2002] 3 WLR 1800 distinguished - Criminal Justice Act 1990 (No 16), s 2 - European Convention on Human Rights and Fundamental Freedoms 1950, articles 3, 5 and 6 - Claim dismissed (2004/38JR & 2005/4326P - Irvine J - 5/10/2007) [2007] IEHC 374

Whelan v Minister for Justice

1 JUDGMENT delivered by Ms. Justice Irvine on the 5th day of October, 2007.

The parties

2 The plaintiff in the first action, Peter Whelan ("the first named Plaintiff"), was charged with the murder of a young woman named Nicola Sweeney and the attempted murder of her friend Sinead O'Leary whom he had confronted in the Sweeney household on the evening of 27th April, 2002. Both young women were savagely stabbed in the absence of any provocation and regrettably Nicola Sweeney died. Sinead O'Leary was badly injured.

3 The first named plaintiff pleaded guilty to both of the aforementioned charges on the 27th April, 2002. At his trial in December, 2002 the first named plaintiff received a mandatory life sentence in respect of his plea of guilty to the murder of Nicola Sweeney. The trial judge further imposed a sentence of fifteen years on the first named plaintiff in respect of his attempted murder of Sinead O'Leary with the latter sentence directed to run consecutively to the former.

4 The Court of Criminal Appeal in June, 2003 reversed the structure of the sentences so that the life sentence would be consecutive to the fifteen years sentence imposed in respect of the attempted murder offence.

5 Paul Lynch, the plaintiff in the second action ("the second named plaintiff") was charged with murder and robbery in respect of events involving a taxi driver, namely, William Campbell on 22nd September, 1995. Mr. Campbell was known by the second named plaintiff to have had a significant amount of cash on his person on the evening concerned. The second named plaintiff, charged with this knowledge, went home to his house, retrieved a frying pan and then proceeded to Mr. Campbell's home where he struck his victim seven to eight times prior to robbing him of £65. Mr. Campbell died as a result of this assault.

6 The second named plaintiff having been sentenced to life imprisonment following upon his plea of guilty to the charge of murder then appealed to the Court of Criminal Appeal on the grounds that his legal team had coerced him to so plead. The appeal was rejected in July, 1998 and the second named plaintiff continues to serve his sentence in respect of the aforementioned conviction.

7 The second named plaintiff's continued detention was considered by the Parole Board in 2004, and in July, 2004 the first named defendant, having considered the report of the Parole Board, determined that the second named plaintiff 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.

The nature of the proceedings

8 The statement of claim of the first named plaintiff was delivered on 15th March, 2004, and the statement of claim of second named plaintiff on 8th February, 2006. Whilst there are significant differences in the pleadings, particularly in respect of the reliefs sought by these plaintiffs, the substantial issues of law that this Court is asked to engage with overlap to the extent that it is appropriate that the issues of law arising in both claims be dealt with together.

9 The plaintiffs complain that s. 2 of the Criminal Justice Act, 1990 which provides for a mandatory life sentence for murder is unconstitutional. In particular it is claimed that this section offends Articles 6, 34.1, 38.1, 40.4.1, 40.3.1 and 40.3.2 of the Constitution.

10 The plaintiffs allege that any individual...