Homicide Sentencing

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CRIMINAL JUSTICE ACT, 1990

AN ACT TO ABOLISH THE DEATH PENALTY AND SUBSTITUTE IMPRISONMENT FOR LIFE, TO PROVIDE THAT A MINIMUM PERIOD OF IMPRISONMENT SHALL BE SERVED BY PERSONS CONVICTED OF TREASON OR OF CERTAIN CATEGORIES OF MURDER OR ATTEMPTS TO COMMIT ANY SUCH MURDER AND TO PROVIDE FOR OTHER CONNECTED MATTERS. [11th July, 1990]

BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:

Abolition of death penalty.

1.—No person shall suffer death for any offence.

Sentence for treason and murder.

2.—A person convicted of treason or murder shall be sentenced to imprisonment for life.

Special provision in relation to certain murders and attempts.

3.—(1) This section applies to—

(a) murder of a member of the Garda Síochána acting in the course of his duty,

(b) murder of a prison officer acting in the course of his duty,

(c) murder done in the course or furtherance of an offence under section 6 , 7 , 8 or 9 of the Offences against the State Act, 1939 , or in the course or furtherance of the activities of an unlawful organisation within the meaning of section 18 (other than paragraph (f)) of that Act, and

(d) murder, committed within the State for a political motive, of the head of a foreign State or of a member of the government of, or a diplomatic officer of, a foreign State,

and to an attempt to commit any such murder.

(2) (a) Subject to paragraph (b), murder to which this section applies, and an attempt to commit such a murder, shall be a distinct offence from murder and from an attempt to commit murder and a person shall not be convicted of murder to which this section applies or of an attempt to commit such a murder unless it is proved that he knew of the existence of each ingredient of the offence specified in the relevant paragraph of subsection (1) or was reckless as to whether or not that ingredient existed.

(b) Save as otherwise provided by this Act, the law and procedure relating to murder and an attempt to commit murder shall apply to the offence.

(3) In this section—

“diplomatic officer” means a member of the staff of a diplomatic mission of a foreign State having diplomatic rank;

“prison” means any place for which rules or regulations may be made under the Prisons Acts, 1826 to 1980, section 7 of the Offences against the State (Amendment) Act, 1940 , section 233 of the Defence Act, 1954 , section 2 of the Prisoners of War and Enemy Aliens Act, 1956 , or section 13 of the Criminal Justice Act, 1960 ;

“prison officer” includes any member of the staff of a prison and any person having the custody of, or having duties in relation to the custody of, a person detained in a prison.

Minimum period of imprisonment for treason and murder, and attempts, to which section 3 applies.

4.—Where a person (other than a child or young person) is convicted of treason or of a murder or attempt to commit a murder to which section 3 applies, the court—

(a) in the case of treason or murder, shall in passing sentence specify as the minimum period of imprisonment to be served by that person a period of not less than forty years,

(b) in the case of an attempt to commit murder, shall pass a sentence of imprisonment of not less than twenty years and specify a period of not less than twenty years as the minimum period of imprisonment to be served by that person.

Restrictions on power to commute or remit punishment or grant temporary release.

5.—(1) The power conferred by section 23 of the Criminal Justice Act, 1951 , to commute or remit a punishment shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies or an attempt to commit such a murder, be exercisable before the expiration of the minimum period specified by the court under section 4 less any reduction of that period under subsection (2) of this section.

(2) The rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies or an attempt to commit such a murder as if he had been sentenced to a term of imprisonment equal to the minimum period specified by the court under section 4 , and that period shall be reduced by the amount of any remission which he has so earned.

(3) Any power conferred by rules made under section 2 of the Criminal Justice Act, 1960 (including that section as applied by section 4 of the Prisons Act, 1970 ), to release temporarily a person serving a sentence of imprisonment shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder to which section 3 applies or an attempt to commit such a murder, be exercisable during the period for which the commutation or remission of his punishment is prohibited by subsection (1) of this section unless for grave reasons of a humanitarian nature, and any release so granted shall be only of such limited duration as is justified by those reasons.

Procedure in cases of murder, and attempts, to which section 3 applies.

6.—(1) Where a person is accused of murder to which section 3 applies or of any attempt to commit such a murder, he shall be charged in the indictment with murder to which that section applies or, as the case may be, with an attempt to commit such a murder.

(2) A person indicted for murder to which section 3 applies may—

(a) if the evidence does not warrant a conviction for such murder but warrants a conviction for murder, be found guilty of murder,

(b) if the evidence does not warrant a conviction for murder but warrants a conviction for manslaughter, be found guilty of manslaughter.

(3) A person indicted for an attempt to commit a murder to which section 3 applies may, if the evidence does not warrant a conviction for such an attempt but warrants a conviction for an attempt to commit murder, be found guilty of an attempt to commit murder.

Consequential amendments.

7.—The enactments mentioned in the First Schedule are hereby amended in the manner specified therein.

Transitional provisions.

8.—(1) An offence of treason, capital murder or attempt to commit a capital murder, being an offence committed wholly or partly before the passing of this Act, shall be dealt with under the law in force before such passing, except that—

(a) if the offender is convicted of treason or capital murder, he shall be sentenced as provided for by this Act as if, in the case of capital murder, the murder were murder to which section 3 applies, and

(b) if he is convicted of attempted capital murder, he shall be sentenced as if he had been convicted of attempted murder.

(2) If, on an appeal against a conviction before the passing of this Act, of treason or capital murder the conviction is confirmed, the appeal court shall impose sentence as provided for by this Act as if, in the case of capital murder, the murder were murder to which section 3 applies.

Repeals.

9.—(1) The enactments mentioned in the Second Schedule are hereby repealed to the extent specified therein.

(2) The repeal by this Act of section 1 of the Offences against the Person Act, 1861 , shall not affect the operation of sections 64 to 68 of that Act.

Short title.

10.—This Act may be cited as the Criminal Justice Act, 1990.

FIRST SCHEDULE

Consequential Amendments

Section 7.

1. In section 2 of the Piracy Act, 1837 , “and on conviction thereof shall be sentenced to imprisonment for life” shall be inserted at the end of the section.

2. Section 103 of the Children Act, 1908, shall have effect in relation to a child or young person who is convicted of an offence for which an adult would be required to be sentenced to imprisonment for life as it had effect before the passing of this Act in relation to a child or young person convicted of an offence for which an adult would have been required to be sentenced to death.

3. Section 1 of the Treason Act, 1939 , shall be amended as follows:

(a) in subsections (1) and (2) “be sentenced on conviction thereof to imprisonment for life” shall be substituted for “be liable on conviction thereof to suffer death”, and

(b) in subsection (3) “murder to which section 3 of the Criminal Justice Act, 1990, applies” shall be substituted for “capital murder” (inserted therein by the Criminal Justice Act, 1964 ).

4. The Defence Act, 1954 , shall be amended as follows:

(a) in section 50 (2) “death,” shall be deleted;

(b) in sections 124 and 125 “imprisonment for life” shall be substituted for “death”;

(d) in sections 127 and 128 “imprisonment for life” shall be substituted for “death”;

(e) in sections 133, 134, 135 (1) (b), 136, 137 (1), 140, 141, 142 (b), 142A (1) (ii), 143, 144, 145, 146, 147, 148, 150, 152, 153, 156, 157, 159 (1), 160, 161 (2), 162, 163, 164 (1), 165, 166, 167 and 168 (1) “for any term not exceeding two years” shall be inserted after “imprisonment”;

(f) the following section shall be substituted for section 169:

“

Offences punishable by ordinary law.

169.—(1) Subject to the provisions of this Act, every person who, while he is subject to military law, commits any of the offences referred to in this section shall be deemed to be guilty of an offence against military law and, if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial.

(2) Where a person charged under this section is convicted by a court-martial of treason or murder, he shall be sentenced to imprisonment for life.

(3) Where a person charged under this section is convicted by a court-martial of an offence other than treason or murder, he shall be liable to be punished as follows:

(a) if he is convicted of manslaughter, be liable to suffer penal servitude or any less punishment awardable by a court-martial;

(b) if he is convicted of rape, be liable to suffer penal servitude or any less punishment awardable by a court-martial;

(i) in case the offence consists of the killing of any person, to imprisonment for life, or

(ii) in any other case, to imprisonment for a term not exceeding fourteen years;

(d) if he is convicted of any offence not before in this section particularly specified which when committed in the State is punishable by the ordinary criminal law of the State, be liable, whether the offence is committed in the State or elsewhere, either to suffer any punishment assigned for such offence by law of the State or, if he is subject to military law as an officer, dismissal with ignominy from the Defence Forces or any less punishment awardable by a court-martial or, if he is subject to military law as a man, imprisonment for any term not exceeding two years or any less punishment awardable by a court-martial.”;

(g) the following section shall be inserted after section 169:

“

Trial by court-martial of treason and certain murders and attempts.

169A.—(1) A person subject to military law who is accused of murder which is alleged to be murder to which section 3 of the Criminal Justice Act, 1990, applies or of an attempt to commit such a murder and is to be tried by court-martial shall be charged with murder to which that section applies or, as the case may be, with an attempt to commit such a murder, and the following provisions of that Act, namely—

(a) section 4 , with the substitution of ‘court-martial’ for ‘court’, and

(b) subsection (2) of section 6 , with the substitution of ‘charged with’ for ‘indicted for’,

shall apply and have effect in relation to the trial.

(2) The said section 4 shall apply and have effect, in relation to the trial of a person subject to military law who is accused of treason, with the substitution of ‘court-martial’ for ‘court’.”;

(h) in section 192 (2) (d) “for any term not exceeding two years” shall be inserted after “imprisonment”;

(i) in section 198, subsection (2) shall be deleted;

(j) in sections 209 (1) and 210 (1) “Imprisonment for life” shall be substituted for “Death”;

(k) in section 210 (6) “imprisonment for life or” shall be inserted before “penal servitude” in each place where those words occur;

(l) in subsections (7) and (10) of section 210 “for any term not exceeding two years” shall be inserted after “imprisonment”;

(m) section 212 shall not apply to a sentence of imprisonment for life;

(n) in section 220, subsection (2) shall be deleted and, in subsection (3), “imprisonment on conviction of treason or of murder, or attempted murder, to which section 3 of the Criminal Justice Act, 1990, applies” shall be substituted for “death”;

(o) in section 221 (1) “(other than a sentence of death)” shall be deleted and the following proviso added:

“Provided that—

(i) the said power of mitigation or remission shall not, in the case of a sentence of imprisonment passed on a person on conviction of treason or of murder, or attempted murder, to which section 3 of the Criminal Justice Act, 1990, applies, be exercisable before the expiration of the minimum period specified by the court-martial under section 4 of that Act, as applied by section 169A of this Act, less any reduction of that period under paragraph (ii) of this proviso, and

(ii) the rules or practice whereby prisoners generally may earn remission of sentence by industry and good conduct shall apply in the case of a person serving a sentence passed on him on conviction of treason or of murder, or attempted murder, to which the said section 3 applies as if he had been sentenced to a term of imprisonment equal to the minimum period specified by the court-martial under the said section 4 , as applied by section 169A of this Act, and that period shall be reduced by the amount of any remission which he has so earned.”;

(p) in section 222, paragraph (a) and “in any other case” in paragraph (b) shall be deleted;

(q) the following subsection shall be added to section 223:

“(10) This section shall not apply to a sentence of imprisonment on conviction of treason or of murder, or attempted murder, to which section 3 of the Criminal Justice Act, 1990, applies.”;

(r) section 227 shall be deleted;

(s) the following subsection shall be inserted in section 228 after subsection (1):

“(1A) Where a sentence of imprisonment for life is passed by a court-martial and confirmed, the military prisoner shall, as soon as practicable, be committed to a public prison to undergo his sentence according to law, and subsections (2) to (7) of this section shall have effect in relation to him—

(a) as if each reference therein to a military convict were a reference to a military prisoner and each reference to a penal servitude prison a reference to a public prison, and

(b) as if the reference in the said subsection (7) to penal servitude were a reference to imprisonment.”;

(t) section 229 shall not apply to a military prisoner sentenced to imprisonment for life; and

(u) the following subsection shall be inserted in section 233 after subsection (2):

“(2A) Any power conferred by rules under this section to release a person temporarily shall not, in the case of a person serving a sentence passed on him on conviction of treason or of murder, or attempted murder, to which section 3 of the Criminal Justice Act, 1990, applies, be exercisable during the period for which the power to mitigate or remit his punishment is prohibited by paragraph (i) of the proviso (inserted by that Act) to section 221 (1) of this Act unless for grave reasons of a humanitarian nature, and any such release shall be only of such limited duration as is justified by those reasons.”.

5. In the Courts-Martial Appeals Act, 1983 —

(a) in sections 26, 28 (2) (c) and 28 (3) (ii) (I) “a capital offence or murder” shall be replaced in each case by “an offence for which a person would be required on conviction to be sentenced to imprisonment for life”;

(b) in section 27 (2) (c) “a capital charge or a charge of murder” shall be replaced by “a charge of an offence for which a person would be required on conviction to be sentenced to imprisonment for life”.

SECOND SCHEDULE

Enactments Repealed

Section 9 .

Chapter or Number and Year

Short Title

Extent of Repeal

(1)

(2)

(3)

C. 100.

Offences against the Person Act, 1861 .

Sections 1 to 3.

In section 71, the words “other wise than with death”.

C. 24.

Capital Punishment Amendment Act, 1868.

The whole Act.

C. 78.

Juries Procedure (Ireland) Act, 1876.

Section 13.

C. 49.

General Prisons (Ireland) Act, 1877.

Proviso in section 40.

No. 27 of 1926.

Court Officers Act, 1926.

Section 53.

No. 15 of 1928.

Courts of Justice Act, 1928.

In subsection (1) of section 6, the words “death or”.

Subsection (2) of section 6.

No. 2 of 1951.

Criminal Justice Act, 1951 .

In subsection (1) of section 23, the words “Except in capital cases,”.

No. 27 of 1956.

Prisoners of War and Enemy Aliens Act, 1956 .

Subsection (1) of section 5.

No. 11 of 1962.

Geneva Conventions Act, 1962.

In subsection (1) (b) of section 6 and in subsection (1) of section 8, the words “to death or”.

In subsection (2) of section 8, the words “remains a sentence of death, or”.

No. 5 of 1964.

Criminal Justice Act, 1964 .

The whole Act, except sections 4 and 11.

No. 28 of 1973.

Genocide Act, 1973 .

Section 4.

No. 14 of 1976.

Criminal Law (Jurisdiction) Act, 1976.

Subsection (6) of section 20.

No. 19 of 1983.

Courts-Martial Appeals Act, 1983 .

Section 21.

No. 1 of 1987.

Extradition (European Convention on the Suppression of Terrorism) Act, 1987.

Subsection (4) of section 6.