Homicide Sentencing

Table of Contents

Cases

Lynch -v- Minister for Justice Equality and Law Reform & Whelan -v- same

[2010] IESC 34 (14 May 2010)

Judgment Title: Lynch -v- Minister for Justice Equality and Law Reform & Whelan -v- same

Neutral Citation: [2010] IESC 34

Supreme Court Record Number: 15/08 & 18/09

High Court Record Number: 2005 4326 P & 2004 38 JR

Date of Delivery: 14/05/2010

Court: Supreme Court

Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Macken J.

Judgment by: Murray C.J.

Status of Judgment: Unapproved

Judgments by
Result
Concurring
Murray C.J.
Appeal dismissed – affirm High Court Order
Denham J., Hardiman J., Geoghegan J., Macken J.

Outcome: Dismiss

UNAPPROVED

THE SUPREME COURT

15/08
18/09
Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Macken J.

Between
PAUL LYNCH
Appellant
-v-
THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
AND
BETWEEN

PETER WHELAN
APPELLANT
-v-
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:-

“2.- A person convicted of treason or murder shall be sentenced to imprisonment for life.”
Each of the appellants stand convicted for the crime of murder and have been duly sentenced to life imprisonment pursuant to the aforesaid section.
Section 4 of the Criminal Justice Act 1964 provides:

“4.- (1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury, to some person, whether the person actually killed or not.”
On 2nd December 2002 Peter Whelan was convicted for the crime of murder at the Central Criminal Court and sentenced to life imprisonment pursuant to s. 2 of the Act of 1990.
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:

“The Oireachtas shall not enact any law providing for the imposition of the death penalty”.
The position now is that, after the total abolition and prohibition of the imposition of the death penalty the minimum sentence which a court may impose on a person convicted of the crime of murder is life imprisonment.
Temporary Release

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:

“2.(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person—
(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,

(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,

(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,

………… .”

Summary of the arguments of the parties on the constitutional issue
The Appellants

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 [1994] 1 AC 531 concerning the imposition of a life sentence for murder Mustill L.J., observed:

“Although it is a very grave occasion it is a formality in this sense, the task of the judge is entirely mechanical. Once a verdict of guilty is returned the outcome is pre-ordained. No matter what the opinion of the judge on the moral quality of the Act, no matter what circumstances there may be of mitigation or aggravation there is only one course for him to take, namely, to pass a sentence of life imprisonment.
…

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.”

Reliance is also placed on a statement made by the author in O’Malley on Sentencing Law and Practice (Thomson Round Hall, 2006, p. 244): “The judge imposes a life sentence; the government decides when, if ever, the offender is to be released. The upshot of this arrangement is that the length of time a person actually serves is determined by the executive as opposed to the judiciary. The same is true of most prison sentences except in the case of a determinate sentence an upper limit will have been judicially determined following conviction.”
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.) [1994] 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:

“In my view the selection of the particular punishment to be imposed on an individual offender is subject to the constitutional principle of proportionality. 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. It is not open to a judge in a criminal case when imposing sentence, whether for a particular type of offence, or in respect of a particular class of offender, to fetter the exercise of his judicial discretion through the operation of a fixed policy or to otherwise pre-determine that issue.” (1994 1 I.L.R.M 321 at 325.
Counsel also relied on a passage from the judgment of Walsh J., in The People (Attorney General) v. O’Driscoll [1971] 1 Frewen 351 at 359.
“It is therefore the duty of the courts to pass what are appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”
The importance of sentences being proportionate to the gravity of the offence in question as well as to the circumstances of the person sentenced has been repeatedly emphasised in the case-law of the Court of Criminal Appeal for example by Denham J., in her judgment in D.P.P. v. M [1994] 3 I.R. 306 and Hardiman J., in his judgment in D.P.P. v. Kelly [2005] 2 IR 321. In the first of those two cases Denham J., stated:
“However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the appellant must be taken into consideration by the court […]. Thus, having assessed what is the appropriate sentence for a particular crime it is the duty of the court to consider then the particular circumstances of the convicted person. It is within this ambit that mitigating factors fall to be considered.”
In the second case, D.P.P. v. Kelly, Hardiman J., stated:
“[U]nder our present sentencing regime, sentences must be proportionate not only to the crime but to the individual offender.
This principle in itself is well established and is derived at least partly from the Constitution. In The State (Heaney) v. Donoghue [1976] 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 is clear from well established case-law, it was submitted, that the principle that a sentence should be appropriate and proportionate to all the circumstances of the offence has been applied to all offences except murder.
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 [1994] 3. I.R. 593where he held that national provisions overriding a constitutionally protected right must comply with that principle, and in particular they must:

“a. be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
b. impair the right as little as possible, and

c. be such that their effects on rights are proportional to the objective.”

Accordingly it was concluded that s. 2 of the Act of 1990 is incompatible with the principles of justice enshrined in the Constitution insofar as it requires a trial judge to impose a life sentence in all murder cases without the possibility of exercising any discretion related to all the circumstances of the case.
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 [1963] 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 is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powers — and in this the Constitution of Saorstát Éireann and the Constitution of Ireland are at one — could have intended to place in the hands of the executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power. …… In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the executive as Parliament purported to do in s. 186 of the Customs Consolidation Act, 1876.”
Counsel did acknowledge however that in the Deaton case O’Dalaigh C.J., also stated:
“There is a clear distinction between the description of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case … If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain.”
There are two basic points made on behalf of the appellants in relation to the Deaton case. Firstly the imposition of a mandatory life sentence is not in substance a fixed sentence since the Minister has the ultimate say on how long the prisoner will actually remain in prison. Therefore the principle referred to in Deaton has no application to such an indeterminate sentence. The appellants do not seek to impugn the power of the Minister to grant temporary release or remission of sentences but in the particular circumstances of a life sentence he is determining the punishment to be imposed on the convicted person. Section 2 of the Act of 1990 in requiring a court to impose a mandatory life sentence in such circumstances constitutes an unconstitutional breach of the separation of powers.
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.

State’s Arguments

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 [1963] 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 [1988] 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 [1998] I.L.R.M. 370; Bambrick [1996] 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

Since the foundation of the State the crime of murder has been considered to be one of exceptional gravity in the criminal calendar. The reasons are clear and self evident. The sanctity of human life and its protection is fundamental to the rule of law in any society and for most of the last century for the crime of murder, the intentional unlawful killing of another, the law mandated the ultimate sanction, the death penalty. This was the mandatory sentence in every such case, even if from the mid 1950s onwards it was invariably pardoned and commuted to a life sentence.

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 [1963] 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:

“There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the Defendants’ argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular case, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed the offence is safeguarded from the Executive’s displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the separation of powers –and in this the Constitution of Saorstát Eireann and the Constitution of Ireland are at one-could have intended to place in the hands of the Executive the power to select the punishment be undergone by citizens. It would not be too strong to characterize such a system of government as one of arbitrary power… In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive as Parliament purported to do in s.186 of the Customs Consolidation Act, 1876.” (p.183)(emphasis added)
The Court is satisfied, as O’Dalaigh C.J., explained in that case, that the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified.
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 [1966] 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 [1991] I.L.R.M. 465 Finlay C.J., said:

“The length of time which a person sentenced to imprisonment for life spends in custody and as a necessary consequence the extent to which, if any, prior to final discharge, such a person obtains temporary release is a matter which under the constitutional doctrine of the separation of powers rests entirely with the executive: Director of Public Prosecutions v. Tiernan [1989] I.L.R.M. 149 …The exercise of these powers of the executive is of course subject to supervision by the courts which would intervene only if it can be established that they are being exercised in a manner which is in breach of the constitutional obligation of the executive not to exercise them in a capricious, arbitrary or unjust way.”
In a judgment of this Court delivered by Keane C.J., (nem diss) in O’Neill v. Governor of Castlerea Prison [2004] 1 IR 298 at 313 it was emphasised that: “The power to release itself, whether exercised on what might be called conventional grounds of a compassionate or humanitarian nature … is a quintessentially executive function and one which is discharged by it, in the words of Finlay C.J., speaking for this Court in Director of Public Prosecutions v. Tiernan [1989] I.L.R.M. 149 at 153 as: “a matter of policy pursued by the executive at given times and subject to variation at the discretion of the executive.””
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 [1988] 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 [1984] 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:

“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court…”

Article 5.4 of the Convention provides as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Court reiterates that it is important to take account of the fundamental distinction between the sentence imposed by a court pursuant to s.2 of the Act of 1990 and any subsequent decision by the Minister to grant temporary release pursuant to the Act of 1960. The appellants were quite correct in submitting, as they did in relation to the constitutional issue, that the Court should not look simply at the formal provisions of the law but at the substance and effect of the law in practice concerning the sentence imposed on a convicted person. In this context the appellants attached significant importance to a number of decisions of the European Court of Human Rights which concerned the sentencing regime in England particularly as applied in the case of life sentences, including mandatory life sentences. The Court will make reference to those cases later in the judgment but for present purposes it is sufficient to state that the relevant sentencing regime in England and Wales at least means that a life sentence comprises of a punitive period (“the tariff”) and, when the “tariff” or punitive period has expired a subsequent period of preventative detention. That is not and could not be the position in law in this country as has already been explained in the part of the judgment addressing the constitutional issues. To emphasise the point the Court refers to the decision of Carney J., in The People (D.P.P.) v. Bambrick [1996] 1 I.R. In that case the accused was convicted of manslaughter and the trial judge concluded that the evidence, including psychiatric, evidence established such a strong and uncontrollable propensity on the part of the accused to commit serious crimes against women in the future that he would have been inclined to sentence the accused in a manner that would ensure “that he would not be released until in the opinion of the appropriate experts his release was safe from the point of view of society in general and women in particular.”
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:

(a) A mandatory life sentence imposed in accordance with law as punishment for an offence is not in itself prohibited by or incompatible with any Article of the Convention and,

(b) will not offend against Article 3 of the Convention “when national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner” and,

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 [1987] 10 EHRR, Thynne, Gunnell & Ors v. The United Kingdom [1991] 13 EHRR 66, Thynne v. United Kingdom [1995] 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.

Jonathan Dunne v The Director of Public Prosecutions

06/15

Supreme Court

11 May 2016

unreported
[2016] IESC 24
Ms. Justice O’Malley

May 11, 2016

JUDGMENT
1. On the 19th January, 2012, the appellant was convicted of the murder of Ian Kenny. It is common case that Mr. Kenny was shot in the head and arm with a sawn-off shotgun on the 4th July, 2007; that, although he survived the initial trauma, he was left in a vegetative state; and that he died in hospital two years later on the 31st July, 2009.

2. The appellant has, since an early stage of the investigation, admitted that he shot Mr. Kenny twice at close range on the 4th July, 2007, as they sat together in a car in the Stillorgan area of County Dublin, and that in so doing he intended to kill him. He pleaded guilty to a charge of attempted murder and has been sentenced for that offence. However, he has contested the subsequent charge of murder.

3. The indictment, in its statement of the offence, charged the appellant with murder. The particulars of the offence alleged that he murdered Mr. Kenny at Lakelands Park, Stillorgan, County Dublin on the 31st July, 2009.

4. In brief, the appellant’s case is that, having regard to certain decisions made in relation to the medical treatment of Mr. Kenny, the prosecution has not proved beyond reasonable doubt that his actions on the 4th July, 2007, brought about the death on the 31st July, 2009. The appellant had also claimed at all material times that he had carried out the shooting under duress, but pursuant to a ruling made in the trial he was not permitted to put that defence for consideration by the jury.

5. In his appeal against conviction the Court of Criminal Appeal has certified, pursuant to s.29 of the Courts of Justice Act 1924 as amended, the following two questions for determination by this Court:

i) Where the date of death alleged in an indictment for murder occurs at a point in time removed from the incident and actions alleged against the accused and after the intervention (itself lawful) of a third party, may the accused be convicted of murder?

ii) May duress be raised as a defence (whether full or partial) to a charge of murder?

The admissions made at the trial

6. At the opening of the trial the following admissions were formally made on behalf of the accused in the following terms:

“It is admitted on behalf of the accused who was born on the 17th of April 1985 that he was lawfully arrested on the 4th of July of 2007 and subsequently charged with the attempted murder of Ian Kenny on that date at Lakelands Road, Stillorgan, in the County of Dublin. It is further admitted that on the 7th April 2008 before this Court, the accused pleaded guilty to that charge of attempted murder of Ian Kenny and an associated charge of possession of a firearm on the same date. It is further admitted that, following a sentence hearing before Mr. Justice Carney on the 28th May 2008, a sentence of 12 years imprisonment was imposed on the attempted murder charge and a 10-years sentence on the firearms offence, both sentences to date from the 7th July 2007 when the accused was first charged and he has been serving those sentences since that date. It is further admitted that, subject to one issue that the Court will have to rule upon, the principal issue in the case will be one of causation of death.”

QUESTION 1 – CAUSATION
Evidence relating to medical treatment

7. The debate on the first certified question centres on the evidence as to the medical treatment of Mr. Kenny and in particular on the fact that, at a certain point, a decision was taken not to engage in aggressive or invasive treatment. The decision was made in consultation with Mr. Kenny’s father. The appellant does not take issue with the lawfulness, ethics or propriety of what was decided. However, he says that the consequences which flowed from it cannot be attributed to him, in that the death of Mr. Kenny, at the time it occurred, cannot be said to have occurred as a result of the shooting.

8. Following the shooting, Mr. Kenny was brought to St. Vincent’s Hospital. His pulse and blood pressure were normal but he was comatose. He was intubated and placed on a life support machine with artificial ventilation. The head wound was packed to control bleeding.

9. CT scans and X-ray images of his injuries at that stage showed widespread scattering of pellets throughout the brain, with penetration of both hemispheres. He had a fracture of his right humerus. Mr. Kenny had also suffered a stroke involving the right side of the brain. He went on to develop a pneumothorax, or collapse of his lung.

10. The view taken was that neurosurgical intervention to remove the pellets from the brain was not feasible, and would have caused more damage.

11. The evidence was that typically, an injury of the sort suffered by Mr. Kenny would affect the brainstem to the point where the person would be unable to breathe. However, because he was a young man, Mr. Kenny’s condition was stabilised with aggressive life support in St. Vincent’s. He began to breathe spontaneously with the aid of a tracheostomy and was taken off the ventilator. It became clear that he was not going to immediately succumb to his condition. The wound in the head, from which dead portions of tissue had been removed, then became the priority. The medical view was that the open wound was not “compatible with life” and would have to be closed.

12. Follow-up scans on the 13th July, 2007, showed that Mr. Kenny had developed brain atrophy. This was described by Mr. Pidgeon, the neurosurgeon, as meaning that the “the bits of brain that had died were replaced by holes”.

13. Mr. Kenny was transferred to Beaumont on the 16th July, 2007, for surgery and was operated upon on the 17th. According to the evidence of the neurosurgeons, the operation involved the removal of dead tissue and the investigation of the wound to ensure that there were no pockets of infection and to remove any easily accessible pellets. There were pellets in the skin, the muscle and the brain itself. The plastic surgeon closed the wound by rotating a flap of skin to cover it.

14. Asked about the purpose of the operation, Dr. Martin Murphy agreed that the initial view had been that there would be no point in surgical intervention given the seriousness of the head injury. However, the patient had survived for two weeks and it was considered that the operation would limit the chances of infection and prevent him from developing meningitis or an abscess. The prognosis after the operation was still to the effect that Mr. Kenny was likely to die in the short term and that if he survived he would have a very poor quality of life. Dr. Murphy said that he would always warn families that the patient would either die or develop an infection which might well cause death. The latter would be one of the main causes of morbidity or mortality in this type of case.

15. Mr. Pidgeon said that he had felt that it would be prudent to close the wound from an infection point of view. It was also desirable from a cosmetic point of view, for the sake of the family. He agreed that Mr. Kenny might not have survived the operation, and that his short term and longer term prospects were extremely poor.

16. There was a difficulty with leakage of cerebro-spinal fluid, and a drain was put in to deal with that on the 1st August, 2007. A PEG tube, for feeding, was inserted into Mr. Kenny’s stomach on the 15th August.

17. Mr. Kenny was transferred back to St. Vincent’s on the 26th October, 2007. As of that date, the medical view was that he was severely brain damaged. The prognosis was “extremely poor” and he was not expected to survive. The reason for this was that patients in a persistent vegetative state, who are unable to clear their own airways and unable to eat or drink, inevitably succumb to infectious problems. Mr. Kenny did in fact survive for longer than expected, although he never regained consciousness.

18. Mr. Pidgeon said that Mr. Kenny had sustained a devastating injury to the head which was not compatible with any form of survival of quality.

19. In October, 2008 Mr. Kenny was transferred to St. Doolagh’s, a specialist nursing unit for patients with brain injury. The evidence was that the care available to him there was the same standard of care as in hospital and that it was a suitable alternative. Mr. Kenny’s condition had not altered. He was breathing himself through the tracheostomy and was fed through the PEG tube. He was on various medications for spasm, to prevent seizures, and to protect his stomach. He also received physiotherapy to keep his limbs mobile.

20. While in St. Doolagh’s Mr. Kenny suffered from recurrent infections, chiefly in his lungs and urinary tract. These infections, which were said to be expected in someone in his condition, were treated satisfactorily with antibiotics. Dr. Veale, the treating doctor, said that the inability of Mr. Kenny’s body to respond because of his injuries meant that he was extremely prone to infection.

21. On two occasions, in April 2009 and again at the end of May 2009, Mr. Kenny aspirated some of the feed from the PEG tube into his lungs due to vomiting. He was admitted to Beaumont on each of these occasions, for treatment by intravenous antibiotics.

22. Professor Shane O’Neill, respiratory physician, gave evidence about the admission to Beaumont on the 18th April, 2009. He said that Mr. Kenny had, during that admission, a mild to moderate pneumonia with upper gastro-intestinal bleeding. Susceptibility to pneumonia was a consequence of vomiting, an inability to clear secretions pooling in the tracheostomy and discharging into the lungs, and a poor cough reflex. Mr. Kenny was treated with intravenous antibiotics, acid suppressant medication and intravenous steroids. He was discharged back to St. Doolagh’s, with the treatment by intravenous medication to be completed by the community intervention team.

23. A statement by Mr. Frank Murray, gastroenterologist in Beaumont, was read to the jury pursuant to the provisions of s. 21 of the Criminal Justice Act 1984. This dealt with the admission from the 31st May, 2009, to the 12th June, 2009. Mr. Murray said that Mr. Kenny was admitted with symptoms of hypothermia, an oozy tracheostomy, intermittent fever and an episode of rigors. He had findings suggestive of a chest infection, anaemia and thrombocytopenia, probably related to sepsis. He was treated with intravenous fluids, intravenous antibiotics and physiotherapy for the chest infection. He made a reasonable recovery and was transferred back to the nursing home.

24. Mr. Murray’s statement concluded:

“Undoubtedly the chest infection/pneumonia/sepsis that occurred in this gentleman at this time related to his impaired neurological function as a result of the catastrophic injury that he had undergone as a result of gunshot wound to the head.”

25. On the 29th July, 2009, Mr. Kenny was again admitted to Beaumont. During the course of that day he had suffered a number of epileptic seizures, which were seen as indicative of an underlying infection.

26. The primary evidence relating to this admission was that of Dr. Deepak Gopinathan, a consultant physician in Beaumont. He said that Mr. Kenny had features of sepsis, meaning a form of infection with a focus commonly in the lungs or in the kidneys. His temperature was quite low, indicating a severe infection, and he also had low blood pressure and low oxygen levels. A chest x-ray confirmed an infection in both lungs. Dr. Gopinathan described it as bilateral pneumonia with features of severe sepsis.

27. Treatment with intravenous antibiotics was commenced. He was also given intravenous fluids for his blood pressure and supplemental oxygen to raise his oxygen levels. Because there were copious and quite prevalent secretions in the tracheostomy tube, regular suctioning was required.

28. Dr. Gopinathan said that he was concerned regarding the severity of the sepsis. Looking back at the notes from the previous admissions, he saw that a decision had been made in June that Mr. Kenny should not be resuscitated in the event of respiratory or cardiac arrest. He contacted Mr. Kenny’s father, and met with him in the ward subsequently.

29. It was explained to Mr. Kenny Senior that his son had severe pneumonia in both lungs, that he had been commenced on a broad spectrum antibiotic, and that the next 24 to 48 hours would be crucial. The medical view was that if Ian Kenny did not respond to the antibiotics; or if his blood pressure or oxygen levels dropped further; then, having regard to the serious underlying condition, he should not be put on a ventilator, or have inotropes (blood pressure drugs) administered. The latter treatment would require the insertion of a catheter through one of the arteries in Mr. Kenny’s wrist, which would be considered invasive. Mr. Kenny Senior was also told that the doctors considered that, given the serious brain damage, there should be no further resuscitation in the event of sudden cardiac or respiratory arrest. He agreed with these views.

30. Dr. Gopinathan explained the context of this advice. Ian Kenny was in a persistent vegetative state. In a short span of time he had had three episodes of pneumonia. Apart from that he had a tracheostomy, a gastrostomy for feeding and a urinary catheter. He was fully dependent on nursing care.

31. Over the following 24 hours Mr. Kenny’s oxygen levels, blood pressure temperature and pulse rate all dropped. There was constant secretion in the tracheostomy. He became tachypneic and his breathing became more laboured.

32. On the morning of the 31st July Mr. Kenny was very septic. His oxygen levels had dropped to 80%, despite the administration of oxygen. His breathing rate was between 30 and 35 per minute. A stronger antibiotic was administered, and the fluids, oxygen and suctioning continued.

33. Mr. Kenny was transferred to a single room at about 12 midday. He was gasping for breath at that stage. At 12.30 he was noted by the nursing staff to be pale, with no pulse, no blood pressure and no breathing. He was pronounced dead by a registrar at 14.15.

34. Dr. Gopinathan agreed that a decision had been made not to transfer Mr. Kenny to intensive care, not to resuscitate him, not to put him on a ventilator and not to administer inotropes.

35. It was put to Dr. Gopinathan that Mr. Kenny had clung to life tenaciously since having been shot and had responded to appropriate treatment. The symptoms on this admission were similar to the previous episodes that he had survived. He did not agree, saying that this episode was more serious. It involved a very severe sepsis. The main difference was that on this occasion Mr. Kenny did not respond to the treatment given, which was not surprising.

Evidence relating to the cause of death

36. The post-mortem was carried out by Dr. Michael Curtis, Deputy State Pathologist. He said that he found evidence of widespread bilateral bronchopneumonia, that is, pneumonia involving both lungs. He concluded that the cause of death was bronchopneumonia, due to persistent vegetative state, due to brain injury caused by a shotgun wound. The shotgun wound to the arm was a contributory factor.

37. Dr. Curtis said that it was to be expected that Mr. Kenny might die of pneumonia. People in persistent vegetative state are at risk of developing infections. They can be kept alive for several years, with high quality modern medical and nursing care, but the usual situation is that they succumb to an infection, and the most usual infection is pneumonia. He was asked in cross-examination whether death was more likely if a decision was made to withhold certain forms of treatment and he agreed that it was.

38. At the request of Dr. Curtis, Dr. Michael Farrell, a consultant neuropathologist, carried out an examination of Mr. Kenny’s brain.

39. Dr. Farrell found a number of pellet shots in both hemispheres of the brain. The ones in the left hemisphere had just caused a little bit of tissue loss, but those in the right hemisphere had caused a large area of tissue loss. One pellet was lying right up against the middle cerebral artery, embedded in the wall of the artery by dense scar tissue. If a pellet had penetrated the artery one would have expected the patient to bleed to death. However in this instance the damage to the artery had instead caused it to go into spasm, resulting in the shutdown of the blood supply to the right hemisphere. The result was a big stroke, causing the death of that area of the brain.

40. This was, according to Dr. Farrell, a very serious injury but not one that would in itself account for the patient being in a persistent comatose state for the following two years. However, he also found a hole in an area of the brainstem involving the reticular activating system. Damage to this system removes the drive to the neocortex that is critical for consciousness. The patient therefore lapsed into a condition of being neither awake nor asleep.

41. Dr. Farrell said that the hole had not been caused by a piece of shot going through the brainstem. In his opinion, the damage to the middle cerebral artery had caused the death of brain tissue. That process involved the swelling of the tissue, which in turn caused the stretching of the smaller arteries supplying the reticular activating system. The hole formed because the blood supply to that area was compromised. This was the cause of the persistent vegetative state.

The ruling of the trial judge on causation

42. At the close of the prosecution case, counsel for the accused applied for a direction on the issue of causation.

43. It was accepted by counsel that if a victim developed a complication due to his weakened state after having been injured, the line of causation would not be broken. Similarly, it would not be broken if the victim was treated negligently or mistakenly. He was not, therefore, suggesting that the initial decision against operating in Mr. Kenny’s case could give rise to a defence.

44. The argument made was that in this case there was

“a deliberate, informed, it would appear ethically and medically justified decision, made by Dr. Deepak Gopinathan, to withhold medical treatment in circumstances where death, not surprisingly, followed in its absence, and may have been avoided if it had been provided.”

45. It was submitted that if Mr. Kenny had been treated with ventilation and/or inotropic medication, he might not have died when he did. It might well have been in the best interests of the patient not to provide that treatment. However, such a decision could not give rise to a criminal liability on the part of the accused.

46. The prosecution argued, on this aspect, that what Dr. Gopinathan had said was that Mr. Kenny would not be given certain types of treatment. On the evidence, the need for the particular treatment had not arisen. This was not accepted by the defence, who pointed to the evidence that Mr. Kenny had been gasping for breath.

47. In holding against the defence on this issue, the learned trial judge ruled (by reference to The People (DPP) v. Murphy [2005] 4 I.R. 504) that the required causal link can be inferred from circumstantial evidence, even where the precise cause of the result could not be shown. He applied the test for causation set out in the judgment of the Court of Criminal Appeal in The People (DPP) v. Davis [2001] 1 I.R. 146, where it was said to be sufficient

“if the injuries caused by the applicant were related to the death in more than a minimal way.”

48. On that basis he held that there was ample evidence to go to the jury.

The decision of the Court of Criminal Appeal on the causation issue

49. In relation to this issue, the Court of Criminal Appeal found no basis for distinguishing Davis.

50. The Court also referred to Re A Ward of Court (withholding medical treatment) (No. 2) [1996] 2 I.R. 79, which concerned the lawfulness of the withdrawal of artificial feeding for a patient, who had suffered catastrophic brain injury in the course of a minor operation over twenty years earlier and had been in a condition similar to PVS since that time. It was said in two of the Supreme Court judgments that if the withdrawal took place and the ward died, death would be due to the earlier injuries.

51. The ruling of the Court of Criminal Appeal in the substantive appeal on the issue was, therefore, that causation had been established, and that the decisions made in respect of the medical treatment of Mr. Kenny, which were accepted to be lawful and proper, were not such as to completely break the connection between the appellant’s action in shooting Mr. Kenny and the death of Mr. Kenny.

52. In its ruling granting a certificate pursuant to s. 29, the Court said:

“The Criminal Justice Act 1999 abolished the common law one year and one day rule familiar to generations of law students, and which can be said to have offered a typically pragmatic response to some of the problems caused when victims die at some considerable time after an incident for which it is alleged the accused is responsible. Now however, courts are required to grapple with issues of causation which can raise notoriously difficult problems in other fields of law, all the more so when advances in medicine have made it possible to sustain life much longer than would have been possible even a generation ago, and in circumstances which could hardly have been imagined then. This can give rise to difficult questions of ethics and, on occasions, law. Counsel for the Applicant points to the somewhat anomalous form of the indictment here which charged the accused with having murdered Mr Kenny at Lakelands park, Stillorgan County Dublin (where the attack occurred on the 4th of July 2007) but on the 31st of July 2009 when the death occurred (in Beaumont Hospital) more than two years later.”

Submissions on causation

53. The argument made on behalf of the appellant originally included a submission that the correct test for causation was whether the actions of the accused contributed in a substantial way to the death, and that the Court of Criminal Appeal in Davis erred in substituting a de minimis test. However, at the hearing of the appeal counsel accepted that no matter which test is applied to the facts of this case the appellant would be found to have caused the death of Mr. Kenny. The issue relates to the timing of the death, and whether the accused can be said to have brought about the death on the date it occurred.

54. It is also accepted that if there had been a positive medical intervention, whether that was properly or negligently carried out, and death had occurred, the chain of causation from the appellant’s acts to the death would not have been broken.

55. However, it is submitted that if there had been a positive intervention in this case Mr. Kenny might have survived and the murder charge would not then have arisen. The argument is that third parties made an independent, positive decision as to medical treatment “but for” which he might have lived. The conviction of the appellant fixed him with criminal responsibility for the consequences of a decision made by others, as opposed to his own actions. This was said to be so, notwithstanding that the decision was made in a proper fashion and in the best interests of the patient. The prosecution had therefore failed to discharge the burden of proving that the appellant caused the death to occur on the date specified in the indictment.

56. The appellant contends that the observations in Re A Ward of Court should be seen as applicable in a civil context only, without having implications for criminal liability.

57. It is suggested that the abolition of the common law “year and a day” rule (by virtue of which a murder charge could not be brought if the victim of an assault did not die within a year and a day of the event) by s. 38 of the Criminal Justice Act 1999 has left a lacuna, in that the legislature did not make provision for the situation of potential long term survival and the implications of decisions on medical treatment for criminal liability.

58. The respondent says that at no stage was there a decision to withdraw treatment from Mr. Kenny. He would not have been in hospital, and in the condition that he was in on the date of death, had he not been shot by the appellant. On the test applied in The People (Director of Public Prosecutions) v. Davis the appellant must be considered to have caused the death.

Statutory definition of murder

59. Section 4 of the Criminal Justice Act 1964 provides in full:

“(1) Where a person kills another unlawfully the killing shall not be murder unless the accused person intended to kill, or cause serious injury to, some person, whether the person actually killed or not.

(2) The accused person shall be presumed to have intended the natural and probable consequence of his conduct; but this presumption may be rebutted.”

Statutory provisions relating to indictments

60. Section 4(1) of the Criminal Justice (Administration) Act 1924 provides as follows:

“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the charge.”

61. Section 4(2) provides for rules in relation to the form and content of indictments, and stipulates that an indictment will not be open to objection if it conforms to those rules.

62. Rule 4 deals with the mode in which offences are to be charged. In so far as is relevant here, it provides that a count on an indictment is to commence with a statement of the offence charged. Sub-rules (3) and (4) read as follows:

(3) The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.

(4) After the statement of the offence, particulars of such offence shall be set out in ordinary language, in which the use of technical terms shall not be necessary:

Provided that where any rule of law or any statute limits the particulars of an offence which are required to be given in an indictment, nothing in this rule shall require any more particulars to be given than those so required.

63. The rules provide that the description of property is to be such as to indicate “with reasonable clearness” the property referred to; that the description of any person is to be such as to be “reasonably sufficient” to identify that person; and that it shall be sufficient to describe any place, time, matter, act, or omission in such manner as to indicate “with reasonable clearness” what is being referred to.

64. An appendix to the rules sets out forms to be followed, or followed “as near as may be”, for particular charges. The first of these is for a charge of murder. The statement of offence as set out is simply “Murder”, although it must be remembered that the Indictment Rules date from 1924 and it is usual now to add the words “contrary to s.4 of the Criminal Justice Act, 1964”. The particulars of offence are: A.B. on the blank day of blank in the County of blank murdered J.S.

Authorities on causation

General principle

65. The issue of causation in murder is addressed in the following terms in Charleton, McDermott and Bolger Criminal Law (1999, Butterworths) at p. 503 under the heading “ General statement ”:

“The accused will legally have caused the death of the victim if his act, or acts, substantially contributed to the subsequent death, taking into account the time at which and the manner in which the death occurred. It is a function of the judge to decide whether there is any evidence reasonably capable of supporting the conclusion that the accused’s act was still a substantially contributing factor at the time when the victim died, having regard to the manner of his death.”

66. In their discussion of the issue the learned authors refer to Wong Tat Chuen [1997] HKLRD 433 and to Smithers (1977) 34 C.C.C. (2d) 427. The former was a decision of the Hong Kong Court of Appeal in which it was held that a jury should be told that it was sufficient if the accused’s act contributed “significantly” to the death and that it need not be the sole or principal cause. In Smithers the Supreme Court of Canada had ruled that the accused should be held liable for the death where his or her act or acts were “a contributing cause…;outside the small de minimis range”.

67. In this jurisdiction the test was settled by the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Davis [2001] 1 I.R. 146. The evidence of the pathologist in that case was that the death of the victim was due to heart failure secondary to severe shock, which was itself the cumulative result of injuries alleged to have been inflicted by the applicant. The applicant had suggested that she might have been assaulted by two other men earlier in the day, and that she had subsequently fallen down some stairs. Having regard to the evidence, the Court observed that it seemed “overwhelmingly probable” that the attack on the deceased by the applicant was the sole cause of all significant injuries. The judgment continues (at p. 149):

“In point of law, however, it is unnecessary to go so far: it is sufficient if the injuries caused by the applicant were related to the death in more than a minimal way.”

68. The appellant has not in this appeal pursued the argument that the Davis test was incorrect.

Novus actus interveniens

69. In R. v. Pagett (1983) 76 Cr. App. R. 279 the appellant had been using his girlfriend as a “human shield” while firing at policemen. They returned fire and she was killed by their shots. In his appeal against a conviction for manslaughter, it was argued inter alia that the trial judge should have ruled that where the act which immediately resulted in fatal injury was the act of another person, albeit in legitimate self-defence, then the ensuing death was too remote or indirect to be imputed to the original aggressor. It was submitted that there either was, or as a matter of policy should be, a rule of English law that no man should be convicted of homicide unless he himself, or another person acting in concert with him, carried out the act which was the immediate cause of the victim’s death.

70. The argument was rejected by the Court of Appeal, which considered that it had no basis in either authority or principle. It was stated that the question whether an accused person could be held guilty of either murder or manslaughter of a victim, the cause of whose death was the act of another person, must be determined on the ordinary principles of causation. In certain circumstances, although an act of the accused constitutes a necessary condition for the death, the intervention of a third party may be regarded as the sole cause of death and thereby relieve the accused of criminal responsibility. To have this effect, the intervention must amount to a novus actus interveniens – that is, an act so independent of the act of the accused that it should be regarded in law as the cause of death. A reasonable act performed for the purpose of self-preservation, being an act caused by the accused’s actions, does not operate as a novus actus interveniens. Nor does an act done in execution of a legal duty, where it was caused by the accused’s action.

71. The Court stressed that the prosecution must prove the essential ingredients of murder, including intent. However, it should be explained to juries that the accused’s act need not be the sole, or even the main, cause of death for his act to be held to have caused the death.

Medical intervention as novus actus interveniens

72. I propose to begin with consideration of the judgments of the Supreme Court in Re A Ward of Court. That case was not, of course, concerned with questions of criminal liability. Rather, the Court was dealing with the lawfulness of a decision to withdraw medical treatment involving antibiotics and artificial feeding, which would necessarily result in the death of the ward. The judgments are not, therefore, directly related to questions of causation or attribution of responsibility. However, certain passages are pertinent to the issue before this Court.

73. Hamilton C.J. stressed (at p. 120) that the case was not about euthanasia, and stated that the courts could never sanction steps to terminate life. In this regard he quoted Taylor L.J. in Re J. (A Minor) (Wardship: Medical Treatment) [1991] Fam. 33 at p. 53:

“That would be unlawful. There is no question of approving, even in a case of the most horrendous disability, a course aimed at terminating life or accelerating death. The court is concerned only with the circumstances in which steps should not be taken to prolong life.”

74. Hamilton C.J. stated that this principle applied with even greater force in this jurisdiction, and that any course of action aimed at terminating life or accelerating death would be unlawful.

75. At p.124, as part of a discussion of the content of the constitutional right to life, he said:

“As the process of dying is part, and an ultimate, inevitable consequence, of life, the right to life necessarily implies the right to have nature take its course and to die a natural death and, unless the individual concerned so wishes, not to have life artificially maintained by the provision of nourishment by abnormal artificial means, which have no curative effect and which is intended merely to prolong life.

This right, as so defined, does not include the right to have life terminated or death accelerated and is confined to the natural process of dying.”

76. On the evidence, Hamilton C.J. found that without the benefit of the artificial feeding, the ward would die within a short period of time and in this regard had to be regarded as terminally ill. Had she been mentally competent, she would have had the right to forego treatment or have it discontinued. By virtue of her incapacity she was unable to exercise that right for herself, but she was entitled to have the right respected and vindicated by the High Court exercising its wardship jurisdiction. In exercising that jurisdiction, the first and paramount consideration was the well-being, welfare or interests of the ward. The proper test, which had been applied by the High Court judge in that case, was “whether it was in the best interests of the ward that her life should be prolonged by continuance of the particular medical treatment which she was receiving”. This was to be considered from the standpoint of “a prudent, good and loving parent”.

77. In the circumstances, the withdrawal and termination of the abnormal and artificial means of nourishment would cease to prolong the life of the ward to no useful purpose and would allow her to die.

78. At p. 128 he said:

“The true cause of the ward’s death will not be the withdrawal of such nourishment but the injuries which she sustained on the 26th April, 1972.”

79. O’Flaherty J. agreed that the case was not about euthanasia, saying (at p. 130)

“[E]uthanasia in the strict and proper sense relates to the termination of life by a positive act. The declarations sought in this case concern the withdrawal of invasive medical treatment in order to allow nature to take its course.

The ward may be alive but she has no life at all…;”

80. He endorsed the view that it was in the best interests of the ward that nature should be allowed to take its course without artificial means of preserving what was technically life, but life without purpose, meaning or dignity.

81. Blayney J. considered that the following passage from the judgment of the High Court was fully compliant with the constitutional obligation to respect the ward’s life:

“I have come to the conclusion that the benefit to the ward of sustaining her life by the present abnormal artificial means of nourishment is far outweighed by the burdens of so sustaining life with absolutely no prospect of any improvement in the ward’s condition. Accordingly, I find that it is in the best interest of the ward that the abnormal artificial nourishment, whether by nasogastric or by gastrostomy tube, should be terminated, thus ceasing artificially to prolong her life to no useful purpose and allowing her to die in accordance with nature with all such palliative care and medication as is necessary to ensure a peaceful and pain free death.”

82. Denham J. noted that the situation had arisen because of the application of advanced medical science. If it were not for that, the ward would not have survived a catastrophe that had occurred over 20 years earlier. She said (at p. 146):

“The case illustrates the problems arising out of modern medical technology and consequent legal issues. These matters have not been addressed by the Oireachtas so it falls to be decided by this Court in accordance with the Constitution and the common law.”

83. At p. 158 Denham J. referred to the decision to be made – whether to continue the medical treatment or not – and observed that to continue it would be as much a decision as not to do so. She went on:

“It is not pertinent whether the treatment is ordinary or extraordinary medical treatment. Consent of the adult with capacity is necessary for either ordinary or extraordinary medical treatment.

However, the nature of the medical treatment here is pertinent to the ward’s condition. The medical treatment is invasive. This results in a loss of bodily integrity and dignity. It removes control of self and control of bodily functions…;Whilst an unconscious patient in an emergency should receive all reasonable treatment pending a determination of their best interests, invasive therapy should not be continued in a casual or ill considered way.”

84. Having analysed the constitutional aspects of the issue and found that what was at stake was a personal right of the ward, Denham J. moved on to the issue of causation. At p. 165 she said:

“Twenty three years ago, the ward suffered major injury to her brain during a minor gynaecological operation. If it were not for modern medical technology, utilised after the catastrophe, she would have died long since. She has been kept alive by modern medical science and the dedicated care and skill of the medical and nursing professions…;

If this Court determines that the order of the High Court be upheld then, those acts so ordered being lawful, the ward would die shortly as a result of the medical catastrophe which occurred 23 years ago…;”

85. In the criminal law context, the Court has been referred to a number of authorities dealing with the effect of medical intervention on the question of causation.

86. In R. v. Smith [1959] 2 Q.B. 35, the victim of stabbing in an army barracks had been dropped twice while being brought for medical treatment. He had then been given treatment described in court as “thoroughly bad”, which “might well have affected his chances of recovery”. He died about two hours after being stabbed. There was evidence that if he had received immediate and different treatment he might not have died. If a blood transfusion had been available he would have had a 75% chance of survival.

87. In the appeal against a conviction for murder it was argued that there had been a break in the chain of causation. The Court of Appeal said:

“It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that death does not flow from the wound.”

88. The Court in Smith contrasted what had occurred with the facts of R. v. Jordan (1956) 40 Cr. App. R. 152, where there was evidence that the deceased had been treated with a medication to which he had already shown intolerance, at a time when the original injury had mainly healed. In the latter circumstances a reasonable jury properly directed could not say that there had not been a break in the chain. In the case before the Court in Smith, the facts could lead only to one conclusion: that the death resulted from the original wound.

89. R. v. Blaue [1975] 1 W.L.R. 1411 raised the problem of a victim who declines medical treatment. The victim was a Jehovah’s Witness, who refused to accept a blood transfusion. On the question whether her decision, claimed to have been unreasonable, had broken the chain, the Court of Appeal said:

“It has long been the policy of the law that those who use violence on other people must take their victims as they find them. This in our judgment means the whole man, not just the physical man. It does not lie in the mouth of the assailant to say that his victim’s religious belief which inhibited him from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.”

90. The cases of R. v. Malcherek and R. v. Steel [1981] 1 W.L.R. 690 were each concerned with a situation where the victim of an assault had been placed on a life-support system. At a certain stage in each case the treating doctors had decided to disconnect the machines, on the basis of a diagnosis of brain death. In each case the assailant was convicted of murder. The issue in each case was whether the jury should have been permitted to consider whether it was the switching off of the ventilator and the life support machines that was the actual cause of death.

91. The Court of Appeal held that the discontinuance of treatment had not broken the chain of causation between the initial injury and death. It was observed by the Court that in each case the initial assault was the reason for medical treatment being necessary, and that in each case the treatment had been normal and conventional. The Court referred to Jordan and Smith, and said that if a choice had to be made between them it would prefer Smith, but that the facts in Jordan were so exceptional that the choice did not fall to be made.

92. The Court held that there was no evidence that, after the life support systems were disconnected, the original injuries were other than “a continuing, operating and indeed substantial cause of the death of the victim”. The judgment continues:

“There may be occasions, although they will be rare, when the original injury has ceased to operate as a cause at all, but in the ordinary case if the treatment is given bona fide by competent and careful medical practitioners, then evidence will not be admissible to show that the treatment would not have been administered in the same way by other medical practitioners. In other words, the fact that the victim has died, despite or because of medical treatment for the initial injury given by careful and skilled medical practitioners, will not exonerate the original assailant from responsibility for the death.”

93. The discontinuance of treatment in the circumstances of the case was held not to have broken the chain.

Proof of causation

94. In The People (Director of Public Prosecutions) v. Murphy [2005] 4 I.R. 504 the body of the deceased had been found in an outdoor location about three weeks after she had disappeared. The body had been damaged by animals to the extent that the pathologist could not determine a cause of death, although he could say that she was a young person in good health, making a death by natural causes unlikely. The case against the appellant depended on admissions, DNA and some circumstantial evidence.

95. It was part of the defence case that the prosecution had not established the date or cause of death and had not ruled out the possibility that some other person killed the victim. On this issue, the Court of Criminal Appeal ruled that the fact that the precise mechanism of death could not be established did not mean that the jury could not conclude that the appellant had murdered her if they accepted the other evidence.

QUESTION 2 – DURESS
Evidence relating to duress

96. Members of the Gardaí encountered the appellant very shortly after the shooting. According to their evidence, he immediately admitted having shot Mr. Kenny, and said that he had done so “due to circumstances”. He said that he had been “done a favour” and this was how he had to repay it. “It was him or me.” The appellant was then arrested. He subsequently signed a note of this conversation.

97. In his initial formal interviews with the Gardaí, the appellant said that another man had approached the car and shot Mr. Kenny, and that his role had been confined to driving him to the location. He had done this because he had been told to, and he feared for his own life and the lives of his family if he did not.

98. However he later admitted that he had shot Mr. Kenny. He told the Gardaí that he had been forced to do so. He had been threatened that if he did not, he and his family would be shot. The two men who threatened him had put a gun to his head and told him what to do. He did not name the people who threatened him but said that they knew him from the past, and that he “owed them a favour”. He expressed remorse and said that Mr. Kenny had been his friend, but that he had had no choice. He could not have moved his family abroad. He did not approach the Gardaí because he did not feel that they could protect him.

99. At the trial, the defence stressed various aspects of the evidence as tending to show that the appellant had not behaved in a manner consistent with being a professional assassin (for example, the fact that the car was registered in his name and had his work tools in it).

100. The accused applied to the learned trial judge for a ruling as to the availability of duress as a defence to a charge of murder. The application was made in the knowledge that, as counsel said, it was in the teeth of the authorities, but with the purpose of ensuring that the issue could be considered on appeal. The learned trial judge ruled that the current state of Irish law was that duress could not be availed of as a defence to murder.

The decision of the Court of Criminal Appeal on duress

101. In its decision on the appeal, the Court referred to the decision in Attorney General v. Whelan [1934] I.R. 518, in which, in the course of a discussion about the general availability of duress as a defence the Court of Criminal Appeal had said:

“The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification.”

102. In The Director of Public Prosecutions v. Patchell (ex tempore, Court of Criminal Appeal, 10th June, 2013) the Court of Criminal Appeal was invited to overturn Whelan and declined. The Court said that quite apart from considerations of policy, a change in the law would have to be a matter for the legislature.

103. In the instant case, the Court of Criminal Appeal said that the matter had recently been revisited in Patchell and that the limited arguments and material advanced by the appellant did not afford any compelling basis for departing from that decision.

104. In deciding to grant a certificate for leave to appeal, the Court said:

“Even the truncated discussion on this issue contained in this Court’s decision of the 31st July 2014 shows that the question of whether duress, which is a defence to all other criminal charges, can be a defence either partial or complete to murder, and if so, whether as principal or accessory, is a matter which has generated considerable debate both academic and practical, especially in neighbouring jurisdictions. Duress as a defence is itself a matter of common law, and the decisions for and against the extension of duress to charges of murder are themselves judicial decisions. It is argued however that the law in Ireland is reasonably clear, and that this position cannot, or at least should not, be altered save by legislation. That in itself however, is a component of the question…;”

Submissions on duress

105. On behalf of the appellant it is accepted that the issue may be seen as a policy matter, but it is submitted that this Court has power to alter the parameters of the defence of duress as it did with provocation in The People (Director of Public Prosecutions) v. MacEoin [1978] I.R. 27 and with self-defence in The People (Attorney General ) v Dwyer [1972] 1 I.R. 416. The only change being argued for here, it is said, is to overrule the dictum in Whelan.

106. It is submitted that the passage quoted above from Whelan must be seen as obiter. The statement that duress is not available as a defence in murder traces back to Hale’s Pleas of the Crown, but Hale believed that it was similarly unavailable in peacetime in respect of treason and robbery and the caselaw does not support that contention. Reference is made to comments by McCauley & McCutcheon in Criminal Liability (Sweet and Maxwell, 2000) where it is stated that the status of Hale’s rule in twentieth century caselaw is “highly problematic”.

107. Reliance is placed on the decision of the House of Lords in Lynch v. The Director of Public Prosecutions for Northern Ireland [1975] A.C. 653, where it was held that there was no direct English judicial authority against the applicability of duress to a charge of murder, and that it should be permitted. Lynch was overturned in R. v. Howe [1987] A.C. 417, but the Law Commission of England and Wales has consistently recommended that duress should be a defence. In South Africa, in the case of S. v. Goliath [1972] 3 (Translation) SA 1 it was held that duress should be available as a defence to murder.

108. The appellant submits that this Court should follow the logic of that approach. In the alternative it is submitted that it should consider the arguments set out in the Law Reform Commission’s consultation paper (LRC CP 39-2006) in favour of adopting a limited view of duress such that it would have the effect of reducing murder to manslaughter. Changing the law in this fashion would not, it is argued, amount to legislation by the Court, and would address the problem of people being coerced by criminal gangs in the modern era.

109. The appellant points to the recent decision of this Court in The People (Director of Public Prosecutions) v. J.C. [2015] IESC 31 as authority for the proposition that the Court can revisit and reverse earlier decisions now thought to have been wrongly decided. It is submitted that Whelan was in error and should be revisited.

110. The respondent submits that Whelan and Patchell were correct, and that it has been recognised for centuries that duress is not a defence to murder apart from the subsequently-overturned decision in Lynch. The recommendations of the English Law Commission have never been implemented, and the Law Reform Commission’s publication is a consultation paper. It is submitted that this is settled law and that it is based primarily on the sanctity of life. Alteration of this position would be a change of such import and potential consequences that, having regard to the separation of powers, it could be undertaken only by the legislature and not by the courts.

The authorities

111. Attorney General v. Whelan [1934] I.R. 518 is described by McCauley & McCutcheon as “arguably the first twentieth-century case in which the defence actually succeeded, at least on this side of the Atlantic”. The appellant had been charged with receiving stolen money. The jury brought in a special verdict, finding that he had acted under threat of immediate death or serious violence. The trial judge considered that this amounted to a conviction, on the basis that duress was not a defence in law but merely went to mitigation. However he granted a certificate for leave to appeal on the question whether the verdict amounted to an acquittal.

112. In the appeal, it was argued by counsel that compulsion was a good defence save in cases of murder. (The acceptance that the latter was an exception was based on the decision in R. v. Dudley and Stephens 14 Q.B.D. 273.) The prosecution accepted that actual physical force which left the accused no choice of will would absolve from guilt, but submitted that anything short of such force was a matter for mitigation only.

113. The Court of Criminal Appeal observed that all of the elements of guilt had been established in the trial except the free exercise of will, and the point was accordingly narrowed down to the consideration whether there was such absence of will as to absolve from guilt.

114. The judgment refers to the paucity of authorities on the issue, particularly in the modern era. Reference is made to Hale’s Pleas of the Crown Vol. 1, p. 50, as stating that immediate fear of death could be a justification in the case of treason. In R. v. Stratton 21 How. St. Tr., 1045, 1229, 1230 Lord Mansfield had treated the principle as applicable to other crimes, as had Patteson J. in R. v. Crutchley 5 C. & P. 133. However, in R. v. Tyler 8 C. & P. 616 Denman C.J. had appeared to state as a general principle that apprehension of personal danger did not furnish any excuse for assisting in doing an act that was illegal.

115. R. v. Dudley and Stephens was described by the Court as affording no assistance other than to show the difficulty of formulating a rule of universal application.

116. The Court noted that counsel had been unable to discover any more recent authority and concluded:

“The matter before the Court must therefore be approached from the standpoint of general principle. It seems to us that threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as a justification for acts which would otherwise be criminal. The application of this general rule must however be subject to certain limitations. The commission of murder is a crime so heinous that murder should not be committed even for the price of life and in such a case the strongest duress would not be any justification. We have not to determine what class of crime other than murder should be placed in the same category. We are, however, satisfied that any such consideration does not apply in the case of receiving. Where the excuse of duress is applicable it must further be clearly shown that the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats.”

117. This seems to be the only twentieth-century Irish authority on duress. The next recorded case dealing with the issue appears to be The People (Director of Public Prosecutions) v. Dickey (unrep., Court of Criminal Appeal, 7th March, 2003). In that case the Court quashed a conviction relating to the importation of drugs, on the basis that in charging the jury the trial judge had not outlined the evidence upon which the appellant’s plea of duress had been put forward.

118. In DPP v. Patchell (ex temp., Court of Criminal Appeal, 10th of June, 2013), the Court of Criminal Appeal engaged directly with the question whether that Court had the power to extend the availability of the defence of duress to a charge of murder. In giving the judgment of the Court, Hardiman J. said:

“[I]n this case, far-reaching issues have been raised, but they can be simply resolved. The defence of duress is not available in this jurisdiction to a charge of murder. This was so at common law. It was so at — and it was the state of the common law when it was taken over expressly in this jurisdiction in 1922 and again in 1937, and that is the position. There’s also manifestly very good reason why that should be so. This man who comes before the Court is, on his own admission, a person involved in drugs who had a dispute with the dead man, Mr O’Halloran, about some cocaine, who undoubtedly killed him and who says, when taxed with the killing, in effect, “They made me do it.” The policy reasons for the state of the common law are not far to see. But, for present purposes, it’s sufficient to say that duress is not available to a charge of murder. If the defendant had been charged, not with murder, but with some offence to which the defence was available, it would be, we may observe obiter, probably unavailable on these facts by reason of the long delay, the lack of any immediacy in any threats, if any, the failure to make any attempt to seek the protection of the state in the form of the gardaí, and the sheer improbability of the account of the appellant appears to make it of dubious utility even if it were available. But the salient feature is that it is not available, to which the appellant makes the case, well, he says to the Court, well, you could change that just like he says this Court changed the law in relation to provocation in the case of MacEoin in the mid ‘70s. Well, the case of MacEoin has been much commented, and this Court is [not] going to make any further comment on it.

We will say that if the law were to be changed […;], notwithstanding the policy reasons which are so clear that a child could understand them and are perfectly illustrated by the facts of this case, it is plainly a matter for the legislature rather than for the Court to do so. The powers of government are divided into the legislative, the executive and the judicial, and these are separately constituted in Article 6 of the Constitution. This Court and the Supreme Court have been clear and emphatic in rejecting any improper legislative intervention in the area of the courts’ remit, and for consistency we must equally insist firmly on the exclusive jurisdiction of the executive in matters within its remit. The Court is far from calling for the attention of the legislature to this particular area, but if the matter were to be addressed, as seems to be implicit in the Law Reform Commission’s paper, it is for the legislature to address.”

119. In the intervening years, there had been significant developments in other jurisdictions. In South Africa, in 1972, the Appellate Division held in S. v. Goliath (1972) 3 (Translation) SA 1 that duress could constitute a complete defence to murder. In so holding the Court was answering one of two questions reserved to it by a trial court, which had found that one accused acted under the compulsion of the other.

120. The judgment ranges far and wide across Roman Dutch law, the Civil Codes of the Continent and ethical and philosophical writers as far back as Aristotle, as well as English common law. Unfortunately the translated version available to this Court omits most if not all quotations from these sources. The passages relied upon by the appellant are at p. 480 of the report, from the majority judgment given by Rumpff J.A., and read as follows:

“When the opinion is expressed that our law recognises compulsion as a defence in all cases except murder, and that opinion is based on the acceptance that acquittal follows because the threatened party is deprived of his freedom of choice, then it seems to me to be irrational, in the light of developments which have come about since the days of the old Dutch and English writers, to exclude compulsion as a complete defence to murder if the threatened party was under such strong duress that a reasonable person would not have acted otherwise under the same duress. The only ground for such an exclusion would then be that, notwithstanding the fact that the threatened person is deprived of his freedom of volition, the act is still imputed to him because of his failure to comply with what has been described as the highest ethical ideal.

In the application of our criminal law, in the cases where the acts of an accused are judged by objective standards, the principle applies that one can never demand more from an accused than that which is reasonable, and reasonable in this context means, that which can be expected of the ordinary, average person in the particular circumstances. It is generally accepted, also by the ethicists, that for the ordinary person in general his life is worth more than that of another. Only they who possess the quality of heroism will intentionally offer their lives for another. Should the criminal law then state that compulsion could never be a defence to a charge of murder, it would demand that a person who killed another under duress, whatever the circumstances, would have to comply with a higher standard than that demanded of the average person. I do not think that such an exception to the general rule which applies in criminal law is justified.”

121. In 1975 the House of Lords decided the case of Director of Public Prosecutions for Northern Ireland v. Lynch. The case against the appellant on a charge of murder was that he had driven a car containing three other men to a particular place, where the men murdered a policeman. He then drove them back to their starting point. The appellant’s case was that he had been instructed to drive and believed that he would be shot if he did not.

122. The House of Lords divided on the question whether the defence of duress was available. The majority (Lord Morris, Lord Wilberforce and Lord Edmund-Davies) held that it was open to a person accused as a principal in the second degree.

123. Lord Morris referred to the view of writers including Stephen (the reference being to History of the Criminal Law in England , 1883, vol.2, pp. 107-108) that duress should never furnish an excuse from guilt, but only operate to mitigate punishment. However, he felt that it was much too late, having regard to authority, to adopt that view. In any event he did not consider such an approach to be just.

“The law must, I think, take a common sense view. If someone is forced at gunpoint either to be inactive or to do something positive – must the law not remember that the instinct and perhaps the duty of self-preservation is powerful and natural? I think it must. A man who is attacked is allowed within reason to take necessary steps to defend himself. The law would be censorious and inhumane which did not recognise the appalling plight of a person who perhaps suddenly finds his life in jeopardy unless he submits and obeys.”

124. Lord Morris stressed the fact that the case concerned an alleged principal in the second degree, and that he was confining his decision to that issue. It might be that the law must deny such a defence to the actual killer, and that the law would not be irrational if it did so. In this regard he considered that the following passage from Hale should not be assumed to cover accessories, aiders and abettors:

“Again, if a man be desperately assaulted, and in peril of death, and cannot otherwise escape, unless to satisfy his assailant’s fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the fact; for he ought rather to die himself, than kill an innocent.”

125. Lord Morris referred to the judgment of the Court of Criminal Appeal in Whelan. Noting the obiter dicta as to the limitations of the general principle, he said that no consideration was given in that judgment as to the position of a principal in the second degree.

126. Having regard to all of the authorities, he concluded that it had been “firmly held” by the English courts that duress can afford a defence in a criminal case, and that “general reasoning and the requirements of justice” meant that it should be open as a possible defence in the case of an aider and abettor.

127. Lord Wilberforce asked (at p. 680) what reason there could be for excluding murder. He referred to the description in Whelan of murder as a “heinous” offence, and observed that in some circumstances a defence of duress should be correspondingly hard to establish.

“Indeed, to justify the deliberate killing by one’s own hand of another human being may be something that no pressure or threat even to one’s own life which can be imagined can justify – no such case ever seems to have reached the courts.”

128. However, he considered that there were degrees of heinousness even in murder, and that an accessory, aider or abettor might bear a lesser degree of guilt. Therefore, to say that the defence might be admitted in relation to some degrees of murder, but that it should be so difficult in relation to a direct killing by a principal as almost to justify a ruling that it was not available, would not be illogical.

129. Lord Wilberforce summarised the authorities as establishing that the defence of duress had been known to the law since the 14th century; that it absolved from guilt rather than merely mitigating punishment; and that there was no direct English judicial authority against its application to charges of murder. He cited, with apparent approval, the passage quoted above from S. v. Goliath, and deduced the conclusion that

“[a]lthough, in a case of actual killing by a first degree principal the balance of judicial authority at the present time is against the admission of the defence of duress, in the case of lesser degrees of participation, the balance is, if anything, the other way. At the very least, to admit the defence in such cases involves no departure from established decisions.”

130. At p. 684 he said:

“The broad question remains how this House, clearly not bound by any precedent, should now state the law with regard to this defence in relation to the facts of the present case. I have no doubt that it is open to us, on normal judicial principles, to hold the defence admissible. We are here in the domain of the common law: our task is to fit what we can see as principle and authority to the facts before us, and it is no obstacle that these facts are new. The judges have always assumed responsibility for deciding questions of principle relating to criminal liability and guilt, and particularly for setting the standards by which the law expects normal men to act. In all such matters as capacity, sanity, drunkenness, coercion, necessity, provocation, self-defence, the common law, through the judges, accepts and sets the standards of right-thinking men of normal firmness and humanity at a level which people can accept and respect. The House is not inventing a new defence: on the contrary, it would not discharge its judicial duty if it failed to define the law’s attitude to this particular defence in particular circumstances. I would decide that the defence is in law admissible in a case of aiding and abetting murder, and so in the present case. I would leave cases of direct killing by a principal in the first degree to be dealt with as they arise.”

131. Lord Edmund-Davies was the third member of the majority and expressed similar views. Lord Simon and Lord Kilbrandon dissented.

132. The next development was the decision of the Privy Council in Abbott v. R. [1977] A.C. 755. In that case the appellant was charged as a principal in the first degree, and the issue was whether the defence of duress was available. On this occasion Lord Wilberforce and Lord Edmund-Davies were in the minority, with Lord Hailsham, Lord Kilbrandon and Lord Salmon holding that the defence was not open. The majority judgment proceeded on the basis that the Court was bound to “loyally” accept the decision in Lynch, but that it was not an authority which required extension of the doctrine of duress to such a case. Having regard to the doubts expressed in the speeches of the majority as to the applicability of their reasoning to persons who actually carry out killings, combined with the dissenting speeches, it was considered that a majority of the House in Lynch had to be seen as being of the opinion that it should not be extended.

133. It was considered that all English, American and Commonwealth authority, with the exception of Goliath, was against such an extension. Further, the Court rejected the argument that the law was thereby expecting too great a degree of heroism from the ordinary person. Reference was made to the trials of those charged with wartime atrocities, whose defence – that the actions in question were the result of superior orders and duress – was never accepted. The Court continued:

“We are not living in a dream world in which the mounting wave of violence and terrorism can be contained by strict logic and intellectual niceties alone. Common sense surely reveals the added dangers to which in this modern world the public would be exposed, if the change in the law proposed on behalf of the appellant were effected. It might well, as the noble and learned Lord Simon of Glaisdale said in Lynch’s case, prove to be a charter for terrorists, gang leaders and kidnappers.”

134. The question was asked, rhetorically:- “Is there any limit to the number of people you may kill to save your own life and that of your family?”

135. The judgment goes on:

“We have been reminded that it is an important part of the judge’s role to adapt and develop the principles of the common law to meet the changing needs of time. We have been invited to exercise this role by changing the law so that on a charge of murder in the first degree, duress shall entitle the killer to be acquitted and go scot-free. Their Lordships certainly are very conscious that the principles of the common law must not be allowed to become sterile. The common law, as has often been said, is a living organism. During the last decade there have been many important cases in which its principles have been adapted and developed by the judges…;.Their Lordships however are firmly of the opinion that the invitation extended to them on behalf of the appellant goes far beyond adapting and developing the principles of the common law. What has been suggested is the destruction of a fundamental doctrine of our law which might well have far-reaching and disastrous consequences for public safety to say nothing of its important social, ethical and maybe political implications. Such a decision would be far beyond their Lordships’ powers even if they approved…;Judges have no power to create new criminal offences; nor in their Lordships’ opinion, for the reasons already stated, have they the power to invent a new defence to murder which is entirely contrary to fundamental legal doctrine accepted for hundreds of years without question. If a policy change of such a fundamental nature were to be made it could, in their Lordships’ view, be made only by Parliament.”

136. The Privy Council did accept that a murderer who killed under duress would in many cases be less blameworthy than one who killed of his own free will. It was suggested that the appropriate approach to this issue would be to provide that duress, like provocation, should reduce murder to manslaughter and thus allow the trial court to pass a sentence based on all the circumstances of the case.

137. Ultimately, Lynch was overruled in R v Howe [1987] 1 A.C. 417. This judgment deals with two separate cases, in each of which the appellants had been actual participants in killing. The Court of Appeal certified a question as to the availability of duress as a defence in the circumstances.

138. Lord Hailsham, referring to the fact that he had been in the majority in Abbott, said that he had been able to accept Lynch only because it left open the issue as to principals in the first degree, and that was the issue in Abbott. The House of Lords now had the opportunity to reconsider Lynch. His own view was that

“the balance of weight in an unbroken tradition of authority dating back to Hale and Blackstone seems to have been accepted to have been that duress was not available to a defendant accused of murder.”

139. It had been submitted in the course of argument that there might be a “half way house” available, in that duress could be treated as analogous to provocation, with the effect of reducing the crime of murder to manslaughter. Lord Hailsham said of this proposal:

“I find myself quite unable to accept this. The cases show that duress, if available and made out, entitles the accused to a clean acquittal, without, it has been said, the ‘stigma’ of a conviction. Whatever other merits it may have, at least the suggestion makes nonsense of any pretence of logic or consistency in the criminal law. It is also contrary to principle.”

140. Lord Bridge said that it was never open to the House of Lords, in its judicial capacity, to make such a fundamental reform of the law as that involved in Lynch. If duress was to be made available generally as a defence to murder, the proper means to introduce it would be by legislation such as that proposed by the Law Commission. This was because it was for Parliament to decide whether the proposed reform was socially appropriate, but also because it was by legislation alone, as opposed to judicial development, that the scope of the defence could be defined with the necessary degree of precision.

141. Lord Griffiths said (at p. 439):

“For centuries it was accepted that English criminal law did not allow duress as a defence to murder. It was so stated in Hale’s Pleas of the Crown (1736), vol. 1, p. 51, repeated by Blackstone in his Commentaries on the Laws of England, 1857 ed., vol. 4, p. 28, and so taught by all the authoritative writers on criminal law. It was accepted by those responsible for drafting the criminal codes for many parts of the British Empire and they provided, in those codes, that duress should not be a defence to murder. In Reg. v. Tyler and Price (1838) 8 C. & P. 616,Denman C.J. told the jury in emphatic language that they should not accept a plea of duress that was put up in defence to a charge of murder against those who were not the actual killers. Fifty years later, in Reg. v. Dudley and Stephens (1884) 14 Q.B.D. 273 , the defence of necessity was denied to the men who had killed the cabin boy and eaten him in order that they might survive albeit only Stephens was the actual killer. The reasoning that underlies that decision is the same as that which denies duress as a defence to murder. It is based upon the special sanctity that the law attaches to human life and which denies to a man the right to take an innocent life even at the price of his own or another’s life.”

142. He considered that, even after Lynch, the whole weight of authority denied the defence to the actual killer. The Law Commission had, in the intervening period, produced a report in which it was recommended that the defence should be available in all cases, but the draft bill annexed to the report prescribed far narrower terms than previous judicial definitions and would require legislation. Parliament had not acted on the proposal.

143. Lord Griffiths saw no fair and certain basis for distinguishing between different modes of participation, and held that the defence should not be available in a charge of murder. He also rejected the compromise solution of declaring that duress could reduce murder to manslaughter. Where duress was available it was a complete excuse. English law had rejected the line of argument that saw it as mitigation only, and the proposed solution would put the law back to that line or else create a new anomaly.

144. In considering the submission that it would be appropriate for the House to extend the reasoning in Lynch to cover the actual killer, Lord Mackay cited Lord Reid’s approach in Myers v. Director of Public Prosecutions [1965] A.C. 1001 (the well-known hearsay case), where he had said:

“I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.”

145. Lord Mackay also took the view that, having regard to the balance of authority, Lynch was incorrectly decided. It marked a substantial change in the law and a departure from the decision in R. v. Dudley and Stevens . The dilemma faced by the accused in that case was the same as that faced by a defendant who killed as the only way of avoiding death himself or preventing the death of a loved one.

146. He considered that to change the law in the manner suggested would introduce uncertainty over a field of considerable importance, and on a topic about which there were already many unanswered questions.

Discussion
Question 1 – causation

147. The authorities discussed above seem to me to demonstrate the following principles:

(i) Causation in homicide may be broken by exceptionally negligent medical treatment (as in Jordan, where the victim was administered medication to which the medical personnel had reason to know he was intolerant), but it is not disrupted by conventional treatment even if there is evidence that the treatment offered might not have been the best available (Smith). Nor is it broken if the reason for a failure to provide appropriate treatment is a decision by the victim to refuse such treatment (Blaue).
(ii) A lawful and ethically proper decision to withdraw life support where there is a diagnosis of brain death does not mean that the original injury did not cause death if the injury inflicted is still an operational cause of the death (Malcherek and Steel).
(iii) It is an aspect of the Constitutional right to life that, in an appropriate case, a decision may be made that it is in the best interests of a patient to withdraw medical treatment of an invasive nature (In Re A Ward of Court). That decision can involve a choice to let nature take its course where continuation of such treatment serves no curative purpose. Where such a decision is made, the cause of death remains the original injury unless there has been, in the intervening period, a true novus actus interveniens.
(iv) A novus actus interveniens in this context would be something that is so independent of the act of the accused that it should be regarded in law as the cause of death. The fact that the immediate cause of death is an act by a third party does not necessarily break the chain of causation where that act is brought about by the act of the accused and is itself lawful and reasonable (Pagett).
148. In any of these situations, which may arise in any case where the assault does not result in immediate death, the actual date of death will be influenced by factors beyond the actions of the accused. In the absence of a true novus actus interveniens that does not mean that that the chain of causation is broken.

149. Where a person is shot in the head and thereby sustains serious brain injury, paramedics and medical professional personnel will where possible attempt to save the life of the victim. Such efforts may often mean that life will be prolonged to an extent that would not otherwise have been possible. In the modern era, that may well involve a brain-injured victim surviving in a persistent vegetative state, or a condition akin to that, for a lengthy period of time. That in turn may eventually produce a situation where a decision is properly and lawfully taken to withdraw a particular treatment. In the appropriate circumstances this must be seen as part of the range of appropriate medical treatments available. It is not open to the assailant, who brought about the situation whereby the victim required medical treatment, to argue that an otherwise appropriate choice of treatment from that range has altered his or her responsibility.

150. In such a situation, the assailant has no further influence on the timing of the death of his or her victim. Whether or not he or she can be held responsible for the death depends on the evidence in a given case. If, as in this case, the series of medical episodes leading up to the decision in question are all attributed by the medical evidence to the susceptibility of the victim to particular types of infection by reason of the damage to the victim’s brain or body; and that susceptibility is attributable to the condition caused by the original assault, then the injuries inflicted in that assault should be seen to constitute a substantial and operational cause of death.

151. In this case, the decision made by the medical personnel, with the approval of Mr. Kenny’s father, did not involve the withdrawal of treatment. Rather, there was a decision not to embark upon a particular form of treatment. In the circumstances as they obtained, there has been no suggestion that there was anything remotely improper about this. It was not a decision to bring about or accelerate a death that would not otherwise have occurred – that would be unlawful – but to acknowledge the medical reality of the increasing likelihood that death was going to occur and that invasive methods of treatment would not be in Mr. Kenny’s best interests. There was however continued treatment with antibiotics and oxygen, and continued suctioning of the secretions.

152. The reason that the particular decision came to be made in this case was that Mr. Kenny’s condition made him very prone to infection, and he had suffered three episodes of pneumonia of increasing severity over a short period of time. These episodes happened because of the damage to his brain. That was caused by the gunshot to his head. The medical evidence was that because of that damage it was always likely that Mr. Kenny would succumb to infection, most likely pneumonia. It was also a situation where, for that same reason, Mr. Kenny had an extremely poor quality of life. This gave rise to the considerations as to what treatment was truly in his best interests.

153. To hold, in these circumstances, that the act of the appellant caused the death does not involve visiting upon him the consequences of a decision made by others – it entails recognition of the fact that he is responsible for the condition that ultimately led to the death. Whether one describes his action as being an operating and substantial factor, or as a more than minimal factor, the result will be the same.

Question 2 – duress

154. It is clear from reading the authorities cited above that this is a subject that can give rise to strong arguments on either side of the policy issues, often expressed with powerfully rhetorical effect. I have omitted much of the policy discussion because it seems to me that the first consideration is whether this Court has the power to rule, in the applicant’s favour, that duress is a defence available on a charge of murder.

155. The proposition that it does have such power is based, in summary, on the argument that the authoritative status accorded to Hale’s formulation may be incorrect; that the House of Lords considered that it had jurisdiction to extend the parameters in Lynch and this Court has the same power; and that this Court has altered the common law in significant fashion in other cases.

156. As far as the first part of the argument is concerned, it seems to me to be much too late in the day to consider whether or not Hale (writing in the aftermath of the English Civil War) was right. Over the intervening centuries there has been much debate about various aspects of the defence but there is very little to show that it was ever accepted in relation to a charge of murder in a common law jurisdiction. It is true that in R. v. Kray (1969) 53 Cr. App. R. the judgment of the Court of Appeal proceeded on the basis that it was available to a person charged as an accessory. However, the issue for determination in Kray was the effect on the case for the co-accused who were charged as principals, whose counsel appear to have conceded that the defence was potentially open. The balance of authoritative and judicial pronouncements favours the view that the exclusion of murder from the defence was a rule of the common law as of 1922, the time at which this State inherited that body of law.

157. The issue must be therefore be approached on the basis that to either abolish the exclusion or to modify it so as to create a partial defence would be to bring about a significant change in a long-standing rule of law.

158. As to whether the House of Lords was entitled to do what it did in Lynch, I do not think it necessary to go beyond the observations quoted above from Howe as to the circumstances in which that tribunal can alter the common law.

159. In this jurisdiction, the role of the Supreme Court in developing the common law is described by Hogan & Whyte in JM Kelly: The Irish Constitution (4th ed., 2003, Butterworths) at p. 984 in the following terms:

“As far as [common law principles are] concerned, it is plain that whereas the courts have a traditional role in extending and developing the common law (and thus, where necessary, overruling earlier Supreme Court decisions), there are recognised boundaries beyond which the courts cannot go. In other words, while the Supreme Court has latitude to relax the stare decisis rule where to do otherwise would be to re-inforce an earlier decision which is erroneous or not in harmony with modern legal values, nevertheless considerations of judicial continuity together with the maxim communis error facit jus place real restraints on that freedom where the Court is asked to overrule a decision of long-standing or uproot a rule which has become embedded in the fabric of the common law.”

160. In my view, what the appellant seeks here is not the development or extension of existing principles. It is the uprooting of a rule embedded for some hundreds of years in the common law, and the creation of an entirely new rule to apply, as the Court sees fit, to a greater or lesser extent. This is not put forward on the basis of any claim of Constitutional right, but purely on the basis that some other courts of other jurisdictions have preferred the policy of the proposed new rule and the argument that this Court is free to follow that policy.

161. This is not what occurred in either Dwyer or MacEoin. Dwyer, in its consideration of the subjective element in self-defence, was based largely on the Supreme Court’s interpretation of the then relatively recently-enacted s.4 of the Criminal Justice Act, 1964 and its implications for the concept of intention. In MacEoin, the Court of Criminal Appeal was also concerned with that section in relation to the proper test for provocation. It disagreed with a number of English authorities on the issue, and in the absence of any Irish authority set out its own formulation intended to accord with that in Dwyer. The case of J.C. was based, as were the preceding decisions in O’Brien and Kenny , on the Supreme Court’s view of the correct Constitutional approach to the relevant rules of evidence. This Court is the final arbiter on Constitutional matters, and has in certain defined circumstances the right to depart from its own earlier decisions.

162. The proposed alteration to the law relating to the exclusion of murder from the defence of duress comes into a very different category. The Court has, in effect, simply been asked to change the common law. In my view the proposed alteration is so fundamental that it could be introduced only by way of legislation.

163. In the circumstances I would answer the questions respectively “Yes” and “No”.

164. This conclusion leaves the case in a somewhat unsatisfactory state. The appellant now stands convicted of both attempted murder and murder of the same person, arising out of the same action. The Court has been informed that he has lodged an appeal against the conviction for attempt, notwithstanding his plea of guilty. The Director consented to enlargement of time for that appeal.

165. It may be that quashing the conviction for attempted murder is the only way to resolve the apparent illogicality of the appellant’s status, and will not lead to any injustice in the case, although I think that it would probably be the first time that the Court of Criminal Appeal has been asked to quash a conviction where the plea of guilty was unquestionably sound and reliable. However, in my view, it should not be presumed that the course of action taken in this case will always be considered appropriate.

People (DPP) v Aherne

, Court of Criminal Appeal, July 5, 2004
JUDGMENT of the Court delivered the 5th day of July,
2004 by Hardiman J.

The appellant’s application for leave to appeal came before the Court on the 26th May, 2004. On the same day the Court had heard an application in another manslaughter case, that of DPP v. Stephen Kelly, in which we have delivered judgment today.

On the hearing of this application for leave to appeal, it transpired that the applicant had been sentenced to ten years imprisonment for manslaughter in the Central Criminal Court (White J.) on the 13th October, 2003. In imposing this sentence the learned trial judge said:-
“I have previously stated that I consider where an innocent life is taken the appropriate sentence is 20 years imprisonment. However that is not the sentence that I am intending to pass in relation to you. I have to take into account in the first place the fact that previously you were of good character. I must take into account your tender age at this time, not being sixteen years of age and I must take into account what I find in the reports before which would indicate that you had certain learning difficulties. I must take into account your co-operation with Sergeant Molloy and the other members of the Garda Síochána in this particular investigation and I must take into account that you are not the ring leader and and/or the prime mover on this particular night.

Taking these matters into account I propose to pass a sentence of ten years in respect of the unlawful killing of Brian Mulvanney and I will backdate that sentence to the date of your conviction”.

In those circumstances it appeared to the Court that the approach to sentencing in this case displayed the same error in principle as that identified in our decision of the appeal of Stephen Kelly. We therefore indicated that we would set aside the conviction and proceed to impose the appropriate sentence.

Cross-reference to DPP v. Stephen Kelly.
In a judgment in DPP v. Stephen Kelly, which we have just delivered, we have set out the statutory provisions which apply when the Court has found that the sentence imposed on an appellant was wrong in principle. We have also taken the opportunity to set out certain information about the offence of manslaughter as it has presented in the Central Criminal Court in recent years. Likewise, we have restated the general principles applying to sentencing in our courts. It would obviously be redundant to set out the same material in this judgment. However we wish to emphasise the applicability of the material set out in the judgment in Kelly and the fact that we have been guided by the principles summarised in that case. We have applied these to the evidence considered and submissions made on 26th May, 2004 and 11th June, 2004.

The charges.
The appellant was charged, together with two others, with the murder of the late Mr. Mulvanney in the Templeogue area of Dublin on the 11th March, 2000. He was also charged with assault on Matthew O’Dowd on the same day, with producing a weapon capable of inflicting serious injury in a manner likely to intimidate, with assault with intent to rob one Karl Dunne and with producing an article capable of inflicting serious injury likely to intimidate the same person. All offences took place on the 11th March, 2000. The article referred to in two of the charges was a drinking glass.

After a trial lasting seventeen days the appellant was found not guilty of murder but guilty of the manslaughter of Brian Mulvanney. Subsequently, the accused pleaded guilty to the count of assaulting Matthew O’Dowd (count 2 in the indictment) and to the count of producing an article capable of inflicting serious injury to Karl Dunne (count 5). He was eventually sentenced to ten years detention on count 1, to date from the 2nd April, 2003 and three years detention on each of the other counts to run concurrently with each other and with the first sentence and to date from the 13th October, 2003.

It should be noted that the accused had offered to plead guilty to manslaughter before the trial and, of course, that he was acquitted on the count of murder. Of the co-accused, one was convicted of murdering Mr. Mulvanney and the other was acquitted entirely on the murder charge.
The facts of the case
The appellant was born on the 18th April, 1984 and was, at the time of the offences, between five and six weeks short of his 16th birthday. It appears that on Friday the 10th March, 2000 he left his family home in Templeogue about 7pm and went first to where some friends were drinking behind a local Church. He then went to a friend’s house, back to the Church and back to the friend’s house where he met a group of three further companions. This group went to a 21st birthday party in Terenure at which the appellant on his own account drank about ten pints of Budweiser and a Zambuca. They left when the bar closed. He and one of his friends, ultimately a co-accused, set out to walk back to Templeogue. The appellant said he was very drunk and stumbling. They got a lift and were dropped at the shops in Templeogue village.

The victim of the first incident, Matthew O’Dowd, was walking by himself at Templeogue village having left his friends in a takeaway restaurant. Two men crossed the road towards him, with pint glasses in their hands. One told Mr. O’Dowd that the other (who is the appellant), was going to smash a glass on his head. He kept on walking and the appellant hit him into the face with a pint glass. He turned away and was struck on the left hand side of his head, behind his ear. The glass shattered and he received a centimetre long laceration just behind the ear. He had minor injuries to his nose and chin. There was a struggle and a Mr. O’Dowd hit the appellant and ran off seeking the protection of his friends in the takeaway.

Some fifteen or twenty minutes after that episode, the appellant and the person with him were still in Templeogue village. They met three persons who had come out of a local public house and were walking towards Terenure. One of these was Karl Dunne. They approached the three men and asked them did they want to buy drugs and whether they were from Knocklyon. A scuffle developed in which the person with the appellant produced a pint glass and put it to the face of Mr. Dunne. Mr. Dunne’s friends resisted them and one was pushed away. The appellant then struck Mr. Dunne in the face knocking of his glasses. His accomplice held the glass to Mr. Dunne’s face and the appellant rummaged through his pockets looking for cash. Mr. Dunne and his group made off and were followed by the appellant and his accomplice. There was a further minor confrontation before the three escaped.

Shortly after this episode, the appellant and his associate went to an adjacent area where there was a small row of shops. The person eventually convicted of the murder of Mr. Mulvanney arrived with Mr. Mulvanney to that area. They had apparently come from a party at a nearby house. It appears that the person convicted of murder, Brian Willoughby, had lured Mr. Mulvanney from the party on a pretext, but actually with the intention of assaulting him. He asked the appellant to join him in attacking Mr. Mulvanney and he agreed to do so.
Mr. Mulvanney was lured around the side of the shops, where he was struck by Willoughby. Mr. Mulvanney attempted to run away but was brought to the ground by the appellant’s accomplice and was then attacked by the appellant and Brian Willoughby. The appellant picked up a stick or plank and struck Mr. Mulvanney on a number of occasions. A ghoulish scene then developed in which Willoughby repeatedly jumped on the unfortunate victim’s head, shouting gleefully.

The appellant and Willoughby (the third man had made off) then presented themselves at another party, where the blood on their clothes attracted attention. The appellant was arrested later that day and gave accounts to the Gardaí which are apparently substantially truthful. He denied initially using the stick to strike the deceased but eventually admitted it saying that he struck him perhaps three times. The weapon was subsequently found, and it had the deceased man’s blood on it.

Personal background.
The age of the appellant has already been mentioned: he was just under sixteen at the relevant time. He lived at home with his parents and was attending a local school. He was described in the reports as a person of borderline ability. He had the attention of a remedial teacher in primary school and impressed his teacher as being a dependent, rather than independent, person. He had good references from a person who gave him a part time job, neighbours, and other persons of undoubted respectability and judgement.

There was also produced on behalf of the appellant a psychological report. This is not always easy to understand. However it states of the appellant that:-
“He admits responsibility for engaging in such deviant behaviour and does not minimise his role in the crime. However [he] frequently describes the amount of alcohol he had consumed and, therefore, does attempt to justify actions that he would not have perceived himself capable of when no such substance has been ingested”.

I take it this means that he believes that he would not have committed the crime without the influence of drink.

The psychologist also says:-
“When [the appellant] was returning to home at the end of the night’s celebrations he attempted to and, indeed, assaulted a number of youths. Upon arrival in at the location of the victim’s ultimate demise, [he] describes a number of erratic and unplanned movements that seem consistent with an individual who was heavily intoxicated and not attending at the normal level of concentration and logic. While his story is disjointed, as a result of what is probably a memory loss owing to the intoxication of that night, a picture emerges of a young man who was then displaying extreme inconsistent patterns of aggression, emotions of grandeur and lack of ability to reason. This presentation is consistent with someone who is experiencing the effects of ingested chemical substances and/or manic depression and/or schizophrenia”.

One cannot help feeling this could have been put in a simpler and more straightforward way. However, in answer to express questions, counsel for the appellant, Ms. Mary Ellen Ring S.C., confirmed that there was no suggestion that the appellant actually suffered from manic depression or schizophrenia or any mental illness. This being so it is hard to see why these conditions were mentioned. The “effects of ingested chemical substances” is apparently a reference to the fact that the appellant had at least ten pints and one Zambuca on the night in question.

The psychologist also comments:-
“Devastatingly, it seems as if Stephen’s choice of peer leader was ill advised at the time when this violent act occurred”.

The psychologist’s report goes on to say that the appellant, despite his age, had been drinking a good deal for five or six years prior to the incident. The appellant also admitted to regularly using cannabis cocaine and ecstasy. He was also “inappropriately promiscuous”. Some emphasis was placed on his position in the family:
“While the youngest as well as the eldest is usually dominant within the family and often receives a disproportionate amount of attention, the middle years lack some of the parental attachment and enhances security”.

The psychologist also expressed the opinion that the appellant was genuinely remorseful for what has happened. He himself gave evidence in the course of which he read a written statement to the same effect. The psychologist however attributed what had occurred to “peer influence, preponderance of, momentarily, innate aggressive behaviour and the effect of alcohol…”. Having said this he declared that the appellant “presents with a moderate risk of re-offending in a similar manner” he hoped that psychological treatment might reduce this to a “moderate to low risk”.

Nature of the crime.
One must first acknowledge that the death of Mr. Brian Mulvanney as a result of a criminal attack on him was an unmitigated tragedy and an appalling affliction to his parents and his sister. The Court has had regard to the evidence of his father Mr. Lawrence Mulvanney in this regard. Brian Mulvanney was a young man whose life was just beginning: he was born on the 28th February, 1981 and at the time of his death was awaiting his Leaving Cert results with a view to taking up a college place. He was a keen sportsman and had played for the Irish under sixteen basketball team. He was widely known and universally respected. The grief of his family has been aggravated by the severity of the deceased boy’s injuries and the fact that he was left to die when his assailants ran away without notifying the emergency services or anyone else of his whereabouts.

There are a considerable number of aggravating and indeed seriously alarming aspects to this crime. It appears utterly gratuitous. The appellant joined in the lethal attack on the unfortunate deceased person at the suggestion of Willoughby, but quite willingly and without being in any way overborne. It is significant that Willoughby was not present when the appellant and his accomplice attacked two other completely innocent young men in the near vicinity a very short time before. The appellant does not suffer from a psychiatric illness and the learning difficulties he apparently has provide no sort of excuse. According to his own psychological witness he has innate aggressive tendencies and he fuelled these by drinking a very considerable amount of alcohol. On the basis of the history given by the same expert his lifestyle generally was chaotic, particularly in regard to drink and drugs. In all the circumstances, the offence disclosed here would have to be regarded as being in the most serious category of manslaughter, perhaps in the lower reaches of this category. A weapon was used but it had not been carried by the appellant. The attack was brutal, but the appellant did not play the leading role in it. From the verdict of the jury we must acknowledge that the appellant did not have an intention to kill or cause serious injury.

Having thus located the offence in the very wide range of actions which can constitute manslaughter, we turn to the mitigating factors. There are really only three of these, the appellant’s youth, the fact that he has no previous convictions and the fact that he had offered a plea to manslaughter. The significance of these matters has been discussed in our judgment of today’s date in Kelly. They are very weighty factors. But for them, we would feel obliged to impose a sentence of fourteen years imprisonment for so vicious and gratuitous an attack. The presence of these powerful mitigating factors, allow us to mitigate this sentence to one of ten years. This, of course, is the length of the sentence determined on by the learned High Court Judge and set aside by us for the error of principle mentioned above. It will no doubt be explained to the appellant that the fact that we have, on a proper approach, arrived at the same duration of sentence is in no way illogical.

People (DPP) v Cooney, Court of Criminal Appeal, July 27, 2004

Judgment of the Court delivered the 27th day of July 2004 by McGuinness J.

This application for leave to appeal against severity of sentence arises from the manslaughter of one Christopher Farrell by the applicant, Garrett Cooney, on the 1st January 2002 at Cloonmore Park, in Tallaght. The applicant was charged with murder. He pleaded not guilty of murder but guilty of manslaughter and this plea was accepted by the Director of Public Prosecutions. On the 27th June 2003 at the Central Criminal Court he was sentenced to fourteen years imprisonment. The Director of Public Prosecutions entered a nolle prosequi on two lesser charges of possession of an offensive weapon and of affray.
The killing took place in the early hours of the 1st January 2003 in the front garden of the applicant’s house at 13 Cloonmore Park, Tallaght, where the applicant lived with his partner of eight and a half years, Alison O’Neill, and their two children. A New Year’s Eve party was taking place at the next door house, 15 Cloonmore Park. It appears that at midnight the applicant, his partner Ms O’Neill and various neighbours came out to hear the bells ringing in the New Year and they were invited to join the party at 15 Cloonmore Park. A very considerable amount of drinking had been going on on all sides and the applicant appears to have been very drunk and getting drunker as time went on.
While the applicant and Ms O’Neill were attending the party their two young children were in bed at home. Ms O’Neill’s brother, Mr Dermot O’Neill, remained in the house as a babysitter.
The course of events is more than a little confused. It appears that Ms O’Neill was enjoying dancing at the party and in particular was dancing with a man named Gavin Murphy. The applicant was not very happy with this situation, particularly as it appears that earlier in the evening he had proposed marriage to his partner, and on a few occasions he urged Ms O’Neill to leave the party and come home with him. He himself went home briefly on a number of occasions to check on the children. During one of these visits it seems that he got into an argument with his partner’s brother, Dermot O’Neill, about Ms O’Neill’s failure to come home and her dancing with Mr Murphy. Arising from this argument the applicant attacked Mr O’Neill with a knife and wounded his arm, causing considerable bleeding. This incident occurred in the sitting room of No. 123 Cloonmore drive, the applicant’s home. The full facts about this attack are not clear. The applicant’s memory of it is clouded by drink and Mr O’Neill himself, with remarkable forbearance, has made no complaint to the authorities about the incident.
Shortly after this incident the applicant returned to the party and again asked his partner to come home. A number of people came out into the front garden of No. 15 including the applicant, Mr Gavin Murphy, and the victim Mr Christopher (Kit) Farrell who, it appears, was previously quite unknown to the applicant. There was some altercation. The applicant crossed back into his own front garden followed by Mr Farrell. According to the applicant (in reply to questioning by the Gardai) Mr Farrell was “giving him cheek” and calling him a “a muppet”. On the evidence available to the Gardai the applicant and Mr Farrell “went head to head” on the garden path. The applicant stabbed Mr Farrell in the stomach. It was a single stab wound. Mr Farrell staggered out into the roadway and collapsed. The stab wound rapidly proved to be fatal.
Following the attack the applicant appears to have brought a duvet from the house and tried to assist the victim by covering him with it. The Gardai were summoned. Immediately on their arrival the applicant admitted that it was he who had attacked Mr Farrell and, despite a great deal of confusion about the actual sequence of events, he has always accepted his guilt.
The investigating Gardai interviewed the applicant under caution several times. The interviews were recorded on video tape. The memoranda of the interviews were accepted as correct by the applicant and signed by him. These memoranda were before the sentencing court and are also before this court. They present a picture of drink-induced utter confusion in the applicant’s mind as to the events of the night in question. The applicant appears to have confused his attack on Mr O’Neill with his stabbing of Mr Farrell. He insisted to the Gardai that he had stabbed Mr Farrell in the sitting room rather than in the garden and pointed out that there was blood in the sitting room which Ms. O’Neill had cleaned up. He recalled Mr Farrell lying outside on the road and that he had fetched a duvet to cover him. He seemed to have little or no memory of the actual stabbing but always accepted that he must have been the perpetrator. The knife used to stab Mr Farrell has never been recovered but the applicant accepted in interview that he had fetched a steak knife from the kitchen from among unwashed dishes in the sink.
The task of the Gardai in establishing the actual course of events was rendered more difficult by the fact that not only the applicant himself but virtually all those present had been drinking heavily for some hours. However, both eye witness accounts and forensic evidence made it clear that the stabbing of Mr Farrell took place as described above in the front garden of the applicant’s home. In his interviews with the Gardai the applicant expressed extreme regret at his action and this was confirmed by the Garda witness at the sentencing hearing.

The sentencing hearing
The applicant’s sentencing hearing took place in the Central Criminal Court before Carney J. on the 27th June 2003. The evidence as to the facts was given by Detective Inspector Seamus Cane, who was examined in chief by Mr Birmingham on behalf of the Director and cross-examined by Mr Mill-Arden for the defence. Mr Mill-Arden also expressed on behalf of the applicant his extreme regret and remorse and his apology to the family of the deceased man.
A psychiatric report on the applicant by Dr. Brian McCaffrey, consultant psychiatrist, was handed into the court as was a medical report on the applicant’s alcoholism. Reports on his school and work records were also handed in.
Detective Inspector Cane gave evidence of the applicant’s record. He had committed a number of minor offences, some dating back to the Children’s Court in 1987. In the Children’s Court in 1987 he received a conviction in respect of a larceny offence and was dealt with under the Probation Act. In the same court in 1988 in respect of a larceny offence he again received the Probation Act. In December 1992 for attempted burglary he was bound to keep the peace for eighteen months in Kilmainham District Court. In December 2001 he received a sentence of two hundred and forty hours community service for offences of entering the curtilage of a building and larceny. None of these offences involved violence of any kind. While the applicant was a heavy drinker he was not involved in drugs.
The applicant had a record of being a regular worker in a number of jobs and was very committed to his partner and his two children. At the time of the hearing he and his partner had moved to Wexford and he was working as a handyman doing flooring work for his brother.
At the hearing evidence was also given by Detective Inspector Cane that the wife of the victim Mr Farrell had previously died in what was described by the Inspector as “another tragic event in the area” which was “unnecessary to describe to the court” (Book B page 29 to 30). The couple had two children aged six and five years who were now orphans and being cared for by their grandmother.
The victim’s father, Christopher Farrell senior, gave evidence to the court in regard to the family circumstances and in particular the effect of the deceased’s death on his children. The victim’s brother Mr Philip Farrell also gave evidence. He said that the family had fallen apart since his brother’s death. His sister had ended up on drugs and everything had gone wrong with the family since then (Book B page 33).
Evidence was given on behalf of the applicant by his sister Ms Martina Cooney and by his brother Mr Joseph Cooney, for whom the applicant was then working.
Following a speech in mitigation by Mr Mill-Arden, Carney J. pronounced sentence as follows:
“The transcript in this case is not going to be able to convey to any appellate court the large press of devastated and weeping family members at the back of the court. The sentence in this case is going take account of the devastating effect on a large family and also the creation of two orphan children aged five and six.
The facts of this case are fully set out in a transcript, I need not refer to them further.
When I came to the Bar and started practising in the Bridewell Criminal Courts nearly forty years ago, there existed the concept of the fair fight and that, in the way, attracted a measure of respect from the District Justices at the time. That has now completely gone. Case after case in this court is establishing that one of the parties to a fight will either go to the kitchen and get the kitchen knife or go home and come back to the scene with the kitchen knife and the sentences coming down from this court have got to indicate urgently that this must stop.

I sentence the accused to fourteen years imprisonment.”

Submissions of Counsel
In addressing this court senior counsel for the applicant Mr Mill-Arden submitted that the learned High Court judge had erred in principle in failing to provide cogent reasons for his decision in his sentencing judgment. The learned judge gave no indication of having considered any of the matters raised on behalf of the applicant in his plea of mitigation. No reference was made to his immediate and consistent admission of guilt, to his previous record, to the possibility of rehabilitation, or indeed to any factor other than the effect on the members of the victim’s family and the general prevalence of knife attacks. Mr Mill-Arden drew attention to the principles applicable to sentencing set out by this court (Walsh J.) in The People (Attorney General) .v. O’Driscoll (1 Frewen 351) and by the Supreme Court in the People (Director of Public Prosecutions) v M [1994] 3 I.R. 306. In that case the Supreme Court held that any sentence imposed must be proportionate to the circumstances of the case having regard to the nature of the offence, its effect on the victim and the circumstances of the convicted person. A relevant and necessary fact to be considered in this context was the prospect of successfully rehabilitating the convicted person so that he would not have any propensity to re-offend.
Mr Mill-Arden accepted that the learned judge was correct in his sentencing judgment in giving weight to the impact of the crime on the family of the victim but submitted that this was not in any way balanced by a consideration of any of the mitigating matters, of the psychiatric report or of the applicant’s background and personal circumstances.
In regard to the quantum of the sentence Mr Mill-Arden drew the attention of the court to the recent judgment of this court (McCracken J.) in Director of Public Prosecutions v Dillon (unreported: CCA, McCracken J. 17th December 2003) where it was held that it was an error in principle to treat manslaughter with a knife as being in a different category from other forms of manslaughter. In that case a sentence of fourteen years had been reduced by this court to one of eight years.
Senior counsel for the Director, Mr McCarthy, submitted that the decision in the Director of Public Prosecutions v Dillon (cited above) dealt in the main with the fact that the learned trial judge in that case had per incuriam held that there was a fixed minimum sentence of twenty years for this type of offence. There were, Mr McCarthy argued, gradations of manslaughter. In the present case there was not the requisite intent for murder but this was an unprovoked attack on a victim who was virtually unknown to the applicant. It was at the serious end of the gradations of manslaughter.
With regard to any possible concern felt by the court as to the lack of explicit reasoning in the sentencing judgment, counsel suggested that it was open to the court to seek a report from the learned sentencing judge. This had on occasion been done in the past.
In regard to the quantum of the sentence Mr McCarthy referred the court to the judgment of the Supreme Court in The People (D.P.P.) v Conroy (No. 2) [1989] I.R.160. In that case it had been held by the Supreme Court that there was no principle appropriate to the question of sentencing which would inhibit a court from imposing the maximum permissible sentence for manslaughter merely on the grounds that such a sentence had not been imposed in recent times. It was also held that to impose the same sentence in respect of a plea of guilty to manslaughter as would have been imposed had the appellant being convicted of murder was not an error in principle. There was no presumption that a particular instance of the crime of manslaughter could not, from a sentencing point of view, be as serious as, or more serious than, an instance of the crime of murder.

The Law and Conclusions
Both the Supreme Court and this court have from time to time drawn attention to the factors that may properly be considered by a court of trial in imposing sentence either on conviction or following a plea of guilty. Counsel for the applicant has referred this court to two leading cases. In The People (Attorney General) v O’Driscoll the applicants, two co-accused, committed armed robbery in the course of which violence was used. A number of concurrent sentences were imposed on the various counts, the longest of which was nine years penal servitude. The applicants appealed against conviction and sentence. Much of the appeal turned on identification evidence and other issues to which it is not necessary to refer here. The judgment of the court was delivered by Walsh J. The relevant passage as regards sentencing occurs at page 359 of the report:
“It is clear from the transcript that the Superintendent in question was somewhat exasperated with the applicants and their family. It is equally clear that the learned judge in passing sentence had already formed a very adverse opinion (no doubt based on experience) of the O’Driscolls and their relatives the Hogans. However that may be the applicants in this case are answerable only for their own sins and not for the sins of their friends and relatives. Having regard to the age of the applicants and their previous record the court is of opinion that the sentences passed of nine years penal servitude and six years penal servitude and four years penal servitude and three years penal servitude are all grossly disproportionate and must be set aside. The offences are, of course, extremely serious offences and are not mitigated by the fact that only a sum of £20 was involved as the real nature of the offence of robbery with violence or robbery with aggravation or any form of robbery is the fact of robbery rather than the value of the proceeds of it. The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him insofar as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal. The sentences in the present case may have a very deterring effect on other people but are not such as to induce these young men to turn from a criminal to an honest life. Regard must also be had to the fact that this is the first crime of violence of which either of them has ever been convicted.”

The court went on to quash the sentences and to reduce the maximum sentences to three years penal servitude.
A more recent consideration of the relevant factors in sentencing is to be found in the judgments of the Supreme Court in The People (Director of Public Prosecutions) v M 3 I.R. 306.
In that case the appellant, a teacher and member of a religious order, pleaded guilty before the Central Criminal Court to a number of counts of buggery, indecent assault and sexual assault. The offences had been committed against a number of young boys who had been under the appellant’s care in his position as their teacher. The trial judge imposed a number of concurrent sentences, the longest of which was a sentence of eighteen years penal servitude in respect of three counts of buggery. In imposing the sentences the trial judge expressed the view that in his opinion this was the worst case of its kind to come before the Central Criminal Court.
In his judgment (page 313) Egan J. stated:
“There can be no doubt whatever but that the appellant committed very serious offences. The majority of the six children involved have been disturbed and damaged and will require continued psychiatric counselling. It must also be remembered that there was an appalling breach of trust by the applicant towards the parents of the boys and the six innocent boys themselves. To my mind the most important mitigating factor in a case is the fact that the appellant admitted his guilt promptly and has pleaded guilty at his trial. This court recognised that this was an important mitigating factor in cases of rape: The People (Director of Public Prosecutions) v Tiernan [1988] IR 250.”

The learned judge went on to survey the personal circumstances of the applicant and continued (at page 314):
“As was stated in the judgment of the Court of Criminal Appeal in The People (Attorney General) v O’Driscoll [1972] 1 Frewen 351 and The People (Attorney General) v Poyning [1972] I.R. 402 an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such persons so as to re-enter into society after a period of imprisonment. This is clearly not a case in which it could be said that there is no reasonable possibility of the accused re-entering society as a rehabilitated member of it after a substantial period of imprisonment.
One of the ingredients of that possibility of rehabilitation clearly would appear to be the maintenance during the period of imprisonment involved an element of hope and of something to look forward to which gives motivation for the self improvement and rehabilitation necessary. This has been described in some of the literature as the light at the end of the tunnel.”

Denham J. in her judgment spoke (at page 316) of proportionality. She said:
“Sentences should be proportionate. Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected by a severe sentence…
The nature of the offences would attract immediate and long custodial sentences. Thus, the sentences imposed by the learned trial judge are not intrinsically wrong in principle.
However, sentences must also be proportionate to the personal circumstances of the appellant. The essence of the discretionary nature of sentencing is that the personal situation of the applicant must be taken into consideration by the court.”

The learned judge then went on to refer to the passage quoted above from The People (Attorney General) .v. O’Driscoll.
Denham J. went on to refer to the effect of the crimes concerned on the victims (at page 317). She stated:
“Sentencing is neither an exercise in vengeance, nor the retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the court in sentencing.”

Denham J. referred to the effect of the applicant’s crimes on each of the victims, but went on to say:
“The nature of the crime, and the personal circumstances of the appellant, are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims.
Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed inter alia in a plea of guilty, which in principle reduce the sentence.”

Denham J. then carefully considered the various mitigating factors in that case including the applicant’s plea of guilty, his personal circumstances and his possible propensity to commit similar crimes in the future. She concluded:
“Taking into account the previously related factors and viewing these very serious offences in their particular circumstances I am satisfied that the learned trial judge did not take into account sufficiently the mitigating factors and that he erred in principle in determining the length of sentences.”

She agreed with Egan J. as to the sentences to be imposed.
Mr McCarthy has drawn the attention of the court to the case of the People (D.P.P.) v Charles Conroy (No. 2) [1989] I.R 160. A number of the conclusions of that case have already been quoted above. The personal circumstances of the appellant in that case were that he had no significant previous criminal record and had pleaded guilty to the charge of manslaughter. However in dealing with the sentence imposed by the trial court Finlay C.J. pointed out that his plea of guilty counted for little given that he had pleaded not guilty in two previous trials for murder arising out of the same incidents. The first trial had resulted in a disagreement and the conviction in the second trial was set aside by the Supreme Court on a point of law. This was not a case where the appellant had pleaded guilty from the beginning.
The facts of that case were that the appellant was the eldest of four men who forcibly entered the house of an elderly woman for the purpose of robbery. The woman was beaten and tied to a chair and the house was ransacked; a small amount of money was taken. The four men then travelled together in the appellant’s car, stopping at a shop where the appellant purchased some pairs of nylon tights to be used as masks. They forcibly entered a house occupied by two elderly men. Each of the men was severely beaten. One of them died shortly afterwards as a result of his injuries, while the other died in hospital some weeks later.
As noted above the court held that there was nothing wrong in principle in imposing the maximum sentence for manslaughter. However despite the striking circumstances of the case the court held that a sentencing court must have regard to the principle that an accused might be rehabilitated, if induced by the length of his sentence to expect to be eventually returned to society. The court again referred to The People (Attorney General) v O’Driscoll (1 Frewen 351). Having regard to the disparity between the sentences imposed on the appellant and his co-accused and to the necessity for affording him some hope of rehabilitation and re-entry into society the court held that the sentence of penal servitude for life was excessive and imposed a sentence of seventeen years penal servitude.
In the present case Mr Mill-Arden submits that the learned sentencing judge did not provide full or specific reasons for the heavy sentence he imposed. It is true that in his brief sentencing judgment Carney J. refers only to the suffering of the victim’s family, by which he was clearly much affected, and to the prevalence of knife attacks in recent times. He makes no reference at all to the applicant’s plea of guilty, to his personal circumstances, or to any hope of rehabilitation. All these matters had, of course, been brought to his attention by Mr Mill-Arden in his speech of mitigation and it may well be that they were present in the judge’s mind at the time of sentence.
It cannot be said that as the law stands at present a sentencing judge is under an obligation to give reasons for the particular sentence which he imposes. It is, however, in our opinion fair to say that it is a desirable practice. Public confidence in the criminal justice system is enhanced when reasons for sentence are clearly expressed. From a practical point of view the giving of reasons facilitates review of the sentence by an appellate court. An appeal court should be able to ascertain whether the sentencing judge took into account such matters as a plea of guilty, the accused person’s previous record or other relevant personal circumstances. In, for example, The People (D.P.P.) v Bambrick [1996] 1 I.R. 265, Carney J. dealt with all aspects of the reasons for the sentence in that case in a lengthy and detailed judgment.
In his article “Sentencing – the Case for Recent Decisions” [1963] Crim. L.R. 243, D.A. Thomas comments:

“The immediate effect of an obligatory statement of reasons would be to remove certain obvious risks inherent in the present system. The danger of sentences based on an immediate emotional reaction to some particular feature of the offence would be avoided. The imposition of the intellectual discipline of formulating reasons, a discipline to which the judge is accustomed, would assist the judge to ignore factors which are irrelevant but which might otherwise, perhaps unconsciously, influence the choice of sentence. It is easy to understand the temptation to be influenced by the un-cooperative attitude of the defendant or his offensive behaviour to the prosecution witnesses or even the judge himself, but these are not factors which should affect the choice of sentence. To require a judge to formulate reasons for a sentencing decision is to do no more than to require him to apply the normal process of judicial decision to the process of sentencing: and where reasons are formulated, there can be no objection to a requirement that they should be stated.”

Reference was also made to the requirement of giving reasons for the imposition of a particular sentence in the case of O’Mahony v Judge Thomas Ballagh and the Director of Public Prosecutions (Supreme Court unreported 13th December 2001). In that case, the applicant, who had been convicted of drunken driving, sought judicial review of the decision of the District Court judge on the basis that his trial in the District Court was not conducted in accordance with the principles of constitutional justice in that the trial judge had failed to address a submission made by counsel on behalf of the applicant.
In his judgment in the Supreme Court Murphy J. held:-

“I would be very far from suggesting that judges of the District Court should compose extensive judgments to meet some academic standard of excellence. In practice, it would be undesirable – and perhaps impossible – to reserve decisions even for a brief period. On the other hand, it does seem, and in my view this case illustrates, that every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which of the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing.”

The factors to be considered in passing sentence have been clearly set out by the Supreme Court in Director of Public Prosecutions v M. [1994] 3 I.R. 306 and that decision is, of course, binding on this court, as it is on the Central Criminal Court. It is the view of this court that the learned trial judge in the present case did not properly consider the established relevant factors which should be taken into account in imposing sentence but was overly influenced by the presence in court of the various members of the victim’s family and by the evidence given by them. No reference was made by him to the applicant’s immediate admission of guilt, which he maintained throughout, nor to the fact that he had never previously committed an offence involving violence and had never previously merited a custodial sentence. No consideration appears to have been given to the likelihood of his re-offending or to his expressed remorse, both of which were dealt with in the psychiatric report of Dr. McCaffrey; nor was any reference made to the need for a “light at the end of the tunnel”. The learned judge in our view fell into error in treating the matter as “an action between the appellant and the victims” rather than as “an action between the State and the appellant”, to use the phraseology of Denham J. in the M case quoted above. Thus in our view the learned judge erred in principle in imposing a custodial sentence of fourteen years imprisonment.
Having held that the learned trial judge erred in principle in his sentencing it now becomes the duty of this court, by reason of section 34 of the Courts of Justice Act 1924, substituted by section 3 of the Criminal Procedure Act 1993, to “impose such sentence or make such orders it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the Court of Trial…”
Manslaughter is, of course, an extremely serious offence, which in the majority of cases must result in a substantial custodial sentence. Such sentences, however, even in cases of fatal stabbing, have varied considerably in severity. Variations have arisen from the circumstances surrounding the crime and from the personal circumstances of the criminal. In recent years sentences as long as fifteen to seventeen years and as short as three to four years have been imposed in different cases.
In the recent case of The People (Director of Public Prosecutions) v John Dillon (Court of Criminal Appeal 17th December 2003) the original sentence of fourteen years for manslaughter by stabbing was held by this court to be wrong in principle because the learned trial judge in that case had put manslaughter by stabbing into a separate and more serious category than other types of manslaughter. The sentence in that case was reduced to one of eight years imprisonment. In the present case, while the learned judge did not specifically state that manslaughter by stabbing was a special category, he undoubtedly laid great emphasis on the increase in stabbing offences in recent times, stating that “the sentences coming down from this court have got to indicate urgently that this must stop”. He implied that stabbing cases were in a separate category which must be treated more severely. This, too, was an error in principle.
It can be noted also that in the recent case of The Director of Public Prosecutions v Stephen Kelly (unreported Court of Criminal Appeal 5th July 2004) in which the judgment was delivered subsequent to this court’s hearing of the present case, a similar error of principle was identified in that a case of manslaughter by knife attack was treated as a special category of offence. In that case, too, a sentence of fourteen years was reduced to one of eight years.
In the present case the applicant committed an extremely serious offence which had an untold effect on the unfortunate relatives of the victim. On the other hand the applicant immediately admitted his guilt and never wavered from that position. He had never previously committed an offence involving violence. Although he undoubtedly had a drink problem he had never been involved in illegal drugs. While he used a kitchen knife on the occasion of this offence it is not suggested that he habitually carried a knife as a weapon. He has shown remorse from the time of the offence. In his personal life he is a good worker and is committed to his long term partner and his children. The opinion of Dr. McCaffrey is that he does not appear to be a violent type of person in normal circumstances. There appears to be a reasonable hope of his rehabilitation.
Given all these considerations this court believes that the sentence in the present case was excessive. The court will treat the application for leave as the appeal and will allow the appeal. The court will impose as the appropriate sentence a period of eight years imprisonment.

Director of Public Prosecutions v Gilmore

[1981] ILRM 102 Henchy J
The defendant appealed to the Circuit Court against his conviction. As in all of these breathalyser cases, the defence was a purely technical one. It raised a point which obviously troubled the Circuit Court judge. So much so that he has stated this case in order that his uncertainty as to the applicable law may be clarified by this Court.

The point of law involved will emerge when I enumerate the matters which the prosecution had to prove on the rehearing in the Circuit Court. They are as follows:

1. That the relevant member of the Garda Siochana was of the opinion that on the date in question the defendant was in charge of the mechanically propelled vehicle in a public place at a time when he had consumed intoxicating liquor: see s.12(1) of the 1978 Act. The prosecution clearly discharged this onus of proof. Counsel for the defendant has not suggested otherwise. The defendant driver was stopped by a Garda at a checkpoint — the checkpoint being for a purpose not apparently related to a driving offence — and when the Garda heard him enunciate his name and address in reply to queries put to him, and smelled his breath, he formed the opinion that the defendant had consumed an intoxicant. In the circumstances, and having regard to what an analysis later of a sample of the defendant’s urine disclosed, the Garda was well justified in forming that opinion.

2. That, in compliance with a requirement made by the Garda, the defendant exhaled into the apparatus commonly called a breathalyser a specimen of his breath: see s.12(1) of the 1978 Act. It was established beyond question that the defendant did exhale, as required, into a breathalyser.

3. That, without a warrant, because in the opinion of the Garda the defendant was committing or had committed an offence under the new s.49, the Garda arrested the defendant: see the new s.49(6). Unquestioned evidence was given by the Garda that the breathalyser test gave a positive result, thus suggesting that the defendant had consumed more than the permitted amount of alcohol, and that the Garda then arrested the defendant without warrant and brought him to the local Garda station. What was in issue in the Circuit Court, and it is the central question in this case stated, is whether the opinion which the Garda said he formed justified the arrest without warrant under new s.49(5). I shall return to this point when I have disposed of the other proofs which were required of the prosecution.

4. That, having been brought to the Garda station, the defendant was given the option of permitting a designated medical practitioner to take a specimen of his blood or of providing for the designated medical practitioner a specimen of his urine, and that he opted for the latter: see s.13 of the 1978 Act. The case stated is silent on this matter, but counsel for the defendant has raised no point under s.13 and I have no doubt that its provisions were compiled with.

5. That the requirements stipulated by the 1978 Act and by the relevant regulations for the due certification of the number of milligrammes of alcohol per 100 millilitres of urine in the defendant’s sample were satisfied . Again, there is no dispute on this aspect of the case. It may be safely assumed from the case stated and from the absence of any objection from counsel for the defendant, that all the specified formalities were observed.

6. Finally, that the certificate that was issued by the Medical Bureau of Road Safety under s.22 of the 1978 Act showed a concentration of alcohol in excess of the permitted level and that the accuracy of such concentration has not been disproved: see ss.22 and 23 of the 1978 Act. It is implicit in the case stated, and in the scope of the argument of counsel for the defendant, that it was established beyond doubt that the defendant had a concentration of 141 milligrammes of alcohol per 100 millilitres of urine when the permitted concentration was 135 milligrammes of alcohol.

It is clear, therefore, that the conviction is unimpeachable if the prosecution complied with what I have set out as the third matter of proof. It is agreed by counsel for the Director of Public Prosecutions that if the prosecution failed in this respect, the conviction cannot stand, for apart from the fact that this proof in itself is essential to a valid conviction, the further matters of proof would be *104 unsatisfied because they all depend on a valid arrest.

The crucial question, therefore, is: was there a valid arrest? It follows from the new s.49(6) that the Garda’s arrest of the defendant without warrant was valid if he was properly of opinion that the defendant was committing or had committed an offence under that section. There are, however, three offences (or more correctly, six offences, when attempts are counted as separate offences) that may be committed under the section: (1) driving or attempting to drive when the accused is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle; (2) driving or attempting to drive when the concentration of alcohol in the accused’s blood exceeds the permitted level; and (3) driving or attempting to drive when the concentration of alcohol in the accused’s urine exceeds the permitted level. The offence described at (1) differs from those described at (2) and (3) in that it is founded on a proven lack of capacity to drive with proper control, resulting from the influence of an intoxicant; whereas the offences described at (2) and (3) are unconnected with a demonstrated incapacity to drive safely. An accused may be able to show an ostensible capacity to drive safely, but if he fails to qualify under the test of blood-alcohol or urine-alcohol levels set out in (2) and (3), his seeming capacity to drive safely will provide no defence to a charge under either of those subsections.

In the present case, it is the fact, and so found expressly or impliedly by the Circuit Judge, that the Garda arrested the defendant in pursuance of the new s.49(6); that such arrest was made because of the Garda’s opinion that the defendant had committed an offence under that section; that the particular offence as to which he said he formed that opinion was one of driving while under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle; and that the sole foundation for that opinion was the defendant’s failure to pass the breathalyser test.

It is clear from the 1978 Act — see s.12(4) — that the breathalyser used was designed merely to indicate the presence of alcohol in the breath. If its use gives a positive result, that necessarily confirms the Garda’s earlier opinion that the person tested has consumed intoxicating liquor. If the result of the test is negative, the contrary is not true; it merely establishes that the amount (if any) of alcohol indicated in the breath by the breathalyser is not of such a level as to call for a scientific determination of the actual concentration of alcohol in the blood or urine. The breathalyser evidence of alcohol consumed does no more than indicate, in a way that the Legislature obviously did not consider to be scientifically conclusive, that not less than a particular amount of alcohol has been consumed. The apparatus does not record, and is seemingly not designed to record, the precise concentration of alcohol in either the blood or the urine. But even if it could give such a reading, that would not necessarily prove the presence or absence in the person tested of a capacity to drive with proper control of the vehicle. For some people, a relatively small amount of alcohol can produce an incapacity to drive properly; for others, a capacity to drive with what may appear to be proper control can be shown even after the permitted maximum of alcohol has been consumed. That is why two distinct types of offences were recognized by the new s.49, the first, based on proof, by observation or by clinical tests, of an actual incapacity to drive with proper control because of an intoxicant consumed, and the second, depending not on such proven incapacity to drive properly but based entirely on chemical analysis showing a concentration, beyond a permitted level, of alcohol in the blood or urine.

In the instant case, the Garda considered that the breathalyser evidence entitled him to form the opinion that the amount of intoxicant consumed by the defendant was such as to render him incapable of having proper control of the vehicle. Such an opinion, unsupported as it was by any evidence of a clinical or observational nature, could not be held to have been properly reached. An opinion of this nature is invariably subjective in character, and if its factual or legal basis cannot be fathomed, it may be difficult to subject it to judicial review if it has been reached in good faith. But where, as is this case, the precise basis of the opinion is known, the opinion will not be accorded legal validity at the suit of the person affected by it if the opinion-maker misdirected himself as to the law or the facts, or, to put it in another way, if a person in his particular circumstances could not reasonably have reached the opinion formed. Applying that test, one must hold that the opinion formed by the Garda (i.e. that by reason of the influence of an intoxicant the defendant was incapable of having proper control of the vehicle) was invalid because it rested on a single factual consideration which could not reasonably justify the particular opinion. On the evidence, the only opinion the Garda could reasonably have formed in regard to s.s.(1) is that the defendant may have been incapable of driving with proper control. And that would not be sufficient to justify an arrest under s.s.(6).

This conclusion, however, does not dispose of the main point raised in the case stated. It might be otherwise if the offence charged were identical with the particular offence which was the basis of the Garda’s opinion that he was entitled to make the arrest, namely, an offence contrary to the new s.49(1). However, the offence charged, and held proved in the District Court, was an offence contrary to s.s. (3) of that section, namely, having a concentration of alcohol in the urine beyond the permitted level. Since s.s. (6) of that section allowed the Garda to arrest the defendant if he properly formed an opinion that the defendant had committed ‘ an offence under this section’, the real question is whether it can be inferred that the Garda, before he made the arrest, formed a justifiable opinion that the defendant had committed an offence under s.s. (2) or s.s. (3).

In my judgment, the answer to that question must be in the affirmative. Once the breathalyser test had proved positive, and once, as a result of that, the Garda formed the opinion (unjustified though it was) that the defendant had committed the offence of driving while he was under the influence of an intoxicant to such an extent that he was incapable of having proper control of the vehicle, it follows that the Garda must also have formed the opinion, and justifiably so on the basis of the breathalyser test, that the defendant had, in breach of s.s. (2) or s.s. (3), driven when there was an excessive concentration of alcohol in his blood or in his urine. Before making a lawful arrest under s.s. (6), the Garda cannot be expected to opt, in forming his opinion, for either an offence under s.s. (2) or an offence under s.s. (3), because he cannot anticipate whether the driver, or would-be driver, will choose between giving a specimen of blood and providing a specimen of urine. But if (as was the position here), after the breathalyser test proved positive and the Garda formed the opinion that the defendant had consumed so much alcohol that he was incapable of exercising proper control of the vehicle, that opinion must have encompassed the further opinion that an analysis of a sample of his blood or urine would prove that he had exceeded the blood-alcohol or urine-alcohol levels permitted. In other words, the Garda, after he had carried out the breathalyser test and before he arrested the defendant, must have formed the opinion that the defendant had committed an offence under s.s. (2) or s.s. (3). I read Part III of the 1978 Act as indicating a statutory intent that a positive result of a breathalyser test is sufficient to justify an opinion on the part of the Garda who carried out the test, albeit an opinion that may later turn out on a more scientific analysis to have been wrong, that an offence under s.s. (2) or s.s. (3) had been committed. And, considering that the Garda had formed the opinion that the defendant’s alcoholic condition had deprived him of the capacity to drive properly, the Garda must a fortiori have formed the opinion that the defendant had committed an offence under s.s. (2) or s.s. (3).

If I were in any doubt about imputing this opinion to the Garda, I would favour sending the case stated back to the Circuit Court so that positive evidence could be got from the Garda as to whether the opinion he formed subsumed an opinion that the defendant had also committed an offence under s.s. (2) or s.s.(3). But having regard to the opinion we know he had formed, I feel it may be safely assumed that the Garda’s evidence would be that, once the crystals in the breathalyser had turned the colour suggesting the consumption by the defendant of an unpermitted amount of alcohol, the opinion he formed embraced the further and fully supportable opinion that an offence under s.s. (2) or s.s. (3) had been committed.

My conclusion, therefore, is that the arrest made by the Garda, was lawful, not for the reason given in evidence but for the appurtenant and necessarily implied reason that an offence under the new s.49 (2) or (3) had been committed. This means that all the proofs necessary to support the conviction in the District Court were complied with and that that conviction should be affirmed by the Circuit Court Judge.

KENNY J

(concurring) delivered his judgment on 29 May 1981 saying: … This is a Case Stated by Circuit Judge O’Malley for the opinion of this Court on questions that were argued before him when he was hearing an appeal from the District Court where the defendant was convicted of the charge made against him. The defendant was accused in the summons that he ‘on 20 October 1979 … at a public place … did drive a mechanically propelled vehicle while there was present in your body a quantity of alcohol such that within three hours after so driving, the concentration of alcohol in your urine exceeded a concentration of 135 milligrammes of alcohol per 100 millilitres of urine contrary to s.49(3) and 4(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic (Amendment) Act, 1978’.

To explain the conclusion I have reached, it is necessary to set out the relevant parts of sections 10 and 12 of the Road Traffic (Amendment) Act, 1978, (‘the Act of 1978’). I preface this by stating that s.49 of the Road Traffic Act, 1961 made it an offence to drive a mechanically propelled vehicle in a public place while the driver was under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle. This section made commission of the offence a matter of opinion based on observation and non-scientific tests. The whole of s.49 was replaced by a new section inserted by s.10 of the Act of 1978 so that s.49 of the Act of 1961 now reads:

49.

(1)(a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

(b) In this subsection ‘intoxicant’ includes alcohol and drugs and any combination of drugs or of drugs and alcohol.

(2) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his urine will exceed a concentration of 135 milligrammes of alcohol per 100 millilitres of urine.

(6) A member of the Garda Siochana may arrest without warrant a person who in the members opinion is committing or has committed an offence under this section.

S.12 of the Act of 1978, so far as it is relevant, provides:

(1) Whenever a member of the Garda Siochana is of opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require the person to provide, by exhaling into an apparatus for indicating the presence of alcohol in his breath, a specimen of his breath and may indicate the manner in which he is to comply with the requirement.

The scheme of the Act of 1978 is that a member of the Garda Siochana may require a person in charge of a mechanically propelled vehicle in a public place to give a specimen of his breath if the Garda is of opinion that the person in charge of the vehicle has consumed intoxicating liquor. It is notorious that this apparatus — commonly called a breathalyser — may prove positive or negative by the colour which it shows. If it proves positive, it is an indication that the person who has used it has more than 100 milligrammes of alcohol per 100 millilitres of blood or 135 milligrammes of alcohol per 100 millilitres of urine. If the test with the breathalyser is positive, the Garda is then, in my opinion, entitled to form the opinion that an offence under s.49 has been committed and may arrest the driver.

Mr Whelehan, counsel for the defendant, argued that the statutory right of arrest can be exercised only if the Garda has formed an opinion that an offence under s.49 has been committed based on observation of the accused and not on the result of the breathalyser. When sections 10 and 12 of the Act of 1978 are read together, this contention is seen to be incorrect. The Garda is entitled to arrest a person in charge of a mechanically propelled vehicle if he has formed the opinion from observation that the person in charge is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle: he is also entitled to do so on the result of the breathalyser test only. Indeed an opinion formed on the result of the breathalyser test will probably be more accurate than one based on observation. The section does not require that the Garda should form his opinion on observation: the purpose of the breathalyser test is to enable the Garda to form an opinion.

Counsel for the defendant relied on a passage in the judgment of Costello J in Hobbs v Hurley (1980 No. 165SS unrep). That was a Case Stated by a District Justice asking certain questions on s.49 of the Act of 1961 and on the power of a Garda to arrest a driver. In that case the Guard suspected that an offence had been committed under the new s.49: his belief was based on his observation of the accused (bloodshot eyes) and the result of the breathalyser test. Costello J said in the course of his judgment: ‘In reaching a conclusion that an offence under the section had been committed Garda Hobbs was entitled to rely on his own observations alone or on his observations aided by the postive finding on the alkalyser test’. If this means that before arresting an accused under the new section 49, the Guard must have observed facts that led him to the conclusion that the accused was incapable of exercising proper control over the vehicle, I do not agree with it and I think it incorrect. The Guard may, in my opinion, form his opinion on the breathalyser test alone.

The first question asked by Circuit Court Judge O’Malley is whether or not an arrest is lawful where the opinion of the Garda is formed by relying solely or partly upon the apparatus. The answer is ‘Yes’.

The second question is whether or not the subsequent procedures after arrest whereby the defendant having been required to give a sample of blood or urine was ultimately found to be guilty of an offence were vitiated by an unlawful arrest. The answer is that the arrest was not unlawful and the procedures were not vitiated.

In my opinion the Circuit Court Judge should, on the evidence as stated in the Case Stated, convict the defendant and affirm the order of the District Court.

Dougal v. Mahon & Anor

[1988] IEHC 16 (2 December 1988)

Judgment of Mr. Justice Gannon delivered the 2nd day of December 1988.
By Order of Barr J. dated the 2nd May 1988 the applicant obtained leave to apply for an Order of Certiorari by way of Judicial Review in respect of two Orders of conviction for offences under the Road Traffic Acts made on the 15th of April 1988. The Order recites that a statement by the Solicitor for the applicant was filed on the 2nd of May 1988. Further, it declares the grounds for application for Judicial Review to be “the grounds set out in paragraph E of the said statement filed on the 2nd of May 1988.”

The paragraph E mentioned contains ten enumerated subparagraphs the first of which is a statement summarizing the evidence in the District Court. The next following eight paragraphs specify complaints of errors of law alleged to have been made by the District Justice. The tenth and final subparagraph is as follows:

“10. That the applicant stands convicted of an offence under Section 49 (1) and (4a) of the Road Traffic Act 1961 as amended and an offence under Section 13 (3) of the Road Traffic (Amendment) Act 1978 which convictions were imposed contrary to law and without jurisdiction and in breach of the applicant’s legal and constitutional rights and should be quashed.”
The two offences with which the applicant was charged before the District Justice on the 15th of April 1988 and upon which he was convicted were: firstly, that he drove motor car 223 BZM on the 28th December 1987 at Kilminchy, Portlaoise, in a public place while under the influence of an intoxicant such as to be incapable of having proper control of it contrary to Section 49 of the Road Traffic Act 1961 as amended; and, secondly, that on the same date, being a person arrested and brought to the Garda Station and required to provide a specimen of urine for the designated registered medical practitioner, he refused to comply with the request contrary to Section 13 of the Road Traffic (Amendment) Act 1978.

Section 49 (1) of the Road Traffic Act 1961 as amended by Section 10 of the Road Traffic (Amendment) Act 1978 is as follows:

“49(1)(a) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.
(b) In this subsection “intoxicant” includes alcohol and drugs and any combination of drugs or of drugs and alcohol.”
Section 13 (3) of the Road Traffic (Amendment) Act 1978 is as follows:

“(3) A person who, following a requirement under subsection (1) (b),
(a) refuses or fails to comply with such a requirement, or
(b) refuses or fails to comply with a requirement of a designated registered medical practitioner in relation to the taking under this section of a specimen of blood or the provision under this section of a specimen of urine, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding six months or, at the discretion of the court, to a fine not exceeding £500, or to both.”
The subsection 1 (b) therein mentioned namely Section 13 (1) is as follows:

“Where a person arrested under section 49 (6) of the Principal Act or section 12 (3) has been brought to a Garda station, a member of the Garda Siochana may at his discretion do either or both of the following: –
(a) require the person to provide, by exhaling into an apparatus for indicating the concentration of alcohol in breath or blood, a specimen of his breath,
(b) require the person either to permit a designated registered medical practitioner to take from the person a specimen of his blood or, at the option of the person, to provide for the designated registered medical practitioner a specimen of the person’s urine.”
As is evident from that subsection the previous arrest of the applicant under Section 49 (6) of the 1961 Act or under Section 12 (3) of that 1978 Act and (under the latter) his having been brought to the Garda Station are prerequisite to the obligation to comply with the requirement, the non compliance with which is made an offence by Section 13 subsection (3). The terms of subsection (3) of Section 12 are exactly the same as subsection (6) of Section 49 of the 1961 Act which reads as follows:

“Section 49 (6) A member of the Garda Siochana may arrest without warrant a person who in the member’s opinion is committing or has committed an offence under this section.”
Needless to say the offence to which Section 12 of the 1978 Act relates is different from that to which Section 49 of the 1961 Act relates. Section 12 (1) of the 1978 Act is as follows:

“12 (1) Whenever a member of the Garda Siochana is of the opinion that a person in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor, he may require the person to provide, by exhaling into an apparatus for indicating the presence of alcohol in the breath, a specimen of his breath and may indicate the manner in which he is to comply with the requirement.”
The offence under Section 12 is the refusal or failure to comply forthwith with the requirement of a member of the Garda Siochana to provide a specimen of breath when the Garda is of opinion that the person so required being in charge of a mechanically propelled vehicle in a public place has consumed intoxicating liquor. The particular offence under Section 49 relevant to this application is that prescribed by subsection 1 (a) and (b) already quoted.

The circumstances which gave rise to the proceedings before the first named respondent in the District Court are described in the Affidavit of Catherine McMahon the Solicitor for the applicant at paragraphs 3 to 6 inclusive and in the affidavit of Inspector Michael Morris of the Garda Siochana who prosecuted on behalf of the second named respondent in the District Court. From these affidavits, which do not differ on any matter of substance, it appears Garda Michael Cashen noticed the applicant’s car being driven in an erratic manner on the Dublin Road, Kilminchy, Portlaoise and followed it until it came to a halt outside the Killeshin Hotel. The Garda asked the applicant to get out of the car which he did, and the Garda himself then drove the applicant’s car into the safety of the car park of the hotel. He then came back to the applicant who had remained where the car had first come to a halt. The evidence of Garda Cashen in the District Court was that “he then returned to the applicant and having formed the opinion that the applicant had consumed intoxicating liquor required a specimen of his breath.” According to Catherine McMahon’s Afffidavit the Garda “stated that he made a requirement under Section 12 of the Road Traffic (Amendment) Act 1978 for a sample of the applicant’s breath by exhaling into a breathalyser.” Such are the facts deposed to on Affidavit. But the Affidavit of the Solicitor Catherine McMahon in support of the application sets out two questions of fact relative to which no evidence appears from these Affidavits to have been offered to the respondent District Justice. They are:

(a) Whether the place where the request for a breath specimen was made was a public place; and
(b) Whether the applicant was in charge of a mechanically propelled vehicle at the time such request was made. Neither of the Affidavits used on the application to this Court makes reference to the arrest of the applicant, nor to the time or place thereof, nor to the refusal of the applicant to give a sample of urine. It was stated by Counsel for the applicant on this application that “it is an agreed fact that the arrest followed the application of the breathanalyser test”.
The submission of the applicant to the breathanalyser test and the result ascertained is not deposed to as evidence for this Court. The only other averment of fact pertinent to the relief now claimed is at paragraph 7 of the Affidavit of the applicant’s Solicitor in which she swears:

“The first named respondent held that the car-park to the hotel was to his knowledge a public place and refused an application for a direction on the part of the defence on that grounds”.
Before adverting to the arguments advanced in this Court I think it proper to examine the statement of opposition filed on behalf of the respondents in July 1988 subsequent to the service on them of the Order of Barr J. On the matter of the relevant place being held to be a public place the respondents contend there was sufficient evidence to hold that it was such a place and that the applicant was in charge of a vehicle in such a place. While denying any error in law by the first respondent they maintain the remedy therefore should be by way of Case Stated or appeal but not by way of Certiorari as the purported errors, if any, were made within jurisdiction. They further say the convictions were not made contrary to law nor without jurisdiction nor in breach of legal or constitutional rights of the applicant.

No application was made to amend the grounds of relief or to seek additional or other relief following delivery of the statement of grounds of opposition nor during the hearing of this application. Accordingly, I do not think I should treat this application as a means of making a determination on a point of law as if it were an appeal or a Case Stated. Rather I must entertain this application only as a challenge to the manner of exercise by the first named respondent of the jurisdiction invested in him and the function of the office he holds.

It was argued in this Court in support of the application that the District Justice wrongly had recourse to his own personal knowledge of the location described in evidence when the absence of evidence as to whether it was or was not a public place was drawn to his attention. It was submitted that by doing so he substituted his personal knowledge for the missing evidence on a disputed question of fact, and that thus he had not merely erred in law but exceeded his jurisdiction. It was further argued that following the decision of the Supreme Court in D.P.P. v. Joyce 1985 ILRM 206 it had to be proved that the place where the breathanalyser test was made was a public place and in the absence of that proof the subsequent arrest was unlawful and could not be relied upon as a compliance with Section 12 of the 1978 Act so as to sustain a charge of an offence contrary to Section 13 of that Act.

It was further argued that from the time the Garda took the applicant’s car and put it in the car-park the applicant ceased to be a person in charge or in control of a mechanically propelled vehicle in a public place and that consequently the District Justice was wrong in law in hearing or deciding the charges brought against the applicant as being a person in charge or having control of a mechanically propelled vehicle in a public place.

For the respondents it was argued that it is not an excess or abuse of jurisdiction for the District Justice to take judicial knowledge of the publicly known local conditions of the place within the area of his jurisdiction. While maintaining that the ruling of the District Justice is not inconsistent with the Judgments in DPP -v- Joyce it was submitted that an error of law made within jurisdiction is not a ground on which the Court would make an Order of Certiorari. It was admitted however that the arrest when made followed the breathanalyser test, but it was contended for the respondents that the applicant’s manner of driving on the public road as previously seen was sufficient to support the opinion of the Gardai pre requisite to a lawful arrest. Any alleged error in law on the part of the respondent justice being an error within jurisdiction, it was submitted, is not a ground for quashing his Order. Any point of law considered to be erroneously decided, it was submitted, could have been the subject of a Case Stated or an appeal, but the applicant declined to take either such course.

The principal argument advanced on behalf of the applicant was that the respondent District Justice had no jurisdiction to entertain the complaint before him unless the arrest of the applicant by Garda Cashen was lawful. It was submitted that the arrest followed the application of a breathanalyser test and would not have been made but for the result of that test.

It was argued that because the place where the breathanalyser test was made was not a public place and that the applicant was not then in charge of a mechanically propelled vehicle the arrest which followed was unlawful.

The defendant in the DPP -v- Joyce was a person in the precincts of whose home the Gardai in a patrol car found a motorcar the driving of which had been reported to them a short time earlier for investigation. They had not observed the motorcar or the person in charge of it in a public place. While they were examining the car on the defendant’s premises he approached them, and from their observations then they considered he was unfit to drive a motorcar due to drink taken. He admitted to them that he had been driving the car half an hour earlier. He was required by them purportedly pursuant to Section 12 (1) of the Road Traffic Act, 1978 to submit there and then to a breathanalyser test, which he did. As a result of the indications of that test, he was arrested and charged with an offence under Section 49 of the Road Traffic Act, 1961 as amended. Upon conviction in the District Court he appealed and the Judge of the Circuit Court stated a case to the Supreme Court for advice as to whether he could rightly allow the appeal on the grounds that the Gardai did not have power to require the defendant to take a breathanalyser test on his private property and to arrest him on his private property. The advice of the Supreme Court was affirmative.

The judgment of the Court was delivered by Hederman, J., and at page 209 of the Report he is quoted as follows:

“During the hearing it was accepted by counsel on behalf of the Director of Public Prosecutions that a request by a member of the Garda Siochana to require any person to provide a specimen of his breath must be in a public place and that person must be then in charge of a mechanically propelled vehicle in such public place.”
Having distinguished DPP -v- Gilmore 1981 I.R. 102 Mr. Justice Hederman went on as follows:

“In my view, on the findings of the Circuit Court judge,the evidence on which the Gardai relied for the purpose of arresting the accused under s. 49 was improperly obtained, and it tainted with illegality everything that the Gardai did thereafter including arresting the accused.”
The judgment concluded as follows:

“In the circumstances of this particular case I would therefore hold that on the findings of the Circuit Court judge there was not present in the mind of the arresting Gardai any lawful suspicion that Mr. Joyce had committed an offence contrary to s. 49 of the Road Traffic Act prior to taking the breath test. Therefore Mr. Joyce was not obliged to submit to arrest and could not be taken into lawful custody.”
The manifest distinction in wording between Section 12 (1) and Section 15 (1) of the Act in relation to the authority given to a member of the Garda Siochana to apply such a test is not mentioned in the report of the proceedings in the Supreme Court in DPP -v- Joyce. The facts as disclosed in this case heard by the respondent District Justice whose Order is now sought to be quashed appear to be significantly different from those in the DPP -v- Joyce case and in some respects accord with the facts in DPP -v- Gilmore 1981 I.R. 102. As the latter case was not opened to this Court on this hearing I will say no more than that I find it more helpful than the report of DPP -v- Joyce. The applicant here was seen by the Garda to be driving and thus in charge of the mechanically propelled vehicle in a public place and the circumstances were such as might reasonably give rise to an opinion that an offence contrary to Section 49 was being committed. The evidence as presented to the respondent District Justice could reasonably support a finding by him that the applicant was the person in charge of the mechanically propelled vehicle in a public place at the time the Garda formed the opinion that he was incapable of exercising proper control of the vehicle because he had consumed intoxicating liquor and that the requirement of the test was made of the correct person at the correct time and place.

It would seem from the evidence on the Affidavits that the charges against the applicant were defended before the respondent District Justice as if there was an imaginary boundary or borderline somewhere outside the Killeshin Hotel beyond which the applicant could take refuge or find sanctuary in reliance on the decision in DPP -v- Joyce. To be correctly understood that decision must the facts so fully and carefully stated in the judgment. The reference to the procedure adopted by the Gardai in that case as being “tainted with illegality” seems to me to be a short, simple and expressive way of saying that the Court in administering justice will not adopt or approve of any illegal methods deliberately adopted for recourse to its jurisdiction. I do not think the decision in DPP -v- Joyce supports the concept of a borderline of refuge or sanctuary; nor does it hamper the respondent Justice in receiving and evaluating, or rejecting, or determining the relevance of, evidence submitted to him. From the account given in the Affidavit of the applicant’s solicitor of the evidence heard by the respondent District Justice there was evidence upon which he could properly conclude that the Garda had formed the opinion while observing the vehicle being driven in a public place that the driver was then incapable of having proper control of it. The precise place where the applicant and the Garda were when the requirement of the breathanalyser test was made is not stated in either Affidavit. As presented in this Court such place appears to have been where the applicant was standing after he got out of his car before it was driven by Garda Cashen into the hotel car-park.

The time when the requirement was made, although at the same place, was after the car had been removed from the applicant. The time and place of the arrest of the applicant, the alleged unlawfulness of which is relied upon as vitiating the proceedings in the District Court, is not given in evidence in this Court. There is nothing in the evidence to indicate whether the applicant expressly or impliedly adopted the removal of his car by the Garda. Whether these matters were in fact proved in the District Court I do not know. Although I am informed that the fact was that the breathanalyser test preceded the arrest it does not appear whether such evidence was given to the District Justice.

Upon such evidence, including the absence of essential evidence to support an argument that the arrest was illegal, the applicant seeks an Order of this Court to review the Orders of the respondent District Justice on the grounds of abuse in the exercise of his jurisdiction. While there is no presumption that any Judge will not err in law there is ample procedure otherwise than by Certiorari to avoid such an error by Case Stated, or to rectify such error by appeal. But where a determination made without apparent error in terms or form in the valid exercise of the judicial function is challenged by Certiorari there is an onus on the applicant to demonstrate by credible evidence and cogent argument that the Order or determination should not be allowed to stand by reason of some alleged misconduct or abuse of the jurisdiction purportedly exercised. A refusal or failure to adopt or apply prescribed or fair procedure could conceivably amount to misconduct and an injustice which would warrant an Order of Certiorari. But in my view an applicant who undertakes this course with the benefit of legal advice or assistance in lieu of appeal or Case Stated must be prepared to accept the consequences of the decision the subject of challenge if no misconduct or injustice is.established. I express this view as indicating how I would exercise the discretion in this Court of whether or not to Order Certiorari in respect of a determination which is not bad on its face and appears to have been made within jurisdiction.

No where in the evidence presented in this Court is there anything indicating any misconduct in any sense of that word on the part of the respondent District Justice in the proceedings before him. In regard to the use made by him of his personal knowledge of the roads and buildings mentioned in the course of the evidence I am of opinion that in relation to such matters, obviously of notorious public knowledge, he was entitled to and properly could take account of his own knowledge of the place, unless some factor became apparent which could give rise to a doubt about the reliability of his knowledge. The definition of “public place” in the Road Traffic Act, 1961 was not discussed in argument. It seems to me that on the evidence before the respondent District Justice as indicated in the Affidavits there is nothing to give rise to a doubt about the reliability of the knowledge of the District Justice as to the applicability of that definition to the place.

On this application this Court cannot embark on a rehearing on evidence on Affidavit of the issues tried by the respondent District Justice on oral evidence in his Court. Upon the evidence presented to this-Court the onus undertaken of showing that the Orders sought to be quashed are bad, or made without jurisdiction, or if allowed to stand would amount to an injustice, has not been discharged. The intervention of this Court upon Judicial Review to quash an Order of a Court of limited jurisdiction on the grounds of abuse of or of excess of jurisdiction should not be sought lightly nor without careful and fair presentation of all material information. As already indicated there is before this Court, and may have been before the respondent District Justice, an inadequacy of evidence of fact to determine the applicability of the law as explained by the Supreme Court in DPP -v- Gilmore 1981 I.L.R.M. 102 and in DPP -v- Joyce 1985 I.L.R.M. 206. I am not satisfied on the facts deposed to nor on the arguments presented that there has been any breach of any constitutional or legal rights of the applicant. Accordingly, I refuse this application for Certiorari of the specified District Court Orders.

People (DPP) v O’Donoghue

[2006] I.E.C.C.A. 134

Judgment of the Court delivered on the 18th day of October 2006 by Macken J.
____________________________________________________________________

This application is made pursuant to s.2 of the Criminal Justice Act 1993 (“the Act of 1993”) by the Director of Public Prosecutions (“the Applicant”). The Respondent Wayne O’Donoghue was tried before a jury at the Central Criminal Court on the 14th December 2005 on a charge that he had murdered a young boy, Robert Holohan, contrary to common law and to s.4 of the Criminal Justice Act 1964. He was acquitted by the jury of murder but found guilty of manslaughter after a trial which lasted from the 29th November to the 14th December 2005. As sometimes occurs, sentence was thereafter adjourned, to the 24th January 2006. The learned sentencing Judge, after hearing further evidence on behalf of the prosecution and from the mother of the young boy, inter alia, as to the effects of the offence and his death on her family, sentenced the Respondent to four years imprisonment backdated in the usual way to the date upon which he was first imprisoned.
The Applicant now applies to this court pursuant to the provisions of the Act of 1993, seeking a review of the sentence imposed by the learned sentencing Judge.
The Applicant contends that the sentence actually imposed by the learned sentencing judge was unduly lenient. Detailed and helpful submission were filed on behalf of the Applicant and the Respondent, and these, as well as the oral submissions made on behalf of the parties at the hearing of the application on the 27th July 2006, have been considered in full by this court.
The facility to seek a review of sentence on grounds of undue leniency arises by virtue of s.2 of the Act of 1993 which reads as follows:
“(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.
(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.”
The jurisdiction of this court upon the hearing of such an application is also found in Section 2, subsection (3) of which provides as follows:
“(3) On such an application, the Court may either—
( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
( b) refuse the application.”

The Ambit of the Court’s Jurisdiction
Before considering the sentence itself and the legal principles to be applied for the purposes of s.2 of the Act of 1993, it is appropriate first to say something about the ambit of this court’s jurisdiction on an application of this type. That jurisdiction is more limited than, and different in nature to, a full appeal against sentence and even more so by comparison with an appeal de novo, if such were available before this court which is not the case. This court is not engaged, nor is it permitted to be engaged, in an exercise of adjudicating on the application by reference to the sentence it would itself have imposed had it been the sentencing court. It is only if this court determines that the sentence imposed was unduly lenient that upon setting it aside, it is itself entitled to impose an alternative sentence. Until then, the exercise which this court embarks upon is truly one of review, namely to determine whether, in structuring and imposing the sentence which he did in fact, impose, the learned sentencing Judge misdirected himself in law by committing an error in principle, leading to a sentence which was, in all the circumstances, not merely lenient, but unduly lenient.
The Applicable Legal Principles
The principles to be applied in a case which invokes the provisions of s.2 of the Act of 1993 were established in the very first case in which that provision was considered, DPP v Byrne [1995] 1 ILRM 279 and in which the relevant part of the judgment of this court, delivered by O’Flaherty, J. states:
“In the first place, since the Director of Public Prosecutions brings the appeal, the onus of proof clearly rests on him to show that the sentence called into question was ‘unduly lenient’.
Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case … he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person concerned, what Flood, J. has termed the ‘constitutional principle of proportionality’ (see People (D.P.P.) v. W.C. [1994] 1 ILRM 321, his decision should not be disturbed..
Thirdly, it is in the view of the court unlikely to be of help to ask whether, had a more severe sentence been imposed, it would have been upheld on appeal as being right in principle. And that is because, as submitted by Mr. Grogan, S.C., the test to be applied under the section is not the converse of the inquiry which is made by an appellate court where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was “unduly lenient”.
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the reviewing court”.
The Applicant relies on that case and draws the court’s attention to the more recent judgment in The People (DPP) v McCormack [2000] 4 IR 356 in which the foregoing “substantial departure from what would be regarded as the appropriate sentence” was considered by this court, which stated:
“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle.”
The Applicant has also very properly drawn this court’s attention to what is called “the proper approach to sentence”, particularly on the hearing of an application pursuant to s.2 of the Act of 1993, invoking the following extract from the latter judgment:
“Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but on the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon these two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.”
The court notes that the written submissions filed on behalf of the Respondent also invoke the decision in DPP v Byrne supra, as well as other judgments relied on by the Applicant. The applicable principles are therefore not seriously in dispute before this court. The Applicant and the Respondent part company however on the application of those principles to the sentence actually imposed in the present case.
The Sentence Judgment
To understand the arguments made by the Applicant and the response of the Respondent, it is first appropriate, by way of summary, to set out what the learned sentencing Judge decided, namely:
(a) He was dealing with manslaughter verdict and not with a cover-up. Because of the range of possible penalties which can apply, from a suspended sentence to one of life imprisonment, it had been considered that manslaughter is one of the most elastic of crimes, and his function was to select a punishment between these extremes and to explain his reasons for doing so.
(b) The sentence would be constructed and imposed on the evidence actually presented in open court and by reference to no other considerations.
(c) Evidence had been given by pathologists on behalf of each side, on behalf of the Applicant by the State Pathologist, Dr. Marie Cassidy, and on behalf of the Respondent by the Chief Pathologist of Northern Ireland, Professor Crane. The experts were in “broad agreement with some difference in emphasis”. Their evidence established that the injuries on the body of Robert Holohan were “light”. Of particular significance was that Professor Crane stated the injuries were consistent with those which resulted from a restraining technique formerly employed by several police forces in the United States but since abandoned. This evidence suggested that the injuries were “at the horseplay end of the scale”.
(d) After the death of the young boy, the cover up executed by the Respondent was “appalling”; and there could be no excusing what had occurred in that regard and no mitigation of what was done. The cover up had caused incredible grief and distress to the Holohan family. It could not be dismissed as being due to panic by virtue of the calculation and deliberation involved. The accused was not being punished expressly in respect of the cover up, but it would be considered as part of the impact on the victims which would be taken into account. The cover up could have formed the basis of substantive charges but such charges had not been laid.
(e) On the evidence, after the funeral of the young boy, matters changed in that the accused confessed his role in the events to his father. Prior to his formal arrest the Respondent had dictated a very lengthy seven hour confession during which he refused breaks and continued until completion. From the point when the Respondent first confessed to his father “genuine remorse was in play”.
(f) The sentencing judge was not a free agent in sentencing but was subject always to the directions of The Court of Criminal Appeal, which had given guidance as to matters which could not form part of the sentencing, such as retaliation and revenge, and other matters arising from the jurisprudence of that court.
(g) He took into account the effect of the crime on the family of the young boy; the fact that the Respondent was of previous good character; the fact that he did not expect the Respondent to re-offend particularly having regard to the evidence he heard during the course of the trial; and the Respondent had “at all times he pleaded guilty to what he was ultimately convicted of”.
The Applicant’s Case
Essentially the Applicant submits that the imposition of a four year sentence constituted a substantial departure from what would be regarded as an appropriate sentence within the meaning of the above jurisprudence, and that this came about by reason of fundamental errors on the part of the learned sentencing judge. Because of the nature of the offence of manslaughter, and the range of circumstances in which charges in respect of such an offence occur, special care must be taken to examine the particular facts of each particular case. Viewed in that way, the Applicant argues that this case can be properly seen as one with a number of unusual, disquieting features, properly considered as aggravating factors, which thereby warrant the imposition of a significant custodial sentence, but which, wrongly, were not so regarded by the learned sentencing judge.
The errors in principle on the part of the sentencing judge are canvassed in the following terms:
(1) a failure to have regard to the disparity in age;
(2) a failure to have regard to the evidence concerning the injuries which the young boy suffered;
(3) a failure to have sufficient regard to the efforts of the respondent to dispose of and conceal the body of the young boy, or to consider the cover up as a substantial aggravating factor in relation to the offence of which the respondent was accused;
(4) giving undue weight to the respondent’s plea of guilty and to his cooperation with the Garda Siochana, by failing to have regard to:
(a) the evidence of the cover up referred to above;
(b) the evidence that Gardaí had identified fingerprints and had a profile of the offender (and were close to making an arrest) before the respondent confessed;
(c) the evidence that the respondent had completed a garda questionnaire and had made statements denying any involvement in the offence;
(d) the evidence that the respondent had closely followed the progress of the investigation and had participated in the searches for the body of the young boy
(e) the evidence that the respondent had tried to divert the focus of the Garda investigation on to others;
(5) the misdirection of himself as to the jurisprudence of the Court of Criminal Appeal in considering that he was, by virtue of that jurisprudence, obliged to impose a sentence as lenient as that actually imposed.
The Applicant, in the several introductory pages of his written submissions, sets out what, in essence, he contended for in the course of opening the case for the Applicant at the commencement of the trial for murder. Briefly it sets out what the prosecution intended to adduce in evidence in the murder trial, and for the most part what they did in fact adduce in evidence, with commentary on the activities of the Respondent on the day of the death and on his movements subsequently, in particular his involvement in the search for the young boy, and his demeanour during that time, as well as conclusions which the Applicant seeks to have drawn from such evidence, demeanour and activities.
While this outline is helpful to the Court as a background guide to the evidence tendered and to what the prosecution in the murder trial contended for, whether in opening its case or as to the conclusions it sought, and seeks still, to draw from the evidence, including evidence as to the demeanour of the Respondent, it does not appear to this court that the Applicant can, at this time, seek to use that material in the manner presented, with commentary on what it should mean, or as to its significance, as supportive of his Application that the sentence was unduly lenient, since the jury rejected some at least of the evidence and some at least of the conclusions sought to be drawn by the prosecution from this very same evidence. On the other hand, the Applicant points to material or evidence adduced, some of which is referred to in the above general outline of the case, which he argues relate specifically to the question of sentence, and not properly taken into account by the learned sentencing judge, thereby leading to errors in principle in the sentencing process or the in term actually imposed. They form the basis for the above grounds. As to these the court finds as follows:
Failure to Have Regard to the Disparity in Age
It is true that the learned sentencing judge did not refer to disparity in age, which is sometimes appropriate to consider, especially but not exclusively, in cases of sexual assault of a young or very young person by an adult or other person in a particular role of trust vis a vis the person assaulted. On the forensic aspect of the trial, from the transcript it not would appear that any evidence was sought from the State Pathologist, Doctor Cassidy by the Applicant as to the significance, if any, of an age disparity, as such, between the Respondent and the young boy. While this court did not have the actual reports of the forensic experts, large tracks of her report or summaries of parts of her report as well as her conclusions, were quite correctly read into the transcript by Doctor Cassidy. It may be that disparity in age was mentioned in her actual report, because in his evidence in chief on behalf of the Respondent, Professor Crane, when asked by senior counsel for the Respondent, Mr. O’Carroll, about its significance, said “… in general terms, the younger the victim, the easier it is for them to bruise, so they bruise from relatively minor injuries, from minor knocks and falls. Quite clearly if you have an adult who is applying pressure on to a child’s chest in some form, you might expect to have some significant injuries and perhaps damage to the ribcage.” He did not however, consider that the injuries to the young boy’s chest were significant in the context of his death. Dr. Cassidy’s evidence was that down either side of the chest there were small bruises in the fat overlying the ribs but on the left side there were two small bruises overlying the fourth and six ribs. From a forensic point of therefore, an age disparity, per se, would not appear to have played a material role in the events leading to the young boy’s death.
In the course of the oral submissions before this court, it was contended by Mr. Murphy, senior counsel for the Applicant, that the significance of the age disparity lay in the fact that a young man of the age of the Respondent should have been more restrained in his approach to a young boy of 11, but was not, and that factor should have been taken into account by the sentencing judge. However, the evidence in the trial tended to suggest that while there was a disparity in age, nevertheless the Respondent and the young boy were in fact good friends, played together, and frequently were in and out of each others houses. The relevant portion of the Respondent’s statement, not challenged by contrary evidence, was to the effect that he considered the young boy as a brother. So although there was an actual disparity in age between them, they appear to have acted together more as friends or as younger/older brothers.
It is also contended that the learned trial judge failed to have regard to the disparity in size and strength between the accused and the young boy. The issue of difference in size as a factor in the death of the young boy, as concerns the forensic evidence in the trial, also does not appear to have loomed large, and did so mainly in the context of the cross-examination of Professor Crane. It was suggested to him by counsel on behalf of the Applicant, in the context of the murder charge, that the manoeuvre of applying direct finger pressure to the neck was more dangerous when there was such a disparity in size. However, while he accepted the manoeuvre was dangerous, Professor Crane said it was not more dangerous in the case of such a disparity, as it depended at all times on the actual amount of pressure applied. It is noted that, as regards the actual amount of pressure applied, Dr. Cassidy said that this had been sufficient to cause bruising, but not sufficient to fracture the larynx, and she could not say for how long such pressure had been applied.
It would be difficult to see how, in the absence of evidence that a disparity in age, size or strength had a material impact of a forensic nature in the commission of the crime for which the Respondent was found guilty, and there was no such clear undisputed evidence, the learned sentencing judge could be criticised for failing to take such disparity into account for the purpose of constructing the sentence.
On this first ground, this court is not persuaded that the Applicant has satisfied the test that there was any error in principle on the part of the learned sentencing judge.
Failure to Consider Sufficiently the Evidence as to Injuries
Apart from the issue of the cover up undertaken on the part of the Respondent after the death of the young boy, in reality this is the real gravamen of the Applicant’s case. It is based on a threefold argument, namely, that the sentencing judge failed to have sufficient regard (a) to the fact that not all the injuries were consistent with a restraining technique employed by police forces in the United States, as the judge found was the evidence of Professor Crane; (b) to the evidence concerning the pattern of bruising consistent with forcefully gripping the neck of the young boy in a manner consistent with strangulation; and (c) to the evidence of the pattern of bruising and injury not consistent with injuries “at the horseplay end of the scale”. The Applicant contends that the latter remark of the learned sentencing judge underestimated the gravity of the offence. Counsel for the Applicant and refers to several extracts from the transcript in support of his submission that the injuries were consistent, on the contrary, with a violent assault not fully accounted for by the Respondent’s explanation.
On this issue the Respondent contends that the Applicant is in reality seeking to revisit the evidence tendered and to reinterpret it so as to suggest that the account of the accident as described by the Respondent in his statement was not true, thereby wrongly seeking to revisit the conclusions to be drawn from the evidence or its significance, when, on the contrary, the jury had, on an objective basis, clearly accepted the Respondent’s version of what occurred. The Respondent submits that this exercise cannot be carried out in the context of an application to review sentence on the grounds of alleged undue leniency. Further, the Respondent argues that in applying the jurisprudence to this particular aspect of the application, those found in the case of The People (DPP) v Ahern (unreported, Court of Criminal, 5 July 2004) apply. It is submitted that when considering the various cases in which the courts have applied sentences in manslaughter cases, and, contrary to the contention of the Applicant that the assault in this case falls to be considered as being in the highest range, it properly lies at the lower end of the scale.
As to this ground, the submissions of the Applicant must be considered in light of the background to this matter. The fact that a charge of manslaughter could have been laid in respect of the events in question but was not; the forensic or pathology evidence presented in the trial; the fact that the jury acquitted the Respondent of the charge of murder and convicted him of manslaughter; these may all be relevant factors. It must be borne in mind in particular, that the entire of the evidence tendered by the prosecution on this issue, as well as the content and the thrust of counsel’s cross-examination of the forensic expert tendered on behalf of the Respondent, was with a view to establishing that the Respondent was guilty of murder, and not of manslaughter. The jury, however, upon a consideration of that evidence, rejected the contention of the prosecution that the Respondent was guilty of murder. In such a context, the approach by the Applicant to the question of sentence via the mechanism of challenging the conclusions drawn by the learned sentencing judge from the evidence, for sentencing purposes, requires to be dealt with with great care. The Applicant is not entitled to challenge the finding of the jury acquitting the Respondent of murder, or their finding that the events instead constituted manslaughter, and the Applicant’s counsel very fairly accepts this is the case. Whereas a sentencing Judge must have regard to the evidence as disclosed, inter alia, by the forensic experts, it is essential that, in doing so for the purposes of sentence, the judge does not draw conclusions from the evidence which might undermine or question the acquittal by the jury on the charge brought, in this case one of murder, when that acquittal was based on the very same evidence.
It also cannot be gainsaid that a sentencing judge, in considering the evidence for the purposes of sentencing, is not obliged to trawl through that evidence to ascertain whether, as between two very learned experts – in this case in the field of pathology and forensics – the highly sophisticated and nuanced differences between one and the other, where they arose, on the exact minutiae of the manoeuvres likely or possibly undertaken, or as to the consequences of those differences, one expert as opposed to another is unassailable. Their evidence and its significance have already been considered and applied by the jury in their determination of the facts at trial. The sentencing judge must of course be able to draw conclusions on the evidence which are capable of being supported, and he must consider all the evidence “in the round” so to speak. In the course of the hearing the Applicant’s counsel agreed that in assessing the conclusions of the sentencing judge on the evidence, he, the Applicant, must establish that there has been a manifest error on the part of the sentencing judge in his analysis of the evidence or in the conclusions drawn from it. Although this court agrees with the contention of the Respondent that it is inappropriate, having regard to the finding of the jury on the charge of murder, to revisit the case made by the Applicant in support of that charge, nevertheless it is important to ensure that all the arguments propounded on the part of the Applicant as to sentence are considered by this court.
It is appropriate to deal with all the arguments adduced under this ground together and set out first what was agreed by the experts, who overall were ad idem on some very important general matters. Firstly that the manner in which the body reacts to the events which occurred is extremely complex. Secondly, that in case of death due to neck compression, matters are highly complicated because one is not considering the straightforward effects of lack of oxygen. Thirdly, there is a period of time which elapses between the formation of petechial haemorrhages and the start of the process of hypoxia, but it is very difficult to say precisely how long that period is. Fourthly, although it is well known that persons can survive being deprived of oxygen for a reasonable period of time, even four or five minutes, unconsciousness in the case of neck compression occurs rapidly and in a shorter time than would be expected. Finally, even when pressure is removed from the neck, and/or the vagal system is no longer being stimulated – itself a complex matter – it is not the case that the person will necessarily recover. Indeed, on Doctor Cassidy’s evidence, the opposite is the more likely outcome, where a spontaneous return of the heart to normal does not occur, and the person cannot be resuscitated.
Both experts also agreed on more specific matters: that the manoeuvre described by the Respondent of catching the young boy in an armlock around the neck was consistent with the description given by the Respondent in his statement, that the injuries were “minor and subtle”, that the cause of the death of the young boy was “asphyxia due to neck compression”, the words used by Dr. Cassidy and accepted as being correct by Professor Crane. He said: “I broadly agree with the findings of Dr. Cassidy. It’s my view that this was an asphyxial type of death, related to some sort of compression or force applied to the neck”. Both experts agreed that the actions of the Respondent, including grasping of the neck also likely resulted in a lack of oxygen to the brain, causing diffuse hypoxic damage, a condition associated with or resulting from some at least of manoeuvres adopted by the Respondent, which can cause a lack of oxygen to the brain and a knock on effect to the heart.
However there were additional indicia found, in particular the petechial signs, which are small pinhead sized haemorrhages arising when tiny blood vessels come under pressure for some reason, as well as bruising or a pattern of bruising, on which the experts were not in agreement, either as to their causes or more importantly their consequences. Briefly, the experts disagreed on the following matters. While both experts agreed that the bruising on the neck was probably caused by finger pressure arising when the neck was grasped, they were not in agreement as to whether such pressure arose prior to the effects of the armlock on the young boy occurring or later, or as to whether they caused, or significantly or in any way, contributed to the death.
More marked differences arose between the experts on the issue of the cause and significance of bruising or a pattern of bruising found in the neck muscles, and also, although probably to a lesser extent, in the shoulder and buttock areas. As to the bruising on the neck muscles this was agreed to have been caused by the neck being grasped forcibly. Dr. Cassidy considered these bruises to be definite and not minor and more commonly seen in the case of strangulation where the neck is gripped forcibly, whereas Professor Crane considered that muscles, particularly those under the skin of a child, bruise easily, and therefore said one could not draw any clear conclusions from their existence.
Although both experts agreed that interference or stimulation of the carotid artery and/or of the vagal system can lead to rapid loss of consciousness on the part of the person caught in the grip of the attacking person, Dr. Cassidy did not consider that stimulation of the vagal system alone would explain all the damage she found at post mortem, having regard to the bruising pattern found. Professor Crane stated that the type of armlock manoeuvre used might well cause the young boy to be in the process of dying even before any grasping of the neck, and the latter therefore might not be of any material consequence.
Finally, Dr. Cassidy presented possible reasons for the appearance of bruising to the shoulder and buttock areas or muscles. Professor Crane considered that it would be difficult to reach any firm conclusions as to whether these were material factors in the events leading to or associated with the death, given the wide number of possible causes for them. It had been disclosed in the course of evidence that the Respondent indicated he had pushed the young boy up against a motor vehicle while holding him in an armlock. There was some disagreement between the experts as to whether this would have been the likely cause of this latter bruising. It is fair to say that Dr. Cassidy, in cross-examination, clarified that her opinion on these latter bruises was presented on the basis that it would assist in an overall assessment of the likely events leading to death of the young boy or as part of the surrounding factors to be taken into account, but that her opinion was not to be viewed as indicative of only one possible explanation for such bruising, particularly in a young active child.
A consideration of the foregoing extracts from or reference to the evidence of the experts, even if not exhaustive of every issue arising, makes it clear how much in agreement the experts were, and where there were differences between them, how nuanced those differences were.
Taking the Applicant’s case at its highest, it is contended firstly that the actions of the Respondent were such that they constituted “a violent assault” on the young boy. In the course of her evidence in chief, Dr. Cassidy described the injuries in her report, as being “minor and subtle”, a description with which Dr. Crane was in agreement. She stated variously in the course of her examination in chief that “Post mortem examination showed no evidence of significant trauma to this young boy”, and further, “… the marks to this young boy were very subtle. There wasn’t evidence of any severe injuries to this young child … ” and also “Although there was no evidence of any significant blunt force trauma to the body to suggest he had been the victim of a violent assault, there was bruises …”. She did state in
cross-examination “The injuries to the neck are an indication that there has been forceful gripping of the neck but there’s no, as I say, no injury to the larynx. But there were definite asphyxial signs and I don’t agree that these were minor, they were very definite. But I do agree that some form of vagal inhibition/cardiac slowing would have played a factor in the mechanism of the death.” In his evidence in chief, Professor Crane accepted that the deep bruising to the neck area was caused by the grasping of the neck, but “as to how much force was applied that was very difficult to say.” When pressed by counsel to agree that deep bruising is something which reflects a greater degree of force, Professor Crane demurred and offered a more nuanced response. When it was put to him that there was the application of “serious force” he agreed only that it was “sufficient force to cause bruising”. It was suggested to him, on more than one occasion, that the young boy had been “subjected to a violent assault”, but he reiterated that what he had said was that there was no evidence he had been assaulted and when counsel for the Applicant pressed Professor Crane to accept that his views represented “the application of violent force” to the young boy, he merely replied “We know that those actions, as doctors, are dangerous.”
As to the second basis for this ground, namely that the learned sentencing judge undervalued the gravity of the offence, because the extent or pattern of the injuries found was not consistent with the Respondent’s explanation, the evidence of the experts on this is adequately set out above. On the third basis for this ground, although the first made, namely the alleged wrongful acceptance by the learned sentencing judge of the evidence from Professor Crane that the armlock manoeuvre had been in use by Police Forces in the United States, Professor Crane was cross-examined by counsel for the Applicant as to this now abandoned practice, and was challenged on the application of fingers to the throat and on the issue of strangulation of a suspect by police forces. But the main point of his relevant evidence however was that, while both the armlock manoeuvre itself as well as the application of fingers to the throat were actually dangerous, they were not appreciated by the public as being so. This evidence was not challenged and no contrary evidence was adduced in that regard. As to this manoeuvre not accounting for all the injuries, the evidence on that is also sufficiently set out above.
This court finds that unless there is an obvious and material error in the conclusions drawn by a sentencing judge from the evidence, that is to say, a “manifest error”, a sentencing judge, in carrying out the exercise which he does in the course of sentencing, is not to be criticised for choosing, as in the present case, some or other of the evidence of one expert over that of another as being an appropriate basis upon which proceed, particularly where, as here, the experts were in agreement on the vast majority of the forensic issues, and where they disagreed, the differences between them were ones of emphasis. In preferring the evidence of Professor Crane, on the pattern or extent of injuries found, or more pertinently, on the consequences flowing from the same, to that of Dr. Cassidy, the learned trial judge did not stray beyond what he was entitled to do, namely to prefer the evidence of one expert over that of another.
This court also finds that the conclusions of the learned sentencing judge in his judgment were clearly based on the evidence before the court. His finding that there was broad agreement between the two experts but a difference of emphasis between them was correct. Whereas his categorisation of those actions as being “at the horseplay end of things”, might not be the most elegant phrase used in the course of his judgment, it describes in very clear terms indeed what he meant, namely that the actions arose out of the catching of the young boy by the Respondent in some type of armlock, even with the additional forcible grasping of the neck, rather than a deliberate violent or prolonged assault on the young boy. His conclusions from the evidence that the actions of the Respondent could be set at the “horseplay end of things” is also not inconsistent with the description of the same action in the evidence as being “dangerous”. Nor is the description used by the learned sentencing judge at odds with the evidence tendered. As to whether or not the actions constituted a “violent assault”, as contended for by the Applicant, the forensic evidence did not lend itself to that conclusion. The difficulty arises from the eliding or the equating by the Applicant of the description “dangerous” with “a violent assault”, or “a prolonged deliberate assault”, when, on the evidence, they are not necessarily the same.
Having regard to the foregoing the learned sentencing judge did not commit any error in principle in describing the actions as he did. Nor did he fail to consider sufficiently the evidence as to the injuries, nor their seriousness.
The application, so far as it is based on this ground, does not satisfy the applicable test as to a review of sentence.
Failure to have Regard to the Efforts at Covering up and Concealing the Body
The third ground is a relatively straightforward one. It asserts in essence that an aggravating factor which the learned sentencing judge ought to have taken into account, but did not, was the cover up engaged in by the Respondent. The cover up was considered by the sentencing judge as being wholly unacceptable, put at its mildest. In the judgment on sentence, it was stated that this cover up would be taken into account as a matter which had a significant adverse effect on the family of the young boy. It was, on the face of the judgment therefore, taken into account.
The issue for consideration is in reality whether it should be implied that this factor was nevertheless not adequately taken into consideration, having regard to the actual sentence imposed. In that regard the Applicant relies in particular on the judgment in the case of The People (DPP) v Bambrick [1996] 1 IR 265, in arguing that there are significant similarities with the present case. However, in the Bambrick case, the plea of guilty was accepted by the prosecution and the court was concerned only with the question of sentence. Further, that judgment was concerned exclusively with two difficult legal questions, namely, preventive detention, and the question whether the appropriate sentence may include a life sentence, in the context of a plea of guilty to a lesser charge than one carrying a mandatory life sentence.
In the course of the judgment, the learned sentencing judge stated:
“Apart altogether from any question of preventive detention,
can I sentence the accused to life imprisonment for these horrific homicides.?”
It is this extract the Applicant relies on in support of the argument that the subsequent cover up in that case was also taken into account as an aggravating factor in sentencing. This court is not persuaded that this is so. Firstly, the question was posed in the context of the second of the above question and not as an independent issue. Secondly, it refers only to the “horrific homicides” and not expressly to the cover up events occurring after the deaths of the two women, which are not referred to at all in the judgment, save in that part which sets out the statement the accused made to the gardaí in which he had confessed to the deaths. Thirdly, the events constituting the homicides themselves were properly described as “horrific”. The case of The People (DPP) v Mackey (unreported, Court of Criminal Appeal, 24th November 2004) does not appear to bring matters further, since in that case it was stated that the description of the accused’s demeanour arising in the period after the killing was in fact merely in accord with the description of his demeanour as given by the accused himself. Moreover, the conclusions of the court were couched in terms which dealt with the global position both before and after the crime had taken place, and not separately with the events post the killing.
A consideration of the difficulties which arise for a sentencing judge in dealing with circumstances which may, but have not, led to separate charges being levelled against an accused, has been the subject of judgments in this jurisdiction and in the United Kingdom. It is sufficient for the purposes of this judgment, to refer to the judgment of this Court (McCracken, J.), in the case of The People (DPP) v Gilligan [2004] 3 I.R. 87, in which the English jurisprudence on this issue is fully considered, and in which he stated:
“6 Curiously, there seems to be very little authority in relation to that issue in this country however, the matter was considered by the Court of Appeal in England in the case of Reg. v. Kidd [1998] 1 WLR 604. In that case, the issue was posed as follows at p. 606:-
‘The issue may be expressed as follows: if a defendant is indicted and convicted on a count charging him with criminal conduct of a specified kind on a single specified occasion or on a single occasion within a specified period, and such conduct is said by the prosecution to be representative of other criminal conduct of the same kind on other occasions not the subject of any other count in the indictment, may the court take account of such other conduct so as to increase the sentence it imposes if the defendant does not admit the commission of other offences and does not ask the court to take them into consideration when passing sentence?’
7 This was decisively answered by Lord Bingham of Cornhill at p. 607 in the following terms:-
‘A defendant is not to be convicted of any offence with which he is charged unless and until his guilt is proved. Such guilt may be proved by his own admission or (on indictment) by the verdict of a jury. He may be sentenced only for an offence proved against him (by admission or verdict) or which he has admitted and asked the court to take into consideration when passing sentence: see Reg. v. Anderson (Keith) [1978] A.C. 964. If, as we think, these are basic principles underlying the administration of the criminal law, it is not easy to see how a defendant can lawfully be punished for offences for which he has not been indicted and which he has denied or declined to admit.
It is said that the trial judge, in the light of the jury’s verdict, can form his own judgment of the evidence he has heard on the extent of the offending conduct beyond the incidents specified in individual counts. But this, as it was put in Reg. v. Huchinson [1972] 1 W.L.R. 398 at p. 400 is to ‘deprive the appellant of his right to trial by jury in respect of the other alleged offences’. Unless such other offences are admitted, such deprivation cannot in our view be consistent with principle.’
8 That seems to this court to be a clear and unambiguous statement of principle with which the court entirely agrees. Indeed, counsel on behalf of the respondent does not really challenge it. He does seek to argue, however, that the sentencing court is entitled to have regard to the overall evidence of the activities of an accused in determining the gravity of the individual charges in respect of which he has being convicted. In the present case, he points to the fact that the offences took place over a period of some 28 months, that there was clear evidence that these offences were part of organised crime, and that indeed the applicant was closely involved in the organisation, and that he would appear to have been motivated purely by greed.
9 While this court accepts the reasoning in Reg. v. Kidd [1998] 1 WLR 604, quite clearly a sentencing court cannot act in blinkers. While the sentence must relate to the convictions on the individual counts, and clearly the applicant must not be sentenced in respect of offences with which he was not either charged or convicted and which he has not asked to be taken into account, nevertheless the court in looking at each individual conviction is entitled to, and indeed possibly bound to, take into consideration the facts and circumstances surrounding that conviction. Indeed, if that were not so, and these were treated as isolated incidents occurring at six month intervals, it might well be that the proper course for the court to adopt would be to impose consecutive sentences. The court does, therefore, accept the basic principle behind the argument of counsel for the respondent. However, the court does think it important to emphasise that in many cases there may be a very narrow dividing line between sentencing for offences for which there has been no conviction and taking into account surrounding circumstances, which may include evidence of other offences, in determining the proper sentence for offences of which there has been a conviction. It is important that courts should scrupulously respect this dividing line.”
While the facts and the possible “other” charges in the latter case were quite different to those which might have arose in the present case, the difficulties which a sentencing judge faces in balancing the overall context of the crime against the undesirability of sentencing for matters which could have been the subject of a charge but were not – as must often arise in the case of trials for murder or manslaughter – cannot be overstated. The above considered approach of the Court of Criminal Appeal is the definitive approach proposed, and it has been followed by this court in at least one subsequent decision.
While a sentencing judge may validly take into account appropriate surrounding circumstances, even those of a cover up, nevertheless, if, as the above jurisprudence recommends, a sentencing judge must scrupulously respect the appropriate dividing line, he cannot be criticised for doing so in the present case, especially when, on the face of the judgment he has not been blinkered as to the surrounding facts, and the cover up has in any event been taken into account as part of the impact of the death on the boy’s family.
In the circumstances, the Applicant has not established that the learned sentencing judge committed any error in principle in the manner in which he took account of the cover up, and this ground is therefore not established.
The Allocation of Undue Weight to the Plea of Guilty
Next, it is argued on the part of the Applicant that undue weight was given to the Respondent’s plea of guilty. The basis for this is the claim that the learned sentencing judge failed to have proper regard to several matters, namely:
(a) the evidence concerning concealment the body and his own involvement in the death;
(b) the evidence of the stage in the enquiries of the gardaí who were close to making an arrest prior to the confession made by the Respondent;
(c) the evidence that the Respondent had completed a Garda questionnaire and made statements, in all cases denying his involvement in the death;
(d) related to (a) above, the evidence that the Respondent had closely followed the progress of the investigation and the searches for the remains of the young boy, in which searches he participated.
(e) The evidence that the Respondent tried to divert the focus of the Garda investigation onto others.
These can be considered in two groups. The matters arising under headings (a) (c) (d) and (e) are sufficiently dealt with above under this courts comments on the cover up and on charges which might have been brought but were not. As to the ground set out at (b), namely that the gardaí were on the point of effecting an arrest, this requires further consideration. The Applicant invokes the provisions of Section 29(1) of the Criminal Justice Act 1999 which states:
“In determining which sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a courts, if it considers it appropriate to do so, shall taken into account –
(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and
(b) the circumstances in which this indication was given.”
Apart from anything else, this provision is concerned only with “proceedings”, that is to say, criminal proceedings which have commenced. It refers to the “stage in the proceedings” at which the guilty plea was tendered, which can only be after they are in being. It is generally accepted that a plea in the course of the proceedings is welcome since (a) if given in time, it frees the court to deal with other cases in which a plea may not arise, (b) it frees the prosecution from having to establish all of the necessary proofs in a case, in the sense that the plea of guilty may well be accompanied by sufficient information or admissions as to be of material assistance to a prosecution, and (c) it avoids the necessity for witnesses to have to give evidence, which in certain circumstances may be of particular benefit to them. While the Applicant correctly contends that a plea of guilty may lead to a discretionary reduction in sentence, it is nevertheless the case that such a reduction is generally given in the case of a plea which, as here, was tendered to the court at the earliest stage in the proceedings and which would have had, as its effect, the above consequences.
It is also submitted that the learned sentencing judge failed to have regard to the behaviour of the Respondent before any proceedings commenced, as part also of “the circumstances in which the indication of a plea was given”, within Section 29(1)(b) of the above Act. However, the “indication” in that subsection is a reference to the indication referred to in the earlier subsection, which in turn is limited to “proceedings”, so this argument would not appear to be of assistance to the Applicant.
On a more general basis, the Applicant contends that there were particular reasons why, in the present case, the learned sentencing judge should not have given any reduction in sentence for the plea of guilty to manslaughter tendered. This is because the Applicant claims, to put it in a nutshell, that the Respondent only confessed because he knew he was about to be caught, and that this was the same as or analogous to being caught “red handed”. This, it is said, is because the Gardaí had identified fingerprints of the Respondent on a bag found with the remains of the young boy, and they also had a profile of the offender and were close to making an arrest, prior to the confession.
If the general principle of law were, as contended on behalf of the Applicant, that a sentencing judge must consider the stage which a garda enquiry has reached, and his mental or emotional reaction to that enquiry and also enquire as to the state of knowledge of an accused in the period immediately prior to his confession, and only then, upon an appropriate analysis of each of these, come to a view as to whether an accused pleaded guilty because he was about to be caught in any event, such a principle of law would impose a very heavy burden indeed on any sentencing judge. The exercise would have to be carried out in the case of a plea of guilty accepted by the Applicant before trial, in the case of a plea arising during the course of a trial, or a plea tendered in advance of a trial where the prosecution nevertheless opts to charge an accused with a more serious offence than that to which an accused is willing to plead, as here. In each case and at each appropriate stage, the exercise would have to be undertaken. No jurisprudence has been opened to the court which supports the existence of such a principle of law. On the other hand, it is a relatively simple exercise to ascertain whether a person has been caught “red handed”, and in such circumstances, to exercise the discretion against giving any reduction in sentence to an accused, and there is ample jurisprudence to support the correctness of a refusal to do so in such a case.
Indeed, if it were the case that an accused would be deprived of the benefit attaching to a plea of guilty where it might be found by a sentencing judge that the Gardaí were – even unknown to the accused – about to arrest him, there would be little appetite for tendering a plea at all. In the present case it is accepted by the Applicant that the Respondent did not know, and had no way of knowing, that the Gardaí had found or identified his fingerprints on a plastic bag found with the remains of the young boy. The fact that they indicated they had a profile of the offender, or the Respondent thought they did, may well have been a factor in persuading him finally to confess to what he had done. Even assuming a sentencing court were obliged to take into account possible pressure on an accused to confess to a crime in such circumstances, there was no direct evidence before the court upon which the learned sentencing judge could have concluded, in the present case, that the Respondent’s confession was improperly or cynically tendered only because of such pressure.
Having regard to all of the foregoing, this court is satisfied that the learned sentencing judge did not commit any error in principle, nor did he give undue weight to the plea of guilty to a manslaughter charge on any of the grounds contended for, which plea was indicated at the earliest possible stage in the proceedings, even prior to the date when the Respondent was in fact charged with murder.
The Applicant has not established that an unduly lenient sentence was imposed based on this ground.
The Claim that the Learned Sentencing Judge Misdirected Himself as to the Jurisprudence of the Court of Criminal Appeal
It is contended, finally, that the learned sentencing judge held that the jurisprudence of this court obliged him to impose a sentence lesser than that required. It is argued that the learned sentencing judge’s remarks that this court had in the past decimated manslaughter sentences imposed, inter alia, by him and other judges in the High Court, meant that he thereby imposed an unduly lenient sentence in the present case. It does not follow however from the statement made by the learned sentencing judge that an unduly lenient sentence thereby ensued. It is just as appropriate to consider the words as indicating that the learned sentencing judge was reminding himself to be especially vigilant in constructing the appropriate sentence so that it would not be considered by this court to have been unduly harsh. Moreover, a sentence which avoids being unduly harsh does not thereby become unduly lenient. This is clear from the jurisprudence set out at the commencement of this judgment. In the circumstances there is no evidence upon which this Court could conclude that the comments as to the jurisprudence of this court led the learned sentencing judge to construct a sentence which was, in all the circumstances, unduly lenient.
This ground is also not established by the Applicant.
The Victim Impact Statement
Finally, although not forming part of the rationale for the decision of this court on the application made pursuant to Section 2 of the Act of 1993, it is appropriate to say something about the role of a victim impact statement, which has been referred to in the submissions of the Respondent in this application, and which the Respondent pleads is a matter which could and should be taken into account by this Court in assessing whether or not the sentence handed down was unduly lenient. If this court had found that the sentence actually imposed was unduly lenient, and was therefore itself obliged to impose an appropriate sentence, it would have been both possible, and possibly appropriate, for this court to have had regard to the statements actually made in court and to the adverse publicity flowing therefrom, both of which are invoked on behalf of the Respondent. However, that is not the position, and this court proposes only to make general comments on the role and function of a victim impact statement and the approach which a sentencing judge should adopt in relation to the same, in light of the additional statements made by the mother of the dead boy, by way of addendum to the victim impact statement which she made in this case.
While the legislature has provided that a victim impact statement may be given by the living victim of a variety of crimes, no such legislative provision exists for the family or friends of a victim of an unlawful homicide. Nevertheless, a practice has developed by which a sentencing judge has a discretion to permit a victim impact statement to be made in such circumstances. In the view of this court, that is as it should be for the reasons, firstly, that such a statement can be of assistance to the sentencing judge in determining the appropriate sentence to be imposed, and secondly, because it affords the family or friends of a deceased victim, such as in the present case, an opportunity to express the loss to them arising from the unlawful homicide.
It is the view of this court that in the event a sentencing judge, in his or her discretion, permits such a victim impact statement to be made, such a statement should only permitted on strict conditions. In particular, a copy of the intended victim impact statement should be submitted both to the sentencing judge and to the legal representatives of the accused, it being assumed that it will already have been made available to the prosecution. This must be done in advance of the reading or making of the statement itself in court so that both the sentencing judge and the accused’s legal representatives may have the opportunity of ensuring that it contains nothing untoward. Assuming that the content of the proposed statement meets this requirement, the person who proposes making the statement should be warned by the sentencing judge that if in the course of making the statement in court they should depart in any material way from the content of the statement as submitted, they may be liable to be found to have been in contempt of court. If it be the case that such departure occurs and involves unfounded or scurrilous allegations against an accused, that fact may be considered by the sentencing judge to be a matter to be taken into account in mitigation of the sentence to be imposed.
While great sympathy must undoubtedly exist for the person making the victim impact statement, every effort must also be made to ensure that the statement is not used to undermine the proper role of the prosecution in a trial, nor to seek to place in the public domain unfounded or unproven allegations against a convicted person who is awaiting sentence. It is essential therefore to circumscribe the delivery or making of such victim impact statement. The uncontrolled addition of material perceived by the maker of the statement to exist, or allegedly existing, such as appears to have occurred in the present case outside that presented by the prosecution, which is charged with bringing all appropriate material to the attention of the jury, could lead to an unacceptable interference in the proper prosecution of criminal offences, as well as to very significant damage to a convicted person awaiting sentence.
In the present case this court is wholly satisfied that the learned sentencing judge did not permit the additional material presented at the end of the notified victim impact statement without advance warning to any party to the proceedings, to affect the exercise of his discretion in the construction of an appropriate sentence in respect of the crime, as committed by the Respondent, as required by the jurisprudence cited at the commencement of this judgment.
Having regard to the foregoing findings of the court, the application made on behalf of the Applicant is, pursuant to Section 2(3) of the Act of 1993, refused.

People (DPP) v Colclough

[2010] IECCA 15
Judgment of the Court delivered on the 26th day of February 2010 by Finnegan J.

The applicant was charged with murder contrary to common law, the particulars of the offence being that he did on the 26th day of May 2007 at Waterloo Road in the City of Dublin murder one Séan Nolan. Following a trial lasting six days he was found not guilty of murder but guilty of manslaughter. He was sentenced to ten years imprisonment. He appeals against sentence only.

Séan Nolan was born on the 13th September 1988 and was then eighteen years and eight months of age. On that day there were graduation celebrations at St. Joseph’s CBS School which he attended with his family, friends and classmates. The celebrations continued into the following morning and entailed a visit to some pubs and a night club. On leaving the night club Séan Nolan with two friends walked in the Donnybrook direction looking for a female friend of Mr Nolan whom he knew lived in the Waterloo Road area. They purchased a bottle of wine in a petrol station. At Waterloo Road they met the applicant and two of his friends.

The applicant was also celebrating. On the night of the 25th May he was seventeen years and two months of age. With family and friends he had been celebrating a twenty first birthday. On that day too he had finished his school year. He returned to his family home at Waterloo Road with some friends. In the house at that time were his parents who were in bed, his brother and some friends. Later at about 3 a.m. the applicant with one male and one female friend aged sixteen years and fifteen years respectively went out for a walk and that is when they came across Mr Nolan and his friends.

Mr Nolan and his friends were still looking for the house in the Waterloo Road area and made inquiries of the applicant and his friends. Their conversation was short. The fifteen year old girl described Mr Nolan’s group as having an aggressive demeanour. Mr Nolan’s companions in their evidence accepted that the applicant and his friends were intimidated by the encounter. The applicant and his friends returned to his family home and locked the door behind them. Mr Nolan and his friends remained close to the entrance to the applicant’s home. The fifteen year old girl went out and asked them to leave but they did not. The applicant became agitated, took two knives and ran from the house onto Waterloo Road. He was screaming and shouting and brandished the two knives. Mr Nolan approached the applicant and there was some pushing and shoving and then Mr Nolan struck the applicant. The applicant pushed at Mr Nolan and in so doing stabbed him in two positions. Mr Nolan collapsed. The applicant returned to his house. He then telephoned an ambulance. Shortly afterwards an ambulance and Gardai arrived.

The applicant told the first Garda who arrived on the scene “it was me”. He was immediately cautioned and arrested and on being arrested he said “He hit me. He would not get out of the garden. I am only seventeen.” The applicant following his arrest was co-operative and expressed remorse which was accepted as genuine and spontaneous.

In the course of sentencing the learned trial judge referred to The People (Director of Public Prosecutions) v Kelly [2005] 2 IR 321. In that case the Director of Public Prosecutions handed into court two lists, one of sentences imposed in the Central Criminal Court on pleas to manslaughter and the other of sentences imposed on convictions for manslaughter. The Court of Criminal Appeal dealt with those lists as follows at page 331:-
“Some of the sentences on the list with which we have been provided are suspended, in whole or in part, where they are part suspended, the portion suspended ranges from six months to seven years. There is nothing to indicate whether those portions of the sentence are suspended conditionally or unconditionally. Accordingly for ease of presentation we have considered for example a six year sentence with one year suspended as a five year sentence.
With that qualification, the information with which we have been provided and which extends to fifty cases may be summarised as follows. Sixteen of them were cases of pleas of guilty. Of these three attracted sentences of over ten years. Thirteen cases, therefore, attracted sentences of less than ten years of which nine featured sentences of under five years. Of this group four sentences were wholly suspended.
Of the thirty four cases of convictions for manslaughter, ten attracted sentences in excess of ten years. Twenty four therefore attracted sentences of less than ten years of which fifteen were under five years. Two of these were wholly suspended.
In aggregate, therefore, of the fifty cases there were thirteen sentences in excess of ten years and thirty seven of under ten years. Of this latter group twenty four sentences were of under five years. Of this group, in turn six sentences were wholly suspended.
Of the sentences in excess of ten years in conviction cases, one was of twelve years, three of fourteen years and one of seventeen years. There were in all five cases attracting sentences over ten years of which the present case was one. Of the sixteen cases of pleas to manslaughter three attracted sentences of over ten years, fourteen years being the longest sentence imposed.”

A circumstance which occurred in Director of Public Prosecutions v Kelly relevant here is that in that case the applicant offered to plead guilty to manslaughter which plea was not accepted and he successfully defended the allegation of murder being convicted of manslaughter: the court treated him as having pleaded. That manslaughter also involved use of a knife. In the Central Criminal Court the applicant was sentenced to fourteen years imprisonment: on appeal to the Court of Criminal Appeal the sentence was reduced to eight years imprisonment.

The learned trial judge in sentencing the applicant expressly took into account the applicant’s youth, remorse and lack of previous convictions. He took into account the evidence of Dr O’Connell. The learned trial judge expressly took into account the impact of the death of Mr Nolan on his family.

The evidence of Dr. Paul O’Connell at sentencing was as follows. Dr. O’Connell is a forensic psychiatrist. He gave evidence that the applicant has an extensive psychiatric history dating from 2002 at which time he came into contact with the Lucina Clinic Child and Adolescent Mental Health Services at St. John of God’s. He displayed symptoms of obsessive compulsive disorder including extensive hand washing, fears of contamination, tics and involuntary motor movements. In the period 2003 to 2007 the applicant was treated at the Lucina Clinic with psychological treatment techniques and medication. The medication included Dispiritone an antipsychotic drug and Fluoxetine an antidepressant. He was discharged from the Lucina Clinic in 2007, the year of the offence. Dr. O’Connell interviewed the applicant on the 11th December 2008. He was in D2 Wing in Cloverhill Prison because the authorities regarded him as a vulnerable prisoner. The opinion of Dr. O’Connell is that the applicant suffers from obsessive compulsive disorder and still has symptoms of that condition which is a risk factor for depression. In the records of the Lucina Clinic the applicant is described as a “peacemaker” within his family: that is one who would ordinarily adopt a conciliatory stance when there were family arguments or would otherwise withdraw from confrontation in the family. On a test, the HCR20, which calculates the risk of future violence, the applicant scored as a low risk.

At the end of counsel’s closing speeches the learned trial judge addressed counsel for the applicant as follows.
“Judge Mr Gageby you floated provocation in about a sentence or so, so that is there. I am not clear from your speech that you are still running self-defence as you indicated at an earlier stage that you were.
Mr Gageby I would ask Your Lordship to instruct in self-defence, yes, but obviously I am not asking Your Lordship to do anything more than to do that.
Judge Very good. Jury back, please.”

The learned trial judge then dealt in the course of his charge with provocation and self-defence. At the sentence hearing counsel for the applicant put it to the Garda witness that the only issue in the case was the intention of the accused during the course of the fracas. The learned trial judge interrupted as follows:-
“That is not quite true Mr Gageby. You sought leave to run provocation and you also asked me to charge on the full defence of self-defence. So there were three issues run and it is totally incorrect to say that the issue is narrowed to intent.”

In his submissions counsel for the applicant pointed out to the learned trial judge that both the closing by the prosecution and his closing were on the sole basis of the presence or absence of intent.

At the conclusion of counsel for the applicant’s address on sentencing the learned trial judge said:-

“Three issues were raised in this trial rather than the single issue of intent as suggested by Mr. Gageby. The defence obtained leave to run provocation as a defence and also asked me to charge the jury on the full defence of self- defence which, if successful would have resulted in an outright acquittal. In these circumstances it is difficult to accept that I am only dealing with the plea of guilty as contended for by Mr Gageby. We don’t know on which issue the jury made their finding of manslaughter rather than murder but they were permitted by me during the trial to hear from Dr. O’Connell so they would have material on which to apply the subjective test.”

Grounds of Appeal

The following grounds of appeal were relied upon by the applicant:-
The learned trial judge failed to have any regard to the fact that the applicant was in effect convicted of involuntary manslaughter.

The learned trial judge erred in failing to examine the range of penalties applicable to the offence of manslaughter and determine the location of the applicant’s offence within that range before considering the mitigating factors applicable in the case or implicitly located the offence committed by the applicant within the said range of penalties at a level higher than that which was appropriate prior to considering the mitigating practice applicable.

The sentence of ten years imposed upon the applicant was excessive and/or unduly severe and/or disproportionate.

Further the learned sentencing judge failed to make adequate allowance for the several mitigating factors in the applicant’s case including:
his youth.

the fact that he had no previous convictions.

he was assessed at low risk of re-offending.

his remorse.

his psychiatric history and effort to deal with his difficulties.

his offer of a plea of guilty.
The sentence of ten years, having taken into account all the mitigating circumstances identified by the learned trial judge, is not one which is excessive so as to amount to an error of principle. The statistical information which is derived from Director of Public Prosecutions v Kelly is of some limited assistance in establishing the range of penalties which have been imposed on pleas to or convictions of manslaughter. However it must be borne in mind that the circumstances attending each of the offences and each of the offenders involved in the fifty cases mentioned are not disclosed. Nonetheless it is quite clear from the statistics that a plea of guilty merits consideration in terms of sentence. In the sixteen cases recited in which there was a plea to manslaughter the outcome was as follows:-

Over ten years – three cases.

Five to ten years – four cases.

Less than five years – five cases.

Wholly suspended – four cases.

In the present case the applicant tendered a plea of guilty to manslaughter which was not accepted. The learned trial judge was not prepared to treat the offer of a plea as a plea of guilty. The learned trial judge had regard to the circumstance that on the run of evidence it was necessary for him to charge the jury on provocation and on the full defence of self-defence.

In Director of Public Prosecutions v Mark Greene, unreported, Court of Criminal Appeal, 26th May 2009 the circumstances were not dissimilar to the present case. It concerned a fatal stabbing. The applicant offered to plead guilty to manslaughter but the offer was not accepted and the matter proceeded as a charge of murder. He was convicted of manslaughter. In the course of judgment Hardiman J. said:-

“Bearing in mind all of the factors most significantly in favour of the accused, which are that he offered to plead guilty to manslaughter and is therefore entitled to be treated as having pleaded guilty since he was acquitted of murder…”

Also in Director of Public Prosecutions v Kelly, [2005] 2 IR 321 at 337 the Court of Criminal Appeal treated as having pleaded to manslaughter the applicant who had offered a plea which was rejected by the prosecution.

In the present case it is unclear what if any consideration was given to the applicant in respect of his offer of a plea of guilty to manslaughter. The court considers it an error in principle if no such consideration was given or that such consideration was diluted because, arising out of the hearing, issues arose as to self-defence and provocation which would not have arisen if the offer of a plea was accepted.

This being so this court will grant the applicant leave to appeal and treat the application as the hearing of the appeal and for the sentence imposed by the learned trial judge will substitute a sentence of ten years with the last two years suspended. The court is satisfied that such a sentence appropriately reflects the mitigating factors identified by the learned trial judge together with such mitigation as his offer of a plea of guilty to manslaughter entitles him.

DPP v Foley

[2014] IESC2
Judgment of Ms. Justice Dunne delivered on the 4th day of November 2014
Introduction
1. What could be more disturbing than the idea of a young person setting out to try and kill a child to see what it would be like to kill somebody? That is precisely what happened in this case. The applicant herein when aged eighteen years of age attempted to murder a young girl aged approximately ten years of age. She was a neighbour of the applicant and he lured her to a field near their homes on the pretext of looking for some puppies that he said he had seen earlier on in the field. While they were engaged in the search for the puppies, the applicant took a lace out of his pocket, put it around the girl’s neck and tried to strangle her. She tried to scream and he pushed her down on the grass. The lace was around her neck and she pretended that she was dead. The applicant took the lace off her neck and shortly afterwards, she was able to make her escape and ran home. There, she alerted a babysitter. The applicant was subsequently arrested and then charged. On the third day of his trial for attempted murder, inter alia, the applicant was re-arraigned and pleaded guilty to the charge of attempted murder. A nolle prosequi was entered in respect of three other counts on the indictment.

2. In the course of the sentence hearing evidence was given by Sergeant Tom O’Dwyer who described a number of admissions made by the applicant in the course of his interviews with the Gardaí following his arrest. Amongst other things he said: “I was just trying to inflict pain. I just wanted to see what it was like” and “I got the lace around her neck. When I did this it was my intention to choke her. I wanted to see what it would be like to kill somebody.”

3. Reflecting the undeniable gravity of the offence, the learned trial judge imposed a term of life imprisonment on the applicant.
The Appeal
4. The applicant then applied to the Court of Criminal Appeal for leave to appeal. The two principal grounds of appeal canvassed before the Court of Criminal Appeal were that the imposition of a life sentence necessarily meant that no weight was given to mitigating factors put forward on behalf of the applicant and that the imposition of the life sentence was therefore inappropriate and secondly, that the judgment of the learned trial judge in which the reasons for imposing a life sentence was set out could only lead to the conclusion that the sentence imposed was a sentence of preventative detention. Thus it was argued that on each of these grounds there was an error in principle in the sentence imposed on the applicant. The arguments on behalf of the applicant were rejected by the Court of Criminal Appeal. Subsequently an application was made to the Court of Criminal Appeal for a certificate under s. 29 of the Courts of Justice Act 1924 (as substituted by s. 22 of the Criminal Justice Act 2006) and that application was granted. The Court of Criminal Appeal certified that its decision involved points of law of exceptional public importance namely:

(1) Is it lawful to give an accused person the maximum term of imprisonment for the offence with which he is charged under statute even where there are significant mitigating factors in play such as –

(a) a plea;
(b) a first offence;

(2) Does the sentence imposed constitute a sentence of preventative detention and if so is such a sentence a proper one in Irish law?
5. When the matter came on for hearing before this Court it was quite properly conceded on behalf of the applicant that the answer to the first question as certified by the Court of Criminal Appeal was yes and thus it is not necessary to consider that issue any further.
Preventative detention
6. The seminal decision on the question of preventative detention is The People (Attorney General) v. O’Callaghan [1966] I.R. 501. That was, of course, a case concerned with the entitlement of a person awaiting trial to bail. The argument made in that case was that an individual should be refused bail because of the likelihood that he would commit further offences if admitted to bail. The offences for which the applicant was seeking bail were alleged to have been committed in circumstances where the applicant was already on bail for other offences at the time of the alleged offences for which he subsequently sought bail. It was submitted on behalf of the Attorney General that this was something which should be taken into account by the Court when considering an application for bail. Ó Dálaigh C.J. in that case commented (at page 508):

“The reasoning underlying this submission is, in my opinion, a denial of the whole basis of our system of law. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty and seeks to punish him in respect of offences neither completed nor attempted. I say ‘punish,’ for deprivation of liberty must be considered a punishment unless it can be required to ensure that an accused person will stand his trial when called upon.”
7. In the same case Walsh J. at page 516 of the judgment stated:
“Ground number 4 of the learned Judge, that is to say, the likelihood of the commission of further offences while on bail, is a matter which is in my view quite inadmissible. This is a form of preventative justice which has no place in our legal system and is quite alien to the true purposes of bail. . . .
In this country it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted or that in any circumstances he should be deprived of his liberty upon only the belief that he will commit offences if left at liberty, save in the most extraordinary circumstances carefully spelled out by the Oireachtas and then only to secure the preservation of public peace and order or the public safety and the preservation of the State in a time of national emergency or in some situation akin to that.”

8. The position in respect of bail remained the same until a constitutional amendment in 1996 which enabled bail to be refused in respect of a person charged with a serious offence where it was considered necessary to prevent the commission of further serious offences by that person. (See Article 40.4.7 of the Constitution).
9. The decision in the case of O’Callaghan related to a bail application. The principle identified in that case to the effect that a person cannot be deprived of their liberty on the basis that they might commit other offences, in other words, preventative detention is nevertheless a principle of general application which extends beyond the confines of a bail application and therefore has a relevance to the question of sentencing. That this is so is apparent from a number of decisions of the Supreme Court and the Court of Criminal Appeal. For example in The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306 a decision of the Supreme Court, Denham J. (as she then was) said (at page 318):

“In contemplating the sentences it is appropriate to consider the offences and their nature and their circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the future so as to prevent him committing further offences: he is sentenced solely for the offences before the court.”
Similar statements can be seen in the decision in the case of The People (DPP) v. Carmody [1988] ILRM 370, a decision of the Court of Criminal Appeal, The People (DPP) v. Jackson, Unreported, 26th April, 1993, another decision of the Court of Criminal Appeal and the decision of the Supreme Court in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform [2012] 1 IR 1 in which Murray C.J. at page 29 of his judgment stated:
“The Court reiterates that it is important to take account of the fundamental distinction between the sentence imposed by a court pursuant to s.2 of the Act of 1990 and any subsequent decision by the Minister to grant temporary release pursuant to the Act of 1960. The plaintiffs were quite correct in submitting, as they did in relation to the constitutional issue, that the Court should not look simply at the formal provisions of the law but at the substance and effect of the law in practice concerning the sentence imposed on a convicted person. In this context the plaintiffs attached significant importance to a number of decisions of the European Court of Human Rights which concerned the sentencing regime in England, particularly as applied in the case of life sentences, including mandatory life sentences. The Court will make reference to those cases later in the judgment but for present purposes it is sufficient to state that the relevant sentencing regime in England and Wales at least means that a life sentence comprises of a punitive period (‘the tariff’) and, when the ‘tariff’ or punitive period has expired, a subsequent period of preventative detention. That is not and could not be the position in law in this country as has already been explained in the part of the judgment addressing the constitutional issues. To emphasise the point the Court refers to the decision of Carney J., in The People (Director of Public Prosecutions) v. Bambrick [1996] 1 I.R. 265. In that case the accused was convicted of manslaughter and the trial judge concluded at page 270 that the evidence, including psychiatric evidence, established such a strong and uncontrollable propensity on the part of the accused to commit serious crimes against women in the future that he would have been inclined to sentence the accused ‘to life imprisonment with the possibility of his release after a substantial punitive period had expired when, but only when the Minister’s expert advisers were fully satisfied that he no longer posed a danger or threat to any member of the community and women in particular.”
10. He went on to state at pages 276 to 277:
“. . . ‘I am precluded from approaching the 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 of such 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.”
11. The substantive argument made on behalf of the applicant was to the effect that preventative detention was not constitutionally permissible in this jurisdiction. Counsel on behalf of the DPP accepted that the submissions made on behalf of the applicant to that effect were correct and that preventative detention as part of the sentencing process would be unlawful and unconstitutional. Thus it seems to me that it can be clearly stated having regard to the passages cited from the authorities referred to above that an individual being sentenced must be sentenced for the offence or offences before the Court and not on the basis that the sentence or any part of it is designed to prevent the commission of further offences in the future by that person. All sentences of imprisonment necessarily involve an element of preventative detention in the sense that when an offender is in prison, they are not at liberty to commit other offences and in this way, a sentence of imprisonment offers protection to society from the possible commission of other offences by that individual. However, the sentence imposed should not be longer than is necessary to punish the offender for the offence or offences concerned. The matter is well put in a joint decision of the Australian High Court, R v Veen (No.2) (1988) 164 CLR 465, (Mason CJ, Brennan, Dawson and Toohey Jj, where it was stated at p. 473:
“It is one thing to say that the principle of proportionality precludes the imposition of a sentence beyond what is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a material factor in fixing an appropriate sentence. A distinction in principle is clear between an extension merely by way of preventive detention which is impermissible and an exercise of the sentencing discretion having regard to the protection of society among other factors, which is permissible.”
Thus, preventative detention as an element of sentencing above and beyond what is appropriate to the particular offences or offences having due regard to the personal circumstances of the offender is not permissible.
Is the imposition of a life sentence on the applicant a form of preventative detention?
12. In order to answer this question it is necessary to consider the facts of this case. The applicant pleaded guilty to the attempted murder of a young girl, a neighbour of his. He attempted to strangle her with a lace and admitted that he had an intention to murder. Amongst the comments he made was “I wanted to see what it was like to hurt somebody, to see real pain. It was my intention to kill her”. The Court of Criminal Appeal described the facts of the case as “harrowing, disturbing and . . . frightening in the extreme”. Hardiman J. delivering the judgment of the Court went on to observe:

“Nevertheless, the Court is of the opinion that there are cases whose gravity is at such an extreme that (by a calculus like process as it were), mitigating factors, even strong mitigating factors, are devalued to zero, and this is such a case. The case is at an extreme of depravity. It is an extreme of depravity not found in the experience of any member of the Court.”
He went on to conclude:
“The sentence is not here mandatory but if any circumstance could justify the imposition of a life sentence, this case seems to present it.”
13. It is not necessary in the context of this case to embark on a lengthy discourse as to the principles of sentencing generally. This is a case in which the trial judge imposed a discretionary life sentence on a young man of nineteen years of age who had committed no previous offences and who, albeit on the third day of the trial, pleaded guilty to the offence before the Court. That sentence was one upheld by the Court of Criminal Appeal having regard to the obvious gravity of the case. It is beyond doubt that a case in which a maximum sentence is imposed notwithstanding mitigating factors will be exceptional. Such a situation is, of course, provided for by the provisions of s. 29 of the Criminal Justice Act 1999 in respect of guilty pleas and expressly provides at s. 29(2) as follows:
“To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”
14. Reference was made in the course of submissions to the case of The People (DPP) v. Carmody [1988] ILRM 370 in which the trial judge sentenced two brothers who were habitual criminals. They pleaded guilty to a charge of burglary before the Circuit Criminal Court and the trial judge noted the long list of convictions for similar offences by each of the accused men. They had a similar pattern of sentences in respect of those convictions over the years, generally of three, six or twelve month’s duration. One of the applicants had been sentenced to three years imprisonment in respect of one charge of burglary but the sentence was suspended. The two individuals were described as professional burglars. The trial judge in sentencing them observed as follows:
“They are not amenable in any manner to the ordinary constrictions of the society in which they live and they are preying on innocent people and my primary duty is to protect those people. I don’t think that these men have any remorse other than for being caught. I think they pleaded only because they were caught red-handed with no hope of escaping and thought that it might benefit them to do so and for no other reason.”
He imposed a sentence of six years imprisonment on both. The Court of Criminal Appeal referred to the judgment of Walsh J. in The People v. O’Callaghan [1966] I.R. 501 at page 516 and went on to comment as follows:
“The Court is satisfied that the only justification for the radical departure from the previous measures of imprisonment, mostly at District Court level, was an understandable attempt to procure reform by prevention. Absent the use of appropriate statutory provisions, however, such is not an acceptable basis for the particular sentence.”
In those circumstances the sentences were set aside and a sentence of three years imprisonment was imposed on each of the applicants.
15. Reference was also made in the course of submissions to the decision of the Court of Criminal Appeal in the case of The People (Director of Public Prosecutions) v. Duffy [2009] 2 I.R. 395. That case concerned the jurisdiction of a court to impose a maximum sentence in the case of attempted murder and possession of a firearm with intent to endanger life or cause serious injury. A life sentence was imposed in respect of the charge of attempted murder following a plea of guilty. The accused in that case sought leave to appeal his sentence on the basis that the imposition of the non-mandatory maximum sentence of life imprisonment did not reflect the mitigating factor of a plea of guilty and thus amounted to preventative detention. Reference was made to the provisions of s. 29(2) of the Criminal Justice Act 1999 which is set out above. That case is of interest because there was a discussion of the judgment of the Court of Criminal Appeal in the present case in the course of the judgment. While the argument in that case reflects to a large extent the issue that arose in the first question certified by the Court of Criminal Appeal in this case, which, as has been mentioned previously was very properly conceded by counsel on behalf of the applicant, an observation of Hardiman J. in the course of the judgment is of relevance. At page 406 of the judgment he observed:

“It is not a speculation as to the moral character of the accused, but a plain and obvious deduction from the proven facts, that the applicant here is a dangerous man, uninhibited about killing, with access to firearms, and capable of using a firearm on a very slight pretext such as (apparently) a sense of grievance on being thrown out of a pub. The law would be an ass if it failed to draw these obvious conclusions. The imposition of a term of life imprisonment on this man is in no sense an example of preventative detention: it is a sentence richly deserved by him on account of a proven capacity to act in a feral way at least when provoked. His behaviour merits a condign sentence and has received it. The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case.”
16. Relying on that passage, it was submitted on behalf of the applicant herein by Mr. O’Leary, S.C. that it is no answer to an allegation that a sentence is preventative to reply that a sentence imposed is solely penal in nature simply because the sentence was within the limit prescribed by law. It was argued that the correct test is whether or not the sentence exceeds what is “required purely for penal purposes”. It was further argued that in the cases of Carmody and Jackson the sentencing Court fell into error by expressly imposing a preventative sentence. However the question posed on behalf of the applicant was whether in the absence of an express statement by a sentencing judge to the effect that an intended sentence includes a preventative component, an appellate Court is entitled to infer that, when viewed objectively, the sentence must be interpreted as including such a preventative component. By way of response, counsel on behalf of the DPP, Patrick McCarthy S.C. observed that it was not simply a question of asking whether or not the Court is entitled to infer that the sentence must be interpreted as including a preventative component. It was argued that the application of such a test would ignore the fact that a preventative component is an incidental effect of a proper sentence. Thus it was contended that this was one of the cases which merited a life sentence even though a life sentence was not mandatory and that in those circumstances the protection that the public achieved thereby was an incidental effect of the sentence.
Decision
17. In order to reach the conclusion that a sentence included an element of preventative detention, it would be necessary to show that no court acting properly could have imposed the sentence. Comments made by the learned trial judge in his sentencing remarks as to the protection of the community could have given the impression that the sentence imposed in this case was in some measure intended to include a degree of preventative detention. However, when one looks at the remarks of the learned trial judge, it is clear to see that he was attempting to explain that a life sentence, albeit harsh, could be examined in the future by the Parole Board. Indeed, the learned trial judge was careful to point out that he could not look to the future – he could only have regard to the situation of the applicant as it was at the time of sentence.

18. A trial judge has discretion in the exercise of his or her sentencing jurisdiction. That discretion must be exercised in accordance with well established principles of sentencing. Professor Thomas O’Malley in The Criminal Process at paragraph 22.02 expressed the matter succinctly as follows:

“A sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. A proportionate sentence is calculated by first locating the particular offence on the appropriate scale of gravity and then, applying credit for the relevant mitigating factors to the otherwise proportionate sentence. Mitigation must always be applied to the proportionate sentence and not to the maximum sentence (unless, of course, the offence is so serious that the maximum is also deemed to be the proportionate one).”
Thus a sentencing judge will consider matters such as a plea of guilty, the age of an offender before the court, the previous conduct of that offender, expressions of remorse, if any, the impact of the offence on a victim in appropriate cases, the rehabilitation of the accused and any other relevant matters. As long ago as 1972, Walsh J. observed in The People (Attorney General v. O’Driscoll) [1972 1 Frewen 351 at page 359:
‘The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him insofar as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal’.”
19. It was pointed out previously by Denham J. (as she then was) in the case of The People (Director of Public Prosecutions) v. M.S. [2000] 2 ILRM 311 at p.318:
“Sentencing is a complex decision. It may involve aspects of retribution, deterrence, protection, reparation and rehabilitation. In cases relating to sexual offences there are important aspects relating to protection of society and rehabilitation of the defendant. In this case, the applicant has received the benefit of a programme for sexual abusers in prison.
In offences where there have been circumstances including addiction, for example of drugs or alcohol, or of dysfunctional personal or family relationships, then a programme of treatment may be relevant and may prove beneficial to the convicted person and to society by altering the offender’s future pattern of behaviour. In this case the Court was informed that the applicant had completed successfully a programme of treatment and that release under supervision would be more beneficial to the applicant and to society than release at the end of his sentence with no supervision. If the sentence incorporates retribution only then it may run its course and not be varied. However, the Court is satisfied that a just sentence may have elements of rehabilitation also. The applicant has successfully completed a treatment programme which illustrates this element most appropriately. Further a sentence may incorporate an element of protection of society. Protection of society may sometimes be best achieved by a supervised release after treatment rather than a later release with no treatment or supervision.”

20. That case is a useful reminder of some of the elements involved in the exercise of the sentencing function. A term of imprisonment is not solely directed to the punishment of the offender. It also involves elements such as rehabilitation of the offender, deterrence and the protection of society. The learned trial judge in this case clearly had regard to the possibility of rehabilitation as can be seen in his remarks about the possible role of the Parole Board. Hardiman J. in the Court of Criminal Appeal in this case observed:
“We turn then to the argument, and again we pause to say it is a powerful and substantial argument, based on the proposition that the sentence offends in its own terms what Mr. O’Leary says is a strong rule against preventative detention. The rule against prevention of detention (sic) is most strongly stated, as Mr. O’Leary cited, in O’Callaghan, and it was there of course stated in the context of the preventative detention of an unconvicted person. But more generally, I think it is true to say that the ordinary rules of sentencing (the rule for example that a sentence has to be proportioned to the offence committed and to the offender who commits it), does suggest that preventative detention at least stated in that way gives rise to a serious conceptual problem. On the other hand the notion of deterrence is one which has a well established role in sentencing. A case where a person sets out to kill ‘to see what it feels like’ is a case which cries out for deterrence. Because if deterrence is not applied in some form, as Mr. Justice Carney said, it is impossible to provide any form of protection to the community which must be one of the court’s major functions.”
On that basis the Court rejected the arguments made on behalf of the applicant.
21. The facts of this case are as Hardiman J. said, “Extraordinary, chilling and frightening”. The offence to which the applicant pleaded is a most serious one involving as it does an intention to kill. It is one of those rare cases in which the maximum sentence permissible under the law was appropriate. It necessarily does have a preventative effect in that the applicant is not at liberty to commit further offences whilst in custody and thus society has the benefit of that protection but insofar as there is a preventative element achieved by the sentence I think it is fair to say as Hardiman J. said in the case of The People (Director of Public Prosecutions) v. Duffy:

“The preventative effect is incidental to this: the sentence does not exceed what is required for purely penal purposes in so aggravated a case.”
22. The Court of Criminal Appeal in the unusual circumstances of this case found that the imposition of a life sentence for the offence of attempted murder was merited. It is impossible to see how the sentence imposed could be objectively viewed or interpreted as including a preventative component where the sentence imposed, to repeat the words of Hardiman J., “does not exceed what is required for purely penal purposes in so aggravated a case.”
Conclusion
23. When a sentence imposed on an individual is a proportionate sentence having regard to the seriousness of the offence and the personal circumstances of the offender, it could not be said that the sentence imposed was one which contained an element of preventative detention even in the exceptional circumstances that a maximum sentence has been imposed notwithstanding the existence of some mitigating circumstances. Some offences are so grave that a maximum sentence will be the appropriate sentence. If a sentence is excessive having regard to the nature of the offence and the circumstances of the accused person, then the sentence will be wrong in principle and will be set aside. If a sentence is expressly stated to include an element of preventative detention, then, the sentence is likely to be set aside as pointed out in the case of Lynch and Whelan v. The Minister for Justice, Equality and Law Reform [2012] 1 IR 1. Great care must be taken by a sentencing judge to have regard only to the factors which have been identified over the years as being appropriate to take into account, such as deterrence, protection of society, retribution, reparation and rehabilitation. Preventative detention is not one of those factors. I have already referred to the well known passage from the judgment of Walsh J. in O’Callaghan and would reiterate the point made by him that a person cannot be punished in respect of any matter upon which he has not been convicted or that anyone should be deprived of their liberty upon the belief that he or she will commit further offences if left at liberty. It will be recalled that the first question certified by the Court of Criminal Appeal, was as follows:

“Is it lawful to give an accused person the maximum term of imprisonment for the offence with which he is charged under statute even where there are significant mitigating factors in play such as –

(a) a plea;
(b) a first offence;

Counsel for the applicant in the course of the hearing conceded that the answer to this question was “yes” and had such concession not been made, I would, notwithstanding the factors identified at (a), (b) and (c) have answered that question “yes” in the circumstances of this case.
24. I am satisfied that the sentence imposed by the learned trial judge did not constitute a sentence of preventative detention but on the contrary was a sentence appropriately imposed having regard to the very grave circumstances of the offence committed by the applicant. There is nothing in the sentence imposed in this case to suggest that an element of the sentence must be inferred to be for the purpose of preventative detention. In the circumstances, I would answer the second question posed “No”, as the sentence imposed does not constitute a sentence of preventative detention. Accordingly, the sentence imposed is a proper one in Irish law.

Homicide Sentencing

Cases

Lynch -v- Minister for Justice Equality and Law Reform & Whelan -v- same

Jonathan Dunne v The Director of Public Prosecutions

People (DPP) v Aherne

Director of Public Prosecutions v Gilmore

Dougal v. Mahon & Anor

People (DPP) v O’Donoghue

People (DPP) v Colclough

DPP v Foley

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