Mandatory sentences were an increasing feature of Irish criminal legislation in the 21st century. Ireland has relatively few mandatory sentences. Murder has long since carried a mandatory life sentence irrespective of the circumstances.
Certain drugs and firearms offences are subject to mandatory prison sentences of substantial duration. A “Section 15A” drug offender must be sentenced to at least 10 years. This applies to an adult convicted for possession for the purpose of sale or supply offence value where the value is more than €13,000.
An anomaly of mandatory sentences is that the gravity of offences in mandatory sentence cases may be less than those in the case of more serious, and grave crimes, which do not carry mandatory sentences.
Arguments had been made that mandatory sentences undermined the separation of powers. This is because the judge’s freedom to exercise discretion in relation to sentencing is pre-empted. However, this has not been accepted internationally nor in Ireland.
2019 Case and 2021 Act
The Criminal Justice (Amendment) Act 2021 rectified the constitutional infirmities in legislation identified by the Supreme Court in the case of Wayne Ellis and the Minister for Justice and Equality, Ireland and the Attorney General in its judgment delivered on 15 May 2019. In effect, the Supreme Court found that the Oireachtas could impose mandatory penalties but only if it applied to all persons.
It is not constitutionally permissible for the Oireachtas to specify a mandatory penalty which only applies to a limited class of persons such as a person who had previously committed one or more listed offences. The Court held that the application of a penalty in such cases is the administration of justice and, under Article 34 of the Constitution, may only be administered by the Courts.
The Act 2021 Act was intended therefore to remedy this fault in all legislation where such an approach appears.
Mandatory Sentences Constitutional
The Irish courts have upheld the right of the legislature to fix the punishment for crimes including mandatory sentences. The Irish courts have also rejected a challenge to mandatory fines for customs offences.
The Supreme Court rejected a challenge to the mandatory life sentence for murder. The mandatory life sentence was upheld partly in view of the uniquely serious nature of the offence.
The court was influenced by the special and long-standing unique factors that apply to murder. The offence was so abhorrent that legislature could choose to make it a subject of a mandatory sentence in all cases.
Article 6 of the European Convention on Human Rights guarantees a right to a fair trial by an independent and impartial tribunal. The EU Charter of Fundamental Rights provides that the severity of penalties must not be disproportional to the criminal offences. In contrast, the Convention does not make specific rights to sentencing and punishment, as such.
The European Convention on Human Rights prohibits inhuman and degrading treatment or punishment. Case law under the Convention that sentences must not be so disproportionately severe as to amount to inhuman and degrading treatment. Case law under the Convention suggests that a life sentence is not necessarily incompatible with Article 3.
It has been indicated under the European Convention, that in some cases, a mandatory sentence that cannot be reduced, may raise an issue under the Convention. It has been indicated that a sentence might be reducible for this purpose, even if it is reducible only at the discretion of the executive or even just the President. The relevant decisions were by way of majority and other judges felt that a possibility at the discretion of one executive officer may not suffice.
The issue has arisen in the context of extradition to the United States, where some sentences carried the possibility of life without parole and where such long sentences are commonly imposed.
There is authority under the Convention that extradition to a State which violates the European Convention is itself a breach of the Convention. However, the UK courts have allowed extradition based on the possibility of remission even on an executive discretionary basis. Extradition may proceed based on an undertaking by the State seeking extradition.
Drug & Firearms Offences
“Section 15A”, drug offences relate to unlawful possession of controlled drugs for sale or supply. They carry a maximum sentence of life imprisonment. The Criminal Justice Act 1999 created a new offence of possession for sale or supply of controlled drugs with a value of €13,000 (£10,000) or more. Every adult person who is convicted of this offence is liable to a maximum life sentence but must be ordered to serve at least 10 years imprisonment; unless there is an exceptional factor that makes this sentence unjust in the circumstances.
The legislation refers to a non-exhaustive list of factors including assisting the police, nature of the plea, and public policy dealing with drug crime and drug trafficking. The court must have regard, whether the offender has previously been convicted of a drug trafficking offence, and whether the public interest in preventing drug trafficking would be served by the imposition of a lower sentence.
Since Criminal Justice Act 2006, an adult, convicted of a second or subsequent offence of either a section 15A or 15B offence must be sentenced to a 10-year minimum. On a first offence, the maximum sentence need not be imposed where there are exceptional and specific circumstances.
There is no provision that it is a presumption only in the case of later offences. If the court is satisfied that the drug addiction was a substantial factor leading to the commission of the offence, it may list the sentence for review, after the expiration of a date, at least a certain way through the sentence.
Similar provisions apply under the 2006 Act for serious firearms and weapons offences. The presumed maximum applies to the first offence and the mandatory minimum is five years.
It is provided that the sentence for these drug and firearm offences are ineligible for remission under the ministerial power in Criminal Justice Act 1951 or for early release under the Criminal Justice Act 1960 for the duration of the minimum sentence.
Temporary releases may be granted for grave reasons of a humanitarian reason only and they may only be such as is justified by the circumstances.
Where a person has been convicted of an offence specified in Schedule 2 Criminal Justice Act 2007 and has been sentenced to imprisonment for a term of not less than five years, in respect of that offence and is subsequently convicted of an offence specified in the schedule, during the period of seven years after the date of conviction of the first offence (there being disregarded any period of imprisonment in respect of the first offence or a subsequent offence or during any periods of imprisonment), the court shall in imposing a sentence on the person in respect of the subsequent offence,specify as the minimum term of imprisonment to be served by the person, a term of not less than three-quarters of the maximum term of imprisonment prescribed by law in respect of such offence.
If the maximum term so prescribed is life imprisonment, the court shall specify a term of imprisonment of not less than 10 years. The above provision does not apply in certain circumstances.
The above provision does not apply where the court is satisfied that it will be disproportionate in all the circumstances to specify as the minimum term of imprisonment to be served, a term of imprisonment above, in respect of the subsequent offence.
It shall apply in respect of a subsequent offence only if that subsequent offence is committed after the commencement of the 2007 Act. It shall apply to a person whether the first offence was committed before or after commencement of the 2007 Act.
If the operation of a prison term is suspended, then the above provision shall apply the part which is not suspended, which shall be regarded as imprisonment, for the above purpose. The provision shall not apply to a person if that conviction in respect of the first offence is quashed or overturned on appeal.
The period in relation to which a person to whom the above provision applies shall expire only when the person has not been convicted of an offence in Schedule 2 during the period of seven years from the date of conviction of the subsequent offence.
The provision does not apply in case of certain other circumstances (Section 2, 1990 Criminal Justice Act, Section 15(8) Firearms Act 1925, Section 26, 27, Criminal Justice Act 1964, Section 12(A) 1990, Section 27(3F) Misuse of Drugs Acts).
The 2021 Act amend the statute law provisions dating from the 1800s to remove the obligation to impose certain specified restrictions or fines on an offender due to the fact of the offence constituting a second or subsequent offence. The specific section amendments are as follows:
- Amendment of section 49 of the Dublin Police Magistrates Act 1808 (repealing provisions where a person guilty of a subsequent offence of concealing stolen goods shall pay a fine of two hundred pounds and where a person unable to pay the fine shall be imprisoned).
- Amendment of section 40 of Illicit Distillation (Ireland) Act 1831 (repealing provisions where a person guilty of a subsequent offence shall pay at least double the amount of the fine paid by the person when last convicted and a related mandatory requirement to imprison the person where the fine is unpaid).
- Amendment of section 32 of Refreshment Houses (Ireland) Act 1860 (repealing provision where a person guilty of a third licensing offence shall pay a fine of fifty pounds).
The 2021 Act provides for the repeal of mandatory sentences for second or subsequent firearms and misuse of drugs offences and the deletion of references to them. The specific section amendments are as follows:
- Firearms Act 1925 – possession of firearms with intent to endanger life (repealing mandatory minimum term of 10 years imprisonment for second or subsequent offence).
- Firearms Act 1964:
- possession of firearm while taking vehicle (repealing mandatory minimum term of 5 years imprisonment for second or subsequent offence),
- prohibition of use of firearm to assist escape (repealing mandatory minimum term of 5 years imprisonment for second or subsequent offence),
- possession of firearm in suspicious circumstances (repealing mandatory minimum term of 5 years imprisonment for second or subsequent offence), and
- carrying firearm with criminal intent (repealing mandatory minimum term of 5 years imprisonment for second or subsequent offence).
- Misuse of Drugs Act 1977 possession or importation of drugs with value over €13,000 (repealing mandatory minimum term of 10 years imprisonment for second or subsequent offence).
- Firearms and Offensive Weapons Act 1990 – hortening barrel of shotgun or rifle (repealing mandatory minimum term of 5 years imprisonment for second or subsequent offence).
- the Criminal Justice Act 2007 Commission of another offence within specified period – (consequential amendment to remove references to minimum mandatory provisions).
- Parole Act 2019 eligibility for Parole (consequential amendment to remove reference to minimum mandatory provision).