Aaron Brady will have no automatic entitlement to be released from his sentence for the murder of Det Garda Adrian Donohoe and could spend the rest of his life in prison, legal experts have said.
Brady (29) of New Road, Crossmaglen, Co Armagh, was convicted in August of the murder of Det Garda Donohoe during an armed raid on Lordship credit union in Co Louth on January 25th, 2013.
Brady is the first person to be convicted and sentenced under sections two, three and four of the Criminal Justice Act (CJA) 1990 for the murder of a member of An Garda Síochána acting in the course of his duty. Precedents set by sentences imposed on previous garda murderers, who were entitled to release after 30 years, do not apply. Brady, who was sentenced to life with a minimum of 40 years, will never have automatic entitlement to release and if he is released could be sent back to prison at any time.
Capital murder
Barrister and lecturer at National University of Ireland (NUI), Galway, Thomas O’Malley points out that the 1990 Act abolished “capital” murder, replacing it with various offences including the “murder of a member of the Garda Síochána acting in the course of his duty”.
The term “capital murder” no longer exists in the legislation although it was frequently used by lawyers involved in Brady’s trial and by the media.
Prior to the 1990 Act, the penalty for capital murder under the 1964 Criminal Justice Act was death.
Co Monaghan man Noel Callan was sentenced to death under that Act for the capital murder of Sgt Patrick Morrissey (49) following an armed robbery at the Ardee labour exchange in Co Louth on June 27th, 1985. Callan was due for execution when then President Patrick Hillery commuted the sentence under article 13.6 of the Constitution to "penal servitude" for 40 years.
In 2006, Callan sought remission under article 40 of the Constitution. The Supreme Court found he was entitled to the standard remission of a quarter of his sentence and he was released in December 2015 having served 30 years.
Brady, however, was not sentenced to death, but to life imprisonment in the same way anyone convicted of murder in Ireland would be. Sections three and four of the CJA 1990 add that where a person is convicted of murdering a garda acting in the course of their duty, the sentencing judge shall “specify as the minimum period of imprisonment to be served by that person a period of not less than 40 years”.
The Act goes on to say that the person is entitled to remission in the ordinary way on that minimum, meaning he could apply for release after 30 years. But the life sentence will still apply.
Dr Diarmuid Griffin of NUI Galway noted that the Minister for Justice has the final say on the release of life prisoners but the Parole Act 2019, which has yet to be commenced, will transfer that power solely to the Parole Board.
“There are criteria that apply to parole decision-making that will determine the outcome in an individual case and these include an assessment of the risk posed by the person to the community.”
Longer terms
Dr Griffin said a person cannot expect to be released immediately on becoming eligible for parole. The time served by prisoners sentenced to life is growing: Between 1975 and 1984 the average term served was 7.5 years. It was 19 years between 2008 and 2017 and in 2019 5 per cent of those in custody serving life sentences for homicide had spent 30 years or more inside.
According to Dr Griffin, when a person applies for release the Parole Board may take into account reports from the Prison Service, probation service, psychologists, psychiatrists, the prison governor, gardaí and others. The board would also consider whether the person would comply with the conditions of their release and whether they posed an undue risk to society.
Det Garda Donohoe’s family would also be invited to offer their views.
In the interim, the chances of Brady receiving temporary release in the manner sometimes given to life prisoners is remote. The CJA 1990 is clear that temporary release is allowed only for “grave reasons of a humanitarian nature”.
Lawyers say the phrase is vague enough to allow the authorities to use their discretion, but the power to release would be used only in extreme circumstances.
Brady is gearing up for an appeal of his conviction. If unsuccessful, he will remain in prison until he is at least 57 years old.