THE STATE is entitled, both under the Constitution and the European Convention on Human Rights, to enact laws stipulating a mandatory life sentence for the crime of murder, the Supreme Court was told yesterday.
Brian Murray SC, for the State, yesterday began outlining its response on the second day of a challenge by two convicted murderers to the mandatory life term.
Peter Whelan and Paul Lynch contend section 2 of the Criminal Justice Act 1990, which provides mandatory life sentences for murder or treason, breaches their rights, including their right to liberty, both under the Constitution and ECHR. They argue the mandatory term removes judicial discretion from sentencing and effectively gives the Minister for Justice a judicial power relating to sentencing.
Whelan pleaded guilty in 2002 to the murder of Nicola Sweeney (20), a student, at her home in Underwood House, Rochestown, Cork, in April 2002. He was also jailed for 15 years for the attempted murder of her friend, Sinead O’Leary, on the same evening. He appealed to the Court of Criminal Appeal which decided the 15-year sentence should run consecutively to the life term.
Lynch pleaded guilty in 1997 to murdering Donegal pensioner William Campbell (77) at the victim’s home in September 1995. Mr Campbell died after he was repeatedly struck over the head with a saucepan in a robbery.
In 2004, Lynch’s detention was considered by the Parole Board and in July that year, the minister for justice decided he would not be released and also directed no further application for release should be made for a further three years.
A five-judge Supreme Court is hearing both men’s appeal against a High Court decision dismissing their challenge. The hearing will resume on February 25th next.
In submissions yesterday, James O’Reilly SC, for Whelan, argued the imposition of the mandatory sentence is not the end of the sentencing process as the Minister for Justice and Parole Board get involved afterwards in determining when a person is released. This was an impermissible exercise of judicial power, he argued.
David Goldberg SC, also for Whelan, said a 25-year fixed sentence for murder would be more acceptable than the situation which exists where prisoners do not know when their sentences will be reviewed or when they will be released. Prisoners should not be left without hope, he said.
The Parole Board, in advising on the risk presented by life prisoners, was also effectively exercising a function akin to preventative detention, he argued.
Later yesterday, outlining the State’s arguments, Mr Murray said the court had to address several questions, including whether it was contrary to the Constitution to impose a mandatory sentence for murder. There seemed to be an argument the doctrine of proportionality should be considered, he said.
If it was constitutional to impose a mandatory life term for murder, a second issue was whether a provision under which the executive could later release a life prisoner was unconstitutional. A further issue was whether the combined executive power to impose a mandatory life sentence and to order a subsequent release breached the ECHR.
The State will contend four legal cases answer all those questions in its favour and confirm the validity of a mandatory life sentence for murder. The European Court of Human Rights had decided that a national law decision to enact a wholly punitive mandatory life sentence for murder raised no requirement for review by a court, Mr Murray said.
