Ireland has always tended to look to England and Wales when considering reform in the criminal justice arena. However, when it comes to the planned legislative reform of the parole of life sentence prisoners, we should cast our sights further afield to the small island of Cyprus.
The vast majority of those serving life sentences in Ireland have been convicted of murder and have had a life sentence mandatorily imposed at sentencing as a result of legislative provision (Criminal Justice Act 1990, s.2). Of course, life does not mean life in prison and provision is made to release life sentence prisoners. The executive power to release is contained in the Criminal Justice Act 1960 (s.2), which covers all temporary releases including those serving life sentences. A non-statutory, advisory Parole Board makes recommendations to the Minister for Justice who decides at what point a life sentence prisoner is released.
The role of the judge is limited to the automatic imposition of the life sentence. Thus, the aggravating and mitigating factors ordinarily considered at sentencing are not explored when sentencing an offender convicted of murder and no distinctions are made in terms of the gravity of the offence and the circumstances of the offender. In Ireland, there is no statutory minimum term or tariff imposed by a sentencing judge. The result is that those sentenced to life imprisonment for murder may serve varying terms of imprisonment the length of which is decided on a case-by-case basis by the Minister, following the advice of the Parole Board.
The mandatory life sentence and its release process has raised issues regarding: the compliance of the sentence with constitutional and sentencing proportionality; the appropriateness of the executive’s role in the process and whether it infringes upon the separation of powers; the appropriateness of incorporating broad sentencing principles and external factors in the executive decision-making phase of release; and the lack of access to legal representation. Currently life sentence prisoners are subject to a release process that lacks formality, transparency and independence. Nonetheless, the constitutionality of the mandatory life sentence was upheld on several grounds in Lynch and Whelan v. Minister for Justice, Equality and Law Reform ( IESC 34).
Reforms relating to the life sentence and its administration in Ireland have been proposed by state bodies, human rights organisations and academic commentators. Formalising the process through placing the Parole Board on a statutory footing and ensuring that decision-making is independent of the executive are often central to the proposed reforms. Some have raised questions as to whether the Irish process of releasing life sentence prisoners is compliant with the ECHR. The ECtHR has taken an active role in the application of procedural safeguards to indeterminate sentences, such as the life sentence, where an additional decision on release is required subsequent to the initial decision to impose a sentence. However, much of this jurisprudence relates to the England and Wales and as a result may not be applicable to Ireland as there are significant differences in the release processes in place in each jurisdiction. In fact, it would be presumptuous to assume that a challenge brought by an Irish applicant to the ECtHR would be successful when considering the hands-off approach adopted by the Court across a range of different release processes (see for example: Streicher v Germany Application No 40384/04, Admissibility, 10 February 2009; Léger v France Application no 19324/02 11 April 2006). When examining the review process, the ECtHR has clearly stated that it is not going to prescribe the type of review necessary:
Having regard to the margin of appreciation which must be accorded to Contracting States in the matters of criminal justice and sentencing…, it is not [the ECtHR’s] task to prescribe the form (the executive or judicial) which that review should take. For the same reason, it is not for the Court to determine when that review should take place (Vinter and Others v. United Kingdom Application Nos 66069/09, 3896/10, 130/10, Merits, 9 July 2013 para. 120).
In the absence of an Irish applicant and given that the Government have committed to reforming the parole process, it is interesting to examine the reforms adopted by the Cypriot government following a decision of the ECtHR (Kafkaris v. Cyprus 49 EHRR 35). In Cyprus, like Ireland, a life sentence is imposed without a minimum term being specified in law or by the sentencing court and at the time of the decision in Kafkaris, release was determined through the President’s powers of remission, commutation or pardon. In Kafkaris the ECtHR stated that a life sentence is permissible as long as there is a de facto and de jure prospect of release. The Supreme Court in Lynch and Whelan cited Kafkaris with approval noting that this prospect is met in Ireland through the exercise of executive discretion.
Following the Grand Chamber’s judgment of 12 February 2008, Cypriot law was reformed to provide for the establishment of an independent five-member Release Board with the reforming law including detailed provisions concerning the Release Board and the procedures to be followed. The Release Board are required to examine and weigh-up a number of factors when making a determination on the release of an applicant on licence. The prisoner must be interviewed by the Release Board, is entitled to legal representation and to call witnesses, experts and lawyers. He has the right to examine any written information, material or evidence. The prisoner is permitted access to all the information obtained by the Release Board in relation to the application for release. The Release Board’s decisions are given in writing and reasons must be provided. If the application is dismissed by the Release Board, the applicant may file another application after one year if he is serving a life sentence. If the applicant does not comply with his conditions of release, the Release Board can revoke its decision to release the prisoner on licence having provided the applicant with an opportunity to be heard. The decisions of the Release Board can be appealed to the Supreme Court through administrative review.
In a subsequent application taken by Kafkaris, the ECtHR noted these reforms, stating that while a whole life sentence for murder still operated the system currently in place allows a life sentence prisoner to apply for a review of the process rendering the life sentence reducible(Kafkaris v Cyprus (no.2)Application No 9644/09, Admissibility, 21 June 2011). If the Irish legislature are looking for an operational framework for the release of life sentence prisoners that appears to meet the minimum requirements of the ECHR, an examination of the Cypriot reforms would seem like an appropriate starting point.