LYNCH AND WHELAN v. IRELAND
Inadmissible
Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
1. The applicant in the first application, Mr Paul Lynch, is an Irish national, who was born in 1976. At the time he lodged his application he was a prisoner at Portlaoise Prison in Ireland. He was represented before the Court by Mr F. Taaffe, a lawyer practising in Co. Kildare. 2. The applicant in the second application, Mr Peter Whelan, is also an Irish national, who was born in 1982. He too is detained in Portlaoise Prison. He was represented before the Court by Mr J. Cuddigan, a lawyer practising in Co. Cork. 3. The Irish Government (“the Government”) are represented by their Agent, Mr P. White of the Department of Foreign Affairs. 4. Mr Lynch was convicted of murder on 10 February 1997 and was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990. An appeal was unsuccessful. His situation was reviewed for the first time by the Parole Board in 2004. The Minister for Justice, Equality and Law Reform (now the Minister for Justice and Equality, hereafter “the Minister”) decided that Mr Lynch should not be released at that time, and that his situation should not be considered again for a further three years. The Parole Board considered Mr Lynch’s situation again in 2007, 2010 and in September 2012. In its last review of his case, the Parole Board recommended to the Minister that an escalating programme of temporary release be put in place for Mr Lynch. The Minister accepted the recommendation and the programme has since commenced. According to the Government, it entails attendance five days per week at a voluntary agency that works with offenders, and four overnight releases per month. 5. Mr Whelan was convicted on 2 December 2002 of the crimes of murder and attempted murder. He was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990 and, on the same date he was also convicted of attempted murder and sentenced to a term of 15 years to be served consecutive to the life sentence. The order of sentence was subsequently reversed by the Court of Criminal Appeal. Mr Whelan completed his first sentence in July 2013, having benefitted from the standard remission of 25% of the total duration imposed at trial (fifteen years). He then commenced his consecutive life sentence. His situation was reviewed by the Parole Board in 2010 with a second consideration due to take place in 2014. 6. The two applicants later challenged their detention as contrary to the Constitution in a number of respects and also to the Convention. Their challenge was rejected by the High Court on 5 October 2007, and their appeal was rejected by the Supreme Court on 14 May 2010. 7. The Supreme Court did not accept that, by prescribing a mandatory life sentence for murder, the legislature had intruded into the domain of the judicial branch. It described murder as “the ultimate crime against society as a whole”, “a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim” and a crime that “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”. It stated: “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 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 ...”.” 8. The Supreme Court also rejected the argument that the mandatory life sentence was contrary to the principle of proportionality in sentencing. It stated: “ ......” 9. The Supreme Court then considered the argument that, in substance, a life sentence was not a determinate sanction because the actual duration of imprisonment was decided systematically by the Minister, and that in so doing he was guided by considerations of a preventive nature. It noted, firstly, that it had been affirmed many times in case law that preventative justice or detention forms no part of Irish law. A convicted person may not be sentenced by a court or detained by an executive order for a preventative or non-punitive purpose. It was a “misconception that the punitive element of the life sentence terminates on temporary release”; “even where the release is open-ended ... 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”. Temporary release was a privilege or a concession accorded at the discretion of the executive, not a right of a prisoner. The Supreme Court stated: “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 ... 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 ...” 10. The Supreme Court went on to reject the argument that because the Minister was required to have regard to, inter alia, the gravity of the offence and the risk posed by the prisoner to public safety, it made the process of temporary release akin to a sentencing exercise. Consideration of such matters did not mean that the Minister was exercising a judicial function and, in particular, it did not mean that a decision not to release because of a risk to safety converts the punitive sentence for murder into a preventative one. It stated: “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. ... Refusing temporary release is a decision not to grant a privilege to which the prisoner has no right.” 11. The Supreme Court next considered the applicants’ arguments, based on Article 5 §§ 1 and 4 of the Convention and on certain judgments of this Court, that under Irish law a life sentence was in reality an indeterminate one, which in practice was determined by the Minister in the form of a grant of temporary release. This, it was argued, constituted executive interference in the judicial function of sentencing and was prone to arbitrariness. The court stated: “The power of the executive, in this case the Minister, to release a prisoner ... 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 (sic) 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.” 12. The Supreme Court considered that the distinction between these two functions was recognized by this Court in its judgment in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008. Having cited several passages from the judgment, it stated: “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. ... Provided a causal connection remains between the detention and the punishment imposed by the court of trial, 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 Supreme Court held that on any objective analysis of the sentences currently being served by the two applicants, their detention remained, de jure and de facto, in accordance with the punishment provided by law and ordered by the court of trial. 13. The Supreme Court then distinguished the legal situation in Ireland from that which prevailed in the United Kingdom, the latter having been found in a number of judgments of this Court to be contrary to Article 5 of the Convention. The Supreme Court noted that the sentencing regime in the United Kingdom which was under scrutiny in the judgments relied upon by the applicants was ‘radically different’ to the sentencing regime in Ireland. The sentencing regime which was found to be incompatible with the Convention featured a dual element—a punitive element identified as the ‘the tariff’ period and the subsequent preventative element. Once the prisoner had served the punitive element of the sentence, the nexus between the crime and its punishment was terminated. In Stafford the Supreme Court noted that the prisoner had been recalled after release even though he must have been regarded as having served the punitive element for his offence of murder. That being so, his detention after recall could not be justified as ‘punishment for the original murder’ which led the Strasbourg Court to conclude that his detention on foot of the original mandatory life sentence violated Article 5 § 1 of the Convention. That was, said the Supreme Court, in stark contrast to the longstanding position in Irish law. 14. Section 2 of the Criminal Justice Act 1990 provides: “A person convicted of treason or murder shall be sentenced to imprisonment for life.” 15. The power of temporary release is regulated by Section 2 of the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, which provides: “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, (c) where, in the opinion of the Minister, it is necessary or expedient in order to— (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, (c) the period of the sentence of imprisonment served by the person, (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.” 16. In their submissions, the Government provided information about the Parole Board. It was established on an administrative basis in April 2001. It is chaired by an independent Chairperson and includes a representative from the medical/psychiatric profession, the Probation Service, the Department of Justice and Equality, the Prison Service, a retired Prison Governor, and representatives of the wider community. 17. The Parole Board’s principal function is to advise the Minister in relation to the administration of long term prisoners. The Board reviews the cases of prisoners serving life sentences or determinate sentences of eight years or more. The Board, by way of recommendation to the Minister, advises of the prisoner’s progress to date, the degree to which the prisoner has engaged with the various therapeutic services and how best to proceed with the future administration of the sentence. 18. In the case of mandatory life sentences the Parole Board considers the initial application after the prisoner has served seven years. Subsequent reviews are conducted at intervals of no more than three years. The final decision regarding the recommendations of the Parole Board remains with the Minister who may accept them in their entirety (as occurs in the majority of cases) or accept them in part, or reject them. 19. In reply to a question from the Court the Government indicated that as of 31 July 2013 there were 297 persons serving a mandatory life sentence for murder, with another 18 persons serving discretionary life sentences for other very serious offences. On the same date there were 78 persons with a life sentence who were on supervised release in the community. In the period 2005 to 31 July 2013 a total of 29 persons sentenced to life imprisonment were granted temporary release. The average duration of their imprisonment was 18 years.