THE ENDS OF SENTENCE: IMPRISONMENT AND EARLY RELEASE DECISIONS IN IRELAND

Paper delivered at Fitzwilliam College, Cambridge, June 2008 and due for publication in in Padfield, van Zyl Smith and Dünkel (eds), Release from Prison: European Policy and Practice (Willan Publishing, UK, January 2010).

Tom O’Malley

Law School, NUI Galway

In a country committed to proportionality as the overarching principle of sentencing, as Ireland claims to be, the early release of prisoners represents something of a triumph for pragmatism over principle. Ireland retains a highly discretionary system of sentencing and, unlike some other common-law jurisdictions, has so far refrained from introducing any form of guidelines or tariff to structure judicial sentencing decisions. Apart from murder which carries a mandatory life sentence and a small number of drug trafficking ànd firearms offences which attract presumptive or mandatory minimum sentences (as described later in this chapter), all other serious offences are governed by maximum sentences expressed in terms of imprisonment, fine or both. Certain judicially-developed principles do, however, exist and failure on the part of a trial judge to apply those principles may amount to an appealable error. A century ago, the English Court of Criminal Appeal held that it would not ordinarily interfere with a sentence unless it disclosed an error of principle.[1] The Irish Court of Criminal Appeal, established in 1924, quickly adopted the same principle and has applied it ever since. For present purposes, it will be sufficient to note two fundamental sentencing principles. The first is that the selection of sentence, when there is a selection to be made, is exclusively a judicial task which may not be assigned to another branch of government. It was so held by the Supreme Court in Deaton v Attorney General and Revenue Commissioners,[2] which happens to be one of the few Irish cases that have “travelled” in the sense of being occasionally quoted with approval elsewhere (and particularly by the Privy Council when interpreting constitutional provisions of certain Commonwealth jurisdictions).[3] The Deaton principle is of constitutional as opposed to a common-law origin in Ireland. It was derived by the Supreme Court from those provisions of the Irish Constitution dealing with the separation of powers and the administration of justice.

The second fundamental principle is that a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender.[4] This, too, has occasionally been described as a constitutional principle, though the courts have yet to specify the exact rationale for that conclusion. In any event, it is now well embedded as the fundamental distributive principle of criminal punishment in Ireland. One practical consequence of this principle is that, because account must be taken of offender as well as offence circumstances, the courts are obliged, in principle at least, to adopt a two-tier approach towards the selection of sentence. A court must begin by locating the particular offence on the overall scale of gravity in order to identify an appropriate starting point. It must then make any further reduction to reflect the presence of any mitigating factors connected with the circumstances of the offender which, for this purpose, would include matters such as a guilty plea. The superior courts have stressed that mitigation, where it exists, must be applied to the otherwise proportionate sentence (the initial starting point) as opposed to the maximum sentence. Thus, theft carries a maximum sentence of ten years’ imprisonment. In a given case, the court might be satisfied that the offence was about half-way up the scale of gravity which would suggest a five-year starting point. However, allowance must then be made for any mitigating factors, and that might result in a final sentence of two or three years. A similar commitment to proportionality exists in Australia (among other jurisdictions) but there, a strong difference of opinion has arisen as to whether a so-called instinctive or intuitive synthesis approach should be adopted in preference to the two-tier approach (Edney and Bagaric 2007: Chap. 2). On paper at least, Ireland seems firmly committed to the two-tier approach.

It may seem contradictory therefore to permit the executive reduction of a sentence which has been chosen in accordance with the proportionality principle. The reality, of course, is that each of the three branches of government has an important role in the sentencing process. The legislature must decide upon the mandatory or maximum sentence to attach to each offence and also decide upon the range of sentencing options to be available to the courts. The judiciary is responsible for the selection of sentence, when there is a selection to be made, and the executive is responsible for implementing sentences imposed by the courts. Most countries have some system in place, whether by way of pardon, commutation or some form of remission, to reduce or mitigate the effect of a sentence at some point during its currency (Sebba 1979; Moore, 1997). As a general principle, however, courts, when selecting sentence, should not take account of any remission or early release to which the offender may later become entitled (O’Malley 2006:135).

THE USE OF IMPRISONMENT

By international standards, the Republic of Ireland, with an overall population of 4.2 million inhabitants, has a relatively low prison population and a moderate rate of imprisonment. A half a century ago, in 1958, the average daily prison population stood at 369, the lowest in the State’s history (O’Malley 2000: Chap. 2). Today, there are approximately 3,500 prisoners, one-fifth of whom are in pre-trial detention or on some other form of remand. Women account for less than four per cent and foreign nationals for about 12 per cent of the total. The prison population also includes some illegal immigrants held pending deportation proceedings although they have not been charged or convicted in criminal proceedings. As of 2008, the imprisonment rate stood at 76 per 100,000 of the population which, according to the tables regularly published by King’s College London, placed Ireland in 162nd place worldwide out of a total of 217 countries. England and Wales occupied 82nd place on the same table with an imprisonment rate of 152 per 100,000. While the number of prisoners has increased significantly in Ireland over the past half-century, the overall number of persons in state custody has declined even more dramatically. The prison population in 1958 may have been less than 400 but at there were more than 20,000 patients detained in psychiatric hospitals (mostly for want of more suitable accommodation) and approximately 5,000 children in industrial and reformatory schools. Similar patterns have emerged in other Western countries. Harcourt (2006), in one of his pioneering studies of this phenomenon in the United States has referred to the “continuity of spatial exclusion and confinement between the asylum and the penitentiary.” This certainly holds true of Ireland as well. By 2007 the number of inpatients in psychiatric hospitals had declined to about 3,000, compared to almost 11,000 in 1987, and only a small number of children remained in residential care or detention (Mental Health Commission 2008).

The profile of sentenced prisoners is obviously relevant for present purposes. In early December 2006, there were 2,725 sentenced prisoners, one-fifth of whom were serving sentences of less than 12 months and a further quarter sentences of one to three years (Irish Prison Service 2007). Just over 1,000 (about 37 per cent of the total) were serving sentences of five years or more, including life. On that date there were 234 life prisoners, five of whom were women. Typically, therefore, life prisoners account for about 8.5 per cent of the average daily population. There are 15 different prison institutions in the State although two of these are women’s prisons attached to predominantly male prisons (at Limerick and Mountjoy in Dublin). The average number of women prisoners is usually about 100. By international standards, most of our prison institutions are quite small, the largest being Mountjoy Prison in Dublin which has just over 600 male and female inmates. Most of the others have less than 300 inmates, or so the most recently available official figures suggest.

VARIETIES OF EARLY RELEASE

Three distinct forms of early release exist in Ireland. The first is the power constitutionally vested in the executive branch of government (and equivalent to what would formerly have been a royal prerogative) to commute or remit any sentence including a custodial sentence. We may refer to this as special remission. The second is the entitlement of certain prisoners under the Prison Rules to earn remission of a portion of their sentences, the standard rate currently being 25 per cent. Thirdly, the executive branch of government is statutorily empowered to grant temporary release to prisoners at any time before they qualify for ordinary remission, and also to life prisoners who are ineligible for ordinary remission. The last-mentioned power is roughly equivalent to parole although it is governed by less formal procedures than those attaching to parole release elsewhere. Standard remission of sentence differs from temporary release in a number of respects (Cavadino and Dignan 2002: 265) Remission is now treated as a right or an entitlement, though one which may be forfeited in whole or in part through misbehaviour while in prison. Temporary release, on the other hand, is a privilege within the gift of the Government. Secondly, temporary release will, more or less by definition, be granted at an earlier point in the sentence than remission. Thirdly, temporary release is granted subject to conditions and the person released may be subject to probationary supervision. Finally, a breach of temporary release conditions leaves the person liable to be returned to prison. Remission, if granted, is unconditional and any further offence which the released prisoner is alleged to have committed must be the subject of separate criminal proceedings.

SPECIAL REMISSION

Ireland is a common-law jurisdiction with a written constitution which was enacted in 1937 and which may not be amended except by a majority of those voting in a popular referendum. The Constitution protects a reasonably wide range of personal rights and confers upon the High Court and Supreme Court the power to invalidate a law which conflicts with any of its provisions. Art. 13.6 of the Constitution provides:

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.”

The Oireachtas (the legislature) later took advantage of the final part of this provision to confer upon the executive branch of government the power to commute or remit, in whole or in part, any punishment imposed by a criminal court subject to such conditions as it may think proper.[5] Provision was also made for delegating this power to the Minister for Justice.[6] The use of the word “remit” in this constitutional context is apt to cause some confusion in light of its concurrent use to describe the statutory power to grant a standard period of remission to certain prisoners for good behaviour, a practice described further below. In 1937, however, the terms “commutation” and “remission” had reasonably well-settled meanings in the constitutional practice of most common-law countries. Commutation involved the substitution of one form of punishment for another, e.g. life imprisonment for the death penalty, whereas remission involved the reduction of a sentence without changing its character (Brett 1957; Smith 1983; Pattenden 1996; Newsam 1954). In 1933, the Supreme Court of Canada had held that a prisoner whose sentence is wholly or partly remitted is one whose term has expired, at least within the meaning of the statute at issue in that case - an Immigration Act which permitted deportation on the expiry of a sentence.[7] Remission, therefore clearly entailed the outright reduction of punishment with the result that the offender was no longer liable to serve any further portion of the sentence. Executive powers of commutation and remission were particularly important in Ireland, as in other countries, while murder remained a capital offence.

The modern history of capital punishment in Ireland may brief be summarised as follows (O’Malley 1995). All murders were capital crimes until 1964[8] when the death penalty was abolished for all offences except certain aggravated murders, notably the murder of a member of the police or a prison officer acting in the course of his or her duty, and a small number of other offences, such as treason, piracy, and certain offences contrary to the Defence Act 1954 and the Offences Against the State Act 1939. Capital murder was the only one of these offences ever prosecuted between 1964 and 1990 when the death penalty was completely abolished. In fact, the last execution had taken place as far back as 1954. A significant number of those who had been sentenced to death for murder between 1922 (when the State was founded) and 1964 had their sentences commuted to imprisonment, and records show that the terms served by some of them before being released were relatively short. Capital punishment was abolished entirely by the Criminal Justice Act 1990 and, then, following a referendum held in 2001, the Constitution was amended to include a prohibition on the re-introduction of the death penalty for any offence. In the 1970s and 1980s, a number of police officers were murdered, mostly while trying to apprehend bank robbers, and those found guilty had to be sentenced to death in accordance with the terms of the Criminal Justice Act 1964. As it happened, however, each of those death sentences was commuted by the Government to a term of 40 years’ imprisonment. The Criminal Justice Act 1990 effectively placed this arrangement on a statutory footing, by providing that a person convicted of what might be described as aggravated murder[9] had to be (a) sentenced to life imprisonment and (b) ordered to serve at least 40 years’ imprisonment. Those sentenced under this provision may qualify for the standard one-quarter remission but not ordinarily for parole-type early release. The relevant provisions are discussed further below. Those convicted of an attempt at an aggravated murder are liable to a maximum sentence of life imprisonment, but must be ordered to serve at least 20 years’ imprisonment. They too qualify for remission but not for parole-type early release. With the abolition of capital punishment, the need to exercise the commutation power rarely arises. There is greater possibility of special remission being granted as it applies to all forms as criminal punishment, and not just to imprisonment. Until the mid-1990s offenders who had been fined following conviction in courts of summary jurisdiction frequently applied to the Minister for Justice, usually through their local political representatives, for remission of all or part of the fine, and it appears that many such applications were successful. However, in Brennan v Minister for Justice,[10] the High Court held that this practice, although facially permitted by the Constitution, was not intended to operate as a parallel system of justice. The Court said that the power should be used sparingly and that it was only in the rarest of circumstances that the Minister should alter a fine on the basis of an opinion that the amount imposed was wrong.[11] The case was unusual in the applicant was a District Court judge whose fines had been reduced on a number of occasions by the then Minister. By the time case was decided, the applicant had retired from the bench and, by a twist of political fate, the respondent Minister was no longer in office owing to a sudden change of government in late 1994. That may explain why the High Court decision was never appealed to the Supreme Court. As noted below, special remission may not be granted to prisoners convicted of certain offences which carry presumptive or mandatory minimum terms of imprisonment.

STANDARD REMISSION

Very few prisoners actually serve the full sentences imposed upon them by the courts. This has been true since the present prison system took shape in the mid-nineteenth century following the introduction of penal servitude as a substitute for transportation. The modalities of early release have varied over time, but by the early twentieth century the principal method employed in all British and Irish jurisdictions took the form of standard periods of remission. Until 1948 in England[12] and 1997 in Ireland,[13] penal servitude and imprisonment co-existed as distinct legal forms of custody although, as time went by, there was little practical difference between the two. In England, those serving determinate sentences of imprisonment were entitled to one-third remission. Male convicts undergoing determinate sentences of penal servitude were entitled to one-quarter remission while female convicts were entitled to one-third. Following the abolition of the distinction between imprisonment and penal servitude in England in 1948, all prisoners, apart from those serving life sentences, became entitled to one-third remission. In Ireland, meanwhile, everyone serving a determine sentence of imprisonment of one month or longer was entitled to one-quarter remission. Provision had been made in the Rules for the Government of Prisons 1947 for the application of remission to sentences of penal servitude but, for legal reasons, that provision was held by the Supreme Court to be ultra vires (because the Government had purported to make the rule under the authority of an Act which applied to imprisonment only).[14] From then onwards, those sentenced to penal servitude were eligible for early release on licence at the discretion of the Minister but they not entitled to standard remission. The abolition of penal servitude in 1997 meant that all prisoners, other than life prisoners and those serving one month or less, thenceforth qualified for remission which remained set at one-quarter of the sentence.[15]