Minimum life terms: should judges have a say?

The judge in the recent Ashling Murphy murder trial suggested that it is ‘long past time’ that judges should have a say in setting the minimum terms in life sentences. Dara Robinson SC argues, obversely, that the current system for ‘lifers’ entering prison is unsatisfactory and bordering on the inhumane

The recent conviction of Jozef Puska (pictured) for the brutal murder of 23-year-old Ashling Murphy, stabbed to death as she jogged by the local canal bank in Tullamore, brings to an end a series of events that shocked Ireland in a way that homicide rarely does.

The sheer randomness and brutality of her killing resulted in a collective outpouring of grief such as is rarely experienced but, of course, behind the scenes, the criminal investigation was rapidly mobilising, resulting in the apprehension and prosecution of Puska.

With his conviction, many voices are being raised as to the seeming inadequacy of the sentencing powers of the trial judge, Judge Tony Hunt, whose own words, indeed, suggested that it was “long past time that judges should have some say in setting what the minimum terms should be” in life sentences.

Justice Minister Helen McEntee indicated that her department was looking into the issue, suggesting that for especially heinous crimes, longer terms of imprisonment were appropriate.

The voice of the victim

In this context, the voices of the families of victims, and groups who represent them generally, have been heard loud and clear. Tending, understandably, to articulate concerns in emotional rather than forensic terms, they have nevertheless been heard in high places, and been given much airtime.

Policymakers appear to feel obliged to respond to such demands, and it is clear that Ireland has gone some way beyond the (European) Victims’ Directive to facilitate the voice of the victim.

The current state of the law is that a ‘life sentence’ is mandatory where a person pleads guilty to, or is convicted of, the offence of murder. The actual period of time served in prison varies, but now averages almost 19 years in custody.

‘Lifers’ remain at risk of recall to prison for various reasons for the whole of their natural lives, a power which, in fact, is very sparingly exercised.

The life sentence itself is not entirely uncontroversial – ten years ago, the Law Reform Commission recommended its retention, but only by a majority.

The Parole Board, placed on a statutory footing by the Parole Act 2019, is now the body that determines the date of release – previously it had been the minister, acting on the advice of the old board.

The 2019 legislation provides that a prisoner must serve 12 years of a life sentence before having their case considered by the board, compared with seven years under the old regime. No prisoner has the remotest prospect of being released on a first review by the board, each case then being reconsidered at two-yearly intervals.

First year in operation

The Parole Board is now completing its first year in operation. As per its statutory remit, its emphasis is on assessing the readiness of any prisoner for discharge into the community – after the better part of two decades in custody – with particular emphasis on the risk of reoffending and concomitant danger to the community, and preparedness for reintegration.

Hearings are now much more due-process oriented than heretofore, with prisoners having legal representation, before and at any hearing.

Notably, the enabling legislation empowers the board to facilitate victim representation, both before and at hearing. Specifically in this regard, international research tends to suggest a greater risk of adverse outcomes for prisoner applicants following representations by victims. Notwithstanding that issue, the board in its previous incarnation, was manifestly conservative in its recommendations to the minister.

Notably, and contrary to any view that lifers are getting off lightly in Ireland, we now have more life-sentence prisoners than any other European country, who are serving longer periods, bar the UK, Greece and Turkey.

At the same time, lifers are a steadily increasing proportion of the rapidly expanding prison population, with significant implications for their management, and for the operation of the prison system generally.

All of this is against a background of overwhelming evidence that longer sentences are less effective than shorter ones in achieving the stated aims of rehabilitation and preventing reoffending.

Inadequacy of judicial powers

Judge Hunt’s observations as to the inadequacy of judicial powers, cited above, point to some comparison with our neighbouring common-law jurisdiction, England and Wales.

For decades, trial judges in murder cases in the UK have had the power to impose, following conviction, minimum ‘tariffs’ – the least period an offender must serve – prior to their being considered for release.

The ante was upped even further in 2003 with the introduction of ‘whole-life orders’, reserved for the most heinous – and dangerous – offenders, generally serial killers, or offenders whose crimes involved child victims, sadistic and/or sexual elements.

Nurse Lucy Letby and PC Wayne Couzens were the most recent high-profile recipients of such orders. There are just under 70 ‘whole lifers’ in the UK prison system at the present time.

Outside the UK, there is general acceptance that such orders are in breach of the European Convention on Human Rights, since a whole-life sentence eliminates the prospect of rehabilitation – a fundamental consideration in the theory of incarceration. From an Irish perspective, such a concept, amounting as it does to preventive detention, has been effectively ruled out over many decades of jurisprudence.

Legislative change?

All of the above raises the question of whether or not Ireland needs legislative change to permit a prescription by a trial judge of a minimum tariff, or indeed to make a whole-life order or something equivalent.

It is undoubtedly the case that trial judges – if there has been a trial, as opposed to a (rare) guilty plea – are singularly well placed to assess the gravity of the offence, having heard all of the evidence surrounding its commission.

Indeed, even on a guilty plea to murder, the sentencing judge is likely to be appraised of all the pertinent issues. It would be ironic, however, if at this stage, the Oireachtas, having vested in the board the responsibility for discharge (the minister having been divested), afforded a minimum term to the judge, as is the case in the UK.

The reality of homicide offences is that, by and large, they are not pre-planned, and they are committed by a person known to the deceased, most often under the influence of an intoxicant, usually alcohol. As such, they tend not to be committed randomly by extremely dangerous people, making the Puska case very much an outlier.

Clearly, there needs to be legal provision for such cases – and there is, within the existing legal framework.

‘One-size-fits-all’

The likelihood of a person so manifestly dangerous as Puska securing early release via the Parole Board process is non-existent. But, further, as Judge Hunt pointed out almost in the same breath, a life sentence is a “one-size-fits-all”, though the cases are far from all being the same. Very few people convicted of murder present, in any significant way, a genuine threat to the community.

It often seems that, in the arena of criminal justice – uniquely among legal topics – everyone is an expert, or at least holds a strong opinion. Government must, however, ensure that policy is determined by rational considerations, rather than by emotion or knee-jerk responses.

It should be remembered that Ireland is a low-crime society, and yet we continue to imprison more people for longer periods.

Life sentences are unique, in that a person entering prison is left with no way of knowing when or indeed, if, they will be released. In principle, this is unsatisfactory and bordering on the inhumane. Perhaps those are the issues to which we should be paying more attention?

Dara Robinson SC is a solicitor and consultant to Sheehan & Partners LLP.