There should be no involvement by the executive in the justice system

Mon, Nov 19, 2012, 00:00

LEGAL OPINION:The recent release of the country’s most infamous killer Malcolm Macarthur has placed our Parole Board system firmly in the spotlight once again. Rather unsuprisingly, his release caused its fair share of upset and speculation. Macarthur spent over 30 years in prison compared to the average life sentence of 17 years.

Minister for Justice Alan Shatter has suggested he will soon put the Parole Board on statutory footing as well as reviewing its exact function. This is potentially good news. There have for some time been calls for the Parole Board to be made truly independent, the Irish Penal Reform Trust being among the most vociferous of campaigners.

The board is composed of 12 persons of varying expertise and backrounds. They range from representatives of the Department of Justice, Prison Service, Probation Service and the community through to legal and psychiatric professionals.

There exists considerable food for thought for Mr Shatter when looking at our system. Currently the board simply advises the Minister on the appropriateness of release for prisoners. Ultimately, the Minister makes the final decision. More important than the opinions of individuals or interest groups is the jurisprudence of the European Court of Human Rights. The Strasbourg court is the final arbiter of interpretation on the European Convention of Human Rights to which Ireland is a signatory. Since the Weeks v UK judgment, we have been obliged to review the continued incarceration of prisoners serving life sentences.

Liberty and security

Article 5 of the convention concerning the right to liberty and security is the pertinent article relating to the independence of the Parole Board. A number of judgments emanating from the Strasbourg court use the words “court” and “court-like body”. In the Weeks case the European Court elaborated, stating “the court referred to in article 5, paragraph 4, does not necessarily have to be a court of law of the classic kind integrated within the standard judicial machinery of the country.”

The term “court” suggests a body that, most importantly, is independent “of the executive and of the parties to the case”. The court was not suggesting that a body such as the Parole Board cannot exist in its current guise, rather it must be truly independent. As a result it is open to debate whether or not our Parole Board meets the minimum convention standard.

At the same time, in Neumeister v Austria, the court did not take the view that an “equality of arms” should exist in such hearings. Article 5, paragraph 4, in no way relates to the procedure to be followed in a particular hearing. This principle exists in the law, referring to the idea that both the prosecution and defence should be entitled to procedural equality before the court/tribunal etc. By way of example, in a normal court case, both would have access to all relevant witness or expert testimony. Presumably though, given that a person’s liberty is at stake, the prisoner would be entitled to some input.

Lack of representation

Other issues present themselves, such as the lack of representation for victims on the Parole Board. The organisation Advocates for Victims of Homicide supports this change. Whether or not this change would be desirable on a practical level or indeed such persons would be properly independent is up for discussion.

The issue of public pronouncements of decisions made regarding prison sentences raised its head in Campbell and Fell v UK where the court felt that a pronoucement must not necessarily occur in the “literal” sense but that steps should be taken in order to make public the decision of a board. This would leave any decision open to public scrutiny. Our Parole Board makes no such decision available to the public, most probably because it does not have the final say on the issue of release.

On top of this, certain persons do not qualify for having their sentence reviewed by the Parole Board. Persons convicted of murdering a Garda or prison officer in the course of their duty is one such category. It begs the question – what exact reasoning is behind this? Surely fairness dictates that all life ended is entitled to equal respect as well as those serving time for murder being entitled to the same methods of recourse?

One can only hope the review of how the Parole Board operates and functions in this State will be a productive one.


Karl Shirran is pursuing an MLitt in law in TCD

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