Head to Head: YESBarrister Michael O'Higgins argues that judges should have discretion to take account of particular circumstances, case by case NOCharles Flanagan argues that murder should not result in varying sentences. Victims and the judicial process need the certainty a mandatory sentence gives.
A man in a moment of temper lashes out and kills his best friend. Immediately, overcome with remorse, he calls the gardaí, confesses and pleads guilty at the earliest opportunity. Friends express amazement as his behaviour is out of character.
Another man kills his partner by poisoning. He administers the poison slowly to detract suspicion from himself, inflicting greater pain upon his victim. He lies to the gardaí. At trial he attacks the character of the State witnesses. He argues every technical point. As the jury pronounces him guilty his only regret is that he has been caught.
Even though the High Court has recently upheld the mandatory life sentence in murder cases as constitutional, to most people the inherent unfairness of imposing the same sentence on these two people is manifest.
So why then is there such a resistance to change?
Well, firstly, it is said, the punishment fits the crime. The deliberate taking of a life is itself such a heinous event that we must always mark it by coming as close as we can to taking an eye for an eye. But treating all murders as one is difficult to justify when the circumstances of the offence and the defendant vary so widely.
Deterrent is another argument. But what of the many rows which occur late at night where one or both parties intoxicated with drink or drugs become angry over some relatively trivial event? Typically such offenders have a high level of dysfunctionality, and little stake in what the rest of us refer to as society. Deterrence is based on rational assessment and fear, qualities notably absent in such fracas.
The recent Law Reform Commission report, Homicide: Murder and Involuntary Manslaughter, is as usual an exhaustive and seminal study of the topic. In addition to recommending the abolition of the mandatory life sentence, it proposes broadening the definition of murder, to capture conduct which at the moment would only justify a conviction for manslaughter.
There is good reason underpinning this recommendation.
A life sentence is a harsh penalty and there can be little doubt it is recognised as such by juries. A frequent defence relied upon is that of self-defence and/or provocation. For instance, it is open to a jury to find manslaughter, if a defendant can show they were suddenly provoked by the person they killed, to the point that they completely lost control.
Because jury deliberations are secret, it is not possible to say precisely how a verdict is reached. However, anecdotal and empirical evidence suggest a jury may opt for manslaughter to avoid visiting a life sentence on an accused in what they regard as a hard case. Such cases often turn into a "blame game" in which the conduct of the deceased is to the fore, which, understandably, is greatly resented by family and friends.
Implicit in an unwillingness to embrace change is a fear that the courts would impose sentences that are too lenient. While gravity is a factor, the fear is that as the actual sentence must be tailored to the individual circumstances of the accused, this will inevitably result in a lesser penalty.
That cuts both ways. The courts are already handing down life sentences in rape and sexual abuse cases where the defendant represents an ongoing risk.
This fear is compounded by statistics which suggest that lifers "only" serve average sentences of about 13.86 years. But these figures are misleading. They are calculated by reference to a control group which consists only of prisoners who have been released. Excluded from the calculation, for instance, are John Shaw and Geoffrey Evans (1974), Malcolm Macarthur (1982), and Michael McHugh and Noel Callan (1985).
It is surely no coincidence that these long-serving prisoners have all committed murders which are regarded as politically sensitive. A fixed prison term has the attraction of transparency which the mandatory life sentence does not provide.
The number of murders in Ireland is low by international standards. The typical offender is often highly marginalised. There has been a disproportionate attention on gangland killings. The effect of this has been that most people see this as an issue which does not affect them or people close to them. Experience shows that in such circumstances empathy is likely to be in short supply, and with it a desire to change.
Sentencing is not an act of revenge. A trial can be a traumatic process, particularly for relatives. Allowing a court to fix the appropriate sentence in individual cases would undoubtedly result in more people pleading guilty to murder. The callous murderer cannot expect to receive any benefit.
There is much to commend the Law Reform Commission proposal. It is to be hoped that politicians can debate the issue maturely, without accusing each other of being "soft" on crime.
Michael O'Higginsis chairman of the Irish Criminal Bar Association. The views expressed are his own
One of the first duties of the State is to protect the public against criminals. The law-abiding members of the public have a right to a safe environment to live and work. Part of this duty of the State is to make laws to punish those criminals and to deter others who may consider committing offences in the future.
The debate on how the State treats criminals, particularly violent criminals, and their victims reflects one of the fundamental discourses of a modern democratic society.
The most serious crime that can be committed in our society is murder. The current penalty for murder is a mandatory life sentence. However, in these circumstances, "life" rarely means just that.
Murderers do not qualify for remission of their sentences like other prisoners, but they can secure early release if a parole board and the Minister for Justice decide that they have earned it. The result is that a person sentenced to "life imprisonment" for murder will tend to serve just 12-14 years in prison.
There is a question now as to whether Ireland should abolish the mandatory life sentence for murder. We in Fine Gael believe that a mandatory sentence is essential in representing how seriously the State views such violent crime and what lengths it will go to to punish the murderer. We believe that judges should not have sole discretion to decide what sentence is appropriate for murder for two reasons.
First, in a democracy it is the State's duty and responsibility, exercised through its judges, to assert on behalf of the people what the appropriate penalty for murder should be. Anything else is a derogation of the State's duty to protect its people.
Second, there is evidence to show that where judges have been given discretion in "exceptional circumstances" to change the terms of a mandatory sentence, they used it too widely and invoked the "exceptional circumstances" much more frequently than was the intention of the legislature.
Murder, which invokes very emotional and personal responses from the people of this country, cannot be subject to such variation in sentencing. In a time of uncertainty, a time of grief, upset and desperation, the families of murder victims should be given the comfort of knowing what to expect from the court when a person is convicted of their loved one's murder.
Fine Gael is committed to taking the victim out of the shadows and giving them a central role in the criminal justice system. The publication two weeks ago of a comprehensive Victims Rights Bill by Fine Gael is an important first step in this process.
However, there can be situations where unlawful killing should not constitute murder. The Law Reform Commission in its recent publication, Homicide: Murder and Involuntary Manslaughter, has recommended that other categories of unlawful killing be considered to reflect the varying degrees of culpability of a person, such as "Assault Causing Death", "Careless Driving Causing Death" and "Gross Negligence Manslaughter". The Law Reform Commission is to be commended on the production of its excellent report. It is thoughtful and well reasoned. Fine Gael agrees that there should be a distinction between murder committed with intent or extreme recklessness and other forms of unlawful killing which may result from accident or negligence.
Accordingly we would welcome and support the adoption of these new offences with appropriately reduced sentences. In fact the distinction created may be very useful in reinforcing how serious murder is by removing any remaining ambiguity as to its definition. In this sense murder becomes an even more heinous offence, as it is tightly defined to include only those acts which involve intent or extreme recklessness for the life of another person.
Thus the debate becomes not about definition of the sentence, but about the definition of murder.
Fine Gael is committed to maintaining the mandatory sentence for murder. For victims and their families - their sentence is never reduced, their sentence is mandatory, their sentence is a true life sentence. Accordingly, Fine Gael recommends the imposition of a mandatory 25-year sentence for murder as defined above. This would give certainty to the process and ensure the offender remains in prison for longer and might act as a deterrent to other possible offenders. Of course, the potential for any sentence to act as a deterrent is dependent on the rates of detection and prosecution for the offence and the continued hard work of a properly resourced Garda is very important in this regard.
Murder must continue to be regarded as the worst offence that can be committed in Irish society. It is appropriate that the sentence represents not just the severity of the offence but that it be a statement of the people's horror with the commission of murder. The definite and onerous sentence is not just a punishment, not just a deterrent but an assertion by the people of Ireland that murder, in its true violent and reckless form, can never be permitted and will always attract the most severe penalty available.
Charles Flanaganis a Fine Gael TD for Laois-Offaly and his party's spokesman on justice
Last week's debate: Should the Government ban fox hunting? Here is an edited selection of your comments:
I feel those of us who are against hunting were let down by Philip Kiernan's refusal to give a reputable newspaper like The Irish Times his photograph. It confirms that we are the minority, scared to stand up and be counted because we want to stop this so-called sport.
Marion Bradley, Ireland
Philip Kiernan's refusal to have his picture published surely shows the true undercover nature of the Irish Council Against Blood Sports. There is a hidden agenda that will not stop with fox hunting. This lobby group and its wider supporters from overseas will continue until farmers are prevented from rearing cattle and sheep for the meat industry and turn rural Ireland into a national park.
The real issue is the freedom of people living in the Irish countryside and our liberty to make an informed choice to hunt. If this liberty is taken away the foundations of the Republic must be questioned. Let us learn from the mistakes made in England where a huge urban/rural divide has developed over the last 10 years. Rural England feels as if it has been alienated from mainstream England - let us not try and alienate rural Ireland developing a two-tier society where there is mistrust on both sides.
James Phelan, Ireland
Killing animals for food makes sense. As humans, we're omnivores, we eat meat. Killing animals for sport does not make sense. I think it should come under a "cruelty to animals" heading and should be banned.
Nadia, Ireland
Yes it should be banned! Nobody has the right to interfere with nature. There is enough cruelty to animals in this world without a bunch of cowards on horses chasing and killing foxes or any other animal. These people need to get a life; they need to travel more and experience the beauty of the world, instead of trying to destroy it for kicks.
Len, Dublin
Fox hunting is a particularly twisted form of entertainment. I had the pleasure of seeing a fox out scouting for food the other night and the idea that redcoats would ponce about wrecking ditches, fences and the general tranquillity of the countryside so that they could tear that animal apart is abominable. Foxes are not a threat to modern farming so there is no argument in favour of hunting. It is not as if they are even an edible prey. It is of the utmost importance that we implement a ban now that we are becoming a hunting destination for the upper-class mange of Britain. Lest supporters of hunting believe the general public have no right to decide, this is a republic and those foxes along with their habitats and conservation belong fundamentally to the people.
Ralph, Ireland
Judging from the vast majority of comments made, pro-hunting folk are very willing to speak out and defend a tradition that's integral to our country life. The anti-hunting brigade appears to lack a voice and also a face. Hunting should not be banned.
Diane, Ireland
I would much rather be a fox, running the risk of encountering the odd hound, than be an intensively farmed animal bred for the food industry. Foxes have better lives and better deaths than those reared for our culinary pleasure.
Claire Lowe, Ireland
The people who hunt are the greatest animal lovers of all, dedicating themselves to loving animals and nurturing the future of country life. Banning hunting would greatly affect the fabric of country life that is natural and well meaning, promoting balance for animals and people alike.
Sara Cosgrove, Ireland
"Hunting with hounds is the natural and most humane way of controlling the population of all four quarry species" - Supported by over 540 members of the Royal College of Veterinary Surgeons.
Emily Cooper, Ireland
My four-year-old daughter is now the third generation of our family to fox hunt.
It is with pride that we support this part of our rural culture and we will continue to maintain the countryside for everyone to enjoy. Hunt on.
Aisling Knight, Ireland
If the fox looked like a rat and hadn't appeared on Christmas cards and in children's books this debate would never have started.
J Irwin, Ireland
Terrorising animals for one's entertainment is sadistic and sick, and should be illegal.
Mary Finely, United States