TWO convicted murderers are challenging the mandatory life sentence claiming it excludes a discretionary role for judges in recommending a minimum jail sentence.
Peter Whelan and Paul Lynch have brought an appeal to the Supreme Court over Section 2 of the Criminal Justice Act 1990, which provides mandatory life sentences for murder or treason.
They claim it is unconstitutional and offends their rights under the European Convention on Human Rights (EHCR). They say the role of the Parole Board and the Minister for Justice in reviewing their sentences is incompatible with the ECHR.
In 2002, Whelan pleaded guilty to the murder of Nicola Sweeney, aged 20, a student, at her home in Underwood House, Rochestown, Cork, in April 2002. He was also jailed for 15 years for the attempted murder of her friend, Sinéad O’Leary, on the same evening.
He appealed to the Court of Criminal Appeal which decided the 15-year sentence should run consecutively to life.
Lynch pleaded guilty in 1997 to murdering Donegal pensioner William Campbell, aged 77, at the victim’s home in September 1995. Mr Campbell died after he was repeatedly struck over the head with a saucepan in a robbery.
In 2004, Lynch’s detention was considered by the Parole Board, and in July that year then Minister for Justice Michael McDowell decided he would not be released and also directed no further application for release should be made for three years.
Yesterday, a five-judge Supreme Court began hearing their appeal against a High Court decision three years ago rejecting their constitutional and ECHR claims.
Lynch’s lawyers, Roger Sweetman SC and Desmond Murphy BL, argued that when a murderer should be released should not be left solely to the Minister for Justice but should involve a sentencing judge recommending a minimum term taking all the circumstances into account. This would be similar to the system in the North, they say.
In their appeal, the two men contend mandatory sentencing offends the doctrine of separation of powers of the legislature and the judiciary because it amounts to a sentencing power on the part of the Oireachtas.
They also argue it offends the doctrine of proportionality enshrined in the Constitution in that it leaves a judge with no discretion.
The men also claim they are being subjected to degrading and inhuman treatment, in contravention of Article 3 of the ECHR, by virtue of the fact that they have no way of assessing how or when their release will occur.
They say the role of the Parole Board and the minister’s power to commute, remit, or order temporary release of “lifers” is incompatible with Article 5(1) and (4) of the ECHR, regarding the right to liberty.
It is also claimed their continued detention can only be decided by an independent judicial body conducting a hearing in public and where they would be afforded adversarial rights, as required under Article 6 of the ECHR.
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