Challenge to life term for murder denied

An unprecedented challenge by two convicted murderers to the constitutionality of their mandatory life sentence for murder has been rejected on all grounds by the High Court.

The challenge was brought by Peter Whelan and Paul Lynch.

Whelan (25), of Ashsgrove, Underwood, Rochestown, Cork, is serving a life sentence after pleading guilty to the murder of Nicola Sweeney (20), a student, at her home in Underwood House, Rochestown, in April 2002. He was also jailed for 15 years for the attempted murder of her friend, Sinead O'Leary, on the same evening. Both women, Ms Justice Mary Irvine said, were "savagely stabbed" in the absence of any provocation.

Lynch (30) was sentenced to life imprisonment in 1997 after pleading guilty to the murder of Donegal pensioner William Campbell (77) at Mr Campbell's home in September 1995.

Mr Campbell died after he was struck seven or eight times over the head with a saucepan during a robbery.

Welcoming Ms Justice Irvine's dismissal yesterday of the actions, John Sweeney, father of Nicola Sweeney, said his family was "immensely relieved" and hoped this would represent an end to Whelan's legal challenges.

In her 70-page decision the judge found that Section 2 of the Criminal Justice Act 1990, which provides for the mandatory life sentence for murder, breaches neither the Constitution nor the European Convention on Human Rights Act 2003.

While noting that the State had accepted that the Parole Board, which is consulted by the Minister for Justice when reviewing life sentences, was not an "independent and impartial" tribunal within the meaning of Article 5.4 of the European Convention on Human Rights, the judge said the men had no rights to a review of their detention by an independent body, given that the life sentence for murder is "wholly punitive" and contains no element of preventive detention.

She said the pair had not established that the European Court of Human Rights now recognises that all life prisoners have a right to have their continued detention reviewed on a regular basis. Such a right applied only to those detailed solely for reasons of dangerousness and whose retributive sentences have expired.

Ms Justice Irvine found the Oireachtas was entitled under the Constitution to provide for a mandatory life sentence, and disagreed that such a sentence unconstitutionally interfered with the role of the judiciary in sentencing matters and breached the doctrine of separation of powers.

Rejecting claims that the mandatory sentence breaches the constitutional doctrine of proportionality, the judge agreed the deprivation of liberty could be justified in every single murder case.

There "could be nothing offensive" in the Oireachtas promoting respect for human life by concluding that any murder, even at the lower end of the scale, was "so abhorrent and offensive to society" it merited a mandatory sentence.

A mandatory life sentence for murder, with the only prospect of remission being that which might be exercised on a discretionary basis by the Minister for Justice, was proportionate to the public good and having regard to the nature of the offence, the defences available and the trial procedures available to an accused.

She said the life sentence was also designed to reflect the constitutional significance attached to the right to life, a right placed at the top of the hierarchy of constitutional rights.

The offence of murder was also of a unique nature, and a person could be jailed for murder only where there was an intention to kill.

Death which occurred in circumstances where there was no intention to kill, as in dangerous driving, could be dealt with in a much more lenient fashion, with the courts having wide-ranging discretion as to sentence.

The judge also dismissed arguments that the power of the Minister for Justice to commute or grant remission in murder cases amounted to sentencing of an offender and breached the doctrine of separation of powers.