The mandatory life sentence for murder is unlikely to be changed despite concerns expressed yesterday by the Chief Justice, but these concerns could be largely met by the pending new legislation allowing a verdict of diminished responsibility, according to the Minister for Justice.
Mr McDowell was responding to an interview by Chief Justice Keane in the Sunday Tribune, where he said that there were "serious doubts" about the mandatory life sentence for murder. This restricted judicial discretion in deciding an appropriate sentence, he said, pointing out that the crime of murder could vary widely.
"On one end there are instances of a domestic nature, where there doesn't seem to be any premeditation, where somebody of previously blameless character kills his or her partner. At the other end of the scale you have someone who commits deliberate, cold-blooded, calculated murder of totally innocent, blameless people, sometimes children," Mr Justice Keane said.
At the moment the mandatory sentence for murder is life imprisonment, but a person who receives such a sentence goes before the Parole Board after serving seven or eight years, and the it then makes recommendations to the Minister for Justice concerning the timing of a possible release.
However, the present Minister, Mr McDowell, has said that he will not consider any recommendations for release until a minimum of 12 years has been served, and 15 in the case of gang-related murder.
The existence of a mandatory life sentence, with the decision of the amount of time actually served being made by the Minister for Justice, means that the length of the sentence is effectively set by the Government rather than the judiciary.
Mr Justice Keane said in the interview that he favours British proposals to take the determination of murder tariffs out of the hands of the Home Secretary, and to give it to the Lord Chief Justice. This is in line with a judgment of the European Court of Human Rights, which found against the UK government on this issue in the Jamie Bulger murder case.
Speaking to The Irish Times yesterday, Mr McDowell referred to a decision taken in December 2002 to update the law on criminal insanity.
These proposals will update the definition of mental disorder and restate the law on fitness to plead. A new verdict, "not guilty by reason of insanity", will be introduced, replacing the existing verdict of guilty but insane.
The pending Bill will also contain a new provision, where a person can be found guilty but with diminished responsibility, allowing a verdict of manslaughter to be brought in where normally the crime would be murder but the suspect is not in full possession of his mental faculties.
According to the European Convention on Human Rights, decisions on detention must be made by bodies with judicial powers, and the Mental Health Review Board provided for in the proposed Bill will have such powers.
Mr Justice Keane also said that the growth in the number of dysfunctional families is at the root of the rise in juvenile crime. "The absence of the father role is a very serious matter in society - it affects children very badly that there is no settled male figure in their lives."
He also reiterated his appeal to the Government to establish a judicial council which would include provisions for policing the judiciary.