Many of the provisions of the Criminal Law (Insanity) Act, 006 were crafted specifically with the requirements of Article the European Convention in mind

(b) Summary of Principles from UK/ECHR cases on Life Sentences

At their narrowest, the principles emerging from this body of authority from the ECHR may be summarised as follows:
1. In a system where a life sentence is divided into the tariff period (representing the penal or punitive element in respect of the offence for which the person was sentenced) and the post-tariff period (representing a period of detention based upon the rationale of preventive detention), the fixing of a tariff as the minimum period to be served as penal/punitive element of sentence of life imprisonment is a sentencing exercise and must be done by a Court. This is the case whether the life sentence be (i) mandatory (Stafford v. UK); (ii) discretionary (Easterbrook v. UK); or (iii) juvenile detention at HM pleasure (V v. UK; T v. UK).
2. In a system where a life sentence is divided into the tariff period (representing the penal or punitive element in respect of the offence for which the person was sentenced) and the post-tariff period (representing a period of detention based upon the rationale of preventive detention), the deprivation of liberty in the post-tariff stage of the life sentence is no longer justified automatically under Article 5(1) and must be justified periodically to ensure that reason for continued detention (dangerousness) continues to persist (Article 5(4) requirement). This is the case whether the life sentence be (i) mandatory: Stafford v. UK; (ii) discretionary; Weeks v. UK, Thynne Wilson Gunnell v. UK; or (iii) juvenile detention at HM pleasure: Hussain v. UK.
3. . In a system where a life sentence is divided into the tariff period (representing the penal or punitive element in respect of the offence for which the person was sentenced) and the post-tariff period (representing a period of detention based upon the rationale of preventive detention) the review carried out to satisfy Article 5(4) requirements in respect of the post-tariff preventive detention period must be carried out reasonably promptly by a body with the following characteristics (in order to satisfy the definition of a ‘court’ within the meaning of Article 5(4)):
(a) the body must have the power to release the prisoner if it is satisfied that he no longer poses a risk to the public: Weeks v. UK, Hussain v. UK.
(b) there must be adversarial proceedings including the right to oral hearing, notice of evidence, and examination/cross-examination of witnesses etc.; Hussain v. UK.
( c) the scope of its examination must be sufficiently broad that the connection between the detention and the reason for detention can be scrutinized; Thynne Gunnell Wilson v. UK.

( c) Application to Ireland

A number of cases are pending before the Irish High Court concerning the mandatory life sentence. Indeed, one – Nascimento v. Minister for Justice- was already heard before Dunne J in June 2007, although the mandatory life sentence was only one of several issues before the court in that case, which primarily concerned a Ministerial decision refusing to transfer a Portuguese man convicted of murder in Ireland to Portugal. Some of the other cases will be heard in July 2007, and in these cases the issue of the release of a prisoner from life imprisonment will be squarely before the Courts. In each case, the challenge to the life sentence being served by the prisoner has been brought on a twin-track basis, based on both the Constitution and the Convention. Nonetheless, the primary impetus for these proceedings is probably the ECHR case-law concerning the UK life sentences referred to above. How will these cases play out in the courts? What kinds of arguments will feature?

There are of course some significant differences between Irish sentencing law and the law in the UK, and to a large extent, the outcome of these cases may turn on these differences. For example, Irish law does not permit the sentencing of offenders on the basis of ‘preventive detention’; to that extent it is arguable that every Irish sentence, including the mandatory life sentence for murder, is entirely punitive in its rationale from start to finish, and that the ECHR Article 5(4) requirements therefore simply do not apply.
Another point of distinction is that no ‘tariff’ is set in Ireland representing a punitive period to be served before a ‘preventive detention’ form of detention comes into being; nor, therefore, does any member of the Executive impose such tariff, thus engaging in the Article 6 - prohibited sentencing exercise identified by the ECHR.
An important component of the analysis by the Irish courts will have to be the correct characterization of the Minister’s decision in deciding whether to release a person from a life sentence or not; is it an aspect of the Constitutional power to commute or remit under Article 13.6? If so, is there a potential collision between Constitutional and Convention norms in this area? Is there any distinction between outright release and temporary and/or conditional release in this regard?
A further point of interest in these cases will be the question of relief as provided for by the European Convention on Human Rights Act, 2003. Section 5 provides for Declarations of Incompatibility, but only in respect of a ‘rule of law’ or ‘statutory provision’. Given that what appears essentially be under challenge in these cases is the Ministerial power to release from a life sentence, there may be a difficulty in terms of the relief available at domestic level.
Other issues include the non-retrospectivity of the Act, given that the imposition of sentence in these cases will have taken place before the coming into force of the Act, generating an argument that it is not possible to seek a Declaration of Incompatibility concerning section 2 of the CJA 1990, a statutory provision which provides for, and is confined to, the imposition of the sentence.
Another interesting issue that arose in the Nascimento case, which may be of more general application, was that concerning the test of review of Executive decision by the courts where a human right is the subject of the Executive decision. It was argued on behalf of the Applicant that the UK test of ‘anxious scrutiny’ was a higher test than the Irish ‘unreasonableness’ test. It was argued that a similar ‘higher’ test should be applied in this jurisdiction where human rights are concerned. The State argued that as the case concerned a transfer decision of the Minister, rather than a decision on release from imprisonment, the right of liberty was not at stake and, indeed, that no human right as such was in issue. The State argued, further, that the ‘anxious scrutiny’ test was not in fact a higher standard than the Irish Judicial Review test, which had incorporated constitutional principles long before the English courts had incorporated the Convention. This is undoubtedly not the last we have heard on this particular issue. Indeed, I understand that the question of the appropriate test has been certified to the Supreme Court in the context of immigration law.
The judgments in these forthcoming ‘mandatory life sentence’ cases will also be relevant to other areas of sentencing, in particular where legislation –as it increasingly does – requires a mandatory minimum sentence. A case of some interest in this regard is the House of Lords decision in R . Offen and othrs [2001] 1 WLR 253, in which the House of Lords used Convention principles in its interpretation of a statutory provision (Section 2 of the Crime (Sentences) Act, 1997) which provided for the automatic imposition of a life sentence following conviction for a second ‘serious offence’ (there being a list of specific offences falling within the definition of ‘serious offence’). The Court employed Convention principles to interpret the opt-out clause, referring to ‘exceptional circumstances’, in such a way as to avoid an arbitrary deprivation of liberty based on assumed dangerous that had not been proved in the particular case.